2013 QCCQ 3012, 2013 QCCQ 3012

R. c. Serafin 2013 QCCQ 3012 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF HULL LOCALITY OF GATINEAU Criminal Division No. 550-01-065862-122 DATE: March 22, 2013 ______________________________________________________________________ PRESENT: THE HONOURABLE RICHARD LAFLAMME J.C.Q. ______________________________________________________________________ The Queen Plaintiff v.

Matthew Scott Serafin Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused is on trial for a robbery committed on September 7, 2012 against Mélissa Crépin, a customer services representative at a branch of the Bank of Montreal in Gatineau. [ 2 ] The accused contests the charge, saying that he did not commit the crime and was the victim, no less, of a plot hatched by an unknown man he met on the afternoon of the crime. I. THE FACTS (

a) The Crown's case [ 3 ] On September 7, 2012, Mélissa Crépin was working as a customer services representative at the branch of the Bank of Montreal (hereinafter the "BMO") on rue du Portage, in Gatineau. In that capacity, she received customers at the cash counter and carried out the transactions they requested. Around 4:45–4:50 p.m., an individual who was alone went up to the till next to hers, operated by assistant director Hadja Kanté. However, Ms. Kanté was on the point of closing her till, so she asked him to wait until Ms. Crépin was free. The individual seemed nervous.

He asked when the branch closed, as he wanted to go get his two wallets so that he would have ID for the transaction he wanted to carry out. He was told that the branch closed at 5 p.m., but was assured that he would be served even if he arrived a few minutes late. He therefore left the bank. [ 4 ] Sequences taken between 4:53 p.m. and 4:59 p.m. by one of the surveillance cameras at the entrance of the branch show the accused standing alone in the entrance, waiting nervously. The sharpness and excellent quality of the colour images leave no doubt that it is the accused.

In fact, the accused admitted to being the individual in the video sequences. The images were captured at a point two to three metres from the bank cash counter. [ 5 ] The individual re-enters the bank a few seconds before it closes, while Ms. Kanté is closing the metal curtain between the ATM machine and the front of the bank. Ms. Crépin finishes with a customer and the individual goes to her till. He puts two objects on the counter, a library card and a piece of paper with the handwritten message "Give me all the money or die". After reading the note, the cashier asks the "customer" whether he is joking.

The individual responds by pushing his pants pocket outward, as if he has a weapon in it. She opens the till. The thief asks her to give him the largest denominations. She gives him a total amount of approximately $1000 in $20 bills. The stack of bills handed over contains a dye pack. The pack, which is kept in her till at all times, contains eight banknotes, held together by a paper clip, of which she had previously written down the serial numbers. That is standard banking practice, as corroborated by the testimony of assistant director Kanté and another assistant director, Pierre Charbonneau.

A few months earlier, Mr. Charbonneau had double-checked and signed a form certifying the serial numbers of the dye pack in Ms. Crépin's till. Ms. Crépin was the only person who had access to her till and the dye pack. [ 6 ] Ms. Kanté watched the scene play out, as Ms. Crépin had had time to catch her attention by signalling with her eyes. Thus, Ms. Kanté affirmed that she had been able to see the note with the message ordering that the money be handed over, that she observed the individual, who was looking in the direction of his pockets, and that she saw Ms.

Crépin give him $20 bills. [ 7 ] Once the money had been given to the thief, the cashier pressed the panic button, which alerts the police immediately. Assistant director Hadja Kanté immediately ran after the thief, yelling at him to stop and come back. The thief fled in the direction of rue Laval and took a street behind the bank. The thief was running fast, so she stopped pursuing him near a parking lot. [ 8 ] When the police arrived, cashier Crépin, for whom this was her first robbery, gave her version of events, handed over the handwritten note left by the thief and gave a brief description of him.

She described the individual as 5 feet 10 inches tall, skinny, white

with a shaved head, and wearing a shirt with small blue and white checks on it. In cross-examination, counsel for the accused emphasized certain holes in the description of the thief, in particular that the witness did not mention the big sunglasses on the accused's head, although they can be seen in the video surveillance evidence, that she did not specify the colour of the shirt and that, in the video, the shirt looks more like it is plain with no pattern. [ 9 ] At the hearing, Ms.

Kanté described him as being 5 feet 11 inches or 6 feet tall with a shaved head, and dressed in a pale blue, long-sleeved shirt with jeans. She added that he was particularly skinny. She said she was able to observe him because she had had to talk to him directly. She identified him immediately at the trial. Cross-examination revealed that she did not mention the individual's height in her statement to the police, or that he had a shaved head and was slim. Rather, she mentioned very short [TRANSLATION] "blondish" hair. [ 10 ] The police began looking for the suspect.

