R. v. Caribou and Olenick, 2022 MBPC 45

CITATION: R. v. Caribou and Olenick, 2022 MBPC 45 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen, ) ) M. Armstrong for the Crown ) - and - ) Flora Caribou, Anthony Olenick, ) ) ) ) ) ) ) Z. Jones for the Accused C. Sutherland for the Accused ) ) ) Reasons for Decision ) Delivered: September 1, 2022 Tracey Lord, A.C. P.J. [ 1 ] Anthony Olenick and Flora Caribou are jointly charged with possessing stolen property and multiple firearms offences, resulting from an early morning traffic stop on September 20, 2020.

Both are also charged with breaching court orders that bound them at the time. [ 2 ] Just before 5:00 a.m. on September 20, 2020. Cst. Ian Lobban and Cst. Kelsey Walkof of the Winnipeg Police Service (WPS) observed Anthony Olenick driving a scooter in the area of Robinson Street and Dufferin Avenue; Flora Caribou was his passenger at the time. [ 3 ] The scooter had been spray-painted, did not have a licence plate and Mr. Olenick was not wearing a helmet. As a result, the officers conducted a traffic stop pursuant to the Highway Traffic Act ( HTA ). [ 4 ] Cst.

Lobban testified that because the scooter had been spray-painted he also wondered if it was stolen. As Cst. Lobban approached the scooter, he recognized Mr. Olenick. [ 5 ] Neither officer was able to say whether Ms. Caribou, the passenger was wearing a helmet or not, but did note she was wearing a black purse with a shoulder strap across her body and a grey backpack on her back. [ 6 ] Cst. Lobban, who is knowledgeable about vehicles and vehicle identification numbers (VINs) examined the scooter’s VIN and noted it to be altered, in that the first two characters had been removed.

Computer checks of the remaining characters of the VIN revealed the scooter was indeed stolen. [ 7 ] Based on the appearance of the scooter (being spray-painted and lacking a licence plate) and the fact that it was stolen, Cst. Lobban arrested Mr. Olenick and Ms. Caribou for possession of stolen property. [ 8 ] Mr. Olenick was arrested first. He was searched and placed in the cruiser car. During this time, Ms. Caribou was seated on the curb nearby with the purse and backpack at her side. Neither officer was able to say whether Ms.

Caribou sat there of her own accord or whether she was directed to, but both said they did not handle either of the bags she had with her. [ 9 ] After completing the arrest of Mr. Olenick, Cst. Lobban arrested Ms. Caribou for possession of the stolen scooter. He then moved the purse and backpack from Ms. Caribou’s vicinity for safety reasons, and placed them on the trunk of the cruiser car. He then opened the purse and immediately saw a firearm.

[ 10 ] He testified the firearm was approximately the same size as the purse and took up most of the interior space. He later ascertained it was a stolen Cooey 20 gauge shotgun with both the butt and barrel sawed off. [ 11 ] The purse also contained a bank card in the name of Flora Caribou and two inhalers with her name on the prescription labels. [ 12 ] Cst.

Lobban also searched the backpack and located a sawed-off rifle, a Glock style BB gun, which at the time he believed to be a genuine handgun, what appeared to be an improvised explosive device (IED) and what he described as a mens shirt and tracksuit. [ 13 ] As a result of locating the IED, Cst. Lobban notified his superiors, placed the backpack in a nearby open field and secured the neighbouring area to ensure public safety. It was later learned the IED was not operational. [ 14 ] Ms. Caribou challenged the basis for her arrest and the subsequent search of the purse and backpack.

I previously ruled her arrest was valid as were the searches of both bags. See R. v. Caribou and Olenick, 2022 MBPC 44 . [ 15 ] It is agreed the scooter was last seen by the registered owner on September 11, 2020, and reported stolen on September 15, 2020. It is valued at under $5,000. [ 16 ] It is agreed the shotgun found in the black purse was also stolen, the theft having been reported on April 17, 2019. [ 17 ] It is agreed a third bag was located by other officers in the compartment under the seat of the scooter.

