Her Majesty the Queen - v. -, 2017 SKPC 54

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 54 Date: June 26, 2017 Information: 35708384 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Clint James McLaughlin Appearing: Lynn Hintz For the Crown Nicholas Stooshinoff, QC For the Accused JUDGMENT S.L.

METIVIER , J I Introduction [ 1 ] The accused, Clint James McLaughlin is charged with 17 weapons related offences including possession of weapons for a purpose dangerous to the public peace, possession of weapons knowing that he was not the holder of a license to possess them, possession of restricted weapons together with readily accessible ammunition knowing that he was not the holder of a license to possess them, possession of rifles, shotguns and restricted handguns knowing that they were obtained by the commission of an offence, transferring rifles, shotguns and restricted handguns knowing that he was not authorized to do so, and having possession of rifles, shotguns, restricted handguns and ammunition while he was prohibited from doing so.

Particulars of the firearms are set out in the Information. The offences are alleged to have occurred on March 28, 2014, in Saskatoon Saskatchewan.

[2] The three main witnesses in this case were the accused, Noel Harder (“Harder”) and Marianna Cracogna (“Cracogna”). At all relevant times, the accused and Harder were members of the Fallen Saints Motorcycle Club. The accused and Cracogna were engaged to be married and lived together at a house that she owned on 7th Street. All three individuals were at the house on 7th Street on March 28, 2014, and have personal knowledge about what happened. [3] On March 28, 2014, police officers were conducting surveillance on Steve Mychan (“Mychan”) and Harder based on telephone intercepts that a transaction of firearm(

s) was to occur between them. According to theSurveillance Report, Harder left his residence in Dundurn at 12:41 p.m. and drove to Saskatoon. He stopped first at the accused’s house on 7th Street, and left there at 2:09 p.m. He made additional stops at a 7-11 on Clarence Avenue, the Centre Mall, and the Shopper’sDrug Mart at Grosvenor Park Centre before arriving at RTN Properties, which was used as the Fallen Saint’s clubhouse (the“Clubhouse”), at 3:20 p.m.

He left the Clubhouse at 3:50 p.m. and drove to Mychan’s residence where he removed a “long bag” or“large black bag” from a car parked in the back yard and put it in the rear seat of his truck. [4] At 4:13 p.m., police officers initiated a traffic stop of Harder’s vehicle that resulted in the seizure of multiple weapons.

The Crown’s theory is that all but one of the seized firearms came from the attic space of a detachedgarage at the accused’s residence, except a Norinco SKS rifle that he obtained from Mychan. [5] The Crown witnesses, Harder and Cracogna, both testified that the accused asked Harder to remove the firearms from the attic as he was concerned about being found in breach of his conditions of release. The accused deniedthat he was in possession of the firearms, or that he transferred them to Harder.

He testified that Harder had the firearms in his truckwhen he arrived at his residence and that they remained in Harder’s possession when he left. [6] The primary issue to be decided in this case is whether the Crown has proven the element of possession of the firearms and ammunition, which forms the subject matter of these charges, beyond a reasonable doubt. Whilepossession is not an element of weapons trafficking in counts 11, 12 and 13, the Crown’s theory of how that transfer occurred is based onthe fact that the accused had the firearms and ammunition in his attic. [7] The Crown called Cpl.

Candace Ochitwa, a forensic identification specialist, and two police officers involved in the aerial surveillance and traffic stop. The defence called the accused’s mother, Marion McLaughlin, JoshuaWalker and Desirae Slater as witnesses. [8] Marion McLaughlin’s testimony was heard in a voir dire and is subject to my ruling on admissibility.

Upon reviewing her testimony, I have determined that the sole purpose of her evidence was to contradict Cracogna’sevidence on a collateral fact and is therefore inadmissible. [9] Given the conflicting evidence put forward by the Crown and the defence, this case turns on the credibility and reliability of the witnesses. The credibility and reliability of witnesses is to be assessed according to the legalstandard of proof beyond a reasonable doubt applying the principles set out in the Supreme Court of Canada decision in R v W.(D.), (SCC), [1991] 1 SCR 742.

