Her Majesty the Queen - v. -, 2014 SKPC 190

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 190 Date: October 30, 2014 Information: 34480131 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - James Terrance Slippery Appearing: Victoria Smith For the Crown Angus McLean For the Accused JUDGMENT S.L. METIVIER , J I INTRODUCTION [ 1 ] The accused, James Terrance Slippery, is charged with committing robbery against Alyssa Witchekan contrary to s. 344(1) of the Criminal Code . At the time of the alleged offence, Mr.

Slippery was on an undertaking that included conditions to have no contact with Alyssa Witchekan and to keep the peace and be of good behaviour. Arising from that, he is also charged with two

breaches of undertaking contrary to s. 145 (3) of the Criminal Code. All offences are alleged to have occurred in Saskatoon,Saskatchewan on Sunday, June 22, 2014. [2] The Crown alleges that Mr. Slippery committed robbery by using violence to steal Ms. Witchekan’s iPhone. The Crowncalled two witnesses: the complainant, Ms. Witchekan, and the investigating police officer, Cst. Broadbent. [3] Mr. Slippery denies committing all offences and claims that he was in North Battleford when they are alleged to haveoccurred.

The defence called an alibi witness, Ashley Ahpay, who testified that shortly after the alleged robbery, she picked Mr.Slippery up at the casino in North Battleford and drove him to Saskatoon. [4] The issue to be decided is whether the Crown has proven Mr. Slippery’s guilt beyond a reasonable doubt. As Mr. Slipperydenies the occurrence and has put forward an alibi, I must assess the credibility of the witnesses having regard to the principlesestablished by the Supreme Court of Canada in R v W(D), (SCC), [1991] 1 SCR 742. II OVERVIEW [5] Ms. Witchekan testified that on June 22, 2014, she was with Mr.

Slippery at his sister’s house in Saskatoon, andthen left the house by herself to sell some stolen goods for money to buy drugs and get high. Having accomplished what she set out todo, she went to Bonnie Patti’s apartment, where Mr. Slippery came looking for her. [6] Ms. Witchekan stated that when Mr. Slippery arrived at the apartment, she knew something was going to happen because shedidn’t have his money for drugs, and she had her cell phone with her when he wasn’t around. She said that she stepped out onto thebalcony so that there would be witnesses if something happened to her. [7] To get Ms.

Witchekan back into the apartment, Mr. Slippery pulled off his belt and walked toward her; he wrapped his beltaround her neck, grabbed her by the hair, and pulled her inside. Once she was back inside the apartment, he began kicking and kneeingher in the head; he demanded to know where her phone was and did not stop beating her until she gave up her phone. Mr. Slipperygrabbed the phone from the corner of the couch and left the apartment. [8] Ms. Witchekan suffered injuries including marks around her neck, a goose egg on her head, loose hair and bruising on herarms. [9] Mr.

Slippery denies all charges and claims that he was in North Battleford when they are alleged to have occurred. III ANALYSIS 1. Alibi Evidence [10] Mr. Slippery testified that on June 22nd - the date of the alleged robbery - he was “sitting in North Battleford, hung over.” He

stated that a friend picked him up in Saskatoon on the previous Friday and took him to North Battleford. On Monday evening, he called his niece Ashley Ahpay, who told him: 1) that the police were looking for him in Saskatoon; and 2) that there was a cheque at the house for him. Mr. Slippery asked Ms. Ahpay to pick him up at the casino as he wanted to return to Saskatoon to cash the cheque. Ms. Ahpay picked him up at the casino at approximately 10:45 p.m. and drove him back to Saskatoon. [ 11 ] Ashley Ahpay testified that on June 22 nd a police officer came to the house looking for Mr. Slippery.

She said that she did not want to get involved and told the police officer that she did not know where Mr. Slippery was. The police officer searched the house for Mr. Slippery and left. [ 12 ] Approximately one half hour after the police officer left, Mr. Slippery called Ms. Ahpay and asked her to pick him up at the casino in North Battleford. She drove to North Battleford, picked Mr. Slippery up at the casino, and drove back to Saskatoon, arriving at around 1:00 a.m. [ 13 ] Factors that I have considered in assessing the credibility of the defence witnesses include:

a) The timing of the alibi. Ms. Ahpay had several opportunities to provide police with an alibi for Mr. Slippery, yet failed to do so. The Court heard evidence from Mr. Slippery that they are part of a close knit family. Ms. Ahpay indicated that she was prepared to drive to North Battleford late at night to pick Mr. Slippery up because of family commitment. In light of this, Ms. Ahpay’s evidence that she did not want to get involved – when her involvement could help Mr. Slippery – is suspicious.

b) Ms. Ahpay presented as a reluctant witness. She was unable to provide details, such as dates and times, and was uncertain about answers to questions that were put to her in cross-examination. For example, when asked in cross-examination when it was that she figured out she was with Mr. Slippery when this offence is alleged to have been committed, she responded initially with “I don’t know the exact date” followed by “I figured that out today.”

c) Ms. Ahpay admitted in court that she lied to police on the second and subsequent visits when she told the police officer that she had not seen Mr. Slippery and did not know where he was. She explained in court that she lied to the police officer because she did not want to get involved. The fact that Ms. Ahpay lied to police officers engaged in a criminal investigation indicates a willingness to lie to people in authority.

