R. v. S.S.E. Date:, 2011 BCPC 440

Citation: R. v. S.S.E. Date: 20111025 2011 BCPC 0440 File No: [removed for posting] Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.S.E. BAN ON PUBLICATION UNDER S. 517(1) OF THE CRIMINAL CODE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.N. HAMILTON Counsel for the Crown: W. Sayson/J. Babineau (Article Student) Counsel for the Defendant: J. Douglas Place of Hearing: Surrey, B.C.

Date of Hearing: October 7, 2011 Date of Judgment: October 25, 2011 Introduction [ 1 ] On April 9, 2009, at approximately 10:00 a.m., the accused, S.S.E., was arrested on a charge of breaching a Recognizance of Bail. About a month earlier, on March 10, 2009, S.S.E. had been released on the Recognizance with ten conditions attached. The arrest on April 9, 2009, followed a 911 call the day before from the complainant, S.M.S.

S.M.S. called 911 to report that three days earlier, on April 5, 2009, S.S.E. had breached his bail conditions by driving his vehicle past S.M.S.’s home and then returning and stopping his vehicle on [name removed for publication] Street outside of S.M.S.’s home, and making eye contact with S.M.S. [ 2 ] Condition #5 of S.S.E.’s Recognizance states that S.S.E. was not to be found within a 300 meter radius of [address removed for publication] in Surrey, British Columbia, S.M.S.’s home. [ 3 ] Credibility is the central issue in this case. [ 4 ] S.M.S. testified as to the events of April 5, 2009, and described clearly seeing S.S.E. pull his vehicle up beside S.M.S.’s home, stop his car, lean forward and make eye contact with S.M.S.

She said there was no doubt that the person in the vehicle was S.S.E. [ 5 ] S.S.E. testified in his defence and denied that he drove by and stopped his vehicle on [name removed for publication] Street outside of S.M.S.’s home on April 5, 2009. S.S.E. called evidence from the former manager of the [employer’s name removed for publication] where S.S.E. said he was working on April 5, 2009, to establish an alibi on April 5, 2009. As I will elaborate further in these Reasons, the credibility dispute rests entirely between S.M.S. and S.S.E. The Evidence [ 6 ] S.S.E. is a former Peace Officer.

He is 43 years old and was 41 years old on April 5, 2009. He commenced a relationship with a woman named S.S., the mother of the complainant, S.M.S., when S.M.S. was 7 or 8 years old.

[ 7 ] S.M.S. is 22 years old and was 19 years old on April 5, 2009. S.S.E. was S.M.S.’s step-father for a period of approximately 10 years. S.S.E. and S.S. separated in 2006. [ 8 ] S.S. and S.S.E. have a daughter together, A.E. I was not told A.E.’s age. [ 9 ] On March 10, 2009, S.S.E. signed a Recognizance of Bail.

I was not told what the underlying substantive charge was that led to S.S.E.’s arrest and subsequent release on bail on March 10, 2009. [ 10 ] There were ten conditions attached to the Recognizance, but only one is relevant to the matter before me; namely, S.S.E. was prohibited from being found within 300 meters of [address removed for publication] in Surrey, British Columbia, the home where S.S. and S.M.S. reside along with A.E. [ 11 ] S.M.S. testified that on Sunday April 5, 2009, at lunch time, she was outside standing on the balcony of her home while her mother was inside with A.E.

The family was preparing to eat lunch. [ 12 ] S.M.S. said that while she was outside she heard a distinctive sound of a car engine and saw a greenish blue coloured Camaro drive northbound on [name removed for publication] Street past her home. She recognized the Camaro as belonging to S.S.E. because of its colour and the distinctive engine sound. [ 13 ] S.M.S. was unable to see who was driving the Camaro when it passed her home travelling northbound. However, as she watched the Camaro, it turned around on [name removed for publication] Street and returned now travelling southbound.

She testified that the green Camaro then slowed down and came to a stop on [name removed for publication] Street just outside of her home. She said she saw the driver lean forward and then recognized that it was S.S.E. driving the vehicle. She testified that S.S.E. made eye contact with her, gave her an angry look and then drove away. She saw S.S.E. turn right on [name removed for publication] Avenue and travel out of sight. [ 14 ] S.M.S. testified that she went into her home and noted on the stove clock that it was 1:00 p.m. She spoke to her mother about what had just happened.

