Her Majesty the Queen - v. -, 2010 SKPC 145

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2010 SKPC 145 Date: December 8, 2010 Information: 39983852 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - S.R.E.

Appearing: Gary Parker 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 . _____________________________________________________________________________ INTERIM RULING UNDER P.S. KOLENICK, J S. 724(3) OF THE CRIMINAL CODE _____________________________________________________________________________

BACKGROUND [1] The Court is in the process of sentencing the accused in regard to the following matter, alleged to have occurred atSaskatoon, on or about June 2, 2010: Break and enter a place, to wit: a dwelling house situated at 3123 Massey Drive, and did commit therein the indictable offence of theft,contrary to section 348(1)(

b) of the Criminal Code. [2] As a result of a dispute regarding material facts, a sentencing hearing has being held, pursuant to s. 724(3) of the CriminalCode. [3] The procedure to be followed in a sentencing hearing was recently canvassed by my colleague Judge Gray in R. v. S.A., (30August 2010), Saskatoon Information #42411971 (Sask. Prov. Ct.) where she observed as follows, commencing at para. 22: [22] In R. v.

Gardiner (1982), (SCC), 68 C.C.C. (2d) 477 S.C.C., Dickson J. said at pg. 514: A plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. [23] Section 724(3) of the Criminal Code has codified the burden of proof with respect to aggravating and mitigating circumstances. That subsection says in part: ... Where there is a dispute with respect to any fact that is relevant to the determination of a sentence... (

b) the party wishing to rely on a relevant fact, including a fact contained in a Pre-Sentence Report, has the burden of proving it; ... (

d) subject to paragraph (

e) the Court must be satisfied on a balance of probabilities of the existence of the disputed facts before relyingon it in determining the sentence; and (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous convictionby the offender. [24] The overall effect is that mitigating factors must be proven on a balance of probabilities and any aggravating factors must beproven beyond a reasonable doubt. . . . REVIEW OF EVIDENCE FOR THE CROWN Robert Carmichael [4] Mr. Carmichael was one of the complainants in the break and enter. In the course of the police investigation, an OccurrenceReport had been prepared which included all of the property which was allegedly stolen.

That document was entered as exhibit P-1 inthese proceedings. When he reviewed the document, however, the only piece of property listed thereon was a laptop computer, six yearsold, with an estimated replacement value of $500.00. He suggested that the estimated total loss for him was in the amount of $1,700.00.

However, whether the apparent balance of $1,200.00 was in addition to the articles already listed on exhibit P-1 was not entirely clear. Therefore although he had testified to a total loss of $1,700.00, his evidence would support $500.00 and nothing more. [ 5 ] Mr. Carmichael also confirmed that some of the stolen jewelry had been subsequently recovered from the accused’s girlfriend, Erica McCallum. Lisa Parsons [ 6 ] Ms. Parsons was the other complainant on this matter and suffered a considerably greater loss in regard to the various entries contained on exhibit P-1.

Many of them were valuable articles of jewelry. She had taken great care in compiling the list, and was able to offer considerable detail. She estimated the value of the missing jewelry to be $25,435.00. She was able to confirm that she paid in total $22,705.00. After the fact, they had managed to recover objects worth $1,950.00. In her view, that left a net value from the purchase prices on the articles of $20,755.00. [ 7 ] Ms. Parsons was also able to confirm that exhibit P-2a was a photo of the accused and his sister, with the sister wearing a bracelet which had been stolen in the break-in.

Likewise, in exhibit P-2b, she claimed the accused was wearing a chain which had belonged to her and had been taken in the break and enter. [ 8 ] In cross-examination, Ms. Parsons advised that the valuable items in exhibit P-1 had been articles she had been collecting since 1989. As such, she was required to use estimates on some of the older articles. [ 9 ] Roughly one month prior to the break-in, she had moved to Saskatoon from Regina, and the articles had been left uninsured after the move, as an oversight. [ 10 ] She was shown photo exhibit P-2b from the accused’s Facebook. Ms.

Parsons confirmed that it showed an entry date in Facebook on March 18, a date prior to the break-in. However, in her view, the Facebook entry date could have been changed by the accused. As well, although exhibit P-2a was somewhat blurry, she was able to recognize her own jewelry. EVIDENCE FOR THE DEFENCE The Accused [ 11 ] The accused advised that the residence of the complainants was half of a duplex where a friend name Cody had lived as a foster home resident. Cody was not at home next door when he went there for a visit.

Therefore he headed to the complainants’ residence in the duplex, to a side entry patio door. He knocked on it, but there was no answer. He opened the door and yelled Cody’s name a few times, but nobody was there. The door was unlocked, and he unlawfully entered. [ 12 ] In his quest for property in the premises, he located jewelry in the bedroom dresser drawer. He reached in and grabbed the articles out of the drawer without looking very closely at what he was taking. He placed those articles in a Safeway grocery bag, and removed them from the complainants’ residence.

While he was there, the accused had also seen a Gateway computer. Therefore he put it in a bag with the charger and some of the other computer cords and stole them as well. [ 13 ] He also confirmed in his testimony that the articles of jewelry which the complainant had brought to court had been stolen by him and recovered. Some of the pieces he had given to his girlfriend as a gift, and the others he sold for $50.00, to a third party. Further, he had accidently spilled a drink on the laptop computer, which ruined it. As well, he denied any knowledge of who had stolen the

remaining articles which are contained in exhibit P-1. When he had departed from the premises, he went out from the same patio door,and left it unlocked the way it had been when he had entered. [14] The accused was also of the view that the Facebook picture which had been an issue had been taken prior to the break-in, atthe complainants’ residence. In particular, exhibit P-2b shows it was added on March 18, which is an accurate date. He does not believeit is possible to change the date as suggested by Ms. Parsons’ testimony.