d) Inconsistencies in the evidence of the two defence witnesses. Ms. Ahpay testified that she picked Mr. Slippery up in North Battleford on the same day that the police came looking for him and searched her mother’s residence – June 22, 2014, whereas Mr. Slippery testified that Ms. Ahpay picked him up late Monday evening – June 23, 2014. The evidence of the two defence witnesses also differed as to the reason for Mr. Slippery’s return to Saskatoon. Mr. Slippery testified that Ms. Ahpay told him on the telephone that he had a cheque at the house, and he wanted to return to Saskatoon to cash it, whereas Ms. Ahpay’s testimony did not include any reference to the cheque.

e) The reasonableness of the evidence in all of the circumstances. The defence asserts that upon being advised that the police were looking for him in Saskatoon, Mr. Slippery left North Battleford at 10:45 p.m. in order to cash a cheque in Saskatoon. In my view, it is improbable that Mr. Slippery would return to Saskatoon, having just been told that the police were looking for him there. [ 14 ] The combination of all of these factors leads me to disbelieve the alibi evidence put forward by the defence witnesses. I do not believe Mr.

Slippery’s evidence that he was in North Battleford when the robbery is alleged to have occurred, nor do I believe Ms. Ahpay’s evidence that she picked him up in North Battleford that evening. Further, the evidence does not leave me with a reasonable doubt. 2. Has the Crown proven guilt beyond a reasonable doubt? [ 15 ] Although I have rejected the defence evidence of an alibi, that is not the end of the matter as I must still decide whether on the evidence I do accept, the Crown has proven Mr. Slippery’s guilt beyond a reasonable doubt.

[16] Ms. Witchekan’s testimony is set out above. Mr. Slippery and Ms. Witchekan were in a common-law relationship at the timeof the alleged offences and he is the biological father of two of her six children. Ms. Witchekan stated that their relationship wasdysfunctional due to their drug addictions. [17] Cst. Broadbent testified that he went to Ms. Patti’s apartment in response to a call to police from a neighbour reporting adomestic disturbance. Upon arrival, Cst. Broadbent observed that Ms. Witchekan was upset and crying; she had swelling to her face andhead. [18] Ms.

Witchekan was forthright about her own criminal activity including selling stolen goods and drug use. Her evidence ofinjuries is corroborated by Cst. Broadbent, who observed swelling on her head and face. These factors reflect favourably on hercredibility and the reliability of her evidence of a physical attack. [19] Other factors I have considered in assessing the credibility of the Crown witnesses include:

a) The defence argued that Ms. Witchekan has a motive to lie because Mr. Slippery left her for another woman. The defence positionwas somewhat supported by Ms. Witchekan’s testimony and demeanour on the witness stand. Ms. Witchekan admitted to being angryand jealous of Mr. Slippery’s new girlfriend and openly took issue with the woman and the woman’s child sitting in the courtroom. Ifound her to be argumentative and confrontational when cross-examined.

b) There were some discrepancies in the evidence of the two Crown witnesses pertaining to the iPhone. Ms. Witchekan testified that Mr.Slippery took her iPhone 4S. She testified that she has all of the boxes and information for the iPhone, none of which was produced incourt. She stated that police efforts to track the iPhone were not successful because it was turned off. Cst. Broadbent testified that it ishis common practice to ask a complainant for boxes and information associated with a cell phone, although, he could not specificallyrecall if he had done so in this case.

He stated that efforts to track the iPhone were not successful because Ms. Witchekan was unable toprovide police with her Apple ID and password. [20] The offence of robbery is defined in

section 343 of the Criminal Code, which sets out a number of different ways that robberycan be committed. Generally speaking, robbery includes an element of theft accompanied by

an act of violence or threat of violence.Theft is defined in

section 322 of the Criminal Code. A person commits theft who, fraudulently and without colour of right, takesanything from another person with intent to deprive the owner of it. [21] The Crown evidence regarding proof of ownership of the iPhone consisted of Ms. Witchekan’s testimony that it belonged toher. Her evidence as to the cost of the iPhone was unclear. The Crown failed to produce boxes and information associated with theiPhone, which Ms. Witchekan said were available. Cst. Broadbent testified that Ms.

Witchekan was not able to provide police withaccurate ID or passwords that would allow them to track the iPhone. The argument that erupted between Mr. Slippery and Ms.Witchekan was in relation to stolen goods. In the result, I am left with a reasonable doubt about Ms. Witchekan’s testimony concerningownership of the iPhone and, consequently, a reasonable doubt that Mr. Slippery committed theft, which is an essential element ofrobbery. [22] Pursuant to s. 662 of the Criminal Code, assault is a lesser included offence in the offence of robbery. (R v Luckett, (SCC), [1980] 1 SCR 1140) [23] I accept Ms.

Witchekan’s evidence about the assault as accurate and reliable. She provided detailed testimony of events andher evidence was not shaken in cross-examination. Her description of the physical attack is consistent with the injuries observed on herby Cst. Broadbent. While she openly displayed jealousy and animosity toward Mr. Slippery, such emotions are not surprising or unusualin the context of a turbulent domestic relationship. [24] I find Mr.

Slippery not guilty of robbery, but guilty of the lesser included offence of assault contrary to s. 266 of the CriminalCode, as well as the two breaches of undertaking as charged.

_________________________ S.L. Metivier, J