R. v. Smith, 2019 NLSC 13

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Smith , 2019 NLSC 13 Date : January 24, 201 9 Docket : 201603G0113 Her Majesty The Queen v. Tracey Smith Before: Justice Kendra J. Goulding Edited Transcript of Oral Reasons for Judgment Place of Hearing: Grand Falls-Windsor, Newfoundland and Labrador Dates of Hearing: June 29, July 3, 4, 5, 6, August 1, September 17, October 31, November 1, 2, 5, 6, and 19, 2018 Date of Oral Judgment: December 21, 2018

Summary: The accused was acquitted on charges of public mischief and theft over $5,000. The Court found the evidence of the Crown’s critical witnesses to be unreliable based on the poor recollection and/or inconsistencies with respect to significant and relevant matters.

Appearances: Ms. Karen. J. O'Reilly Appearing on behalf of Her Majesty The Queen Ms. Vanessa McCarthy Appearing on behalf of Tracey Smith Authorities Cited: CASES CONSIDERED: R. v. Lifchus, [1997] 3. S.C.R. 320, S.C.J. No. 77; R. v. Starr, 2000 SCC 40; R. v. W.(D). [D.W.], (SCC), [1991] 1 S.C.R. 742, S.C.J. No. 26; Faryna v. Chorny, (BC CA), [1951] B.C.J. No. 152, [1952] 2 D.L.R.354; R. v. C.H., (NL CA), [1999] N.J. No. 273, 182 Nfld. & P.E.I.R. 32 (Nfld. C.A.). STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46; Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. REASONS FOR JUDGMENT Goulding, J.: INTRODUCTION AND HISTORY OF PROCEEDINGS [1] The Accused, Tracey Smith, called “911” on September 15, 2013 at 12:09 p.m. to report an armed robbery at her place ofemployment, Teazers Lounge in Grand Falls-Windsor, Newfoundland and Labrador. On April 21, 2015, Constable Matthew Jack sworeto an information charging Ms. Smith with public mischief contrary to section 141(1)(

c) of the Criminal Code of Canada, R.S.C. 1985, c.C-46 and theft of money exceeding $5,000 contrary to

section 334 of the Criminal Code of Canada. [2] The trial estimated to be five days, was scheduled on three separate occasions but did not proceed due to (

a) a breakdown inthe solicitor/client relationship; (

b) then relocation of new defence counsel and unavailability of third defence counsel; and (

c) finally,illness of third defence counsel. Just days before the fourth trial date in April 2018, counsel for Ms. Smith advised the Court that sheintended to file an application under

section 11(

b) of the Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, beingSchedule B to the Canada Act 1982 (U.K.), 1982, c. 11, alleging her right to be tried within a reasonable time had been infringed. [3] Defence counsel was not ready to call evidence and make submissions on the application and needed considerable time toobtain transcripts of all appearances in the Provincial Court and this court. The Court declined to delay the trial and informed Ms. Smithit would hear the Charter application after the trial, if a guilty verdict on the charges was rendered.

However, the trial did not proceeddue to illness of defence counsel and eventually, was heard during a five day period in July 2018 and continued for a further eight daysin October and November, 2018. [4] The Crown acknowledges its case is based on circumstantial evidence and relies significantly on alleged post-offenceconduct of Ms. Smith.

The Crown recognizes that there are inconsistencies in the evidence of its main witnesses but submits reasonableexplanations have been advanced and/or the inconsistencies are minor in nature and are to be expected given the passage of five yearssince the date of the incident. issue [5] Whether the Crown has proven beyond a reasonable doubt that Tracey Smith is guilty of public mischief and/or theftexceeding $5,000. the law [6] The relevant portions of the Criminal Code are as follows: 140(1) Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by (

c) reporting that an offence has been committed when it has not been committed

… 334 Except where otherwise provided by law, every one who commits theft (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the property stolen is atestamentary instrument or the value of what is stolen exceeds five thousand dollars … burden of proof [7] The Crown must prove the guilt of the Accused beyond a reasonable doubt. This standard is appropriately described in R. v.Lifchus, [1997] 3. S.C.R. 320, S.C.J.

No. 77, wherein Cory, J. stated: the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, thepresumption of innocence; the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; a reasonable doubt is not a doubt based upon sympathy or prejudice; rather, it is based upon reason and common sense; it is logically connected to the evidence or absence of evidence; it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty mustacquit. [8] I have also considered the decision R. v.

Starr, 2000 SCC 40, wherein the Supreme Court of Canada stated proof beyond areasonable doubt is closer to absolute certainty than to a balance of probabilities. [9] It is not simply a matter of believing the Crown evidence or the defence evidence. As instructed by Cory, J. in R. v. W.(D).[D.W.], (SCC), [1991] 1 S.C.R. 742, S.C.J. No. 26, at paragraphs 26 – 28: 26 It is clear that the trial judge erred in his recharge. It is incorrect to instruct a jury in a criminal case that, in order to render a verdict,they must decide whether they believe the defence evidence or the Crown's evidence.

Putting this either/or proposition to the juryexcludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in thecontext of the evidence as a whole, may still have a reasonable doubt as to his guilt. 27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses.

Specifically, thetrial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, ifthey do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in thecontext of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved inR. v. Morin, supra, at p. 357. 28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge.

Atrial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person requires a solidfoundation for a verdict of doubt. [10] The issue of credibility of witnesses is a major issue in this trial. In Faryna v. Chorny, (BC CA), [1951]B.C.J.

No. 152, [1952] 2 D.L.R. 354, O’Halloran, J.A. provided excellent guidance to trial judges in paragraphs 10 – 12: 10 If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in thewitness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. Onreflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility ofthe evidence of a witness.

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what hehas seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), (SCC), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a veryunfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisivelyto the conclusion that he is actually telling the truth.

