HIS MAJESTY THE KING - v. -, 2022 SKKB 233

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 233 Date: 20 22 10 24 Docket: CRM-SC-00014-2021 Judicial Centre: Swift Current BETWEEN: HIS MAJESTY THE KING - and - CURTIS ARJAN MIKITUK Counsel: Gregory C. Lee for the Crown Thomas P. Hynes for the accused JUDGMENT KEENE J. October 24, 202 2 I.

INTRODUCTION [ 1 ] The accused, Curtis Arjan Mikituk, is charged by Indictment with the following offences, which for convenience of reading I will summarize as follows: Count 1: On or about February 15, 2016, at Swift Current, in the Province of Saskatchewan did use a restricted firearm, to wit: a pistol, in kidnapping Christopher Foster with intent to cause him to be confined against his will, contrary to s. 279(1.1) of the Criminal Code , RSC 1985, c C-46 .

Count 2: On or about February 15, 2016 at Swift Current, in the Province of Saskatchewan did use a firearm, to wit: a pistol, while committing an indictable offence, contrary to s. 85(1) (

a) of the Criminal Code . Count 3: On or about February 15, 2016, at Swift Current, in the Province of Saskatchewan did have in his possession a firearm while he was prohibited from doing so by reason of an order made pursuant to s. 110 of the Criminal Code , contrary to s. 117.1(1) of the Criminal Code . Count 4: On or about February 15, 2016, at Swift Current, in the Province of Saskatchewan did have in his possession a restricted weapon, to wit: a pistol, without being the holder of a licence under which he may possess it, contrary to s. 91(2) of the Criminal Code .

Count 5: On or about February 15, 2016, at Swift Current, in the Province of Saskatchewan did carry a concealed weapon, to wit: a pistol, contrary to s. 90 of the Criminal Code . [ 2 ] The Crown prosecutor during his final argument conceded the prosecution had failed to provide sufficient evidence to prove counts 2, 3, and 4 of the Indictment and invited the Court to find Mr. Mikituk not guilty of those three counts. I agree with his submission and therefore I will at this early juncture of my judgment acquit the accused of Counts 2, 3, and 4 as set out in the Indictment.

Accordingly, I will concern myself only with Counts 1 and 5 found in the Indictment. [ 3 ] The prosecution called the complainant, Christopher Foster, as its sole witness. Additionally, the Crown, with the consent of the defence, filed for the truth of its contents, a transcript of the evidence of Christina Muntean from the preliminary inquiry held in these matters on July 26, 2021 (Exhibit P-1). [ 4 ] The defence did not call any evidence. II. CROWN’S POSITION

[5] The Crown contends that the complainant, Christopher Foster, was lured to a local motel room in SwiftCurrent by Mike Coulter on the false pretence that Mr. Foster would be given cocaine to sell. The prosecution alleges that Mr. Fosterarrived at the room sometime after midnight on February 15, 2016 and was then kidnapped by Mr. Coulter and the accused. The Crownasserts that Mr. Mikituk had a pistol in the waistband of his pants that was concealed from view by his shirt and this, plus a statementmade by Mr. Coulter at that time that Mr. Mikituk was T.S. (Terror Squad – a gang) was enough to make Mr.

Foster compliant with theirrequests. According to the prosecutor, these two handcuffed Mr. Foster and then placed him in the back seat of a red Honda to take himto Calgary to answer for a drug debt of some $10,000. The Crown argues all of this was against Mr. Foster’s will – the handcuffing,placing him in the car and transporting him elsewhere. [6] The Crown asserts the following then happened. The three started to travel in the vehicle to Calgary.However, Mr.

Foster was able to negotiate some sort of payment along the way (it seems he would provide two cars and guns), and bythe time they got to Brooks, Alberta a deal had been reached and all three returned to Swift Current. The Crown maintains that the threearrived at Mr. Foster’s apartment residence at about 9:00 a.m. and he gave Mr. Coulter and Mr. Mikituk guns and a Monte Carlo car. [7] Accordingly, the Crown contends the complainant’s evidence should be accepted by the Court to prove theremaining two counts beyond a reasonable doubt.