Credibility must not be decided simply by choosing between the evidence of the complainant andthe accused. The Court may believe some, none or all of the testimony of any witness, including that of an accused. The Court mustconsider the evidence in its totality and decide whether the Crown has proven every element of the offence beyond a reasonable doubt (Rv J.H.S., 2008 SCC 30, [2008] 2 SCR 152, paras 8-13). [10] After being pulled over and found in possession of firearms, Harder decided to make a deal to work with the police.

He immediately started acting as a confidential informant and, on September 20, 2014, entered into aMemorandum of Understanding (the “M.O.U.”) and Letter of Acknowledgment (the “L.O.A.”) to act as a police agent in Project Forseti. The M.O.U. and L.O.A provide prosecutorial immunity and financial compensation in exchange for Harder’s agreement to assist policewith the Project Forseti investigation, to attend court and to provide truthful testimony in all criminal proceedings resulting from theinvestigation. Harder is currently protected under the federal Witness Protection Program.

[11] Both Crown and defence acknowledge the application of the Vetrovec principle, which cautions the Court against the risk of convicting an accused based on the evidence of an unsavoury Crown witness in the absence ofcorroborating evidence (Vetrovec v The Queen, (SCC), [1982] 1 SCR 811). [12] The corroborating evidence need not confirm the Crown witness evidence in every respect, so long as the trier is satisfied that the witness, despite his or her frailties or shortcomings, is truthful in the relevant aspects ofhis or her testimony (R v Kehler, 2004 SCC 11, [2004] 1 SCR 328 at paras 13 and 22). [13] The Crown argues that when the totality of the evidence is examined, the only reasonable conclusion that can be drawn is that the firearms and ammunition belonged to the accused.

The defence submits that the evidence in thiscase raises at least a reasonable doubt. II Key Testimony of the Main Witnesses Clint McLaughlin [14] The accused was arrested for weapons offences on March 6, 2014, following the execution of a search warrant at the house on 7th Street that he shared with Cracogna. Apparently, the charges were laid as a result ofthe police finding firearms in the house, which were later determined to be in the lawful possession of Cracogna.

He was released fromcustody on March 26, 2014, on strict conditions that included electronic monitoring, no weapons, and a search clause. [15] On March 28th, he received a text message from Harder indicating that he intended to drop by the house. Harder arrived in the early afternoon and they talked about his dealings with other people involved in the drugbusiness. Near the end of their conversation, Harder offered to purchase some quad tires that the accused had in his garage. The accusedopened the garage door for Harder and kept it open due to the size of the truck and shortage of space in the garage.

After the tires wereloaded, Harder opened the truck door and said to the accused, “I got a deal for you.” The accused saw two duffle bags in the truck, onelong and one short, that contained weapons and ammunition. He quickly rejected Harder’s offer as he was subject to strict releaseconditions and did not want to breach them. Noel Harder [16] Harder testified that sometime around noon on March 28th the accused called him on a “burner phone” and asked him to come to his house.

He was hesitant about going there as he knew that the accused was recently releasedwithout gun charges and suspected that he might have an agreement to work with the police. When he got there, the accused asked himto remove some firearms that the accused had stored in the attic space of the garage. Harder claimed that he was reluctant to take thefirearms, but agreed to it after the accused threatened to drop them off at the Clubhouse. [17] Harder stated that Cracogna opened the garage door for him as the accused was wearing an electronic bracelet and could not leave the house.

After closing the garage door behind him, Cracogna climbed partway into the atticand handed one duffle bag and some loose firearms to him while he stood in the back of his truck to receive them. Harder moved theitems to the floor of the back seat of his truck, exited the garage and left. [18] Harder made a number of stops before attending at Mychan’s house to collect on a drug debt. He said that he picked up an SKS rifle from Mychan. The rifle was wrapped in a green tarp hidden in a car in Mychan’sbackyard.