I am not referring to the comparatively infrequent cases in which a witness is caughtin a clumsy lie. 11 The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience incombining skilful exaggeration with partial suppression of the truth.

Again a witness may testify what he sincerely believes to be true,but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to aconclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind. 12 The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion.

The law does not clothe thetrial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge'sfinding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can hetested in the particular case. [11] In R. v. C.H., (NL CA), [1999] N.J. No. 273, 182 Nfld. & P.E.I.R. 32 (Nfld. C.A.), Nfld. C.A. Wells, C.J.as he then was, made the following comments regarding inconsistencies in a witness’s evidence.

One important aspect to be considered in assessing credibility, is consistency or lack of it in statements made by the witness whenaddressing the matter in the witness box and on other occasions. It is critically important therefore that a trial judge deal with indicatedinconsistencies when assessing credibility of an only, or a critical, witness testifying against an accused. As Galligan J.A. observed in R.v. G. (M.) (1994), (ON CA), 93 C.C.C. (3d) 347 (Ont.

C.A.) at p. 354-355: Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what thewitness said in the witness-box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minormatters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This isparticularly true in cases of young persons.

But where the inconsistency involves a material matter about which an honest witness isunlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma oftrying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth. The effect of inconsistencies upon the credibility of a crucial witness was recently described by Rowles J.A. speaking for the British

Columbia Court of Appeal in R. v. B. (R.W.), [1993] B.C.J. No. 758 ; (1993), 40 W.A.C. 1 at pp. 9-10, 19 W.C.B. (2d) 260 : Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented. In this case there were a number of inconsistencies in the complainant's own evidence and a number of inconsistencies between the complainant's evidence and the testimony of other witnesses.

While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness's evidence is reliable.

This is particularly so when there is no supporting evidence on the central issue, … (emphasis added) evidence and analysis [ 12 ] Tracey Smith reported that as she was preparing to open the Lounge on Sunday, September 15, 2013 around noon, two males entered wearing hoodies and sunglasses. She said to give her a second as she had not set up the till. She went in the back to get the cash at which time one of the males confronted her with a knife. Ms. Smith said, “Please don’t hurt me.” The male grabbed items out of her hands which included a white beef bucket containing envelopes with cash.

The till and some contents fell to the floor. The male exited through the back door (also referred to as the furnace door). Ms. Smith assumed the other person left through one of the two main doors. [ 13 ] Ms. Smith called “911” at 12:09 p.m. and during the 4 minute and 23 second call, sirens could be heard and she and the operator both confirmed the police had arrived. Constable Jeff Green and Constable Ian Dollimount were the first officers on the scene. They spoke to Ms. Smith and another employee, Linda Gosse, who had arrived just after the alleged robbery.

Constable Green took an audiotaped statement from Ms. Smith at 12:38 p.m. He also contacted the Forensic Identification

Section who declined to attend, the General Investigative Services and the Canine Unit. Constable Matthew Ingraham and Constable Matthew Jack of GIS attended the scene later that afternoon (around 4:00 p.m.). Sergeant William Frisby and his dog “Tank” responded shortly after being called and again later that afternoon. [ 14 ] Constable Jack took a detailed video and audiotaped statement from Ms. Smith the following day. In reviewing the testimony of the operator and police officers Green and Dollimount regarding Ms.

Smith’s demeanor, conduct and comments on September 15, 2013, they had no reason to disbelieve her. She was described as “shaken, rattled and scared” and was consistent in her recall of the events. [ 15 ] When interviewed as a witness by Constable Jack on September 16, 2013, Ms. Smith was advised to provide as much detail as possible of everything that happened from the time she had awakened on September 15, 2013. After doing so, Constable Jack challenged Ms. Smith’s version in an aggressive manner, telling her he did not believe her. However, Ms.

Smith maintained her version in a credible manner even after the officer referenced having incriminating video surveillance and statements from other persons which did not exist. [ 16 ] When Constable Jack asked her to sign an agreement to undergo a polygraph test, Ms. Smith readily agreed and executed the document. Ms. Smith’s statement to Constable Jack is exculpatory in nature although the Crown submits there is one detail which is inconsistent with the evidence of Terri-Lynn Gosse which I shall address shortly.

During Constable Jack’s explanation of the polygraph procedure, he volunteered it cannot be administered when a woman is having her menstrual cycle and Ms. Smith stated the test would have to wait as she was presently on her cycle. [ 17 ] In brief

summary, the Crown highlights and submits that the following pieces of evidence in totality prove the guilt of the accused beyond a reasonable doubt: 1. Upon arriving at the Lounge, Ms. Smith asked Linda Gosse to take Ms. Smith’s vehicle and go to a nearby Pharmacy for Midol. The Crown states Ms. Smith had ample opportunity to purchase this product before arriving at the Lounge and in any event, was expected to be at the Lounge for only a short period. 2. In her statement to Constable Jack, Ms. Smith stated Terri-Lynn Gosse called the Lounge looking for her mother, Linda Gosse and Ms.

Smith said “your mom should be back in a minute, I’ll get her to call you”. Then Ms. Smith offered to Constable Jack, “Actually, while I was on the phone with her that’s when these two men came in the bar." Later in her statement to Constable Jack, Ms. Smith indicated she said to Terri-Lynn Gosse, “I got a couple of customers now.” Terri-Lynn Gosse testified her call was made at 12:22 p.m. which was after the robbery and that Ms. Smith did not mention customers entering the Lounge. 3. Leslie Armstrong testified that days after the alleged robbery, Ms.

Smith asked her to say she saw a person running from Teazers Lounge at the time of the robbery. 4. Ms. Smith’s former common-law spouse, Terry O’Halligan, testified Ms. Smith asked him to get friends to lie for her and later tried to give him $2,000 to return to the Lounge. 5. Sergeant Frisby testified that his dog, Tank, did not pick up any human scent in the outside area leading from the back exit which Ms. Smith reported had been used by one of the robbers.

