Her Majesty the Queen ) ) Ms. L Standil, Ms. A. Wood, ) ) for the Crown - v. –, 2021 MBPC 8

Citation No. 2021 MBPC 8 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) ) Ms. L Standil, Ms. A. Wood, ) ) for the Crown - and – ) ) ) Charles BECKLEY, Ciceron BIAYA, Maracle TAMANA, Accuseds ) ) ) ) ) Mr. J. Mugerwa, Mr. A. Braun, Mr. A. Claros for the Accuseds ) Judgment delivered: February 12, 2021 ) RESTRICTION ON PUBLICATION: No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act. See the Youth Criminal Justice Act, s. 110(1). Mary Kate Harvie, P.J.

INTRODUCTION [ 1 ] These three accused are on trial as a result of an incident which occurred on October 21, 2019. The accused Biaya and Tamana face kidnapping, aggravated assault and robbery charges. All three accused are charged with unauthorized possession of a restricted weapon and unauthorized possession of a prohibited device arising from the search of a residence on Lee Boulevard where all three were arrested upon execution of a search warrant. A fourth accused was arrested but the charges against her were stayed at the conclusion of the trial. [ 2 ] The central witness in this case is the complainant C.

P. The various accused do not contest that C. P. somehow sustained a variety of injuries but deny being involved in the alleged kidnapping and assault. [ 3 ] To varying degrees, defence counsel take issue with both the credibility and the reliability of C.P.’s evidence. C.P. is an individual with a criminal record as a youth and admits to having been involved in the drug subculture including selling drugs to support himself. Crown counsel very fairly concedes that he is an unsavory witness, but argues that much of his evidence has been corroborated and therefore can be accepted.

I will address the concerns about his evidence and the test to be applied shortly. Suffice it to say I agree with counsel that his evidence must be approached with caution. THE APPLICABLE CASE LAW [ 4 ] While Beckley and Biaya chose not to testify or call evidence, the accused Tamana testified on his own behalf, denying involvement in the kidnapping, assault and robbery. He also denied knowing that the SKS rifle and the magazine were in his residence at the time the warrant was executed.

As such his evidence must be assessed in the context of the case as a whole through the application of the well recognized test articulated by the SCC in R. v. W.(D.) : • if his evidence raises a defence and is believed, an acquittal must be entered • if the totality of his evidence cannot be believed but nonetheless raises a reasonable doubt, an acquittal should be entered • even if his evidence is rejected, the Court must be satisfied that the prosecution has established all elements of each offence beyond a reasonable doubt.

[ 5 ] With respect to the remaining accused, the Court must assess all the evidence and must be satisfied that it established the guilt of each accused on each count beyond a reasonable doubt. Counsel for Biaya argues that the evidence fails to establish his involvement in the robbery, and in particular challenges the identity evidence implicating his client.

Biaya, Beckley and Tamana all argue that while the evidence suggests they lived at the Lee Boulevard residence, it fails to establish that any one of them were in actual, constructive or joint possession of the rifle or the magazine located. [ 6 ] Counsel acknowledge that the drum magazine seized from the residence pursuant to the search warrant meets the Criminal Code test for a prohibited device. They also admit that none of the accused were legally authorized to possess the weapon in question. It is also conceded that the injuries suffered by C.

P. meet the definition of an aggravated assault and that the allegations, if proven beyond a reasonable doubt, meet the definition of kidnapping and robbery. [ 7 ] I note that despite facing the same charges, the cases against Tamana and Biaya are significantly different, in particular given the role that eye witness identification plays in the case against Biaya.

I intend on addressing the eyewitness evidence after assessing the case involving Tamana. [ 8 ] As indicated, because the evidence of Tamana must be assessed in the context of the case as a whole, I will begin with an overview of the evidence of the complainant. THE EVIDENCE OF C. P. [ 9 ] C. P. testified that on the evening of October 20, 2019 he had been out with a friend at a Sushi restaurant in south Winnipeg. After they finished their meal, he left to go to a friend’s residence in the Bridgewater development of Winnipeg.