He picked up the tarp and rifle and placed them in his truck on top of the firearms that he picked up from the accused’s

house. He left Mychan’s place and drove approximately three blocks before he was stopped by police. [ 19 ] Harder’s testified that all of the weapons seized by the police, with the exception of the SKS rifle that he picked up from Mychan’s house, came from the attic space in the accused’s garage. Marianna Cracogna [ 20 ] Cracogna is a firearms enthusiast who lawfully owned numerous weapons.

Both Cracogna and the accused testified that she was meticulous about following the rules so as not to put her firearms license in jeopardy. [ 21 ] Cracogna testified that shortly after she arrived home from Estevan on March 28 th , the accused asked her if Harder had come to “grab the stuff in the garage.” She asked him what “stuff” and he replied “the guns in the attic.” She was really upset as the accused understood that he was not to have any guns in the house that might interfere with her gun license.

The accused told her that he was just the “middleman” and the guns were supposed to be in and out the same day. She told him to get the guns out “right now.” The accused called Harder to get the guns and he came right away. [ 22 ] Cracogna opened the garage door for Harder and closed it behind him. She watched from the door as Harder took two big black bags from the attic and put them into the truck. She said that she believed Harder would have put a ladder in the back of his truck to reach the items in the attic.

She could see that there firearms in the bags, but did not get close enough to see what kind they were. III Analysis [ 23 ] The Crown argues that the material aspects of Harder’s evidence are corroborated by Cracogna and consistent with undisputed facts including the telephone intercepts, Surveillance Report, forensic fingerprint identification evidence, and the items seized by police. [ 24 ] The defence challenges the credibility of the two main Crown witnesses. The defence argues that all of the evidence must be examined critically and carefully, not only for what is there, but also for what is missing.

Telephone Intercepts [ 25 ] Transcripts of intercepted private telephone conversations were admitted by consent. Crown and defence each argue that different parts of the conversation support their case. [ 26 ] While there is no evidence that the parties to the conversations were aware that they were being recorded, it is apparent from the exchanges that the participants were at least cognizant of the risk.

Their discussions were purposefully vague with a good dose of suspicion and intrigue thrown into the mix. [ 27 ] Conversations between Cracogna and the accused, both before and after he was released from custody, show that the accused was very concerned about his conditions and was taking care to ensure that there were no weapons or alcohol in the house that might result in a breach. Among other things, they talked about arranging for the removal of any alcohol from the house and for temporarily storing Cracogna’s firearms with someone who had a Possession and Acquisition License (PAL).

[ 28 ] Defence counsel submits that it would be inconsistent for the accused to make sure that any alcohol and kitchen knives were removed from the house even though he had numerous firearms stashed in his attic. I do not agree that the Crown’s case is inconsistent with the conversations that the accused had about complying with his conditions. According to the Crown’s witnesses, the accused asked Harder to remove the firearms from the attic for precisely the same reason – so he wouldn’t get caught with them and breached.

It makes sense that the accused would not talk to Cracogna about the firearms in the attic as he knew that he was not to have guns in the house or do anything that might put her license in jeopardy. [ 29 ] On March 28, 2014, shortly after lunch, Harder was recorded on a recording device installed in his truck. He testified that the accused was the person on the other end of the conversation and that he asked him to stop by his house. There is nothing other than Harder’s testimony that identified the person on the other end of the conversation as the accused.

Harder acknowledged in cross-examination that he could not recall the details of the conversation, but assumed the transcript was a record of his discussion with the accused as it was the only one recorded. The conversation begins with Harder saying “yeah, that’s where he lives”, which does fit squarely with his testimony that he knew where the accused lived or what he says they discussed. [ 30 ] The Crown maintains that the following conversation between the accused and Harder on March 29, 2014, is highly probative of the fact that Harder picked the firearms up from the accused: Harder: Hey.

