R. v. Jared Grant Sacobie, 2019 NBPC 3

PROVINCIAL COURT OF NEW BRUNSWICK 2019 NBPC 03 R. v. Jared Grant Sacobie Before: Judge Alfred H. Brien At: Burton, N.B. On: January 15, 2019 Counsel: Crown – Rodney Jordan Accused – P.J.Burke REASONS ON DECISON Charge: [ 1 ] The Accused is charged under s. 343(c), contrary to s. 344 (1) (

b) of the Criminal Code with assault with intent to steal. The offence is alleged to have taken place on August 13, 2018 at Fredericton N.B. Issue: [ 2 ] In this case, the central issue is whether the Crown has established the intent to steal. The Accused through counsel, readily admits that the accused assaulted the complainant and did so with a weapon. These are two included offences with in the charge.

The accused through counsel submits that there is no proof beyond a reasonable doubt that he did so with the intent to steal. [ 3 ] So in this case there is an admission that the complainant’s wallet containing money and identification and credit cards was stolen from him. Again, the Accused’s position, through counsel, is that such theft or any intent thereof was not by the accused. He does admit that there was another male present at the time who appears to have committed that offence. [ 4 ] As in most criminal trials assessment of credibility is required.

In this case it is of the Crown witnesses, the accused not having called any witnesses. Background: [ 5 ] On the evening in question the 42 year old male complainant was at a local pool hall known as Dooleys. This hall is located on the north side of the City. While playing the video lottery machines and having consumed one drink, he was attacked by the accused. The attack consisted of several blows to his body by the accused and after being knocked to the floor, being hit several times with a bar stool. He suffered some injuries as a result, but chose not to seek medical attention.

During this attack by the accused, another male intervened and he also hit the complainant and it is this individual who is seen physically taking the complainant’s wallet. The wallet contained $ 4-500. [ 6 ] The unusual aspect of this case is that all of this action involving the assault by the accused and his friend was captured on videotape, through the surveillance cameras in the establishment. [ 7 ] The complainant had a brief prior encounter with the accused earlier that evening. The details of that have some significance.

All the time that the complainant was using the VLT machines, the accused was at the bar talking with the female bartender, a former girlfriend of the accused. The complainant was the only person using the VLT machines. According to the bartender, he was hitting the VLT machine ‘play button’ hard. It annoyed the accused who then told the complainant , in what the complainant described as a ‘really polite’ manner that he was pressing the button too hard.

The complainant apologized. [ 8 ] The complainant also testified that the Accused had asked him at one time during the evening if “You know me” to which he replied that he did not. [ 9 ] The bartender confirmed that the verbal interaction between the accused and the complainant had been ‘polite’. [ 10 ] This young bartender testified that the Accused was at the pool hall that evening for a few hours. After playing pool with his friends he came to her bar .

He consumed 4 or 5 drinks over the 1-2 hours he was with her and they were talking. [ 11 ] As to the establishment’s procedure with respect to the VLT machines, the bartender described such. Each time there is a winner at the VLT machines there is a noise to indicate such, then allowing her to check which machine and the amount of the win. She would then get the money, count it at the bar and take it to the winner. At the time in question, the complainant was the only player, he won a few times and she followed this procedure.

She testified that the Accused was close enough to see and hear all of this action. [ 12 ] She testified that a friend of the Accused’s (referred to herein as the Accused’s “friend”) came to the bar, spoke to the Accused , who in turn asked the bartender for the friend’s taxi fare. The bartender obliged and the friend returned to the bar after leaving, presumably to pay the cabdriver. [ 13 ] Also at the bar was a cousin of the Accused and her 3 friends. They had gone outside for a smoke and observed the accused’s friend arrive by taxi and return to pay the cabdriver, who then left.

[ 14 ] The bartender testified that the Accused has jealously and anger problems and can be violent. The complainant testified that he noticed interaction between the two, who, to him, seemed to be boyfriend and girlfriend. He did not hear them in any argument nor did he make any bodily indications towards them. He was in his terms “minding my own business” [ 15 ] While playing the VLT machines, the complainant heard the bar tender say “Jared, Jared” and the Accused advanced towards him saying something to the effect : ‘Do you know what you did to me or said to me earlier’ and started hitting him.

The video tape clearly shows this assault in which the complainant takes no aggressive part. [ 16 ] The video shows the accused’s friend also slowly advancing as the accused is pummelling the complainant who falls to the floor. The accused can be observed on the videotape as looking in the direction of the friend on a couple of occasions. This friend joined-in in striking the complainant, who eventually falls to the floor.

He is then seen picking up what was the complainant’s wallet from the floor and quickly leaving. [ 17 ] After the friend departed, the accused continued the assault, picking up a bar stool and striking the complainant several times. He then left the area. [ 18 ] To his credit, on the videotape the complainant appears to be in control of his emotions despite the beating. He even tried to straighten up the place. When assistance did arrive he indicated that he did not want medical assistance because he had to go to work later that morning.