Officer Michaël Blanchette was in the Mont-Bleu district when he got the call notifying him of the robbery. He headed toward downtown Hull, where he was given a brief description of the wanted individual: shaved head, blue shirt, white cell phone, man in this 30s or 40s. He went between rue Hélène-Duval and rue Laval, which is not far (about 500 metres) from the branch that was robbed. Specifically, he went to 119, rue Laval in order to access a small wooded area. There is a shed in the backyard of the property. The officer tried the door, which was locked. He looked on both sides of the shed.

That was when he saw an individual laying on the ground, huddled into a ball up against the shed. He was wearing a blue shirt and beige pants. He did not have glasses or a cap. His hair was so short that he was almost bald. Believing him to be the wanted suspect, the police officer ordered him not to move and to put his hands behind his back so that he could handcuff him. He arrested him immediately for theft. [ 11 ] Officer Hull was in the sector. A person told him that he had seen someone near the woods behind the school close to rue Hélène-Duval.

When Officer Hull joined Officer Blanchette at the place where the suspect had been picked up, they frisked him. They found a white cell phone on him, along with a bundle of $20 bills about two inches thick. Officer Frédéric Côté, who counted the bills, indicated that there was $1020. The bundle contained a small pack of $20 bills totalling $160 held together by a paper clip. The officers knew that the dye pack had been given to the offender. A passport in the accused's name was also found. Officer Hull testified that the handwritten note saying "Give me all the money or die" was found on the suspect.

However, in cross-examination, he admitted that the note could have been given to him by Officer Côté, who had received it from Ms. Crépin. Officer Côté confirmed that Ms. Kanté or Ms. Crépin showed him the said note during his intervention at the bank. Officer Hull was clearly mistaken when he affirmed that he found the note on the accused. [ 12 ] After these items were found, the accused was informed, in English, of his right to remain silent and his right to an attorney. The police officer asked him whether he understood. The accused replied and kept repeating that his name was Gaby Gabriel.

After he was put in the patrol car, the accused began kicking the partition between the back-seat passengers and the driver and front-seat passenger. Since he refused to stop, the police officers bound his feet and hands together. According to the officers, the accused was incoherent, talking about God, a book, to say nothing of the fact that kept repeating the name Gaby Gabriel. He calmed down once he got to the police station. He quickly started using abusive language with respect to the sergeant, however. [ 13 ] Shortly afterward, Ms. Crépin was given confirmation that the thief had been found.

Moreover, the money was returned to her in full, as the amount was exactly what she needed to balance her till. The money returned contained the dye pack with the eight bills whose serial numbers corresponded to those that were in her till prior to the theft. Officers Hull and Côté compared the serial numbers of the bills with the list of numbers on the bank form. They were a perfect match. The photographs of the bills taken after the money was returned and the control form confirm that they were right. [ 14 ] In addition, at the hearing, Ms.

Crépin identified the accused as the individual who committed the crime. It was the first time she had seen him again, just as it was the first time she had seen the video of the crime. (

B) The defence's case [ 15 ] The defence's case rests solely on the accused's testimony. [ 16 ] The accused testified that he was living on benefits from the Ontario Workers' Compensation Board at the time. He lived in the Toronto area. On September 4, 2012, he decided to go to Ottawa, as he does every year, to commemorate the death of a friend who died in 2000. He said that he went with another buddy, whom he had met on the Internet and whose name was Mike from Orangeville, Ontario (hereinafter "Mike O."). He does not know his family name. It was Mike O. who drove him to a bed and breakfast in Ottawa.

Mike O. was supposed to stay with relatives. The accused testified that Mike O. decided to go back the next day, September 5. The accused nevertheless stayed in the Ottawa area. On the 7th, he decided to cross over to Gatineau to do some shopping. He entered the Portage IV building, where he went from shop to shop. He stopped at a café. While he was preparing his coffee, he started talking with a person who was new to him. He, too, was called Mike. The latter asked him whether he would like to go for a walk and offered to show him the area. The accused agreed. They left the building around 1:30 p.m.

They did not spend all afternoon together. They nevertheless met up again around 3:30 p.m. near the Société des alcools outlet. Mike was with his girlfriend, Jen. They invited him to go to an establishment to hear musicians play. The accused listened to the musicians until 4:30 p.m. At some point, he took out his white HTC cell phone. On seeing the phone, Mike offered to buy it from him. Since the phone was worth $200 and he had paid only $140 for it, he saw it as an opportunity to make a bit of money. He asked $180 for the phone. Mike agreed and gave him $180 cash right away.