He says that while walking to that residence, a black Chrysler 200 pulled up and three males exited, one of whom was in possession of an SKS rifle. He says two of the three men began assaulting him while the third pointed the gun at him. He described being punched and kicked and had a number of items of clothing and jewellery stolen. After a relatively brief but serious assault, he was forced at gunpoint into the trunk of the vehicle. [ 10 ] He testified he was able to get the trunk open on two occasions. On the first occasion he saw that the vehicle was on the perimeter highway.

He was confronted by the driver who had the rifle, and as such he was unable to escape. But after the vehicle drove for some distance and stopped, he was able to open the trunk a second time, when he jumped out, falling and seriously injuring his wrist. He said he was chased by one of the occupants of the vehicle and stabbed in the back. He was able to get away and described running and hiding in the water of what he said was a nearby ditch. At that location it was very dark and when his assailants couldn’t find him after a brief search, they left. [ 11 ] C.

P. made his way to what he thought was a nearby automotive business, later determined to be closed. Because he was seriously injured, he broke into the building, thus setting off an alarm. He waited a few moments but when the police did not attend he stole one of the vehicles and drove himself to a friend’s residence. It was his friend who contacted 911 and advised that his friend had been assaulted. [ 12 ] Police and paramedics attended and he was eventually transported to the Health Sciences Centre where he eventually underwent surgery to his wrist.

It is agreed that he suffered a comminuted distal radius fracture to his left wrist, requiring surgery with two plates being inserted to reset the radius. He also suffered a two cm penetrating injury to his right posterior chest wall on the lower rib area which caused a small laceration to the kidney. He has had ongoing medical treatment as part of his recovery and he continues to suffer from the effects of the attack. The Identity Evidence- [ 13 ] C. P. remained hospitalized for a period of time, during which he made several statements to the police.

He was provided an opportunity to review several photo line-ups and identified Tamana (an individual he knew at the time as “Flex”). During the trial, he identified the accused Tamana as one of his assailants. [ 14 ] C. P. testified that the assailants were in a black Chrysler 200 which he recognized as having been previously operated by Flex. C. P. said that he had accompanied his friend Charles (not one of the accused) to the Lee Boulevard residence when Charles purchased marijuana from Flex, who had come to the door. At the time, the black Chrysler was in the driveway.

On two other occasions, he saw Flex getting into the vehicle and driving away. It is admitted that the Chrysler 200 was registered to Tamana’s girlfriend and that several documents bearing Tamana’s name were found inside the vehicle. [ 15 ] C. P. testified that on the night of the assault he recognized Flex from the times he and his friend Charles attended to the Lee Boulevard premise to buy marijuana. He gave a description of Flex which included, among other details, the following: black male with short hair, wearing “do-rag” a red “Balmain Paris” shirt. [ 16 ] C.

P. testified that he had limited dealings with Tamana prior to the attack and that there were no bad feelings or other motive for the attack, which he described as “random”. [ 17 ] For the purpose of this trial, at issue is the identity of Biaya as one of the assailants. C. P. said he had not seen these assailants before and gave what he agreed to be a very general description of the assailant the Crown says is Biaya as follows: Black male, short hair, beard, black clothing, Adidas pants. C. P. was shown a number of photo line ups.

In the first, he identified Tamana, as well as choosing an individual in photo #1 and then settling on the individual in photo #7 (neither were one of the accused Biaya). The next day, he was shown a second line up and chose the photo of Biaya, essentially asking that his choice of the photo of Biaya’s replace his photo #7 choice from the previous day. He was not asked to identify Biaya in court. [ 18 ] Another individual eventually identified by C. P. as being one of the three assailants, identified by the nickname “Rig” was

murdered a few weeks after this attack. It was after his murder that C. P. identified him to police. THE EXECUTION OF THE SEARCH WARRANT [ 19 ] As a result of information received from C. P., the Winnipeg Police Service (“WPS”) obtained and executed a search warrant on the Lee Boulevard townhouse. There is no issue as to the validity of the warrant.

As indicated earlier, all three accused as well as Tamana’s girlfriend were arrested at the residence. [ 20 ] Once the parties were removed, police conducted a cursory search of the residence to ensure no other people were present, after which a warrant was then obtained and executed. During the search of the residence, an SKS rifle was located in the third floor laundry room in a space between the appliances and the wall. The video and photographic evidence shows that when standing in the doorway of the laundry room and looking in, the rifle is not visible.

