Her Majesty the Queen - v. -, 2018 SKPC 64

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 064 Date: November 6, 2018 Information: 90131842 Location: Indian Head _____________________________________________________________________________ Between: Her Majesty the Queen - and - Daniel Thomas Ward Appearing: Ms. Shauna Silver For the Crown Ms. Christina Skibinsky For the Accused JUDGMENT SNELL , J INTRODUCTION [ 1 ] The accused is charged that at Wolseley, Saskatchewan, on or about the 1 st day of June, 2017 [he] did: Steal money from Sukhwinder SINGH while armed with an imitation firearm, contrary to Section 344(1) (

b) of the Criminal Code of Canada.

[ 2 ] On June 1, 2017 at approximately 11:00 p.m., a male person, armed with what appeared to be a rifle, robbed an employee of the Leland Hotel in Wolseley, Saskatchewan of $7,500.00. This person was fully masked and wore gloves. The sole issue in this case is whether the accused has been properly identified as the person responsible for this robbery. For the reasons which follow, I have determined that the evidence does establish, beyond a reasonable doubt, that the accused committed the robbery. THE EVIDENCE AND FINDINGS OF FACT [ 3 ] Three people were present in the bar when the robbery occurred.

David Solar was the maintenance man for the hotel. During the robbery he was located in a booth some distance from where the robber was interacting with Mr. Singh, the employee who gave the money to the robber. Mr. Solar said the robber had a weapon which looked like a rifle. [1] Mr. Solar described the robber as skinny and taller than his height of five feet, 2 or 3 inches. The robber was wearing all black and had his face covered. He did not recognize the robber either by voice or appearance. [2] [ 4 ] Mr. Sukhwinder Singh was the employee present who had the most involvement with the robber.

He worked primarily as the chef, but he also worked at the bar when necessary. He said the robber was around his height of 5 feet, 9 or 10 inches. A portion of his evidence was not recorded at page 40 of the Transcript. According to my notes, the unrecorded portion was that when asked what the robber was wearing, he replied that the robber covered his face with a mask and he thought he was wearing black. [ 5 ] Mr. Singh said that the robber asked for money, saying “money, money”. He stated that they had two different tills - one for the bar and one for the VLTs (video lottery terminals).

He said the robber also asked for the VLT money, indicating with his gun towards the place under the counter where that till was located. Mr. Singh asked the robber if he would like a bag to put the money in, and then gave him a paper bag. [ 6 ] Mr. Singh testified that he immediately recognized the robber’s voice as being that of the son of Cathy (phoenetic), who was a regular patron, although he didn’t know the son’s name. Mr. Singh testified that the accused’s parents came in very regularly, and that the accused himself didn’t come in every day, but maybe every week, one or two times a week.

He said he had seen him a lot in the last month and that he had also seen him during the months of April, May and June. [3] Although Mr. Singh identified the accused in court, the issue is not his ability to visually recognize the accused as a previous patron of the bar, but whether his voice recognition of the accused as the robber can be relied upon. [ 7 ] After the robbery Mr. Singh discussed the identity of the robber with the owner of the bar, Ms. Balwinder Ghotra, who was the third person present during the robbery.

With the assistance of her son, Varinder, they found a photograph of Cathy’s son and came up with the name of Danny. [4] [ 8 ] Ms. Ghotra was farther away from the robber than Mr. Singh during the robbery. She testified with the assistance of an interpreter. She spoke very quickly which caused the interpreter to have great difficulty in providing the

interpretation of her evidence. She described the robber as tall and thin. [5] She said the robber said “Give me the money” and “I will kill you” or “I will shoot you”. [6] She said the robber pointed the gun at both her and Mr. Singh and made motions as if to load the gun like he was going to fire. [ 9 ] Ms. Ghotra also claimed to have recognized the robber’s voice but didn’t know his

name. [7] She testified that he would come in every week, sometimes twice a week and would sometimes be there for two or three hours. She said he had been coming to the bar since they had first opened in 2012. She stated, in the context of the location of the accused’s family home when the bar opened, that it was next door to the bar. [8] She has spoken to him when serving him food; very brief conversations during which the accused always spoke with a pleasant and respectful tone. [ 10 ] Cross-examination of Ms.

