R. v. Villaroman, 2023 MBPC 21

2023 MBPC 21 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE B E T W E E N: ) ) HIS MAJESTY THE KING, ) Samuel Levkov - and – ) ) ) for the Crown FRANCIS BEAULIEU, ) ) ) Jeremy Kostiuk accused. ) ) for the Accused ) ) ) Reasons for Decision: ) Delivered: April 3, 2023 BAYLY, P.J. Introduction [ 1 ] On August 9, 2021, at approximately 2:40PM, the Silver Ridge Gas Station in the RM of Alonsa, Manitoba was robbed at gunpoint by three individuals. Almost immediately, at 6:20PM the accused, Francis Markus Beaulieu (and two others) were arrested for the robbery.

These are indictable proceedings and the accused elected trial in Provincial Court. The evidence was heard on November 9 and 10, 2022 and then completed on January 11, 2023, argument was heard on January 12, 2023. Over the course of the trial, the Court heard testimony from eight witnesses, three civilians (Hung Jun Chen, Gordon Ross, and Loretta McIvor) as well as from five investigating officers.

The Court also received by consent, seven exhibits, including video footage of the robbery as well as video footage from the Long Plain RCMP detachment where the accused (and his co-accused) were processed after their arrests. Issue [ 2 ] Having heard the evidence and considered argument from both the Crown and the defence, the only issue for me to decide is whether the Crown has proven the identification of Francis Markus Beaulieu as being one of the three individuals who robbed Hong Jun Chen at gunpoint on August 9, 2021 at the Silver Ridge Gas Station.

There is no direct evidence of identification, this is a case about inferences and circumstantial evidence. R. v. Villaroman 2016 SCC 33 is the guiding case. Legal Principles [ 3 ] Circumstantial evidence requires the court to draw inferences from evidence that is accepted as being both credible and trustworthy. From that accepted evidence, it is the task of the trial Judge to determine what, if anything, can be inferred.

The question for consideration is this: “Is the evidence capable of supporting an inference of guilt?” If the answer to that question is “No” the inquiry is complete and the accused is acquitted.

If however, the answer is “Yes” the presumption of innocence requires the trial Judge to consider whether or not guilt is the only reasonable inference. [ 4 ] Where there are multiple inferences available, consistent with the evidence, the trial Judge must not pick and choose, if there are some inferences inconsistent with guilt, then the Crown has not proven the case beyond a reasonable doubt and the accused will be not guilty. The Supreme Court in Villaroman says that a trial Judge needs to be on the look out for alternative reasonable inferences, but this does not include mere speculation.

[ 5 ] In other words, the trial Judge requires that the Crown disprove any reasonable inference inconsistent with guilt beyond a reasonable doubt, but the Crown does not need to disprove speculation. Factual Findings [ 6 ] In terms of the evidence that I accept, I find that the following has been proven beyond a reasonable doubt. [ 7 ] The testimony of Hung Jun Chen, as well as Exhibits 3, 4 and 7 satisfy me that on August 9, 2021 at 2:40PM in the RM of Alonsa, a robbery occurred at the Silver Ridge Gas Station.

The robbery was accurately captured by video surveillance and was perpetrated by Anton Levasseur and two other males both of whom were armed with non-restricted firearms. The two-armed males, one who was significantly larger than the other, pointed their firearms at the owner/operator of the gas station Hung Jun Chen as well as his employee Gordon Ross. Additionally, that the larger of the armed males punched a complying Hung Jun Chen with his fist. [ 8 ] It is clear to me that this was a well-orchestrated robbery, and that all three males were acting in concert with one another.

They stole approximately 30 packages of cigarettes and approximately $2000.00 in Canadian currency. They also stole Mr. Chen’s backpack which contained identifications and credit cards in his name. The three males, during the robbery caused damage to a gas pump controller as well as the cash register which required the business to close for the remainder of the day, resulting in lost revenue of approximately $3500.00. The thieves made good their escape in a Ford Taurus.

The vehicle and its occupants fled the scene at 2:42PM , and headed towards the Sandy Bay First Nation. [ 9 ] The combined testimony of Acting Sgt. Schafer, Constable West and Constable Leblanc is that at 4:08PM multiple RCMP officers, in multiple vehicles attended to 360 Ridge Road, Sandy Bay First Nation. These police were specifically looking for Anton Levasseur, Victor Levasseur and Francis Beaulieu. The police were aware that Anton Levasseur and Francis Beaulieu were living at that residence.

At 4:28PM the Ford Taurus in question was located hidden in the tall grass outside of 583 Lake Road South, Sandy Bay First Nation by Constable West and A/Sgt. Schafer. When the Ford Taurus was located, its engine was still warm. At 5:08PM , a member of the Manitoba First Nation Police K9 Unit, Constable LeBlanc attended to 583 Lake Road South with his service dog. The service dog picked up a scent trail from the Ford Taurus towards 583 Lake Road South, no other trail was detected in any other direction from the Ford Taurus.

