R. v. Wiseman, 2019 NLSC 161

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation: R. v. Wiseman, 2019 NLSC 161 Date: September 10, 2019 Docket: 201801G6953 Her Majesty The Queen v. JUSTIN WISEMAN Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: June 25-26, 2019; June 28, 2019; September 10, 2019. Appearances: Kathleen O'Reilly Appearing on behalf of the Crown Karen E. Rehner Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Dorsey (2003), (ON CA), 173 C.C.C. (3d) 443, 56 W.C.B. (2d) 641 (Ont. C.A.); R.v. K.P., 2019 NLCA 37; R. v. Villaroman, 2016 SCC 33; R. v. Ngo, 2009 BCCA 301; R. v. Calnen, 2019 SCC 6; R. v. Tat (1997), (ON CA), 103 O.A.C. 15, 35 O.R. (3d) 641; R. v. E.(J.), [2011] N.J. No. 38, 100 W.C.B. (2d) 69, (N.L. Prov. Ct.); R. v.

Whalen, 2007 NLTD 79; R. v. Chalifoux (1973), (BC CA), 14 C.C.C. (2d) 526, 24 C.R.N.S. 314 (B.C.C.A.); R.v. Kienapple, (SCC), [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524; R. v. Prince, (SCC), [1986] 2 S.C.R.480, [1987] 1 W.W.R. 1; R. v. Krug, (SCC), [1985] 2 S.C.R. 255, 11 O.A.C. 187; R. v. Briscoe (1992), (BC CA), 17 B.C.A.C. 302, 17 W.C.B. (2d) 345. STATUTES CONSIDERED: Criminal Code, R.S.C., 1985, c. C-46. TEXTS CONSIDERED: Jordan, “Application and Limitations of the Rule Prohibiting Multiple Convictions: Kienapple v. The Queen toR. v. Prince” (1985) 14 Man. L.J. 341.

REASONS FOR JUDGMENT Stack, J.: INTRODUCTION [1] As set forth in the Indictment, it is charged that Mr. Wiseman: Count 1 On or about the 13th day of March, 2018, at or near Mount Pearl, in the Province of Newfoundland and Labrador, did rob monies andgoods from Marie’s Mini Mart thereby committing an indictable offence contrary to

section 343-344(1) of the Criminal Code. Count 2 On or about the 13th day of March, 2018, at or near Mount Pearl, in the Province of Newfoundland and Labrador, did unlawfully have inhis possession, a weapon or imitation thereof, to wit: a knife, for a purpose dangerous to the public peace thereby committing an offencecontrary to section 88(1)-88(2) of the Criminal Code.

Count 3 On or about the 13th day of March, 2018, at or near Mount Pearl, in the Province of Newfoundland and Labrador, did unlawfully have inhis possession, a weapon or imitation thereof, to wit: a hammer, for a purpose dangerous to the public peace thereby committing anoffence contrary to section 88(1)-88(2) of the Criminal Code.

Count 4 On or about the 13th day of March, 2018, at or near Mount Pearl, in the Province of Newfoundland and Labrador, did with intent tocommit an indictable offence have his face masked thereby committing an indictable offence contrary to section 351(2) of the CriminalCode. [2] It is alleged that on March 13, 2018, the Accused, masked and carrying a knife and a hammer, robbed a Marie’s Mini Martwhere a store clerk, Kimberley Mulrooney, was the only other person present.

This case involves issues of identification, circumstantialevidence and after-the-fact conduct. the trial [3] The trial took place over three days. The Crown called 14 witnesses; the Defence called none. For the most part, I willconsider the evidence that was presented in the context of the issues that must be resolved. I have, however, set forth the evidence of Ms.Mulrooney in detail at the outset because she was the only eyewitness to the robbery, and it is her identification evidence that is key tothe Crown’s case.

I will also explain how her testimony corresponds with certain video and audio-video evidence that was adduced at

trial. Testimony of Kimberley Mulrooney [ 4 ] Ms. Mulrooney works at the Marie’s Mini Mart on Morris Avenue, Mount Pearl, Newfoundland and Labrador (for the purposes of this decision, I will refer to this particular Marie’s Mini Mart as the “Store”). [ 5 ] She testified that she was alone in the Store at approximately 8:25 a.m. on March 13, 2018, when someone bolted in and said, “This is a stick up.” Carrying a knife, he jumped over the counter, in her words, “like a rabbit” and asked her to open the cash. She was shaking and crying. As a result, it took her a couple of tries to open the cash.

The individual told her to relax. [ 6 ] As the individual was leaving, Ms. Mulrooney went to call the police. She testified that he turned and said to her, “Don’t touch that button.” So, she put her hands up. [ 7 ] When the perpetrator left, Ms. Mulrooney called the police and looked out to get the licence plate number of the vehicle. While she was on the phone, Danny Kelly, the milk deliveryman, came in. Ms. Mulrooney gave him the keys to the Store and asked him to lock the door. [ 8 ] She described the individual as roughly 5’7” to 5’9” but admitted that she is not great at estimating height.

She testified that he was not a big man. He had a black tattoo that went from one point on his right eyebrow to the end. She was shaken up and afraid and so kept looking at it from the temple down. [ 9 ] Ms. Mulrooney testified that the individual’s face was covered in a bandana up to his nose. She could not recall if she saw his hair colour. The individual was wearing black quarter-inch boots, and she could not see his socks. When he was removing cigarettes from the rack, she could see his leg and that he was white. [ 10 ] When asked what the individual said, Ms.

