Her Majesty the Queen - v. -, 2010 SKPC 171

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 171 Date: December 1, 2010 Information: 44657386 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ian Andrew Gamble Appearing: M. Segu For the Crown D. Winegarden For the Accused JUDGMENT M.L. GRAY , J [ 1 ] Ian Andrew Gamble is charged with committing a sexual assault causing bodily harm to F.L. on May 3, 2008, and with committing a sexual assault causing bodily harm to S.S. on May 24, 2008. Further, Mr.

Gamble is charged with breaching an undertaking by failing to keep the peace and be of good behaviour on each of those dates. [ 2 ] Briefly stated, these allegations were the result of a complaint made by F.L. that she was given a ride and sexually assaulted by a stranger who said he was Darren Harper’s brother. She provided a physical description of her attacker, but no identification was made until the police received a complaint from S.S. on May 24, 2008.

[ 3 ] S.S. reported that she met a male named “Ian” at a party and, after driving to various places for about three hours, she was sexually assaulted. She learned later that Ian’s last name was Gamble. This male also claimed to be connected to the Harper family, who are known to the police and other factions of this community to be associated to a local gang. The fact that both S.S. and F.L. reported that their assailant referred to the Harper family prompted the police to conduct a concurrent investigation into both complaints.

Using the name Ian Gamble to compile a photographic line-up, identification of the accused was obtained from both women as well as a friend of S.S. who also had been at the party. [ 4 ] Counsel for the accused provided a notice of intention of an application to exclude the police photograph used in a photo line-up as it violated his rights pursuant to sections 7 and 11(

d) of the Charter of Rights and Freedoms. Counsel for the Crown advised that they would be seeking a finding of similar fact evidence. As a result, the evidence for the Crown was tendered on a voir dire with an agreement that it could be applied to the trial proper, subject to rulings from the Court on admissibility. [ 5 ] The defence did not dispute the allegations of sexual assault made by F.L. or S.S. except to the extent that the evidence did not establish bodily harm. The issues for the Court revolve around the question of the identity of the assailant.

At the conclusion of the Crown’s case, counsel for the accused indicated that a defence of alibi would be argued. The specifics of that alibi were provided for the first time at the beginning of the case for the defence. BACKGROUND [ 6 ] At the outset of the trial, counsel for the accused agreed that there was no issue with respect to the continuity of exhibits or with the admission of the medical records of S.S. and F.L, or the photographs of S.S. Counsel also consented to the admission of the following exhibits: 1. A photocopy of an undertaking entered into by the accused on April 16, 2005 as P1; 2.

A DNA Laboratory Report in relation to F.L. dated November 5, 2008 as P2; 3. A DNA Laboratory Report in relation to S.S. dated November 13, 2008 as P3; and 4.

A licence plate history for a 2003 Hyundai Tiburon, Saskatchewan licence plate number 323FHL registered to Julia Gamble and issued on December16, 2007 with an expiration of December 15, 2008 as P5; [ 7 ] The evidence of S.S. and F.L. with respect to the sexual assaults was not challenged or contradicted and the Court is satisfied that those acts have been established beyond a reasonable doubt. [ 8 ] In relation to the sexual assault of F.L, the Court accepts her evidence, which is summarised as follows: 1. After a night of drinking, F.L. was walking alone in the early morning hours of May 3, 2008.

She had finished a 2 litre bottle of Tropical Kiwi Cooler and described herself as really drunk and staggering. A yellow car pulled up at Avenue Q and 17 th Street and the driver and sole occupant asked her if she wanted a ride. She accepted because she did not want to be arrested for violating her probation by drinking. She also thought that the driver was a good-looking native guy who could be trusted. In the car, he said he sold cocaine for his brother Darren Harper and asked if she wanted some; she agreed as she believed the drug would have a sobering effect.

She recognized the name as that of a powerful respected family who was gang affiliated.

2. She relaxed in the front passenger side of the car with her eyes closed listening to the music. He drove down 11 th Street into the area where she had grown up and gone to school. She became aware that the vehicle stopped somewhere within a block of her old school. When the music was turned down, she opened her eyes and saw that the male had his pants down around his knees and that there was a condom on his erect penis. He threw $20.00 toward her and asked if she was a prostitute. When she threw the money back, he grabbed the hair on the top of her head with both hands and forced her mouth onto his penis.

When she bit it, he struck her with a closed fist while holding her head with his other hand. She could not say how many times she was struck but she could not believe that a man could hit so hard. The punches landed on her face, head and all over her body. He began choking her hard enough to make her “see black” and almost lose consciousness. She feared she was going to die. She recalled him saying something about his mother as he choked her. He began having intercourse with her while continuing to strike her with his right fist. She could not say how her pants were pulled down.

The more she fought the harder he hit her. She got the driver’s door open and he tumbled out, whereupon she got out the passenger side. He slammed the door on her ankle and grabbed at her leg. She was able to get out of his grasp and ran, simultaneously pulling up her pants. She ran to three separate houses where there was no answer. 3. She began walking and in short order was picked up by the police, at about 9:00 a.m. She gave the officers her sister’s name to avoid arrest and reported that she had been sexually assaulted by Darren Harper’s little brother.

Due to her drunkenness, she was left at her mother’s home but when she began arguing with her family the police were again called. She blacked out and woke up in a drunk tank wearing different clothes. Once she was sober she was taken to the Royal University Hospital where a sexual assault kit was done. [ 9 ] The Court is satisfied that a sexual assault was committed and that the injuries sustained by F.L. amount to bodily harm. I accept her evidence that as a result of the assault she suffered a sprained ankle and that her face, body and vagina were sore and that her head and neck hurt.

She was on crutches for one to one and one-half weeks and her ankle took about one month to heal. Her nose was swollen and she had bruises on her body which took two to two and one-half weeks to heal. Her neck and vagina were sore for several days. [ 10 ] Dr. Sarah McLaughlin began her examination of F.L. at 6:00 p.m. on May 3, 2008 and noted bilateral bruising to both forearms consistent with a defensive injury, obvious redness to the front of F.L.’s neck and bruising to her lower right breast. There was swelling around her left eye and an abrasion on the right side of her forehead.