She testified that she wrote down on a piece of paper the time, date, and vehicle description. [ 15 ] Neither S.S. nor S.M.S. knew what the distance restriction was on S.S.E.’s bail conditions. Rather than call 911 immediately to report S.S.E.’s alleged breach, they decided to wait until they could check with S.S.E.’s bail supervisor to confirm the distance restriction. [ 16 ] S.S. spoke with S.S.E.’s bail supervisor on April 7, 2009, and learned of the distance restriction in condition #5 of the Recognizance.

The next day S.M.S. called the police to report S.S.E.’s alleged breach of his bail conditions. [ 17 ] S.M.S. spoke with Constable Baker who subsequently attended at the S. home and took a statement from S.M.S. Constable Baker testified that S.M.S. provided a detailed statement and thereafter he attended at S.S.E.’s home to affect his arrest on a charge of breaching the Recognizance of Bail.

S.S.E. did not answer the door on April 8, 2009 when Constable Baker attended at his home although the hood of S.S.E.’s car was warm. [ 18 ] Constable Baker arrested S.S.E. the following day, April 9, 2009, as S.S.E. was travelling southbound on 120 th Street in the vicinity of the [employer’s name removed for publication], S.S.E.’s place of employment at the time. [ 19 ] S.S.E. testified in his defence and denied driving on [name removed for publication] Street outside of S.M.S.’s home on April 5, 2009.

He testified that he was working that day from early in the morning until 7:00 or 7:30 p.m. [ 20 ] S.S.E. testified that he was scheduled to work a shift at the pub from 11:00 a.m. until 6:00 p.m. He initially testified that he started work between 7:00 a.m. and 7:30 a.m. In cross-examination he was uncertain what time he started work on April 5, 2009, stating he could have started as late as 8:00 a.m. [ 21 ] He said his first task that morning was to reconcile the cash on hand from the day before with the sales receipts from the pub and the cold beer and wine store at the pub.

He then prepared the day’s cash floats for the pub and the store. Next, he prepared the bar for his 11:00 a.m. to 6:00 p.m. shift, and he commenced bartending at 11:00 a.m. [ 22 ] He said that after the lunch rush, at approximately 1:00 p.m., he went into the office in the pub to work on the payroll. He stated that he was having computer problems and called the recently resigned general manager of the pub, S.K., for assistance.

He testified that he was on the phone with S.K. for thirty to forty-five minutes starting at about 1:00 p.m. and thus there was no possibility that he could have been outside of S.M.S.’s home at 1:00 p.m. on April 5, 2009, as alleged. [ 23 ] S.S.E. called S.K. to testify in support of an alibi defence to this charge. S.K. testified in his direct examination that he received a call on his cellular phone from S.S.E. from the [employer’s name removed for publication], at 1:00 p.m. on April 5, 2009. He said they spoke about some problems S.S.E. was having with direct deposits for the payroll.

He said that the call display on his cellular phone showed that the call was from the [employer’s name removed for publication]. He said that he and S.S.E. spoke for thirty to forty-five minutes. [ 24 ] On cross-examination, S.K. resiled from his evidence that the call from S.S.E. came at 1:00 p.m. Instead, he agreed he was unsure precisely of the time of the call and conceded that S.S.E. could have called him anywhere between 12:45 p.m. to 1:45 p.m. and that the call did not end later than 2:15 p.m. or 2:30 p.m.

S.K.’s cellular phone records for April 5, 2009 were not tendered into evidence. [ 25 ] In addition to S.K.’s evidence, S.S.E. tendered into evidence as Exhibit 5 the weekly

schedule for the [employer’s name removed for publication], for the week of March 31 to April 5, 2009. The

schedule shows S.S.E. was scheduled to work a shift on April 5, 2009, from 11:00 a.m. to 6:00 p.m.

