Her Majesty the Queen - v. -, 2017 SKPC 26

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 026 Date: March 10, 2017 Information: 90124856 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Troy Mamchur Appearing: Andrew Wyatt For the Crown George Combe For the Accused DECI S ION B. KLAUSE , J [ 1 ] Troy Mamchur is charged that he, on or about August 25, 2016, at or near Yorkton in the Province of Saskatchewan did: 1. Break and enter a business premise in Yorkton locally known as Scoops; 2. Attempt to rob someone at the same premise; and 3. Wear a mask while committing these offences.

[ 2 ] The matter proceeded to trial with the Crown calling nine witnesses. The parties advised at the outset that the only real issue was the identification of the accused. [ 3 ] The accused has been on remand since the date of the offence. The Case for the Crown [ 4 ] Justin Schier is an acquaintance of the accused. On the evening in question he was with the accused outside a local drinking establishment in Yorkton known as the CI. He saw the accused leave the bar heading west towards Myrtle Avenue.

Although he did not see where the accused was going, the accused said he would be back in ten minutes. [ 5 ] Gary Cross was also at the bar that night. He also saw the accused leave and heard him say “back in 15 minutes.” He did not observe the accused return but did see the police show up at the bar within ten minutes. He was unable to say how much alcohol the accused had consumed but did see the accused paying for his drinks with money. [ 6 ] Chris Glasgow was the DJ at the bar that night and saw the accused talking to other patrons about a car parked near the bar.

He indicated that the accused seemed “more flamboyant” than normal that night. He did not see what the accused had to drink but heard the accused talking with his girlfriend Amber about needing more money. [ 7 ] The above three individuals all identified the accused in court and knew who he was. [ 8 ] Pamela Musqua was walking from the laundromat across the street from an ice cream shop called Scoops when she heard yelling and saw a male walking towards Scoops. He was wearing a hoodie over his head with black squiggly lines on the fabric.

She attended to Scoops and talked to the owner who advised her that she had just been robbed. A few minutes later, a male walked by and seemed to be listening in on their conversation, which she felt was odd. The owner said “that’s him” referring to the person walking by. Ms. Musqua described the male as having a medium build and wearing khaki short pants just past his knees. She did not notice his face. [ 9 ] Ms. Musqua thought the second male was the same male she had seen earlier walking towards Scoops because they were both wearing the same khaki shorts.

On the second sighting, she saw the accused leave and head north to Myrtle Avenue behind Scoops. She later saw him at CI when the police were arresting him and placing him in their vehicle. In short she recognized his build, his pants and his hoodie. She had no doubt it was him. [ 10 ] During cross-examination, Ms. Musqua agreed that on the second sighting the accused had his hood down and that he stared at her intently as she was at Scoops talking to the complainant. She did not recall seeing any tattoos on the individual.

During redirect, she changed her testimony and said that the accused was wearing a black shirt and khaki shorts on the second sighting. [ 11 ] She did not make an in-court identification. [ 12 ] Nicole Roy was the complainant. She is the part owner of Scoops and was just closing for the day at around 10 p.m. when a lone male walked into the private area of the store and stated, “Put all your money in a bag. They have insurance, it doesn’t matter.” She was alone. She looked down at her counter, grabbed a pair of scissors and told the man to get out of her store.

He left and ran towards the “Farrell building” on the corner. She remained in the store, locked the door and subsequently spoke with Ms. Musqua. She described the robber as quite big, Caucasian, as tall as her, muscular, wearing a white hoodie with graphics pulled over his head, and a tea towel over

his face. He wore light coloured cargo khaki shorts down to his knees and black sandals with a strap over the foot. As the tea towel was over his face, she could only see his face above his nose. [ 13 ] A short time later, a man appeared walking along Broadway and approached her store. According to her, he stared intently at her and Ms. Musqua and then left the scene. He was not wearing a hoodie or a tea towel but was wearing the same khaki shorts, a muscle shirt and the same type of shoes. He had the same build and the same eyes.

