Her Majesty the Queen - v. -, 2021 SKPC 50

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 50 Date: October 20, 2021 Information: 991153878 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert Louis Racine Appearing: Ms. Leona Andrews For the Crown Mr. Kim Stinson For the Accused JUDGMENT D. KOVATCH , J Background [ 1 ] The accused, Robert Louis Racine, faces nine charges, as follows:

(1) Theft under of gasoline from Debbie Merriam, on November 17, 2020;

(2) Break and enter of a rural home with intent to commit an indictable offence therein, on November 17, 2020;

(3) Possession of a truck valued greater than $5000.00 knowing that it was obtained by commission of an indictable offence, on November 17, 2020;

(4) Driving while prohibited on November 17, 2020;

(5) Using a forged cheque, as if it were genuine, on December 7, 2020;

(6) Attempt to defraud Michael Strickland of Canadian currency less than $5,000.00, on December 7, 2020;

(7) Possession of a Saskatchewan licence plate 289 LRL knowing it was obtained by the commission of an indictable offence on January 9, 2021;

(8) Possession of a Saskatchewan licence plate number 884 KCF, knowing it was obtained by the commission of an indictable offence on January 9, 2021;

(9) Possession of a 2015 Ford F-350 truck, the property of Michael Strickland, valued greater than $5,000.00, knowing it was obtained by the commission of an indictable offence, on January 9, 2021. [ 2 ] The Crown proceeded by Indictment on all counts. On any counts where a defence election was available, the accused elected to be tried by a Provincial Court Judge. Not guilty pleas were entered to all counts, and the trial proceeded before me on August 30 and September 2, 2021. I reserved my decision. This is that decision.

The Evidence [ 3 ] A driving prohibition order against the accused, Robert Louis Racine, was entered as Exhibit P-1. An affidavit of ownership, of Alexandria Kosteniuk, pursuant to

section 657.1, was entered as Exhibit P-2. In that affidavit, Ms. Kosteniuk deposes that she is the registered owner of a 2007 Jayco Eagle 328 RLS trailer which went missing from her family farm on or about January 4, 2021. [ 4 ] The first Crown witness was Mr. Michael Strickland. He testified that in November of 2020, he was living in Trossachs, Saskatchewan. It is a small town not far from Radville, Saskatchewan, approximately one and one half hours southeast of Regina.

He was the registered owner of a silver grey Ford F-350 truck. [ 5 ] On November 5, 2020, his son used the truck, and drove to the Yellow Grass area. His son was chasing cows that were grazing on land owned by another individual. The truck was parked while his son chased the cattle. When his son returned for the truck, it was gone. Later that same day, it was reported as stolen. Mr. Strickland was shown a picture of the truck, which was entered as Exhibit P-3. He immediately identified the truck in the picture as his truck that he reported stolen.

It is the same colour, has the same hitches, and the same minor damage. [ 6 ] Mr. Strickland also testified that he had his cheque book for the farm in the truck. He testified that he had filled out the memo part of a cheque with the word “Straw”. Further, that he signed the cheque on the signature line. No other details on the face of the cheque had been filled out by him. He advised that his son was to pay the other farmer, where his cattle were boarded, for some straw.

His son was to ascertain the exact amount to be paid for the straw, and fill in the particulars of the cheque with the farmer’s name or the corporate name and the amount. He was of course to leave the cheque with the other farmer, the payee. [ 7 ] Mr. Strickland was shown the front and back of a cheque. He testified that this is a copy of his cheque that was left in the vehicle. It has the same memo “Straw’ and his signature on the face. This copy was entered as Exhibit P-4. He testified that he never filled in the particulars of the date, the name of the payee, “Mr. Robert Racine” or the amount of $2,000.00.

The picture of the back of the cheque indicates it was negotiated on December 7, 2020. Mr. Strickland testified that his account was temporarily debited the face amount of $2,000.00. After he reported this to the bank and police, the bank corrected the situation, by reversing the $2,000.00 debit. He also stated at the time, in November of 2020, he had never heard of Robert Racine, and never made out or intended the cheque to be given to Mr. Racine. [ 8 ] Under cross-examination, Mr. Strickland said he was paid $33,000.00 for the truck by his insurer, representing the total loss of the truck.

He also confirmed that the word “Straw” and the signature on the cheque are in his writing. Nothing else. He and his son did not fill in the other particulars on the cheque. [ 9 ] The next witness was Mr. Ryan Selzer. He testified that he lives near McLean, Saskatchewan and is a farmer. On

November 17, 2020, he was at home and in his house, when he noticed a truck driving into the yard. The vehicle stopped, the driver, the lone occupant of the vehicle, got out and entered Mr. Selzer’s garage. He said he left his home and immediately went to the garage area which is just few feet from the home. The individual was in the garage. Mr. Selzer asked that person “Can I help you”. The individual told Mr. Selzer that he was lost. Further, that he was looking for Montmartre. Mr.