[ 26 ] I believe S.S.E. tendered the shift

schedule to corroborate his evidence that he was at work on April 5, 2009, during the time he is alleged to have been outside of S.M.S.’s home. The difficulty I have placing any weight on the shift

schedule as evidence that S.S.E. was at work all day on April 5, 2009, is that the shift

schedule does not contain accurate information. [ 27 ] The shift

schedule indicates that an employee named S. was scheduled to work on Sunday, April 5, 2009, from 11:00 a.m. to 6:00 p.m. and that another employee named A.N. was not scheduled to work. However, both S.S.E. and S.K. testified that A.N. worked the April 5, 2009 shift. There is no indication on Exhibit 5 that a change in the

schedule was approved, or even occurred. If I accept that A.N. worked the 11:00 a.m. to 6:00 p.m. shift on April 5, 2009, then I must conclude that Exhibit 5 does not contain accurate information. Neither A.N. nor S. was called to give evidence. [ 28 ] Constable Baker, in his cross-examination, testified that as part of his investigation he was able to confirm that S.S.E. punched in to work at 8:00 a.m. on April 5, 2009, using a fingerprint recognition time-clock.

Constable Baker also confirmed that he was given A.N.’s name and contact information, but when he tried to contact A.N. he learned she was out of the country. Discussion [ 29 ] The resolution of this case comes down to whether or not I have a reasonable doubt as to S.S.E.’s presence outside of S.M.S.’s home at 1:00 p.m. on April 5, 2009. [ 30 ] I was impressed by S.M.S.’s testimony. I find her to be a credible witness. She gave her evidence clearly and confidently. She did not exaggerate what she had to say. Her evidence was internally consistent.

In short, I believe her. [ 31 ] S.M.S. recalled with certainty and with detail the events of April 5, 2009. She was not shaken on cross-examination. She testified that S.S.E. was wearing a yellow shirt and she described the shirt with some detail: no buttons, round collar, short sleeves, and a broken pattern on the shirt.

She recognized the shirt as one which S.S.E. wore while he was living with the family. [ 32 ] When confronted on cross-examination with the assertion she was wrong because S.S.E. did not own a yellow shirt, she remained firm. [ 33 ] S.M.S. testified that the incident occurred at 1:00 p.m. on April 5, 2009. She was firm about the time. She said that she looked at the stove clock when she went into the home having just seen S.S.E. in his vehicle. She wrote down the time on a piece of paper which she kept until April 8, 2009, when she phoned the police to report S.S.E.’s alleged breach.

She gave a detailed statement to Constable Baker. [ 34 ] S.M.S. was not shaken in cross-examination on her evidence as to the course of events on April 5, 2009. Even in the face of the assertion that there was no way that S.S.E. could have been in his car on [name removed for publication] Street at 1:00 p.m. on April 5, 2009 because he was working at the time, S.M.S. remained firm. [ 35 ] S.M.S.’s evidence is consistent with the surrounding circumstances. She did not run into her home when she first saw S.S.E.’s vehicle. Why? Because she was not sure who was driving the car.

However, the vehicle turned around and stopped outside of her home and she was able to ascertain with certainty that S.S.E. was driving his Camaro. [ 36 ] S.M.S. did not run inside immediately to report to her mother that she had seen S.S.E. because she did not want to upset her sister, A.E. That evidence does not make much sense standing alone.

However, combined with the fact that one of the other bail terms prohibits S.S.E. from having any contact with his daughter A.E., the evidence makes perfect sense. [ 37 ] S.M.S. did not report S.S.E.’s alleged breach until April 8, 2009, in order that her mother could check with S.S.E.’s bail supervisor as to the distance restriction in the bail conditions. [ 38 ] I accept S.M.S.’s evidence. [ 39 ] I contrast S.M.S.’s evidence with that of S.S.E. [ 40 ] S.S.E. shifted in his evidence on a few key points. He was unclear about certain details. [ 41 ] S.S.E. was unclear what time he started work on April 5, 2009.

Initially he stated that he started work at 7:00 a.m. When asked in cross-examination if he was certain as to the time he started work, he said he might have started work at 8:00 a.m. [ 42 ] S.S.E.’s denial that he left work before 6:00 p.m. on April 5, 2009, was the most troubling piece of evidence before me. I would have expected him to provide a firm and unequivocal denial that he left work. Instead, when asked in direct examination if he left work prior to 6:00 p.m. on April 5, 2009, he said that he did not believe so.