Regardless, he does not have any of the other jewelry which ismissing. [15] In cross-examination the accused confirmed the contents of his criminal record which was entered as an exhibit. He alsoindicated that he had been a member of the Cripps gang at the time. He had sold the jewelry to one of the members of the gang, who hespecifically named on the court record. He also agreed that he had initially lied to his girlfriend in regard to the articles of jewelry shewas wearing in Facebook, saying that he had received the items from his uncle. He had hoped to make her believe that he had changedhis life.

Apparently his criminal record also included a conviction for theft of a flat screen TV, which he had stolen from his fosterparent, because he wanted money for clothes. [16] However, he disputed taking any of the other jewelry from the complainants’ residence, other than what he has confirmed andthat he failed to close the door on his way out. He did not believe he had taken any earrings, although exhibit P-1 would suggest thatsome barbwire earrings had been recovered from him after the fact.

ANALYSIS Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the accused had stolen all of the pieces ofjewelry as alleged?

Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt the valuation of any of the articles allegedlystolen? [17] The Crown has confirmed that it bears the onus of proof beyond a reasonable doubt on all matters herein. [18] Therefore in general the burden is on the Crown to prove the constituent elements of the offence beyond a reasonable doubtwith credible evidence, and the accused is presumed innocent until proven guilty. In assessing credibility, the Court is guided by theprinciples restated in R. v. McKenzie (P.N.) (1996), (SK CA), 141 Sask. R. 221 (Sask. C.A.) (from R. v.

Rose (A.)(1992), (BC CA), 20 B.C.A.C. 7 (B.C.C.A.)), para. 4: 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 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. [19] The determination of credibility does not involve the Court opting for one version of events or the other.

Rather, the Crown must prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the Court prefers the evidence of the Crown, it must still consider whether the evidence for the defence raises a reasonabledoubt. Therefore, credibility of the material witnesses needs to be considered, in that context.

[ 20 ] There is no doubt that the complainants have suffered a loss from the break and enter, which was devastating to them, both personally and financially. The Court has great sympathy for their plight and very much appreciates their conscientious input to these proceedings. [ 21 ] The accused has also testified. He, of course, had entered a plea of guilty to the charge. Thereafter an issue arose in sentencing because he disputed having taken most of what the complainants had lost.

He asserted that he had left the patio door open when departing, the way he found it, so that someone else could have entered the premises and taken the jewelry remaining in the dresser drawer. He had not paid attention to what he had grabbed out of the drawer, but did not end up with the extensive collection of articles which ultimately the complainants had lost from that drawer.

In any event, the accused denied taking those other articles and has no knowledge as to their current whereabouts. [ 22 ] One of the exhibits filed by the Crown was exhibit P-2b, which as noted, is a Facebook photo shown as “added March 18” prior to the date of the break and enter. The accused confirmed that the day was accurate.

In the absence of a witness with computer expertise suggesting that the date could have been altered, the accused should receive the benefit of the doubt in that assertion. [ 23 ] There are concerns regarding the accused’s credibility when one considers his criminal record, particularly his confirmation of having stolen a flat screen TV from a foster home, so that he could sell it to purchase clothes. However, he was candid in confirming under oath that he had been a member of the Cripps gang member at the time.

To his credit as well, he had specifically named on the record, the Cripps gang to whom he had sold the jewelry. Perhaps that latter information is of some value to the police in this investigation, or others. Regardless, it may involve an element of personal risk to the accused. [ 24 ] As noted, the accused claims not to have been paying particularly close attention when he grabbed some of the jewelry items out of the dresser drawer.

As such, it may have included in the Safeway bag, earrings which he has since forgotten, having been grabbed in haste and ended up being recovered by the complainant subsequent to the break-in. Again, he should be given the benefit of the doubt in that respect. [ 25 ] Beyond that, however, he denied having taken any of the other articles of jewelry. As noted, he had left the patio door open. There was a window of opportunity for someone else to enter the complainants’ residence before they discovered the break-in and reported it to the police.

Of course, there is no evidence from the investigators which casts any doubt on the possible timing of that scenario, in the unfolding of the narrative. [ 26 ] Therefore, applying the principles in McKenzie , supra , while the Court does not necessarily believe the evidence of the accused, it is left in reasonable doubt by it, and must acquit. The accused had stood up reasonably well in careful cross-examination, and should receive the benefit of the doubt. As a result, the evidence for the Crown establishes only that the accused had taken the articles of jewelry to which he had admitted in his testimony.

VALUATION [ 27 ] Generally speaking, if the Crown was attempting to prove beyond a reasonable doubt the value of these various articles, it was not appropriate to rely on the estimates of the complainants, despite their good intentions. The value of all the property remained an issue, and none of that was conceded by the accused. In that regard, had a computer expert testified, there would have been expert opinion on both the value of Mr. Carmichael’s used laptop, and also someone to offer insight as to Facebook and whether it is possible to alter dates thereon, as Ms.

Parsons had suggested, but the accused had denied. [ 28 ] As well, it is not appropriate for the Court to attempt to rely on Ms. Parsons’ considered opinion on the value of the articles of jewelry. Even though she meant only the best, Ms. Parsons is not an expert. Instead the Crown should have relied on someone experienced and qualified to prepare an appraisal of each piece, and testify as to estimated value. In the absence of that nature of evidence, the Court is not prepared to speculate on the value of any of the articles, including the ones which the accused had admitted to taking.

A list of those articles should have been prepared and considered by an expert as well, who could offer an opinion as to value. In

the absence of that having occurred, the Crown has not proven beyond a reasonable doubt the valuation of any article, and there will be no order of restitution. ______________________________ P.S. Kolenick, J