He was injured suffering a broken nose, bruised and cut lip and ear, black eyes and bruising . The manager of the bar, on arrival, described the scene she saw. She testified that the complainant was bleeding from the mouth, nose and head and there was blood on the walls, the VLT machines and the chairs. [ 19 ] Another video camera recorded the Accused’s friend leaving the bar area for the entranceway and 24 seconds later the accused left by the same route. [ 20 ] The police received a call at 1:30 AM to respond. They viewed the video tapes.

A tracking dog was used for 20 minutes on the trails behind the bar with no results. At 2:10 AM they encountered the Accused at the end of a trail. He was observed to be sweating profusely with indications of wet and muddy shoes and grass stains. He raised his hands and said: “I surrender”. He was arrested on a Warrant of apprehension for a parole violation. When told of his detention he was at first agitated and want to fight, but calmed down. He lied about his identity. He had no wallet or money and no

article belonging to the complainant on his person. Assessment of Credibility [ 21 ] The Complainant presented as a very credible witness. Despite the beating and loss he sustained, his powers of observation and recollection were good and he gave his evidence in a straight forward manner with no indication of bias or exaggeration. In fact, as noted in his actions the evening in question, he appeared more to understate or downplay the situation.

His testimony was consistent in every respect with the videotape and there were no inconsistencies between direct and cross examination. [ 22 ] The manager of the bar and the Accused’s cousin were also credible witnesses, attempting to recall as fairly and honestly as they could, what they observed and heard. [ 23 ] The bartender was noticeably in a tenuous position. She was the former girlfriend of the Accused, and viewed him that evening as a friend and someone whose assistance she appreciated.

According to her, they had been talking for 1-2 hours and he spoke to the complainant about pushing the machine keys too hard. She also was receptive to the suggestions as to alternative explanations for the Accused’s conduct that evening, which may, in part, be influenced by her relationship with the Accused. Her testimony was, for the most part, consistent with the testimony of the other witnesses and the videotape evidence. [ 24 ] The credibility of the police officers was not seriously challenged. Analysis: [ 25 ] In addressing the issue of proof of intent to steal, in R. v. Ajang 2012 ABCA 364 (Alta.

C.A.) the court stated at paras 11: 11

Section 343(

c) states that a robbery is committed when there is an assault "with an intent to steal". Whether an intent to steal has been proven requires the judge to consider the entire context: R. v. Hodson , 2001 ABCA 111 , 281 AR 76. [ 26 ] Further, as addressed by our C.A. in R. v. Stevens [1984] N.B.J. No 103 , in the absence of direct evidence of such an intent, such as the accused spoken words, a court is permitted to infer such from circumstances. However the C.A. stressed a caveat: 8 It would take very little evidence to support the trial judge's conclusion that the accused had the intent to steal.

The probability is that he is right. But probability is, of course, not enough. The judge must be satisfied beyond a reasonable doubt. He can, it is true, arrive at a conclusion by way of inference. But there must be some evidence upon which he can infer the specific intent required by law to constitute the offence [ 27 ] Consistent with the contextualized approach in Ajang and the approach in Stevens, the Crown urged me to consider the whole of the evidence when determining whether an intention to steal had been proven.

When I consider the whole of the evidence I am highly suspicious of the circumstances and it is entirely possible that the accused intended to steal money from the complainant, either by himself or in concert with the other male . Some of the factors which give rise to this suspicion include the following: i. A motive of money for the crime. The Accused , while at the bar when his friend arrived, appeared to be without money.

While there is some evidence that during the evening he had consumed some drinks, and presumably paid for them, when his friend arrived he had to borrow the cab fare for his friend, from the bartender.

ii. The Accused’s knowledge of the complainant’s win. The accused was in a position to hear and see that the complainant had won at the VLT and was paid money; iii. The contacting of an accomplice: Some time after that win by the complainant, the accused phoned or texted his friend, who later arrived by taxi asking the accused for the cab fare iv. The suspicious situation that neither the accused nor his friend would have any money and yet remain or come to this bar. v. The absence of any other apparent reason for the assault.

There was no prior provocative interaction between the complainant and the accused, and no interaction between the complainant and the Accused’s friend. vi. The words spoken by the accused to the complainant as he started his assault, “Do you know what you did or said to me earlier” , which bear no context, appearing as a fabricated justification. vii. The interaction between the Accused and his friend. The videotape shows the Accused , after starting to assault the complainant, looking and checking back towards his friend who was advancing towards the assault.

The Crown suggests that such demonstrated a joint venture in a plan to rob. viii. The action of the Accused’s friend, who with no provocation , joined the Accused in physically assaulting the complainant, and then making off with the complainant’s wallet. ix. The timing and manner of exiting the scene. Shortly after the friend picked up the complainant’s wallet from the floor, and as the assault continued, he left the building, followed by the Accused 24 seconds later. Both left on foot. x. The reaction of others including the police officers who responded.

On viewing the video tape they considered it showed a robbery. xi. Post -offence conduct: The timing, location and manner of the Accused’s arrest. He was arrested shortly after, displaying signs that he had been running on a back trail , 2-3 kilometers from the bar and appearing to hide part of his exterior clothing. The actions of the Accused on arrest. When he tried to walk past the arresting officer, he raised his hands and said “I surrender”’. He challenged the officer to fight and appeared agitated.