F.L.’s left ankle was painful, swollen, and had limited motion. No fracture was revealed on the x-ray. The injuries proven are more than transient or trifling. [ 11 ] The Court also accepts the following evidence of S.S. in relation to her assault: 1. In May 2008, S.S. was 18 years old and attending school. On the evening of May 23 rd she and two friends, A.P. and V.D, went to a house party where they were to meet A.P.’s boyfriend. They had an alcoholic drink each as they got ready and arrived at the party between 3:00 and 3:30 in the morning. There were four other people there in addition to the girls.

They stayed about one hour and left with an individual named Ian who arrived about the same time as they were leaving. S.S, her two girlfriends and two other people drove about the city in Ian’s car. They purchased some whiskey at a bootlegger’s, and went to a park where they continued drinking. Eventually two of the people were dropped off leaving, S.S. and her two friends with Ian. None of the three girls had ever met Ian before the party. 2. The group tried to get some ecstasy and cocaine but were unsuccessful. They continued drinking the whiskey and eventually V.D. and A.P. were driven home.

S.S. remained in the car to get a ride to her home. Once A.P. and V. D. left the car, the male indicated that he could not get enough cocaine for the group but could for just the two of them. They parked in an alley in the Meadow Green District of Saskatoon ostensibly to wait for his friend who had cocaine. In cross-examination, S.S. said she felt “just buzzed”, but not drunk from the alcohol she had been drinking and that she was prepared to take drugs. 3. S.S. was in the front passenger seat of the vehicle and as they waited, they talked and listened to music. The male said his name

was Ian Harper; she associated that surname with a local gang. He talked about a drug debt owed to him and his brother by Mike and Randy Thunderchild. When asked in cross-examination whether he named his brother, she said “Darren” and also recalled him referring to another brother named Craig and a sister named Tony. She acknowledged that the name Gamble was never used. While they were sitting in the car, he offered her $1,000.00 to have sex with him which she refused. 4. After spending one-half to one hour in the alley waiting for a drug transaction that never materialized, she asked to be driven home.

The male asked for a kiss and she kissed his cheek. He then reached across her lap, put the passenger seat into a reclining position, and began choking her with both hands. While continuing to choke her with one hand, he simultaneously punched her with a fist. He told her he would kill her. She told him to stop and promised to do anything if he would. He did not stop choking and hitting her until she bit his arm. She then opened the passenger door and fell out of the car onto her knees. The suspect exited the passenger side and got on top of her.

She was face down on the ground; he got on her back and choked her by crossing his arms around her neck from behind. She blacked out for some period of time and when she came to she was still by the passenger door and the male was kicking her in her shoulder. He kicked her in the face and dragged her behind the car. As she lay there on her back, he told her to remove her pants. She feared he was going to kill her, so removed her pants and underwear. This gave her the opportunity to get up and run naked from the waist down, to a nearby home. In the meantime the male drove off. 5.

Christopher Kulbida was awakened by the hysterical, half-clad complainant at his back door and called emergency services. The police arrived within minutes. [ 12 ] I am satisfied that a sexual assault was committed and bodily harm resulted; the injuries sustained by S.S. were more than trivial. Those injuries are clearly depicted in P6 and show scrapes to her feet and various bruises on her body. Dr. Leslie Merryweather, who examined S.S. shortly after the attack confirmed those injuries and opined that they would take several days to two weeks to heal.

ISSUES [ 13 ] In relation to the voir dire , the following issues remain to be resolved: 1. Did the use of a photograph taken of the accused in relation to another proceeding violate his rights pursuant to s. 7 and s. 11(

d) of the Charter ? 2. If there was a violation, is exclusion the proper remedy? 3. Has the Crown established evidence of similar fact on a balance of probabilities? [ 14 ] The following questions need to be determined on the trial proper: 4. What weight is to be attached to the evidence of alibi? 5. Does the evidence establish the identity of the accused beyond a reasonable doubt? ANALYSIS 1. Did the use of a photograph taken of the accused in relation to another proceeding violate his rights pursuant to s. 7 and s. 11(

d) of the Charter? [15] The photograph in question was taken on April 16, 2005, after the accused had been arrested in relation to allegations ofmischief and common assault. The court record in relation to those allegations was marked as P10 and discloses that on the same date,an information was sworn, the accused was taken before a Justice of the Peace and released on an undertaking. He was required toattend Court on May 4, 2005, at which time the Crown elected to proceed summarily.

Ultimately, the accused entered a guilty plea tothat offence on December 3, 2008. [16] Counsel for the accused cites s. 2 of the Identification of Criminals Act,R.S.C.1985, c.I-1, Dudley v. Her Majesty the Queenand Director of Public Prosecutions of Canada, 2009 SCC 58 , 2009 S.C.C. 58 and R. v. Nicholson, [1999] B.C.J. No. 1330, forthe proposition that the photograph could only be retained and used by the police in relation to an indictable offence. Common assault isa hybrid offence, and considered to be indictable only until the Crown elects to proceed summarily.