However, upon entering the laundry room the rifle can clearly be seen. [ 21 ] The evidence also shows that the accused Biaya and Beckley have bedrooms on the third floor of the townhouse in the immediate vicinity of the laundry room. Identification belonging to other individuals were also located in the bedrooms. [ 22 ] In the second floor living room area, police located a rifle case and a drum magazine compatible with an SKS rifle on the floor behind the sofa.

Although the residence was videotaped around the time of the search, it appears that the sofa had already been moved by police, making it difficult to determine the exact visibility of the gun case. The living room, and indeed the house as a whole, could most politely be described as being in a state of disarray, with clothing, food items and wrappers, liquor bottles, and other items seen strewn about the premise. THE EVIDENCE OF MARACLE TAMANA [ 23 ] It is against this backdrop that the evidence of the accused Tamana must be assessed.

Maracle Tamana testified that he met the complainant just over a month prior to being arrested in October, 2019. He testified that he met C. P. (who he knew as “Rico”) through their mutual friend Charles (not one of the accused). Unlike C. P., who limited their contact, he identified five separate occasions when their paths crossed. He testified that he had no reason to assault, kidnap or otherwise attack C.

P. and denied being involved in the incident. [ 24 ] Tamana confirmed that at the relevant time he lived at the Lee Boulevard townhouse with the accused Biaya and Beckley and that his girlfriend Gyawu lived elsewhere but would often stay with him. The male known as “Rig” had been looking for a place to stay and had moved in approximately two months before the incident. Tamana’s bedroom was located on the main floor and he testified that because it was relatively self contained, with its own sofa, fridge, TV and bed, he would spend most of his time in his room.

He said that he and his girlfriend were looking for their own place and were planning on moving out. [ 25 ] With respect to his interactions with C. P., he specifically described two occasions when he and C. P. (and others) drove in the Chrysler 200 - once when they went out to purchase food from McDonald’s and another occasion when he gave C. P. a ride when Tamana went out to purchase alcohol and C. P. was heading to a drug deal. What is significant is that on both those occasions Tamana says that C.

P. placed items in the trunk, thus affording him the opportunity to have seen the contents and to have left his DNA in the trunk. I note that these occasions were put to C. P. and he denied them both. [ 26 ] Specifically, with respect to the night of the alleged kidnapping, Tamana testified that after spending much of the day in his main floor bedroom, he was in bed with his girlfriend when, at approximately 12:30 a.m., he heard more than one person enter the Lee Boulevard townhouse and head to the second floor living room, located over his bedroom.

He was concerned that the noise would wake his girlfriend, and because he didn’t know who was there, he put on his red Balmain shirt and went upstairs to find C. P. and Rig in the living room. Both were agitated and Rig was taking pictures of Pereria posing with a wad of cash and the SKS rifle, talking of having just robbed someone. According to Tamana, they said they needed a place to “cool off”. He testified that he was upset with Rig, as this was not the type of activity he intended when he allowed Rig to move in. He also said that at that time C.

P. was living with their mutual friend Charles. [ 27 ] Tamana testified that he confronted the two, telling them that they could not stay in the residence with the gun. He said that Rig went upstairs with the cash and that he returned to his main floor bedroom. After a few moments he heard more than one person leave the residence, after which he locked the doors and went to sleep.

He testified in cross-examination that he did not check the townhouse to see if the two had left with the weapon. [ 28 ] With respect to the SKS rifle, located by the police in the 3 rd floor laundry room, he denied knowing it was there and said he rarely went to the third floor. He denied knowing about or seeing the gun case on the second floor living room, despite admitting to having been in the room that day to smoke. TAMANA’S EVIDENCE – A W.(

D) ANALYSIS [ 29 ] Pursuant to the test articulated in R. v. W. (D) , it is important to assess the evidence of the accused Tamana in the context of the complainant’s evidence. As with any witness, it is open for the Court to accept all, some or none of the evidence. [ 30 ] I listened carefully to the evidence of Tamana, bearing in mind the concerns with respect to C. P.’s evidence and the caution that must be exercised.