They agreed to meet a while later close to a nearby school to make the switch. That would give him lots of time to delete the information in his phone. Jen was the one who would take possession of the phone near the school. [ 17 ] The accused testified that Jen told him she had to go to the bank and asked whether he wanted to go with her. The accused agreed. So they went to the BMO. He said that he waited in line, adding that that was what could be seen on the surveillance video. Jen was on his right, although she cannot be seen in the video. Since she could not find her bank card, they left the bank.

About 10 seconds later, a vehicle suddenly pulled up to them. It was apparently Jen's brother, who told her that their father had just had a heart attack and was at the hospital. Jen told the accused she had to leave and asked him to go to the school to meet with Mike. He started walking north on Laval Street. He turned left at the third intersection. He was near the school. He saw a patrol car park close to him. The police officer got out of the vehicle and looked at him strangely. The officer took out his weapon and ordered him to lie down on the ground. The

accused asked him why. The officer answered: "You know what you did. You're under arrest for theft". The accused said he was pushed up against the vehicle to be searched. The officer took his wallet and passport. He also had about $1000 in $20 bills. He affirmed that there was no paper clip holding the money together or in his pockets. In addition, he had the $180 from Mike. He had a total of $1020 in his possession. [ 18 ] According to the accused, he was set up by Mike, Jen or someone else. He was used. Someone who looks like him necessarily went to the bank shortly after he was there and committed the robbery.

The person had to have been dressed like him and fled the scene by car. He denies going twice to the bank, as contended by the two cashiers; he also denies running out of the bank. [ 19 ] In cross-examination, it was learned that the accused stayed at the bed and breakfast for $35 a night. He paid for the first two nights—one night in cash and the other with his bank card. The accused also testified that his bank account was empty. He further stated that, on September 4 or 5, he went to a steak house-type restaurant in Ottawa. He alleged that he was arrested there because he refused to pay his bill.

He explained that he initially refused to pay because he had left his personal effects with Mike O. so as not to have money on him late at night. He contradicted himself later on in his testimony, saying that he had left his things at the bed and breakfast. In addition, he contended that the meat was burned and that, consequently, he felt he should not have to pay for his meal. He nevertheless promised the police that he would come back and pay. And, with that, he was let go.

He never returned to the restaurant to pay his bill, claiming that he did not have the opportunity to do so. [ 20 ] As for Mike O.'s departure, he reiterated, as in the examination-in-chief, that he left for Toronto on September 5. Later in his testimony, he indicated that it was the 5th or the 6th, then affirmed that it was the 6th. [ 21 ] The accused was rather vague about his plans to return to Toronto. He said that he was supposed to stay in the Ottawa area for about a week and take a bus back. Yet he testified at his bail hearing that he "missed his ride with Mike".

He tried to explain as best he could that it was a manner of speaking. The Court simply does not believe him. His remarks at the bail hearing were clear and unequivocal. That testimony and his testimony at the trial are contradictory. [ 22 ] In cross-examination, he described in detail how he spent his time, saying, in particular, that he went on a cruise on the river on September 6. He was alone and it cost $65. That same day, he decided to find other accommodations. He went to the By Market area in search of a room. He went to the Holiday Inn, the Sunshine Inn, the Days Inn and the Marriott.

Either the hotel did not suit him or there were no vacancies. He went to a few bars. When it was pointed out to him that he had his personal effects with him at the bars, he initially replied that he had left them at the previous bed and breakfast. Later in his testimony, he said that he may have left them in the park, or nearby or in one of the nightclubs he went to during the night. He said that his money was not in his bag but in his pockets instead. Yet a few days earlier, he had not taken his money with him to go to the steak house because of how late it was.

He did not think twice about spending the evening in nightclubs and sleeping on a park bench with his money. It is incongruous, to say the least, even contradictory. [ 23 ] Lastly, when asked to comment on the use of the name "Gaby Gabriel", the accused explained that he said to the police officer: "Who am I? Gaby Gabriel?". It is a common name that is apparently used regularly in London. According to the accused, it was the first time he had used the name. II.

THE LAW [ 24 ] Identification and credibility are at the heart of this case. [ 25 ] First, the Court must base its credibility analysis on the Supreme Court test in R. v. W.(D.) [1] . Thus, if the Court believes the evidence of the accused, it must acquit him. If the Court does not believe the testimony of the accused, but his defence raises a reasonable doubt, the Court must also acquit him.