Selzer gave him directions on how to get to Montmartre, and the individual then left the garage, got into the truck, and drove away. [ 10 ] Mr. Selzer described the man as being approximately six feet tall, fairly slender and not at all overweight. He described the individual as being in his mid-forties. He advised the individual wore a plaid jacket, jeans and black boots. He also indicated that the individual had sunglasses that were sitting on his head. [ 11 ] Mr. Selzer testified that he felt this incident was suspicious so he called the RCMP. He advised he has video surveillance around his home and garage.

The garage camera had recorded a video of the truck driving into the yard, and the individual getting out of the truck and walking out of the picture, as he went to the garage. Mr. Selzer provided this video to the RCMP. A DVD containing the video was produced and marked as Exhibit P-5. The video was played in court. One can see the truck come into the yard and stop. The driver got out of the vehicle and walked out of the picture. [ 12 ] Mr. Selzer was then shown Exhibit P-3, a still photo of the truck and the individual. Mr.

Selzer advised that these still photos were obtained from his surveillance video, Exhibit P-5. He also said he did not know the driver of the truck, and had never seen him before. [ 13 ] Mr. Selzer testified that sometime later, he went to White Butte detachment of the RCMP to view a photo lineup. At that time, the officer presented him with a document with written instructions, and carefully explained the instructions to him. The officer and Mr. Selzer dated and signed the document. That document is dated December 16, 2020. [ 14 ] The photo lineup pack was entered as Exhibit P-7.

He advised the photos were presented to him randomly, and in no particular order that he knew of. None of the photos had any names on them. They were consecutively numbered. He stated that he reviewed the photos about eight times, and at the end selected image number two as being the individual that he saw in his garage. He said he was quite certain of the selection. He advised that he viewed the whole group of photos, but after the first couple of times through, narrowed the group to about two or three.

He stated the officer did not draw his attention to any particular image, and did not show him a picture of the suspect. He indicated he was with the officer for about three hours. [ 15 ] In court, Mr. Selzer identified the accused, Robert Racine as the individual that he saw that day. He advised they have the same features. The accused has a longer forehead, and is kind of slender. Lastly, he stated that he did not get a licence plate for the truck. [ 16 ] Under cross-examination, Mr. Selzer said the individual entered the walk-in door to the garage. That door was closed but unlocked.

He stated that his verbal exchange with the individual took about 30 seconds. The individual was very kind and pleasant. Nothing was taken from his garage. Mr. Selzer testified that there were glasses on the top of the man’s head. His hair was well done which he noticed because of the glasses on the individual’s head. [ 17 ] Mr. Selzer said he went through the photos eight or nine times because he wanted to be certain. Counsel suggested he was not certain. Mr. Selzer said that he was. He stated that he wanted to be 100 percent sure. Counsel suggested that he was not sure. Mr.

Selzer said he did not know what to say to that. He then stated he was sure. Mr. Selzer did agree that while viewing the photos, he did say a few times that he was not sure. [ 18 ] The entire three hour session for the photo lineup was video recorded. A video of that three hour session was entered as Exhibit P-8, and played in its entirety for the Court. At first, the officer went through the instructions. He advised Mr. Selzer not to guess. He advised Mr. Selzer to take as much time as he needed. Further, that he could view the photos as many times as he wanted. [ 19 ] I would describe Mr.

Selzer as being slow, deliberate and careful in looking at the photos. Over the course of the lineup, he made a number of statements, which taken by themselves and placed side by side, appear somewhat contradictory. However, I would describe his approach as “thinking out loud” as opposed to flip flopping or making contradictory statements. On a number of occasions there were long pauses while he studied a particular photograph. Fairly early on, he selected photo number two and said “I am 90 percent on that one.” He then went through the photos more times, and made statements like I can’t be 100 percent certain.

He then

returned to photo number 2 and stated, “fairly high degree of certainty, that’s the guy in the garage;” “Ninety to ninety five percent sure.” [ 20 ] After the video, defence counsel had the witness reiterate that he was sure that the person in the video wore glasses. The witness agreed that he did not see any glasses in the video.

However, on re-examination, Crown counsel referred to a reflection or a glare and it appeared that the person in the video did have glasses on his head. [ 21 ] Defence counsel also had the witness admit there were a number of long pauses, and that he made a number of statements about not being sure. Counsel again suggested that he clearly was not sure. The witness reiterated that he was fairly sure. Ninety to ninety five percent sure. [ 22 ] The next witness was Debbie Merriam. She testified that she lives southeast of Regina, on a farm property. On November 17, 2020, she heard knocks at her door.

By the time she got to the door, no one was there. She looked out the window and saw a white truck at the fuel tanks. The fuel tanks are about 50 to 60 yards away from the home. It was mid-afternoon. A fairly tall person was at the truck and the fuel tanks. [ 23 ] The witness said she opened the door and hollered: “What the hell are you doing?” The individual quickly got into the truck and drove away. She said she never saw that person before. [ 24 ] The next witness was Constable Brian Maughan. He testified he has been with the RCMP for 19 years.

