Her Majesty the Queen - v. -, 2011 SKPC 56

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2011 SKPC 056 Date: April 15, 2011 Information: 43398703 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - T.(B.K.) Appearing: Sheryl Fillo For the Crown Tanis Talbot For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ JUDGMENT M.L.

GRAY , J _____________________________________________________________________________

BACKGROUND [ 1 ] This youth is charged that on March 2, 2010, he: (

i) did commit robbery against J.D., contrary to s. 344 (

b) of the Criminal Code ; (ii) did commit robbery against M.N., contrary to s. 344 (

b) of the Criminal Code ; (iii) did with intent to commit an indictable offence have his face masked contrary to s. 351(2) of the Criminal Code ; and (iv) did while subject to a youth sentence imposed by a Youth Justice Court Judge on January 18, 2010, wilfully fail to comply with the condition, to wit: keep the peace and be of good behaviour contrary to s. 137 of the Youth Criminal Justice Act. [ 2 ] The trial into this matter proceeded with seven witnesses for the Crown; the accused did not call any evidence except to file the booking sheet from the Saskatoon Police Service created when he was arrested.

The only issue for the Court to resolve is whether the accused has been identified, beyond a reasonable doubt, as either a participant or a party to the offences. EVIDENCE [ 3 ]

Section 343 of the Criminal Code says, in part: Every one commits robbery who: . . . (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter....uses any personal violence to that person; (

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof. [ 4 ] Based on this definition, the Court is satisfied that the offence of robbery was perpetrated against M.N. and J.D. by two suspects who had their faces masked. One culprit approached the two young men and after a brief discussion, attempted to grab a cell phone from J.D. When he was unsuccessful in getting the phone, he tried to take the snowboarding gloves worn by M.N. This was met by resistance from M.N. and the culprit raised a tomahawk-like hatchet in an intimidating way. The gloves were pulled off the hands of M.N.

Both complainants attempted to walk away but J.D. was pursued and assaulted by the first suspect who demanded that J.D. turn over his wallet. The first suspect also attempted to remove a lanyard from J.D.’s pocket. About the same time, a second suspect appeared and brandished what M.N. recognized as a CO2 pellet pistol. This second individual demanded that the complainants hand over their “stuff” and when M.N. refused, the pellet gun was discharged in his direction from about 10 feet away. M.N. repeatedly said that he had nothing to turn over and that the suspects should leave.

This second culprit made a circular motion in the air and in an apparent response, a Jeep Cherokee drove up from where it was parked a short distance away. As the vehicle approached, M.N. attempted to pull the first culprit away from J.D. and was struck in the back of the head by an object which seemed to break. When he turned, the second suspect struck him in the forehead with an unknown object. Although he saw the Jeep drive toward them he did not see anyone in the vehicle.

The two culprits got in the passenger side of the Jeep and it accelerated away. [ 5 ] Ultimately, the complainants did not lose any property; the snowboarding gloves were dropped and recovered by the owner

at the scene. ISSUE [ 6 ] The only issue is whether the evidence establishes beyond a reasonable doubt that the accused was either a participant in or a party to the offences alleged. ANALYSIS [ 7 ] The evidence with respect to identity is purely circumstantial. [ 8 ] M.N. described the hatchet wielding suspect as wearing a hoodie of an unspecified colour and a bandana over his face and mouth.

M.N. could not identify Exhibit P-2 (the bandanas seized from the Jeep Cherokee) and told the Court that he “didn’t pay too close of attention to colour or pattern or anything along those lines” (transcript p. 149 lines 3 & 4). He could not say whether this suspect wore any head covering; nor could he provide any physical description such as hair colour or style, height or build. [ 9 ] The second suspect was described by M.N. as being a little taller than the first and as having hair that “came over his eyes a little”.

M.N. was “pretty sure” that this individual wore a baseball hat and that he definitely wore a hoodie and had a bandana over his face; he could not give any other descriptive particulars. [ 10 ] J.D described suspect number one as wearing a grey hoodie with the hood up on his head and a lime green bandana over his mouth and nose. The second individual also wore a hoodie with the hood up and a pine green bandana. He described the second suspect as shorter than the first, but gave no indication as to the height of the first suspect. [ 11 ] M.D. saw both suspects get in the passenger side of a grey Jeep Cherokee.