The bag is described as a Victoria’s Secret duffel bag, pink in colour, containing an assortment of womens clothing, and documents bearing the name of Flora Caribou. [ 18 ] The Crown also filed certificates confirming the shotgun and rifle meet the definition of firearm in the Criminal Code (the Code ) and that both are classified as prohibited weapons due to their overall lengths having been altered.

The BB gun found in the backpack does not meet the definition of firearm and is considered an imitation. [ 19 ] Copies of the following Court Orders were filed by consent: Anthony Olenick -Firearms Prohibition dated May 7, 2012, Firearms Prohibition dated May 27, 2015, and a Firearms Prohibition dated June 19, 2020. Flora Caribou - Release Order dated November 24, 2020. [ 20 ] Mr. Olenick did not call evidence. Ms. Caribou testified on her own behalf. [ 21 ] Prior to giving evidence, Ms.

Caribou entered guilty pleas to the charges relating to possession of the sawed-off shotgun found in the black purse, admitting to having both knowledge and control of it, and being in breach of her release order by possessing it. [ 22 ] Ms. Caribou testified she is 35 years old, she is Indigenous and is from Thompson, Manitoba, with family connection to Cross Lake. She has 5 children, ages 13, 12, 9, 7 and 3, who live with their paternal grandmother. In July 2019, Ms.

Caribou also lost a sixth child at the age of 8 months. [ 23 ] At the time of losing her youngest child, she was addicted to opiates stemming from a motor vehicle accident 15 years prior. After losing her child, Ms. Caribou entered an 8 week addiction treatment program. Once completed, she moved to Winnipeg and at the time of her arrest was staying with her mother and sister on Maryland Street. [ 24 ] While Ms.

Caribou testified she has not used opiates since completing treatment, she was unfortunately introduced to methamphetamine when she came to Winnipeg and became a daily user up until September 2020 when this incident occurred. She was not allowed to be at her mother’s residence when using drugs so as a result, she often stayed at various other places. [ 25 ] In the days leading up to her arrest Ms. Caribou said she was trying to stop using methamphetamine, and on the date of her arrest she testified she had not used it for a few days.

She was however, taking Lorazepam to deal with her withdrawal symptoms. [ 26 ] In September 2020, Ms. Caribou was acquainted with Mr. Olenick, but knew him only as “Solo”. On September 19, 2020, the day prior to her arrest she was at a friend’s residence on Selkirk Avenue. Ms. Caribou testified an individual came to the residence to tell her that “Solo wants you over there”, referring to another residence across the street. As a result, she went to the second residence. [ 27 ] Mr. Olenick, his girlfriend and a third male were present in the residence. Ms. Caribou testified when she arrived Mr.

Olenick was holding a shotgun and yelling at the others, who were searching for money that Mr. Olenick indicated was missing. Ms. Caribou said her presence had been requested because Mr. Olenick had an injury to his leg he wanted her to clean and dress, as she had first aid experience. After doing so, she returned home. [ 28 ] Ms. Caribou said she went out again in the early morning hours of September 20, 2020, to meet her friend Bri, and bring her back to her mother’s residence to stay. [ 29 ] When she left, she took her purse as well as a pink Victoria’s Secret bag containing clothing for Bri. Ms.

Caribou did not ultimately find her friend Bri, but did in the course of looking for her, come across Mr. Olenick again at the residence of Bri’s boyfriend Zack on Redwood Avenue. [ 30 ] Ms. Caribou testified Mr. Olenick offered to give her a ride home on his scooter, which she accepted. She said she offered to get him more bandages for his leg from her cousin’s house on Stella Avenue. [ 31 ] Mr. Olenick gave Ms. Caribou his helmet to wear and drove the scooter with Ms. Caribou as passenger from the Redwood address to her cousin Candace’s house on Stella Avenue.

[ 32 ] Ms. Caribou said when they left the Redwood residence Mr. Olenick had a backpack with him. When they arrived at her cousin Candace’s house on Stella Avenue they both took their bags inside with them. When they entered the residence, Ms. Caribou testified Mr. Olenick was also carrying the same shotgun she had seen him with earlier that day. [ 33 ] Ms. Caribou retrieved some bandages, which she placed in the side pocket of Mr. Olenick’s backpack. When they left, she said Mr.