Ghotra focussed on exactly what the robber had said, and specifically whether he had actually said the words “I will kill you” or “I will shoot you”, or if it was just that he was threatening to do so by gesturing with the gun. [9] Since Mr. Singh did not testify to those words being spoken, I am not sure the robber said anything other than “money, money”, as well as making a motion to the place where the VLT money was kept. Ms.

Ghotra was obviously very frightened during the incident, and given the language difficulties, it is possible that while she believes there were verbal threats, in fact no such words were spoken. [ 11 ] Ms. Ghotra testified that there was a third till in the bar, close to the front door, which is used for purchases from the liquor store. She had emptied the contents of this till into the bar till at 6 p.m. [10] [ 12 ] Ms. Ghotra testified that both she and Mr. Singh recognized the voice of the robber and both knew that it was the son of a woman they knew as Cathy, but they did not know the name of the son. Ms.

Ghotra said that she gave this information to her son, Varinder, and that he later sent a photo of the accused, possibly from Facebook [11] to her phone. She and Mr. Singh agreed that this was the person they were talking about. Ms. Ghotra also identified the accused in court as the person she believed to be Danny, Cathy’s son. [ 13 ] Following the robbery Ms. Ghotra and her son reviewed earlier video surveillance from the bar in an attempt to find one of the accused in the bar. They did find one, dated May 7, 2017, which was played in court during Ms. Ghotra’s testimony.

The accused was identified in that video by Ms. Ghotra, who noted that the accused gave a fist bump to her son, Varinder. [12] The Agreed Statement of Facts, P-5, states that “Varinda Ghotra was working at the Leland Hotel Bar on May 7, 2017 and identified Daniel Ward in the surveillance. I note that the accused has his back to the camera in the May 7, 2017 video. He is shown to receive a beer which he took with his right hand, and he gives a fist bump to Varinder, also with his right hand. [ 14 ] Defence counsel elicited evidence regarding the noise conditions in the bar at the time of the robbery.

It is clear that the television was on. Although there was cross-examination regarding noise which would be emanating from the VLTs, according to Ms. Ghotra, when no one is playing the VLTs, there is no noise coming from them. [13] [ 15 ] The last witness for the Crown was Cheryl Pasap. The accused was living with Ms. Pasap at the time of the robbery. [14] She was a reluctant witness who failed to respond to her subpoena and had to be arrested to testify. When initially questioned by the Crown she provided evidence on two points which could incriminate the accused.

First, that at his request she drove him to Regina the night of the robbery, but that before they left Wolseley they stopped by the railway tracks across from her house and the accused exited the car for a few minutes. [15] This could be found to be evidence that the accused had the opportunity to commit the robbery. [ 16 ] An important aspect of the Crown’s case concerned the fact that clothing similar to that worn by the robber was found by the police an hour after the robbery on grid road 617, 9.5 km north of Highway #1. [16] The second point Ms.

Pasap testified about initially which could incriminate the accused is that when shown photos of the t-shirt and sweatshirt recovered by the police on the grid road she said the accused had a shirt with writing on it like the t-shirt in the photo. [17]

[ 17 ] In other respects Ms. Pasap provided evidence contradictory to a statement she had previously given to the police. The Crown was successful in their application pursuant to s. 9 of the Canada Evidence Act, RSC 1985, c C-5 to be allowed to cross-examine the witness on her previous statement. [ 18 ] On being cross-examined by the Crown Ms. Pasap stated that the accused told her about the robbery - that he said “he robbed him”. I will quote here from the transcript at page 120: Q. So he did tell you about the robbery? A. (NO AUDIBLE RESPONSE). Q. I’m sorry. You have to say yes. A.