[ 18 ] The Crown submits that certain evidence highlighted by defence are remote possibilities and are insufficient to raise a reasonable doubt. For example: (

i) A set of tire marks was observed near the back exit (see the photos) but there is no evidence as to when the marks were made. (ii) Perry Curtis was near the scene at the material time and was interviewed by a police officer. He testified he saw an older model red civic vehicle with two males speed from Station Road about five minutes before the police arrived. (iii) A neighbour, John Dyke, was also interviewed by a police officer. He testified he saw a person with a hood run by the front of Teazers Lounge. Then he saw Linda Gosse outside looking around and the police arrived. (iv) A nearby lounge, Wayne’s World, sounded an alarm at 11:00 a.m. that morning. (

v) A break and entry by two males was reported about an hour after the incident into premises at Bishop’s Falls (being a 15 minute drive away). [ 19 ] “Reasonable doubt” is more than mere conjecture or speculation and this case will not be decided on remote possibilities. However, I may comment on omissions in the police investigation and their relevance, if any.

With the foregoing in mind, as well as all the evidence, I will now address the relevant evidence. [ 20 ] By way of background, Tracey Smith was living with Terry O’Halligan who operated a taxi business but also acted as the manager of Teazers Lounge which was owned by Sharlene Stroud. Mr. O’Halligan stepped in to assist Ms. Stroud when her husband passed away. He hoped the business would be turned over to him by Ms. Stroud after a debt of the deceased was paid off from the Lounge’s profits. The relationship between Ms. Smith and Mr.

O’Halligan had its difficulties and ended some weeks or so after the alleged robbery when Ms. Smith moved to the residence of Russell Way, her former romantic partner. [ 21 ] Sharlene Stroud was rarely at her business other than to collect money on some Wednesdays and on Sundays. Ms. Stroud did not have a good knowledge of her business. She believed the money was placed in a safe every night. The actual practice was to place the cash in envelopes, then in a liquor bag, then in a beef bucket and to store the bucket and till in the freezer located in a room behind the bar. [ 22 ] Ms.

Stroud believed the video surveillance purchased by Mr. O’Halligan was working and recording. Initially, the fact that the surveillance equipment had been unplugged was a suspicious matter for the police but turned out to be a non-issue as it had never been installed by Mr. O’Halligan to record events. While one could view what was shown on the cameras live, the unit was usually unplugged and had been for several months. [ 23 ] Mr. O’Halligan stated that after Ms. Stroud hired Tracey Smith for the bar, he refused to have anything else to do with the bar and the money. To the contrary, Ms. Stroud stated it was Mr.

O’Halligan who hired Ms. Smith and she was not aware of any difficulties with Ms. Smith. [ 24 ] The photos entered at trial depict the location of the various doors. The back exit does not have any steps but is not so high that someone could not jump down. The suggestion was raised that the robber could not see the back exit from his location where he grabbed the bucket. This does not pose any difficulty for me as the back exit is easily visible from outside the building if the robber had cased the area.

Further, the employees testified the back door was often kept opened by a chunk of wood and they would sometimes smoke by that open door. [ 25 ] Linda Gosse and Lori Gosse testified there would usually be three envelopes with cash for each day, two with lotto money and one for the bar. Lori Gosse worked 12 noon to 6:00 p.m. on Saturday, the day before the alleged robbery and saw only three to four envelopes but did nothing about it. She stated it had happened before (that there were less envelopes) but not very often.

She does not recall anything about the envelopes on her Friday night shift. [ 26 ] Linda Gosse worked Saturday from 6:00 p.m. to midnight, she had to change a couple of $100 bills and went to the bucket but there was no Lotto money there. She asked Lori Gosse “where is the money” and Lori replied she didn’t know, maybe Sharlene took it. Linda Gosse recalled three or four envelopes with bar money. She testified that at the end of the Saturday night shift, there was around $1,639 in Lotto money and $124.90 in bar money. Neither Lori Gosse nor Linda Gosse told Ms.

Smith anything about the missing Lotto money when she arrived to lock up and enter the security code. Linda Gosse admitted all the employees including Mr. O’Halligan played the machines and she would borrow money from the float to do so. The employees would also purchase items such as beer, toilet paper etcetera from the money in the float and put a receipt in the till. [ 27 ] Linda Gosse testified she arrived at 2 minutes to 12:00 on Sunday and when she entered the Lounge, Ms. Smith asked if she would go to a nearby pharmacy for Midol. She was gone around 10 minutes. When she got back, Ms.

Smith met her at the door limping, crying and saying she had been mugged. Within seconds, the police arrived. [ 28 ] The photos clearly show heavy tire marks by the back exit. Although Constable Jack initially believed the marks to be fresh as he was able to pull tire rubber from the asphalt, there was no evidence on which to base a finding as to when the tire marks were made.

I only raise this matter as Sergeant Frisby did state that if the robber jumped from the back exit and into a vehicle a few feet away, Tank would not have had a sufficient path to detect a human scent. [ 29 ] As for the matter of Tank not finding any human scent in the area adjacent to the back exit, the reason is unknown to the Court. However, I do not accept that it is indicative of a false report by Ms. Smith because I am satisfied there were other persons in the relevant area after the robbery and before Sergeant Frisby arrived and Tank did not detect their scent either.

While I have no issue with the credibility of Sergeant Frisby and the processes he employed, Sergeant Frisby was erroneously informed that no one had been in the area after the alleged robbery.