Accused: Hey, what happened? Fuck. Harder: Ah, well like an hour… Accused: Scared the fucking shit out of me. Harder: Oh I’m sure it did, yeah. An hour or so after I left your house, they, ah, all of a sudden I get pulled over by one cop, license and registration. And within seconds, there was ah, four more cop cars and yeah, all of them. Ah, and then they ah, they asked me ah, they asked me if there were any guns in the car. Accused: Mm-hmm. Harder: They just all of a sudden, out of the blue, just asked me if there was weapons in the car. And I said guns, I said no. Why would I have guns in the car?

And they’re like well, we have information that you have guns in the car. And I’m like, you have information that I have guns in my vehicle? I’m like, no I don’t. They’re like, well can we search? I’m like, no you can’t. And they’re like well, yes, we can because we have actual information that they’re in there. Accused: Hm. Harder: And I’m like, oh. I’m like, well that’s fucked. I don’t know who the fuck could have told you that there were guns in my car. So then all of a sudden they, they arrested me for possession of firearms.

And I’m like getting arrested, I’m like, what the fuck are you arresting me for, you guys haven’t even looked in my vehicle yet. I’m like, this is fucked. Like how can you arrest me for

possession of firearms when you haven’t even fucking searched it? So then they went and ah, ah, searched the truck. But they didn’t find anything except my Oxys so then they kept me fucking overnight on Oxys, but they kept asking me about some fucking guns. And they’re like, look we know you had some guns and we know some of them were stolen and I’m like how the fuck would you know that? I’m like, it’s not possible ‘cause I didn’t have any fucking guns. I’m like, so whoever it was that told you I had these guns in my truck is fucking lying. I’m like, holy fuck.

Clint, who could have told them I had guns in my truck? Accused: I don’t know man. Harder: I don’t know. Me neither. Cause, I you know, I just left your house like an hour. And then I get swarmed by cops that say they got a fucking tip that I had guns in my truck. That’s fucked. Accused: I didn’t, man, ‘cause ah, I don’t know what the fuck to say. I was panicking. Harder: I don’t know, man. But you, obviously you know what it looks like, right. Accused: Yeah. Harder: Like. Accused: Well you know, I’m.

Harder: If not, you told me, yeah, that anybody that comes to your house, they have a reason to search their vehicle when they leave. While first of all, is bullshit. You have a search clause, not me. Secondly, they didn’t just want to search. Before I was even out of the vehicle, they arrested me for possession of firearms that fucking weren’t there. And then they’re questioning me, where are your guns? They’re like, we know some of these guns were stolen. And I’m like, I’m like, how the fuck would you know that? Obviously, you’ve seen these guns, right.

Like, I’m like, if you’re trying to charge me with guns in the fucking first place then, where you found them where they were, where they were fucking, like, I said obviously, you found them somewhere, right. And, and you knew they were those person’s, and obviously that person got out of it somehow by telling you they were someone else, but maybe there’s a possibility that somebody, he got a friend of his to do him a favour and just ditch the guns for him. So whatever guns you’re looking for, looking for, I don’t know.

If they found those guns at your house, ‘cause, ‘cause, supposedly you were originally charged with fucking restricted weapons and then that charge just all of a sudden disappeared, I think they might be coming to talk to you again about some missing guns. Accused: Hm. Well I don’t have any guns, so I don’t care. Harder: It would be funny if they just turned up at your house though, or something hey.

Accused: Oh fuck, yeah. Harder: Fuck yeah, that’d be fucked up. I don’t know. You never know, there’s a lot of hiding spots around your house. Bye. … Harder: Hello. Accused: Hello. Hey. Harder: Hey, man I know what happened I don’t wanna talk to you anymore. Accused: Wait a minute. I didn’t do anything. Harder: You know it, it’s, you know what man you fucking did. I know you did. Accused: I didn’t man. Harder: There’s nothing you can fucking say to me . . . Accused: I think you . . . Harder: that’s gonna change the fact.