Yes [ 19 ] Defence counsel has argued that there was something improper about the Crown indicating to the witness that she had to say yes. I mention this now in order to make it clear that I am sure that what happened was that the witness nodded her head affirmatively, leading the Crown to make the statement she did. There is nothing improper about this. Had the witness not nodded her head, I would not have permitted the Crown to instruct her to say yes. [ 20 ] Ms. Pasap also testified that the accused said something about a gun, but she never saw the accused with one. [18] Ms.

Pasap wavered back and forth about an event which took place as they were on their way to Regina on a grid road. Sometimes she said that she saw the accused throw something out of the window, other times she said that she saw him throw clothing out of the window. [19] She said she did not recognize the grey sweater shown to her by the police, but she did recognize the t- shirt as being like one the accused used to have. [20] Ms.

Pasap confirmed that she had told the police that the accused had on what looked like a neck piece when he came back to the car. [21] [ 21 ] Defence counsel in cross-examination elicited from Ms. Pasap that she was afraid, when she gave her statement to the police, about the possibility of her children being apprehended and that she was essentially agreeing with the police as they fed information to her. The statement she gave to the police was not tendered in evidence. [ 22 ] There are essentially three aspects of Ms. Pasap’s evidence which incriminate the accused.

The first is that he exited the vehicle prior to leaving Wolseley that evening, giving him the opportunity to have committed the robbery. Although Ms. Pasap did mention at one point that they had stopped to drop the children off at a babysitter’s, she did not link the stop by the tracks when the accused got out of the vehicle for a few minutes with that purpose. [22] [ 23 ] The second aspect of her evidence which is incriminating relates to the accused throwing something out of the car on a grid road while they were driving to Regina.

On this point, her evidence was the same in cross- examination by the Defence as when she was questioned by the Crown. That is, she confirmed she saw the accused throw something out of the vehicle, but she could not state positively that it was clothing. [23] [ 24 ] The third aspect of her evidence which was incriminating concerned her statement that the accused made an admission to her. At the end of her cross-examination by Defence counsel Ms.

Pasap agreed that at that point she was feeling the most pressure from the police and that was when she made the comment that the accused had told her he had robbed someone. [24] However, she never testified that it wasn’t true. As the Crown pointed out in re-examination, Ms. Pasap never told the

police that she saw the accused with a gun or a bag after he returned to the car, despite any pressure they might have put on her to provide that information. The only time Ms. Pasap said anything about not being truthful was when she agreed with the Crown that she had not been forthright with the police at the beginning of the statement. [25] [ 25 ] An Agreed Statement of Facts establishes that two articles of clothing, a grey hoodie and a black t-shirt with writing in it, were found on a grid road 9.5 km from Highway #1 within an hour of the robbery.

The hoodie found has the logo of SIIT - the Saskatchewan Indian Institute of Technology - and is clearly similar to the one worn by the robber at the time of the incident as shown in the surveillance footage of the robbery. Defence counsel has acknowledged that the clothing found on the grid road was the clothing worn by the robber that night. [26] However, the accused’s DNA was not found on the hoodie. The only DNA on the hoodie was found on both cuffs and was from an unidentified female. The other

article of clothing found on the grid road was a T- shirt which, as noted above, Ms. Pasap said was similar to one she associated with the accused. [ 26 ] There was no evidence tendered by the Defence. ANALYSIS What significance should be given to the voice recognition evidence? [ 27 ] Defence counsel has properly raised significant concerns about the voice recognition evidence given by Mr. Singh and Ms. Ghotra. She has cited many cases which outline how miscarriages of justice can result from reliance upon eyewitness identification evidence.

Voice recognition evidence, as a subset of that type of evidence, suffers from even greater difficulties. [27] The danger is that the witnesses who provide this evidence are honest witnesses, convinced of the accuracy of the evidence they are giving. They are, and appear to be, extremely credible witnesses.

Because of this, the reliability of such evidence must be examined very critically since the fact the witnesses are honest and confident about the evidence they are giving can lead finders of fact to rely on their evidence when the witnesses are in fact mistaken. [ 28 ] There were frailties in the evidence given by Mr. Singh and Ms. Ghotra and in the police handling of their evidence, as pointed out by defence counsel in her submissions, which could have resulted in contamination of one witness by the other.