She did not notice any tattoos on the man during either the first or second sighting. She was certain he was the same man who had robbed her. She called the police again and told them that the man was heading to the CI and within minutes the area was swarming with police officers. The accused, Mr. Mamchur, was arrested at the CI.

She did not know the accused and had never met him prior to this incident. [ 14 ] She subsequently attended his bail hearing and later identified him in court at his trial saying she would always recall his “piercing eyes.” [ 15 ] During cross-examination, she agreed that she had seen him for a very short period of time, namely “a couple of minutes.” She had not noticed hairy legs or tattoos on him but he was now wearing a black baseball hat and a muscle shirt. She agreed that she based her identification on his body build, manner of walk, shoes, clothes and demeanour.

She did not notice any odour from this individual, the suggestion being that she might have smelled alcohol as Mr. Mamchur had been drinking for a considerable period of time prior to the incident. She attributed the lack of odour to a tea towel being over his face. [ 16 ] Cst. Joquette was called to the scene and was advised he was looking for a tall male, weighing 200 lbs, wearing a white and blue hoodie. He called for the police service dog to attend. Ten minutes later they received another call indicating the robber had reappeared and was heading to the CI parking lot.

He arrived and observed the accused in custody and being taken to detention. The accused had said that he had been at Duncan’s Fitness, which is located a block west of Scoops. A dog track was commenced from Scoops which led to behind the Farrell building where a hoodie matching the description given by the witness was found together with a ball cap, tea towel and knife. Unfortunately, no further dog tracking was completed. [ 17 ] Cst. Letson attended the scene and participated in the arrest of the accused. No one else matching the description was located in the vicinity. [ 18 ] Cst.

Lafferty also participated in the arrest. He described the accused as upset, but not confrontational. He testified that the accused later wanted medical treatment. He was wearing khaki shorts, a muscle shirt and flip flops. [ 19 ] Cst. McDonald also attended to a complaint of a robbery by a six foot tall male, weighing 200 lbs, wearing a blue and white hoodie, shorts, and flips flops. She recognized the individual in police custody as the accused Mamchur and he appeared upset. She also dealt with the accused’s girlfriend, Amber Lang, at the scene and described her as intoxicated.

Of note, she testified that the accused had asked her, “What did the lady say?” At no time had she advised the accused that the complainant was a woman. No money was found on him and he remained very agitated. She testified that upon arrest he was wearing a black muscle shirt, khaki cargo shorts, flip flops and a baseball cap. The footwear was of the “strap between the toe” variety as opposed to having a strap over top of the foot.

During cross-examination, she agreed that no fingerprints had been found or perhaps had even been checked for and that no DNA analysis was available for the Court although there was some suggestion that it was in progress. Defence [ 20 ] The defence called two witnesses: his girlfriend and the accused. [ 21 ] Amber Lang was dating the accused at the time. She said that on the evening in question, they had been drinking at more than one bar. It was hot so the accused was wearing a muscle shirt and shorts. He left the group to either go to the bathroom or to get more money and left out the back door.

He was gone for a maximum of ten or fifteen minutes. [ 22 ] The accused testified on his own behalf. He indicated that he was not short of money and had savings upon which to draw. On the day in question he was wearing a muscle shirt and white sandals with black soles. He has a full sleeve of tattoos covering his left arm and other tattoos, including some on the right upper arm. He went outside to have a smoke and then decided to head to the gym where he might possibly meet a previous acquaintance and buy some marijuana.

[23] He went to the gym located to the west of both the Farrell building and Scoops. He came back via Broadway and noticed twowomen at Scoops staring at him intently. During his testimony, he denied owning the hoodie in question and denied ever wearing it butoffered an opinion as to whom it might belong. He was going back to his car to put the drugs in it but was accosted by the police. Hetherefore decided to swallow the marijuana as he did not want to be arrested in possession of it. In reference to the “lady” comment, heknew that the women were staring at him as he walked right by them.

