Her Majesty the Queen - v. -, 2012 SKPC 41

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 041 Date: March 9, 2012 Information: 24439153 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jaymond Mitchel Meier Appearing: Ms. L. O ’Connor For the Crown Mr. G. Carson For the Accused DECISION B. MORGAN , J INTRODUCTION: [ 1 ] On June 14, 2011, at approximately 11:00 p.m., someone broke into a home in Melfort, Saskatchewan, took a few steps down the basement stairs, and sprayed bear spray around a room in which a number of individuals were having a party.

One of the individuals in the basement was stabbed, and it is alleged that various individuals were threatened. There have been a total of 11 counts laid against Mr. Meier. The question for determination is whether or not Mr. Meier has been identified as the individual who wreaked this havoc.

[ 2 ] Identification evidence can be notoriously unreliable, depending on a number of factors. There are numerous cases in which well-intentioned and honest witnesses have simply been wrong in identifying an accused. For that reason, courts are always mindful of the potential problems in identification.

In this case, identification consists of three elements. [ 3 ] The first is through visual identification, as some witnesses maintain that he or she saw that Jaymond Meier was the intruder. [ 4 ] The second is through voice identification, as there was evidence that the intruder uttered a threat as he exited the house. [ 5 ] The third is through cell phone records, phone calls which essentially establish, if accepted, that Jaymond Meier, during the roughly eight hour period that he was at large between the time of the incident, and the time of his arrest, and prior to the incident, was texting back and forth with friends and/or adversaries, first threatening some people at the party, and later enquiring of his friends as to the status of the police investigation. [ 6 ] I will deal with the visual and voice identification issues first, and then look at Mr.

Meier’s movements after the incident, tying that evidence into the cell phone records. Visual and Oral Identification [ 7 ] Of the witnesses who testified as to the events at the house, their evidence is as follows. Lisa Aasen [ 8 ] Ms. Aasen was downstairs when she heard the door on the main floor get broken. She said she looked up and saw Mr. Meier on the stairs. Although he had a bandana over his face, she stated she could clearly see his eyes.

She said he was laughing and that he jumped off the stairs, presumably onto the basement floor (a table got knocked over at some point), and that he cornered Chris Parsons and James Parsons. Ms. Aasen was clear that she saw him “go over top of James”, which she clarified to mean that James Parsons was on his back, curled up in a ball, and that Mr. Meier was towering over him. Although she did not see any blows, she said James Parsons was saying he was sorry.

She said she then ran upstairs as she had been sprayed. [ 9 ] When she was up the stairs, on the front lawn (by now, everyone else had come outside), she said that Chris Parsons said James had been stabbed, James Parsons lifted up his shirt, and he saw that he had been stabbed, and at that point Jaymond Meier came out of the house; she thought at this time his face was still covered. He said words to the effect, to all the individuals, before leaving: You’d better not call the cops ...

I know all of you, and your families, and I’ll kill them all. [ 10 ] When asked in cross-examination particulars of the identification she had made, she said that she couldn’t say the age, weight, height, or colour of hair of the individual, and she was about 15 feet away. She testified that there was a light on in a bedroom adjoining the area, and disagreed that it was very dark downstairs, noting further they were playing music through the TV (which presumably would have provided some background light).

All she could really tell about the person was that he was white, probably 5' 7" or so, and that what she really noticed was a black bandana and the individual’s eyes. She said the individual’s hands were covered in clothing, presumably gloves, when he was spraying. [ 11 ] Her knowledge of Mr. Meier came about as a result of having known him as an “acquaintance” for approximately seven years, as she was friends with Mr. Meier’s ex-partner.

Devin Reiner [ 12 ] Mr. Reiner’s evidence was that everything was quite peaceful, when he heard “loud banging noises upstairs”. Interpreting these noises as being a potential problem, and fearing for his safety, he ran into the laundry room adjacent to the recreation type room in the basement, then ran into a bedroom, and out the bedroom window. When he was in the laundry room, he had heard screaming, so he knew he had to get out of the house.

He said he then took off running home, without talking to anyone. [ 13 ] In cross-examination, he described the basement as being in semidarkness, and acknowledged that the sounds from upstairs could have been caused by more than one individual. Jared Welch [ 14 ] Mr. Welch heard what he referred to as a boom, with tinkling glass, followed by the sight of a masked person on the stairway discharging bear spray towards those in the basement. He stated that he couldn’t see the individual’s face, as he was wearing sunglasses.

He said he had gone into a fetal position, and when he opened his eyes, saw a “whole bunch of orange”, that being the bear spray, and that he did hear individuals screaming. When he got outside, he opened his eyes, as others spilled out of the house, and he was helping them. [ 15 ] He refreshed his memory by listening to the 911 call he had made, and after that, stated that in that call he had stated to the police that his buddy James had been stabbed, and acknowledged that he told 911 that Jaymond Meier was the perpetrator.

However, he testified that he said it was Jaymond Meier because all the other people said it was Jaymond Meier. Mr. Welch is from the Watrous area, and was there partying as he knew one of the individuals inside. [ 16 ] He stated that when he and two others were outside, the intruder came out, and immediately left. [ 17 ] In cross-examination, he said that when that person came out, he did not hear him say anything, nor did he hear that person threaten anyone. Jenna Sauter [ 18 ] Ms.

Sauter, who is the girlfriend of one of the males downstairs, had been dropped off at the party and was there for approximately one-half hour when she suddenly heard the bear spray being discharged. She said she closed her eyes, put her head towards her boyfriend’s shoulders, and took a peak when she went out the door, and that she thought she was the first one out of the home.