A K9 service dog was able to pick up and track a scent within a two-hour timeframe. [ 10 ] At 6:21PM the accused Francis Beaulieu and Victor Levasseur were arrested inside a Dodge Caravan being operated by Loretta McKay outside of 219 Central Road the residence of Anton Levasseur’s girlfriend Kayla McIvor.

While officers were arresting the accused and Victor Levasseur, Constable LeBlanc attended inside 219 Central Road with his K9 and arrested Anton Levasseur. [ 11 ] The testimony of Loretta McIvor satisfies me that prior to the arrests, Loretta McIvor picked up Anton Levasseur, Victor Levasseur and Francis Beaulieu from 583 Lake Road South (where the abandoned Ford Taurus was found). That each of the men carried something to her vehicle, Anton Levasseur had a duffle bag and sat in the front passenger seat.

Victor Levasseur sat behind him in the rear passenger seat, and the accused Francis Beaulieu sat in the rear behind the driver. Ms. McIvor did not see anyone bring a firearm into her vehicle. [ 12 ] Loretta McIvor drove the three men from 583 Lake Road South to Kayla McIvor’s residence at 219 Central Road, once there Anton Levasseur took the duffle bag from her vehicle and went into 219 Central Road. Neither Victor nor the accused exited McIvor’s vehicle at that time. A few moments later, Anton returned to McIvor’s vehicle with the bag and asked her to drive the trio to an address on Ridge Road.

On their way there they observed several police vehicles and Anton Levasseur told her to turn around and the group headed to a bar in Amaranth, Manitoba. [ 13 ] Once at the bar, the three men exited McIvor’s vehicle and went inside the bar, leaving all their items in the vehicle; Loretta McIvor remained in her vehicle. The trio were inside for about 15 minutes and when they returned bringing nothing with them.

Leaving Amaranth, Loretta drove the trio of males back to Kayla McIvor’s residence, upon arrival, all three man exited the vehicle, taking nothing with them from the vehicle and entered Kayla McIvor’s residence. [ 14 ] A short time later, only Victor Levasseur and the accused, Francis Beaulieu exited the residence and re-entered Loretta’s vehicle. As they were leaving the residence they were stopped by police, and all were placed under arrest.

After arresting Loretta McIvor, Victor Levasseur and Francis Beaulieu, the RCMP seized several things, including a 30/30 firearm. [ 15 ] Exhibit 3, the Photobook satisfies me that in the second row of Loretta McIvor’s vehicle, between the two rear passenger seats, the area where Francis Beaulieu was arrested was a lever action 30/30 firearm and a K-Swiss Backpack belonging to Hung Jun Chen both in plain sight . Also In the second row, closer to the front, between the driver and front passenger seat, but accessible to the second-row passengers, was in plain sight a black bag with an image of two cherries sewn on.

Upon closer inspection by police the “Cherry Bag” contained a shotgun shell, a clip containing .22 bullets, keys for the Ford Taurus, and packages of cigarettes. [ 16 ] The black K-Swiss backpack belonging to Hung Jun Chen contained keys to a Ford F150, Driver’s license, credit cards, bank cards, a vaccination card, various loyalty cards and a MPIC vehicle registration for his F150 truck all bearing the name Hung Jun Cheng, also recovered were a number of packages of cigarettes. [ 17 ] Loretta McIvor confirmed that none of the items seized by police on August 9, 2022, were present in her vehicle prior to her having picked up the Anton and Victor Levasseur and Francis Beaulieu at 583 Lake Road South. [ 18 ] From the testimony of Constable West and a review of Exhibit 6 (the detachment footage), I am satisfied that police transported Anton Levasseur, Victor Levasseur and Francis Beaulieu from Sandy Bay First Nation to the Long Plain RCMP Detachment. [ 19 ] From the combined review of Exhibits 6 and 3 (the Photobook) I observed that: • The accused, Francis Beaulieu, can be seen on the detachment footage wearing, shorts and a t-shirt, he sits and removes his footwear which is seized by the police officer.

The footwear seized are clearly visible, they are a Nike brand, with tanned or brown

coloured uppers and white soles. The accused, Francis Beaulieu is a large muscular man who has a heavy frame, he dwarfs the officer dealing with him in cells. • Anton Levasseur is also a tall man, but with a lighter frame than that of Francis Beaulieu, the footwear seized from him are running shoes with black uppers and white soles, which have a tread pattern that appears rather distinctive. • The third individual arrested is Victor Levasseur, he is shorter in stature and with a thinner build as compared with either Francis Beaulieu or Anton Levasseur.

