HER MAJESTY THE QUEEN CR0WN - v. -, 2012 SKQB 17

QUEEN ’ S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 17 Date: 2012 01 13 Docket: CR 14 of 2010 Judicial Centre: Prince Albert BETWEEN: HER MAJESTY THE QUEEN CR0WN - and - CYRUS MERASTY DEFENDANT Counsel: S. Blackman for the Crown D. Blenner-Hassett for the defendant JUDGMENT MAHER J. January 13, 2012 Introduction [ 1 ] The accused stands charged as follows: Count 1: With intent to commit an indictable offence did have his face masked contrary to section 351(2) if the Criminal Code . Count 2: Did attempt to steal from Buddy ’ s Grocery 2001 Ltd. a cash register and contents and at the time thereof did assault Sherry Chatlain while armed with an offensive weapon, to wit a knife, contrary to

section 344 (

b) of the Criminal Code .

Count 3: Commit mischief by wilfully damaging property to wit: building and merchandise of a value exceeding five thousand dollars, the property of Buddy ’ s Grocery 2001 Ltd., contrary to section 430(3) of the Criminal Code . Count 4: While bound by a Recognizance under

section 810 of the Criminal Code entered on the 18 th day of September, A.D. 2009, did commit a breach of the said Recognizance by failing to comply with a condition, to wit: keep the peace and be of good behaviour, contrary to

section 811 of the Criminal Code. The Evidence Sherry Chatlain [ 2 ] Chatlain was working the evening of February 14, 2010 at Buddy ’ s Grocery in Prince Albert, Saskatchewan. At about 7:30 p.m. a masked person entered the store. The person came toward the counter and attempted to come around the counter to get at the till. Chatlain pulled a chip rack over to block his path. She initially though it was a joke and asked the person to take the mask off. The masked robber screamed at her to get on the floor and showed her a knife in his right hand.

He screamed a second time at her to get to the floor and both times she refused to do so. The robber ’ s path was blocked by the chip rack so he then went toward the till from the front side of the counter. The robber pushed the keys on the till which caused it to open. Chatlain went to the till, pushed the till drawer closed and wrestled with the robber over the till. While she and the robber were scuffling at the till, the robber briefly pulled his mask down. She then pushed the panic alarm to the police station plus a button to magnetically lock the front door of the store.

After she pushed the alarm buttons, the robber let go of the till and went to exit the building. The front glass door was locked so the robber took three runs at the store ’ s glass door before it broke so he could exit. The events with the robber in the store were captured by a video surveillance camera. A video disk was entered as an exhibit which Chatlain identified as accurately setting out the events that occurred in the store on the evening of February 14, 2010. The disc was marked as exhibit P-7. [ 3 ] Chatlain testified that the robber was wearing a khaki parka with a large hood over his head.

The mask was black and red nylon. The knife he had in his hand was a regular kitchen knife with the blade of about ten inches long. She said that Cyrus Merasty was the person who was the robber in the store that night. Cyrus Merasty had been a customer of Buddy ’ s and she testified that although she only saw the robber ’ s face for a moment she was 99% certain it was the accused because the accused, Merasty, has a unique mouth which assisted her in identifying him as the robber, however the accused has put on weight since the incident on February 14, 2010.

When shown exhibit P-4, the long khaki parka she said that it looked exactly like the one worn by the robber. Constable Ballantyne [ 4 ] Cst. Ballantyne was the investigating member for the Prince Albert Police Service. However, he passed away after the preliminary inquiry. The preliminary inquiry was held May 4 th and 5 th of 2010, the Crown applied to introduce his evidence pursuant to s. 715 of the Criminal Code . Defence agreed, and I granted the application. The transcript of Cst. Ballantyne ’ s evidence was entered as exhibit P-2. [ 5 ] Cst.

Ballantyne testified that he had attended to Buddy ’ s when a call came in to the Prince Albert Police Service. He met with Chatlain and was shown the video surveillance of the incident. Ballantyne was at Buddy ’ s for about one hour and then patrolled in downtown Prince Albert going by a church on Central Avenue. In the church he saw a jacket resting on a chair similar to what he had seen on the video. There was a male person sitting on the chair. He circled the block and stopped to get a better look. He saw the accused, Cyrus Merasty, sitting on the chair with the jacket on the back of the chair.