How, why the fuck would right after I leave your house the cops searched my vehicle for fucking guns. And arrest me for guns that weren’t there. Why? Accused: Man. Harder: How would the . . . Clint: I don’t . . . Harder: Why the fuck would they know, it was either, it was either you or your fucking girlfriend for some reason told them I had guns in my truck.

Accused: I did not say anything, man. Harder: Then it was your girlfriend. Accused: I don’t, man we were . . . Harder: It was either you or your girlfriend, you better fucking talk to your girlfriend then ‘cause it was one of you’ cause they specifically . . . Accused: Man, I don’t even fucking. . . Harder: . . . they told me they had fucking tip from somebody, somebody fucking told us there was guns in this truck, and we want to find’em. So who would have told’em that? (To background). No park in parking lot. Accused: I have no clue, man I don’t know what’s going on. Harder: Then, then that’s exactly.

Well now you know. It was either you or your girlfriend. Accused: It wasn’t me, man I wouldn’t fucking. Harder: Then it was your girlfriend. Accused: Fuck why would I do something like that?

Harder: You’re gonna put it on your girlfriend? Accused: I’ll ask her. Harder: You better ask her. Accused: I fucking will man. Harder: Buddy, it’s a 100%. There’s no fucking other way to look at it, man. There’s no fucking body. Accused: Do you think they ah, hold on. Harder: There’s nobody from the time I left your house that could have fucking phoned them. . . Accused: Hold on. Harder: …and said I all of a sudden picked up. . . Accused: Hold on. Harder: . . .guns, ‘cause who the fuck would have ever thought I was picking up guns tonight. Accused: Do you think they have my house bugged?

Would they have known then? Harder: You know what, if they knew there was guns in your house that were leaving your house why wouldn’t they have just arrested and charged you with those guns to begin with? Why wouldn’t they?

Accused: Correct. Harder: What? Accused: Yeah, that’s what I’m saying. Harder: If they had found them in there to begin with, they would have charged you. Accused: Yeah, so I don’t know what’s going on, man. Harder: I don’t know, but I gotta go. [ 31 ] These conversations occurred after Harder offered to work with the police.

Harder testified that he lied to the accused about not having any weapons in his vehicle in order to justify his release and maintain his credibility with his accomplices so that he could work as a police agent. [ 32 ] Harder’s words must be considered cautiously, given that he was acting as a police agent and expressed an intention to get even with the accused. It is clear from the conversation that Harder suspects that the accused or Cracogna tipped off the police by reporting that he had guns in his truck.

He implies that the guns were in the possession of the accused, the accused made a deal with the police and told them that the guns belonged to Harder. However, the accused does not admit that is what happened. The only clear inference that can be drawn from the accused’s words is that Harder had guns in his truck when he left the accused’s house and the accused knew it. [ 33 ] The defence submits that the following conversations between the accused and Cracogna is consistent with the accused’s evidence that the weapons did not belong to him and puts Cracogna’s credibility at issue: Accused: He blames us.

Cracogna: Are you fucking serious? Accused: Yeah. Cracogna: Oh bullshit.

Accused: Well I don’t know man like what the fuck. So it’s suspicious even on my account right? Makes me look bad. Cracogna: Yeah. We had nothing to do with it. Accused: So he got out saying he didn’t have any weapons so. Fuck I don’t give a fuck. I want to see his ah, what you call it his ah, release papers. You have to have release papers. Cracogna: Yeah. Accused: So. Cracogna: ‘Cause they searched my whole house and there was nothing so.