Olenick tried to put the backpack in the compartment under the scooter’s seat, but it would not fit, so she suggested putting her Victoria’s Secret bag in the compartment instead. He then put the backpack on her back. [ 34 ] As the scooter started to pull away, Mr. Olenick stopped it, stood up and according to Ms. Caribou, pulled the shotgun out of his pants and handed it to her to hold. She put the shotgun in her open purse, on her lap and they drove off. Shortly after, they were pulled over by the police. [ 35 ] As reflected by her guilty pleas, Ms.

Caribou accepts responsibility for possessing the shotgun in her purse. She however denies knowing anything about what was in the backpack. [ 36 ] Ms. Caribou gave a statement to the police. She testified when speaking with the police she was feeling “dope sick” as a result of withdrawing from methamphetamine and was feeling scared and anxious because the police had found a gun in her purse. [ 37 ] She also said she was scared of Mr. Olenick because of “who he was”. No further explanation was given about this comment. [ 38 ] Cross-examination revealed that Ms.

Caribou was at times dishonest with the police when giving her statement. [ 39 ] Ms. Caribou agreed she lied to the police about where she met up with Mr. Olenick on the night they were arrested. In her court testimony, she said they met at Zack’s residence. When speaking to the police, she told them she met Mr. Olenick at the McDonald’s at Redwood Avenue and Main Street. [ 40 ] Ms. Caribou explained she lied to the police because she did not want to mention Zack’s name. Again, no further explanation was given about this comment. [ 41 ] Ms.

Caribou also agreed when the police initially asked her whether her fingerprints would be on the gun found in her purse, she told them she touched it when getting her cigarettes out while waiting on the curb. Further, she said this was when she first became aware the gun was there. [ 42 ] This is contrary to her testimony in court that Mr. Olenick handed the gun to her and she put it in her purse. Counsel for Ms. Caribou clarified on re-examination that later in her statement she did tell the police Mr. Olenick had given the gun to her to hold. [ 43 ] Cross-examination also served to highlight areas of Ms.

Caribou’s evidence that did not appear to be consistent. [ 44 ] Ms. Caribou testified she took the Victoria’s Secret bag of clothing with her when she left her residence on September 20, 2020. This bag was later found in the compartment underneath the seat of the scooter. Her initial explanation on direct examination for taking the bag and clothing was that she planned to give the clothing to her friend Bri. [ 45 ] On cross-examination, she was questioned about why it was necessary to take the clothing with her, when the plan was for Bri to come back to her residence and stay the night. Ms.

Caribou explained further that some of the clothing could have also been for her own use in the event that they did not end up coming back to the residence that night. [ 46 ] On cross-examination Ms. Caribou was also questioned about why she would suggest she and Mr. Olenick go to her cousin’s residence to get bandages when she had testified on direct examination that she was in a hurry to get home because she had the only house key and her sister would be waiting at the residence for her return. Her response was simply that Mr. Olenick needed the bandages. [ 47 ] Clearly, Ms.

Caribou’s explanations for these two contradictions are also contradictory to one another. On the one hand she said she took the clothes in the Victoria’s Secret bag because she might not return home that night and conversely said she was in a hurry to get home. This potentially reflects on her credibility. [ 48 ] Cross-examination also appeared to jog Ms. Caribou’s memory on an important point, creating an inconsistency between her evidence on direct examination and cross-examination. [ 49 ] The origin of the backpack, its contents and Ms. Caribou’s knowledge about the contents are central issues in this case.

Ms. Caribou testified on direct examination Mr. Olenick had the backpack with him when they left Zack’s residence on Redwood Avenue and that she did not know where he put it as they travelled to her cousin’s residence on Stella Avenue. She thought perhaps it was at Mr. Olenick’s feet or perhaps between him and the handle bars. [ 50 ] The backpack was taken into her cousin’s residence and on their departure from there on the scooter, Ms. Caribou said the backpack would not fit in the compartment under the seat.