This election, it is argued, appliesretrospectively to the point when the information is sworn and prohibits officers from using identification information gathered inrelation to a

summary conviction offence in subsequent investigations. Finally, defence argues that the proper administration of justicedemands that the photograph be excluded as consideration of that photograph offends the rights of the accused pursuant to sections 7 and11(

d) of the Charter. [17] Counsel for the Crown submits that an election to proceed summarily does not operate retrospectively; a hybrid offence isindictable and only becomes a

summary matter from the point when the election is made. Further, the Crown argues that in addition tothe power or obligation upon the police to preserve the identity of a person in custody conferred by the Identification of Criminals Act,there exists a common law power to preserve the identity of those charged with criminal offences. The Court was referred to R. v. Dang,2007 BCPC 430 , 2007 B.C.P.C. 430, which provides a comprehensive review of the law in relation to the police authority tofingerprint and photograph. [18]

Section 2 of the Identification of Criminals Act says, in part: The following persons may be fingerprinted or photographed or subjected to other such measurements, processes and operations havingthe objective of identifying persons as are approved by order of the Governor General in Council: (

a) any person who is in lawful custody charged with or convicted of (

i) an indictable offence .... [19] Section 34(1)(

a) of the

Interpretation Act R.S., c.I-23 states: Where an enactment creates an offence, the offence is deemed to be an indictable offence if the enactment provides that the offendermay be prosecuted for the offence by indictment. (emphasis added) [20] In Dudley, (supra), the Supreme Court of Canada set out the principles which govern those situations where a hybrid offence isprosecuted by way of

summary conviction outside the six month limitation period. The Court confirmed that hybrid offences aredeemed to be indictable unless and until the Crown elects to proceed summarily, but did not deal with the Identification of Criminals Act. [21] On the date that the photograph in question was taken, an information had been sworn; therefore, Mr. Gamble was “charged”with an indictable offence and any photographs or fingerprints were lawfully taken pursuant to the Act. The subsequent conviction for asummary offence does not alter the legitimacy of the police obtaining or possessing that information.

The purpose of the Act is to permitthe creation of a record of the identity of those offenders charged or convicted of an indictable offence, not only those convicted.

[22] There is no affirmative duty on the police to destroy any fingerprints or photographs taken in relation to a hybrid offence evenwhere it results in a

summary conviction. Indeed, s. 2(3) of the Identification of Criminals Act specifically permits the use ofinformation obtained pursuant to s. 2(1) for “the purpose of affording information to officers and others engaged in the execution oradministration of the law” while s. 4 only mandates the destruction of fingerprints and photographs where an individual is charged underthe Contraventions Act and the Attorney General subsequently elects, pursuant to s. 50 of that Act, to proceed by way of ticket. HadParliament intended the destruction of identification obtained with respect to hybrid offences which ultimately resulted in a

summaryconviction, I can only conclude the Act would have so specified. [23] I find that the photograph was lawfully obtained pursuant to the Identification of Criminals Act and there can be noexpectation of privacy, particularly in light of s. 2(1) of that Act.

Accordingly, the Court finds that no Charter violation has beenestablished either in the fact that the photograph was taken or retained. [24] Given the statutory basis for obtaining and retaining the photograph, there is no need to embark on an analysis of whether thesame authority exists in common law. [25] Counsel further argues that the use of that photograph in a manner inconsistent with the recommendations of the SophonowInquiry which have been adopted by jurisprudence, brings the administration of justice into disrepute and warrants exclusion.

Withoutdiscussing in detail, at this stage, any flaws which may have occurred in the use of the photo line-up, it is the view of the Court that anysuch frailties go to a consideration of what weight, if any, can be given to the evidence, and do not establish a breach of s. 7 or 11(

d) ofthe Charter. 2. If there was a violation, is exclusion the proper remedy? [26] Having concluded that a Charter breach has not been established, there is no need to embark on a s. 24(2) analysis. 3. Has the Crown established evidence of similar fact on a balance of probabilities? [27] As stated in R. v. Handy (2002), S.C.C. 56 at para. 55: Similar fact evidence is thus presumptively inadmissible.

The onus is on the prosecution to satisfy the trial judge on a balance ofprobabilities that in the context of the particular case the probative value of the evidence in relation to the particular issue outweighs itspotential prejudice and thereby justifies its reception. [28] In R. v. Lenius (2005), S.J. No. 836, Barclay J. provides a very helpful synopsis of the principled approach to similar factevidence as derived from R. v. Shearing (2002), S.C.C. 58, R. v. Arp, (SCC), [1998] 3 S.C.R. 339 and Handy, supra.

Barclay J. delineated the three areas for consideration as: the probative value of the evidence, the assessment of the prejudice to theaccused and balancing the probative value against the prejudicial effect. At paragraph 8 of Lenius (supra), the Court went on to say: In Handy, supra, the Supreme Court of Canada has identified four non-exhaustive criteria to be used to assess the probative value ofsimilar fact evidence. These factors will assist the trial judge in obtaining a proper understanding of the principled approach. Thesecriteria include: the issue(

s) in question; the presence or absence of collusion, similarities and dissimilarities between the facts chargedand the similar fact evidence; and, the strength of the evidence that the events occurred. [29] Before assessing the probative value of potential similar fact evidence, it is necessary to identify the issue to which theevidence is alleged to be relevant. In the case at hand, the Crown argues that the similar fact evidence, if admissible, is relevant only tothe issue of credibility as there is also eyewitness identification of the accused. In R. v. Arp, supra, Cory J. set out what was requiredwhere identity is the issue. At para. 45 he said:

Instead, a principled approach to the admission of similar fact evidence will in all cases rest on the finding that the accused’sinvolvement in the alleged similar acts or counts is unlikely to be the product of coincidence. This conclusion ensures that the evidencehas sufficient probative force to be admitted and will involve different consideration in different contexts. Where as here similar factevidence is adduced on the issue of identity, there must be a high degree of similarity between the acts for the evidence to be admitted.

For example, a unique trademark or signature will automatically render the alleged acts “strikingly similar” and therefore highlyprobative and admissible. In the same way, a number of significant similarities, taken together, may be such that by their cumulativeaffect, they warrant admission of the evidence. [30] The potential prejudice of similar fact evidence is the danger of inferring guilt from general disposition or propensity. Itshould be noted that the evidence tendered in the case at hand is not general propensity evidence or evidence of bad character.

In R. v.Linklater, 2003 SKCA 41 , 2003 SKCA 041, referred to by defence counsel, the accused entered a guilty plea to a charge ofaggravated assault. At a subsequent trial for break and enter and commit an aggravated assault, the Crown argued that the circumstancesof the first offence were so strikingly similar to the second that only the accused could be responsible. He was convicted on that basis;there was no other evidence of identity for the Court to consider.