Mulrooney testified that she was shaken up and he called her “Sweetie.” He said he had no intention to hurt her. But because he was holding a knife, she could not be certain of that. He was soft-spoken and said that he was sorry and that it was something that he had to do. He was very calm and did not yell. [ 11 ] Ms. Mulrooney testified that in addition to the cash from the two tills, the individual mostly took cigarettes. He put the things in a burgundy reusable shopping bag.

He was not in the Store very long. [ 12 ] She testified that she saw a “black colour” truck outside, although on the telephone the police dispatcher told her it was smoky grey. [ 13 ] As it turned out, March 13 was Ms. Mulrooney’s birthday. She was upset and left work for the day but planned to be back the next day. She and her family went out to get some supper prior to the supper-hour news coming on. When she came back, she heard what she described as the same voice on the NTV News talking to Glen Carter.

She described it as the same distinctive soft voice that was talking to her that morning. [ 14 ] When asked for more detail, Ms. Mulrooney testified that she just recognized the soft voice. By this time, she was at home and was not watching the whole news – but then she heard the voice. How the individual was speaking to Mr. Carter was the same as she had heard that morning. She noted nothing regarding the content of the television discussion. Ms. Mulrooney testified that she could not believe what she was hearing. She did not know the individual.

She simply continued with her day. [ 15 ] When asked whether she saw Mr. Wiseman on the TV the evening before, Ms. Mulrooney said she had not. She did not watch the whole news. It was supper time. Her children were there and friends had dropped by. She saw no other footage. [ 16 ] Ms. Mulrooney testified that the TV was in the corner of the living room. When she heard the news item, she was listening but was sitting at the kitchen table. She then went over to see the TV but does not remember seeing any pictures of Mr. Wiseman. Ms.

Mulrooney testified that she is pretty much 100 percent sure it was the same voice that she had heard at the Store. [ 17 ] Ms. Mulrooney was asked by her employer if she wanted to take some time off work because she was upset. But because she has a family to feed, she went to work the next morning. When she picked up the newspapers, the first thing she saw was the tattoo from the day before: “It just happened to be Justin,” she testified. [ 18 ] On cross-examination, Ms. Mulrooney confirmed that she had said that the individual was not much bigger than she is.

As for the tattoo, although she confirmed that it looked black to her, it was not a single tattoo – there were spaces in between, although she could not see the design. [ 19 ] She confirmed that in her statement to the police, she said that the tattoo was dark blue, went down his right eye and looked like it was going together. She testified that it didn’t look like it was connected—that there were “spaces kinda in between”. When challenged on her statement to the police that the tattoo was going together, she reiterated that based on her memory it was not connected, although she is not sure.

When challenged on this yet again, she confirmed that she said it was going together, but she testified that it was not connected. There were tiny spaces. She also confirmed that she said to the police that it went from the middle of his eyebrow to his temple and that it looked like one tattoo. [ 20 ] Ms. Mulrooney confirmed that she saw the Accused in the newspaper the next day. She also confirmed that she testified at the preliminary inquiry, but she said she did not look at the Accused at that time. She testified that she did not recall even glancing at the tattoo.

She said she also saw the Accused’s image on VOCM. [ 21 ] Ms. Mulrooney confirmed that she did not see the individual’s eyes because he had dark glasses on. She also confirmed that he had his face covered from the bridge or tip of his nose down. She did not recall seeing any other facial tattoos. She testified that it all

happened so quickly, that she was lucky to have seen that one. [ 22 ] Ms. Mulrooney described the knife as looking like a hunting knife. She testified that she saw the knife and “freaked out”. She did not think it was serrated. The knife was about five inches long. The handle was black. She does not know which hand he was carrying it in and does not know whether he put it down at any point. [ 23 ] She did not see any other weapon on the individual and cannot recall seeing a hammer. [ 24 ] Ms.

Mulrooney testified that as she went to call the police, she looked out the window to see if she could see something for the police. She was able to write down the license plate number of the truck. She confirmed that the truck looked black to her, although the police dispatcher described it to her as grey. [ 25 ] As to the NTV News coverage, she confirmed that her family had gone out to get supper. As they were starting to eat, the news came on. She heard Mr. Carter report on a standoff. She did not know anything that was going on. When asked if she thought that the two events might be related, Ms.

Mulrooney testified that it seemed suspicious, a coincidence, but she did not know. [ 26 ] Ms. Mulrooney testified that she heard the same soft-spoken voice that spoke to her that morning. The individual was not upset when speaking with her, and the person on TV did not sound upset. She did not hear any yelling. She could not recall whether she continued to watch the news coverage. It was her birthday, people were there and friends came by. Ms. Mulrooney did not recall any mention on the news item that Mr. Wiseman had been involved in previous armed robberies. [ 27 ] Ms.

Mulrooney testified that she knew that the person she saw in the newspaper was the same person as she heard on the news because they said his name. She simply “put two and two together.” Nevertheless, she did not contact the police at the time. It was suggested that when a police officer contacted her a day later, she told him about the news item and the newspaper photograph. [ 28 ] Ms. Mulrooney confirmed that she gave a recorded interview to Cst. R. Dunn. She confirmed that she first heard the Accused’s name in the clip on the news, and it struck her as “just such a coincidence”.

Up to that point, she did not know the Accused. She confirmed that it was coincidental because it was the same day. When asked whether it seemed too coincidental, she responded affirmatively. [ 29 ] On re-examination by Crown counsel, Ms. Mulrooney testified that she is not sure when she saw the Accused’s picture on VOCM but thinks it was after the fact. It stood out to her because she gets her information from VOCM in the evening. The Accused was in court for something and she saw his picture there. This was long after she had spoken to the police. The Store Security Videos [ 30 ] The testimony of Ms.