He advised that the late disclosure about his drug purchase wasbecause he did not want to get his friend, the drug dealer, in trouble with the police. He did, however, admit to swallowing the marijuana. [24] In short, the accused completely denied any involvement with any robbery on the night in question and insisted that this was acase of mistaken identity. Argument [25] The defence argues that identification is critical to the disposition of this case and there simply is insufficient evidence ofidentification upon which to found a conviction.

He points out several cases from the Ontario Court of Appeal referencing “fleetingglance identifications” made under duress and in extremely troublesome situations: R v Goran, 2008 ONCA 195, 100 WCB (2d) 41; R vVirgo, 2016 ONCA 792, 134 WCB (2d) 317; R v Tat, (ON CA), [1997] OJ No 3579, 117 CCC (3d) 481. [26] He points out that this accused was unknown to the complainant who saw the robber very briefly in the context of a stressfulsituation while he had a hoodie over his head and a tea towel over the bottom half of his face.

There is no confirmatory evidenceprovided by way of a canine track, DNA or fingerprints. [27] He quotes from R v Hibbert, 2002 SCC 39, [2002] 2 SCR 445, for support that in-dock identification is of negligible value,referencing Ms. Roy’s identification of the accused in court during his bail hearing. The accused denied he was the robber and despite alengthy and vigorous cross-examination, he maintained his innocence. [28] The Crown argues that the accused is caught in a web of lies and has lied to the police about his involvement with drugs thatnight and that the focus of the Court should be on identification.

The complainant identified the accused mere minutes after the robberyand did not need a close up view of his face. The Crown submits that Ms. Roy was an excellent witness who indicated that the robberwas a muscular male wearing khaki shorts and was the same height as the accused. He acknowledges a disagreement in the evidence onwhat footwear the accused was wearing. [29] He submits that the police did an almost immediate sweep of the area and found no one else matching that description and heurges the court to consider all the relevant evidence as a whole and not parse it out.

In support of this proposition he quotes from R vMcKay, 2017 SKCA 4, 2017 CarswellSask 25 (WL) [McKay], a recent decision from our Court of Appeal. He points out that the accusedasked Cst. McDonald, “What did the lady say?” and submits that this is proof that he had just committed the robbery as how else wouldhe know that the complainant was a woman. Decision [30] The Court is well aware of the dangers of eyewitness identification and the need for strict vigilance.

I must also consider theevidence of the accused in the context of the R v W(D), (SCC), [1991] 1 SCR 742, 63 CCC (3d) 397 [WD] and R vMcKenzie (1996), (SK CA), 106 CCC (3d) 1 (SKCA) [McKenzie]. [31] I am certain that the individual who was arrested at the bar and charged with robbery is the accused Troy Mamchur. Mr.Mamchur is also the individual who walked past the ice cream shop and who stared at the women staring back at him while on his wayback to his friends at the CI.

The evidence from the Crown and defence totally support this conclusion. [32] The evidence which I accept further supports the conclusion that Mr. Mamchur was at the bar on the evening in question and wasdrinking with his girlfriend Amber Lang and other individuals who the Crown called as witnesses. I also accept the evidence of both thedefence and Crown witnesses that at a point in time relatively close to the time of the incident, Mamchur left the bar and walked in thegeneral direction of Scoops. At that time, he was not wearing a hoodie or a tea towel but was wearing khaki cargo shorts and a muscle

shirt. He may also have been wearing a baseball cap. [ 33 ] The Crown would therefore like me to infer that he went to his car, grabbed a hoodie and a tea towel, walked to the ice cream store, held it up, and then fled the scene pursued by the complainant wielding a pair of scissors. He then ran to the Farrell building, took off the hoodie, tea towel, ballcap and dropped the knife. He then left them hidden in some brush, looped around the building, walked back to Broadway from behind that building, and returned to the scene of the crime. He stared at the complainant and Ms.