He did not actually see whether there was anyone in that Jeep apart from the person presumably operating it. [ 12 ] Minutes later, at 10:49 p.m., a grey Jeep Cherokee was stopped by the police a number of blocks away from the location of the robbery. Constable Blades, Sergeant Grabowski and retired Staff Sergeant Walker were involved in the vehicle stop. The driver was identified as S.C.; the front seat passenger was Carlen Beacon and in the rear seat, on the passenger side, was the accused. [ 13 ] Constable Blades could provide no physical description of Carlen Beacon.

With respect to the accused, he could say only that he had a shaved head or close cropped hair. However, as he was dealing with S.T., he noted that S.T. was wearing a purple Vikings jersey over two black shirts, black jeans and black high-top runners. S.T. also had a shaved head. [ 14 ] Staff Sergeant Walker noted that Carlen Beacon was wearing a black hoodie and ball cap; S.T. was wearing a purple jersey while the accused was dressed in a plaid shirt and a black and grey hat.

He could not describe any physical characteristics of either the accused or S.T. [ 15 ] Sergeant Louttit seized a black bunnyhug or hoodie from Carlen Beacon; this was the only hoodie seen or seized by the officers.

[ 16 ] Constable Sadownick and Sergeant Grabowski could not provide a physical description of the occupants of the Jeep. Sergeant Grabowski did see the handle of a toy gun on the floor behind the driver’s seat, a hatchet under the back seat on the driver’s side, a plastic case for a CO2 pistol between the front passenger seat and the console as well as a bandana beneath the plastic case. [ 17 ] Carlen Beacon testified that he has known the accused for some 3-4 years and S.T. for somewhat longer. He acknowledged that he had purchased the hatchet (P-1) at a novelty store.

Further he admitted that he was convicted of possession of the hatchet for a purpose dangerous to the public peace and an assault on J.D. as evidenced in the Certificates of Conviction (P-8). With respect to the offence date, Mr. Beacon denied any recollection except that he began drinking before noon and was very intoxicated. His only recollection was waking up, ill, in police cells. He could not remember whose vehicle he was in when arrested.

He described himself as an alcoholic who experiences black outs. [ 18 ] At the scene of the robbery, officers found pieces of a CO2 pellet pistol which fit the handle found in the back of the Jeep. This, coupled with the presence of the hatchet and Mr. Beacon’s admission of guilt, satisfies the Court that this vehicle was used to transport the suspects away from the robbery. The question is whether the evidence logically and rationally leads to the inference that the accused was involved. Put another way, does the circumstantial evidence lead to that inescapable conclusion?

I find that it does not. [ 19 ] A number of discrepancies in the evidence leaves the Court with a reasonable doubt as to the identity of the second suspect and the identity of the operator of the Jeep at the time of the robbery. The following are my reasons:

a) Carlen Beacon entered a guilty plea to the use of the hatchet and was the only individual wearing a hoodie at the time of the arrests. Although the complainants report that both culprits wore hoodies, only one, worn by Carlen Beacon, was found;

b) The second individual to accost the complainants was described as having hair coming down to his eyes. This is not consistent with the appearance of the accused or the driver, S.T., who were both described by the police as having closely cropped hair;

c) This second culprit was said to be wearing a grey hoodie; the accused was clad in a plaid shirt;

d) This is confirmed by the booking sheet (D4) which records the accused’s clothing as: hat, white belt, blue plaid shirt, shoes, blue shirt and jeans. This is not consistent with the description of the assailants provided by the complainants; nor is it consistent with the description of the driver provided by the police;

e) The culprits were said to be disguised with green bandanas, one lime green and one pine green;

f) Two identical bandanas, with a grey, black and white pattern were seized from the vehicle; and

g) Finally, neither complainant could say whether the Jeep contained anyone other than the operator when it pulled up to collect the two robbers. Several minutes and several blocks separated the robbery from the arrest of the accused, Carlen Beacon and S.T. [ 20 ] In order to found a conviction on circumstantial evidence, the Court must be satisfied not only that the circumstantial evidence is consistent with the conclusion that the accused committed the offence, but also that the facts which have been proven are inconsistent with any other rational conclusion.

The evidence before this Court does not support the inference that this accused committed or was party to the offence of robbery or that he was one of the individuals whose face was masked in the commission of the robbery.

On the whole, the evidence is equally consistent with there being another individual or other individuals in the Jeep at the time it left the scene of the robbery; certainly, opportunity existed for one or more people to get out of the vehicle before it was stopped. [ 21 ] In conclusion, the evidence does not establish identity beyond a reasonable doubt and the accused is found not guilty on all counts.

____________________________ M.L. Gray, J