In November of 2020, he was in plain clothes, and working out of the White Butte detachment. On December 16, 2020, he was asked to review a photo pack or photo lineup with Ryan Selzer. He advised he had no knowledge of the matter before the court, or its investigation, or of the accused. Constable Morley wanted a completely independent officer without knowledge of the investigation, to review the photo lineup with Mr. Selzer. [ 25 ] He advised that on December 16, he went through the information and declaration form with Mr. Selzer, and they both then signed the document.

He said he presented the photos one at a time. He did not prepare the photo pack and he did not show any photos to the witness prior to the interview. He believed that the first time they went through the photos, they went through them in numerical order. Thereafter, for each further review, he shuffled them before showing them to the witness, one at a time. The back of the photos had been numbered by Constable Morley, for ease of reference to a particular photo.

He had the witness initial the photo each time he viewed it. [ 26 ] He indicated that he presented photos one at a time, and did not allow any comparison of one photo to the next. He agreed with counsel that the witness appeared to key on a smaller group and spent more time observing photos from the smaller group. [ 27 ] The next witness was Corporal Jeremy Smith of the RCMP. He was sworn in to give evidence both in the trial, and in a voir dire , related to identification evidence. [ 28 ] He testified that he has been with the RCMP 14 years.

In November and December of 2020, he was a supervisor at the Southey detachment of the RCMP. In December, he received a bulletin generally circulated to RCMP detachments. This bulletin contained the still photograph of the truck and the individual who had been driving and left the truck, while in Mr. Selzer’s yard. It was the same photo that is entered as Exhibit P-3 in these proceedings. The bulletin inquired whether anyone knew the individual in the photo, and could identify that person. [ 29 ] Corporal Smith testified that he looked at the photo and immediately identified the individual as Robert Racine.

He stated that he dealt with Mr. Racine in December of 2014 for one to one and one half hours. They had face to face contact at that time. He also dealt with Mr. Racine in the summer of 2018. This time, it was a fairly brief interaction. He took Mr. Racine into custody. He advised that Mr. Racine identified himself as “Brad Racine”. The officer stated that he was able to correctly identify Robert Racine. Corporal Smith advised that he sent an email advising that the individual in the photograph was Robert Racine. [ 30 ] Under cross-examination, the Corporal advised that in 2014, Mr.

Racine thought he had a heart attack. The officer took him to the hospital, and was with him for some time. He further confirmed that he identified Mr. Racine from the still photos in Exhibit P-3. He placed particular emphasis on his stature, and the look of the whole person. When defence counsel suggested to him that he could

not make a positive identification from that photograph, the Corporal said he did not make a positive identification. He stated words to the effect of, it sure looks like Robert Racine, and I would have a look at Robert Racine. [ 31 ] The next witness was Thomas Klyne of the Regina Police Service (RPS). He testified that he has been with the Regina Police Service for 11 years. In January of 2021, he was in the robbery unit. There he dealt with robberies, stolen autos, and other major incidents.

He had been with this unit for two years. [ 32 ] On January 9, 2021, he was dispatched to 1276 McIntosh Street in Regina. He was advised that they had information that the accused, Robert Racine was there, as well as a stolen automobile. He went to this home, and spoke with the accused’s sister, Laticia. She advised that the accused was in the basement, and the truck was in the backyard. He said that he and two other officers tried calling to the accused, and asked him to come out of the house. He did not come out. Then, with permission from the sister, they entered the house.

They located the accused in the basement. He was found lying between two mattresses. They arrested him and took him out. The truck was in the backyard. It was locked. They called for a tow truck to have it towed. [ 33 ] The witness advised that downstairs they located a men’s jacket. It was in the sleeping area, on one of the mattresses, where the accused was laying. He believed the jacket to be the accused’s. He checked in the jacket pocket for identification and weapons. He found keys. These keys were turned over to the tow truck operator.

These keys opened and turned on the Ford F-350 truck in the backyard. [ 34 ] He advised that he arrested Mr. Racine and he took him to the police cells. He identified Mr. Racine in court. [ 35 ] Under cross-examination, the witness indicated that he saw four people in that house on that evening. They were the accused, Robert Racine, the accused’s girlfriend, the accused’s sister Laticia, and Laticia’s son, a boy about 15 years old. [ 36 ] He advised that he was with Constable Slater and another uniformed officer when they approached the home. They did not give Laticia any warnings.

He advised there was no identification in the jacket. The officer had the jacket with him in court, and removed it from the bag. It appeared to be a large black male jacket which bore the CAT (Caterpillar) logo and name. He stated that he did not speak to the son, who was approximately 15 years old. He did not ask how many people lived in the home. He agreed with defence counsel that Mr. Racine was not in a particularly good or effective hiding place. He disagreed with counsel that Mr. Racine was sleeping on the bed. He agreed he did not get a warrant to enter the home. He stated they were advised that Mr.