Mulrooney was largely corroborated by the videos from the Store’s security system that were entered as evidence. Although the quality of the images was not the best, and there was no sound recorded, the videos taken from various perspectives show a person dressed in black pants, a black hoodie, with his lower face covered, and wearing sunglasses, enter the Store, jump over the counter and commit the robbery as described by Ms. Mulrooney. The individual brandishes a knife.

He also carried a hammer which was laid on the floor while he went through the cigarette cases behind the counter. [ 31 ] The video quality is not such that any tattoos on the face of the perpetrator can be seen. But they do show that Ms. Mulrooney had ample opportunity to observe the right side of the face of the person, contrary to the assertion otherwise by Defence counsel. [ 32 ] The testimony of Ms. Mulrooney, as corroborated by the security video, establishes beyond a reasonable doubt that the Store was robbed as described by her.

The sole question remaining to be answered is: was the Accused the perpetrator? NTV News Video [ 33 ] Also entered by consent was a recording of the NTV News item referred to by Ms. Mulrooney. The item is a combination of live coverage of a standoff with the police at 17 Jersey Avenue, Mount Pearl, and a telephone interview between Mr. Wiseman, a woman who is with him in the house, and Glen Carter. In it, Mr. Wiseman can be heard speaking with Mr. Carter for the most

part in a low and calm voice. Although Mr. Wiseman does become somewhat agitated at one point, he never yells. Furthermore, in the news segment, he describes himself as being a victim of circumstances, similar to what Ms. Mulrooney described as the attitude of the perpetrator while committing the robbery. Conclusion on the Testimony of Ms. Mulrooney [ 34 ] Ms. Mulrooney was a forthright and honest witness. I found her credible and her testimony to be reliable.

Her recollection of events was quite remarkable considering the stress that she was under and that the events took less than three minutes to transpire as shown in the security video. Her recollection was not perfect, however, but nor would one expect it to be. I will address some of the challenges to her testimony raised by counsel for the Accused later in the Analysis portion of this decision. the law The Criminal Code Provisions [ 35 ] The offence of armed robbery is set out in

section 343 of the Criminal Code, R.S.C., 1985, c. C-46 as:

343 Every one commits robbery who (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violenceor threats of violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes oruses any personal violence to that person; (

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof. [36] By section 344(1)(

b) of the Criminal Code, in the circumstances of this case, a person found guilty of armed robbery is liable toimprisonment for life. [37] Wearing a mask with the intention to commit an indictable offence is made punishable by imprisonment for up to 10 years bysection 351(2) of the Criminal Code: 351(2) Every one who, with intent to commit an indictable offence, has his face masked or coloured or is otherwise disguised is guilty ofan indictable offence and liable to imprisonment for a term not exceeding ten years. [38] Being in possession of a weapon for a purpose dangerous to the public peace is an offence under section 88(1) of the CriminalCode, and, in these circumstances, is punishable by imprisonment for up to 10 years by section 88(2): 88(2) Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or (

b) is guilty of an offence punishable on

summary conviction. Identification Testimony [39] Identification testimony is fraught with fragility and can result in a wrongful conviction. Consequently, appellate courts applyclose scrutiny where conviction is based solely upon honest but potentially mistaken eyewitness evidence (R. v. Dorsey (2003), (ON CA), 173 C.C.C. (3d) 443, 56 W.C.B. (2d) 641 (Ont. C.A.). [40] Here, Ms. Mulrooney did not identify the Accused at trial. Nevertheless, following the NTV newscast and his picture appearingin the newspaper, she did identify the Accused as the individual who robbed the store.

It was admitted that it was the Accused who spokewith Mr. Carter on NTV. Furthermore, it was not disputed that it was the Accused whose photograph appeared on the front page of theTelegram the following day that was entered as an exhibit. Circumstantial Evidence [41] The law relating to cases based largely or exclusively on circumstantial evidence has been well canvassed in the case law. [42] In R. v. K.P., 2019 NLCA 37, White and O’Brien, JJ.A., writing for the court at paragraph 13, cited paragraphs 55 and 56 of R.v.

Villaroman, 2016 SCC 33, where the Supreme Court of Canada discussed the proper approach to circumstantial evidence. Where theCrown’s case depends on circumstantial evidence, the question is whether the trier of fact can reasonably be satisfied that the accused’sguilt is the only reasonable conclusion available on the totality of the evidence.

Furthermore, circumstantial evidence need not totallyexclude other conceivable inferences - it is for the trier of fact to determine if any proposed alternative way of looking at the case isreasonable enough to raise a doubt. [43] A useful discussion of the relationship between circumstantial evidence and proof beyond a reasonable doubt can be found in R.v.

Ngo, 2009 BCCA 301, at paragraphs 53 to 55: 53 The Crown may prove the essential elements of an offence through direct or circumstantial evidence, or a combination of both.Where the case rests on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of the accusedis the only reasonable inference to be drawn from the facts: R. v. Vu, 2004 BCCA 381 (B.C. C.A.), at para. 31, (2004), 201 B.C.A.C. 293(B.C. C.A.). However, the criminal standard of proof is not to be applied to each individual piece of evidence. In that regard, what wassaid by Sopinka J. in R. v.