As a result, it was put on her back, where it remained until they were stopped by the police. [ 51 ] On cross-examination when Crown counsel confirmed her evidence that the backpack was not in the under seat compartment when they initially left the Redwood Avenue address, Ms. Caribou then remembered that Mr. Olenick had in fact put it in the compartment but that it did not fit well. As a result he was “moving around funny” on the seat because it did not close properly. [ 52 ] Ms. Caribou confirmed after being at the Stella Avenue location Mr.

Olenick had even more trouble fitting the backpack in the compartment, as it was bigger than the first time. As a result, her Victoria’s Secret bag was put in the compartment instead, and as indicated, she wore the backpack.

[53] Ms. Caribou said the only gun she had ever seen Mr. Olenick possess was the one she put in her purse. She agreed thebackpack was heavy but testified she did not direct her mind to what may have been in it. [54] When it was suggested to her that the contents of the backpack came from her cousin’s residence, she dismissed thisexplanation and denied that she was lying to protect her cousin Candace. She further indicated that when she spoke to the police she hadno reason to lie to protect Mr. Olenick and thought he would own up to his own involvement. Submissions of Counsel [55] With respect to Mr.

Olenick, the Crown argues there is ample evidence on which the Court can convict him of possession ofthe stolen scooter. He was in actual possession, it having been recently stolen five days earlier. It had been spray painted to alter itsappearance and it did not have a licence plate. [56] As for possession of the backpack and knowledge of its contents the Crown argues Mr. Olenick ought to be convicted ofpossessing its contents based on the testimony of Ms.

Caribou; her narrative of how the events unfolded, where the backpack came from,and how it came to be in her possession is credible and should be accepted. [57] With respect to Ms. Caribou the Crown is not seeking a conviction for possession of the stolen scooter, but argues not onlyshould Ms. Caribou be convicted of the charges she has pleaded guilty to, but also for the counts relating to the contents of the backpack. [58] The Crown submits the Court should not accept what Ms. Caribou says about her knowledge of the contents of the backpack, aclaim he says does not possess an air of reality.

Further, even if Ms. Caribou did not have actual knowledge of the contents, in all of thecircumstances, she should have questioned what was inside when she took possession of it and did not. The Crown urges the Court todraw from the circumstances that Ms. Caribou was therefore willfully blind about what she carried on her back. [59] Counsel for Ms. Caribou submits I should accept her evidence in its entirety and acquit her of all the charges she has notpleaded guilty to. She argues Ms.

Caribou’s testimony should be viewed in light of the fact that she took responsibility for possessing thefirearm she was aware of, and did so knowing it was contrary to her release order. [60] In submitting Ms. Caribou was credible, counsel also asks the Court to consider her demeanor while giving evidence, in thather emotions were appropriate to the subject matter she spoke about. In addition, Ms. Caribou readily agreed when she had beenuntruthful or when her memory might be weak. [61] Counsel for Ms.

Caribou also points to the corroboration for her evidence. • The size of the tracksuit found in the backpack is consistent with being for a large man, • The Victoria’s Secret bag found in the compartment of the scooter contained what Ms. Caribou said it would. • The way the police say the firearm was positioned in her purse is consistent with how Ms. Caribou says she put it there. [62] Counsel for Mr. Olenick on the other hand, submits I should reject Ms.

Caribou’s evidence in its entirety as being whollyunbelievable and points out several areas of potential inconsistency. [63] He further suggests that I ought not draw the inferences suggested by the Crown regarding Mr. Olenick’s knowledge of thescooter being stolen, and acquit Mr. Olenick of all charges as the evidence of the police does not rise to beyond reasonable doubt. [64] Dealing firstly with Ms. Caribou. As she called evidence, the three step analysis in W.(D.) applies. R. v. W.(D.), (SCC), 1991 1 S.C.R. 742. [65] If I believe the evidence of Ms. Caribou then I must acquit her. If I do not believe Ms.

