R. v. Gold, 2019 MBPC 30

CITATION: R. v. Gold, 2019 MBPC 30 THE PROVINCIAL COURT OF MANITOBA (Winnipeg Centre) BETWEEN Her Majesty the Queen ) K. Hutchinson for the Crown ) - and - ) ) Leroy Gold ) ) R. Wolson and C. MacDonald for the Accused ) ) Judgment delivered June 20, 2019 M.P. Thompson, P.J. Introduction [1] Leroy Gold, the accused, is a former Winnipeg Police Service police officer charged with pointing a firearm and utteringthreats on two different dates. The complainant is also a police officer.

It is alleged these offences took place at Police Headquarterswhile both officers were on duty. [2] There is no issue as to identity, jurisdiction or that the gun in question, a tactical shotgun, is a firearm as defined in theCriminal Code. [3] The main issue at trial was credibility and whether the Crown had proved these charges beyond a reasonable doubt. [4] The trial took place on April 24th and 25th, 2019. The Crown proceeded summarily, with the consent of Defence, as the Information was laid outside of the six-month limitation period.

The two incidents are alleged to have occurred between May 6 to 9th, 2016 and on November 3rd, 2016 in Winnipeg, Manitoba. Legal Test [5] The Crown did not apply for a similar fact evidence finding; therefore, the two incidents must be examined independentlyfrom the other to determine whether the Crown has met its burden of proof beyond a reasonable doubt. [6] Because the accused testified at his trial, I am guided by the framework of Justice Cory’s decision from the Supreme Court ofCanada in R. v.

W. (D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.), which identifies a three step process to ensure thatthe trier of fact remains focused on the principle of reasonable doubt: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [7] The law has evolved to understand this test takes place in the context of the entire evidence at the trial, including theallegations of Crown witnesses (R v. Menow 2013 MBCA 72). The W.(D.) framework is intended to prevent the false trap of a contest ofcredibility between an accuser and the accused in a zero sum game, where only one of them must be telling the truth.

A third optionexists for the trial judge – that she or he simply doesn’t know – the Crown has failed to prove its case beyond a reasonable doubt and hasnot discharged the presumption of innocence that cloaks an accused at the outset of any trial. The First Incident (May 2016)

[ 8 ] The complainant, Cst. Prefontaine, described that the first incident took place in the parking garage of WPS headquarters between May 6-9, 2016. She testified she was in the parking garage at the end of her shift. Her partner Cst. Desjardins was likely in the typing room finishing up a report. While she was emptying the cruiser car of her equipment for the next shift, she came around the back of the trunk and saw Leroy Gold.

She testified that he pointed a shotgun at her crotch and commented “Boom, right in the crotch”, laughing after he said it. [ 9 ] She testified: Q And that’s—again, which way was the barrel pointed? A It was directly at my crotch. Q And, again, what did he say to you at that time? A He said, Boom or, Bang, one of those two words, Right in the groin, or Right in the crotch. Q How did you take that to mean? A I really still don’t understand how to take that. Q How did it make you feel? A It wasn’t funny. Sorry, it wasn’t funny. Q Again, how did it make you feel?

A It was terrifying and, like, everything that comes with it in our job, we have a lot to consider in any of our actions, so it’s – you kind of go through this process of – I went through a process of I could have died to the implications and then reporting another officer. So that’s – that’s what I felt, but I – I don’t know. I still don’t know how to take what he said or what he did. I don’t know the intention behind that. Q Did you say anything to him? A I walked around him and I said, pardon me, Don’t ever fucking do that again. And I just kept going.

I just – I looked around and – just to see if anybody else had seen that, but, no, I don’t – no one saw. (Transcript Vol 1 T72 lines 3-30.) [ 10 ] Cst. Desjardins testified that Cst. Prefontaine reported an incident to him where Leroy Gold had pointed a shotgun at her in the parking lot. In contrast to her testimony that she informed him immediately, he testified he recalled that she told him while they were in the cruiser car.