Musqua and then walked back to the bar to join his friends. [ 34 ] The accused denies that happened. He insists that he walked to the gym parking lot west of the Farrell building in an effort to purchase more drugs for the evening. He denies robbing the store or owning a hoodie of that description. He states that he bought drugs from “Vince”, a drug dealing friend, in the parking lot. He walked by Scoops on his way back to his friends and noticed both women staring at him intently. He attributed this to his muscular physique.

He kept on walking as he wanted to place the recently purchased illegal drugs in his car. He insists that he did not tell the police about this as he did not want to admit he had purchased drugs or give up his dealer’s name. He says he asked Cst. McDonald, “What did the ladies say?” as he knew that these two women had just been staring at him intently and had perhaps complained about him. [ 35 ] He swallowed the drugs as he did not want to be found in possession of it.

This explanation is somewhat corroborated by his request later at the police station for medical attention due to the drugs he had ingested. [ 36 ] In my opinion, the only useful evidence of identification comes from the complainant Ms. Roy. I believe that all the Crown witnesses testified honestly and to the best of their recollection. [ 37 ] Ms. Musqua, in particular, is to be commended for her honesty and for the fact that she went to the aid of Ms. Roy. However, her descriptors of the person who robbed the store did not really advance the Crown’s case as to the identification of Mamchur as being the robber.

She never did identify Mamchur as being the robber except to say that she thought the person she saw at the store staring at her and Ms. Roy was the same person she had seen earlier wearing the hoodie and that this was the person who was subsequently arrested by the police at the CI. Her descriptors were considerably more vague than those of Ms. Roy. [ 38 ] Ms. Roy did not know the accused, had never seen him before and on the evening in question observed an individual in her store for something substantially less than two minutes in what was a very stressful and compromising situation.

In her evidence she testified that the robber walked into the private kitchen portion of the business and said “Put all your money in a bag. They have insurance, it doesn’t matter.” It would not take two minutes to say those few words. [ 39 ] She promptly grabbed a pair of scissors and chased him out of the store and locked the door. In her evidence, she makes no mention of seeing any tattoos, yet the accused has tattoos on his upper left arm, which she would not have been able to see, and on his legs, which would have been visible.

The only connection she can make between the robber and the accused, who walked past the store minutes later, is that he had the same muscular build, was wearing cargo shorts and had a piercing gaze, which she recognized when she subsequently saw him at his bail hearing. [ 40 ] It is entirely possible that she based her in-court identification, in part, on what she saw at the bail hearing. It is not unusual for witnesses to firmly believe that they have made a proper identification that is later proven to be completely wrong.

Victims typically want to believe that the right person has been arrested so that they can sleep at night. It is a very normal human reaction. [ 41 ] In coming to this conclusion, I recognize that as the Court of Appeal has directed in McKay that I must look at all the evidence as a whole. I recognize that Mr. Mamchur fits the loose description offered by the complainant and he was certainly found wearing khaki shorts. However, he was not found wearing a very distinctive hoodie or carrying or wearing a tea towel.

In short, unlike in McKay , he was not arrested in the same clothes that the robber was wearing. [ 42 ] There is nothing in the evidence to link the accused Mamchur to the hoodie, cap, tea towel and knife found in the bush behind the Farrell building. When arrested, he was wearing khaki shorts and a muscle shirt. Admittedly, he could have discarded the other clothing behind the Farrell building in an effort to ditch it and then walked back around that building and back to the scene of the crime. It would be somewhat unusual, in my experience, for a robber to re-attend the scene of the crime so quickly.

It would be either incredibly foolish or risky, or perhaps just brazen.

[43] Most accused robbers in this position would be more apt to ditch the identifiable clothing and leave the scene knowing thatthe police would shortly flood the area to look for a male in a white hoodie with black lines. It is equally implausible that a person wouldleave his girlfriend and drinking buddies for 15 minutes, excuse himself, walk a hundred meters to a small town ice cream store, rob itand then come back and resume his evening. [44] The canine unit tracked the robber from the store to the site of the clothing. No further tracking was undertaken from the pointwhere the clothes were discovered.

