Her Majesty the Queen - v. -, 2017 SKPC 29

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 029 Date: March 17, 2017 Information: 35709187 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Allister Toutsaint Appearing: Ms. T. Rock For the Crown Mr. M. Nolin For the Accused JUDGMENT M.M. BANIAK , J [ 1 ] Mr. Toutsaint is charged with committing an assault using a weapon, to wit a pellet gun, contrary to s. 267 (

a) of the Criminal Code . [ 2 ] Six witnesses, including the complainant, Travis McAdam, testified. The accused chose not to testify. [ 3 ] The Crown’s first witness was Jody Pelletier, who was acquainted with both the accused and the complainant.

[ 4 ] She testified that on June 4, 2016, she was staying with her friend Irma in a small house on Winnipeg Avenue. From all indication this was a house that was regularly frequented by youth and adults alike. Drugs were brought, sold and consumed. Ms. Pelletier, by her own admission, was high on meth that day, but testified that she had a recollection of the events. [ 5 ] She testified that the accused was at Irma’s on June 4, 2016. [ 6 ] She testified that one of the street kids named Adrian was at the house. She was the complainant’s girlfriend. Ms.

Pelletier was angry because she believed the complainant had been mistreating and physically abusing Adrian. [ 7 ] While Adrian came into the house, the complainant stayed outside. She testified as follows: A And Travis stayed outside because he was scared to come in because he knew I was pissed off at him for beating up this little girl all the time. Q Okay. And what happened after they arrived? A Well, I seen Adrian, and Irma’s like, Travis is outside, and I was like, really. And then I was pissed off and then I was going to go talk to him, give him shit like I always do. Q Okay.

And did you go outside or did you stay in? A Me and Allister went outside. Q You and Allister. What did you guys do when you went outside? A Well, Travis was - was just sitting in the shed and there had been a - there was like - they got into the fight and then Travis - Travis and Allister had gotten into a fight in the shed. [1] [ 8 ] According to her testimony, she did not go inside the shed, but she heard a lot of yelling and knew that the two were fighting. [ 9 ] Ms. Pelletier also testified she was the one who called for the accused to come out.

Her testimony continued: Q How did the - you’re calling it an ‘altercation’ or a ‘physical fight’, how did that end? A Well, it wasn’t good. [2] A Well it just ended. Like it just was over. Allister left the shed and we all just left. [3]

Q Other than Allister and Travis, who, if anyone else, was in the shed at that time? A Just the two of them. [4] [ 10 ] During cross-examination Ms. Pelletier agreed that the house was full of people and that she was high that day. She also agreed that there were members of opposing street gangs there and that a certain Cole Galongo was also outside and that he could possibly have gone into the shed as well. [ 11 ] The complainant, Travis McAdam, testified next. He is 18 years old, but was 17 at the time of the alleged offence. [ 12 ] He testified that he and Adrian went to Irma’s place.

While she went inside, he went to the shed. He was waiting for Adrian and a friend, AP, who was going to meet him there. [ 13 ] Within a short time the accused came to the shed and assaulted him: That’s it. I - I didn’t see anyone because this guy came along and hit me in the head. Like I literally just got there and two minutes - like two minutes after, he came in the shed. [5] [ 14 ] The complainant sustained head injuries, spent some two weeks in a hospital and is still experiencing health complications stemming from the assault.

He testified that the accused pistol whipped him with a gun that was “black and brown” and about nine inches long. [ 15 ] He testified that he was not under the influence of alcohol or drugs that day and that he was certain that the accused, whom he identified, was the assailant. [ 16 ] During cross-examination, the complainant admitted that he was not entirely certain as to what the accused’s words to him were immediately prior to the assault - it may have been “you fucks up” or “you fucked up”. [ 17 ] He denied that Cole Galongo had anything to do with the assault.