As for what she actually saw, she said she “maybe seen like a pair of legs walking down the stairs”, although it was clear her main interest was getting out of the basement. [ 19 ] In cross-examination, she thought that she was perhaps the second or third one out of the house, as she did recall Lisa Aasen being ahead of her on the stairs. She wasn’t exactly sure when the others came out, as her recollection was that she saw Lisa Aasen on the ground, she herself was on the ground, she saw a friend Kim Hart (ph), and that she assisted Kim by taking Kim home to her residence, a short distance away.

As such, she did not hear any threats being made, and she was not in the area at all, outside the house, for very long after this all occurred. Stacie Nielson

[ 20 ] Although not downstairs when the incident occurred, Ms. Nielson lived in the upper portion of the house with her then boyfriend Greg Nordstrom and their infant child. She testified that on June 14, she was in her bedroom with Mr. Nordstrom and their son, and that Chris and James Parsons had a number of people over who were downstairs. She says “we heard a bang”, initially thinking it was from downstairs, followed shortly by screams. She said she went downstairs, or at least started down the stairs, and saw a person running up the stairs.

She said this person had a “black hoodie and black bandana”, although she said she could see his eyes. She continued that Mr. Nordstrom told the intruder to get out, and testified that the black clad person said “if you tell anyone I’ll get my boys after you”, prior to going outside momentarily. He then immediately returned inside, went downstairs, and then exited a short time later. She testified he was holding “a little shank thing”, and was wearing gloves. [ 21 ] After this person had left, everyone from downstairs started running out. She said James Parsons said he was stabbed, and that someone called 911.

As she put it, although she didn’t see it, the “house was maced”; she could smell it, and people running out said that is what had occurred. She testified that there were no other individuals with this person. Each time he was downstairs, she said, it was approximately for a one minute duration. When the intruder was in the second time, she testified that she heard Chris Parsons saying “they were done and telling them to leave”. When asked who this person was, she stated “I don’t know for sure but I have a guess”, stating that she recognized the voice of Mr. Meier, having known him for three or four years.

She said Mr. Meier used to hang out with Ms. Nielson’s then babysitter. Further, she stated that James and Chris Parsons were talking to him earlier on the phone, and arguing. [ 22 ] In cross-examination, she acknowledged that she had told the police, at the time, that she couldn’t really see the intruder’s eyes, and she did acknowledge in cross-examination that his face was completely covered, she could not state the individual’s weight, she did not know the eye colour or skin colour, and that she thought this individual had gloves on. Greg Nordstrom [ 23 ] Mr. Nordstrom’s evidence was similar to Ms.

Nielson’s, stating that it was “10ish, or so” when he “heard the door getting kicked in”. He initially thought it might be a friend of Chris Parsons, who was renting a room downstairs, trying to come in, and that it was not until he heard the yelling that he recognized that something was amiss. He stated “my eyes were burning, my nose was burning”, and that “it all happened really fast”. Having concern for his son, he grabbed him and rushed out the door; he thought Stacie Nielson might have followed him. He testified that he did not see anyone on the stairs, although he did see someone run out the front door.

This individual stated “don’t say anything to anybody or he’d send the boys back to finish the job”, testifying as well that this individual was clad in black with a bandana up to his eyes. He stated that it was Jaymond Meier, “cause of his voice and what he said to me”. He stated that he had known Mr. Meier for probably six years because he used to hang out with and, in fact, used to be a good friend of Mr. Meier. He stated this individual left the house and he did not see where he went. He testified that at some point he heard Chris Parsons yelling from downstairs “stop freaking out, man”. As did Ms.

Nielson, he testified that this individual left once, came back in, and it was the second time he left that the individual spoke to him. He surmised that the first time this individual was in and out was perhaps before he got out of his own room. [ 24 ] In cross-examination, he acknowledged that in the statement he gave the police, he stated that the individual didn’t threaten, although he also stated at that time that he may have. He agreed that what he told the police at the time was what he recalled.

However, he didn’t accept his earlier statement as being accurate, saying that at the time he said that, he was scared, and everything was in quite a state of upset. Further, as mentioned earlier, he was concerned with his son, that being one reason he was mad, that is, someone set off bear mace in his home where his infant child was sleeping. [ 25 ] He did state that he could tell this individual was Caucasian, because there was skin showing around his eyes, saying he “got his eyes almost covered”. [ 26 ] He also acknowledged that he had a “past” with Mr.

Meier, based on some conflict respecting an ex-girlfriend, and that this individual had nothing in his hand. As did most of the other witnesses, he testified that this individual was wearing a dark hoodie, dark pants, acknowledging a number of times that this “happened really fast” or happened “very, very quickly”. He closed his cross- examination by stating that when this individual left, he was the first one out of the house, and no one else was around at the time. Kimberley Routledge

[ 27 ] Ms. Routledge was one of the individuals in the basement. She quite candidly admitted, both in examination-in-chief and in cross-examination, that she didn’t really know what was going on until the bear spray went off; as she put it “all I know is I was bear sprayed”. She said that she was “completely burnt and blind” commenting as well that her skin “started burning”. She could not see where the spray came from, and she went up the stairs and outside, and “everyone went their own way”.

She stated she was blinded for approximately half an hour, her friend Jenna Sauter took her home, and that she went to the hospital, although she did not receive any treatment there, other than advice to keep showering. She said it was approximately two days before her skin stopped burning. [ 28 ] She testified she did not hear the door getting busted in, and that she could not see the person who sprayed her and the others, and had no idea how many people might have been involved. Richard (Kent) Brittain [ 29 ] Mr.