If his recollection about that location was accurate, her disclosure could not have come until the next shift at the earliest, as they had finished their shift and left the cruiser car. [ 11 ] In addition, he testified that in regards to the first incident (the one we have identified as May 2016), Cst. Prefontaine told him that Leroy Gold made a comment to her “I know what you need”. This contrasts with Cst. Prefontaine’s testimony that was the comment made by Leroy Gold during the second incident in November 2016. [ 12 ] Cst. Desjardins made no notes about the first incident as he felt that Cst.

Prefontaine had handled it herself and he had moved on. [ 13 ] It is important to recall that no one approached this as a police investigation when it occurred, as both Constables Prefontaine and Desjardins believed the matter was resolved. [ 14 ] It was only after a second incident on November 3, 2016, that Cst. Prefontaine reported both incidents to her Patrol Sargeant, Sergeant Bertouille. She did so on November 9 th , 2016. Because of the six-month delay in reporting, no video footage from the parking garage was available. [ 15 ] It is a fact that Cst.

Prefontaine described who was present at the May incident, differently to Patrol Sergeant Bertouille than she did to Detective Sergeant Roch of the Professional Standards Unit and to the Court. She told her Patrol Sergeant “Leroy Gold and his partner were walking by them when Leroy pointed a shotgun towards her crotch area and made a comment.”(emphasis added).

She changed those details of her story when she met with Detective Sergeant Roch on November 14, reporting she and the accused were alone in the parking garage when that incident took place. [ 16 ] What do I make of that unexplained inconsistency? [ 17 ] Defence argued that Cst. Prefontaine’s inconsistent recounting of the May incident demonstrated that she fabricated her story to fit the fact that the accused’s partner Cst. Stevens and Cst. Prefontaine’s partner Cst. Desjardins were not present. I do not accept that argument. Unreliable evidence is not necessarily incredible.

There could be a reasonable and non-malicious explanation for her inconsistency; she got it wrong. [ 18 ] Cst. Prefontaine knew Cst. Desjardins was not present. He testified that she told him about it after it occurred. I find it more likely that Cst. Prefontaine put the incident out of her mind. By her telling, this was a traumatic, inexplicable event, which she thought she had dealt with. She took no notes as she did not intend to take it further and likely put the details out her mind, as did her partner Cst. Desjardins. I do not find there was any attempt to deceive when she reported this. [ 19 ] Cst.

Prefontaine did not decide to make a formal complaint until Nov 9, 2016. Given her reluctance to make a formal

complaint, it is not surprising that the details of her recollection surrounding the May 2016 incident are not linear. She believed she haddealt with the first incident herself when she rebuked Gold in the parking garage.

She likely confused the details as to how it hadunfolded when she reported it six months after the fact; understandably, she would have been primarily focused on the recent incident from November 3rd when she reported these events on November 9th, 2016. [20] While her description of the first complaint was likely mistaken, no explanation for her contradiction was ever offered to theCourt. [21] In the face of the accused’s denial, the differing account of Cst. Desjardins and Cst. Prefontaine’s inconsistent recounting ofevents from May are problematic.

While I believe her to be honest, in these circumstances of conflicting recollections, I am not satisfiedwith the reliability of that evidence. It would be unsafe to convict. [22] I acquit the accused of the point firearm and uttering threats counts from May 2016. The Second Incident (November 3rd, 2016) The Crown’s Case [23] Cst. Prefontaine testified that on November 3, 2016 during a shift change overlap, between 7 and 7:30 am, the second incidentoccurred. After finishing the night shift, she was seated at a computer station in the typing room writing her report.

Her partner, Cst.Desjardins, was at the two desks to her immediate right. He was focussed on photographing and cataloging stolen property they hadseized from a break-in earlier in their shift. The backup desk in the Sergeant’s office faced Cst. Prefontaine’s desk across the room. Cst.Prefontaine stretched back on her chair and lifted her hands above her head. The accused came up to her and with one arm poked thebarrel of his tactical shotgun into the ribs and vest of Cst. Prefontaine saying, “Oh, I know what you need” and chuckled. [24] There were no other witnesses to this incident. [25] Cst.

