Her Majesty the Queen - v. -, 2012 SKPC 31

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 031 Date: March 6, 2012 Information: 32302860 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gwendolynne Gayle Patterson Appearing: Mr. Brian Hendrickson, Q.C. For the Crown In Person For the Accused DECISION M.T. GORDON , J [ 1 ] Gwendolynne Gayle Patterson is charged that on or about the 26 th day of November, A.D. 2010, did steal merchandise, the property of Sask Liquor and Gaming Commission, of a value not exceeding five thousand dollars, contrary to

section 334 (

b) of the Criminal Code . [ 2 ] The Crown’s only witness was David Lind, an employee of Sask Liquor and Gaming Commission in Moose Jaw. In

addition, there was the in-store video filed and still photos from that video. Ms. Patterson testified on her own behalf and denied the theft. Evidence [ 3 ] David Lind testified that he was an employee at the Moose Jaw Liquor Store at the time of this allegation and was working the front cash register. He knew Ms. Patterson. Ms. Patterson proceeded through his till with a mickey of Russian Prince vodka and paid for it with a twenty dollar bill. As he was returning her change, he glanced at her shoulder bag or purse and noted a large bottle of vodka in her bag. There was no payment for that bottle.

She left the store and once he “put two and two together” he phoned his supervisor and went upstairs to review the video surveillance tape relevant to the incident. [ 4 ] Certain portions or clips from this video were shown in Court and entered as Exhibit P-1 in the proceedings. The first clip, according to Mr. Lind, shows Ms. Patterson in the

section of the aisle where the vodka is displayed. The video shows Ms. Patterson picking up a mickey and then picking up a large bottle of vodka, looking around and then placing the larger bottle into her open bag or purse. The second video clip shows Ms. Patterson paying for the smaller bottle of vodka at the cash register, and leaving the store. [ 5 ] The still photographs; in particular photos number two and three in the series, show Ms. Patterson in the vodka

section and the third photograph showed her with the mickey as well as the large bottle of vodka. [ 6 ] On cross-examination Mr. Lind agreed that he did not see Ms. Patterson enter the store, and that Ms. Patterson did not run out of the store but just walked normally out of the store. When asked why he did not stop her before she left the store, he said he saw the bottle and by the time he had put the situation together she had left. He was confident that there would be surveillance tape, so he just called his supervisor. He also agreed that the video cameras are stationary and provide a view of various aisles.

They do not follow an individual around the store. There was no surveillance of Ms. Patterson between the vodka aisle and the cash register. [ 7 ] Initially Ms. Patterson decided not to testify but reconsidered her position and, with the consent of the Crown, I let her reopen her case and take the witness stand. Ms. Patterson testified she walked into the liquor store with a large bottle of vodka that was already opened. She said that her boyfriend, Larry Turner, had called her and asked her to pick him up and take him to a friend’s place. She went to his house and Mr.

Turner was quite intoxicated; in fact, he was passed out. She gathered up his tobacco and the bottle of vodka that he had been drinking and they proceeded to drive to the friend’s house. Mr. Turner indicated that he wanted another bottle of vodka. Obviously he had not realized that she had the bottle from his place which was still about three-quarters full, so he gave her fifty dollars to stop at the liquor store and buy a big bottle of vodka. In order not to upset Mr. Turner, she agreed. She grabbed her bag or purse, which had the open bottle of vodka, and entered the liquor store.

She then decided that since Mr. Turner owed her money she was going to buy a small bottle of vodka and top up the bottle in her purse when she returned to the car or when they arrived at the friend’s place. Then she would keep the rest of the small bottle of vodka for herself and the money left over from the fifty dollar bill. She said Mr. Turner owed her money. Ms. Patterson testified that she was concerned that given Mr.

Turner’s condition he could make a scene if he ended up in the store, and that is why she was looking from side to side in the video when she was picking up the small and large bottles of vodka. She said that she put the large, or as she called it, the sixty-six pounder of vodka, on the end of the aisle and only proceeded through the cash register with her mickey, which she paid for. [ 8 ] On cross-examination, she repeated this version of events again as well as emphasizing that she did not want to argue with Mr.

Turner and that she was going to top up the large open bottle of vodka from the mickey when they got to the friend’s house. She was only in the store three or four minutes. Her explanation of the video is that she was looking around just to see that Mr. Turner had not followed her. She explained that the portion of the video that appears that she is putting the large bottle from the shelf into her bag is really just her tapping the bottle that was in the bag as it had started to fall out when she bent over. She denies that the video shows her putting the unopened large bottle of vodka in her bag.

She explained that she felt she had to hang on to this new bottle of vodka until just before the cash register in case Mr. Turner came into the store. She testified she put the new bottle down before proceeding through the cash register. She agreed that Mr. Turner was extremely intoxicated and that she did not know whether he was in the store or not. She did not check any of the other aisles or even behind her. She could not explain why if this was the case she just didn’t leave the unopened large bottle of vodka on the cashier’s desk.