Having considered the totality of the evidence, I have concluded that there are significant and critical aspects of Tamana’s evidence which causes me to conclude that I do not believe it, nor does it raise a reasonable doubt. I am concerned in particular about the many internal inconsistencies as well as the logical gaps in many of his explanations. The following are some examples. [ 31 ] C. P. testified that he had been to the Lee Boulevard residence with his friend Charles to purchase marijuana. Tamana denied selling drugs at this time.

His evidence, however, is inconsistent with items located by police, including the large amount - pounds - of marijuana found on the premises, which I note is a substantial amount even for someone who was a heavy user. Tamana says he bought in bulk to save money, and that he gave his dealer $500 for $3000 worth of marijuana. Given his employment issues at the time, it is

unclear exactly how he planned to pay his dealer for the rest. I note as well that police located a scale, a knife he kept “for protection” and as well a relatively large sum of cash. His concerns about following the marijuana laws and his explanation that he kept the scale to measure out a “legal” amount of marijuana when leaving the house are completely inconsistent with his overall lifestyle, including a concerning willingness to drive while high and his own assertion that he drove C. P. on one occasion to complete a drug deal.

For the purpose of this prosecution, I am very aware that Tamana is not being tried for drug offences. What is important is that the allegation of drug dealing has the dual effect of explaining and confirming why C. P. would have previously seen Flex at the Lee Boulevard townhouse, and his denials cast a shadow on his credibility. [ 32 ] Tamana testified in detail as to a number of interactions between himself and C. P. prior to October 21, 2019, certainly more than C. P. was prepared to admit.

I note that Tamana agreed in cross examination that during this time frame he was socializing with individuals who were almost exclusively from the Afro-Canadian community. This is relevant in relation to his interview with the police. In evidence he testified that he did not know who the police were referencing when they asked him about someone named C. P. or “white boy”, an individual police described as being Spanish, Mexican or Portuguese.

I have a difficult time accepting that he would not connect the person the police were describing to him as being the person he knew as “Rico”, the only white person that he was associating with at the time. The video evidence adduced by the accused of the “pre gaming” party was put to Tamana and he agreed that as the only non black person at the party, C. P. really stood out. Despite his evidence to the contrary, that he wanted to help the police and was honest with them during the interview, I am satisfied that Tamana was not forthcoming when asked if he knew someone who fit C.

P.’s description and that this significantly and adversely affects his credibility. I note as well that Tamana was not forthcoming with the police about Rig having lived at the Lee Boulevard residence for the last few months prior to the incident. This too is very concerning and shows a lack of candour on his part. [ 33 ] In that same vein, it is difficult to accept that when asked by police if there had been an altercation at his residence at around 2:00 a.m. that he didn’t know that police were talking about C. P., a man he now admits he had an argument with at 12:30 a.m. that very night.

His response to police was “impossible” knowing full well that was exactly what he now says happened 1.5 hours earlier. To use his words, his explanation is “impossible” to accept. [ 34 ] It is also difficult to actually understand Tamana’s explanation as to why he didn’t tell police about what he says occurred on the night in question, his version being that he was not involved in a kidnapping, but rather that Rig and C. P. came to the Lee Boulevard townhouse with the SKS rifle to “cool off” after a robbery.

In evidence, he tries to suggest simultaneously that he didn’t’ tell police about this because he didn’t realize that C. P. was the “Rico” police were talking about, but then goes on to say that he didn’t want to cause any trouble for himself should he land in jail after having implicated C.P. His explanations are both internally inconsistent and not the actions of an individual who claims that he wanted to assist the police. I note as well that it was not until he testified that he first told his story of C.

P. and Rig coming over after having committed a robbery. [ 35 ] Tamana testified that after he heard Rig and C. P. leave the residence, he locked the door and went to bed without checking to see if they left the weapon behind. This makes little sense, particularly given his purported concerns about their activities and their unreliability. Bearing in mind that they told him they were looking for a place to “cool off” and, presumably, wanted to avoid detection, it seems unlikely that he would expect them to walk out the door with a large rifle in hand. [ 36 ] Tamana suggests that C.

P. was able to describe for the police his red Balmain/Paris shirt as being part of what he was wearing at the time of kidnapping, the same shirt the police later located on the floor of his bedroom, because that was the shirt Tamana put on when he went to confront C. P. and Rig and that he did not like to walk around without a shirt on.