Racine was there and was an unwanted guest, and Laticia granted them permission to enter the home. He indicated he has not spoken to Laticia since January 9. A subpoena was issued for her, but service of that subpoena was unsuccessful. [ 37 ] Constable Shannon Slater testified that she has been with Regina Police Service for 11 years. On January 9, 2021, she was in the patrol unit, and in full uniform. She was driving in Zone 3, in the Rosemont area at approximately 10:30 p.m. A car flashed its lights at her. She stopped and spoke to the occupant.

The occupant advised that Robert Racine was at 1276 McIntosh Street and that a stolen truck was parked in the backyard. [ 38 ] She and other officers knocked at the front door of 1276 McIntosh. Laticia came to the door, and said the accused was inside. They asked him to come to the door. Laticia said they could come in. Laticia asked if she and her son could leave. The officers found the accused downstairs, and he was arrested. [ 39 ] In the backyard, they located the truck. They located the VIN number on the truck, and ran that number.

They were advised that the registered owner of the truck was Michael Strickland and the truck was stolen. They ran the plate on the back of the truck and found that plate did not match the truck. It was for another vehicle. It was a stolen plate. Inside the truck, they located another plate for another vehicle. Parked beside the truck, but inside the fence was a Jayco camper trailer. They were later able to confirm that the trailer was also stolen and it was seized. [ 40 ] Under cross-examination, the officer confirmed that when she arrived at 1276 McIntosh Street, she drove in the alley and located the truck.

She was able to find and record the VIN number fairly easily, and then requested the search on that VIN number. [ 41 ] Constable Tricia Nicholson testified she has been with the RPS for 10 years, and prior to that for six and a half years as a police officer in Edmonton. In January of 2021, she was in the robbery section. On January 9, she was called by Constable Slater. The

constable advised she had been flagged down and had received information about 1276 McIntosh Street. Constable Slater further advised that she had located the truck in the backyard, and had run the plate number. The plate did not match the vehicle. Constable Nicholson was shown Exhibit P-3 and advised that it looks like the truck that was seized from the backyard on McIntosh Street. Later the tow truck came. They were able to use the keys and open the Ford F-350.

Inside, they located another licence plate, which was also determined to have been stolen. [ 42 ] She advised that she searched the trailer later and located in it a prescription bottle for Sabrina Crane, the accused’s girlfriend. She also described the efforts that she made to track down and ascertain that the trailer was stolen. She advised it was reported stolen on January 18, 2021. [ 43 ] Under cross-examination she advised that she checked and searched the vehicle for weapons, drugs or needles. She advised that sometimes a vehicle is processed by the I.D. section, which would look for prints.

In so far as she was aware, no prints were ever located. [ 44 ] The last witness was Constable Robert Morley. He testified he has been with the RCMP for six years. In November and December of 2020, he was stationed at the White Butte detachment. He received the complaint and report from Mr. Selzer. Mr. Selzer also provided the video footage that was entered into evidence. [ 45 ] The witness advised that he prepared a bulletin and sent it out to other RCMP detachments, inquiring whether anyone could identify the individual shown in Exhibit P-3. Corporal Smith of Southey detachment replied.

Corporal Smith advised that he believed the individual was Robert Racine. The witness asked Weyburn police and Regina police to look for Mr. Racine. [ 46 ] Sometime later, Constable Morley was contacted by a Constable Shaw and advised of the report of the stolen truck, and that a cheque was missing. [ 47 ] Constable Morley advised that he prepared the photo lineup. He placed a photo for Mr. Racine in the photo package. Arrangements were made for Mr. Selzer to come in for the photo lineup. Constable Morley asked Constable Maughan to go through the package with Mr.

Selzer. [ 48 ] Constable Morley advised that the computer assembled the photo package. It can shuffle the pictures. He advised that he numbered the pictures. He advised that he did not know the accused but he checked the accused on the system and put the accused’s photo into the photo lineup. [ 49 ] He indicated the computer selected the photos for the photo pack. It identified a number of individuals of similar age. Exhibit P-7 is the photo pack that was used. It contains no names. Exhibit P-9 is the photo pack with names attached.

He numbered the photos in the pack used by Constable Maughan as photos 1 to 12 inclusive. After the lineup was conducted, he secured the photo pack in his exhibit locker. [ 50 ] Under cross-examination, he testified that he believed he did one photo lineup approximately two or three years ago. He received no formal training for this. However, he did review policies that were available on the RCMP internal internet system. [ 51 ] He advised that a program on the computer system has photos of people that have been arrested. It generates specific photos based upon age, ethnicity, height and weight.