In other words, he was not sure, he was uncertain. [ 43 ] When asked if he had a yellow shirt as described by S.M.S., he said “no” because, “I do not wear yellow.” When confronted about the shirt in cross-examination he said he did not “believe” he had a yellow shirt. Again, he was uncertain and unsure. [ 44 ] The alibi evidence does not raise a reasonable doubt in the Crown’s case. While I am fully cognizant that S.S.E. does not need to prove anything in this case, he did proffer an alibi defence which he argues raises a reasonable doubt.

I find that it does not. [ 45 ] S.K.’s evidence in chief was that he received a call from S.S.E. at 1:00 p.m. – precisely the time S.M.S. says that S.S.E. was outside of her home on [name removed for publication] Street on April 5, 2009. On the evidence before me, it would take about fifteen minutes to travel between the [employer’s name removed for publication] and S.M.S.’s home.

If S.S.E. was, in fact, outside of S.M.S.’s home at 1:00 p.m., then he could have been back to the [employer’s name removed for publication] by 1:20 p.m. [ 46 ] S.K.’s evidence on cross-examination was that he could have received the phone call from S.S.E. anywhere between 12:30 p.m. and 1:45 p.m. Again, he was unsure and uncertain of his evidence on this crucial point. I find that there was clearly an opportunity for

S.S.E. to leave the pub, drive to [name removed for publication] Street and return to the pub to make the call within the window of time established by S.K.’s evidence. [ 47 ] Also, and again I know that S.S.E. does not need to prove anything in this case, on the issue of his credibility I do not believe him when he says he made the phone call to S.K. at 1:00 p.m. He could have tendered S.K.’s cellular phone records for April 5, 2009, which could have corroborated his testimony, but he did not.

If he wanted me to accept, as credible, his testimony that he called S.K. at 1:00 p.m. on April 5, 2009, he could have tendered the phone records. [ 48 ] Rejecting S.S.E.’s evidence that he did not breach his bail conditions, however, is not the end of the analysis of the evidence in this case. I must be satisfied that the other evidence tendered does not raise a reasonable doubt in the Crown’s case. [ 49 ] S.K. testified about the phone call received from S.S.E.

I have already given my findings related to the timing of that call and the window of time during which that call could have been received by S.K. [ 50 ] S.K. testified about Exhibit 5, the shift schedule. He confirmed that the shift

schedule indicated management’s plan for who was to work what shifts during the week. [ 51 ] He said that changes to the scheduled shifts had to be approved by management. Failure to obtain approval prior to changing shifts could lead to an employee being suspended or possibly terminated. I have already commented on what little weight I can place on Exhibit 5. [ 52 ] S.K. testified that he could not provide evidence as to when S.S.E. started or finished work on April 5, 2009. He could not provide evidence as to whether or not S.S.E. left work during his scheduled shift on April 5, 2009.

He said that Exhibit 5 indicated when S.S.E. was expected to be at work at the [employer’s name removed for publication] on April 5, 2009. [ 53 ] S.K. also testified as to an event where he received a call from S.S.E. on a Saturday night – he was not specific as to the date of this call. S.K. stated that S.S.E. called and told S.K. that he had swallowed a bottle of sleeping pills.

S.K. went to S.S.E.’s home and found S.S.E. nearly dead. [ 54 ] S.K. stated that following that suicide attempt, he felt bound to S.S.E. and felt he needed to support S.S.E. [ 55 ] Despite this evidence of possible bias, I believe that S.K. was doing his best to give truthful and accurate evidence. However, I do not find that any of S.K.’s evidence raises a reasonable doubt in the Crown’s case. Conclusion [ 56 ] In conclusion, I accept the evidence of S.M.S. that she saw S.S.E. in his vehicle on [name removed for publication] Street just outside of her home at 1:00 p.m. on April 5, 2009.

I reject S.S.E.’s denial that he attended outside S.M.S.’s home on April 5, 2009. While S.S.E. was at the [employer’s name removed for publication] at some point during the day on April 5, 2009, I find that he left the pub during the day and attended outside of S.M.S.’s home. None of the other evidence placed before me in this trial raises a reasonable doubt in the Crown’s case. Accordingly I find that on April 5, 2009, S.S.E. breached his bail conditions by being found within 300 meters of [address removed for publication], Surrey, British Columbia.

It follows that I find S.S.E. guilty as charged. __________________________________ The Honourable Judge R. N. Hamilton Provincial Court of British Columbia