On appeal, the conviction was overturned and an acquittal entered. [31] Unlike Linklater, supra, the Court in this case is not asked to draw conclusions of identity from the alleged similar facts. Rather, the question is whether the circumstances are sufficiently similar to permit the Court to conclude, on a balance of probabilities,that the same person committed both offences.

If a substantial degree of similarity exits, the similar fact evidence may providecircumstantial or supportive evidence of identity. [32] As stated by Cory J. in Arp, supra, at paras. 66 and 67: 66 . . . if the probative value of similar fact evidence, as circumstantial evidence, lies in the unlikelihood of coincidence, it simply doesnot make sense to require one of the allegations to be proved beyond a reasonable doubt as a pre-requisite to the trier of facts’consideration of it.

Though the similar fact evidence, standing alone, may fall short of proof beyond a reasonable doubt, it can be reliedupon to assist in proving another allegation beyond a reasonable doubt. Two separate allegations can support each other to the point ofconstituting proof beyond a reasonable doubt, even where a reasonable doubt may have existed in relation to each in isolation. . . . 67 . . . the probative value of the evidence does not depend on a finding that both offences were necessarily committed by the sameperson.

Rather, it is the likelihood that they had the same perpetrator that sufficiently narrows the scope for coincidence so as to give theevidence legitimate probative value. The unlikelihood of an accused’s twice being implicated in two very similar offences may furnishcircumstantial evidence of his or her guilt for both. That circumstance, when combined with other evidence in support of each charge,may add up to guilt beyond a reasonable doubt. [33] The evidence before the Court establishes the following points of similarity: 1. Both complainants got a ride from their attacker; 2.

Both complainants describe his car as a small sports car; 3. Both describe him as a young aboriginal male; 4. He told both that he was involved in the drug trade; 5. He told both that he could get cocaine; 6. He delayed each complainant in the vehicle on the pretext of waiting for the drug dealer; 7. They waited for the dealer in an alley; 8. The drugs never materialized; 9. He offered each complainant money for sexual favours; 10. When the complainants declined, they were physically attacked;

11. Both complainants were choked until they lost or nearly lost consciousness; 12. He described himself to both complainants as a member of the “Harper” family. [34] The following dissimilarities are noted in the evidence: 1. One complainant described the car as red; the other as yellow; 2. One said that the interior of the car was black; the other said that it had a light coloured interior; 3. One described a particular ornament hanging from the rear- view mirror; the other did not; 4. Penetration occurred with one complainant but not the other. [35] The evidence that the events occurred is strong.

Further, the evidence is uncontradicted that the two complainants did notknow each other nor have they ever conversed. There is no air of reality to the suggestion that there was collusion between them. Finally, the similarities are far more significant than the differences in their descriptions of the assault. Particularly, the reference tobeing part of the Harper family and involved in the drug trade takes these similarities beyond the realm of coincidence.

Under thesecircumstances, the likelihood that these assaults were committed by two different individuals is improbable and I am satisfied on abalance of probabilities that the evidence is sufficiently similar to establish that the same person committed both assaults. The fact thatthe assaults occurred only 20 days apart in the same general area of the city only adds weight to that conclusion. The evidence is moreprobative than prejudicial, as it does not point to any particular person. Accordingly, the evidence will be admitted as similar fact whichcan be considered in weighing the evidence of identity. 4.

What weight is to be attached to the evidence of alibi? [36] The Charter of Rights and Freedoms enshrines the right of an accused to remain silent; however, there are qualifications tothat right when a defence of alibi is asserted. An accused who does not make timely disclosure of the alibi runs the risk of the Courtdrawing an adverse inference from that failure.

This does not mean that an accused must promptly upon arrest tell the police of the alibi;it means that a defence of alibi needs to be given in sufficient time to allow the authorities to investigate it and the alibi must be given in asufficiently detailed fashion to permit a meaningful investigation: see R. v. Cleghorn, (SCC), [1995] 3 S.C.R. 175.

Therationale for this rule is described in Cleghorn (supra) as one of expediency, and intended to guard against surprise alibis beingconcocted at trial thus inhibiting or preventing meaningful cross-examination. [37] Further, the assertion of an alibi does not in any way shift the onus to the accused or diminish the burden upon the Crown ofproof beyond a reasonable doubt. It does require that the Court first analyse the evidence of alibi. If it is accepted, clearly an accusedcannot be found guilty, having established that he was elsewhere at the time the offence was alleged to have been committed.

If it isdisbelieved, the Court must go on to determine if the evidence establishes the allegations beyond a reasonable doubt. If, however, aninitial assessment of the alibi raises a doubt, that doubt may be displaced after an analysis of the evidence as a whole. [38] The accused testified that he did not commit the sexual assaults and was elsewhere on the dates they are alleged to haveoccurred. On May 3, the date of the sexual assault on F.L, he said he was at home all day and only left briefly to go to the home of hiscousin Josh.

Afterward he, Shelley Beatty, Josh and Lindsay watched a movie, surfed the Internet and went to bed. He could not giveany detail about the movie they watched. Josh and his family stayed overnight. Nobody left the house until about 4:00 p.m. ShelleyBeatty confirmed this version of events and thought Josh and Lindsay left on Saturday afternoon but could not be sure. She recalledordering a pay per view movie but could not recall the title or anything about it. She confirmed that the accused did not have access to avehicle.

[ 39 ] With respect to May 24, 2008 the date of the assault on S.S, the accused said that upon reflection he recalled being at home in the morning packing for a weekend trip to Prince Albert. In the afternoon, his brother Charles Gamble picked him up and they went to Westmount School where the children were collected. From there he, his sons, Shelley Beatty and his brother Charles left for Prince Albert. The purpose of the trip was to surprise his sister-in-law, Larissa Beatty, on her birthday.

