Her Majesty the Queen - v. -, 2015 SKPC 43

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 043 Date: April 1, 2015 Information: 24456778 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Claude Joseph Langlois Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Ms. Christa Weber For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, Claude Joseph Langlois is charged with breaking and entering a garage and committing therein the indictable offence of theft over $5,000.00. He is also charged with theft under $5,000.00.

On the first charge, the Crown elected to proceed summarily. Not guilty pleas were entered on both counts. The Crown’s case is circumstantial, and the accused did not testify. The case involves the possible application of the rule in Hodge ’s case and a determination as to whether the Crown has proved the charge beyond a reasonable doubt.

THE EVIDENCE [ 2 ] The first witness was Mr. Robert MacLachlan. He resides at 503 Tatanka Drive on Buffalo Pound Lake, approximately 20 minutes from Moose Jaw. At this residence, he had a house, with a detached garage. In the detached garage he had a John Deere Gator. He described it as a larger all-terrain vehicle. He placed a value on it of $12,000.00 to $14,000.00.

Not in the garage, but parked elsewhere on the property he had a 12 foot by six foot flatbed utility trailer, valued under $5,000.00. [ 3 ] He testified that he was at this property until Thursday, October 9, 2014, being the Thursday immediately prior to the Thanksgiving Day weekend. On that Thursday, he travelled to Alberta to be there for the weekend. He left the Gator in the garage, which was not locked, and left the flatbed utility trailer on the property. He testified that he was gone to Alberta for the weekend, and returned to this home on Tuesday, October 14. [ 4 ] Mr.

MacLachlan testified that he had a number of business dealings, concerning purchase of machinery for his farming business, with Mr. Richard Kurz, a salesman employed at the John Deere dealership in Central Butte, Saskatchewan. Mr. MacLachlan said that he wanted to put a blade on his Gator. When he ascertained that he could not do that, he advised Mr. Kurz that he might be interested in selling the Gator, if the opportunity arose. [ 5 ] Mr.

MacLachlan testified that at about 1:30 in the afternoon on October 13, just as he was arriving at his in-laws in Claresholm, Alberta, he received a telephone call on his cell phone. He recognized the phone number as a Central Butte number. He answered the call and a male identified himself as Mike. This person said that he had spoken to Richie Kurz, and was calling about the Gator for sale. He was interested in the Gator, and wanted to have a look at it. Mr. MacLachlan advised that the Gator wasn’t at Central Butte, and that Mr. MacLachlan would not be home in Saskatchewan until the following day.

The caller insisted that he really wanted to have a look at it. Finally, Mr. MacLachlan volunteered that the Gator was at his home at Buffalo Pound Lake. He provided the caller with the address, 503 Tatanka Drive, and advised that the Gator was in the unlocked garage. [ 6 ] The next day, Mr. MacLachlan returned home and fairly quickly ascertained that both his Gator and utility trailer were gone. His cell phone retained the number from where Mr. MacLachlan was called the day before. He called the number and ascertained that the call came from the Central Butte gas bar.

Further, that no person named Mike worked at the Central Butte gas bar. No one knew who made the call. [ 7 ] Mr. MacLachlan testified that he gave no one any permission to take the Gator or the trailer, and that neither of these items have ever been recovered. [ 8 ] The second witness was Mr. Kenneth Kines. He testified that he lives at 507 Tatanka Drive on Buffalo Pound Lake, which is next door to Mr. MacLachlan. He said that on October 13, at approximately 6:00 to 7:00 p.m., he was out walking his dog. It was dusk. At that time, he saw a truck in the driveway of Mr. MacLachlan’s property.

The garage door was open, and he could see the Gator in the garage. However no lights were on in Mr. MacLachlan’s residence. He advised that he did not see anybody else on or about the property. He described the truck as a smaller truck, Sonoma style. He said it was a darker colour. He said it had a matching cap or fibreglass topper mounted on the box. He didn’t note any licence plate number for the truck. [ 9 ] The next witness was Mr. Richard Kurz. Mr. Kurz testified that he is a salesman at the John Deere dealership in Central Butte, Saskatchewan. Mr. MacLachlan is one of his clients.

I gather that over time, he has sold a number of items to Mr. MacLachlan. He recalled that some time prior to the Thanksgiving Day weekend, Mr. MacLachlan advised that he might be interested in selling the Gator. Mr. Kurz advised there is a formal consignment procedure that could be used. However, he and Mr. MacLachlan did not prepare or execute any formal documents regarding a consignment. [ 10 ] On October 13, 2014, Thanksgiving Day, the dealership was not open. However, Mr. Kurz had to move a combine, and was

waiting for a trucker to arrive to do that. He was sitting in his vehicle behind the dealership, having a sandwich, when a truck drove up and stopped. Two guys got out. They looked at some equipment, including Gators and a quad and asked a number of questions of Mr. Kurz. [ 11 ] He said one guy was shorter and thinner, with glasses. This individual would later be identified as the accused, Claude Langlois. The other individual was older, taller and heavier. Mr. Kurz said the shorter guy was friendly and interested. He did most of the talking and asked most of the questions.