I have been persuaded that it is quite possible that only one of those witnesses independently identified the accused as the robber, by voice recognition, and then influenced the other to also confirm that they recognized the voice as that of the accused. [ 29 ] In this case many considerations would lead me to be very reluctant to rely exclusively on the voice recognition evidence, whether it was Mr. Singh or Ms.

Gothra who purported to recognize the robber’s voice: a lack of evidence that there was anything distinctive about the accused’s voice, the limited number of words spoken by the robber, the stressful situation in which they were spoken, and the aggressiveness of the speech, as compared to the types of conversations the witnesses would have previously had with the accused. These would lead me to the conclusion that it would be dangerous to rely on the voice recognition evidence alone to establish the accused’s guilt. What is the significance of the evidence of Ms. Pasap? [ 30 ] As mentioned above, Ms.

Pasap was a very reluctant witness. Nevertheless, her evidence incriminated the accused in a number of crucial areas. She said he was out of the car for a few minutes in the town of Wolseley the night the robbery occurred. She described an odd event which she said occurred on a grid road on the way to Regina. She said he threw articles out of the car. While she said she did not recognize the grey hoodie which the police recovered from a grid road, she did state that the t-shirt recovered in the same place was similar to one worn by the accused in the past. Most importantly, Ms.

Pasap testified that the accused confessed his responsibility for the robbery to her, although she said she didn’t believe it.

[ 31 ] On the other hand, Ms. Pasap didn’t see the accused wearing the balaclava mask the robber wore, although she said he had a “neck piece” on when he came back to the car. She said the accused had on black sweats when he left the car, while the robber wore jeans. She says the accused didn’t come back to the car with the paper bag of money that the robber had, and she never saw him with a gun. [ 32 ] Defence counsel argues Ms. Pasap’s evidence is valueless, primarily because she says Ms. Pasap simply agreed with everything the police told her as a result of the oppressive nature of the police interview.

However, the statement was not put into evidence, so it is not possible for me to conclude that the information about throwing articles out of the vehicle, for example, only came out when the police suggested that to her. [ 33 ] Ms. Pasap did testify that she was afraid of disagreeing with the police when she gave her statement, having been told by them to think about her children. She was concerned about a child protection hearing which might result in her children being taken away from her.

However, she didn’t agree with everything the police might have suggested to her - she did not state that she saw the accused with a gun or with any money from the robbery. The evidence does not persuade me that Ms.

Pasap lied to the police about the incriminating facts she testified to which are noted above, nor has it been established that the police fed all of those facts to her such that her evidence should be rejected outright. [ 34 ] Having said that, however, if there were only her evidence, standing alone, I might very well be suspicious that the accused was the robber, but consider it dangerous to convict him, in the absence of any other evidence. What is the significance of the DNA evidence? [ 35 ] None of the accused’s DNA was found on either

article of clothing which had been discarded on the grid road. There was female DNA found on the cuff of the grey hoodie. In my view this evidence is of no value. The fact the accused’s DNA was not found on either

article of clothing does not mean that he never wore it. The fact female DNA was found on the hoodie is also of no value. The robber was clearly male, and the hoodie was admitted by defence counsel to have been the one worn by the robber. The fact that female DNA was found on it does not mean the accused didn’t wear it. [ 36 ] There are other, less significant aspects of the evidence, which both counsel have referred to in their briefs and which I have not mentioned earlier because I considered them to be equivocal and not of any assistance in arriving at my decision.

This includes the evidence regarding the knowledge that the robber had of the location of the VLT till, indicating it was someone who had been there previously. Defence counsel argued that the robber didn’t seem to know about the liquor board store till whereas the accused would be well aware of that. Ms. Ghotra’s evidence was that the liquor board store till was emptied at 6:00 p.m. but I have no evidence regarding whether this was the usual practice, or not. In the result, this evidence is not helpful to either the Crown or the Defence, in my view.