He agreed that the accused looks to be a First Nations person. He also agreed that photos 9 and 10 could be Caucasian individuals. They appear to have a fairer complexion. He said he tried to make sure photos were “similar”. He did not recall picking any particular facial or head shapes. He advised he did not give any direction to Constable Maughan regarding the photo lineup. [ 52 ] At the conclusion of Constable Morley’s testimony, the Crown closed its case. The defence advised they would call no evidence. The Defence Argument

[53] Defence counsel prepared and filed a written brief of law, and made extensive oral arguments. In those arguments, counselsubmitted that none of the charges had been proved beyond a reasonable doubt, and asked that all charges be dismissed. However, in myview, the method of analysis that forms the basis for that argument is deeply flawed, and cannot be accepted by the Court. It is flawed intwo fundamental respects: 1. Defence counsel appears to treat the issue of identification and identification evidence as a prerequisite to considering all other evidence in the case; and 2.

In dealing with both the identification of the accused and whether the charges have been proved, the defence attempts to pigeon hole consideration of individual charges by considering only evidence directly referable to each of thoseindividual charges. There is no attempt to consider the totality of the evidence, as I believe the Court is required to do. [54] I begin by dealing with the first point, the treatment of the identification evidence. In the written brief and in oral argument,defence counsel advanced a number of arguments as to why I should not rely upon the evidence of Mr. Selzer identifying Mr.

Racinethrough the photo lineup. He argues that the court cannot rely upon the evidence of Corporal Smith as it is less than a positiveidentification. The written brief then states as follows: With respect, the result of the photo lineup is suspect at best. Mr. Selzer does not exhibit an unequivocal identification, nor does theprocess of the interviewer give assurances that the photo lineup was conducted with the requisite fairness to the accused. With respect,this “identification” is not an unequivocal, positive identification at all. We submit that Mr. Selzer’s lineup identification must fail as itis unreliable.

The evidence given by Corporal Smith is less than a positive identification. Smith agreed during cross-examination that he thought theperson bore a resemblance to Robert Racine but was not a positive identification. Should the court find that the identification of the accused by Mr. Selzer fails, then the Crown cannot succeed on counts 2, 3 and 4. [55] With respect, positive identification evidence or an in-court identification is not a prerequisite to admitting and considering allof the evidence in the case.

Because in-court identification is not a prerequisite to the admission and consideration of the rest of theevidence in the case, any “failure of the identification evidence” does not result in the automatic dismissal of the charges. [56] To the contrary, the evidence respecting identification is all admissible, and the issue is the reliability of that evidence andwhat weight can be placed upon that evidence.

The identification of the accused, like the other elements of the offence must be provedby the Crown beyond a reasonable doubt. [57] Turning to the second point, in considering whether the Crown has proved the charge beyond a reasonable doubt, the Courtmust weigh and balance all of the evidence. Defence cited R v Bigsky, 2006 SKCA 145, 289 Sask R 179. A careful reading of thatdecision is particularly helpful and instructive. Madam Justice Jackson writing for the Court, reviewed extensive case law, and divided anumber of those cases into three specific categories.

The first category was where convictions were sustained. In reviewing these cases,she notes that most or all of these cases had additional evidence to confirm or sustain the eye witness identification. For example, theCourt quotes at length from R v Davenport (1996), (ON CA), 94 OAC 63 (Ont CA). Part of that quotation is asfollows: In coming to this conclusion, we have also placed emphasis on the fact that the identification of the appellant as the driver of the fleeingvehicle was not dependent solely or even primarily on the eye witness testimony.

Rather, that testimony was accompanied by asubstantial body of circumstantial evidence which, in and of itself, was sufficient to identify the appellant as the driver. At a minimum,we are satisfied that the circumstantial evidence served to confirm the reliability of the eye-witness testimony.

Accordingly, we wouldnot give effect to this ground of appeal. (Emphasis added.) [58] In reviewing the cases where the conviction could not be maintained, the Court made a special point that where the onlyevidence comes from a person making the eye witness identification, the Court must be particularly careful in its assessment and use ofthis evidence. Then, specifically dealing with Mr. Bigsky’s situation, at paragraph 56, the Court stated as follows:

The trial judge has treated the issue of eyewitness identification as a question of credibility, i.e., whom to believe — the accused or the police officer. The above jurisprudence indicates that when eyewitness identification is the only basis upon which a conviction rests, the trial judge is required to do more . (Emphasis added.) [ 59 ] With that, I turn to the analysis of the evidence in this case. The Evidence [ 60 ] The first point I would make about the evidence, is that it all relates to the nine different charges on the Information.

This is not a case of nine separate trials in relation to nine different charges. All of the evidence was led in one trial. Much of that evidence is applicable not to just one charge, but to the other charges as well. I will approach the analysis based upon the chronology of events. [ 61 ] The evidence was that Michael Strickland’s truck was stolen from a farm property near Yellow Grass, Saskatchewan on November 5, 2020. At the time, his cheque book was in the vehicle. One cheque had a notation that it was written for the purpose of paying for straw, and Mr.

