R. v. W., 2018 MBPC 41

Citation No. 2018 MBPC 41 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Monique Cam ) ) for the Crown - and – ) ) ) HOURIE, Joshua Angelo ) ) Katherine Bueti for the Accused ) ) ) Judgment delivered: ) October 31, 2018 Mary Kate Harvie, P.J. INTRODUCTION [1] The accused Joshua Hourie faces a number of charges related to a break enter and robbery committed on January 13th, 2016. The accused testified and has denied involvement in these offences. This case involves the application of R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 to the evidence of the accused, along with an assessment of the reliability of the victims’ evidence. Becausethe central evidence identifying the accused comes from a DNA sample, the nature of the sample and the evidence surrounding its takingmust be evaluated. [2] The test set out in W.(D.) is well known. The evidence of the accused and his denials must be considered in the context ofthe case as a whole in order to determine whether they are to be believed, or alternatively, whether they raise a reasonable doubt.

Even ifthey fail to do so, the Crown still bears the onus of proving all elements of the case beyond a reasonable doubt. BRIEF OVERVIEW OF THE FACTS [3] In January, 2016, the complainant Brodie Saunders and his girlfriend/roommate Cassandra Dykun shared a duplex at 2- 539Pritchard Avenue in Winnipeg with their roommate “Dylan”. During the early evening of January 13, they were at home making dinnerwhen they heard a sound at the front door which was unlocked. When Mr. Saunders went to investigate he saw a female known to him as“Jessie” coming up the stairs. Mr.

Saunders testified that he had been warned by Dylan that she may be coming over, and that he hadpreviously overheard a conversation between the two about money apparently owed by Dylan to Jessie. [4] After a short conversation, Jessie immediately attended to Dylan’s bedroom and began “rummaging through his stuff”. When confronted by Mr. Saunders, she advised in an “aggressive tone” that Dylan owed her money and that she was taking some itemsas repayment. Jessie told Mr. Saunders “if you want to deal with anybody you have to deal with him”, gesturing to a large male whoaccompanied her.

The male was armed with a pocket knife which he pointed towards Mr. Saunders and Ms. Dykun. He madethreatening comments throughout the incident and claimed to be connected to a biker gang. It appears from the comments made by thetwo intruders that Jessie owed money to her male accomplice. The Crown asserts that the male is the accused. [5] After Jessie finished selecting items from Dylan’s room bedroom, she confronted and threatened Ms. Dykun. The groupultimately entered Mr. Saunders and Ms. Dykun’s bedroom, where both Saunders and Dykun were assaulted by Jessie.

A number ofitems were taken, including a television and a Playstation game. The male accomplice confronted Ms. Dykun at knife point, directing herto remove some rings from her fingers. Ultimately the two intruders departed, the Winnipeg Police Service was contacted and membersattended to investigate. [6] Not surprisingly, both complainants describe being very frightened by the incident. Both were threatened throughout theincident. As a result of the assault in the bedroom, Mr.

Saunders suffered injuries to his head and eye which required medical attention,including an MRI of his head. [7] The complainants were able to provide police with only a very general description of the male intruder. Mr. Saundersdescribed the male as being between 6’2” and 6’4”, approximately 200- 220 lbs with a light skin tone and short hair. He was unable to

provide any other details, such as clothing or tattoos. Ms. Dykun described the male being 6’ or taller, with a big build, possibly Metis, with fair skin and some facial hair. She too was unable to provide any specific identifying characteristics, such as tattoos or piercings. Although it is a general one, the accused matches that description and acknowledges that he looked much the same in January, 2016. Neither complainant was asked by Crown counsel if they could identify the accused, nor were they invited to do so in Court. [ 8 ] There are some discrepancies between Mr. Saunders and Ms. Dykun’s testimony.

While this is not surprising, given the traumatic nature of the incident, defence counsel suggests that these discrepancies adversely affect the reliability of the complainants’ evidence. As examples, while Mr. Saunders described the female entering the residence, Ms. Dykun observed the female and the male entering together. She observed the male carrying a knife, although she testified that the knife went in and out of the male’s pocket several times.

The evidence between the two complainants as to whether some marijuana was included in the items stolen is not consistent, nor is their description of the manner in which the assailants left, or the type of vehicle they were driving. [ 9 ] The most significant discrepancy is in relation to whether the male assailant was carrying a can of beer when he entered the residence. Mr. Saunders does not confirm that the male had a can of beer, saying further that the group did not enter the kitchen. According to Ms.

Dykun, the male intruder was carrying a can of beer when he entered, which he opened, drank from and left on the top of their fridge. She pointed out a can of Molson Dry beer to the WPS investigating officer and confirmed that the officer seized the beer can, the only one on top of the fridge.