Prefontaine testified she reacted by grabbing the barrel with her left hand and pushing it back, down and away. She told theaccused “Don’t point your fucking shotgun at me. I don’t like that.” She testified that she was shocked and “was just kind of frozen” andthe accused “just kind of went away out into the hallway”. She was in shock and did not know what to do. She looked up to see SargentDonnelly, could see he was busy (she believed he was on the phone) and could tell he did not see anything. Almost immediately Cst.Prefontaine told her partner, Cst. Desjardins, what had happened. [26] Her partner Cst.

Desjardins testified: A …And it was late in the night, we had just finished our nightshift. We had a little – a little bit of overtime on this call just tofinish up. Days was starting their shift, so when there’s a shift transfer there’s a lot of commotion – a lot of movement, a lot ofcommotion, people moving around, and I wasn’t paying attention to any of it. And when things got quiet I looked over to Danielle andshe just had this blank, just white kind of – like her skin tone totally went like white. Like she was visibly upset. And I – I asked herlike, What the hell’s wrong with you? Are you okay?

And she said – said, You won’t – you won’t believe it; he did it again, And I said,What? And she says, Leroy did it again. This time he pointed a shotgun at me at my ribcage. I’m like – and then of course I’m upsetand I’m mad, but I – I just still can’t believe what’s going on. And Danielle was – she looked crushed. She looked really, really – reallydisappointed and really hurt, and she was – she had a hard time just kind of getting any sentences together. She was just really surprisedabout what was going on. (Transcript Vol 2 T45 lines 16-30.) [27] I am mindful that I cannot use what Cst.

Prefontaine said to Cst. Desjardins previously to bolster her credibility. [28] In R v. Ellard 2009 SCC 27, Justice Abella wrote this for the majority at paragraph 31: It is true that prior consistent statements are presumptively inadmissible (R. v. Béland, (SCC), [1987] 2 S.C.R. 398, atpp. 409-10, and R. v. Stirling, 2008 SCC 10 , [2008] 1 S.C.R. 272, at para. 5). The rationale for excluding them is thatrepetition does not, and should not be seen to, enhance the value or truth of testimony. [29] In this case, while Cst. Prefontaine’s prior consistent statement to Cst.

Desjardins is inadmissible, the manner in which sheattempted to express herself together with how she appeared to Cst. Desjardins, corroborates her testimony that she reacted with shockand disbelief after the typing room incident. In this respect, it enhances her credibility. [30] Cst.

Prefontaine explained her hesitancy in making a formal complaint: she was well aware of the implications of reportinganother police officer; she wanted to think about all her options as it was not an easy decision and she wanted to try to find a way aroundthis. [31] Knowing this was her last shift, she decided to wait until her next working day to speak to her Sergeant. At the start of her next shift, six days later on November 9th, she reported both incidents to Patrol Sergeant Bertouille.

The Accused’s Testimony [32] The accused took the stand and testified in his own defence. [33] Leroy Gold denied that he ever pointed a firearm at Cst. Prefontaine intentionally or accidently. [34] He testified that on the date and time in question on November 3rd, during shift change, he entered the typing room with ashotgun. He carried it in a sling over his left shoulder diagonally with the shotgun on his right side. The sling is attached to the butt of

the shotgun with gravity pointing the barrel down to the floor. The stock would be six inches below his armpit. His right hand would be on the shotgun in the handle area to keep control of it from swinging. [ 35 ] He indicated he needed to get statement paper before leaving for his patrol shift. He stood behind Cst. Prefontaine while she was seated typing a report.