However, I note that when the police arrested Tamana he was seen walking around his apartment without a shirt and he actually left the house to be arrested shirtless. [ 37 ] One of the most significant and independent pieces of evidence is C.P.’s DNA which was located on the emergency release handle located inside the trunk. In response to this Tamana testified about two occasions when C. P. had been in his vehicle and had accessed the open trunk of the vehicle.

Without addressing the logic of the story about stopping a car to place McDonald’s food bags in the trunk rather than on the floor or seat of the car, and even accepting that these opportunities existed, they fall far short in explaining how it was C. P.’s DNA ended up on that specific location. Tamana admits that he did not see C. P. touch the release handle and that he did not even know that the handle was there. That is not surprising given the evidence of the WPS officer who dealt with the vehicle and said the handle was recessed.

For anyone, the mechanism of closing a trunk does not involve reaching inside the trunk and pulling on a recessed lever. Once again, Tamana’s evidence defies logic and must be rejected. [ 38 ] In his evidence, Tamana repeatedly pointed out that the police failed to locate any blood in the trunk. From an evidentiary point of view, I am satisfied that little turns on this, as police testified that it is not uncommon for indivudals to “bleed into their clothing”. C. P. himself confirmed that he was bleeding before he was placed into the trunk, but could not see how much.

I note that the most significant wound, being the stab wound, occurred after he escaped from the trunk. I note as well that there was ample opportunity for any blood stained items to have been removed from the trunk prior to the police seizing the vehicle. And while I recognize that for anyone testifying in their defence is a stressful endeavour, Tamana’s seeming fixation with this point is troubling. [ 39 ] Having reviewed the totality of his evidence, I conclude that Tamana was not forthcoming with the police and gave evidence in this court which was internally inconsistent and defies logic.

I am satisfied that his evidence cannot be believed, nor does it raise a reasonable doubt. SCRUTINY OF THE COMPLAINANT’S EVIDENCE [ 40 ] Having reached that conclusion, the third step of W.(

D) requires an assessment of the Crown’s case to determine whether all elements of the offence had been proven beyond a reasonable doubt. The central issue in this case is the credibility and reliability of C. P.’s evidence as it relates to the kidnapping. [ 41 ] As indicated earlier, Crown counsel concedes that special care must be taken when assessing C. P.’s evidence. I am satisfied that given his background and lifestyle choices, C. P.’s evidence requires special scrutiny, and that although allowed to do so it would be dangerous to rely on any uncorroborated evidence. Crown counsel argues that sufficient corroboration exists which would allow the

Court to accept his version of the events. [ 42 ] I share some of the general concerns articulated about C. P.’s evidence. At times during his testimony he was chippy and argumentative. He became particularly difficult and glib during cross-examination. He gave answers with confidence on facts later determined to be wrong. More specifically C. P. says that the attack was “random” and he downplays his relationship with Tamana. This is not consistent with the video evidence adduced by the defence that clearly indicates that he was “socializing” with Tamana and others in late September, 2019. C.

P. explains this by saying he was “blacked out” that evening. This is hard to accept when he is seen walking around the “pre-gaming” party and rolling marijuana cigarettes in the company of others. This is troubling and again confirms why his evidence must be carefully scrutinized. However, I also acknowledge Crown counsel’s argument that they need not show a motive or establish why the offences occurred, but rather that they did occur. [ 43 ] I have less concerns about discrepancies in his evidence regarding the details of the assault or its aftermath. For example, C.

P. testified that his jacket was stolen when it was actually seized by either the police or paramedics. Given his condition on the night in question, confusion on this point is understandable and is of little significance. Counsel questioned him about whether the car had pulled up and passed him before the attack or remained behind him. Little turns on this. [ 44 ] However, C.

P.’s evidence regarding the route he was taking and why he was walking to his friend’s home late on an October night when he had taken a cab previously and had between $700-800 in cash seemed unsatisfactory, especially when challenged on cross-examination. [ 45 ] Concerns were raised about the timing of the incident and what appears to be a signficiant gap between the time C. P. says he was abducted and the time he showed up injured at his friend’s house. I make two observations about this apparent discrepancy - one: there is only a discrepancy if the evidence establishes with certainty that C.

