R. v. Blackbird and Stewart, 2019 MBPC 61

CITATION: R. v. Blackbird and Stewart , 2019 MBPC 61 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) T. de Monye, for the Crown - and - ) ) Mark Jonathon Blackbird - and - Angela Martha Stewart ) ) ) ) ) ) ) A. Claros, for the Accused L. Tailleur, for the Accused ) Reasons for Decision ) Delivered: October 22, 2019 CORRIN, P.J. INTRODUCTION [ 1 ] The two accused are jointly charged with mischief in relation to damaging a doorframe, locks, electrical wiring and some furnace piping, and theft in relation to a washer and dryer.

THE ALLEGED INCIDENT [ 2 ] The complainant, Yan Li, testified that she and her husband were the owners of 17 West Lake Crescent (the “residence”) on January 27, 2018. Ms. Li testified that the property had been leased by the accused Stewart in 2016. Ms. Li further testified that she owned an LG washer and Maytag dryer, that these appliances came with the house. A copy of the 2009 purchase receipt for the washer was filed as an exhibit. Ms. Li testified that the dryer had been purchased approximately a month or two prior to January 27, 2018. [ 3 ] Ms.

Li related that the accused Blackbird moved into the residence a few months after Ms. Stewart, something Ms. Stewart confirmed during her testimony. [ 4 ] In 2017, Ms. Stewart fell behind in her rent obligations and did not pay the residence’s water bill, something the lease obliged her to do. In early January 2018, the complainant applied for and obtained an Order of Possession (the “Order”) from the Residential Tenancy Branch. [ 5 ] The Order, which Ms. Stewart acknowledged receiving, ordered that she vacate the residence on or before January 17, 2018. Ms.

Stewart failed to comply with the Order and continued to occupy the residence until January 27 th . [ 6 ] On January 27 th , Ms. Li, having received notice at around 8:00 p.m. that the accused were moving out that evening, arrived at the residence to find both accused putting furniture into a U-Haul truck. [ 7 ] She testified that she covertly watched the accused from a distance, and then followed the moving truck to another residence where the accused unloaded a washer and dryer from the vehicle. [ 8 ] Ms.

Li testified that she had then immediately gone back to her residence as she believed that it was her washer and dryer that she had seen moved into the new house. Upon entering her residence, she noticed that the wooden door frame and locks had been damaged. The washer and dryer were gone. Upon further inspection she noticed that the wiring for the hot water tank appeared to have been cut and the metal gas pipe to the furnace had also appeared to have been cut and damaged. The complainant had taken photographs of the aforementioned damage.

These were filed as exhibits 2, 3 and 4. [ 9 ] The complainant then went back to the new residence. Ms. Stewart came to the door. Ms. Li asked Ms. Stewart to return her washer and dryer. Ms. Stewart’s testimony coincided with Ms. Li’s in such respect. She agreed that she had been confronted by Ms. Li and her husband, told them that she didn’t have the appliances and then refused Ms. Li’s request to enter the residence to check. She also confirmed that the complainant had confronted her respecting the damage to the property. [ 10 ] Ms. Li then went back to the residence and phoned the police.

On January 30 th , she attended to the West District Police Station and made a formal report respecting the theft of the washer and dryer and the property damage. She also testified that she had paid $600 to repair and replace the wiring and lines for the damaged hot water tank and furnace. She also claimed to have paid a locksmith $250 to replace and repair the door/lock damages. No receipts or invoices were filed in such respect.

[11] Mr. Blackbird called no evidence but Ms. Stewart took the stand in her own defence. She testified that she didn’t take theappliances which she acknowledged having last seen the day prior to moving out. She also denied damaging the door locks, the watertank wiring or the gas line to the furnace. Ms. Stewart testified that one of the people helping them move, a fellow she referred to asJason, had likely been the person who damaged the hot water tank wiring and the gas line. She also testified that the damage to the doorhad been caused by a locksmith sent to the house by the landlords to change the lock.

She also conceded that she didn’t like thecomplainant, that being dispossessed and locked out of the residence had angered her. She also conceded that she and the other accusedhad not treated the residence well and did not leave it in “the best condition.” She also admitted that her children had damaged the walls,that she hadn’t paid the outstanding water bill and that she owed substantial back rent.

She further conceded that she continuedoccupying the residence for 10 days in defiance of the Order for Possession, which she acknowledged had required her to vacate on or before January 17th. [12] When questioned about the door/lock damages Ms. Stewart elaborated that the damage, which she attributed to the complainant’s locksmith, had occurred when the locksmith had come to the residence on January 21st to change the locks. According toMs. Stewart this had occurred in the morning and she had called police alleging threats on this occasion. Ms.

Li disagreed with thisversion of events, testifying on cross-examination that Ms. Stewart had changed the locks first and that she had then, upon discoveringthis, called her locksmith to replace Ms. Stewart’s lock so she could access the premises. Ms. Li maintained that her locksmith had notcaused the damage in question, that it had occurred subsequent to his work. THE LAW W.(D.) [13] An accused person cannot be convicted of a crime unless and until the offence is proved against him or her beyond a reasonabledoubt. The onus of proof is always on the prosecution to prove the case.