What inferences can be drawn from the video evidence concerning the stature of the robber as compared to the accused? What inferences can be drawn about whether the robber and the accused are right or left handed? [ 37 ] Defence counsel argues that the Court can draw its own inferences from the videos in two respects. At pages 16 to 19 of the written submissions filed on behalf of the accused the argument is made that the Court should conclude that the robber and the person identified as the accused in the video from the bar dated May 7, 2017 are not the same person.

The first argument is that the robber is a noticeably heavier and broader person than the accused. I note in passing that Mr. Solar described the robber as being tall and skinny. However, in any event, while it may sometimes be possible for the trier of fact to draw its own conclusions and inferences from a video, in this case I do not find that to be possible. I do not see noticeable distinctions in body type as between the men depicted in the two videos, and so I do not draw the inference that they cannot be the same person.

[38] The second inference the Court is asked to make is that the robber is holding the rifle in the way that a left-handed person would hold it, while the accused is shown in the video to use his right hand to receive a beer and to give afist bump to another person. Again, I am not in any position to conclude that the robber must be left- handed and the accused right-handed, based only on what I am able to observe in the videos. What inferences can be drawn from the videos concerning the footwear worn by the robber and by the accused, as compared to thefootwear provided by Ms.

Pasap and marked as Exhibit P6? [39] The Crown has made a similar argument regarding the Court’s independent use of the videos. Crown counsel argues at page five of her written brief that the two videos show the person wearing “what appears to be matchingrunners”, which she also argues match the runners provided by Ms. Pasap to the police. The runners, it is true, all have a white sole anda black top. However, that is not a striking or unusual description. What the Crown identifies here as the striking similarity is a white figure on the back of the heel of the runners provided to the police by Ms.

Pasap.[28] This does not appear clearly enough in the videosfor me to draw the conclusion that they are the same runners. Again, while there may be some similarities that can be observed from thevideo itself, I do not consider it so clear that I would be comfortable drawing the inference the Crown suggests. Has the Crown made an argument which breaches the accused’s right to silence? [40] Crown counsel stated in her closing argument the following: And I’ll also put forward, Your Honour, that this evidence that was presented to the Court was uncontested.

The accused did not takethe stand and deny that he told Cheryl Pasap about the robbery. He did not take the stand and deny that he was part of the robberyitself. And while that isn’t necessary for the accused, all that the Court has to consider is the evidence from the Crown’s case and bothMr. Singh and Ms. Ghotra who testified consistently and credibly that they recognized the accused’s voice and Ms.

Pasap who testifiedthat the accused admitted to the robbery. (Transcript, page 150, line35 to page 151, line 1) [41] The Crown referred again to the voice recognition evidence later in her argument and then stated “This is the evidence that the Court has to consider because the accused didn’t contest it”.[29] [42] Describing the evidence as being “uncontradicted” would have been more in keeping with what previous decisions have approved in similar circumstances.

I note the following passage from R v Noble, (SCC),[1997] 1 SCR 874 para. 97: On a related point, I would note that nothing in s. 4(6) or in the analysis thus far prevents the trial judge from telling the jury that theevidence on a particular issue is uncontradicted. In such a circumstance, the judge is not instructing the jury to consider the failure of theaccused to testify per se, but rather is simply instructing the jury to take note of the fact that no evidence has been led to contradict aparticular point.

Rather than inviting the jury to place the failure of the accused on the evidentiary scales, the judge is instructing thejury that it need not speculate about possible contradictory evidence which has not been led in evidence. Section 4(6) prevents the trialjudge from going farther and instructing the jury to consider the failure of the accused in particular to lead contradictory evidence. Moreover, because of the right to silence and the presumption of innocence, the trial judge qua trier of fact may not place any particularsignificance on the failure of the accused to lead contradictory evidence.