Morin, (SCC), [1988] 2 S.C.R. 345, 44 C.C.C. (3d) 193 (S.C.C.), is helpful (at para. 36):

The argument in favour of a two-stage application of the criminal standard has superficial appeal in theory but in my respectful opinion iswrong in principle and unworkable in practice. In principle it is wrong because the function of a standard of proof is not the weighing ofindividual items of evidence but the determination of ultimate issues. Furthermore, it would require the individual members of the jury torely on the same facts in order to establish guilt. The law is clear that the members of the jury can arrive at their verdict by differentroutes and need not rely on the same facts.

Indeed the jurors need not agree on any single fact except the ultimate conclusion. [Internal citations omitted.] 54 In considering whether the circumstantial evidence supports an inference of guilt beyond a reasonable doubt, the trier of fact mustnot examine each individual circumstance in isolation. Instead, the proper approach is to consider whether all the evidence, takentogether, establishes the guilt of the accused and is inconsistent with any other rational conclusion: R. v. J. (G.L.), [1997] B.C.J. No.2994 (B.C. C.A.) at para. 29; R. v. Aylward (1993), (BC CA), 36 B.C.A.C. 14 (B.C.

C.A.), at paras. 5-7. 55 As to competing inferences from circumstantial evidence that might be open to a trial judge, the observation of McEachernC.J.B.C. in R. v. To (1992), (BC CA), 16 B.C.A.C. 223 (B.C. C.A.) at para. 41, is apposite: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can bereached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty. ...

After-the-Fact Conduct [44] In a recent decision, R. v. Calnen, 2019 SCC 6, the Supreme Court of Canada addressed the admissibility of after-the-factconduct evidence.

Martin, J. disagreed with the result but her reasoning on this point was adopted by the majority (see paragraph 2).Justice Martin held at paragraphs 107 and 108: 107 As with other types of evidence, evidence of after-the-fact conduct is admissible if it is relevant to a live, material issue in thecase, its admission does not offend any other exclusionary rule of evidence, and its probative value exceeds its prejudicial effects. 108 Relevance involves an inquiry into the logical relationship between the proposed evidence and the fact that it is tendered toestablish.

The threshold is not high and evidence is relevant if it has “some tendency as a matter of logic and human experience to makethe proposition for which it is advanced more likely than that proposition would be in the absence of that evidence”: R. v. White, 2011SCC 13, [2011] 1 S.C.R. 433 (S.C.C.), at para. 36, quoting D.M. Paciocco and L. Stuesser, The Law of Evidence (5th ed. 2008), at p. 31.In other words, the question is whether a piece of evidence makes a fact more or less likely to be true. Relevance does not require a“minimum probative value”: R. v. Arp, (SCC), [1998] 3 S.C.R. 339 (S.C.C.), at para. 38.

As the admissibility of after-the-fact conduct evidence is, “[a]t its heart”, one of relevance, determining the relevance of any piece of after-the-fact conduct evidenceis necessarily a case-by-case, “fact-driven exercise”: White (2011), at paras. 22 and 42; see also R. v. White, (SCC),[1998] 2 S.C.R. 72 (S.C.C.), at para. 26. [45] At paragraphs 111 and 112, she went on to say: 111 After-the-fact conduct is circumstantial evidence.

Like other forms of circumstantial evidence, after-the-fact conduct allows afact finder to draw particular inferences based on a person’s words or actions: see White (1998), at para. 21; White (2011), at para. 22;Peavoy, at para. 24. This process of inductive reasoning is a cornerstone of the law of evidence, and is used frequently to draw inferencesfrom circumstantial evidence, as well as to assess credibility and to determine the relevance and probative value of evidence: see D.

M.Tanovich, “Angelis: Inductive Reasoning, Post-Offence Conduct and Intimate Femicide” (2013), 99 C.R. (6th) 338. 112 In order to draw inferences, the decision maker relies on logic, common sense, and experience. As with all circumstantialevidence, a range of inferences may be drawn from after-the-fact conduct evidence. The inferences that may be drawn “must bereasonable according to the measuring stick of human experience” and will depend on the nature of the conduct, what is sought to beinferred from the conduct, the parties’ positions, and the totality of the evidence: R. v.

Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534 (Ont.C.A.), at para. 77. That there may be a range of potential inferences does not render the after-the-fact conduct null: see R. v. Allen, 2009ABCA 341, 324 D.L.R. (4th) 580 (Alta. C.A.), at para. 68.

In most cases, it will be for the jury or judge to determine which inferencesthey accept and the weight they ascribe to them. “It is for the trier of fact to choose among reasonable inferences available from theevidence of after-the-fact conduct”: Smith, at para. 78. [46] There may be more than one reason for an accused, after an offence has been committed by him or someone else, to act in acertain way. At paragraph 126, guidance is provided for a trier of fact assessing an alternative reason for the behaviour that is not

consistent with a consciousness of guilt: [126] The relationship between any explanation provided by the accused for his or her actions and the accused’s actual actions may also inform the determination of whether the inference is reasonable and rational as a matter of logic, common sense, and human experience. In White (1998) , at para. 32, the Court stated: It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts.

By way of illustration, where the extent of the accused’s flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged. When assessing the actions of an accused and the inferences that may be drawn from the after-the-fact conduct at the admissibility or no probative value stage, the trial judge may take into account the disproportionality between the explanation proffered and the conduct at issue. analysis The Events Generally [ 47 ] Of the 14 witnesses that testified, 11 were police officers.