If the defence does not raise a doubt, the Court must still ask itself, on the basis of the balance of the evidence it does accept, whether the Crown has proven each of the essential elements beyond a reasonable doubt. [ 26 ] To determine the credibility of witnesses, the trier of fact naturally strives to assess their sincerity, the accuracy of their observations or statements and the faithfulness of their memory based on their evidence, their behaviour, and the similarities and differences in the evidence as a whole.

It is important to ascertain whether witnesses try in good faith to state the truth, whether they are sincere and frank, or whether they have biases or are reluctant and evasive. [ 27 ] It is worth recalling that the Court need not choose between two versions. [ 28 ] As regards identification, three types are involved in this case: (1) visual identification by a witness; (2) identification by means of a videotape on which the theft was caught; (3) identification by circumstantial evidence.

Specific rules govern each of these types of identification evidence. [ 29 ] The Court summarized as follows some of the applicable principles in R. v. Souligny , a decision that was upheld by the Court of Appeal: [2] [TRANSLATION] [20] As concerns the rule of law applicable to matters of visual identification evidence, the Court must be wary of the dangers inherent in this type of evidence. [3] The trial judge must consider not only the strengths of the evidence, but also its weaknesses.

It must take into account the risks of contamination associated with the possibility of a third party's having suggested that the accused could be the thief. In short, it must examine the objective reliability of the identification evidence. [21] With regard to identification evidence based on the viewing of the videotape of a theft, the Court must again demonstrate great caution. The Courts have recognized the importance and usefulness of videotapes in search of the truth during criminal trials. Such evidence can serve to establish either the innocence or the guilt of the accused.

The Supreme Court established that, because a video camera records accurately all that it perceives, videotape evidence can present such very clear and convincing evidence of identification

that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. . [4] To arrive at that conclusion, the tape must be of good quality and provide a clear image of the events and the perpetrator of the crime.

"In the course of their deliberations, triers of fact will make their assessment of the weight that should be accorded the evidence of the videotape just as they assess the weight of the evidence given by viva voce testimony". [5] [ 30 ] With respect to circumstantial evidence as identification evidence, the Supreme Court clearly pointed out in R. v.

Morin [6] the importance for triers of fact to conduct a cumulative examination of the evidence as a whole, to pool the evidence. [7] The prosecution does not have to prove every fact beyond a reasonable doubt; rather, it must prove each of the essential elements of the offence, including the identity of the offender, beyond a reasonable doubt. [8] Our Superior Court determined that identity can be established through circumstantial evidence—evidence flowing from a set of facts that, when considered separately, are not significant but that, when taken together, lead to the conclusion that the accused is guilty. [9] Thus, triers of fact must be convinced not only that the circumstances are consistent with the accused's guilt, but also that the circumstances are such that they are inconsistent with any logical conclusion other than guilt.

Judges must be convinced beyond a reasonable doubt that the accused's guilt is the only logical inference that can be made on the basis of the facts proved. [10] [ 31 ] These are, in general, the principles of law applicable to the present case. III. APPLICATION TO THE PRESENT CASE [ 32 ] Credibility is an important issue, especially with respect to the identification of the perpetrator of the theft of September 7, 2012. The accused denies that he committed the crime and argues that he was the victim of a trap set by a third party.

The accused's credibility needs to be analyzed in light of the aforementioned principles. [ 33 ] Does the Court believe the accused? [ 34 ] His version is not believable, whether considered separately or as part of the evidence as a whole. There are numerous contradictions and inconsistencies in it. First, the circumstances of his trip to Ottawa are vague in many respects. He testified that he was supposed to stay a week in Ottawa. However, at the bail hearing, he testified that he missed his ride back with Mike O. That is a major contradiction that significantly undermines the credibility of the accused.

In addition, he initially affirmed that Mike O. left on September 5, then said that it was maybe the 5th or the 6th, and ultimately settled on the 6th. That is an indication that his memory is questionable, to say the least, even unreliable. [ 35 ] The accused also contradicted himself on where he left his personal effects. He initially said that he left everything with Mike O., then claimed to have left his effects at the bread and breakfast. On the evening of September 5, he refused to pay the bill at a restaurant, because he did not want to have money on him at night.

Yet, in the evening and on the night of September 6 to 7, he did not think twice about having it on him and even sleeping in a park. Moreover, he justified his refusal to pay the restaurant owner by asserting that his steak had not been cooked to his liking and that, consequently, he should not have to pay. Despite promising the police officer that he would pay the restaurant owner, he did not do so, on the dubious ground that the opportunity did not present itself.