When they arrived at her home, he gave Larissa $50.00 for a present, they visited for an hour and then went to the home of his brother Regis to find a babysitter. His nephews agreed to babysit, so he and his wife returned to Larissa’s home where they enjoyed a barbeque and some drinks. They stayed until about 11:00 p.m. or 12:00 a.m. and then returned to the home of Regis where they went to bed. He did not leave the house that night and did not wake until the next afternoon. They spent the afternoon shopping for a dress for his wife’s graduation which was to occur on May 29.

He did not have access to a motor vehicle while in Prince Albert and did not have a driver’s license. Although his mother owned a red car, he was not permitted to drive it. [ 40 ] Julia Gamble, the mother of the accused, said that Ian and his children visited her in Prince Albert on May 23, 2008. She did not attend any party as that was for “young people”. Ms. Gamble acknowledged that in May 2008 she owned two vehicles, one a 2004 Honda Civic and the other a red Tiburon. She loaned the Tiburon to Jonathon Gamble long before June for the purpose of driving his work crew.

She did not allow the accused to use her vehicles as he did not have a license and it was “against the law”. She was certain that Jonathon would not let the accused use the Tiburon, but reluctantly acknowledged that she would not necessarily know if he had. [ 41 ] Charles Gamble described the accused as his little brother and employee whom he drove to work and on occasion to Prince Albert; May 23, 2008 was one of those days. While at work, the accused kept phoning and bugging him for a ride to Prince Albert.

He capitulated, and, after work he, Ian, Shelley and their two boys drove to Prince Albert in his mother’s GMC extended cab truck. He dropped the accused at their mother’s home in Prince Albert, and did not see him again that night. He did not attend a party but simply spent the night with his wife and left Prince Albert alone at about 6:00 a.m. the following morning. In cross-examination, he said he was working with his brother on May 23, 2008, in the Stonebridge area. They started work at 7:00 a.m. and left sometime between 5:00 and 6:00 p.m.

From there he went to his home and then to pick up the accused, his wife and their two children. He denied collecting the children at school, although that is what the accused had initially asked. The trip to Prince Albert occurred on a Friday and he returned alone on Saturday. He did not agree that the accused returned with him. He did not save any gas receipts from that trip. [ 42 ] The only independent evidence tendered does not support the alibi. D2, a statement of account from Shaw Cable covering April 24, 2008 to June16, 2008 shows a pay for view movie billed to the account of “I.

Gamble” on Monday, May 5, 2008, not Friday, May 2, 2008. The billing practices of Shaw were not explained by anyone from that company; the explanation offered by Ms. Beatty was that there is a lag in billing any weekend rentals. If one accepts this explanation, albeit hearsay, it would suggest that a movie was also rented sometime on the weekend of May 23 when the family was in Prince Albert as D2 shows a movie billing dated Monday, May 26. Ms. Beatty recalled being in school on the 26 th but could not say if a movie was rented. [ 43 ] In assessing the credibility of the alibi witnesses, the following is noted.

Ms. Beatty testified that she had lied to the police when she complained that the accused had assaulted her in 2005. Even though he was in jail and had entered a guilty plea, she did not see any purpose in righting the record. She agreed that she was prepared to lie when it suited her. Julia Gamble could not respond in a straightforward way when confronted with a criminal record for false pretences and would not admit that an offence of that nature was one of dishonesty. The accused admitted to a practice of dishonesty by failing to report his employment income.

Charles Gamble objected to being asked to name the workers other than the accused who he drove to work. Only when directed to answer, did he provide those names, which included Mike and Randy Thunderchild. Curiously, those same two names arose in conversation between S.S. and “Ian” prior to her assault. [ 44 ] In addition, there are a number of inconsistencies in the evidence of the defence witnesses.

First, the accused said that he was at home all day on the 23 rd of May, getting ready to go to Prince Albert, that he was picked up by his brother Charles and that they stopped at the school to pick up the children before setting out. Charles initially said that the accused kept phoning him at work that day then later said that the accused was at work with him. He denied a stop at the school. Charles Gamble says he returned to Saskatoon alone on the morning of the 24 th ; he specifically recalled that because his early return caused a big argument with his wife.

Shelley Beatty says they returned with Charles on Sunday the 25 th ; the accused had no recollection of when or how he got back to Saskatoon. [ 45 ] Jonathon Gamble was certain that his mother’s red Tiburon was parked at his house until late June. Julia Gamble explained that she retrieved her car from Jonathon and parked it at the home of the accused because she stayed “with Ian” after her discharge from hospital.

The evidence also shows that her son was arrested on June 6, 2008, the day she was discharged, and would not have been at his home; the court record indicates he was not released from custody until December 9, 2008. Ms. Gamble displayed extreme reluctance to acknowledge that she could not know for certain who used her Tiburon when it was out of her possession.

[ 46 ] Regis Wichihin also testified in support of the accused’s whereabouts the weekend of May 23, 2008. Mr. Wichihin is an older brother who lives in a busy household with his wife and eight children in Prince Albert. The accused frequently spent the night at his home and there was nothing to distinguish that weekend in May from any other time the accused had visited. He made no notes at the time but recalls that there was a birthday party. [ 47 ] It is admitted that details of the alibi were not revealed to anyone prior to the trial.

Particulars of the alibi were not even disclosed to defence counsel until the morning it was presented to the Court. The reasons for not telling anyone included: a mistrust of the authorities, particularly the police; a lack of opportunity to tell anyone; that no one asked and that it did not seem necessary to say anything as there was some belief that the matter would not proceed to trial. Although one might accept an inherent distrust of state authorities, the reasons given do not explain why Mr. Gamble’s various lawyers were kept in the dark.

Nor does it explain why this close-knit family would allow a son, father and brother to remain in custody for about six months and facing the jeopardy of serious allegations if a clear alibi existed. It stretches credulity to think it would be kept secret until someone asked a direct question about the whereabouts of the accused on the alleged offence dates. Further, no notes were made immediately after the allegations came to light. Rather, the alibi provided was the result of discussions between family members about events which had occurred some two and one- half years earlier.