Most of their testimony centered on their attendance at the Store, following the grey truck to 17 Jersey Avenue, Mount Pearl, the standoff there, and the subsequent search of the premises. [ 48 ] I am satisfied that the evidence established that following the robbery, two things occurred that eventually coalesced at 17 Jersey Avenue. [ 49 ] First, Ms. Mulrooney described the perpetrator to Cst. Hollett who, because of the distinctive tattoo over his right eye that the Accused had recently obtained, immediately began to suspect him. In the circumstances, and given Cst.

Hollett’s knowledge of the Accused, this was not an unusual thing to do. But it could lead to tunnel vision by which the Accused would be investigated to the exclusion of the actual perpetrator. [ 50 ] This, however, is not a case where the police, blinkered by their first instincts, sought out the Accused as the only suspect.

Rather, the investigation centered on finding the grey truck for which the police had the licence number and which had recently been reported stolen. [ 51 ] The second thing that occurred that set the chain of events in motion was that close to three hours after the robbery, the grey truck was spotted by Cst. Justin Dawe. It was also seen by other police officers who observed the driver. There were differing descriptions of the driver before the truck ultimately arrived at 17 Jersey Avenue, and the police did not see who exited the driver’s side door once it arrived there.

Unbeknownst to the police, however, the Accused was inside the house. Thus, it was the grey truck that left the scene of the robbery that brought the police to the Accused, not Ms. Mulrooney’s description of him. [ 52 ] The rest of the police involvement followed from these two initial events: first, Ms. Mulrooney’s description of the perpetrator and identification of the licence number of the truck; and second, the grey truck leading them to a location where the Accused was found. [ 53 ] Cst.

Patrick Hickey testified that once the police had secured the scene at 17 Jersey Avenue and had spoken to a Kelly Cantwell outside the house, they maintained it under surveillance. A Vanessa Kerrivan arrived by taxi and went into the house. Ms. Cantwell telephoned the house and spoke with Ms. Kerrivan. Cst. Hickey could hear a male voice yelling. At that point, Ms. Cantwell was escorted away. [ 54 ] Cst. Evan Farrell set up surveillance on the street immediately behind 17 Jersey Avenue.

Once there, he saw a person attempting to leave the premises through the backyard wearing clothing similar to that described by Ms. Mulrooney. That person returned to the house once he was spotted. [ 55 ] The Accused and Ms. Kerrivan, identified as his girlfriend, then began a standoff with the police at 17 Jersey Avenue. Subsequently, two unidentified women left the house. The Accused and his girlfriend would step outside from time to time to speak to the police. The evidence was consistent that as they did so, they appeared more and more under the influence of alcohol and/or drugs.

In addition, each time he appeared at the door, the Accused was wearing less clothing until, ultimately, he wore only boxer shorts. In addition, the Accused made his telephone call to the NTV News. [ 56 ] Finally, the police noted smoke coming from the chimney of the house. The standoff continued until the house itself was in flames and smoke was coming out the front door, at which time the police entered and forcibly removed the Accused. Identification of the Accused by Ms. Mulrooney

[57] I place a great deal of weight on the identification of the Accused by Ms. Mulrooney from his voice on the NTV News and hisphotograph in the Telegram. This is not a case like R. v. Tat (1997), (ON CA), 103 O.A.C. 15, 35 O.R. (3d) 641,where Doherty, J.A., says at paragraphs 141 and 144: 141 Ms. T.’s initial description of Tat as the “middleman” is also problematic. She told the police that she had recognized Tat as the“middleman” on the way back to Winnipeg because of his coat and his hair. She made no reference to any other distinguishing facialfeatures until after she had seen the photo line-ups.

Tat has a noticeable black mole on his face. After seeing the photo line-up, Ms. T.said she recognized Tat because of the mole. At the preliminary inquiry she testified that she was able to identify Tat in part, at least,because of the mole on his face yet she made no mention of the mole when describing the person she had sat beside for 30 hours on theway to Winnipeg. In her statement Ms. T. had described the “middleman” as having a “dark complexion”. At trial, she agreed that Tatdid not have a dark complexion. . . . 144 Ms. T.’s descriptions of the person she said was Long became more detailed as time passed.

In her re-examination at trial, shereferred to Long’s distinctive high cheekbones and “sleepy looking eyes” as the features which had caused her to identify his photographon January 24, 1991. On my review of the record, this was Ms. T.’s first reference to either feature. She had certainly said nothing aboutcheekbones or eyes in the description she had given to the police before she saw the photo line-up. Ms. T.’s evidence suggests to me adescription of the photograph she had identified rather than a description of a person she actually saw. [58] Ms. T’s evidence in Tat was found to be problematic in many ways.

This is to be contrasted with the evidence provided by Ms.Mulrooney which has been remarkably consistent over time. Furthermore, as we have seen, her description of the robbery itself is largelycorroborated by the security video evidence. [59] Ms. Mulrooney’s description of the truck as black, rather than as smoky grey, is a matter of minor nuance and is overcome byher accurate recording of the licence number. [60] Nor am I troubled by her various descriptions of the tattoo.

Whether it was one tattoo or not is not contradicted by her repeatedassurance that it was not connected and had “spaces kinda in between”. “Running together” can be meant in the sense that letters printed,rather than in cursive writing, also run together. That is, collectively they form one word rather than separate words. Similarly, given thecircumstances, her description of the tattoo as dark blue versus black is minor and does not undermine her generally accurate descriptionof the tattoo. [61] It was not suggested that Ms. Mulrooney was an expert in voice recognition.