The application of this principle in cases such as this one, wherethe accused testified, leads the court to the principles articulated in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. In W.(D.),at p. 758, the Supreme Court of Canada provided guidance to trial courts on how a trier of fact should give effect to the presumption ofinnocence. 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. [14] The W.(D.) analysis requires that a trial judge stay focused on the central issues, that being whether the Crown has proved thecase beyond a reasonable doubt. “The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact isleft with a reasonable doubt about the guilt of the accused...” (R. v.

Vuradin, 2013 SCC 38 , [2013] 2 S.C.R. 639 at para. 21). Itis trite but true that a trial judge is not permitted to simply compare the evidence of the witnesses and choose the version that he or sheprefers. [15] At the first and second stage of the W.(D.) analysis, the court must consider all the evidence, and may find that other evidence,i.e. the testimony of other witnesses, including the complainant, makes the accused’s evidence unreliable and/or unbelievable. This doesnot mean that the court is choosing between the Crown’s evidence and that of the accused.

On the contrary, it simply ensures that theaccused’s evidence is not being assessed in isolation, but in the context of all the other evidence in the case. [16] The Manitoba Court of Appeal in R. v. Menow, 2013 MBCA 72, at para. 21, has also followed the 2007 decision of the OntarioCourt of Appeal in R. v. Hoohing, 2007 ONCA 577, in which Feldman J.A. stated (at para. 15): A jury does not consider an accused’s version of events in isolation as if the Crown had led no evidence.

When the jury is applying thefirst two prongs of the three-pronged test in W.(D.), they are deciding whether they accept the accused’s version of events or whether itleaves them with a reasonable doubt. Clearly they can only do that by assessing the accused’s evidence and the other evidence thatfavours the accused in the context of all the evidence...

The evidence of any witness, including an accused, may be believable standingon its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witness’s evidence,that evidence may no longer be believable, or, in the case of an accused, may no longer raise a reasonable doubt. [17] A trier of fact, even if he or she completely rejects the accused’s evidence, cannot simply assume that the Crown’s version ofevents must be true.

A judge must still carefully assess all the prosecution evidence and determine whether same persuades them beyonda reasonable doubt that the accused is guilty. [18] Judge David Paciocco, a former University of Ottawa law professor and co-author of The Law of Evidence, a text book on thesubject of evidence, in the February 2017 edition of the Canadian Criminal Law Review (22 Can. Crim. L. Rev. 31) entitled Doubt aboutDoubt: Coping with R. v.

W.(D.) and Credibility Assessment had the following to say about the application of the three rules in W.(D.): The W.(D.) framework is intended to assist criminal fact-finding in properly applying the reasonable doubt concept to issues ofcredibility. Its three rules, designed to instruct criminal fact-finders on what to do when they believe evidence, disbelieve it entirely, orare unsure whether to believe it, are imperfect. Still, its underlying principles are indispensable in any situation where, in a criminal trial,the accuracy of testimony inconsistent with the guilty of the accused is at issue.

Those principles must therefore be understood, andrespected. They provide: 1) Criminal trials cannot be resolved by deciding which conflicting version of events is preferred; 2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;

3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder cannot decide whether thatevidence is true, there is a reasonable doubt and an acquittal must follow; 4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and 5) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt.

Of importance, those principles permit the conviction of the accused, even in the face of exculpatory testimony, where the reasoned andconsidered evidence of incriminating evidence prevents the exculpatory evidence from raising a reasonable doubt. Frequent reaffirmation in credibility cases of these principles can reduce the tendency to make intuitively appealing but improperdeterminations (page 21). Circumstantial Evidence [19] It is also necessary, because this is a circumstantial case, where the Crown invites the Court to make certain inferences, toremember the instructions provided in R. v.

Villaroman, (2016) 1 S.C.R. at paras. 35, 36, 37 and 38: (iv.) Whether the Inference Must Be Based on “Proven Facts” [35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rationalconclusions based on inferences drawn from proven facts”: see R. v. McIver, (ON CA), [1965] 2 O.R. 475 (C.A.), at p.479, aff’d without discussion of this point (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. Inassessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v.

Khela, 2009 SCC 4,[2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused toprove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issuewith respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonable inferencesother than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. [36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by themere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason andcommon sense which must be logically based upon the evidence or lack of evidence”: para 30 (emphasis added). A certain gap in theevidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense. [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theo[ries]” and “other reasonablepossibilities” which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200(C.A.), at pp. 205 and 211, perMiddleton J.A., aff’d (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 355 B.C.A.C. 11, at para. 20; R. v.Mitchell, [2008] QCA 394 (AustLII), at para. 35.