Brittain, who was downstairs, testified he had approximately five or six beer all evening, and that the first thing he really noticed was what he referred to as an orange cloud of mace, coming from the stairs. He said he put his head down, grabbed his friend Devin Reiner, who was sitting next to him, and basically followed Mr. Reiner, as Mr. Brittain couldn’t see anything. He first went into the laundry room, where there was no exit, and Mr. Reiner then went into the bedroom of Mr. Chris Parsons, and out that bedroom window, followed by Mr. Brittain.

He said he ran for three or four blocks, and found some water, and washed his eyes out. When asked why he was running, his reply was “I don’t know ... felt like running”, although he did indicate he was running with Devin Reiner. [ 30 ] As to particulars of the incident, he said he heard the sound of a spray can coming from the stairs, and that he saw the shoes on the stairs, but he “couldn’t see nothing else”. Stephanie Carriere [ 31 ] Ms.

Carriere stated she was “hanging out” with Lisa Aasen first at James Parsons’ house, then at Chris Parsons’ house, the latter being the Nordstrom residence in which Chris Parsons rented a basement room. She stated she was not keeping track of time. [ 32 ] She stated the first thing she saw was the spray from a can; the person had a sweater on, and his hood up, although she couldn’t see the person’s face as the can was in front of the face. She stated this individual was “covered up, head to toe”. She said she then ran into the laundry room, and that “everyone kind of scattered”.

She ended up following Devin Reiner and Kent Brittain out the window, and then went out front, where she saw a person threatening people. When asked what he said, she testified that he said that he knows our families, and he was going to hurt them, although she couldn’t recall the exact words. [ 33 ] She stated she recognized this individual when she got outside as “Jay” as she had seen him a couple of times previously, and kind of knew him through friends. She also said she recognized him as he was texting James and Chris Parsons.

When asked how she recognized him, she said she “saw his face” outside, and that while she was in the laundry room, she heard him laugh, and then heard another laugh, leading her to conclude that there might have been two individuals involved. [ 34 ] In cross-examination, Ms. Carriere was firm that she heard two different voices, and that led her to believe there were two people. She acknowledged in her statement as well that she had told the police it was Jay because he was threatening James earlier, and she did not tell the police that she saw Jay outside.

She testified that she couldn’t see much because of the spray, and that the can was in front of the face of the person who was doing the spraying. In essence, she said she could not see anything inside, stating “all I saw was spray”. James Parsons [ 35 ] Mr. Parsons testified that he didn’t “remember much, I was pretty drunk”, indicating that he had eight or nine beer in the basement and that “it was a long time ago”. He testified that “I remember seeing footsteps come down and a man in black sprayed us”.

He recalls that he had been struck in the side, and that it was later that his brother told him he was stabbed.

[ 36 ] He testified the individual who did the spraying was wearing black clothes, and a black bandana covered his face, and that he couldn’t see the skin or the face of this individual. He said that when this started, he got up, yelled “mace”, and then was moving away when he got struck. He testified it felt like he got punched in his side. He stated he then “got myself together and ran upstairs”, going into the bathroom to wash his eyes, where he stayed for five to 15 minutes, then went outside where his brother said he had been stabbed.

At that point, he said he felt pain. [ 37 ] He testified he did not want to talk to police when they arrived at the scene, as he was mad, his eyes were burning, and he had been stabbed. He was taken to the hospital, where he received four stitches, which stayed in for two to three weeks. He had a scar, which was visible at the trial, being two or three inches long, on the left side of his body, somewhat towards the back. [ 38 ] Mr. Parsons acknowledged that he had taken a can of bear spray to the basement, a few days before, although he gave no real reason as to why he bought it.

However, it was obvious from his evidence, which included evidence of earlier text messages between him and Jaymond Meier, that he had some reason to feel threatened by Mr. Meier. I will return to this later. With respect to the identification, he stated that he did not recall what this person looked like. He also stated this person in the basement did not say anything, and that he definitely could not identify the person who was in the house, although he did identify Jaymond Meier being the person he was trading text messages with. Christopher Parsons [ 39 ] Christopher Parsons is James Parsons’ brother.

As did all the individuals downstairs, he testified to a general group of people hanging out in the basement, drinking a few beer and doing nothing in particular. He stated that “people were saying they heard a loud noise ... I didn’t hear anything”. He said that he heard a spray can being discharged, and turned, getting hit in the face by the spray. He said everyone was screaming and trying to leave.

All he could see was a person “suited up”, that is, a hoodie up, a bandana on, although he stated he “didn’t get a good look at him”. [ 40 ] He stated he could not recall the person who discharged the spray saying anything, although he testified that he said to this person “why are you doing this”.

When asked particulars of what was going on, beyond a lot of yelling and screaming, he stated “I was not focused on what everybody else was doing”, a statement I find particularly accurate and logical in the circumstances. [ 41 ] He assumed the person on the stairs was the person who stabbed his brother, as he saw a person approach his brother. Further, he heard someone stating “where’s the can ... find the can”. He stated that this individual who had administered the spray then ran up the stairs and left, and that he himself ran into the back yard, while his brother went and washed out his eyes. [ 42 ] Mr.

Parsons was also involved with texting earlier with a person whom he believed to be Jaymond Meier, a point I will return to later. When asked who it was that did the spraying, he said he didn’t see, although he had an answer as to who he thought it was. He stated “we were kind of anticipating it ... James was anticipating it”, referring to the expectation of violence from Jaymond Meier. As to what he saw, however, the point I am dealing with at this stage of the judgment, he was not able to identify Mr.