Strickland had executed that cheque, leaving it to his son to fill in the details regarding the payee and the exact amount. [ 62 ] Twelve days later, on November 17, 2020, Mr. Ryan Selzer saw a Ford F-350 truck drive into his farmyard near McLean, Saskatchewan. The individual got out of the truck and entered Mr. Selzer’s garage, without permission. Mr. Selzer saw the individual and confronted him in the garage. He was just a few feet away from the individual. They were face to face and speaking to one another for about 30 seconds.

He was able to give a fairly good and fairly detailed description of the individual. He said the individual wore a plaid jacket, jeans and black boots. He was approximately six feet tall and fairly slender, not at all overweight. He said the individual was in his mid-forties. He said the individual had a long forehead, and wore glasses on the top of his head. Shortly after being confronted, the individual received directions to Montmartre, and left. [ 63 ] Mr. Selzer thought this was suspicious, so he called the RCMP and reported the matter.

He also produced a surveillance video that shows the truck, and the individual getting out of the truck. The RCMP produced still photos of the truck and the individual, from the video surveillance. [ 64 ] This still photo was shown to Mr. Strickland, who clearly testified that it was his truck, the stolen truck, that was seen by Mr. Selzer. [ 65 ] Also, on November 17, Deborah Merriam saw a truck drive into her farmyard. An individual knocked at her door. It appears that when she was slow to answer, the individual moved the truck to the gas pumps, and was attempting to remove gas.

She hollered at the individual; he got into his truck and left. When shown the picture of the truck in Mr. Selzer’s yard, she said it looked like the truck that she saw. [ 66 ] Constable Robert Morley testified that following receipt of the surveillance tape and preparation of the still photos, he prepared a bulletin for distribution to various RCMP detachments and police agencies. The bulletin contained the still photos of the truck and the individual getting out of the truck. He asked for assistance in identifying that individual.

Very shortly after distribution of that bulletin, he received an email from Corporal Smith of Southey detachment of the RCMP, advising that he believed the individual was “Robert Racine”. [ 67 ] Corporal Smith testified as to his prior dealings with Robert Racine. He testified that as soon as he saw the photo, he contacted Constable Morley and advised that it sure looked like Robert Racine and that he should have a look at Robert Racine. [ 68 ] Constable Morley testified that Robert Racine had a criminal record and had his photograph in the police records and computer system.

He used the computer system to generate a photograph for Robert Racine, and to generate a number of other photographs to be used in a photo lineup. On December 16, 2020, Mr. Selzer attended White Butte detachment of the RCMP to view the photo lineup. At the end of that photo lineup, Mr. Selzer identified Mr. Racine’s photograph as being the individual that he saw on November 17. Mr. Selzer said he was 90 to 95 percent sure.

[ 69 ] Defence counsel made a number of arguments against Mr. Selzer’s identification of the accused. He says it was not a positive identification, and that the court should entirely discount or dismiss his identification. In my view, Mr. Selzer was very diligent and honest during the photo lineup. He openly spoke as he viewed the photos. He said he was 90 to 95 percent sure. I take that as a fairly positive identification and a fairly reliable assessment. [ 70 ] Defence counsel also argued that the photographs in the photo lineup were not sufficiently similar. They were not as close as possible. I do not agree.

They were sufficiently similar. The photo lineup was conducted by Constable Maughan, who knew nothing about the case or the investigation. I watched the entire video, and he acted fairly and impartially throughout. He suggested nothing to Mr. Selzer. [ 71 ] Having made all of these statements about the photo lineup, would I conclude on the basis of Mr. Selzer’s evidence alone, that the identity of Mr. Racine as the perpetrator of these offences, has been proved beyond a reasonable doubt? I would not. I do conclude however, that Mr. Selzer’s identification of Mr.

Racine is fairly good and reliable evidence upon which significant weight may be placed. I also conclude that Corporal Smith’s identification of Mr. Racine from the still photo is significant evidence that in some measure corroborates Mr. Selzer’s identification of the accused. [ 72 ] A cheque of Mr. Strickland’s was cashed on December 7, 2020. I put this after the photo identification evidence, in terms of chronology, because this evidence did not come to the attention of the police until following the photo identification.

Copies of the business records, i.e. a copy of the front and back of the cheque were entered as an exhibit. They indicate that on December 7, 2020, a “Mr. Robert Racine” negotiated a cheque from Mr. Strickland. The cheque is clearly made out to Mr. Robert Racine. The cheque is clearly endorsed by Robert Racine. Although there was no evidence presented on this point, there is a similarity between the handwritten entry of the accused’s name on the front and back of the cheque. In particular, the capital “R’s” in “Robert Racine” on the front and back of the cheque appear very similar. [ 73 ] Mr.