In terms of his footwear, he is wearing white socks and sandals. [ 20 ] When I reviewed the surveillance video of the Silver Ridge Gas Station robbery (Exhibit 4) and compared it to the video of the detachment footage (Exhibit 6) the following became apparent: • During the robbery, the individual who is wearing the Vancouver Canucks Jersey and who is admitted being Anton Levasseur, is wearing footwear identical in appearance at the time he appears on the detachment footage video.

Anton Levasseur appears physically identical (in terms of apparent height, weight, and body structure) in both videos. • During the robbery, the individual brandishing the smaller calibre rifle, wearing sunglasses and socks and sandals is wearing footwear identical in appearance to what Victor Levasseur wore when he appears on the detachment footage video (socks and sandals).

Victor Levasseur on the detachment video footage appears to be physically identical (in terms of apparent height, weight, and body structure) to the individual brandishing the smaller caliber rifle during the robbery video. • During the robbery, the individual brandishing the larger calibre firearm wearing a hoodie and a baseball cap and wearing tanned or brown shoes with a white sole is wearing footwear identical in appearance to the footwear being worn by Francis Beaulieu when he appears on the detachment footage video.

Francis Beaulieu on the detachment video footage appears to be physically identical (in terms of the relative height, weight, and body structure) to the individual brandishing the larger caliber rifle. [ 21 ] Finally, after reviewing the video footage of the robbery, focusing specifically on the individual who was brandishing the larger calibre rifle, as well as examining photographs taken from that video, when compared with the photographs of the 30/30 rifle in Exhibit 3 seized by Police from the back seat area of Loretta McIvor’s Dodge Caravan where the accused Francis Beaulieu was located and arrested.

I find as fact that these two firearms are identical in appearance; particularly when comparing the size, colouring and the two distinctive metal bands that clamp the firearm barrel to the magazine tube of both weapons.

Analysis [ 22 ] Having made these factual findings, I now must determine whether they support an inference that Francis Beaulieu participated in the Silver Ridge robbery. [ 23 ] The Crown argued that the evidence from Francis Beaulieu’s arrest is compelling; the fact that he was arrested wearing shoes that were identical in appearance to shoes being worn by one of the thieves, a very short time after the robbery, lends to the inference that the two individuals are in fact the same.

This inference is made even more compelling by the fact that the accused appears physically identical to the thief who was wearing the similar shoes. Added to this, is the fact that when he was arrested, the accused was located by police sitting beside a firearm that was identical in appearance to one of the firearms used in the robbery. The firearm was brandished by the male who looked similar to him and was wearing similar shoes.

These physical similarities, as well as possession of a similar weapon, most certainly give rise to an inference of his identification as a participant in the robbery. [ 24 ] The evidence from his arrest is made more compelling given the fact that when he was arrested, he was found by police to be sitting immediately beside a backpack stolen from the robbery, a backpack that contained other items also stolen from the robbery including cash, cigarettes and personal documents, including picture identification, of the victim Hung Jun Chen, all of which had been very recently stolen.

The doctrine of recent possession of stolen items also gives rise to an inference of identification. [ 25 ] Apart from the facts relating to his arrest, the Crown argued that Loretta McIvor’s evidence of how she picked up the accused in the company of Anton Levasseur (whom, it is agreed, participated in the Silver Ridge robbery), the fact that she picked him up at a location where the Ford Taurus getaway vehicle used in the robbery had been dumped, and that Francis Beaulieu was observed by Loretta McIvor to load items from the robbery into Loretta McIvor’s vehicle prior to departing the residence.

This evidence of association, location, and cooperation, give rise to an inference of identification, but is made all the more compelling because they all occurred within a 2-hour time window after the robbery had been committed (2:42PM) to when the getaway vehicle and pick-up residence were definitively found abandoned by police (4:28PM). [ 26 ] The Crown argues that it is the totality of these circumstances that need to be considered and that common sense and human experience need to trump any piecemeal approach to viewing the evidence.

I am satisfied that the facts do support an inference of guilt. [ 27 ] Given this finding, I must still consider whether there are any reasonable inferences inconsistent with his guilt. Again, this is required because the accused is presumed innocent, and he bears absolutely no evidentiary burden. The presumption of innocence means that the accused has the right to remain silent and have nothing inferred by this court from his silence or from the fact that he is in custody.

Defence counsel argued that there are certainly inferences inconsistent with guilt. [ 28 ] The defence argued regarding the shoes, that both Constable West and Acting Sgt Schafer provided sworn testimony that the type of Nike shoe worn by Francis Beaulieu at his arrest was common and a popular shoe on the Sandy Bay First Nation. Thus no inference should be drawn based simply on the coincidence that the perpetrator of the robbery was also wearing a common and popular shoe. [ 29 ] Similarly, regarding the 30/30 firearm, defence made the point, that all lever action 30/30 rifles, look similar, and are very popular.