[9] Ms. Patterson adamantly denied after the video clip was played numerous times, that it showed her putting the unopenedbottle of vodka into her open bag or purse. Argument [10] The Crown submitted that the evidence is clear. The store employee, Mr. Lind, saw the bottle in the accused’s purse. It wasnot paid for. The video clip clearly shows Ms. Patterson putting the unopened bottle of vodka into her bag. Finally, the Crown suggests,while acknowledging the Court can accept some or none of the accused’s evidence, that one must view the accused’s evidence as awhole.

The Crown suggested her evidence, or story, just does not make any sense. The Crown pointed out that Ms. Pattersoncontradicted herself when she testified about the ruse she was trying to accomplish. Her explanation about looking around to see if Mr.Turner was in the store makes no sense. The Crown suggested that her explanation that she left the bottle of vodka at the end aislemakes no sense. Why did she discontinue the ruse at that point if she was concerned about Mr. Turner being in the store. She agreedthat she hadn’t scanned the entire store; just the aisle where the vodka was. [11] Ms.

Patterson summed up her position by stating that there was no video surveillance from the point of her being in the vodkaaisle to the cash register. Ms. Patterson was adamant that the video did not show her putting the bottle in her purse. She was justtapping, or making sure the bottle in her purse did not fall out on the floor. She testified that she left the large bottle of vodka on an endaisle and only proceeded through the cash register with the mickey she paid for.

Analysis and Decision [12] The burden of proof is on the Crown throughout to prove the essential elements of the offence beyond a reasonable doubt. The Court has to be satisfied beyond a reasonable doubt that upon the whole of the evidence the accused committed the offence charged. [13] This case involves a material conflict in evidence and therefore I need to apply the test set out in R. v. McKenzie (1996), (SK CA), 141 Sask. R. 221 (C.A.) respecting the doctrine of reasonable doubt as it applies to the reliability and credibilityof witnesses. Mr.

Justice Tallis stated the test as follows: First, if you believe the accused, obviously you must acquit; Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused, but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [14] Mr.

Lind, the store employee, was the cashier when Ms. Patterson purchased the mickey of vodka. As he was giving herchange from the twenty dollar bill, he noticed a large bottle of vodka sticking out of Ms. Patterson’s open shoulder bag. It took him aminute to put “two and two” together and then he phoned upstairs and reported the incident to his supervisor. He then viewed the in-store video and identified Ms. Patterson selecting two bottles of vodka from the shelf. He stated that Ms. Patterson only paid for thesmaller bottle. [15] The in-store video shows Ms. Patterson selecting a small and large bottle of vodka.

She is crouched down when she takes thelarge bottle and puts it in her purse. At that point the video clearly shows Ms. Patterson to glance over her shoulder, before placing thelarger bottle in her bag. At the cashier’s counter, after she gives her twenty dollars to Mr. Lind, she does not look or face him butnoticeably turns her head away. [16] Ms.

Patterson testified with a long story of how she took a large bottle of vodka, belonging to her boyfriend, about two-thirdsto three-quarters full, into the store, deciding to purchase a mickey and top up her boyfriend’s bottle with the mickey she was purchasingand keep the rest of the money. She explained her boyfriend owed her money.

[ 17 ] Ms. Patterson testified that the video does not show her putting the large bottle of vodka in her bag. Rather, she was using the large bottle of vodka she had selected to push down the open bottle she had brought into the store. She stated that she placed the large unopened bottle of vodka on a display, outside the range of the video (Exhibit P-1), and that it was not in her bag when she approached the cashier. [ 18 ] Applying the principle in R. v. McKenzie , supra , I have no hesitation in rejecting the evidence of Ms. Patterson. I find her evidence to be inconsistent and self-serving.

Under cross-examination, when questioned about her behaviour in the video, particularly glancing around as she picked up the bottles, she explained that she was checking to see if her boyfriend had entered the store. She continued on with an elaborate explanation about her boyfriend and her concerns. [ 19 ] I find her evidence to be totally unacceptable and reject it entirely. Ms. Patterson’s evidence is not believable. She had testified her boyfriend was passed out. He was in no condition to enter the store. He gave her the money to buy the vodka.

This is a case where the video surveillance recording is most helpful. In my view, the video clearly shows Ms. Patterson putting the large bottle of vodka in her bag and exiting the store without paying for it. The video clip is clear. She agrees she only paid for the smaller bottle. Her actions on the video of furtively looking around before placing the bottle in her bag and her turning away from the cashier further support this conclusion. [ 20 ] I am convinced beyond a reasonable doubt that Ms. Patterson is guilty as charged.

Dated at Moose Jaw, Saskatchewan this 6 th day of March, 2012. ________________________________________________ M.T. Gordon, J