Accused: Yeah, so fuck him man. [ 34 ] Cracogna explained in cross-examination that when she said “we had nothing to do with it” she was referring to the fact that they had nothing to do with Harder getting pulled over by the police. While she acknowledged that police searched their house and didn’t find any guns, she could not recall or explain why she brought it up or what her words meant in the context of her conversation with the accused. Black Bags [ 35 ] There is no dispute that the police seized one black Koho hockey bag from Harder’s truck. Cst.

Baron, who searched Harder’s truck incidental to arrest, testified that he located one black Koho hockey bag that contained numerous weapons and ammunition. He also found several other firearms in the back seat of Harder’s truck covered with green tarp. [ 36 ] The accused testified that he saw two black duffle bags in the back seat of Harder’s truck, neither of which was stamped with any marking or logo. Cracogna testified that she watched Harder take two large black bags from the attic and put them into his truck.

Harder testified that Cracogna pulled one black hockey bag from the attic and handed it to him. [ 37 ] The Crown submits that Harder’s evidence is consistent with what police officers seized from Harder’s vehicle, whereas the accused’s evidence is not. The Crown also suggests that the Surveillance Report establishes that Harder did not put anything into, or take anything out of, his truck except a small satchel that he took into the Clubhouse and a green tarp that he picked up at Mychan’s residence, and that neither of those observations could explain the accused’s testimony that there were two bags.

To the extent that the accused’s testimony is inconsistent with the items that the police seized from Harder’s vehicle, so too is Cracogna’s testimony.

[ 38 ] Considering the evidence in another way, Harder’s testimony about there being only one bag is inconsistent with the evidence of the accused, Cracogna and the Surveillance Report. The Surveillance Report uses the words “long bag” and “large black bag” to describe what police observed Harder take from Mychan’s yard and put into the rear seat of his truck. The Crown’s theory is that what police described as a “bag” was actually the tarp that Harder described was used to wrap the SKS rifle he got from Mychan.

However, another possibility is the bag that the police observed Harder taking from Mychan’s yard is the Koho hockey bag that police seized from Harder’s truck a few minutes later. Quad Tires [ 39 ] The Crown asserts that the accused’s testimony that Harder was in the garage to pick up quad tires is inconsistent with the fact that the police found guns, not quad tires, in Harder’s truck. The Crown’s reasoning overlooks Harder’s acknowledgment in cross-examination that he remembered something about quad tires and Cst.

Hein’s testimony that he took only a cursory look in the box of the truck to check for officer safety. Fingerprints [ 40 ] Cpl. Ochitwa was responsible for processing the seized firearms. She discovered one fingerprint on the choke cylinder located in a green gun box that also contained pieces of a Beretta, which she determined was a positive match to the accused.

She acknowledged that there was no way to tell how long the fingerprint had been on that object. [ 41 ] The Crown argues that the fact that the accused’s fingerprint was found on the choke cylinder affords further proof that the guns belonged to the accused. However, the accused provided an explanation for the fingerprints. He testified that Harder dropped by his house on a previous occasion with a number of firearms, including the UTS shotgun and Beretta shotguns that were seized by the police.

While his testimony on this point was somewhat unclear, I understood from his evidence that he touched the choke cylinder or tube where his fingerprint was located as he explained to Harder how to use them. Cracogna said that she could not recall Harder stopping by the house on an earlier occasion to talk about selling guns, but acknowledged that it could have happened. Handguns [ 42 ] The accused testified that Harder had two handguns that he wore in holsters under his jacket and used for protection.

He vividly recalled the 357 Magnum handgun because Harder pointed it at him once in his office and said “do you feel lucky punk?” while pulling the trigger. He only saw part of the .38 Special handgun. [ 43 ] Harder testified that Tony Kaminiki gave the.38 Special handgun to Jamie Pritchard to pay for a drug debt and the accused purchased the 357 Magnum handgun from Josh Walker. He said that the accused invited him to his house on a previous occasion and showed him the two handguns as well as some other firearms.