Although not recorded in his notes, the WPS officer confirmed that he took the beer outside, emptied the remaining one third of the contents outside, taking the can to the station where he swabbed the mouth of the can for a DNA sample. [ 10 ] After the swab was analyzed and a single source profile was identified, a warrant was obtained and a DNA sample obtained from the accused.

The RCMP Forensic Expert testified that when this was compared to the sample taken from the mouth of the beer can, the DNA matched that of the accused, and that the chance of a random match with another individual is one in 750,000,000,000,000,000. The expert agreed that she could not say how long the DNA had been on the can or how it came to be placed there. She did not study the remainder of the can so could not comment on the presence of DNA anywhere else but from the mouth of the can, where the swab was taken.

Although available, she agrees that she did not use the method of testing that could have identified if the DNA came from saliva, as that method tends to use up a large portion of a sample. She agreed that, generally speaking, there are various ways in which DNA can be transferred, or bodily substances can be deposited on an item. She did not comment on, nor was she asked about, the effect, if any, of the officer pouring the remaining beer out of the can.

THE EVIDENCE OF THE ACCUSED [ 11 ] The accused testified on his own behalf, stating that he was attending school at Yellowquill College during the general time frame of the offence. This offence occurred on a weekday, and the accused testified that it was his routine to volunteer at the school after classes, after which he would go directly home. He testified that he did not have a car at the time, and travelled to and from school via transit. He denied drinking Molson Dry beer, denied knowing the complainants or any of the parties involved, and denied being involved in the robbery.

He was candid about his criminal record, and admitted that he was involved in a gang while in prison, but denied any affiliation while out of custody, and denied ever being involved in a biker gang. [ 12 ] As previously indicated, the evidence of the accused must be assessed bearing in mind the totality of the evidence before the Court. While I found the accused to be candid with respect to his criminal record, I had difficulty with other portions of his evidence.

While I accept that he may have been attending school at the time, I do not accept that his regular school attendance precluded his involvement in this offence, which occurred during the early evening after school would have been completed for the day. It is noteworthy that the accused was unwilling to acknowledge even the possibility that during the time frame of the offence that he might have gone out with friends on a weeknight.

I attach little weight to his evidence that he did not own a vehicle at the time, as there is no suggestion that it was he who supplied the vehicle used during the offence. [ 13 ] More significantly, the accused denied even the possibility that he had consumed a Molson Dry beer during the time frame of the offence, even separate and apart from this incident. His evidence was that he would never drink a Molson Dry, even if offered one by a friend, and that he would only either drink Kokanne or Bud.

Without further reason or explanation beyond preference, his evidence on this point is difficult to accept, and appears to be nothing more than an effort to distance himself from the object upon which his DNA was located. [ 14 ] The accused confirmed for the Court that in 2016 he had extensive tattoos on his arms and hand, a detail which was not noted by either complainant when describing the male intruder.

While he has a tattoo on his hand which may have been noticeable, particularly given that the perpetrator was holding a knife, the fact that the victims were unable to provide any further descriptors is simply a fact for the Court to take into account. I am also mindful that the complainants were unable to provide further details rather than stating that the accused did not have distinguishing features such as tattoos. [ 15 ] Considered against the evidence as a whole and applying the test in R v. W.(D.) , I do not believe the denials of the accused, nor do they raise a reasonable doubt.

I found his evidence to be self serving and not capable of belief. [ 16 ] I must therefore consider whether the Crown has established all elements of the offence beyond a reasonable doubt, including the identity of the male perpetrator. THE IDENTIFICATION EVIDENCE – THE DNA [ 17 ] The Crown’s central identity evidence is the DNA evidence located on the beer can found in the kitchen. It is uncontested that the DNA on the beer can matches that of the accused. At issue is the timing and circumstance of the deposit, and timing and circumstance under which the beer can ended up at the complainants’ residence.

Defence counsel argues that Ms. Dykun’s evidence is so fraught with internal inconsistencies that the Court cannot rely on her evidence that the male perpetrator actually brought a can of beer to the residence. She further submits that Ms. Dykun’s evidence is contradicted by the evidence of Mr. Saunders, who testified that the parties never went into the kitchen.

[18] I have no difficulty accepting the evidence of Ms. Dykun on this point. She was clear that she saw the male intruder arrive witha can of Molson Dry, that he left it on top of the fridge, and that it was the only can on top of the fridge, a fact confirmed by the seizingofficer. I do not find the discrepancy between her evidence and that of the WPS officer as to whether she picked up the can or whethershe simply pointed it out to the officer to be of significant weight. [19] I am aware that Ms. Dykun’s evidence that the male perpetrator was carrying a beer can when he arrived is not corroborated byMr.