Finally, the younger fellow asked about a used Gator. Mr. Kurz advised this fellow that Mr. MacLachlan might be interested in selling. Mr. Kurz provided the individual with one of his business cards and on the back of that card wrote Mr. MacLachlan’s name and cell phone number. Shortly after that, the two individuals got back into their truck and left. Mr. Kurz testified that the truck was a greenish blue mid-sized truck with a topper or cap on it. Mr. Kurz also said that the Co-op gas bar is about a block from the John Deere dealership.

He was not able to identify anyone in the courtroom as being present on that day. [ 12 ] The next witness was Ms. M.J. Marks. She works at the Central Butte Co-op gas bar, and worked there on October 13, 2014. She recalled that a fellow came in and asked to use the phone to make a call to look at a quad. She was able to describe the individual and identify that individual as the accused, Claude Langlois. She said she was not comfortable taking the accused into the office to use the phone there, but did allow him to use the phone behind the counter, where the cash register is located.

The accused went behind the counter, dialled the phone, and spoke to someone for a number of minutes. She heard bits and pieces of one side of the conversation. For example, she heard the accused say he wanted to drive out and have a look at it. She heard discussion of a number of streets. She didn’t know where those streets were located but a co-worker advised it was at Buffalo Pound. [ 13 ] The next witness called was Mr. Steven Milne. He testified that he is an employee at the Central Butte Co-op gas bar, but was not working at the gas bar on Thanksgiving Day.

He went to the gas bar to purchase gas, and of course went inside to pay. While he was at the counter, an individual was behind the counter speaking on the telephone. He was able to identify that individual as the accused, Claude Langlois. Mr. Milne testified that at this time he was standing approximately five feet from the accused. He heard bits and pieces of one side of the telephone conversation. It was apparent that Mr. Langlois wanted to see something. He heard an address being given. That address was for a residence on Tatanka Drive. The only Tatanka Drive that Mr.

Milne was familiar with was the one at Buffalo Pound Lake. [ 14 ] The last witness called was Cst. Keith Hill of the Moose Jaw RCMP. He testified that he received the complaint at about 10:30 a.m. on October 15, 2014. He went to the Central Butte Co-op gas bar to investigate. He ascertained that they had three video cameras stationed at the gas bar, which continuously record events. They made a copy DVD that recorded events at the gas bar for a period of approximately eight minutes, from 1331 to 1339 hours on October 13, 2014. That DVD was entered as an exhibit and was played for the Court.

In the first video, one can see a blue truck drive up to the gas bar. It is a smaller blue truck with a matching topper. One can see an individual wearing red and black exit the vehicle and enter the gas bar. Cst. Hill testified this was the accused, Claude Langlois. One can also see that the truck bears Saskatchewan licence plate 891 JJD. Cst. Hill testified that he used the SGI registry system and ascertained that this was a 1995 GMC Sonoma vehicle registered to a Mr. Tyler Wahpooseyan. [ 15 ] The second video camera is stationed in the store and shows the front door and cashier area.

On this video one can see the accused enter the gas bar store, approach the till, and then go behind the till. The third video shows the area behind the till. One can clearly see the accused go behind the till to the phone, and then make a phone call. One can clearly see the accused holding what appears to be a business card and reading off that card as he makes the phone call. The accused is on the phone for a number of minutes before the call is concluded. When the call is concluded, he hangs up the phone, goes around to the other side of the counter, concludes a purchase and leaves the store. [ 16 ] Cst.

Hill testified that for some period of time following October 13, the police had sporadic surveillance upon Mr. Langlois and upon his residence at 323 Chester Road in Moose Jaw. He testified that he never saw Mr. Langlois drive the Sonoma vehicle. However, it was for a significant period of time parked at the accused’s residence at 323 Chester Road. Cst. Hill testified that the Gator and trailer have never been located. [ 17 ] Lastly, defence counsel admitted as a fact that the accused Claude Langlois and another, Mr.

Eklund, were together at the John Deere dealership in Central Butte on October 13, and that they are the individuals shown on the videos from the Central Butte Co- op gas bar, which have been entered in evidence. THE LAW REGARDING CIRCUMSTANTIAL EVIDENCE AND PROOF BEYOND A REASONABLE DOUBT

[18] Both counsel referred to the rule in Hodge’s case and some further decisions elaborating on the law in a case of circumstantialevidence. The ultimate issue here is whether the Crown has proven its case beyond a reasonable doubt. [19] The rule in Hodge’s case is stated as a long settled rule of common law.