He denied that he and his friend AP had any plans to rob Irma’s residence. He reiterated that he was not high on drugs. [ 18 ] Constable Dale Kirchgessner testified next. He is an 11 year member of the Saskatoon Police Service. [ 19 ] He testified that on June 4, 2016, at 7:03 p.m. he was dispatched to WP Bate School on 18 th Street. When he arrived he saw a male and two females. The male had suffered significant head trauma. He called MD Ambulance and followed the ambulance to Royal University Hospital (RUH). He described the complainant as follows: Yeah.

He had a fairly significant laceration due to blunt force trauma on his head, likely by that of a sharp - I don’t know, I can’t say it was a knife, but something heavy enough to create a blunt force trauma to split the skin open down o past the hairline onto the scalp. He bled enough that it was covering his face, his hands, parts of his shoulders. His hair was saturated with blood. [6] [ 20 ] He testified that WP Bate School is located a couple of blocks from Winnipeg Avenue. The three people he met there were Travis McAdam, Adrian Quewezance and Laura Smith-Wesson.

Due to the complainant’s condition, which kept worsening, the constable ceased questioning him.

[ 21 ] Mark Koch, a 13 year member of the Saskatoon Police Service, also testified. Now, and on June 4, 2016, he was assigned to the Guns and Gangs Unit. [ 22 ] On June 4, 2016, at 21:06 hours or 9:06 p.m. he and his partner, Constable Kostur did a vehicle stop in the 400 block of Winnipeg Avenue South.

At the time they were surveilling the house occupied by Irma Unger (404 Winnipeg Avenue South). [ 23 ] The vehicle was driven by Cole Galongo, and the passengers were named James Stevens and Flora Case. [ 24 ] Constable Koch testified that the Unger residence had been under surveillance since 4:39 p.m. that day. [ 25 ] At 4:48 p.m. a vehicle dropped off the accused at the Unger residence and drove off.

The accused went into the residence, stayed there until about 6:51 p.m., at which time he came out of the residence and then a “bunch of other individuals came in and out”. [ 26 ] During the vehicle stop at 9:06 p.m. Mr. Galongo was arrested and the vehicle was going to be seized. A search of the vehicle yielded a “large silver knife and a Beretta style pellet gun”. [7] [ 27 ] The grip on one side of the gun was missing. [ 28 ] According to the constable, it was very “realistic” and could pass for a real firearm.

In his estimate, it weighed about the same as his sidearm, which is around four pounds. [ 29 ] Corey Lenius, a 17 year member of the Saskatoon Police Service also testified. He was handed the Travis McAdam file on June 6, 2016. He proceeded to RUH to interview Mr. McAdam. He testified that he observed a lot of injuries: Yeah, I mean I didn’t examine him too close, but he had a lot of injuries on the top of his head and left ear area. That’s kind of where I was standing when I was interviewing him.

So quite significant injuries, a lot - lot of dried blood still around his head. [8] [ 30 ] He also observed the complainant having “some sort of split or cast” on his hand. [ 31 ] He interviewed the complainant. He was told that the accused was the one who assaulted him: Well, when I interviewed Mr. McAdam, he said that Mr. Toussaint was there.

He was the one beating him, but he also said Jody Pelletier was there as well and a guy that he knew by the name of Cole. [9] [ 32 ] During cross-examination, Sergeant Lenius acknowledged that the recovered gun was not subjected to any forensic testing. [ 33 ] He also agreed with defence counsel that the complainant did not know the accused, and that he referred to him as Allister because that’s what the others were calling him. [10] [ 34 ] He did not locate or speak with Mr. Galongo.

[ 35 ] Joshua Kennedy, a five year member with the Saskatoon Police Service, was the Crown’s final witness. [ 36 ] He testified that on June 10, 2016, he attended Irma Unger’s residence looking for two individuals on unrelated matters. Being aware that an assault had taken place in the shed the previous week, Constable Kennedy asked Ms. Unger if he could search the shed. Permission was granted. [ 37 ] He testified that he observed what he believed was blood in and near the shed. He also found pieces of what he believed to be a firearm: There was the grip of a pistol - of a pistol which had a small insignia on it.