He constantly adjusted and contradicted his testimony as questions were put to him. [ 36 ] The story to do with his cell phone is unlikely, or at least incongruous and unusual. A stranger, merely on seeing his phone, offered to buy it. He sold it to him for $180. The individual paid him immediately, but the accused did not give him the phone right away. The parties, who did not know one another, went their separate ways, agreeing to meet up again later to hand over the phone. They did not even exchange names and contact information.

Such mutual trust is unlikely. [ 37 ] He contends that Jen, Mike's girlfriend, asked him to go with her to the bank. However, the videosurveillance camera clearly shows that the accused was alone the whole time. The video corroborates the testimony of Ms. Crépin and Ms. Kanté that the thief was not accompanied, even on his first visit. The accused denies going twice to the bank. Yet the video shows two sequences at different times (4:53 p.m. and 4:59 p.m.) in which the accused can be seen. [ 38 ] What about the story of a car suddenly pulling up just as he was leaving the bank with Jen?

Jen's brother was in the car. He told her that their father had just been hospitalized for a heart attack. Jen left that instant. [ 39 ] Like the sudden arrival of Jen's brother, the accused's theory that he was set up by the real thieves in an effort to cover up their crime is completely ludicrous. His theory has no basis in the evidence. To the contrary, how does one explain that the bundle of bills with the dye pack was found in his pants? The evidence shows that it is not possible to inadvertently remit the dye pack to a customer, because the bills are held together with paper clips.

It is common knowledge that cashiers always count bills one by one before giving the money to a customer. The comparison of the bills found on the accused and the list of serial numbers kept at the bank leads to the conclusion that $160 of the amount in the accused's possession was from the robbery. [ 40 ] Thus, the Court does not believe the accused and sets aside his testimony. His defence does not give rise to a reasonable doubt.

The Court must still be convinced beyond a reasonable doubt that the accused committed the robbery of September 7, 2012 at the BMO at Place du Portage. [ 41 ] Analysis of the testimony of Ms. Crépin and of Ms. Kanté reveals certain deficiencies in the visual identification evidence. There are differences in the description they gave to the police and those given to the Court. The Court mentioned some of them earlier. They had only a short time to observe what was happening and gave a description of the events within minutes of their occurrence, when emotions were running high.

There are even differences with the video images, which do not lie. These discrepancies in the visual identification show the inherent fragility and danger in finding an accused guilty solely on the basis of this type of evidence. In the present case, the visual evidence does not have only weaknesses. It also has certain strengths. The height and general traits of the thief were described well. In general, this is also true with respect to his clothing. The testimony regarding identification is rounded out by a few video sequences taken by the bank's surveillance cameras.

The quality of the images, in colour no less, is remarkable. The thief cannot be seen at the cash counter. However, Ms. Crépin's and Ms. Kanté's credible testimony, and the times indicated in the video sequences, place the accused at the scene of the crime not once, but twice. The time of the last sequence (4:59 p.m.) is in keeping with

the credible testimony of Ms. Crépin, who affirmed that the theft occurred at 5 p.m. Ms. Kanté's testimony is along the same lines. The police received the alarm at 5 p.m. Officer Côté arrived at the bank at 5:06 p.m. Ms. Kanté, whose credibility is unquestioned, ran after the thief for a few seconds as he ran toward the place where he was picked up by Officer Blanchette. Nor was the latter's credibility shaken. The Court does accept that Officer Hull made a significant mistake when he said that the note reading "Give me the money or die" was found on the accused. According to evidence from the testimony of Ms.

Crépin and of Officer Côté, the note never left the scene of the crime. [ 42 ] The time at which the accused was picked up and the circumstances in which it happened are another element of circumstantial evidence. He was picked up around 5:10–5:15 p.m., that is, 10-15 minutes after the theft, while laying on the ground, huddled into a ball up against the wall of a shed located less than 500 metres from the scene of the crime. Why was he hiding? His general description matched that of the thief.

Following his arrest, the constitutionality of which is not challenged and does not lend itself to challenge, he was searched. As chance would have it, he had in his possession bank bills whose numbers matched those of the dye pack given to the thief by the cashier. [ 43 ] In light of all the direct and indirect (circumstantial) evidence, the Court is convinced not only that the circumstances are consistent with the accused's guilt, but also that the circumstances are such that they are inconsistent with any other logical conclusion.

The Court is convinced beyond a reasonable doubt that the accused's guilt is the only logical inference that can be made on the basis of the facts proven. THEREFORE, THE COURT: FINDS THE ACCUSED GUILTY. __________________________________ RICHARD LAFLAMME J.C.Q. Mtre. Emily Moreau Criminal and Penal Prosecuting Attorney Mtre. Marc Doyon Counsel for the accused Dates of hearing: January 9, 28 and 29, 2013