The rule is that before an individual is found guiltyon the basis of circumstantial evidence, the Court must be satisfied not only that the circumstances are consistent with a conclusion thatthe criminal act was committed by the accused, but also that the facts are such as to be inconsistent with any other rational conclusionthan that the accused is the guilty person. [20] I was referred to a number of cases and located a number of other Saskatchewan decisions that deal with this rule.

Thosedecisions are R v Linn, (SK CA), [1994] 116 Sask R 203 (CA); R v Munro, 2001 SKQB 138; R v Ahenakew, 2012SKPC 151; R v Getz, 2014 SKQB 105 and R v Chu, 2014 SKQB 414. The Getz and Chu decisions are particularly helpful in that theyset out a fairly comprehensive review of the case law.

I will not attempt a similar comprehensive review of that case law, but willattempt to distill and set forth the principles arrived at so that I can apply those same principles in this case. [21] Firstly, if the rule in Hodge’s case, as stated above, was ever a legal requirement of proof in circumstantial cases, that has nowchanged. Rather, in circumstantial cases as in all other cases, the Crown is required to prove the case beyond a reasonable doubt. Therule in Hodge’s case is but a restatement or elaboration of reasonable doubt in a case of circumstantial evidence. In the Chu case atparagraphs 25 and 26, Mr.

Justice Scherman put the matter this way: Thus, I conclude that while in a jury trial it may be appropriate to instruct the jury using the rule in Hodge’s case, the bottom line is thatthe rule is an alternate explanation of the concept of reasonable doubt. When I assess the circumstantial evidence here I must return to the core principles of the concept of reasonable doubt. The Defence’sproposition that “if there is an inference to be drawn other than the guilt of the accused, then the accused must be acquitted” should notbe interpreted as requiring the Crown to negative every possible conjecture.

My decision must be based on the totality of the evidence,and before I can convict I must be satisfied beyond a reasonable doubt that the only reasonable inference to be drawn from the provenfacts is that Christopher Chu is guilty as charged. [22] Secondly, in examining the circumstantial evidence, the Court should not examine each circumstance individually or inisolation. If that is done, individual circumstances may appear trivial or innocuous. Rather, the Court must examine the evidence as awhole. In the Chu decision, Mr.

Justice Scherman quotes paragraph 27 from R v Banovic, 2012 BCCA 471, as follows: It is clear that the circumstantial evidence does not have to establish the fact, but only “contribute [logically] to a finding about a materialfact” (Paccioco and Steusser at 29). It is also trite to say that the most innocuous piece of evidence may, when considered with the wholeof the evidence, lead to a logical inference (Paccioco and Steusser at 29). In R. v.

Stewart, (SCC), [1977] 2 S.C.R. 748,the Supreme Court of Canada reiterated the proposition that each piece of evidence is not to be analyzed separately, out of context withthe whole of the evidence (at 759). At 761, the Court quoted Côté v.

The King (1941), (SCC), 77 C.C.C. 75 (S.C.C.),which stated at 76: It may be, and such is often the case, that the facts proven by the Crown, examined separately have not a very strong probative value; butall the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that mayconstitute a proper basis for conviction. [23] Thirdly, and perhaps most importantly, the rule in Hodge’s case refers to the guilty verdict being inconsistent with any otherrational conclusion.

Any rational conclusion must be founded upon the facts in evidence and must not be based upon a conjecture orspeculation. In the Getz case, Mr. Justice Barrington-Foote quoted from R v Munro, paragraphs 13 and 14, as follows: ...The rule is simple to state, but more difficult to apply. It is important to bear in mind what is meant by a “reasonable conclusion” or a“rational explanation” as it is sometimes termed. It is trite law that the court, in applying Hodge’s Case rule, must differentiate between inference and conjecture. An inference is adeduction that is reasonably drawn from the evidence.

A conjecture is a speculation, albeit plausible, that is made without evidentiaryfoundation. The court is permitted to draw reasonable inferences from the proven facts and when it does, these inferences in turn become

facts. But the court is not permitted to indulge in speculation. Accordingly, speculation alone cannot constitute a “reasonable conclusion”or a “rational explanation” within the meaning of the Hodge’s Case rule. To put it another way, the Crown need not negate everypossible explanation or conjecture that might be consistent with the innocence of the accused unless it is based on some evidence beforethe court. [24] Fourthly, in determining whether a reasonable inference can be drawn from the facts, the Court is entitled to look at whetherthere is any explanation or evidence from the accused.