There was what looked to be a firing pin, as well as a slide lock for a firearm. As well, I believe two - a - small brass ring and then a kind of aluminium coloured double ring which was attached. [11] [ 38 ] The grip of the pistol found by Constable Kennedy fit into the pistol seized by Constable Koch: . . . well the grip itself is the exact same grip on the other side and it actually just snapped into place there. [12] [ 39 ] On cross-examination Constable Kennedy acknowledged that neither the substance that looked like blood, nor the pieces of the firearm were tested forensically.

POSITION OF THE PARTIES [ 40 ] The Crown’s position is that the complainant, after arriving at the Winnipeg Avenue residence of Irma Unger, proceeded directly to the shed in the backyard. He did not go into the house. [ 41 ] Shortly afterwards, the accused came to the shed and assaulted Mr. McAdam. Mr. McAdam identified the accused as the assailant, and he testified that he was the only one who assaulted him. [ 42 ] This was direct evidence, which was credible and not seriously shaken or discredited during cross-examination.

The injuries to the complainant were serious and still ongoing. [ 43 ] The Crown further points to the evidence of Jody Pelletier who testified that both the accused and the complainant were in the shed. She knows both of them. [ 44 ] The gun (Exhibit P-1) seized by Constable Koch had a missing piece (the hand grip).

Constable Kennedy, who attended Irma Unger’s home some ten days later found the hand grip in the shed and it fit perfectly into the gun found by Constable Koch. [ 45 ] The Crown submits the gun was the weapon used to beat the complainant. [ 46 ] Defence points to some inconsistencies in the Crown’s case: 1) the complainant testified that he was assaulted with a 9 mm pistol, which was not Exhibit P-1;

2) Jody Pelletier, one of the primary witnesses, is not a credible witness; 3) Cole Galongo, a rival gang member, could have been the assailant, as even Ms. Pelletier testified that he was outside and could have been in the shed; 4) no forensic analysis was done on the alleged weapon or anything that was found in the shed by Constable Kennedy; 5) parties were not known to each other; 6) circumstantial evidence is weak; and 7) due to the Crown’s tardy disclosure, the accused may not have had a fair trial.

Analysis [ 47 ] This case depends largely on eyewitness testimony, but not exclusively as it also involves some circumstantial evidence. I will address both in relation to this accused.

Eyewitness testimony [ 48 ] Many decisions from various courts, as well as legal literature, point to the frailties of eye witness testimony and the inherent danger that it poses. [ 49 ] Our Court of Appeal in R v Bigsky , 2006 SKCA 145 , set out certain guidelines which should be considered when analysing eyewitness testimony: First, did the judge instruct himself on the frailties of eyewitness testimony; Second, to what extent was the eyewitness testimony reviewed; Third, to what extent does proof of the Crown’s case depend on eyewitness testimony only; Fourth, what is the nature of the eyewitness observation, including such matters as whether the eyewitness has previously known the accused and the length and quality of the observation; Fifth, has the witness evidence been strengthened by inappropriate police procedures; and

Lastly, the Court in Bigsky held that it was relevant, in the appellate context, whether the accused testified. In that case the accusedtestified exculpating himself - also the Crown’s case depended on eyewitness testimony only. [50] Moreover, our Court of Appeal in R v McKay, 2017 SKCA 4 [McKay], stated it is improper to assess identification evidencepiecemeal. Rather, it is necessary to consider all of the evidence as a whole in determining identity (para 14).

The Court in McKay alsoheld that the criminal standard of proof should not be applied to the individual pieces of evidence, but rather to the whole of the evidence(para 18). [51] Since it is the Crown’s contention that the eyewitness testimony is supported by circumstantial evidence, I will address thelaw as it pertains to this type of evidence. [52] Two recent cases considered the law relating to circumstantial evidence: R v Franham (Rock Hard Concrete Finishers) 2016SKCA 111; and R v Villaroman, 2016 SCC 33 [Villaroman]. [53] In Villaroman, Mr.