He saw the guns again on March 28 th when he removed them from the accused’s attic at his request. [ 44 ] Josh Walker testified under protest by subpoena. He stated that he sent a PGP message to Harder offering to sell him the 357 Magnum handgun for $1500.00. Harder accepted the offer and subtracted the purchase price from his drug debt. Walker arranged for his delivery boy to take the gun to Harder. He is sure that Harder received the gun because he sent him a message about how beautiful it was.

[45] Desiree Slater testified that she delivered drugs and ran other errands for Harder in exchange for drugs. She identified the .38 Special and 357 Magnum handguns as ones that she had seen on multiple occasions in thesafe located in Harder’s office at the Clubhouse. [46] Based on the evidence of Josh Walker, Desiree Slater and the accused, I believe that the handguns most likely belonged to Harder. Crystal Meth [47] Harder testified that two kilos of crystal meth were delivered to the house on 7th Street shortly before the accused’s arrest on March 6th.

Following the accused’s arrest, he met Cracogna at Tim Hortons and advised her thathe would like to get the drugs out of her house. Cracogna told him that she thought she knew where the drugs were and agreed to putthem in her trash for pick-up. Cracogna acknowledged that she met Harder at Tim Hortons but could not recall any discussion aboutreturning crystal meth.

Has the Crown proven beyond a reasonable doubt that the accused was in possession of the firearms particularized in theInformation? [48] The Crown is required to prove the offence particularized in the charge (R v Saunders, (SCC), [1990] 1 SCR 1020, at p 1023). The Crown’s case against the accused relies on Harder’s evidence that all butone of the firearms came from the accused. If Harder’s evidence is accepted, then the firearms seized by the police are the samefirearms that were in the accused’s attic.

Harder’s testimony on that point is not corroborated by any other witness. [49] The evidence at trial raises there possibilities: 1) Harder is telling the truth and all but one of the firearms came from the accused’s attic; 2) the accused is telling the truth and none of the firearms came from the accused’sattic, or 3) neither of them is telling the whole truth about what happened, in which case Harder might have had some firearms in histruck when he arrived at the accused’s house, picked-up some more firearms from the accused and possibly picked up or dropped offfirearms before he went to Mychan’s house. [50] I am not convinced of the Crown’s argument that the Surveillance Report proves that nothing was added or taken out of Harder’s truck after he left the accused’s residence.

It is not clear from the evidence whether Harderwas under continuous surveillance, or how tight the surveillance was. The focus of the surveillance was a suspected transaction offirearm(

s) between Mychan and Harder. Constable Connell testified that his first involvement with Harder was when he attended atMychan’s residence. The Tracker Report shows that after leaving accused’s residence, Harder stopped at the 7-11 on Clarence AvenueSouth for six minutes, the Circle Centre Mall parking lot for 16 minutes, Grosvenor Park Centre for 13 minutes, and the Clubhouse for30 minutes before arriving at Mychan’s residence.

The Surveillance Report provides little detail of Harder’s activities during thosetimes, in contrast to the significant detail provided in relation to Mychan’s activities. [51] I have serious concerns about the credibility or reliability of all three witnesses. Harder is a self-described “master manipulator.” He was a large scale drug dealer with a back-up plan to work with police and avoid prosecutionin the event he got caught. His story in this case about the weapons belonging to the accused is essentially “ground zero” for striking adeal with the police.

He is a person with little conscience who brought highly addictive and dangerous drugs into this province forpersonal financial gain, while at the same time claiming that he was “totally against” using drugs for most of his life. He attempted toexcuse his behaviour by saying that he was forced back into the drug business because CRA froze his bank accounts to collect onincome tax arrears. He clearly believed that the accused tipped off the police and had a motive to get even. [52] There were at least two major discrepancies in the evidence given by the two main Crown witnesses.