Meier as the individual in the basement. [ 43 ] I am satisfied on the evidence that no one is able to positively identify Jaymond Meier by sight as the intruder on June 14, 2011. I have no doubt the scene downstairs was complete bedlam, brought about by the fact most individuals who testified were caught totally unaware, were first aware of an orange cloud of bear deterrent spray, followed immediately by burning eyes and burning skin. Not surprisingly, under these circumstances, everyone was concerned with exiting the basement at the earliest possible time.

The time and opportunity to make a careful and accurate visual identification was simply lacking for all the witnesses. Further, it is clear that the intruder had his face completely covered, but for his eyes, and it would be unsafe, in these circumstances, to accept evidence of positive visual identification based on anyone seeing the intruder’s eyes. [ 44 ] Further, this individual was fully clad in black. I do not believe he was wearing sunglasses; most of the witnesses testified that his body was completely covered, save for a small area around his eyes.

From that, I am able to conclude and accept that whoever this person was, he was Caucasian. However, I am not able to accept that any witness could identify Jaymond Meier by sight.

[ 45 ] As to the evidence that Mr. Meier made threats, and was identified by his voice, I note the following respecting various witnesses’ evidence. [ 46 ] The first point I note is that Ms. Aasen testified that it was approximately 15 to 20 minutes after this had occurred that Mr. Meier came out of the house, her belief at that time being that his face was still covered. She stated that he said “you better not call the cops, I know all of you and your families and I’ll kill them all”. However, all other witnesses tended to establish that Mr.

Meier was in and out of the house in a very brief period of time (the evidence of Ms. Nielson and Mr. Nordstrom being that he was in and out twice), and once outside the house, promptly vacated the scene. Although I found Ms. Aasen to be a truthful witness generally, I am not satisfied that she is correct on that particular point. Further, I am not satisfied that Ms. Aasen could identify Mr. Meier by his eyes, as she said.

This happened in seconds, and in this case, as stated earlier, any identification of a person based solely on a brief look at his eyes is unsafe to ground a conviction. [ 47 ] As for Jared Welch, he stated that he told the 911 operator that Jaymond Meier was the perpetrator because all of the people there said it was Jaymond Meier. I accept that as his reason for stating that, but that certainly isn’t identification. Of more import on the threats charge, however, is that he stated that when the person came out of the house, he did not hear that person say anything. [ 48 ] Ms.

Nielson did testify that the individual, as he left, said “if you tell anyone, I’ll get my boys after you”, and I accept that that particular statement, or something along those lines, was made. However, when asked who it was who was in the house, she said “I don’t know for sure but I have a guess”, stating it was Mr. Meier because she recognized his voice. Her voice identification is tentative at best. [ 49 ] Greg Nordstrom also testified to a comment of that nature being made, and stated that it was Mr. Meier “cause of his voice and what he said to me”.

Although he agreed in cross-examination that he told the police that the person didn’t threaten him, then that the person may have, he remained adamant at trial that a threat was in fact made. Notwithstanding the fact that Mr. Nordstrom might have cause to be unhappy with Mr. Meier, as noted earlier in this decision, I do accept Mr. Nordstrom’s evidence on the fact of who the intruder was, if not the exact words spoken. He was clear throughout his evidence that his major concern was his son, and that when someone broke into the house and started spraying bear spray, he was upset at the individual and angry.

I accept his evidence on the point at which he testified that it was Jaymond Meier who referred to “my boys” in the house. [ 50 ] In sum, I am not satisfied that a threat was made outside the house to the group in general. However, I am satisfied that Mr. Meier made threats to the individuals in the house, specifically being Ms. Nielson and Mr. Nordstrom. [ 51 ] Mr.

Carson, on behalf of the accused, argued that it would be unsafe to ground a conviction on a voice identification, citing two Australian cases referred to in McWilliams, Canadian Criminal Evidence , 4 th ed., (Aurora: Thomson Reuters, 2011). [ 52 ] In R. v. Brownlove (1987), 24 A.C.R. 337 (C.C.A., N.S.W.), two men had robbed a bricklaying store. Two employees gave a description of one of the accused’s voice, and four months later went to a court proceeding to hear one of the accused, whom they each knew to have been charged with the robbery.

Each said that this person’s voice was similar to that of the person who had robbed them. Of note is the fact that neither of the witnesses had ever heard the voice of the accused prior to the robbery. The Court laid out specific rules that dealt with the identification of a voice “with which one is not previously familiar”. [ 53 ] In the case before me, Mr. Nordstrom was familiar with the voice of Jaymond Meier; he had known him for a number of years. He was a good friend of his in the past. The case at hand is distinguishable from the Brownlove situation.

The case at hand is much more similar to the recent decision of R. v. Gamble, Gardipy, and Smallchild , 2011 SKQB 406 , in which an issue was voice identification. In that case, Mr. Justice Gerein noted that “...it must be remembered that [the identifier] had known these people for some time and had partied with them. Against that background it is not surprising that he would recognize their voices” (see para. 19). [ 54 ] I have no doubt that many of the witnesses were discussing what happened, and individuals may well have been “sure” that the person who did this was Mr. Meier.

However, much of that certainty arose as a result of post-offence discussions between the various parties, and the evidence is so unreliable on precisely who saw what, based on the circumstances existing at the time of the incident, that I am simply not prepared to accept evidence of what people saw as establishing Mr. Meier as the intruder. However, I found Mr. Nordstrom to be a credible and reliable witness. His evidence is corroborated by Ms. Nielson as to what the intruder said. Not surprisingly, in the chaotic and confusing circumstances, there are discrepancies on some inconsequential points. Mr.