He said he stopped, testifying: A Well, I was basically just going to exit, but I saw over her shoulder that she was working on something that seemed a little bigger than usual that—I could see her computer screen was full of typing and it caught my interest, so I just thought I’d—I was just curious as to what she was working on, so as with the running joke I approach her and said, Hey—…No need for overtime.

Shut that down and continue that tomorrow, type of thing. (Transcript Vol 2 T77 lines 22-30.) [ 36 ] He went on to say this resulted in a sharp angry exchange between them with both of them telling the other to F’ off, after which he left. [ 37 ] On cross-examination, he repeated that he was interested as to what was on her computer screen and was curious as to what they were working on. At no time did he testify that he asked any questions of Cst. Prefontaine or Cst. Desjardins about the case they were working on.

Instead of asking questions about that topic, he testified he made a comment about overtime. [ 38 ] He agreed that the shotgun on his right side would have been right next to Cst. Prefontaine. He testified that at no time did the shotgun touch her, even by accident. [ 39 ] The accused’s testimony stands in contrast to the testimony of Cst. Prefontaine. She testified: A So I was typing the report and being as it was early, the end of my shift, I just – I just needed to stretch, so I stretched back in my chair, just like a regular stretch. Q You’re lifting your arms above your head behind you?

A Yes, and at this time, I saw Mr. Gold coming from the hallway that leads out to the main area, the main hallway for the level 3 in the Headquarters. Q So, in essence, coming into the typing room? A He came into the typing room and came – and he said, Oh, I know what you need. And, again, with one arm put the shotgun in my ribcage, in my left – my left ribcage, here and it was touching me, not very hard, but it was touching me and it was – I was shocked and I just I couldn’t believe that -- I don’t know why, he did it again.

And I just grabbed it and I said, Don’t put your – don’t point your fucking shotgun at me, I don’t like that. And I was just kind of frozen. And he just kind of went away. He just went out of to the hallway and that’s what happened there. Q You indicated that he pressed the shotgun into you ribs, what part of the shotgun? A It was touching -- I had – I had my vest on, but I could feel it was touching me. He didn’t ram it in. Q What part of the shotgun? A The barrel. Because when I grabbed it, I could feel the barrel. (transcript Vol 1 T76 lines 4-28.) [ 40 ] Cst. Stevens, the accused’s partner also testified.

His evidence was that he was unaware of either incident until Leroy Gold was suspended and that Cst. Stevens was not physically present during those times. [ 41 ] On cross-examination, Cst. Stevens testified that Detective Sergeant Roch did not interview him about the typing room allegation. [ 42 ] He also testified he saw the accused talking with Cst. Prefontaine during shift changeover in the typing room during one of the last days the accused was working, but he could not recall the date. He was 30 feet away and could not hear what was said. He did not see the accused point a shotgun at Cst. Prefontaine. Cst.

Stevens left before the accused left the typing room. He confirmed that there would be approximately twenty to thirty officers working at shift change/overlap. [ 43 ] In the months, May through November, Cst. Stevens saw the accused and Cst. Prefontaine talk dozens of times, at times for five to ten minutes and occasionally laugh together. It did not appear to Cst. Stevens that Cst. Prefontaine was trying to avoid the accused.

The Central Issues [ 44 ] The Crown conceded that Leroy Gold was unshaken on his testimony during cross-examination. [ 45 ] However, by his own testimony the accused placed himself with his shotgun, in the typing room on the day in question. He conceded there had been a sharp exchange with Cst. Prefontaine.

His explanation, that he stopped to look at her computer screen because he thought she was typing something of interest, does not seem compelling or believable, given that he did not ask her any questions about the investigation she was working on or the contents of the report she was writing. [ 46 ] The witnesses agree that Cst. Prefontaine reacted with vehemence. Leroy Gold’s story is illogical because one would not

expect a “sharp” reaction to a joke about overtime, especially when he says it was a running joke. [ 47 ] I find his testimony that he made a comment about overtime to be illogical, inconsistent and I disbelieve his evidence. [ 48 ] I accept the testimony of Cst. Prefontaine as credible and reliable that she saw Leroy Gold enter the typing room as she stretched her arms above her head and that he came directly to her and stuck the barrel of the shotgun in her ribs. [ 49 ] Leroy Gold’s testimony corroborates he had the opportunity to lift/tip the shotgun barrel and push it into her ribs. He is 6’2” and Cst.