Nor was she paying close attention to the news thatevening, although it was on the TV in the other room. She had heard the voice of the perpetrator on only one occasion prior to thelistening of the NTV News. Yet, it was the voice that caught her attention because it sounded to her like the voice she had heard thatmorning during the armed robbery. Nevertheless, would such an identification in these circumstances, based solely on Ms. Mulrooneyidentifying a person’s voice, be enough for conviction? I think not. (See R. v. E.(J.), [2011] N.J. No. 38, 100 W.C.B. (2d) 69, (N.L. Prov.Ct.) and R. v.

Whalen, 2007 NLTD 79.) This is particularly so here, whether Ms. Mulrooney remembers hearing it or not, she may havebeen made aware that the Accused had been involved in other armed robberies. [62] But the recognition of the voice of the robber together with identifying him from his photograph the next morning makes theidentification evidence more compelling. Ms. Mulrooney did not know the Accused. Yet she heard and recognized his voice as that ofthe person who robbed the Store.

This aural identification was confirmed when she saw the photograph the next morning that clearlyshowed the side of the Accused’s face bearing a tattoo as she had described it to the police immediately following the robbery. Thus,Ms. Mulrooney’s general description of the tattoo occurred before either the NTV News item or the photograph appearing in thenewspaper. [63] Nevertheless, I need not consider whether this identification evidence alone, the combined aural and visual recognition of theAccused by Ms. Mulrooney, would be enough to convict him. This is because there is more evidence to be considered.

The Truck [64] That the grey truck that left the scene of the crime was located at 17 Jersey Avenue would not be enough to convict theAccused, but it is one more piece of circumstantial evidence for me to consider as trier of fact. Significant time had passed between therobbery and the truck being followed by the police to 17 Jersey Avenue. In that time, the individual who robbed the Store may havevacated the truck. Yet the fact that the truck was followed by the police to a place where the Accused was the only male person foundthere is a piece of circumstantial evidence that undermines doubt.

That is, the smoky grey truck is a proven link between the robbery and17 Jersey Avenue where the Accused was apprehended. [65] Counsel for the Accused makes much of the fact that another vehicle left either the driveway of 17 Jersey Avenue or the housenext door, with a male inside. Although I am troubled by the testimony of Sgt. Krista Clarke insofar as she tried to downplay thepossibility that the vehicle left from the driveway of 17 Jersey Avenue, I am satisfied that the vehicle was stopped by Cst. Neil Gibbonsand neither the male nor female found inside matched the description of the robber as given by Ms.

Mulrooney. The Person Seeking to Leave 17 Jersey Avenue through the Backyard [66] That Cst. Evan Farrell saw a person dressed in dark pants and a black hoodie seek to leave 17 Jersey Avenue through thebackyard is evidence of after-the-fact conduct. In these circumstances, however, it does not assist me in determining that the Accusedmust have sought to leave the premises because he had robbed the Store.

[ 67 ] If the individual that Cst. Farrell saw was the Accused, then it is just as likely that the Accused would seek to avoid the police because of a parole warrant outstanding against him or because of other offenses for which he may have been a suspect.

Thus, the after-the-fact conduct in this instance does not amount to consciousness of guilt of the armed robbery and in that regard does nothing to assist me in determining whether the Crown has proven the charges against the Accused beyond a reasonable doubt. [ 68 ] Nevertheless, this circumstantial evidence is of some, albeit limited, utility with respect to identity. Wearing dark pants and a dark hoody is not distinctive behaviour. The person that was seen by Cst. Farrell could be anyone. But yet, that person was not wearing clothing dissimilar to that worn by the individual who robbed the Store.

The house at 17 Jersey Avenue was being closely watched by the police at this time. The evidence was that no one else entered or left, other than some women. The only male found there was the Accused. This makes it likely that he was the person who sought to avoid the police and was seen by Cst. Farrell. That being the case, the fact that he was wearing clothing that closely resembled that of the perpetrator as described by Ms. Mulrooney, and as shown in the security video, is another piece of circumstantial evidence linking the Accused to the crime.

It is not a strong link, but it must be assessed together with all of the other evidence. The Fire [ 69 ] There was testimony from several of the police witnesses of smoke billowing from the chimney of 17 Jersey Avenue. Cst. Hollett and Sgt. Clarke described the smoke as black and intermittent, with Sgt. Clarke describing it as being at times thick. Cst. James Farrell described it as white smoke. The preponderance of the testimony was that the smoke was black. Furthermore, a review of the NTV News video shows black smoke emanating from the chimney.

I therefore find that, at least some of the time, thick black smoke emanated from the chimney. [ 70 ] The fire is after-the-fact conduct and is admissible as set forth above. The Crown asked me to consider three elements of the fire: first, that the remains of a burnt knife and hammer were found in the fireplace; second, that when he was arrested, the Accused was wearing only his underwear; and third, that there were no cigarettes in any quantity found in the house after the police searched it. [ 71 ] As to the knife and hammer being found in the fireplace, I find that this implicates the Accused in the robbery.

The Store security video shows him in possession of both a knife and a hammer. I take judicial notice of the fact that knives and hammers are common items found in most houses. On their own, they would not implicate a person located at 17 Jersey Avenue with any wrongdoing.

In the context of this case, however, they point to the Accused destroying evidence linking him to the crime. [ 72 ] The relationship between the explanation provided by counsel for the Accused for his actions and the Accused’s actual actions may inform the determination of whether the inference is reasonable and rational as a matter of logic, common sense, and human experience. I have concluded that the destruction of the knife and hammer is not rationally connected to the fact that Mr. Wiseman was subject to a warrant of arrest.