Nordstrom, however, had the opportunity and the ability to make an identification of Mr. Meier, based on his past knowledge of him, and I accept that identification as being sound and correct.

Mr. Meier ’s Whereabouts Before and After The Incident (the cell phone records) [ 55 ] Without detailing all the evidence, it is very clear that the police who were called to the residence came upon a scene that was described as “chaotic” or “frantic”. Cst. Cochrane described Mr. James Parsons as being “hysterical”, and Cst. Scott stated that it was “pretty chaotic when we arrived”.

I have no doubt that was in fact the case. [ 56 ] Shortly after arrival, the police came into information that led them to believe that the perpetrator of this chaos was Jaymond Meier, setting off an extensive search for him. [ 57 ] The police, having obtained from SaskTel information that Mr. Meier’s cell phone (I will return to the ownership of this phone later) was “pinging” off the St. Brieux tower, thought he might be there. This information was supplemented somewhat by the knowledge of some of the officers that Mr. Meier had friends and acquaintances in, and was known to frequent, that area.

Accordingly, some officers went to St. Brieux looking for Mr. Meier, without success. While they were there, further information was relayed to them that Mr. Meier’s cell phone was now accessing the Melfort tower, leading the police to come back to Melfort. Eventually, Mr. Meier was located in a residence, and after a short foot chase, arrested. [ 58 ] Mr. Meier’s precise whereabouts after the incident at the Nordstrom home occurred, until the time of his arrest at approximately 7:30 a.m. the next morning, are unknown. However, I am satisfied that he was in St.

Brieux, a community approximately a one half hour drive from Melfort, for at least part of that time. Kim Schemenauer, a friend of Mr. Meier, saw him at approximately 6:30 a.m. in that community. Mr. Meier asked her for a ride to Melfort, where she dropped him off sometime around 7:00 a.m. [ 59 ] The Crown’s theory is that Mr. Meier was communicating with various people through texting via a cell phone, evidence the Crown relies on to place Mr. Meier at the scene of the home invasion at approximately 11:00 p.m. on June 14. These records would provide, in the Crown’s view, evidence inextricably linking Mr.

Meier to the various offences. [ 60 ] The investigators obtained a production order to obtain phone records for the period of June 14 and 15, 2011, for the phone number 920-7574, which Cst. Monsees testified was the number that she knew to be used by Mr. Meier. [ 61 ] Initially, the results of that search were proffered by way of the Affidavit of Brenda Dinsmore, a Corporate Security Assistant with SaskTel, with search results appended as exhibits, pursuant to s. 30 of the Canada Evidence Act .

However, although the various phone records had been disclosed, the affidavit itself was dated October 18, 2011, the first day of the trial, and was provided to defence counsel the morning of October 19. [ 62 ]

Section 30 of that Act allows for certain business records to be tendered by way of affidavit, assuming certain conditions are met, not the least of which is that notice that the records and affidavit will be produced in this fashion be provided to opposing counsel at least seven days before such production. Clearly, this was not done. Due to the late provision of that affidavit, Ms. Dinsmore provided viva voce evidence, by phone, later that afternoon, as defence counsel wanted the opportunity to cross-examine her. The various attachments referred to in the affidavit became exhibits at the trial through Ms.

Dinsmore. [ 63 ] An issue arose at the argument stage of the trial, at which point defence counsel argued that the records should not be exhibits at all, as they should have been tendered under s. 31 of the Canada Evidence Act . [ 64 ] In my view, if there is to be an objection to the admissibility of a document, the objection is to be made at the time the document is proffered, not at the argument stage. No issue was taken at the time the records were tendered through Ms. Dinsmore as Exhibits P-9 through P-13.

The issue respecting the records was that defence counsel objected, quite properly, to being provided with an affidavit, with the records appended to them, on such short notice; he wanted an opportunity to cross-examine Ms. Dinsmore.

[ 65 ] The Crown is not restricted to using s. 30 of the Canada Evidence Act in order to enter documents at a trial. If they want to use that statutory shortcut, strict compliance with the

section is required. As the affidavit was, among other things, provided with insufficient notice, it was necessary to call Ms. Dinsmore. That was done. Thus, the records are admissible. The weight to be given to those records is another matter. [ 66 ] With respect to the number 920-7574, Ms. Dinsmore testified that this was a prepaid account. As such, the vendors don’t ask for identification of the purchaser, requiring only a name and mailing address. This particular number was registered to a Mitch Stovel, with a post office box address in Melfort, and was activated on May 14, 2011.

The fact that this particular phone was not in the name of Mr. Meier does not mean he wasn’t the one using it. Ms. Lindsay, a woman who had been in an on-again, off-again relationship with Mr. Meier, testified that he frequently changed his number, for reasons unknown to her. Numerous witnesses who were texting back and forth to that number testified that they knew or believed that to be Mr. Meier’s number. The contents of the messages, some of which I will deal with next, lead to the conclusion it was Mr. Meier who was using that number. [ 67 ] Ms.

Dinsmore’s search included checking all of the text messages that were either received or sent from the phone number 920-7574, for the time period of 12:01 a.m., June 14, 2011, ending at 5:04 p.m., June 15, 2011. Mr. Meier was arrested at approximately 7:30 a.m. on the latter date and the records after that time are essentially calls from other individuals to Mr. Meier’s number, which were not responded to. [ 68 ] It is accepted, as was established in cross-examination of Ms. Dinsmore, that not all records were necessarily retrieved by her search.