[ 30 ] On this issue, the Crown argues that I disregard the evidence of Constable Green and Constable Dollimount and treat it as unreliable but I am very uncomfortable in doing so. Both officers were aware (

a) that one robber left through the back exit as reported by Ms. Smith, and (

b) that the canine unit had been called and was enroute. They are not lay persons but are police officers who were investigating a robbery and would know the importance of taking notes and securing the scene. While they are recalling a matter which occurred five years ago, I can see no justifiable reason to declare the officers unreliable and reject their testimony. I find their evidence seriously undermines the weight I can place on Sergeant Frisby’s evidence of no human scent and also, the reasonableness of the inference that Ms.

Smith was lying about the robber leaving through the back exit. [ 31 ] Constable Green stated that he would have walked around the building, that is all he remembers, to make sure people were not in the area. He would have entered or exited all three doors. On re-direct, Constable Green said he did a walk around as he wanted to secure the area. He had an initial look before Sergeant Frisby, he believes he did, its standard procedure. This issue is a significant part of his testimony, not simply a minor matter he mentions in passing or one he would likely not recall.

Constable Green had no hesitation stating when he could not recall other matters. [ 32 ] Constable Dollimount testified he walked around the back and checked for footprints in the snow and made patrols in the area looking for the white bucket. Realizing the date of the offence, he corrected himself saying there would not be any snow. He stated again he walked around, not far from the building, maybe 10 feet away and he walked between the back of the building and the parked car. [ 33 ] Constable Dollimount testified in a definite manner that he did not go into the wooded area as he did not want to contaminate it.

While the use of the words “I would have” by Constable Green and the reference to “snow” by Constable Dollimount causes some concern, it would be a huge leap for me to find the officers are totally mistaken about being in the area of the back exit. [ 34 ] Further, I cannot ignore the evidence of Linda Gosse, the employee who arrived before the police. She testified on direct and cross-examination that she went outside and looked around and in the bushes. She is not sure if this was before or after the police arrived.

However, we do know it was before Sergeant Frisby and Tank arrived. [ 35 ] Therefore, it is more probable than not that Constable Green or Constable Dollimount or Linda Gosse or all three of them were in the area of the back exit after the alleged robbery. Although Tank should pick up the freshest human scent, he detected none for reasons not known to the Court. [ 36 ] As for Terri-Lynn Gosse’s evidence that Ms. Smith did not mention customers entering the lounge, I agree with the Crown that if I accept her evidence, then I can find that Ms.

Smith misrepresented that fact to Constable Jack in the videotaped interview. It would then be open to me to find that the misrepresentation was not innocent or accidental in nature but was intentional on the part of Ms. Smith to add credence to her account of two men entering the bar while Linda Gosse was picking up Midol for her. [ 37 ] Terri-Lynn Gosse is the daughter of Linda Gosse. She stated she would call her mother once a day at the Lounge. When pressed, she stated maybe twice a day but not multiple times.

Linda Gosse gave the impression Terri-Lynn would be calling all the time, in her words “300 times a shift”. Terri-Lynn Gosse testified she called twice on September 15, 2013, first at 12:17 p.m. and received a busy signal and secondly at 12:22 p.m. at which time she thought she was speaking to Lori Gosse. Later that day, her mother told her it was Tracey Smith. On direct, Terri-Lynn Gosse testified she asked “Is Linda there?” and the person replied “She’s not here right now, she ran out, I will get her to call you back.” She described the person as calm, collected, no panic and no background noise.

She indicated there was nothing said about customers coming in. [ 38 ] On cross-examination, she was asked about her statement to Constable Ingraham in 2013 which she reviewed just prior to the trial. She testified that she told the officer in 2013 that Ms. Smith said she ran out or she’s not here right now, one of it. She added “I can’t remember exactly what she had said to me, but those both are ringing a bell in my mind.” She reviewed her statement again and agreed she stated to Constable Ingraham that Ms. Smith said “Can I get her to call you back”. At the preliminary inquiry, Terri-Lynn Gosse stated Ms.

Smith said “she is not able to answer right now”. Defence referenced that there are three versions of what Ms. Smith said and Terri-Lynn replied “exactly, it’s all a mumble jumble, it’s not on my mind playing cause I wasn’t a part of this right.” [ 39 ] At trial, Terri-Lynn Gosse stated the line was clear. When asked at the preliminary inquiry why the call lasted 57 seconds, she replied “I couldn’t really hear her, like she had to repeat herself a couple of times.

I just couldn’t hear, the phone was a bit staticky.” She conceded at trial she cannot remember if the line was clear or not, “It’s just as well for me to say it, I can’t remember, cause I can’t, I don’t know what’s going on right now, you guys got me all confused.” [ 40 ] Terri-Lynn Gosse testified there was no sound in the background. At the preliminary inquiry, she stated she could not remember.

Although Linda Gosse stated she told her daughter about the robbery when she arrived home at 12:35 p.m. that day, Terri- Lynn Gosse stated a few times she knew nothing about the robbery until some weeks later when the police advised her. This may explain her lack of recollection as she is asked weeks later to recall the exact words uttered by a person in one telephone conversation that would have meant nothing to her at the time, just one of many calls made by her to the Lounge. Terri-Lynn Gosse was mistaken about to whom she was speaking although she and Lori Gosse are very well acquainted.

She believed the officer scrolled through her call history whereas he testified he did not. [ 41 ] Considering (

a) the relevant and significant inconsistencies in her evidence, (

b) her admission she cannot remember certain matters, (

c) her previous testimony that she just could not hear the person as the line was staticky, and (

d) that weeks went by before she was informed of the robbery and was then asked by police to recall exactly the words uttered in one of many calls to Teazers Lounge which call would not have stood out, I am not satisfied at all that Terri-Lynn Gosse’s evidence at trial is sufficiently reliable for me to find that Ms.