Nor was an explanation proffered as to how it might be connected to other offences for which he was being investigated. Finally, although the knife may have been in use during the course of the standoff with the police, burning it is not rational in that context because there was evidence that the police saw him with the knife.

Consequently, I am satisfied that the destruction of the knife and hammer is another piece of circumstantial evidence that aids in the identification of the Accused as the robber. [ 73 ] I place no weight on the fact that the Accused was discovered only in his underwear upon his removal from the house. It may well have been very warm in there with the fire burning in the fireplace for some considerable time. Furthermore, I am not satisfied as to the extent to which the police searched the house. Cst.

Hickey testified that although the police “walked through” the entire house, the search was focused on the kitchen and living room. The Accused’s clothing may have been elsewhere in the house. The Crown’s contention that the Accused burnt his clothes to avoid a further connection to the robbery is mere speculation. [ 74 ] Furthermore, I place no weight on the fact that there were very few cigarettes found in the house. That is, I am not prepared to infer that the stolen cigarettes were brought there and then were burnt.

The cigarettes (and cash) could well have been disposed of in the period between the robbery and when the police first located the grey truck. That a package of Export “A” cigarettes, the same as one of the brands that was stolen from the Store, was located in the basement is of no evidential value and does not help me in my inquiry. The Surveillance [ 75 ] I am satisfied by the police testimony that once the grey truck was followed to the driveway of 17 Jersey Avenue, the scene both in front of and behind the house was closely monitored.

This is except for the short period of time following the parking of the truck when the police drove on to maintain their cover. Although this caused them to fail to observe who was driving the truck, it did permit them to observe and stop the other vehicle that left the vicinity of the house as well as to spot the person dressed in black who appeared to be seeking to escape through the backyard.

The Value of the Goods and Money Stolen [ 76 ] I accept the evidence of Rosalind Skinner, the Human Resources Manager and the Acting Manager for the Store, that after the robbery she determined that $417.80 in cash was missing together with $1,209.87 worth of cigarettes and cigars. I find that amount of money and that value of goods to have been stolen in the robbery. conclusion

[77] The cases relied upon by the Defence, essentially, take individual pieces of circumstantial evidence and explain why they do notprove guilt in their respective circumstances. As we have seen, that approach is inconsistent with the law where there is other evidenceupon which the trier of fact can rely. In considering whether the circumstantial evidence supports an inference of guilt beyond areasonable doubt, I must not examine each individual circumstance in isolation.

Instead, I must consider whether all the evidence, both direct and circumstantial, taken together, establishes the guilt of the Accused and is inconsistentwith any other rational conclusion. [78] I have applied that approach here. The testimony of Ms. Mulrooney was largely corroborated by the videos, both as to thecircumstances of the robbery and the identity of the perpetrator. [79] It is true that Ms. Mulrooney struggled somewhat with her description of the tattoo she saw on the face of the perpetrator. Yet,her descriptions were largely consistent.

Whether it was one tattoo or a series of tattoos, she was consistent that it did not all run together.Like her description of the truck, her credibility is not undermined because she vacillated between calling the tattoo blue and black.Those colours are easily confused. [80] Similarly, Ms. Mulrooney variously described the perpetrator as being between 5’7” and 5’9”, “not big”, and “not much biggerthan me”. Although we do not know how tall Ms. Mulrooney is, a close review of the security video shows that the perpetrator wasneither what would generally be described as a “big” man or a “small” man.

When he and she are shown standing close together, he canreasonably be described as not being much bigger than she is. [81] As stated above, even though Mr. Wiseman was named by the police as an early suspect, it was the grey get-away truck thatbrought the police to 17 Jersey Avenue. As a result of the standoff there, Ms. Mulrooney was able to identify the Accused by his voiceon TV and by his photograph on the newspaper. Ms.

Mulrooney’s identification of the Accused was made upon an exercise of hercommon sense based upon her human experience. [82] Although of less weight, the person seeking to leave 17 Jersey Avenue through the backyard was dressed similarly to theperpetrator, both as described by Ms. Mulrooney and as shown in the security video.

Finally, burning a knife and a hammer in the fireplace of 17 Jersey Avenue was consistent with the involvement of such instruments in the robbery and inconsistentwith any other rational explanation. [83] As we saw from the excerpt from Ngo above, we are not expected to treat real life cases as completely intellectual exerciseswhere no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof,especially for cases based largely upon circumstantial evidence, but it does not demand certainty.

I am satisfied that the guilt of theAccused is the only reasonable conclusion available on the totality of the evidence adduced at this trial. Here, proof of the offences,except as noted below, has been proven by the Crown beyond a reasonable doubt. In particular, I find that the Accused has been provenguilty beyond a reasonable doubt of robbery while armed with an offensive weapon, that is a knife, contrary to

section 343(

d) of theCriminal Code. [84] I note, however, that Ms. Mulrooney testified that although she saw the perpetrator brandish a knife, she did not see a hammer.Count 3 charges that the Accused “… did unlawfully have in his possession, a weapon or imitation thereof, to wit: a hammer, for apurpose dangerous to the public peace thereby committing an offence contrary to section 88(1)-88(2) of the Criminal Code.” In R. v.Chalifoux (1973), (BC CA), 14 C.C.C. (2d) 526, 24 C.R.N.S. 314 (B.C.C.A.), it was held that a weapon for thesepurposes of the Criminal Code may be: (

a) anything designed to be used as a weapon; (

b) anything that a person uses as a weapon,whether or not that thing is designed as a weapon; or (

c) anything that a person intends to use as a weapon regardless of its design. [85] Although the security video shows that the Accused carried a hammer during the commission of the robbery, it was set on thefloor as he rifled through the cigarette display. Why the Accused carried a hammer when he was already armed with a knife, we do notknow – perhaps it was to break into a till or cigarette display case if locked. A hammer is not an item that is designed to be used as aweapon, although we know that it can be used as such. Nevertheless, there was no evidence that the hammer was used as a weapon inthis case.