Strickland testified that he had never met Robert Racine and had certainly never made out a cheque to him. He testified that the only thing that he wrote on the face of the cheque was the word “Straw” and his signature. Further, he stated this cheque was left in his truck, and was in his truck when it was stolen on November 5. [ 74 ] The Canadian Oxford Dictionary , 2d ed (Oxford University Press, 2004), lists as one of the

definitions of the word “endorse” as: “sign on the back of a (cheque) either as payee or to make (it) payable to someone other than the stated payee.” I would suggest it is now common knowledge that in order to obtain payment of a cheque, one normally endorses the back of that cheque, certifying that you are the payee. [ 75 ] Surely all of this is some circumstantial evidence that Robert Racine filled in the details on the front of the cheque, and endorsed the back of the cheque, in order that payment could be made to himself.

Surely, this is also significant circumstantial evidence that Robert Racine was either in possession of the truck on November 5, or came into possession of it very shortly thereafter, and as a result Mr. Racine came into possession of the blank cheque. [ 76 ] Then I come to the evidence of the various Regina City police officers regarding January 9, 2021. On that date, police received information that Robert Racine was at 1276 McIntosh Street in Regina, and that he was not wanted there. Further, that the stolen truck was parked at that location.

Defence counsel attempted to argue that this is inadmissible hearsay evidence of statements made by Laticia Racine. In my view, the evidence of statements by Laticia Racine, explain and provide context for the actions of the police officers, and this evidence is admissible for this purpose. The police officers give their own personal and direct evidence on the presence of Mr. Racine and the stolen truck. They testified that they went to 1276 McIntosh, were granted entry to the home by Ms. Racine, and in the basement of that home they located Mr. Racine hiding between two mattresses and arrested him there.

The officers also testified that they saw four people within that home, the accused Robert Racine, Laticia Racine, her 15 year old son, and Sabrina Crane, the girlfriend of the accused. They saw no other persons there. [ 77 ] The police located the stolen truck in the backyard. There is absolutely no doubt that this was the stolen truck. It bears the same VIN number as Mr. Strickland’s truck. It had a stolen plate on it. In the same room as Mr. Racine was located, the police located a black men’s winter jacket. There was no evidence of any other adult males at the house.

In the pocket of that black jacket they located the keys to the truck which successfully opened and later started the truck. All of this is strong circumstantial evidence that Mr. Racine was in possession of that truck on January 9, 2021. I would suggest this is also significant corroborative evidence to indicate that Mr. Racine was in possession of that truck since the date it was stolen, and remained in possession of that truck on January 9, 2021. Circumstantial Evidence

[ 78 ] In this case, there is the eye witness evidence of Corporal Smith and Mr. Selzer linking Mr. Racine to the theft of the truck. There is also significant circumstantial evidence that in some measure confirms and corroborates this. The issue is whether based on all of this evidence, the Court can be satisfied beyond a reasonable doubt of the guilt of the accused. [ 79 ] In the recent case of R v Wolfe , 2021 SKCA 39 [ Wolfe ], the Court reviewed a number of authorities dealing with circumstantial evidence, and summarized the method of analysis.

At paragraphs 108 to 110, to the Court stated as follows: [108] When the Crown’s case depends substantially or wholly on circumstantial evidence the criminal standard of proof requires the trier of fact to be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole ( R. v. Villaroman , 2016 SCC 33 at para 20 , [2016] 1 SCR 1000 [ Villaroman ] ).

When a verdict based on circumstantial evidence is challenged as being unreasonable, the question for an appellate court is whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole ( Villaroman at para 55 ; R v Groshok , 2019 SKCA 39 at para 40 ). [109] A guilty verdict returned by a jury in a circumstantial evidence case is not rendered unreasonable merely because the evidence is capable of giving rise to competing inferences ( R v Learning , 2019 SKCA 5 at para 26 [ Learning ]).

A trier of fact must consider other plausible theories and reasonable possibilities that arise from the evidence or lack of evidence but, while the Crown is required to negate other reasonable possibilities in a circumstantial evidence case, it need not negate “fevered imaginings or speculation” or “every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused’s innocence” ( R v Lights , 2020 ONCA 128 at para 38 , 149 OR (3d) 273 , Villaroman, at paras 37–38).

Circumstantial evidence does not have to completely exclude all other conceivable inferences in order to support a conviction. A verdict is not unreasonable simply because there are alternatives that do not raise a doubt in the jury’s mind. It is fundamentally for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt ( Villaroman at para 56 ). [110] It is also important to note that the requirement for proof beyond a reasonable doubt does not apply to each individual piece of circumstantial evidence.

In order for a trier of fact to convict on the basis of circumstantial evidence, it is not necessary that each item of evidence, taken individually, support only an inference of guilt.

It is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt ( R v J.M.H. , 2011 SCC 45 at para 31 , [2011] 3 SCR 197; R v Ballantyne , 2015 SKCA 107 at para 42 , 329 CCC (3d) 127; R v Alves , 2014 SKCA 82 at para 43 , [2014] 12 WWR 63). [ 80 ] Using this method of analysis, and on the basis of the evidence mentioned above, I conclude that the accused Robert Racine either stole Mr. Strickland’s truck on November 5, 2020, or came into possession of that truck very shortly thereafter. Because it was within the truck, he also came into possession of Mr.