Prefontaine was sitting down. The shotgun was next to Cst. Prefontaine. He had one hand on it while it was hanging from his shoulder by the sling. Not much movement of the shotgun was required to tip the barrel upwards at her ribs. Their positions and the position of the gun would not require that motion to be obvious or necessarily draw anyone-else’s attention. In those circumstances, the possibility of this occurring in plain view but without being seen by other officers was very real. [ 50 ] I put little weight on the evidence of Cst. Steven’s for the following reasons.

He was unaware of either complaint, until the accused was suspended. That was two weeks after the typing room incident. He cannot say that what he observed in the typing room took place on the same date as Cst. Prefontaine complained about. In any event he left before the accused did, so cannot say he saw the entire incident. While Cst. Stevens also testified that he saw no effort by Cst. Prefontaine to avoid the accused in the months leading up to November, 2016, Cst. Prefontaine was a professional and indicated that she spent no more time than necessary with the accused. [ 51 ] Cst.

Prefontaine’s testimony – why I believe it: Defence urged the Court to find that her allegation are outrageous and that she fabricated these events. However, no motive to fabricate or falsify was demonstrated. The evidence from all parties was clear, Cst. Prefontaine held no animus to the accused. To the contrary, the evidence shows she was reluctant to complain. She waited during her time off to weigh what to do, was looking for “a way around this”, but ultimately determined there was none and reported it after her days off. Her evidence is clear. She felt very conflicted.

She referenced that she weighed the decision to report and hesitated because she knew the implications of reporting another officer. There was no upside to her to making a complaint and she knew that. [ 52 ] An important factor is Cst. Desjardin’s evidence as to her post-event demeanour on November 3 rd . It was significant that Cst. Desjardins noticed a change in her demeanour to ask, “What the hell’s wrong with you? Are you OK?” Cst. Desjardin was her partner and had worked with Cst. Prefontaine for some months. He knew better than anyone that something was up. [ 53 ] Cst.

Desjardins observations of her visceral reaction of shock, disbelief and disappointment is compelling evidence that something significant happened. This was not about a trifling joke about overtime or a minor disagreement. [ 54 ] Cst. Prefontaine’s demeanour during her testimony in court was emotional and displayed signs of trauma. When describing the typing room incident, her voice cracked and her eyes watered when she testified about the shotgun being pointed at her. Her struggle to understand the accused’s intent belied her honest confusion as to why he would point a firearm at her.

This enhanced the credibility of her testimony. [ 55 ] Cst. Prefontaine’s retelling of the November 3 rd incident was clear and without inconsistencies. Decision and Verdict [ 56 ] The words alleged to constitute a threat from November 3: “Oh, I know what you need” while likely a sexualized comment, do not constitute a threat to cause death or bodily harm to a person as required by

section 264.1(1) of the Criminal Code . Accordingly, I acquit the accused of the count of uttering a threat from November 3 rd , 2016. [ 57 ] As to the remaining count of point firearm from November 3 rd , 2016; in applying the WD test to that count: [ 58 ] I do not believe the evidence of the accused. His story makes no sense, it is illogical and inconsistent. [ 59 ] The testimony of the accused does not raise a reasonable doubt. [ 60 ] I accept the testimony of Cst. Prefontaine, which I have found to be credible and corroborated by Cst.

Desjardins observations of her demeanour. [ 61 ] I am convinced by that evidence beyond a reasonable doubt of the guilt of the accused. [ 62 ] I find the accused guilty of the offence of pointing a firearm at Cst. Prefontaine on November 3 rd , 2016. “Original signed by” M. P. Thompson, P.J.