Smith intentionally misrepresented the time and content of the telephone conversation to Constable Jack and that such intentional misrepresentation is indicative of her guilt and inconsistent with any other rational explanation. [ 42 ] Leslie Armstrong was friends with Colleen Keefe as both were students at Keyin College. She testified she was sitting beside Ms. Keefe in class when Ms. Keefe received a text message and then said she had to see Tracey Smith after school. Ms. Armstrong went along as Ms. Keefe was her ride. Ms. Smith and Ms. Keefe had a conversation outside the vehicle at Teazers Lounge.

The next day, Ms. Keefe said Ms. Smith wanted to talk to her. When they met in the driveway of the O’Halligan property, Ms. Smith asked her if she would

be able to say that she had seen somebody running from Teazers, that she would give her some money, around the “200 mark”. Ms. Smith gave her a description. Ms. Smith only said “an adult, not a guy or girl”. Ms. Armstrong stated she was hesitant as Colleen Keefe had told her a little bit of why Ms. Smith wanted to talk to her, that Ms. Smith admitted to Ms. Keefe that she had taken the money from the bar. Ms. Armstrong told Ms.

Smith she would think about it but later saw her trip log as a taxi driver and realized she was not in town at that time. [ 43 ] The Crown asked, “Did Tracey Smith explain why she was asking you to do this?” Ms. Armstrong replied, “I heard her conversation with Colleen about her taking the money in the vehicle we were sitting in. This was after she asked me.” The Crown then asked, “Did she actually say to Colleen I took the money?” Answer, “Yes, she had told but not while we were in that vehicle together.” This response is obviously inconsistent with the earlier statement.

Therefore the Crown asked, “Where?” and she answered, “We were at Keyin College, they were on the phone.” This is also inconsistent with her earlier testimony regarding the text. [ 44 ] An important aspect of Ms. Armstrong’s evidence is that during the alleged conversation at school, Tracey Smith said it happened in the evening. Ms. Armstrong and Ms. Keefe were doing a typing test in computer class and Ms. Smith called Ms. Keefe. Ms. Armstrong overheard Ms. Smith tell Ms. Keefe she had taken the money from the bar and wanted to leave Terry. Ms.

Armstrong stated “I was like okay I’m tuning this out because I don’t want to hear no more.” The call lasted more than 5 minutes but less than 25 minutes. The students can have their phones on vibrate in class so it does not interrupt everybody. It was roughly a year before she spoke to police because she did not want to be involved in the court process. Then, the police asked her to give a statement and she did not have to worry as she no longer lived in Newfoundland and Labrador. [ 45 ] The foregoing testimony on direct examination raised some questions. The inconsistency as to whether she overheard Ms.

Smith tell Ms. Keefe she took the money while they were in the vehicle or during a call at school. The version Ms. Armstrong was either told by or overheard from Ms. Smith referenced only one person (an adult with no identification of gender) and it occurred in the evening, it was dark outside. This is not the report Ms. Smith gave to the police as she described two males and shortly after 12:00 noon. If Ms. Smith was seeking an alibi from Ms. Armstrong, it makes absolutely no sense not to provide accurate details. [ 46 ] What is the probability that Ms.

Keefe could take a call during a computer test with a teacher present and that Ms. Smith would speak loud enough for Ms. Armstrong to recognize Ms. Smith’s voice, a person she was rarely in the company of and that Ms. Keefe could hear what was being said and also the tone of voice as she described Ms. Smith as upset. [ 47 ] On cross-examination, Ms. Armstrong stated she was in the RCMP detachment for an unrelated matter and she heard two officers discussing this case in a manner that implicated Tracey Smith and she stated to them “you are going in the right direction”.

However, she testified earlier she did not wish to be involved while living in Newfoundland and Labrador. Also the officers did not ask why she made the comment which I found unusual as well as the fact that the officers would be discussing an unsolved case and naming a suspect in a manner that could be heard by a member of the public. [ 48 ] This was the first time Ms. Armstrong revealed the confession of Ms. Smith to Ms. Keefe over the telephone. It was such an important matter that it would not be forgotten by a witness. Ms.

Armstrong was asked why she never mentioned the phone call before and she replied “After being able to review and think about everything that happened, I remember little tidbits. I remembered it after giving my statement.” She was then asked “Then why not mention it at the preliminary inquiry?” and she responded, “Because I had been caught off guard, I really didn’t want to, I really value my friendships. I didn’t want to get Colleen caught in the middle.” This makes no sense whatsoever as Ms. Armstrong had already involved Colleen Keefe in her statement to the police which led to Ms.

Keefe being interviewed by the police in April 2015. [ 49 ] At the preliminary inquiry, Ms. Armstrong was questioned if Ms. Smith had any discussion with her about what happened and she responded, “No, I didn’t actually find out. I have never heard from Tracey exactly what happened. She didn’t come out and say it was her.” Her explanation at trial is that she is only human and “we all make mistakes”. I find it to be a significant and major mistake on the part of Leslie Armstrong. [ 50 ] Further, in her statement, Ms. Armstrong stated Ms.

Smith offered her between $200 and $300, at the preliminary inquiry she stated it was like $100 or something, like $100 or $200. When other inconsistencies were pointed out regarding whether she had any discussion with Ms. Smith after the meeting in the vehicle, she replied “Well, I’ve had the last six months to think about everything”. However, she testified previously that her recollection was better at the preliminary inquiry. In her statement, she stated Ms. Smith informed her in the vehicle she was the one who had stolen the money which again is inconsistent with her trial testimony. Ms.

Armstrong explained the inconsistency could be because it was so many years ago. [ 51 ] The Crown clearly recognized the major and significant inconsistencies regarding the alleged confession by Ms. Smith over the telephone or in the vehicle. Therefore, the Crown took the position that it was not relying at all on the evidence of Ms. Armstrong regarding the alleged confession.