He lied to the police about his identity. [ 28 ] The Accused counters with other observations from the testimony, namely: i A plausible inference for the Accused’s presence at the bar other than robbery. The bartender testified that they had a prior one month relationship and that he sometimes visited her at her work. ii The absence of any actions of the Accused that he intended to rob. The bartender testified that she saw no indication that the accused was ‘casing’ the complainant. iii The absence of any words attributed to or adopted by the Accused which would indicate an intent to steal. iv.

An alternative plausible inference for his use of violence. The accused was annoyed with the complainant hitting the VLT buttons too hard, and knew it was upsetting the bartender as well. Also he had been drinking and the bartender rated him 8 out of ten drunk. All suggesting a possible reason for the assault other than robbery v. Another alternative plausible inference for his use of violence. The accused was known to the bartender as having jealousy and anger problems and used violence at times.

She testified that just before the accused advanced on the complainant that he said something to the effect “ What is that guy looking and smiling at you, he’s disrespecting me”. This suggesting a possible reason for the assault other than robbery. vi. The accused was rude and angry with others at the bar, such as his female cousin, confirming his state of agitation with others, not just the Accused. vii. While the video tape shows that both the accused and his friend left by the same entranceway, they did not leave together and there is no evidence that they went in the same direction or together. viii.

That the Accused would have been familiar with the presence of the surveillance cameras such that he would be unlikely to commit a robbery in view thereof. ix. The absence of any evidence that the Accused ever had physical possession of any

article belonging to the complainant and no wallet and no money was found on his person at the time of his arrest. x. Post-offence conduct: An alternative plausible inference for his actions on arrest.

There was an outstanding parole warrant of apprehension for the accused, which would account for his attempt to hide his shirt, his “ I surrender” comment and falsely identifying himself. [ 29 ] As noted this is a case where the central question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference that the accused did have the intention to steal or an inference other than that the accused is guilty. [ 30 ] The analysis of the law on circumstantial evidence as noted in R. v.

Pakula 2017 ABPC 33 is applicable to this case. [ 31 ] As that court recounted , that in assessing circumstantial evidence, inferences consistent with innocence do not have to arise from

proven facts: R. v. Khela , 2009 SCC 4 , [2009] 1 S.C.R. 104, at para. 58 ; see also R. v. Defaveri , 2014 BCCA 370 , 361 B.C.A.C. 301, at para. 10 ; R. v. Bui, 2014 ONCA 614 , 14 C.R. (7th) 149, at para. 28 . Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt. [ 32 ] One aspect of the circumstantial evidence is the post-offence conduct. In considering it’s probative value, the court must be mindful of the comments in R. v. White 2011 SCC 13 . to the effect that while the principal that post-offence conduct may constitute circumstantial evidence of guilt, there is a danger to its use; a danger recognized through judicial experience.

As the Court observed post–offence conduct will have “ no probative value when an accused’s post-offence conduct is ‘equally explained by ‘ or ‘ equally consistent with’ two or more offences””.

Here the accused would have been aware that he had committed the offences of assault and parole violation and his conduct would fall in the exception to probative value. [ 33 ] Returning to the other circumstantial evidence and having reviewed the video tape and the testimony of the witnesses, there appears to be some interaction involving the Accused and his friend, which could be interpreted as a plan executed by them both to assault the complainant and steal his VLT earnings.

The sequence of events from the complainant winning money, to the Accused calling his friend to the bar, to the unprovoked and serious assault following a seemingly non-contextual comment the Accused makes to explain the assault, the friend involving himself in the assault, making off with the wallet, the continued assault containing the complainant and the two exiting as they did, could all support a scenario of assault with intent to steal. [ 34 ] However all of these actions taken as a whole, could support other scenarios, including those canvassed by the Accused’s counsel. They include (

a) A violent reaction by the Accused, confirmed by what he said or implied in words, to the conduct of the complainant, even if mistakenly (

b) The accused looking for an excuse to fight and encouraging his friend, including by glances to him, to join as a party or backup (

c) The accused starting a fight and the friend joining in and taking the opportunity to take the wallet on the floor [ 35 ] What looks like a robbery, still requires proof beyond a reasonable doubt that it was such, including in this case the specific “intent to steal”. These other inferences are reasonable and plausible, even in the absence of testimony called by the Accused. [ 36 ] When viewing all the evidence, the Court is of the mind that the Accused probably had such intent. However , as noted in Stevens (supra) probability is, of course, not enough.

The Court must be satisfied beyond a reasonable doubt on this particular element of the crime charged. In my mind, while remaining highly suspicious , nevertheless there are reasonable inferences other than guilt. In such situation the Court must find that the Crown's evidence does not meet the standard of proof beyond a reasonable doubt regarding this specific intent required by law to constitute the offence. Conclusion: [ 37 ] In the circumstances the Accused is found not guilty of the offence of robbery, and guilty of the included indictable offence of assault with a weapon contrary to s.267 (

a) Criminal Code .