A written version of this alibi was first produced by Ms. Beatty in conjunction with the accused on the evening before the defence case was to begin. The accused acknowledged that he “brainstormed” with his brother about certain details. [ 48 ] After weighing and considering the defence evidence and taking into account the very late revelation of the particulars of the alibi, the lack of detail in the evidence of the alibi witnesses, the inconsistencies within that evidence and the lack of any independent supportive evidence, the Court can only conclude that it is unbelievable.

It does not set forth an alibi which would entitle the accused to an acquittal. 5. Does the evidence establish the identity of the accused beyond a reasonable doubt? [ 49 ] The evidence of identification falls into the following categories: 1. verbal descriptions by eyewitnesses S.S, F.L. and A.P.; 2. photo line-up; 3. in Court identification; and 4. DNA Laboratory Reports (P2 and P3). 1. Verbal descriptions by eyewitnesses (

a) S.S. [ 50 ] In her evidence, S.S. described the suspect as being about 24 or 25 years old, aboriginal with brown eyes and short, brown hair styled in a spiky fashion. He had a mustache, which was not “that thick” but no other facial hair. He was 5'8" tall with an average build. She was certain of his height as she is 5'8" tall and he was neither taller nor shorter. He had a tattoo on his left forearm. He was wearing a white shirt and blue jeans. He told her that he was Ian Harper, but she later learned from A.P. that his surname was Gamble.

When cross-examined about the tattoo, she said that she just knew that he had a tattoo on his arm. Cst. Adrian who met her at the hospital received a brief description in which she said the suspect was named Ian, was tall, native, with short black hair, a goatee and tattoos on both arms. He did not ask her to define “tall” or what she meant by goatee. [ 51 ] When interviewed by Sergeant Nogier, S.S. provided the name Ian Gamble, and described him as a native male with short dark hair, brown eyes, 5'8" tall, with tattoos on both arms and a mustache or a goatee strip under his lip.

He wore blue jeans, a white shirt and a white hat. (

b) A.P.

[ 52 ] A.P, the friend of S.S, described the person who introduced himself as Ian as native, 5'7" to 5'8" tall, with short, spiky dark hair and a mustache that was not thick. He wore a white shirt and blue jeans. (

c) F. L. [ 53 ] F.L. gave the following description of her assailant to the Court: aboriginal, good-looking, with short, dark hair, bushy eyebrows and noticeable pores in his skin which she likened to acne or chicken pox scars. [ 54 ] Constable Holowachuk was the first officer to have contact with F.L. who was extremely intoxicated and hysterical.

The only information which he obtained from her was that the assailant was Darren Harper’s little brother, native, mid-twenties with short hair. [ 55 ] On June 3, 2008, Sergeant Nogier received the following description of the suspect from F.L.: aboriginal, pockmarked face, bushy eyebrows, good-looking, average height, wearing blue jeans and a black shirt. [ 56 ] Sergeant Nogier met with the accused on June 7, 2008, and believed that the accused fit the general description given by the three witnesses. He described the accused as slender with short dark hair, bushy eyebrows and pockmarked skin.

He also noted that the accused had tattoos on both arms. Of further note, was an injury to his right hand. 2. Photo line-up [ 57 ] The evidence of Sergeant Nogier is that until May 24, 2008, the only information that the police had, apart from a verbal description, was the name Darren Harper and F.L.’s report that her attacker was Darren Harper’s little brother. Police identification photographs and information portrayed the Harper brothers as Caucasian; they did not match the descriptions given. Upon receiving the complaint from S.S, Sergeant Nogier obtained the name Ian Gamble.

S.S. had been told that other people at the party knew the male by that name. Sergeant Nogier discovered 10-15 people named Ian Gamble in the police system and eliminated them if they did not match the physical description given by the complainants as to age, race, build and hair colour. The photograph of the accused fit the general overall description provided by the witnesses. The officer also noted that the accused appeared to have bushy eyebrows as mentioned by F.L.

It was for these reasons that the accused was selected for inclusion in a photographic array. [ 58 ] The next step taken by Sergeant Nogier was to conduct a search of the system for others who fit the parameters established by gender, age, race, hair colour, and facial hair. The search generated several photographs, including the brother of the accused, Charles Gamble, which he eliminated because he was much bigger than the suspect described. After studying these photographs, he selected eight which, in his opinion, resembled that of the suspect.

All nine of these photos were “shuffled” by the computer and printed on a master sheet, in three rows of three with each photo identified by name. This was intended for his use and his records and was never shown to a witness. Each photograph was then printed on a single sheet, without reference to any name, and placed in the order of the master sheet with the accused third in line. [ 59 ] On June 3, 2008, Sergeant Nogier met with F.L. in an interview room equipped with sound and video recording equipment for the purpose of conducting an interview.

He found her to be calm and willing to discuss the assault allegation. She did not mention the Harper name. The officer was aware of that reference in her initial disclosure to the police, but did not ask her about it. Toward the conclusion of the interview, he began the process of showing her the photographs which he had compiled. He provided the instructions, marked as P11, which she acknowledged by signing. He only told her that the suspect may or may not be in the group, that she did not need to pick anyone and that she should reserve any comment until she had looked at all nine.

As she went through the pictures, her demeanour dramatically changed; she became withdrawn, crossed her arms over her chest, began to cry and wanted to leave the interview. She insisted that the recording stop. He left the room to switch off the camera, leaving F.L. with two victim services workers. When he returned, she was still upset so he invited her to talk about it and then reassured her by saying that none of the photographs depicted anyone associated to the Harper family. He did so as he believed that any fear that she may have in that respect was a legitimate one.