However, it is permissible as a means of weighing the evidenceto note that evidence on a particular point is uncontradicted; the trier of fact need not speculate about contradictory evidence not putbefore it. [43] Defence counsel has presented a lengthy, strong and cogent submission regarding the accused’s right to silence, the onus on the Crown to prove the guilt of the accused beyond a reasonable doubt and the need for a trier offact to be ever vigilant that it not place any onus on the accused, that the failure of the accused to testify can never be used to add weight

to the Crown’s case and the fact that evidence is uncontradicted does not mean that the trier of fact must accept it. I do not consider it necessary to make any further comment about the Crown’s argument.

What is necessary is that I instruct myself in accordance with the submissions made by Defence counsel at pages 5 to 16 of her brief, and the cases cited therein, with which I agree. [ 44 ] It is with these principles in mind that I make my determination on the only issue in this case, which is whether the Crown has proved, beyond a reasonable doubt, that the person who robbed the bar in Wolseley, Saskatchewan on the date in question was the accused, Daniel Ward.

Conclusion [ 45 ] While not sufficient to establish proof beyond a reasonable doubt of the guilt of the accused on its own, it is not irrelevant that immediately following the robbery, at least one of Mr. Singh or Ms. Ghotra identified the robber, by his voice, as the accused, although they did not know his name at the time. Both recognized a photo of the accused as the son of a female patron they knew as Cathy, who himself also frequently came to the bar.

Both identified the accused in court as the person they believed to be Cathy’s son, who they later learned was named Danny. [ 46 ] Similarly, given the frailties in the evidence given by Ms. Pasap, the concerns raised about her state of mind when she gave her statement to the police and her reluctance to come to court to give her evidence, one might feel this evidence, standing on its own, is not sufficient to establish proof beyond a reasonable doubt. [ 47 ] However, it is an error in law to consider the evidence in a case by a piecemeal approach. It must be considered as a whole.

The evidence of at least one of the victims identifying the accused as the robber immediately after the event is consistent with the evidence given by Ms. Pasap that the accused admitted to her that he was responsible for the robbery, that he said something to her about a gun and her evidence that he had the opportunity to commit the offence that evening. [ 48 ] The evidence of Ms.

Pasap that the accused threw something out of the window of the car when they were driving to Regina is consistent with the independent evidence that articles of clothing worn by the robber were found on a grid road close to Highway #1 within a short time of the robbery.

I believe I can take judicial notice of the fact that the town of Wolseley is adjacent to Highway #1. [ 49 ] When the evidence is viewed in its totality, the Crown has proved, beyond a reasonable doubt, that the accused was the person who robbed the bar in Wolseley Saskatchewan on June 1, 2017, and I find him guilty of robbery as charged. _____________________ C. Snell, J

[1] Transcript, Page 6 [2] Transcript, Pages 7,19 and 20 [3] Transcript, Pages 41-44 [4] Transcript, Pages 53-55 [5] Transcript, Page 63 [6] Transcript, Page 63, 71-73 [7] Transcript, Page 66 [8] Transcript, Pages 66-68 [9] Transcript, Pages 71-73 [10] Transcript, Pages 82-83 [11] Transcript, Page 77 [12] Transcript, Pages 88-89 [13] Transcript, Page 75 [14] Transcript, Page 111 [15] Transcript, Page 113 [16] Agreed Statement of Facts P5 [17] Transcript, Pages 115-116 [18] Transcript, Page 121 [19] Transcript, Pages 122-123 [20] Transcript, Pages 123-124 [21] Transcript, Page 126 [22] Transcript, Pages 111-113, 125 [23] Transcript, Page 137 [24] Transcript, Page 138 [25] Transcript, Page 128 [26] Written Submission on Behalf of the Accused, para 55 [27] see R v Bigsky , 2006 SKCA 145 , 289 Sask R 179 and cases cited therein; R v Wolfe-Bard , 2011 ONCA 158 ; R v Clouthier , 2012 ONCA 636 para 19 ; R v Dodds , 2015 ONCA 286 at para 79 , 322 CCC (3d) 429. [28] Exhibit P-6 [29] Transcript, Page 151, lines 31-32