Justice Cromwell (at paras 35 - 38) discussed the issue of whether an inference must be based on ‘provenfact’: [35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rationalconclusions based on inferences drawn from proven facts”. . . However, that view is no longer accepted. . . . The issue with respect tocircumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonable inferences other thanguilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. . . . [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt. . .

I agree with the appellant that the Crown thus may need to negative these reasonablepossibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might beconsistent with the innocence of the accused”: R v Bagshaw, (SCC), [1972] SCR 2, at p. 8. “Other plausible theories” or“other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not onspeculation. [54] Courts and the learned authors of The Law of Evidence in Canada, 2nd ed. (Markham: Lexis Nexis, 1999) have held and statedthat circumstantial evidence should be considered cumulatively: Each piece of evidence need not alone lead to the conclusion sought to be proved.

Pieces of evidence, each by itself insufficient, may,however, when combined, justify inference that the facts exist (p 41). [55] In this case the complainant identified the accused as his assailant. The identification evidence is not based on a fleetingglance. He saw him from close proximity and in good light. A few words were exchanged. He saw the weapon. The fact that hetestified that it appeared to be a 9 mm handgun, which in fact it was not, is not fatal.

Constable Koch testified that the weapon lookedvery realistic, it resembled his piece and weighed about the same amount. [56] I find that the complainant did identify the accused as his assailant. [57] Jody Pelletier testified that she knows both the complainant and the accused. She testified that she did not like the

complainant because she heard that he mistreated his girlfriend, whom she considered as one of her kids. [ 58 ] On the day in question, when she heard that the complainant was in the backyard she summoned the accused who was in the basement and they went outside. She saw the accused go to the shed. It is possible that she encouraged or egged the accused to confront the complainant. I have no evidence on that point and am not going to speculate as to what may have been discussed between Ms.

Pelletier and the accused. [ 59 ] She also stated in cross-examination that other people, including Cole Galongo were outside in the yard and that perhaps he could also have assaulted the complainant. [ 60 ] The fact that Cole Galongo was outside is of little assistance to defence. The complainant, whose testimony I believe, testified that he was assaulted by one person only, and that person was the accused. [ 61 ] Insofar as the weapon is concerned, the pistol seized by Constable Koch was found in a vehicle driven by Cole Galongo. The vehicle was stopped on the 400 block of Winnipeg Avenue.

Irma Unger’s residence was under surveillance since 4:39 p.m. that day. [ 62 ] The gun seized was a Beretta style pellet gun. The hand grip on one side was missing. The hand grip found in the shed by Constable Kennedy fit perfectly onto this gun. In his words, “it just snapped in”. [ 63 ] Constable Koch also testified that the accused was dropped off at the Unger residence at 4:48 p.m. [ 64 ] The accused went into the residence and stayed there until about 6:51 p.m. at which time he came out of the residence.

He testified that “then a bunch of other individuals came in and out”. [ 65 ] Constable Kirchgessner testified that at 7:03 p.m. he was dispatched to WP Bate school. There he found the complainant and two females. He noticed that the male was suffering from significant injuries to his head.

He was still bleeding and the wounds were fresh. [ 66 ] We therefore have the gun, the accused, the complainant, and the time frame fitting the pieces of the puzzle. [ 67 ] Taking all of this evidence into account, the combined, or cumulative effect of it justifies the inference that it was the accused who assaulted the complainant. [ 68 ] This circumstantial evidence, when considered in its totality, only bolsters the eyewitness testimony of the complainant. [ 69 ] The reasonable doubt standard is an exacting standard of proof.