Although he did not provide any details of the S.S. investigation, he did tell her that the police had a similar complaint. After this, she was again prepared to look at the photographs which were shown to her one at a time. The officer candidly

admitted that in retrospect, he ought to have restarted the recording equipment, but he did not. She selected the photograph of the accused, but he did not record the exact words she used when she picked it. Although victim service workers were present, they said and did nothing through the viewing and were not privy to who the suspect might be. F.L. said that she lied to Sergeant Nogier when she said that her attacker was not in the group of photographs. She confirmed that no one told her who to pick and that she was surprised that the officer knew that she was afraid of the Harpers because she had not told him.

The support personnel only told her to be strong and that they believed another girl had been assaulted. She said that she was “absolutely positive” about her selection. [ 60 ] On June 4, 2008, Sergeant Nogier met with S.S. at her home with this line-up and reviewed the instruction sheet which was marked as P7; no other instructions were given to S.S. who was with her mother. Sergeant Nogier indicated that her mother did not participate in any way; S.S. did not recall anyone else being home when she met with the officer.

She confirmed that no other instructions were made beyond those which were written and signed by her. S.S. was shown nine photographs one at a time; the photographs were not marked or identified by name or number. She confirmed that she selected the third photograph and was “positive”. The officer conceded that the only reason he went to S.S. rather than have her attend to the police station was for her convenience and comfort. [ 61 ] On June 5, 2008, the officer went to the home of A.P. where she was alone.

He showed her the same line-up in the same manner and she also selected the third photograph, saying, “I remember him looking like that.” The officer admitted that it would have been better practice to have put the suspect in a different position in the line-up. He asked her whether she had spoken to S.S. about the line-up; she had, but was of the opinion that S.S. had seen a live line-up. Sergeant Nogier had no explanation for the failure to create an audio recording of these proceedings with S.S. and A.P. 3.

In Court identification [ 62 ] S.S, A.P. and F.L. all pointed to the accused in the body of the courtroom where he sat in the company of family members, including his brothers.

They did so prior to identifying the photo array they had been shown in the course of the investigation. [ 63 ] S.S. indicated that she had seen the accused personally only once after the assault, and that was in Court. [ 64 ] F.L. also acknowledged seeing the accused after viewing the photographic line-up: once at a grocery store and once at a school concert. [ 65 ] F.L. testified in a manner which suggested to the Court that she was re-experiencing the events as she spoke. She was emotional and descriptive to the degree of mimicking the words and tone of her assailant when recounting their conversation.

When asked whether her attacker was in Court, she began to cry and appeared very distraught. The following reflects her evidence on this point: Q: The person you have described in Court today as being the driver of that vehicle A: Yes. Q: Do you see that person anywhere here today? A: Yes I do. Q: Could you point him out for the Court please? A: (pause) I don’t want to look Q: Okay I’m going to have to ask you to just... A: He’s right there Q: ...just point him out and describe what he is wearing. A: He’s wearing a black coat he’s smiling at me I need a break.

Argument on Identification [66] Counsel for the accused argues that the methodology used in showing the photographic array to the witnesses is so flawed thatany identification obtained ought to be excluded or given no weight. Further, the flaws in that methodology taint the in Courtidentification so that no reliance can be placed on it. First, he argues that the manner in which the accused’s picture was selected for theline-up was improper in that the police system yielded photographs of several people with the name of Ian Gamble, yet the officerselected only his client.

Second, two of the witnesses viewed the array at their respective homes and the process was not video or audiotaped. The third witness was on video but the selection of the accused was not recorded. Third, the lead investigator on the file, asopposed to an officer who had no knowledge of the investigation, showed the array to all the witnesses and the accused was placed in thesame position each time. Finally, the defence submits that the identification of F.L. cannot possibly be accurate because the DNAanalysis of her clothing eliminated his client.

Analysis of Identification Evidence [67] The frailties and dangers associated with eyewitness identification have long been recognized and real caution must beexercised in convicting on that kind of evidence alone. Human observations and recollections of identity are notoriously unreliable; themost honest witness can be mistaken but yet present as very convincing and sure of their identification. [68] Counsel for the accused referred the Court to R. v. Bigsky 2006 SKCA 145 (Sask. C.A.), and R. v. Friesen 2005 SKPC 68(Sask. P.C.) in relation to the question of eyewitness identity.

I have also taken the opportunity to read and consider R. v. Hibbert 2002SCC 39 and R. v. Hay 2009 ONCA 398 , [2009] O.J. No. 1904 (Ont. C.A.). In Bigsky (supra), the Court of Appeal reviewed anumber of authorities where convictions were based on eyewitness testimony. Although courts must be wary of basing convictions oneyewitness identification, it does not mean that all eyewitness identification which is challenged must be ruled out.

It is important toconsider factors such as: whether there was opportunity to observe, whether the accused was known to the witness, whether there hasbeen an out of court identification, whether a photo line-up provided a meaningful test of the witness’ ability to make an identificationand whether there is any supportive or corroborative evidence. [69] In the case at hand, both S.S. and A.P. spent several hours in the company of “Ian” and had ample opportunity to observe andinteract with him.

Although S.S. had been drinking, she did not display any symptoms of intoxication when seen by Constable Adrienand the physician soon after the assault. Very shortly after the incident, both S.S. and A.P. provided verbal descriptions which haveremained largely consistent throughout. The only discrepancy with respect to S.S. is that she initially described the suspect as having agoatee and tattoos on both arms; at trial she referred to a mustache and one tattoo. [70] Within days, S.S. and A.P. were shown a photo line-up of nine similar looking individuals and both women selected theaccused without hesitation.

They both pointed to the accused in the body of the courtroom where he sat with a number of other males.Although it would have been preferable to have the witnesses videotaped when they viewed the line-up and it would have beenpreferable to have the accused’s position in that line-up varied with each witness, I am satisfied that sufficient safeguards were used topreserve the integrity of the photographic array. Both were told that the suspect may or may not be in the line-up, that they were notobligated to select anyone and that they should carefully look at each picture before making any comment.