Strickland’s blank cheque. On November 17, 2020, he was still in possession of that truck when he went to the farm home of Mr. Selzer. He was captured on video surveillance at that time. Corporal Smith and Mr. Selzer correctly identified Mr. Racine as being at Mr. Selzer’s home. On December 7, 2020, Mr. Racine used the blank cheque that he came into possession of. He filled the particulars on the face of the cheque and endorsed and negotiated that cheque on or about that same date. On January 9, 2021, Regina City Police located the stolen vehicle and Mr. Racine, both at 1276 McIntosh Street. Mr.

Racine was in possession of the keys and the truck. I conclude that Mr. Racine remained in possession of that truck from the date of its theft or very shortly thereafter until January 9, 2021, at which time he was arrested. [ 81 ] Now I return to the statement of law, quoted above from the Wolfe decision. I ask whether based upon these facts, the only reasonable inference to be drawn from the evidence is the guilt of the accused? Or, are there reasonable and plausible theories inconsistent with guilt?

It must be noted that the defence called no evidence and, in argument, advanced no alternative theories inconsistent with guilt. The entire defence argument appears to be based on the “failure of an eye witness identification”. The Court attempted, for its own analytical purpose, to generate and consider some alternative theories. There is considerable evidence from Corporal Smith and Mr. Selzer that Mr. Racine was in possession of the stolen truck on November 17, 2020. Is it reasonable to conclude that he innocently and unknowingly came into possession of this truck between November 5 and November 17?

In my view that conclusion would not be reasonable and would be entirely speculation. Surely it is reasonable to assume that an individual acquiring such a valuable truck by legitimate means, would check on the prior ownership of the vehicle, and have it properly licenced. Had either of those steps been taken, Mr. Racine surely would have known that the vehicle was stolen, and not proceeded with the transaction.

I conclude he came into possession by illegal means and in full knowledge that the vehicle was stolen. [ 82 ] Is it a reasonable or plausible theory that some other person endorsed and negotiated the cheque on December 7, 2020? To accept this theory, one would have to assume that the fraudulent individual who acquired the truck, knew about Mr. Racine, and framed him by completing and endorsing the cheque. Once again, this theory is entirely nonsensical and speculation. [ 83 ] Is it reasonable to assume that a fraudulent individual placed the truck at 1276 McIntosh Street, and it is purely coincidental that Mr.

Racine was located at that same residence? Is it entirely coincidental that the keys were in his jacket pocket? Once again, this theory is nonsensical, and entirely speculative.

[ 84 ] In my view, the only reasonably inference from all of the evidence is that Mr. Racine stole the vehicle, and he remained in possession of that vehicle until his arrest on January 9, 2021. Conclusion [ 85 ] Count 1 is a charge of theft of gasoline from Debbie Merriam. I am not satisfied that Mr. Racine stole or attempted to steal gas. Ms. Merriam could only say that the vehicle in the picture looked like the truck. I am not satisfied beyond a reasonable doubt that Mr. Racine was at that site, and accordingly find him not guilty of Count 1. [ 86 ] Count 2 is break and enter a dwelling house.

It is the charge for breaking and entering Mr. Selzer’s garage. I am satisfied beyond a doubt that Mr. Racine was located unlawfully within the garage. I am not clear, however, whether the garage was attached to the house, or detached and a few feet away. I believe it was detached. So, I will amend Count 2 by deleting “dwelling house” and replacing it with “garage”. I find Mr. Racine guilty of the amended Count 2. [ 87 ] Count 3 is possession of the truck on November 17, 2020. I am satisfied beyond a reasonable doubt that he was in possession of the truck on November 17, 2020.

In light of my determination that he was continuously in possession of that truck until January 9 of 2021, and on the basis of the Kienapple principle, I believe I should not convict him of Count 9. I impose a judicial stay with respect to Count 9. [ 88 ] Count 4 is driving while prohibited. I find him guilty of that count. [ 89 ] Count 6 is the charge that Mr. Racine attempted to defraud Mr. Strickland of Canadian currency by making out the cheque to himself and endorsing it. In my view, this charge more correctly fits the facts than does the forgery charge in Count 5. Accordingly, I find Mr.

Racine guilty of Count 6 and dismiss Count 5. [ 90 ] Counts 7 and 8 are charges that the accused was in possession of two stolen licence plates. There was evidence that neither of these plates were for this vehicle. But there was no evidence from any person that they previously owned and had registered one of these plates. There was no evidence as to how they parted with possession or their possession was terminated. The police officers testified these plates were stolen. I would conclude that any evidence that these licence plates were stolen is inadmissible hearsay.

As a result these two counts must be dismissed. Dated at the City of Regina, the Province of Saskatchewan this 20 th day of October, 2021. _________________________ D. Kovatch, J