Defence pointed out that the Crown witness Gordon Ross testified that he thought the larger calibre firearm was a 30/30 because he was familiar with 30/30 rifles. His level of familiarity was only that he had seen them, handled them, and fired them, but he was by no means a ‘gun expert’, he was just a guy that “liked to go out and hunt.” The defence made the point that because the Crown had not proven that

the firearm seized was unusual or unique from other similar rifles that no inference of guilt is available. [ 30 ] Similarly, the fact that Francis Beaulieu is a big man is meaningless, because there is nothing unusual about being a large man.

So the fact that both the accused and the individual who perpetrated the robbery have large frames is a meaningless coincidence. [ 31 ] In response to the Crown’s recent possession argument, defence counsel argued the point that physical proximity to an item does not mean that he had control over the item, and that if it did, then Loretta McIvor could also be said to have possessed the firearm. Defence argued that McIvor’s evidence was that she was unaware of the presence of a firearm in her vehicle had to mean that it was secreted into her vehicle.

Defence argued that if Loretta McIvor was unaware of it, then it is equally plausible that Francis Beaulieu was also unaware of it. Defence argues that in the absence of positive evidence of possession, both knowledge and control, this amounts to nothing more than a suspicious circumstance. [ 32 ] Finally, defence counsel took aim at the Crown’s argument of association. Arguing that Francis Beaulieu’s apparent friendship with Anton Levasseur proves nothing other than that he makes poor choices in terms of the people he associates with.

The fact of the matter, argues defence, is that because the Crown can’t forensically link the accused as having been inside the getaway vehicle means that they can’t exclude the possibility that Mr. Beaulieu just happened to be at 583 Lake Road South when Anton Levasseur arrived there in the Ford Taurus with the stolen property. [ 33 ] Defence argued that because there are several inferences inconsistent with guilt, the law requires me to acquit the accused.

Conclusion [ 34 ] For the following reasons, I am satisfied that the only reasonable inferences are inferences consistent with the guilt of the accused. [ 35 ] I appreciate the defence argument that the shoes are popular and commonly worn, that there are many large males and that there is no evidence that the style of firearm was in any way distinctive; that said, it is an argument that ignores the totality of all the circumstances. [ 36 ] In advancing this argument, defence is not suggesting that the inference isn’t a reasonable one in consideration of the evidence, rather they are arguing that the court should decline to draw the inference because of frailties with the individual pieces of evidence.

This is an argument of weight not of inference. I appreciate the argument, but I conclude that any concern with the weight to be attribute to individual pieces of crown evidence is alleviated when the evidence is considered in its totality.

Sometimes the sum of a thing is greater than its constituent parts, this is one of those circumstances. [ 37 ] In terms of the recent possession argument and the submission that because Loretta McIvor was not aware of the firearm meant that it is reasonable to infer that Francis Beaulieu also was not aware, ignores that fact that the firearm was found immediately beside Francis Beaulieu. It was not hidden, it was clearly visible and in plain view as was all of the stolen property recovered from the vehicle.

It also ignores the fact that Francis Beaulieu had a hand in transporting those items from 583 Lake Road South into Loretta McIvor’s vehicle. I have no difficulty, again in the totality of the circumstances, concluding that Francis Beaulieu had knowledge of both the firearm and the stolen items which surrounded him in the vehicle.

I also have no difficulty, given the role Francis Beaulieu played in loading the vehicle with stolen items in concluding that Francis Beaulieu had the present ability to exercise control over them as well. [ 38 ] In terms of argument that “the absence of forensic evidence linking the accused to the getaway vehicle” should lead the court to infer that Francis Beaulieu was never in the Ford Taurus and that Francis Beaulieu had simply just met Anton Levasseur and Victor Levasseur at 583 Lake Road South after Anton Levasseur had committed the robbery with two other individuals.

This argument is nothing more than an invitation for the Court to speculate. [ 39 ] I am satisfied that based on my findings of fact, that only reasonable inferences to be drawn demonstrate the guilt of the accused Francis Beaulieu. When taken in totality, I am satisfied that Francis Beaulieu participated in the robbery of the Silver Ridge Gas Station with Anton Levasseur and another individual.

The evidence satisfies me beyond a reasonable doubt that Francis Beaulieu was the large individual, wearing the tan Nike footwear, that he Francis Beaulieu, possessed the 30/30 firearm that was recovered at the time of his arrest following the robbery. [ 40 ] Accordingly, I find the accused, Francis Beaulieu, guilty on all counts. __” original signed” ______ BAYLY, P.J.