Ballantyne observed that Merasty was wearing similar shoes to those on the video and was also wearing blue pants. Cst. Ballantyne observed as he walked to the entrance of the building that Merasty was talking to a kid. The kid then took the jacket and walked away from Merasty. The Cst. motioned to the kid to come to him. The Cst. spoke to the kid and found out he was Brian Keenatch. The Cst. observed that the jacket had now been placed in the southeast corner of the building. He entered the building where he saw Merasty walking towards the stairs. The Cst. then arrested Merasty and seized the green jacket.

At the police station he seized from the right pocket of the jacket a piece of glass. Also seized from the accused were blue pants, dark gloves, and runners. He photographed all of these items which photographs are shown in exhibit P-3. The shard of glass is exhibit P-5. Constable Stubbs [ 6 ] Cst. Stubbs has been a member of the Prince Albert Police Service for fifteen years and currently works in forensics. He entered a photo booklet, P-8, showing the front of Buddy ’ s with the glass front door broken out with pieces of glass in the snow.

He entered a vial containing numerous pieces of glass he obtained from the front of Buddy ’ s as exhibit P-9.

Constable Mudry [ 7 ] Cst. Mudry testified that he seized gloves, shoes, and pants from the accused at the Prince Albert police station. The gloves were entered as exhibit P-11, the shoes as P-12, and the pants as P-13. Janet Olson [ 8 ] She drove to Buddy ’ s on the evening of February 14, 2010, with her daughter, Sunshine, her sister Rachel Smallboy, and her brother Alvin Smallboy. She remained in the car when the others went into Buddy ’ s to buy some candy. Olson could see some guy or it could have been a woman, wearing dark clothing who appeared to be talking on the telephone outside of Buddy ’ s.

She saw her sister, Rachel, speak to that person. After Rachel, Alvin and Sunshine returned to the car they went home and a short time later that evening they all went to the Outreach Church on Central Avenue in Prince Albert where they stayed until 11:00 p.m. Brian Keenatch [ 9 ] He recalls being at the Outreach Church in Prince Albert, Saskatchewan the evening of February 14, 2010. He was with his Aunty Rachel Smallboy and Alvin Smallboy. Cyrus Merasty was sitting with his Aunty Rachel across the table from him when Merasty asked him to take his jacket to a couch.

He did as Merasty asked and placed the jacket on the couch. Keenatch then heard a knock on the window of the Outreach Church and went out to see a cop. Rachel Smallboy [ 10 ] She went to Buddy ’ s after supper with Janet Olson, her niece, Sunshine and Alvin Smallboy. Rachel went into the store to get some candy and saw someone outside. She said “ hi ” to that person but did not really know the person. However she had seen that person downtown on other occasions. All three of them left Buddy ’ s shortly after buying some candy.

She recalls later in the evening that they all went to the Outreach Church for the service where she sat with the accused, Cyrus Merasty. [ 11 ] Rachel testified in examination-in-chief that she saw Cyrus outside of Buddy ’ s when they went into get the candy but Cyrus was not the person at the front of the store that she spoke to. However in cross-examination she changed her testimony to say that she had not seen Cyrus outside Buddy ’ s that evening. Defence Evidence [ 12 ] The defence chose to call no evidence. The Issue 1.

Has the Crown proven beyond a reasonable doubt that the accused was the robber who entered Buddy ’ s Grocery on February 14, 2010? Analysis [ 13 ] The evidence presented by the Crown on the issue of identification consists of direct evidence of the witness Chatlain and circumstantial evidence based primarily on physical exhibits. I must consider what weight should apply to the direct evidence of Chatlain and the physical exhibits in determination if the accused was the robber in the video.

[14] The inter-relationship of direct and circumstantial evidence was particularized in the Sopinka, Lederman, & Bryant, Law ofEvidence in Canada, Third Edition, LexisNexis Canada Inc. 2009. The authors commented the following at para. 2.72: A fact in issue cannot always be proved by direct evidence. ... If sufficient other facts are proven the court may “from thecircumstances” infer that the fact in issue exists or does not exist. In such a case proof is said to be circumstantial. [15] The authors said the following at para. 2.77: Each piece of evidence need not alone lead to the conclusion sought to be proved.

Pieces of evidence, each by itself insufficient, mayhowever when combined, justify the inference that the facts exist... [16] Bastarache J. of the Supreme Court of Canada in R. v. Charemski, (SCC), [1998] 1 S.C.R. 679, [1998] S.C.J.No. 23(QL) at para. said: In my view, the trial judge should have directed the jury according to the requirement that a finding of guilt could only be made whenthere was no other rational explanation for the circumstantial evidence but that the defendant committed the crime. [17] Goldenberg J. in R. v. Piscitelli, 2010 SKQB 209, 368 Sask. R. 13, [2010] S.J. No. 795(QL)(Sask.