However, this inconsistency has adversely affected my comfort level with this witness. [ 52 ] Her initial demeanor of being so confident and articulate in what she was saying and then, her very inadequate and unreasonable manner of explaining relevant and significant inconsistencies causes me to doubt the accuracy of her entire testimony. This is the most incriminating aspect of Ms. Armstrong’s evidence, a confession by the accused. If she is honestly mistaken on that matter or intentionally misleading the Court, how can I find her a credible and reliable witness and use her remaining evidence regarding Ms.

Smith requesting her to lie about seeing an adult run from Teazers, especially considering the most important and critical detail, (when it happened) is wrong. Ms. Smith would not have told her “it was in the evening, that it was dark out, to say nothing about the face because she would not be able to see it,” because that would not assist Ms. Smith at all as the alleged robbery occurred on a warm sunny day in mid-September at noon. This witness is simply not reliable, I have grave concerns about her testimony.

I cannot pick and choose certain aspects of her evidence and ignore the obviously inconsistent and unreliable portions because there are problems with all her evidence. [ 53 ] Further, when I consider and compare the testimony of Ms. Armstrong with the consistent evidence of Colleen Keefe, it is so clear why the Court cannot rely with any comfort whatsoever on Ms. Armstrong’s evidence. Ms. Keefe has been employed at the Youth Treatment Centre in Grand Falls-Windsor for the past three years, having completed the Community and Youth Services Program. She

was friends with Ms. Smith as they worked at a bar together but has had no contact in the past three years as recommended by the police officer who took her statement in 2015. Her evidence strongly challenges and disputes the evidence of Leslie Armstrong. Ms. Keefe testified that Constable Jack asked her about a conversation wherein Ms. Smith asked them to lie and she said she had no idea what he was talking about. When asked at trial if she was involved with Ms. Smith in asking Ms. Armstrong to lie, she answered no and something that important, she would remember.

She was questioned if she recalled a conversation during class wherein Ms. Smith told her she was involved in a robbery and she answered, “Absolutely not.” Ms. Keefe testified, “You didn’t just answer your phone in the classroom, you were not allowed to be on the phone, we respected that.” [ 54 ] In her statement to police, Ms. Keefe was asked if Ms. Smith asked her to lie or cover up anything at Teazers and she answered, “Absolutely not”. At trial, she stated she never had a conversation about anyone asking her to do anything wrong.

This witness was consistent throughout, her manner of responding to the questions was serious and sincere. There is no way to reasonably reconcile the evidence of Leslie Armstrong with that of Colleen Keefe. One witness is not telling the truth. For the reasons I have provided, I cannot find that Ms. Armstrong is credible and Ms. Keefe is not. [ 55 ] The Crown admits Terry O’Halligan was a difficult witness. I agree he has a unique personality. Questioning Mr. O’Halligan was challenging and at times, he came across as disrespectful to both counsel.

This is consistent with how other witnesses described his personality. However, it is not a factor in my credibility assessment of Mr. O’Halligan. If his evidence is reasonable and generally consistent on the significant and relevant matters and if he demonstrates good recall, his demeanor will not and should not detract from the reliability of his evidence. [ 56 ] Mr. O’Halligan and Ms. Smith were in a relationship from 2011 to some weeks after the alleged robbery. They did not part on good terms. Mr. O’Halligan holds a very negative view of Ms. Smith and described their relationship as garbage.

On questions from the Crown, he presented evidence of bad character of Ms. Smith. This bias as demonstrated by him cannot be ignored by the Court. Mr. O’Halligan informed the Court that Ms. Smith stole before and went to jail for it as if to suggest “once a thief, always a thief”. However, he entered into a common law relationship with Ms. Smith knowing her prior criminal record. Mr. O’Halligan testified Ms. Smith stole from Teazers before as he gave her money to take to the Lounge but the money never made it there. Ms. Smith had to pay it back from her pay cheque.

However, the owner, Sharlene Stroud who handled the payroll, had no knowledge of this matter. As well, Mr. O’Halligan was adamant he told Ms. Stroud he would have nothing further to do with any money at the Lounge after Ms. Stroud hired Tracey Smith as she could not be trusted. These statements are inconsistent. If he had nothing to do with the money after Ms. Smith was hired and he informed the owner of same, why did he then take his own money and give it to Ms. Smith to take to the Lounge to be used as a float. He was at the Lounge regularly as the manager and could have delivered it himself. Ms.

Stroud testified she was not the person who hired Ms. Smith; that it was Mr. O’Halligan and she had no knowledge of any problems or issues until after the alleged robbery. [ 57 ] Mr. O’Halligan also stated that sometime prior to the alleged robbery, an envelope containing around $1,200 went missing from the bar. He “searched the bar upside down”. Ms. Smith was not at the Lounge that day. Mr. O’Halligan made it clear that if the envelope was not found, the police would be called. Lori Gosse, who was the bartender that day, called to say she had found the envelope. Lori Gosse was not questioned on this matter. Mr.

O’Halligan testified he believes Lori Gosse put $1,200 in the envelope to cover up for Tracey Smith. Clearly, he jumped to that conclusion without any proof which is really troublesome in my credibility assessment of Mr. O’Halligan. [ 58 ] Why was this evidence of bad character introduced when there was no application by the Crown for similar fact evidence, nor did the accused introduce any evidence of her good character? Ms. Smith was never charged with the alleged previous thefts.

The defence did not object which strategically may have been a good move as it was a trial by Judge alone and it became very obvious from hearing this particular evidence from Mr. O’Halligan that he is angry and holds a grudge against Ms. Smith. The Court must exercise caution and carefully scrutinize his evidence. [ 59 ] Mr. O’Halligan testified Tracey Smith was stealing money from Teazers for months. But he really did nothing about it other than warn her. He did not tell the owner, Ms. Stroud who had entrusted the Lounge to him after her husband’s death. He did not fire Ms.