P. left the restaurant at 9:00 P.M. His evidence however was that this was a “ballpark” time. Which leads to the second point: what is more reliable is the surveillance video obtained by police on October 21 showing a car pulling off Highway 75 at 1:51 a.m. When this is compared to the time that the officers were dispatched as a result of the 911 call, being 2:46 a.m., the times related to, at least the latter portion of the incident, are not far off at all. Having said all of that, I am also satisfied that C.

P.’s vague evidence about the name of the restaurant, who he was with and the time he actually left amount to the type of evidence which confirms the Court should look for corroboration before accepting C. P.’s evidence. [ 46 ] Much has been made about the jewellery that C. P. says was stolen during the course of the kidnapping and robbery. When speaking to police immediately after the incident, C. P. gave a relatively detailed description of some of the items. Jewelry matching the description given by C. P. was seized from Tamana’s room. Defence counsel argue that C.

P. was aware that Tamana owned that jewelry as he had seen him wearing it on a previous occasion, as demonstrated by the video evidence tendered by the defence. Defence counsel argues that the video evidence established conclusively that the jewelry seized belonged to Tamana and that this is another example of C. P.’s lack of credibility. [ 47 ] I make the following observations regarding the jewelry: 1) although it seems like a strange coincidence that C.

P. should own jewelry similar to Tamana, I am satisfied that all of the items, save the “cougar” ring, are sufficiently generic in nature and appearance to make this a possibility. Further, I note that both Tamana and C. P. said the ring, although distinctive in appearance, was inexpensive and purchased locally; 2) the timing of C. P.’s description of the jewelry adds weight to its credibility, as does the fact that Tamana said that one of the chains in issue was purchased and worn by his girlfriend, lessening the opportunity for C. P. to have observed it; 3) C.

P. testified that he saw Rig wearing one of the chains after the assault and that a number of the items were never recovered. This adds to the weight of his assertions; 4) the video evidence, although not as clear as one would prefer, does show Tamana wearing the kind of jewelry that was seized from his residence about a month before the assault. [ 48 ] Ultimately, when the evidence regarding the jewelry is considered in totality, it represents another reason why C.P.’s evidence must be treated with caution, must be carefully scrutinized, and should be corroborated to be accepted EVIDENCE THAT CORROBORATES C.

P. [ 49 ] Counsel do not take issue with the suggestions that something untoward happened to Mr. C.P. To that end, I note that the WPS members located C. P.’s cell phone in the area south of the city where he said he was taken by his assailants, the area itself matches the general description provided by C. P., including the presence of a water filled pond. [ 50 ] WPS members also confirmed the location of the break-in and theft of the vehicle C. P. said he took in order to return to the city.

They also confirmed that they did not observe any other indication of activity consistent with a break-in to the property. Their evidence was that the alarm was not activated when they arrived but when they went in he reactivated it. This is consistent with C. P.’s evidence about the alarm and about the general state of the premises [ 51 ] Constable Bostock confirms that when he attended to 11 Bellflower as a result of the 911 call, C. P. appeared to be in shock and he appeared wet - and the ident officers confirmed that the jacket seized from C. P. was wet.

This is consistent with the portion of his story that says he had to hide in a ditch. [ 52 ] C. P.’s injuries are consistent with the attack he described, including the stab wound and his explanation as to how he broke his wrist. His other injuries are consistent with the initial assault. [ 53 ] There are two pieces of evidence which are compelling and corroborative of C. P.’s evidence.

[54] The first is his description of the weapon used against him: the SKS rifle which was subsequently recovered in the townhouseoccupied by the various accused. C. P. testified to being familiar with weapons generally, and with this weapon, which he says wasoffered for sale to him sometime between a week or as little as 48 hours prior. [55] Secondly and perhaps the most compelling is his evidence about the vehicle being operated by his assailants. C. P. describedbeing forced into the trunk.

He was able to describe some of the contents of the trunk of the vehicle, including the beige or peachcoloured blanket later found in the trunk of the Chrysler. And as previously noted, his DNA was later located, not just in the trunk of thevehicle but on the emergency latch that is found in the trunk that opens the trunk from the inside. [56] Tamana says that he could have seen those items when he was near the open trunk. That event, however, was approximately amonth before. I conclude that C.P.’s description of the items in the trunk bolsters his testimony about the kidnapping.