She had testified that the records are kept generally for troubleshooting purposes, and that some calls may be purged from the system, or some calls might be dropped, or might have been unsuccessful attempts, or may have been from a pay phone, or another provider, etc.; as she put it in examination-in-chief, she ran “whatever was available on our system”. I accept that the records may not contain every single call that was made. However, that again is a matter of weight.

The records that are available, and referred to in Exhibits P-9 and P-10, are the evidence that I have before me. [ 69 ] P-9 and P-10 are essentially the entire records respecting Mr. Meier’s number throughout that period. The reason they are in two separate exhibits, as explained by Ms. Dinsmore, is that they can only “run” 512 messages on one report. Hence, as there was so much activity on that number, they ended up running two separate reports, which became Exhibits P-9 and P-10. [ 70 ] In each report, column A is simply a numerical number from one to, in the case of P-9, 512, in sequential order.

Column B shows the sending number, column C shows the receiving number, column D shows the start time that the message was sent, and column E shows the end time of the message. The message itself is then included in the exhibit. [ 71 ] Perusing those two exhibits in order, it’s noted that there is significant activity commencing at approximately 8:00 p.m. on the evening of June 14 th . James Parsons was in communication with Mr. Meier, indicating that he wasn’t seeing Renee Lindsay. James Parsons had testified at the trial that he knew that Jaymond Meier was angry at him because Mr.

Parsons had been at Lisa Aasen’s party approximately four days prior. It is clear from the evidence that Mr. Meier was of the view that Mr. Parsons, or others, were perhaps interested in Ms. Lindsay, the object of Mr. Meier’s affection, and Mr. Meier was not impressed with that fact. [ 72 ] At 10:40 p.m., June 14 th , Mr. Meier sent a message to Felicia Kamara, a friend of his, that “James house is about to get home invaded”. Shortly after that, Ms.

Kamara implored him “Man plx don’t dudee u don’t need that drama”, and texted him that “I just saw fuzz on south side...jus plz don’t dude.” [ 73 ] At 8:56 p.m., Jaymond Meier texted to James Parsons that, “Well thats to bad that’s your friend Renee did eh...you’ll be running for life from me now.” [ 74 ] At 9:53 p.m. that evening, Mr. Meier texted to James Parsons, inquiring, “Where are you pussy?”

[ 75 ] At 9:58 that evening he texted to Felicia Kamara again, asking “Where are they? Drive there and see if they are there at home.” He then texted Chris Parsons, asking “Where was Renee tonight faggot.” [ 76 ] At 11:27 p.m., which I find to be after the bear spray incident, Chris Parsons texted to Mr. Meier the message “Smart move, why do u insist to make shit worse for ur self.” [ 77 ] Just after midnight, Mr. Meier texted to Ms. Lindsay, stating “I’m on my way...Boys coming tomorrow to deal with you rats.” [ 78 ] That prompted a reply from Ms. Lindsay a few minutes later, asking “On your way where?

What the fuck is going on.” [ 79 ] At 12:14 a.m., Mr. Meier texted to a Tanis Waller, the message “I did enough to put me away for 10 to 15 and got people writing statements...I won’t see you ever again...Lots of love man”. [ 80 ] As part of her evidence, Ms. Dinsmore had provided the registered user names of a number of the numbers referred to in Exhibits P-9 and P-10; Tanis Waller was the user of that particular phone. That individual did not testify at trial. [ 81 ] At approximately 12:15 a.m. on June 15 th , Ms. Lindsay texted the following message to Mr.

Meier, “They werent your rivals they were your friends. And I can’t believe how bad you got. I knew you were about to snap and do something crazy and retarded. That’s why I kept my distance...Your insane.” [ 82 ] At 12:25 a.m., June 15 th , Mr. Meier texted to Chris Parsons, the message, “Cop calling piece of shit you and your brother and all your friends.” [ 83 ] At 12:27 a.m., June 15 th , Mr. Meier texted the following message to Ms. Lindsay, “You ruin my life for good and ill go fight tell the death and die in jail and im happy to go out like my father and ill make him proud.” Ms.

Lindsay, while testifying, indicated that she believed that Mr. Meier’s father died while incarcerated. [ 84 ] At 12:32 a.m. on June 15 th , Mr. Meier texted the following message to Chris Parsons, “Already got word yall charging me - - - Hahaha every person that talks will be in the river...I know people a lot and half them scare me.” This precipitated a response from Mr. Parsons at 12:34 a.m., stating “Are u trying to frighten me? I didn’t do a fucking thing to you.” One minute later, Mr. Meier texted to Mr. Chris Parsons “Suck a dick faggot rat.” [ 85 ] At 12:36 a.m., Chris Parsons texted to Mr.

Meier, “I didn’t lie to you, u asked me and I told u she was at lisa’s on friday”. [ 86 ] At 1:03 a.m. on June 15 th , Chris Parsons texted the following message to Mr. Meier, “We did say shit, we went to the hospital, but the rest of the witnesses I’m not sure about them”. [ 87 ] At approximately 1:40 that morning, Mr. Meier and Ms. Lindsay started texting back and forth until approximately 4:03 that morning. Without getting into all the details of what was said, it is obvious that these two individuals were, at least at that time, in a rather troubled relationship. Mr.