Smith but he stated emphatically he had the full authority to fire any employee and he did so in the case of Linda Gosse for playing the lottery machines and Lori Gosse for being short a few beer. [ 60 ] When you review the evidence of Mr. O’Halligan and the control he had over the Lounge and the manner in which he handled issues, it is not reasonable that he would know Ms. Smith was stealing money for months but would allow her to continue working at the bar. It is not reasonable that he would not tell the owner, Ms. Stroud, when he expected the Lounge would be turned over to him when Ms.

Stroud’s husband’s debt was paid which depended on the Lounge being profitable. [ 61 ] Prior to being a bartender, Ms. Smith worked in a restaurant adjacent to Teazers. The testimony of Mr. O’Halligan is that Ms. Smith “fought with all the bartenders at Teazers until everyone quit so that would put her behind the bar where the money was so then she would have a set of keys to the place”. He could not name these bartenders even though he was the manager at this time. The bartenders, Linda Gosse and Lori Gosse stated Ms. Smith was awesome to work with, there were no problems. According to them, Mr.

O’Halligan was the difficult one to deal with. One bartender, Colleen Keefe left as she was attending postsecondary education, she had no issues with Ms. Smith. The owner, Sharlene Stroud, was also not aware of any difficulties. Up to this point, all of Mr. O’Halligan’s evidence had been about the bad character of Ms. Smith. [ 62 ] Regarding September 15, 2013, Mr. O’Halligan arrived shortly after the alleged robbery. He stated he was yelling and telling the police officers not to let Ms. Smith leave because he was more than sure she took the money. He was told to leave the premises. Constable Dollimount and Ms.

Stroud both recalled how upset Mr. O’Halligan was but neither stated that he blamed Ms. Smith at this time. In fact, Constable Dollimount testified Mr. O’Halligan was very upset because the place had been robbed and he would have felt the same as Mr. O’Halligan in the circumstances. To have the manager, Mr. O’Halligan, arrive on the scene shouting and cursing and blaming the bartender, who was his common law spouse at the time, would be so startling, it would have stood out in the minds of those present. [ 63 ] Mr.

O’Halligan testified he requested to give a statement to the police several times but the police refused, that it was a “racket

from day one”. He believed based on what he heard from a friend, that Constable Jack was sleeping with Ms. Smith. He informed Constable Ingraham of this belief when he was finally interviewed two and a half months later on November 26, 2013. Constable Ingraham reminded Mr. O’Halligan that he had ordered the police from his property when they tried to speak to Tracey Smith about the matter and Mr. O’Halligan did not indicate to police at that time that he wished to give a statement. As well, he agreed with Constable Ingraham that he never approached that officer to give a statement. According to Mr.

O’Halligan, he had to go all the way up in the detachment to the superiors before the police would take a statement from him on Tracey Smith’s post offence conduct. Even then, no charges were laid because the lead investigator, Constable Jack, testified there were no reasonable and probable grounds until April 2015 when Leslie Armstrong gave her statement to the police. [ 64 ] Further, Mr. O’Halligan gave information to a police officer that Ms. Smith’s daughter, Stephanie, may have information that implicated another person. Mr.

O’Halligan testified it was Tracey Smith or her daughter that alerted the police to this matter. This is not so according to Constable Jack. From all the evidence, it appears likely that Mr. O’Halligan did not accuse Tracey Smith from day one as he testified at trial but later, after their relationship ended. [ 65 ] After the alleged robbery, Ms. Smith did not return to work at Teazers. Thereafter, Mr. O’Halligan fired Linda Gosse for playing the lottery machines. He was disturbed that Ms. Stroud gave Linda Gosse a layoff slip to obtain employment insurance benefits but refused to give him one.

He also fired Lori Gosse because her beer count was short but Ms. Stroud hired her again. He also accused Lori Gosse of having her sister play the lottery machines for her. He agreed he also played the machines at Teazers. Ms. Stroud had no knowledge of any employees playing the machines or using the Lounge’s money to do so as it was a clear violation of the policy of Atlantic Lottery Corporation. [ 66 ] As for post offence conduct, Mr. O’Halligan testified that Ms.

Smith wanted him to get one of his good friends to say that he was driving past the Lounge when the robbery occurred and observed the guys running out with the money. He stated he told her “that isn’t going to work, the best thing for (her) to do is get the money and put it back”. According to Mr. O’Halligan, a week later at 2:00 or 3:00 a.m. Ms. Smith gave him money in a Sobey’s bag, he asked her how much and she said “two grand”. He told her it is not enough. He testified, “Whatever she took or whatever is missing, that’s what I need to put back there, not two grand.” So he gave the money back to Ms. Smith.

When asked if he looked at the money, he answered, “No, I don’t think so. $2,000 in 20’s is not much to look at.” I found this comment unusual because how would he know it was all 20’s if he never looked at it, did he assume that because he believed the money came from the machines at Teazers? He then stated the elastics looked like the ones from Teazers and that Ms. Smith told him she got the money from her ex-boyfriend, Russ Way. [ 67 ] Mr. O’Halligan seemed to be guessing at times, for example: Q: Do you recall if there was any conversation about whether or not she could get the rest of the money?

A: Yeah just a matter of time, I guess. Q: What do you recall about that conversation? A: I don’t remember much, just that she would get it I guess. That I guess he give it to her. I dunno who give it to her. Q: Do you remember if there was any conversation about when that would happen? A: Ah, maybe a few weeks if she said it, I don’t know. [ 68 ] This is not the only time Mr. O’Halligan was uncertain in his evidence. He explained he has had a lot going on in his life, the death of his parents and he has not been well. When asked why he would give the money back to Ms.

Smith and not to Sharlene Stroud, he replied “Cause I’m having no part of it. $2,000 is no good. Someone does you dirty that’s it, it’s over, not willing to help. I ain’t gonna do nothing to make it easier. I ain’t going to do nothing against her but I ain’t gonna do nothing to make it easier. I could have put all the money back for her but that wouldn’t be right if someone else took it and she didn’t.