I am also satisfiedthat the presence and location of the DNA on the interior trunk latch significantly corroborates his evidence regarding the kidnapping. [57] Taking into account all of the foregoing, I am satisfied that C. P.’s evidence is sufficiently corroborated to conclude that duringthe early evening hours of October 21, 2019, he was robbed, kidnapped and assaulted at gunpoint as he described. I accept his evidencethat he was forced into the trunk of a Chrysler 200 owned by the girlfriend of Maracle Tamana.

I am satisfied that there is sufficientcorroborative evidence to allow the Court to conclude that Tamana was one of the assailants that night, that he used the SKS rifle laterfound at his residence during the course of the incident, and that he was the driver of the Chrysler, with C. P.’s DNA later being locatedin the trunk of the vehicle. THE EYEWITNESS IDENTIFICATION OF BIAYA [58] Although arising from the same incident, the prosecution’s case against the accused Biaya is markedly different, and restslargely on C. P.’s identification of Biaya as one of the assailants.

While defence counsel challenges its strength, the Crown argues thatthere are sufficient independent factors to allow the Court to accept C. P.’s evidence on this point. [59] While there is little contest over the applicable case law, it is helpful to begin with some observations from the authorities inthis area. First, these cases are largely fact based.

Secondly, while reliance of eye witness identification is not prohibited, the multitude ofauthorities in this area confirm that a trier of fact should exercise considerable caution when weighing evidence of this nature, describedby the Ontario Court of Appeal and other courts as being “inherently unreliable.” [60] In R. v. Field 2018 BCCA 253 the Court went further to identify three types of eyewitness identification: eyewitnessidentification by a stranger; identification through photographic evidence; and recognition evidence.

As to “stranger identification” thecourt had this to say (at para. 23): Eyewitness evidence by a stranger: Experience has shown that eyewitness evidence proffered by a stranger to the accused is the leastreliable identification evidence. It has been described as “inherently unreliable”: R. v. M.B., 2017 ONCA 653 at para. 29. In light of themany instances in which identification has proved erroneous, the trier of fact must be cognizant of "the inherent frailties of identificationevidence arising from the psychological fact of the unreliability of human observation and recollection": R. v.

Burke, (SCC), [1996] 1 S.C.R. 474 at para. 52. [61] Crown counsel argues that the identification in this case is stronger than simple stranger identification. She points to the factthat the accused Biaya matched the general description given by the complainant, and more significantly that he was a resident of thetownhouse where the car and gun used in the kidnapping were located. She also points out that the identification was made very shortlyafter the incident occurred. [62] As noted earlier, Biaya’s photo was chosen out of the second photo line up presented to C. P. at the hospital. Prior to the lineup, C.

P. gave the following description of the assailant in question: black male, short hair, a beard, wearing black Adidas sweats and adark top. When presented with the first photo line up, along with choosing Flex he appeared to choose photo 1, and then settled on photo7 as being the assailant with short hair. As noted earlier, his choice respecting this assailant changed again when shown the second photoline up, at which time he chose the photo of Biaya.

I also note some of the confusion on his part when testifying as to whether he wasactually identifying Rig or his other assailant. [63] Other than that identification, there is little else to implicate Biaya. He was not identified in Court. When the Lee Boulevardtownhouse was searched, his identification was found in one of the bedrooms. However, police did not locate any Adidas sweatpants. [64] I am mindful of the difficult circumstances under which C. P. made his initial observations. He was assaulted at night, albeiton a street lit by street lights.

The initial assault occurred quickly and during much of the assault C. P. said he was covering andprotecting his face and head with his arms. I agree that C. P. would have moved his arms away from his face when removing his jewelry,but he did not say that he was able to make any particular observations during that period of time. He testified that he was forced into thetrunk at gunpoint by someone other than Biaya, and that when he eventually escaped he was pursued by the individual identified as“Rig”. I am satisfied from the evidence that the opportunities C.

P. had to observe the assailant, other than Flex and Rig, was limited andvery fleeting, and were made under very difficult circumstances. [65] I recognize that Biaya lived with Tamana and was arrested in the residence with the gun. However, I do not agree with Crowncounsel that this evidence is sufficient to bolster the otherwise limited and weak identification of Biaya as one of the assailants. Itherefore conclude that it would be unsafe to convict Biaya of the offences of robbery, assault and kidnapping based on the evidencebefore the Court.