Meier would alternately berate and reminisce with Ms. Lindsay, who would respond to him in a supportive way. At 4:03 a.m., Mr. Meier texted to Ms. Lindsay “You only act nice cause they never caught me and you know this monster is free once I’m doing 10 years I’ll never hear from you”. [ 88 ] As indicated earlier, the records are not complete. There are also some messages, for example, that show a sender, but no

recipient, and I have not referred to those calls in this decision. However, there is confirmation, leaving aside the records, of one call. Exhibit P-3 is a photograph of Ms. Aasen’s phone screen, which contains a message from her to Mr. Meier which appears to read, “I didnt call the cops get your fucking fact straight before you start talking”. It is hard to be sure, due to the poor detail captured in a photograph of a phone screen. That call is shown on Exhibit P-9 as number 276, sent at 8:58 p.m. on June 14 as, “I didnt call the cops get your fucking fact straight before you start talking”.

The reference to the police has to be, based on the time, referring to some other incident. [ 89 ] Mr. Carson argues that the records should be inadmissible, and shouldn’t even be considered in this judgment. However, he argues that if I do accept them, I should also take notice of parts that would suggest Mr. Meier didn’t do it. [ 90 ] There are a few instances of that. For example, Mr. Meier did say in a text message to Renee Lindsay at 2:25 a.m. on June 15 th , “I nevder stabbed anyone ha ha ha”, which hardly strikes me as a statement denying his involvement. [ 91 ] A main thrust of Mr.

Carson’s argument is that there is so much missing evidence, it would be unsafe to convict. For example, no clothing was ever seized from Mr. Meier, and the evidence is clear that the clothes he was wearing at the time he was arrested were light coloured, whereas the clothes the intruder was wearing (at least the outer clothing) was dark. He argues that no phone was found, and there is some question about the knife. He argues that the Crown is asking the Court to “fill in” the picture, not just on the stabbing, but on all the essential elements of the case.

He points out that there are no fingerprints on the bear spray, and no scientific evidence linking Mr. Meier to that bear spray. (The empty can found in the basement was confirmed to be found to contain capsaicin and dihydrocapsaicin, which according to the forensic report, are “Irritants and are capable of injuring, immobilizing, or otherwise incapacitating a person.”) [ 92 ] The Crown’s position is that absence of some evidence does not mean that there is no evidence. Ms.

O’Connor urges the Court to look at all of the available evidence, including the phone records, and argues that, on all of the evidence, the only person this could possibly be is Jaymond Meier. [ 93 ] As stated earlier, I have concluded that Jaymond Meier was the intruder, based on the voice identification. [ 94 ] In addition to that, I conclude, based on the phone records, which I do find to be admissible, that Jaymond Meier was threatening James Parsons prior to entering the house, and the phone records establish, in their totality, that he was the intruder; there is simply no other logical inference and/or conclusion that can possibly be made on these facts. [ 95 ] The fact that no fingerprints were found on the can is hardly surprising, as Mr.

Meier wore gloves. There was ample time for him to throw away a phone and/or knife, and to change his clothes. It would be quite surprising if he remained wearing clothes that reeked of bear spray. The extent of the police investigation is not the issue. The issue is whether or not the totality of the evidence satisfies me beyond a reasonable doubt of the guilt of Mr. Meier on each of the counts. [ 96 ] Count 1 of the information charges Mr. Meier with breaking and entering the dwelling-house of Mr.

Nordstrom and committing therein the indictable offence of assault with a weapon, to wit, bear spray, contrary to s. 348(1) (

b) and 348.1 of the Criminal Code . [ 97 ] “Weapon” is defined in s. 2 of the Criminal Code to mean “Anything used, designed to be used, or intended for use,

a) in causing death or injury to any person, or

b) for the purpose of threatening or intimidating any person.” [ 98 ] There were two aerosol cans located in the basement. One was a “Frontiersman Bear Attack Deterrent”, the label of which also notes that it is “To deter bears from attacking humans”. [ 99 ] The second cannister is called “Bear D’Fense”.

[ 100 ] The Frontiersman Bear Attack Deterrent is what was discharged during the attack. The Bear D’Fense was the undischarged can that was located in the residence and, I am satisfied, was brought there a few days earlier by James Parsons, as he identified that unopened can of Bear D’Fense (shown in P-5) as being something he had bought a few days before. He stated that he had no real reason for buying it, although he did acknowledge that he had that bear spray by the couch. Obviously, as he was feeling threatened by Mr. Meier, and anticipating some potential problems with Mr.

Meier, he had purchased it for self-defence, despite the fact that he didn’t want to admit that. In any event, that can of bear spray is not of any particular evidentiary value; it is the Frontiersman Bear Attack Deterrent, a picture of which is in P-6, that is the one that was discharged. Cpl. Erin Neggers, who was with the Forensic Identification

Section in Tisdale, and was the one in charge of having the exhibits analysed, stated that she seized two cans of bear spray. She noted that the Bear D’Fense that I am satisfied was purchased by Mr. James Parsons still had the orange protective cap on top, which means that it had not been used.

She also noted that that can was heavy, and appeared to be full, whereas the weight of the other can was less, and it appeared to have been deployed. [ 101 ] In light of the contents of the forensic report, which states that the contents of the canisters were “Irritants and are capable of injuring, immobilizing or otherwise incapacitating a person”, I am satisfied that what Cpl. Neggers referred to as bear spray is in fact a weapon. [ 102 ] Mr. Meier is guilty of count 1.

The reference to s. 348.1 of the Criminal Code deals with aggravating circumstances of home invasion and is irrelevant to the charge, as is the reference to that

section in the next two counts. [ 103 ] Count 2 charges the same offence of breaking and entering, although it refers to the indictable offence of assault with a weapon, to wit, a knife, obviously referring to the alleged knifing of James Parsons. [ 104 ] I am satisfied on the evidence that Mr. Meier is guilty of this particular offence. First, he was in a dispute with James Parsons. He texted one message specifically asking him where he was.