I agree with the appellant that the Crown thus may need to negative these reasonablepossibilities, but certainly does not need to “negative every possible conjuncture, no matter how irrational or fanciful, which might beconsistent with the innocence of the accused”: R. v. Bagshaw, (SCC), [1972] S.C.R. 2 at p. 8. “Other plausible theories”or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not onspeculation. [38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question is whetherthe circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference otherthan that the accused is guilty. W.(D.) ANALYSIS Step One [20] The Court notes that Ms. Stewart conceded that she did not like Ms. Li or her husband because of earlier events which arosefrom her failure to pay the water bill and rent. In such respect she particularly related the eviction notice and the changing of the locks on January 21st, the day she was awakened by the sound of drilling associated with replacement of her lockset.

The Court believes that both accused were also upset by the Tenancy Branch’s order to vacate the premises on or before January 17th, a deadline they failed to meet.Given their familial situation, with a number of children to care for, one can conceive that both accused would most likely have beenunder considerable pressure in the days leading up to the alleged incidents. Such pressure would reasonably have contributed to bothaccused becoming frustrated and also vindictive in relation to Ms. Li and her husband. Indeed, Ms.

Stewart conceded that the evictionfrom the residence had made her angry and sufficiently upset that she admitted that she “did not leave it in the best condition.” [21] Ms. Stewart’s evidence respecting the washing machine and dryer is very different from Ms. Li’s. Ms. Li said she saw the twoappliances being removed from the U-Haul truck. Ms. Stewart denies such was the case. Notwithstanding the speculative theoriesadvanced by Defence counsel, the Court does not perceive any reason why Ms. Li would make a false allegation of this sort. I certainlycannot conceive of Ms.

Li using these allegations to try and leverage payment of the accused’s outstanding water bill. Ms. Li struck theCourt as far too ethical, intelligent, straightforward and credible to stoop so low. Her fervent denials when cross-examined by Defence onthis point rung true. Her response to the suggestion that she and/or her husband had colluded to cut the wires and pipe to leveragepayment for their financial losses was logically incisive... that such maneuvers would be counter-productive and “stupid” as they wouldfirst have to pay the full price, around $600, for the immediately necessary emergency repairs.

Also, the incident occurred in Winnipegin January, one of the coldest months of the year, a very high risk month for frozen pipe related water damage, making any such devious

recovery plan extremely far-fetched and seemingly fanciful. [ 22 ] For the foregoing reasons the Court does not perceive the accused’s evidence as being either plausible or having an air of reality. Neither is her evidence externally consistent with the other evidence in the case as the wires and pipe were damaged in circumstances that suggest that Ms. Stewart and Mr. Blackbird had both exclusive opportunity and motive to do so.

For these reasons the Court is not of the view that it would be appropriate to acquit either of the accused at this stage of its analysis. [ 23 ] For the same reasons as aforementioned, the Court does not feel that the two accused should be acquitted on the second step in W.(D.) either. [ 24 ] The basic question on the third step of W.(D.) relates to the credibility of the complainant. This is because her evidence suggests a fairly strong circumstantial case that is generally supportive of the allegations of theft and mischief. As previously mentioned, both accused assert that Ms.

Li’s evidence should be disbelieved because it wasn’t credible. Defence both submitted that Ms. Li manufactured her allegations in order to leverage reimbursement for a large unpaid water bill and outstanding rents. During cross-examination, Defence counsel suggested that her complaint to police was prevaricated, that she had deliberately misled Winnipeg Police Services, that she and her husband had perpetrated a deception and made false allegations against the accused.

Defence counsel suggested that she and her husband had damaged the pipes and wiring and wrongly assumed that the accused had been responsible for the loss of their appliances, that Ms. Li had mistaken a freezer being unloaded for her washing machine. [ 25 ] The Court is of the opinion that Defence’s arguments have no air of reality, that they are purely speculative, almost fantastical, the product of unrestrained imagination. Ms. Li presented as a coherent and reliable witness, her evidence was both consistent and reliable. She was clearly knowledgeable of her rights and obligations as a landlord.

She was aware that her only recourse for problems with the accused, her tenants, lay either with the courts by bringing a civil action and/or seeking relief from the Residential Tenancy Branch, something that had been done. [ 26 ] That having been said, the Court observes that it is almost inconceivable that Ms. Stewart and/or Mr. Blackbird did not cause the damage or steal the appliances, because all the circumstances strongly suggest that viewed logically, in the light of human experience, that this is the only plausible explanation for the missing appliances and damaged property.

After all, the two accused had both a motive and exclusive opportunity to commit the alleged criminal offences. [ 27 ] The evidence before the Court is clearly incapable of supporting any inferences that suggest that the accused are not guilty. There are simply no other plausible theories to support such a conclusion, no other reasonable, rather than fanciful possibilities, that present as viable. Of course, in a circumstantial case, the Crown must negative other possibilities, but only reasonable ones.

It does not have to negative every possible conjecture or speculation. [ 28 ] The Court, because it is satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence, accordingly finds the two accused guilty as charged. “Original signed by:” CORRIN, P.J.