Why would I put the money back for the other person?” This is confusing as he stated earlier he believed from day one she was guilty and if she did indeed give him $2,000 with the elastic bands, this would have corroborated his position regarding her guilt. [ 69 ] Therefore, it is unusual that he gave the money back.

His explanation is, “Why would he give the money to the bar if another person had taken the money.” The post offence conduct he alleges appears not to have convinced him fully that she was the guilty person or alternatively, the incident regarding giving the money to him did not happen, or alternatively he knew she was responding to the pressure he was exerting on her as she felt responsible as the robbery occurred because she did not become suspicious upon seeing customers entering with sunglasses and hoodies (as she explained to Constable Jack). [ 70 ] When asked why he was at the church when Sergeant Frisby and his dog arrived to look for the stolen money, he answered “Just to see if they would find anything.” Then he stated that he did not know how to be there but he thinks Tracey or her daughter or someone called the cops, he does not think he did, but he is not saying he did not as lots of time went by between now and then.

No money was found. Constable Jack testified it was Mr. O’Halligan who set that search in motion by telling Sergeant Thibault. This has not been satisfactorily explained. On cross-examination, Mr. O’Halligan agreed he was pressuring Ms. Smith to give him money and he would put it back. Despite the pressure, Ms. Smith never admitted to him at any time she took any money, she maintained her innocence. [ 71 ] At trial, he could not remember touching the money Ms. Smith tried to give him. At the preliminary inquiry, he testified he took the money out and counted it.

He replied, “I can’t remember what I done with it, if that’s what I said at the preliminary, that’s what I said. I don’t recall it. Like all this stuff don’t mean nothing, ya know what I’m saying, you know get down to the hard stuff, ya wants to get some questions on the go here.” [ 72 ] When asked if the money from Ms. Smith was lined up, heads on heads, he answered, “I guess it was. If you’re saying I looked in the bag and it was all heads on heads, I guess I did look in the bag, yes. Like I said, if I looked at the money, if it was heads on heads,

it was. If I said it in my statement, I’ll agree to it. Simple as that. Someone else saying I said, I ain’t agreeing to nothing unless you show me on paper. I think the elastic bands was on the plastic bag, I’m not quite sure. But it was in elastic bands there somewhere, yes on the money or on the bag, one or another.” [ 73 ] I find Mr. O’Halligan had difficulty recalling matters. He is not certain about significant points which may be understandable given the passage of time but guessing or saying “if I did this or that” casts considerable doubt on the reliability of his evidence.

This is the critical part of his testimony, the alleged post offence conduct by Tracey Smith. What a person said or did after an offence was committed may indicate that he acted or spoke in a way which according to human experience and logic, is consistent with the conduct of a person who committed the offence and inconsistent with the conduct of someone who did not do so. [ 74 ] Therefore, to properly analyze and assess the alleged post offence conduct to determine if it is consistent with Ms.

Smith’s guilt and inconsistent with her other reasonable explanation, I have to first determine what the conduct of Tracey Smith was. This is where I have the difficulty, as Mr. O’Halligan readily admits he has a problem with his recall of that matter. I now query whether he saw the money, whether the elastic bands were on the money or on the bag. He does not seem to know at this point, which makes me very uncomfortable about the use of this unreliable evidence. [ 75 ] I do agree with the Crown that Ms. Smith asking Linda Gosse to pick up Midol is suspicious as Ms.

Smith did have the opportunity to purchase it earlier that morning and she intended to be at the Lounge only a short time, not for an entire shift. However, I do note Ms. Smith had asked Linda Gosse to pick items previously. Therefore, it was not unusual for Ms. Smith to send Linda Gosse on errands. Further, Ms. Smith had the key and the code and could have entered the Lounge earlier and then advised Linda Gosse she had been mugged when Ms. Gosse arrived.

To execute her plan, she did not need to attend the Lounge at the same time as Linda Gosse and run the risk of trying to get Linda Gosse out of the place for a short time so she could fabricate an armed robbery. What if Linda Gosse had declined because she didn’t want to drive Ms. Smith’s vehicle or wanted Ms. Smith to go herself or offered Ms. Smith pain medication she had on her. If that was the plan of Ms. Smith, it was a risky one. [ 76 ] As Ms.

Smith was not found in possession of any of the stolen items, the Crown’s theory is that she stole some of the money before the Saturday shift and then returned to the Lounge sometime after closing on Saturday night to steal the additional money in the envelopes, the white bucket and the recording book. We know a security code was entered Saturday evening when the bar closed and Sunday at noon when the bar opened.

Unfortunately, there is no evidence that the police contacted the security company to determine if a code was entered after the alarm was set on Saturday night and before it was disarmed on Sunday at noon. This is an omission on the part of the police. [ 77 ] Ms. Stroud’s evidence on the code is confusing. Ms. Smith had keys and a code to the building, so did at least two other persons. The employees, Linda Gosse and Lori Gosse stated they did not have a code for the security system. Ms. Stroud testified they did, that she called the security company for instructions on how to register their codes.

Evidence from the security company was lacking in this trial. Could the company have said a code was entered after closing on Saturday and before noon on Sunday, I do not know. Ms. Stroud stated she could not get “it” from the security company. My question is “get what” whose code opened and closed the building or whether any code was used during this time. The Crown would have a problem trying to introduce hearsay evidence on this matter (where is the reliability?

Where is the necessity?) The problem is the matter was never pursued by the police. [ 78 ] In conclusion, for the reasons I have outlined, the guilt of Tracey Smith on the charges has not been proven beyond a reasonable doubt and acquittals are entered accordingly. [ 79 ] Thank you. _____________________________ Kendra J. Goulding Justice