James Parsons referred to feeling that he was struck, describing a feeling like being punched in the side, and both Chris Parsons and Lisa Aasen support the view that the intruder approached James Parsons. The wound described is consistent with a puncture wound from a knife, and Stacie Nielson testified that the intruder, who I have determined was Mr. Meier, “had a little shank thing” in his hand. I accept that evidence, and infer that what Ms. Nielson referred to was a knife. [ 105 ] Count 3 charges Mr.

Meier again with breaking and entering, and committing the indictable offence of uttering threats to cause bodily harm. I am satisfied that the words uttered by Mr. Meier to Mr. Nordstrom and Ms. Nielson to the effect of “Don’t say anything to anybody or he’ll send the boys back to finish the job”, is a threat, and it can only be interpreted as such. It was meant to convey a threat, and it was entirely reasonable, on an objective basis, that the person hearing that would interpret it as such.

He is guilty on count 3. [ 106 ] Count 4 is a charge of committing assault on James Parsons and using a weapon, to wit, a knife, contrary to s. 267(1) (

a) of the Criminal Code . That charge is necessarily included in the charge of breaking and entering and committing an assault with a knife referred to in count 2. Based on the Kienapple principle, I find him not guilty on count 4. [ 107 ] Count 5 charges Mr. Meier with intent to commit an indictable offence having his face masked with a hooded bandana, contrary to s. 351(2) of the Criminal Code . There is no question that Mr. Meier was dressed as he was for the purpose of avoiding detection.

He clearly had his face “masked...or is otherwise disguised” and I find him guilty on count 5. [ 108 ] Count 6 charges him with carrying a weapon, that being a knife, for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code . The facts that support this charge are completely identical to the facts that support the charge of breaking and entering and committing the indictable offence of assault with a knife.

In my view the Kienapple principle prevents a conviction on count 6 in these circumstances. [ 109 ] Count 7 charges him with having in his possession a prohibited weapon, being the two cans of bear spray referred to, without being the holder of a licence under which he may possess it, contrary to s. 91(2) of the Criminal Code .

[ 110 ] I note firstly on the facts that Mr. Meier did not have the cannister of Bear D’Fense. [ 111 ] A “prohibited weapon” is defined in s. 84, and in this case, falls under (

b) of that definition, being “any weapon, other than a firearm, that is prescribed to be a prohibited weapon”. [ 112 ] Under the Regulations , a prohibited weapon is “any device designed to be used for the purpose of injuring, immobilizing or otherwise incapacitating any person by the discharge therefrom of (

a) tear gas, Mace, or other gas; or (

b) any liquid, spray, powder, or other substance that is capable of injuring, immobilizing, or otherwise incapacitating any person”. The can used by Mr. Meier is captured, certainly under (b), and would include the Frontiersman bear spray that he had and used. Exhibit P-17, the forensic report of the two canisters, notes that the canister contained capsaicin and dihydrocapsaicin and that each “are irritants and are capable of injuring, immobilizing or otherwise incapacitating a person”. The discharge from the can was in the form of a gas. [ 113 ]

Section 117.11 states that in any proceedings for an offence under, among others, s. 91, the onus is on the accused to prove that person is the holder of the authorization, licence or registration certificate, if any question arises as to whether or not the person is the holder of such licence. There was no defence evidence presented on that point. I find Mr. Meier guilty on count 7 respecting the Frontiersman bear spray. [ 114 ] Counts 8, 9, 10 and 11 all charge Mr. Meier with various breaches of a probation order made June 8, 2010. Each count is under s. 730.1(1) of the Criminal Code .

Count 8 states that he failed to keep the peace and be of good behaviour, count 9 states that he failed to refrain from the consumption of beverage alcohol or other intoxicating substances and/or drugs, count 10 states that he failed to refrain from possessing or carrying a weapon, and count 11 states that he breached the condition to have no contact direct or indirect with, among others, Raquelle Renee Lindsay. [ 115 ] A copy of the probation order of that date was entered as Exhibit P-18 without objection from the defence, that is, the exhibit was not a certified copy.

That exhibit establishes that on June 8, 2010, Mr. Meier was sentenced to 356 days incarceration, followed by a probation period of three years, which would clearly encompass the time frame of this charge. [ 116 ] A mandatory condition of that probation order is that Mr. Meier was to keep the peace and be of good behaviour, and he has failed to keep the peace by virtue of being convicted of the offences as set out herein.

He is guilty on count 8. [ 117 ] There is insufficient evidence to allow me to find that he is in breach of the condition that he is not to consume beverage alcohol or other intoxicating substances, and not to consume drugs, except in accordance with a physician’s direction or prescription, as set out in clause 6 of that order. He is not guilty on count 9. [ 118 ] Count 10 refers to the condition 14, that he is not to own, possess, or carry a weapon.

He has breached that condition by virtue of using a knife, and he is guilty on count 10. [ 119 ] Count 11 refers to the condition 15, which requires that he have no contact with, among other individuals, Raquelle Renee Lindsay. I strongly suspect that the “Renee Lindsay” who provided evidence at the trial is the same person as “Raquelle Renee Lindsay” referred to in count 11. However, the only reference to “Raquelle Renee Lindsay” is in the probation order. I cannot be sure beyond a reasonable doubt that they are in fact one and the same person and I find Mr. Meier not guilty on count 11.

Dated at the City of Melfort in the Province of Saskatchewan this 9 th day of March, A.D. 2012.

B. Morgan, J