THE WEAPONS CHARGES ARISING FROM THE SEARCH WARRANT [66] All three accused are charged with unauthorized possession of a non-restricted firearm and unauthorized possession of arestricted device in connection with the items seized from the Lee Boulevard residence. Crown counsel argues that by virtue of theircollective control of the premises, all three occupants were in actual, joint or constructive possession of the rifle which was located inwhat she described as being in plain view beside the stacking washer/dryer.

She makes a similar argument respecting the gun case andmagazine found behind the sofa in the second floor living room. [67] Possession is defined in Criminal Code s. 4(3) as follows: For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [68] Possession can be established by direct or circumstantial evidence and is highly fact based in nature. It is well accepted thatpossession includes both knowledge and control of an item. Proof of constructive possession requires proof of knowledge of the item, an intent/consent to possess the item; and control over the location of the item.. See R. v Terrence, (CanLI. [69] In R. v.

MacLeod and Powell 2013 MBCA 48, the Man Court of Appeal noted that in cases involving constructive possession: It must be emphasized that, in order to prove knowledge, there must be some evidence that allows for an inference to be drawn that therewas awareness on the part of an accused that the impugned item was present. In cases where joint possession is alleged, that awarenessmust be proven with respect to each accused. The application of the law involving constructive and/or joint possession is heavily dependent on the facts of each case.

A review of the jurisprudence shows that, in cases of non-exclusive occupation, there must be some evidence from which knowledge canbe inferred on the part of each accused. Furthermore, mere occupancy is not necessarily sufficient to infer knowledge. [70] With respect to Tamana, I am satisfied that he was in direct possession of the SKS rifle at the time of the kidnapping, and thathe brought it back to the residence after the incident, and at some unknown time the item was placed beside the washer. [71] The case against Beckley and Biaya on these charges is more troubling.

I am mindful of several facts: • First - that C. P. testified that a male named “Paul” offered to sell him the SKS rifle somewhere between a week and as little as 48hours before the assault. This potentially limits the amount of time Tamana may have been in possession of the rifle at the Lee Boulevardtownhouse. • The location where the rifle was found is problematic for the prosecution. Although photographic evidence confirms that it could beseen when one stepped into the laundry room, it was not in plain view from the hallway.

This is a factor to consider when determiningwhether Beckley and Biaya had knowledge of the gun’s presence. [72] Although the presence of the gun case and magazine in the living room is very troubling, I am concerned that it is difficult toassess whether it was actually in “plain view” given that the sofa had been moved. As well, as noted earlier, the living room, and indeedthe entire townhouse was an unspeakable mess. Although all three accused were in the residence prior to their arrest, we do not knowhow long they had been present.

Given the state of the residence, and the lack of evidence as to how long they had actually been on site,it is not impossible to imagine that they did not notice the gun case. [73] Bearing in mind the onus which rests on the prosecution in cases of possession, I am not satisfied beyond a reasonable doubtthat the evidence establishes the requisite degree of knowledge and control of the rifle and the magazine so as to found a convictionagainst Beckley and Biaya. CONCLUSION [74] Having made the foregoing findings, I am convicting the accused Tamana of the offences of robbery, aggravated assault andkidnapping.

Pursuant to discussions with counsel at the conclusion of arguments, a stay per Kineapple will be entered on the offences ofpointing a firearm and forcible confinement. Given the role the weapons played in those offences, I invited counsel to consider theirposition re Kineapple on the offences arising in connection with the weapon being seized from the Lee Boulevard property.

As they areseparate offences I am convicting Tamana of possession of a loaded rifle without a licence and possession of a prohibited device. [75] With respect to the accused Biaya, I am not satisfied that the eyewitness evidence is of sufficient strength to found a convictionon the kidnapping, robbery, aggravated assault, point firearm and forcible confinement charges and I direct that an acquittal be enteredon those offences. [76] With respect to the accused Beckley and Biaya, I am not satisfied that the evidence supports a conviction on the offences of

possession of a loaded rifle without a licence and possession of a prohibited device and I direct that acquittals be entered on those offences. “Original signed by” Mary Kate Harvie, P.J.