Saunders. However, when the totality of the evidence is reviewed, it appears that at the outset of the incident, Mr. Saunders’attention was on the female assailant, who was clearly interested in targeting Dylan’s bedroom. And while I am aware that Mr. Saunderstestified that none of the parties went into the kitchen, I am also aware that the apartment itself is relatively small, and that he didconfirm that all parties were in the hallway just outside the kitchen. I do not find his evidence to be of such a nature as to cause me toreject the specific evidence of Ms.

Dykun respecting the Molson Dry beer can upon which the accused’s DNA was located. [20] Both Mr. Saunders and Ms. Dykun confirmed that both they and their roommate Dylan would from time to time have friendsover. Ms. Dykun was more willing to acknowledge that they did not carefully monitor the type or amount of alcohol that friends mayhave brought over.

Even accepting that, her evidence does not assist in explaining how a beer can with the accused’s DNA may haveended up in the apartment, particularly given that the accused testified that he did not know any of the people involved in this incident. [21] In R v Wills 2014 ONCA 178, the role of DNA evidence was reviewed by the Ontario Court of Appeal, with the Courtconfirming that DNA evidence, standing alone, is not sufficient to ground a conviction, but requires corroboration. [36] However, the DNA evidence alone could not support the inference that the appellant was one of the perpetrators or thateither bandana belonged to the appellant.

The expert evidence called by the Crown precluded those inferences based exclusively on theDNA evidence. Like the fingerprint evidence in R. v. Mars (2006), (ON CA), 205 C.C.C. (3d) 376, at paras. 20-21(Ont. C.A.) and R. v. D.D.T., 2009 ONCA 918 , at para. 26, the DNA evidence alone could not say when that DNA was placedon the bandanas and therefore could not identify the appellant as the perpetrator of the robbery. There had to be other evidence which,combined with the DNA evidence, would permit a finding that the appellant was the perpetrator, e.g. see R. v. Samuels, 2009 ONCA 719(CanLI); and R. v.

Wong, 2011 ONCA 815 (CanLII [22] Crown counsel argues that the corroboration comes from Ms. Dykun. I agree. While I am mindful of the fact that there arediscrepancies between her evidence and that of Mr. Saunders, particularly regarding the events when the break-in began, this is hardlysurprising given the trauma of the moment. While it was not until just weeks before the trial that Ms. Dykun provided certain details toCrown counsel respecting the beer can, it is not a situation where the topic arose for the first time during those conversations. It is clearthat Ms.

Dykun pointed the beer can out to the police and it was for that reason that they seized it and sent it for DNA analysis. [23] It is also clear that the officer swabbed the mouth area of the beer can for a reason – that is he was told the perpetrator drankfrom the can. The accused’s DNA, a lone male sample, was recovered from that area. While the DNA expert confirmed issues relatedto transference of DNA and possible contamination, there is no indication how that might have occurred in respect of this particular can.

By his own evidence, the accused says he did not drink Molson Dry beer and did not know these parties. There is no apparentcircumstance under which his DNA may have inadvertently ended up on this particular beer can. Nor is there evidence to suggest that theact of the officer in pouring out the beer left in the can affected the ultimate test results in any way. [24] I am satisfied that the evidence of Ms. Dykun is sufficient to amount to corroboration of the DNA evidence.

As such I amsatisfied the DNA evidence identifies the accused as the male who attended the residence on the day in question. [25] I am further satisfied that by entering the residence, albeit through an unlocked front door, the actions of the accused amountsto breaking into the residence as defined by Criminal Code

Section 321. Further, I am satisfied that the actions of the accused, whenconsidered as a whole, make him both a party and an active participant in the offence of Robbery. I do not agree with defence counsel’ssuggestion that his presence was not sufficient to ground party liability, given the facts as a whole. And while there were times duringthe incident where the accused remained silent, he clearly became an active participant as matters progressed.

CONCLUSION [26] Crown counsel fairly concedes that if the Court sees fit to convict the accused on the offence of house break enter and commitrobbery, the two further counts of robbery should be stayed pursuant to the Kienapple principle.

For her part, defence counsel fairlyindicates that if identity is made out, and the Court is satisfied that the actions of the accused make him a party to the offences, then thetwo counts of uttering threats, the possession of a weapon for a purpose dangerous to the public peace and the two counts of forcibleconfinement are made out. [27] I am therefore convicting the accused of house break enter and commit robbery, two counts of uttering threats, the possessionof a weapon for a purpose dangerous to the public peace and the two counts of forcible confinement. “ORIGINAL SIGNED BY:” Harvie, P.J.