The first area of concern arises from their testimony about how the weapons were transferred from the attic space ofthe garage to Harder’s truck. While Cracogna described herself as merely an observer, Harder testified that she climbed into the attic

and handed the items to him. The second discrepancy in their evidence arose in relation to Cracogna’s involvement in the removal of two kilos of crystal meth from the house on 7 th Street. [ 53 ] The Crown argues that these discrepancies lend credibility to the Crown’s witnesses as it demonstrates that their stories are not manufactured.

While some variation in the evidence is to be expected due to witness perception, memory and the passage of time, these are not insignificant details that are likely to be confused or forgotten by a witness over time; rather, it is probable that one, or possibly both, of the Crown witnesses were lying. [ 54 ] There were also more minor inconsistencies between the two Crown witnesses. Harder testified that the accused was “big into firearms” and had between 30 and 50 guns stashed out at his farm, which he was in the process of moving to his house.

He said that the accused had extended an offer to members of the Fallen Saints to store their weapons on his farm. Cracogna testified that she and the accused both liked guns and would go out to the farm to shoot pumpkins with her firearms. However, she also testified that during the time that they were together, she never saw the accused with any illegal guns or any guns of his own, nor did he ever talk about having a stash of guns at the farm or elsewhere.

Cracogna made it clear that she is very particular about adhering to the rules for the possession firearms and her testimony suggests that, to her knowledge, the accused respected that. [ 55 ] Harder seemed eager to emphasize the accused’s knowledge and interest in weapons while, at the same time, minimizing his own. However, the evidence of Walker and Slater combined with Harder’s own testimony that he was quickly able to differentiate an SKS from a machine gun suggests that he possessed more than a working “video game” or “television” knowledge of firearms.

As stated previously, I do not accept Harder’s testimony about the handguns and believe that they most likely belonged to him. [ 56 ] I also do not believe Harder’s testimony that he was pressured by the accused to remove the firearms from his attic. Harder was clearly higher-up in the hierarchy of the Fallen Saints Motor Cycle Club than the accused. He testified that he was reluctant to meet with the accused in the first place as he suspected that the accused was working with the police.

He acknowledged in cross-examination that part of his strategy as a drug dealer was to assign other people to do the dirty work so that they would be found in possession in the event of a police take down. The accused told him that anyone leaving his house could be searched. In light of these obvious risk factors, it is difficult to believe that Harder would pick up the accused’s guns as a favour to him. [ 57 ] There was no evidence at trial that Harder and Cracogna colluded to implicate the accused.

Nevertheless, I am concerned that Cracogna’s credibility as she seemed to present her evidence in a manner that cast her in the best possible light and distance herself from any criminal wrongdoing. When a witness lies about part of her testimony, it damages her credibility as a whole. [ 58 ] Cracogna had difficulty remembering details of events that occurred within the same time period. For example, when asked if she remembered an incident in early March where Harder came to the house and talked about selling guns, she responded that she could not remember it, but acknowledged that it might have happened.

She also could not recall Harder threatening to plant evidence in her house on 7 th Street even though intercepts of their conversations show that it was topic of discussion and a matter of concern. [ 59 ] The accused testified in a relatively straightforward manner. In order to reject the accused’s evidence entirely, I need to be able to articulate reasons for doing so.

I find that I am not able to do so based on the strength of his testimony, concerns surrounding the credibility of the Crown’s witnesses and gaps in the Crown’s case. [ 60 ] After carefully considering the testimony of each witness in light of all the evidence, I am left with the distinct impression that I still don’t have the full story of what happened. While I believe that the accused probably had some firearms in his attic, probable guilt is not enough to meet the criminal standard of proof beyond a reasonable doubt.

Even if I were convinced that Cracogna and Harder were telling the truth about the accused having firearms in his attic, I nevertheless have grave concern about Harder’s evidence that all but one of the firearms came from the accused. In the final analysis, I am left with a reasonable doubt that the accused was in possession of the firearms and/or ammunition particularized in the Information or that he transferred them

to Harder. I, therefore, find the accused not guilty of all counts. ____________________ S.L. Metivier, J