In the Ahenakew decision, his Honour Judge Kolenick relied upon the SupremeCourt of Canada in R v M.B.P., (SCC), [1994] 1 SCR 555 in stating that once the Crown has established a prima faciecase, an accused person may be expected to respond, and if there is no response, the Court is entitled to draw an adverse inference. DETERMINATION OF FACTS AND CONCLUSION [25] There can be no doubt that Robert MacLachlan was the lawful owner of the Gator and the flatbed trailer. Further, that he gaveno one authority to remove those items.

On the basis of the evidence of Kenneth Kines, I conclude that these items remained on Mr.MacLachlan’s property as late as the early evening hours of October 13. [26] There also can be no doubt that the accused and one Mr. Eklund stopped at the John Deere dealership in Central Butte, andapproached the salesman, Richard Kurz. At that time, the accused was driving a small blue truck with a matching fibreglass topper. Theaccused expressed an interest in a Gator and Mr. Kurz advised that Mr. MacLachlan may have one for sale. Further, Mr. Kurz provideda business card to the accused and on the back wrote Mr.

MacLachlan’s name and cell phone number. [27] There also can be no doubt that the accused and Mr. Eklund then drove to the Central Butte Co-op gas bar. At that time, theaccused entered the gas bar and used the phone to call Mr. MacLachlan. Mr. MacLachlan clearly testified that the accused identifiedhimself as Mike. I conclude that the accused was actively attempting to deceive Mr. MacLachlan and cover up his true identity. [28] There also can be no doubt that the accused pressed Mr. MacLachlan and indicated that he wanted to see the Gator that veryday. There can be no doubt that Mr.

MacLachlan advised the accused of his address and advised that the garage was open. [29] There also is no doubt that later that same evening a small darker coloured truck with a matching topper was in the drivewayof Mr. MacLachlan’s residence. [30] Two aspects of the closing argument are particularly interesting to me, and should be commented upon. Firstly, defencecounsel argued that there is nothing to link the truck in the driveway at Mr. MacLachlan’s residence to the accused. There is nothing tosay that the accused was at Mr. MacLachlan’s residence.

The best that the Court can conclude is that the truck was similar to one thatthe accused had earlier in the day. I disagree. If the only evidence was that the accused had a blue truck and a similar blue truck waslocated at this residence, then I would agree that she has a point. However, to reach this conclusion, I would have to consider only theevidence of the blue truck in the driveway, and disregard all of the other circumstantial evidence. The case law enunciated abovespecifically requires that I consider the totality of the evidence.

The totality of the evidence is that the accused made a phone call to Mr.MacLachlan and was deceptive. He pressed Mr. MacLachlan to see the vehicle. He said he wanted to see it on his way home. He gotan address for it. Later a very similar vehicle is seen in the driveway. I can draw no other conclusion from all of the evidence than thatthe accused got in his vehicle at the Co-op gas bar, and later drove to Mr. MacLachlan’s residence, at which time Mr. Kines spotted thatvehicle in Mr. MacLachlan’s driveway. [31] The second interesting aspect of argument involves an exchange between Mr. Hendrickson and myself.

I asked Mr.Hendrickson if a possible rational conclusion was that the accused went to Mr. MacLachlan’s property to view the Gator, just as hestated. Further, that having viewed the Gator, the accused closed the door and left, and sometime later that night the property wasstolen. Mr. Hendrickson told me that this would not be a rational conclusion and would be mere conjecture. There is no evidence tosupport this. Further, to assert this, I would have to conclude that Mr. Langlois was the most unlucky man alive.

He located and vieweda Gator that he was interested in, left, and before he could take any steps to make a purchase, all the property was stolen. In my view,Mr. Hendrickson has fairly and accurately stated the law and the conclusion that I must draw on this matter. There is no evidence thatthe accused went to Mr. MacLachlan’s property, viewed the Gator and left. Such a theory is conjecture and speculation. In addition, in

my view, the Crown has established a strong prima facie case. There is no evidence from the accused. I infer he took the goods from Mr. MacLachlan’s property. The Crown has proved its case beyond a reasonable doubt. [ 32 ] With respect to the first count, break and enter and commit theft, I would conclude that Mr. MacLachlan gave Mr. Langlois authority to enter the garage. As a result, I cannot convict Mr. Langlois of break and enter. I do find him guilty of the lesser and included offence of theft of the Gator. I also find Mr.

Langlois guilty of theft of the utility trailer. [ 33 ] I express my thanks to both counsel for a very interesting presentation of the case and argument. [ 34 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan this 1 st day of April 2015. D. Kovatch, J