Q.B.) did a comprehensiveanalysis on the case law of the principles of utilization of circumstantial evidence. He said the following at para. 35: In considering whether circumstantial evidence supports an inference of guilt beyond a reasonable doubt, the Court must not examineeach individual circumstance in isolation.

The proper approach is to consider whether all the evidence taken together in its totalityproves the accused's guilt and is inconsistent with any other rational conclusion... [emphasis included] What is the evidence of identification of the accused as the robber? [18] The direct evidence of the witness Chatlain is that she is 99% certain that the accused was the person who attempted to robBuddy’s the night in question. She knew Merasty as a former customer of the store, she was within ten to twelve inches of his faceduring the robbery when he pulled his mask down.

The robber in the video is observed bringing his hand to his face while at the till. However, Chatlain had some uncertainty as to the identity of the accused at the preliminary inquiry. That is the direct evidenceidentifying the accused. I must as well review the circumstantial evidence to determine whether such evidence confirms Chatlain’sevidence or causes me to have a doubt on the identity of the robber. [19] The Crown has tendered a shard of glass (exhibit P-5) and a vial of glass pieces (exhibit P-9).

The Crown submits that I shouldfind that the shard of glass which was located in the pocket of the jacket by Cst. Ballantyne came from the broken glass door at Buddy’s. Cst. Stubbs from the forensic

section of the Prince Albert City Police Service examined the glass items, photographed them, but made nocomment as to whether there were any similar characteristics between the single glass shard and the glass pieces in exhibit P-9. It is notfor the court to analyze the exhibits or to speculate whether there was any relationship to the glass pieces. I place no weight on the glass. [20] The Crown submits that the red tag on the right leg of the dark blue pants seized from the accused was visible in the videotherefore linking the accused to the robber in the video.

I have viewed the video several times and did not see a red tag as visible. I rejectthat submission by the Crown. [21] On a review of the video it is obvious that the person attempting to do the robbery wore a large khaki hooded jacket. He alsohad dark blue pants with black, grey and white runners. When he is encountering Chatlain at the till the robber has black gloves on hishands.

I find that the jacket (P-4), the pants (P-13), the runners (P-12), and the black gloves (P-11) are all identical to what the robber iswearing and were seized from the accused at the Outreach Church. [22] I have examined the items seized, namely the large khaki parka, the blue pants, the runners, the gloves and the video. I am

satisfied beyond a reasonable doubt that the only rational conclusion is that these items were worn by the robber in the video. I base that conclusion on the evidence of Cst. Ballantyne who saw the accused with the green jacket on a chair by him, and the evidence of Keenatch that the accused asked him to move the jacket when the police officer was outside the Outreach Church. I find that the jacket, the gloves, the pants and the shoes all belonged to the accused.

The uniqueness of theses four items of clothing as shown on the video and seized from the accused about three hours later leads only to one conclusion - that the accused and the robber are the same person. I as well accept the evidence of Chatlain that the accused was the robber on the night in question. When all the evidence is taken in its totality, I am satisfied that it proves the accused ’ s guilt beyond a reasonable doubt. There is not in my view any other rational conclusion than that the accused was the robber at Buddy ’ s Grocer 2001 Ltd. the evening of February 14, 2010.

Conclusion [ 23 ] The evidence satisfies me beyond a reasonable doubt as follows: 1. The accused did have his face masked on February 14, 2010, when he attempted to rob Buddy ’ s Grocery 2001 Ltd. and I find him guilty pursuant to s. 351(2) of the Criminal Code ; 2. I find the accused did attempt to steal from Buddy ’ s Grocery 2001 Ltd. a cash register and contents and did assault Sherry Chatlain armed with a knife contrary to s. 344 (

b) of the Criminal Code ; 3. I find that there is no evidence that the damage to the building or the property exceeded $5,000. There was damage to the glass door, I therefore find the accused guilty of mischief of the lesser offence as provided in s. 430(4); 4. I find the accused by his attempted robbery on February 14, 2010, did breach his recognizance dated September 18, 2009 to keep the peace and be of good behavior, I therefore find him guilty contrary to s. 811 of the Criminal Code . J. R. D. MAHER