Both confirmed that theywere given no other instruction and no suggestion was made to them about who to select. A.P. testified that although S.S. told her thatthe police might show her some pictures, they had no other discussion on the subject. There is nothing in the evidence to suggest that theinvestigating officer suffered from tunnel vision by following the information that he had received as to the name of the suspect.

Practicality suggests that an investigation has to start somewhere and when a suspect is named by a witness, it would be negligent toignore that information, particularly when the physical description given by the witness is consistent with that of the person named. [71] Counsel for the accused suggests that S.S. has become more certain in her identification because she has had an opportunityto see the accused in Court on previous occasions. There would be a great deal of merit to this argument if, for example the accused hadbeen seen in Court or elsewhere before being selected from the photo line-up.

This however was not the case; the evidence is clear thatS.S. only saw the accused again, in person, on one occasion, after viewing the photo line-up. [72] In assessing the identification evidence of F.L. the evidence is clear, and she frankly admits that she was exceedingly drunkthe morning that she was assaulted. Because of her intoxication, it was early evening before she was able to speak to the police and

undergo a medical examination. She provided a brief verbal description which has remained consistent and included reference to bushyeyebrows and pockmarked skin. Although the accused denied having blemished skin, he admitted that he had chicken pox as a child. [73] F.L. also picked the accused out of a line-up about one month after her assault. As with S.S. it would have been preferablethat the viewing of the photo line-up be videotaped, but Sergeant Nogier, faced with a distraught witness chose to accede to her wishesand stop recording rather than lose her cooperation.

Sergeant Nogier testified that the demeanour of F.L. changed completely whenshown the photographs; she became upset, withdrawn and no longer wanted to participate. Sergeant Nogier concluded that this changeresulted from the witness recognizing her assailant in the photographs. In evidence, F.L. confirmed that she recognized her attacker butdid not want to make an identification for fear of retaliation from the Harper family. [74] She, too, admitted having seen the accused since May 3, 2008, but not before making her selection from the photo arrayshown by Sergeant Nogier.

There is no basis to conclude that this out of court identification was based on anything but the events ofMay 3, 2008. [75] In Court, F.L. also demonstrated a strong physical reaction to the question of whether her assailant was present; when askedto point to the individual, she broke down completely when she saw the accused smiling at her. Throughout her testimony this witnesspresented as though she was reliving the events she was recounting. DNA ANALYSES [76] Counsel for the accused argues that the identification of F.L. cannot possibly be accurate because the DNA analysis excludedhis client.

Exhibit P2 discloses that one profile was obtained from unspecified genetic material located on the outside front crotch areaof panties worn by F.L. and that analysis of that profile excluded the accused as the donor. There is no explanation before the court toaccount for the presence of male DNA in that particular location. F.L. testified that at the time she was penetrated, her pants and pantieswere below her knees and the assailant wore a condom. In short, there is nothing in the evidence to suggest her attacker could have leftany genetic material on the outside of the crotch of her panties.

Any conclusion in that regard would be mere speculation. [77] DNA analysis was also conducted on samples taken from the inside collar of the jacket worn by S.S. as well as a swab of herneck. Although those samples showed the presence of male DNA, they were insufficient to create a profile for comparison purposes. [78] Given these circumstances, the laboratory reports with respect to the DNA evidence have no probative value and cannot beinterpreted as excluding or including this accused. CONCLUSION [79] I am mindful of the decisions of R. v. W.(D.)(1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and R. v.

McKenzie(1996), (SK CA), 141 Sask.

R. 221 (Sask C.A.) and the following standard: 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 a 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.

[ 80 ] After considering the evidence as a whole, the Court does not accept nor is it left with a reasonable doubt by the evidence of the accused or the other defence witnesses. The alibi evidence defied belief for reasons that were earlier set out. On the whole, I find the defence evidence to be self-serving, lacking in detail and of questionable reliability.

Upon weighing and considering the defence evidence along with the evidence pertaining to S.S, the Court is satisfied beyond a reasonable doubt that all of the elements of the offence, including identification, have been proven without reference to the similar fact evidence. I am satisfied that the identification of the accused by S.S. and A.P, is reliable and accurate and supported by the circumstantial evidence that a car matching the vehicle in which they rode was found parked at the home of the accused days later and that the suspect identified himself as “Ian”.

I do not accept the defence evidence that the accused never drove or had access to that vehicle. On the whole, the identity of the accused has been established beyond a reasonable doubt in relation to the sexual assault on S.S. [ 81 ] Similarly, after weighing and considering the defence evidence along with the evidence pertaining only to F.L, the Court is satisfied beyond a reasonable doubt that all the elements of that offence, including identification, have been proven without consideration of similar facts.

She, too, complained immediately, provided a physical description and selected the accused from a photo array. Absent any consideration of similar fact evidence, there is no evidence supportive of the identification of the accused by F.L. and the Court must be cautious in accepting that evidence as proof beyond a reasonable doubt. However, having watched and listened closely to F.L, the Court has no doubt that the images of the attack and the person responsible for it have been seared into her mind and that her identification of the accused was honest and accurate.

The Court is satisfied that this is one of the cases where eyewitness identification can be relied upon to support a conviction. [ 82 ] When the similar fact evidence is also considered, the reliability of the eyewitness identification is enhanced. Two complainants, who had never met each other and who have never spoken to each other, reported remarkably similar assaults which occurred in the same general area within a three week period. It is improbable that the attacks were committed by two separate individuals and both complainants independently identified the accused.

Thus, the identification of the accused by each complainant supports the reliability and accuracy of the identification evidence by the other. [ 83 ] Accordingly, the accused is found guilty of sexual assault causing bodily harm to F.L. and sexual assault causing bodily harm to S.S. Further, as it has been established that the accused was bound by an undertaking at the time of both of those offence, he is also found guilty of both counts of breaching an undertaking by failing to keep the peace and be of good behaviour. _______________________________ M.L. Gray, J