If the track had been continued and had led back around the store to Scoops and the accused, in myopinion, that would have completely closed the circle of identification. For whatever reason, and I am not ascribing fault to anyone, itwas not done. [45] Although there was some mention that a DNA profile was found on one of the items, for reasons unknown to the Court there wasno DNA evidence available to the Crown at the time of trial. Additionally, it seems odd that this accused would stash his hat there andthen be arrested wearing another hat.

The only conclusion I can draw is that perhaps the hat found in the bushes next to the hoodie andtea towel is totally unrelated to this case. [46] There is also the matter of the discrepancy in the description of his footwear. The accused stated that he was wearing flip flopsandals, i.e. the type where the strap is between two toes, and when arrested he was wearing flip flop sandals.

The complainant was surethe robber was wearing strap sandals over the foot or as she described it, “black over the foot sandals.” It is difficult for me to understandwhen he could have changed footwear since no other footwear was apparently found in the bush with the other articles. [47] Although the accused’s explanations are in some respects troubling, they are not beyond the realm of possibility. I note for therecord that he has been on remand since the date of this occurrence and one cannot fault him for being upset and frustrated on thewitness stand after waiting so long to be heard.

It would be a logical reaction for most people to experience. [48] The leading case in this area on the burden of proof is W.D., cited above. At pgs. 757-8 (SCR) of the judgment per Cory, J.: 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. Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trialjudge 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.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [Underline in original] [49] This principle was embraced and expanded by the British Columbia Court of Appeal in R v C.W.H. (1991), (BC CA), 68 CCC (3d) 146 [C.W.H.].

Wood, J.A. delivered the judgment of the Court and at p. 155 quoted the above paragraph fromW.D. and added the following condition:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful considerationof all the evidence, you are unable to decide whom to believe, you must acquit. [50] Ultimately the Saskatchewan Court of Appeal dealt with the same issue in McKenzie and combined C.W.H. with W.D. to arrive atthe following instruction to the trier of fact per Tallis, J.A. at pg. 5 (CCC): Given the conflicting versions presented in the testimony placed before the jury, it was essential for the trial judge to adequately instructthe jury on this aspect of the case.

While it is not necessary to adopt any particular form of language, I find the following passages in R.v. Rose (unreported, B.C.C.A., November 12, 1992) [(1992) (BC CA), 20 BCAC 7] to be instructive and useful: For these reasons it was vital that the learned trial judge clearly instruct the jurors, if they preferred the evidence of Ms. Kelly over thatof the appellant, as they obviously did, that they were nevertheless required to acquit the appellant if they had a reasonable doubt abouthis guilt after weighing her evidence along with all the other evidence.

In fact, both the Supreme Court of Canada and this court have recently considered this question, and suggestions have been made aboutwhat must be included in the charge to the jury: R v W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.); and R v C.W.H.(1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.). What follows is a composite of the instructions given in those twocases. The first, third and fourth instructions come from the judgment of Cory J., who gave the majority judgment in R v W.(D.) at p.409.

The second instruction is suggested by Wood J.A., who gave the judgment of this Court in R v C.W.H., at p. 155: First, if you believe the accused, obviously you must acquit; Secondly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [51] In my opinion, I am at stage three of the above test.

I do not necessarily believe everything the accused has said but I am left witha reasonable doubt as to whether or not he was the person who committed the robbery at Scoops. [52] Even if I were to entirely disbelieve the evidence of the accused, I would still have to go to stage four of the W.D. test and wouldbe forced to conclude that on the basis of the Crown evidence I am not convinced beyond a reasonable doubt of the guilt of the accused.

In my opinion, the identification is simply too frail to meet the standard of proof that the case law requires. [53] I therefore dismiss the Information against the accused and find him not guilty of all counts. ___________________ Klause, J.