Caribou’s evidence but it leaves me withreasonable doubt, I must also acquit her. Even if I am not left in doubt by the evidence of Ms. Caribou, I must consider whether based onthe evidence I do accept, whether I am satisfied beyond reasonable doubt of the guilt of Ms. Caribou. [66] Any analysis of credibility is contextual and the factual backdrop of the evidence as a whole should be considered in theevaluation. This approach allows the Court to consider evidence that may be favourable to an accused’s credibility in the analysis. [67] As it relates to Mr. Olenick’s culpability, Ms.

Caribou’s evidence must also be evaluated in light of the fact that she is a co-accused in these matters. R. v. Oliver, (ON CA). Caution should be used when considering one accused’s evidenceimplicating another accused. [68] Having done so, and also applying W.(D.), I have concluded that Ms. Caribou was a credible witness.

She gave her evidence inan open manner, describing her complicated life circumstances in a very uncomplicated, matter of fact way. [69] She provided insight and understanding into the chaotic and unpredictable world of criminal behaviour and drug use she wasimmersed in at the time and although not explicitly said, the unsavory company she was keeping. Her testimony provided context fordecisions made, and explanations given, that on their face seem illogical.

She described in hindsight her acceptance of a dangerous, riskyand lawless lifestyle as ordinary and normal; one in which she did not properly question the things she or others did. [70] Ms. Caribou also readily acknowledged when she had been untruthful or when her memory was unclear. [71] It was evident at times that Ms. Caribou was frustrated with her circumstances as compared with those of Mr. Olenick arisingfrom these charges. She is in custody, while he is not. In my view, such emotion is consistent with the events having taken place as shedescribed them; she was literally left holding the bag.

[ 72 ] There is also corroboration for aspects of Ms. Caribou’s testimony in the evidence called by the Crown. • The pink Victoria’s Secret bag was as described by Ms. Caribou, contained the items she said it would and it was found where she indicated it had been put. • Despite the fact that it could also be described as “uni-sex”, the tracksuit found in the backpack was described as a large size consistent with being for a male. • The police described finding the firearm in Ms. Caribou’s purse as immediately visible when the purse was opened.

This is consistent with how she describes putting it there. [ 73 ] I would also note that Ms. Caribou was already using the Victoria’s Secret bag to carry clothing. It makes little sense that she would take a second bag (the backpack) and put one further outfit of clothing in it. [ 74 ] I accept Ms. Caribou’s explanations for being untruthful in part with the police.

She was concerned about her own jeopardy and afraid of getting in trouble for drawing attention to certain individuals. [ 75 ] I accept her explanations for things that on their face seem contradictory, as being for her, ordinary reasoning in the context of the chaotic situation she was living in. [ 76 ] In the context of the evidence as a whole, I accept Ms. Caribou’s testimony as truthful. Although she clearly possessed it, I accept she had no knowledge of the contents of the backpack.

As a result, she will be acquitted of all of the charges relating to its content. [ 77 ] The Crown is not seeking a conviction for possession of the stolen scooter. Absent that concession, I would have acquitted her of that charge for the same reasons. [ 78 ] As part of my evaluation of Ms. Caribou’s credibility within the W.(D.) framework I have also cautioned myself about Ms. Caribou’s evidence as it relates to Mr. Olenick, as being that of a co-accused. For the same reasons I accept Ms. Caribou’s evidence as it relates to her own involvement, I also accept it as it relates to Mr.

Olenick’s involvement. [ 79 ] I am satisfied beyond reasonable doubt by Ms. Caribou’s evidence that Mr. Olenick possessed the sawed-off shotgun prior to giving it to her and it being placed in her purse. [ 80 ] I am also satisfied beyond reasonable doubt by her evidence that the backpack was Mr. Olenick’s. I find that he was in physical possession of it and its contents throughout the time he was with Ms. Caribou, including when it was on her back.

I am also satisfied beyond reasonable doubt that he had knowledge of its contents. [ 81 ] I am satisfied beyond reasonable doubt by the evidence of the police regarding the scooter and find Mr. Olenick possessed it with knowledge that it was stolen. The vehicle was spray painted, did not have a licence plate and had an altered VIN. [ 82 ] As a result Mr. Olenick will be convicted of all charges appearing on the docket. “Original signed by:” Tracey Lord, A.C.P.J.