Therefore, the Accused will be acquitted on Count 3. [86] Consequently, upon consideration of all of the evidence, I find that while brandishing a knife as a weapon, and with his facemasked for that purpose, the Accused robbed money and goods from the Store to a value of $1,627.67. I am therefore satisfied that theCrown has proven the guilt of the Accused beyond a reasonable doubt on: Count 1- robbery of monies and goods from Marie’s Mini Mart thereby committing an indictable offence contrary to

section 343-344(1)of the Criminal Code. Count 2 - unlawfully having in his possession, a knife, for a purpose dangerous to the public peace thereby committing an offencecontrary to section 88(1)-88(2) of the Criminal Code. Count 4 – with intent to commit an indictable offence having his face masked thereby committing an indictable offence contrary tosection 351(2) of the Criminal Code.

Kienapple Principle [87] The Kienapple principle is also known as the rule against multiple convictions (from the decision in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524). It “proposes that an individual should not be subjected to more than oneconviction arising out of the same ‘cause or matter’ or the same ‘delict’, consisting of a single criminal act committed in circumstanceswhere the offences alleged are comprised of the same or substantially the same facts and elements” (see Jordan, “Application andLimitations of the Rule Prohibiting Multiple Convictions: Kienapple v. The Queen to R. v.

Prince” (1985) 14 Man. L.J. 341). [88] Here the essential elements of possession of the knife for a purpose dangerous to the public have been proven by the Crownbeyond a reasonable doubt. As I found above, the Accused brandished the knife in the course of the robbery of the Store. This issufficient for a finding of guilt on Count 2. It also creates a common factual nexus between this charge and the armed robbery charge. [89] But, a common factual nexus between the two charges is not sufficient on its own to invoke Kienapple. As stated by Dickson,C.J.C. in R. v.

Prince, (SCC), [1986] 2 S.C.R. 480, [1987] 1 W.W.R. 1, at paragraph 26: 26. In my opinion, the application of Kienapple is not so easily triggered. Once it has been established that there is a sufficient factualnexus between the charges, it remains to determine whether there is an adequate relationship between the offences themselves. Therequirement of an adequate legal nexus is apparent from the use by the majority in Kienapple of the words "cause", "matter" or "delict"in lieu of "act" or "transaction" in defining the principle articulated in that case.

More telling is the fact that Laskin J. went toconsiderable pains to discuss the legislative history of rape and carnal knowledge of a female under 14 years and to conclude that theoffences were perceived as alternative charges when there was non-consensual intercourse with a female under 14.

I am not prepared toregard Laskin J.'s analysis in this regard as unnecessary or irrelevant to the outcome in Kienapple, which it would of course be if the ruleagainst multiple convictions applied whenever there was a sufficient factual nexus between the charges. [90] The Kienapple principle has been applied in cases such as this, with Prince being an example. As stated by the Chief Justice atparagraph 37: 37 … For example, in R. v.

Loyer, (SCC), [1978] 2 S.C.R. 631, 3 C.R. (3d) 105, 40 C.C.C. (2d) 291, 85 D.L.R. (3d)101, 21 N.R. 181 [Que.], Kienapple was applied to bar convictions for possession of a weapon for the purpose of committing an offencewhen convictions were entered for the more serious offence of attempted armed robbery by use of a knife. Although the robbery chargescontained the element of theft which distinguished them from the weapons charges, there were no elements in the weapons chargeswhich were additional to or distinct from those in the robbery charges.

Accordingly, it was appropriate for the court to apply Kienappleto bar convictions on the lesser weapons charges rather than on the robbery charges. (See also R. v. Krug, (SCC), [1985] 2 S.C.R. 255, 11 O.A.C. 187, at paragraphs 31 to 37.). [91] The weapons’ charge here contains no elements not contained in the offence of armed robbery. Here, there was one criminalevent from the time the Accused entered the Store brandishing the knife until he left after robbing it.

The very purpose for which theAccused was in possession of the knife was to rob the Store while brandishing that weapon – at least, the Crown has not established thatthe Accused was in possession of the knife for any other purpose dangerous to the public peace. Consequently, because he has beenfound guilty of committing an armed robbery by using the knife as a weapon, I am satisfied that the two offences arise out ofsubstantially the same set of circumstances and consist of substantially the same elements. I therefore conclude that substantially thesame "delict" is at the heart of both offences (see, R. v.

Briscoe (1992), (BC CA), 17 B.C.A.C. 302, 17 W.C.B. (2d)345). [92] Consequently, I order that the conviction on the lesser of the two offenses, possession of a weapon for a purpose dangerous tothe public peace under Count 2, be conditionally stayed. dispostion [93] The Accused is convicted on Counts 1 and 4. A conditional stay is entered on Count 2. He is acquitted on Count 3. [94] We will now set a date for sentencing. I order that a pre-sentence report be prepared and provided to the Court prior to thesentencing hearing. _____________________________ Robert P. Stack Justice