It is not proof to an absolute certainty, or beyond any doubt [13] , but it requires a great deal of certainty. It relies to a certain degree on reason and common sense. [ 70 ] Relying on this definitive standard, the Crown must prove guilt beyond a reasonable doubt. This burden comes with a duty of excluding all rational conclusions alternative to guilt. [ 71 ] In this case, the Crown has met this burden. All evidence points towards the accused as being guilty of the offence he is being charged with, and I so find.

[ 72 ] At the end of his submissions, defence counsel stated that because of the Crown’s failure to disclose in a timely fashion, defence was prejudiced in its effort to cross-examine a witness and this may have resulted in the accused not receiving a fair trial. [ 73 ] I do not agree. The trial commenced on November 30, 2016.

It should be noted, and as is apparent from the contents of the transcript, the trial was adjourned to December 21, 2016 to allow defence to prepare for examination, or cross-examination, of any witnesses previously called or proposed to be called: The Court: We have a situation here whereby the Crown near the conclusion of the trial of Allister Toussaint indicated to the Court that she had an additional witness that she wished to call. This witness was not on the original witness list. She was not mentioned in any of the case management conferences.

And the Crown indicates that there was no statement taken from this witness by the police. We don’t know what effort the police made to obtain a statement, but I take the Crown at their word that they only found out about the evidence, proposed evidence, and its relevance shortly before this afternoon’s resumption of the trial. The Crown’s position is that this evidence may be relevant and they would like to call this witness. Defence, for their part, and I think rightly so, say that this would be prejudicial at this stage to allow this witness to testify.

They were not able to prepare for it, firstly, and secondly, that they could not tailor their cross-examination in a manner that could have put this issue to the Crown witness who – witnesses who testified prior to the Crown requesting that this witness testify. I note that there is a balancing factor here, but I believe that if we were to allow this witness to testify today, the prejudicial effect would outweigh the probative value. I do, however, believe that a adjournment in this case would allow the defence to prepare adequately for this witness. I would hope that this adjournment will not be unduly long.

In fact, there’ll be some emphasis put to the trial coordinator to find the earliest date possible. I will go a little further and indicate that the Crown should make the witnesses available that they’ve called before for defence to examine in rebuttal. That means that if Mr. Nolin tells Ms.

Rock which witness they would be interested in having available, that they do so prior to the resumption fo the next trial so that those witnesses will be around in the event that you may wish to ask them questions that you had no opportunity to ask today because you didn’t anticipate that this would – this would be proposed – to be called. Mr. Nolin: Very good, Your Honour. [14] [ 74 ] On December 21, 2016, defence advised that they would not be calling any evidence. It was not indicated that defence wished to examine or re-examine any witnesses previously called by the Crown.

No request was made for the Crown to make any other witnesses available for the defence. [ 75 ] The matter was then adjourned to January 30, 2017 to allow counsel to prepare their final arguments. [ 76 ] On January 30, 2017, defence requested a further adjournment to prepare its submissions. This request was granted and the matter was further adjourned to February 17, 2017. [ 77 ] Having regard to all of the above, I fail to see any prejudice to the accused. [ 78 ] Finally, I want to state on the record that in my opinion the Crown conducted herself with the utmost integrity throughout the trial.

She extended defence every courtesy and cooperation. Any delays or surprises as it related to witnesses cannot be attributed to any conscious or deliberate attempt on her part to prejudice the accused’s defence.

_____________________ M.M. Baniak, J [1] Transcript p T-14 [2] Transcript, p T-18 [3] Transcript, p T-19 [4] Transcript, p T-19 [5] Transcript, p T-31 [6] Transcript, p T-47 [7] Transcript, p T-56 [8] Transcript, p T-63 [9] Transcript, p T-64 [10] Transcript, p T-65 [11] Transcript, p T-76 [12] Transcript, p T-79 [13] R v Lifchus (1997), (SCC), 5 CR (5th) 1 SCC (para 36) [14] Transcript, pp T-88 and T-89