It is to be noted Exhibit P-1 was not mentioned by the prosecutor in his final argumentand I agree that the exhibit has no real value and the Crown, despite tendering the exhibit, did not appear to rely on it. [8] The Crown acknowledged Mr. Foster’s criminal record (Exhibit D-1), his drug addiction at the material time,and that Mr. Foster lied to the police who were conducting an investigation into these matters in 2016. However, the prosecution arguesthat despite this, the evidence provided by the complainant is credible and reliable and proves beyond a reasonable doubt the remainingtwo counts in the Indictment.

III. POSITION OF DEFENCE [9] The defence takes a different view of Mr. Foster’s evidence arguing that because of Mr. Foster’s lengthycriminal record, his lying to the police (or at least providing an inconsistent out-of-court statement to the police), some inconsistenciesbetween his trial evidence and his testimony at the preliminary inquiry, his drug addiction at the time, and issues with identity (i.e. beingpossibly tainted by previous conversations with another person and his seeing the accused’s name on a prisoner’s attendance board inremand), that Mr.

Foster’s evidence is neither credible nor reliable (the two concepts of judicial evaluation being independent inanalysis), and asserts Mr. Foster’s testimony should come with a strong warning and be the subject of careful scrutiny. In short, defencecounsel urges a Vetrovec warning (R v Vetrovec, (SCC), [1982] 1 SCR 811). The defence remonstrates that Mr. Foster’sevidence cannot be relied on by the Court to prove the remaining offences beyond a reasonable doubt, and accordingly Mr. Mikituk mustbe found not guilty of all counts in the Indictment. IV. THE EVIDENCE (

a) Evidence of Christopher Foster in direct examination [10] Mr. Foster was living in Swift Current in 2016. At that time, he was deep into a cocaine and morphine addictionand sold drugs to support his habit. He testified that on February 14, 2016 (I find this was the evening before the alleged event) hereceived a phone call from Mike Coulter at around 9:00 to 10:00 p.m. Mr. Coulter was previously known to Mr. Foster through the drugworld. Mr. Coulter asked if he would be interested in getting about two ounces of cocaine to sell. Mr. Foster was. He testified that whenMr.

Coulter called he was out of drugs and that by coincidence this opportunity arose to get cocaine. He said he was not “dope sick” atthat time – he was not out of control – and it was not like in the movies. He said he was functioning. Mr. Foster stated drugs could affecthis memory but said, “You don’t make things up”. [11] The two agreed that Mr. Coulter would call him later to set up a meeting. Mr. Foster said that sometime aftermidnight (i.e., now February 15, 2016) he got another call from Mr. Coulter to go to a room in a local motel in Swift Current. Mr.

Fosterdrove to the motel and was allowed into the room. [12] Upon entering, Mr. Foster encountered Mr. Coulter, another fellow named “Wally” and two females. The twofemales were apparently sleeping on the beds in the motel room. Mr. Foster described Mr. Coulter as being agitated and acting weird.Mr. Coulter did not produce any cocaine. Instead, Mr. Coulter jumped up and patted Mr. Foster down. According to Mr. Foster, this wasto check for weapons or a cell phone. At that point, a male exited the bathroom and lifted his shirt to show Mr. Foster a pistol tucked intothe waistband of this unknown fellow’s pants. Mr.

Coulter said this male was with T.S., which Mr. Foster knew to be the Terror Squad, agang. [13] Mr. Coulter and this person directed him to turn around and one of the two then handcuffed him with his handsfixed behind his back. He was then taken out of the room and placed in the back seat of a red Honda car. Mr. Coulter sat in the driver’sseat and this other male sat in the passenger front seat. Mr.

Foster testified that he did not want to go with these gentlemen, and only didso because he felt compelled to do so against his will because of the showing of the gun, the mention of T.S., the handcuffing and theoverall circumstances. [14] Mr. Coulter then drove out of Swift Current on to the highway. As they were driving along, Mr. Coulter toldMr. Foster that Mr. Foster owed $10,000 in a drug debt. Mr. Foster explained in court that this was actually another drug dealer’s debtthat he was being held responsible for. Mr. Coulter told Mr. Foster he was being taken to Calgary to see a guy about this debt.

Mr.Foster was concerned about this. He testified that he told the two gentlemen he did not have $10,000, but he could give them guns andcars to satisfy the debt.

[ 15 ] Mr. Foster said that at about Gull Lake, Saskatchewan he asked if they would rearrange his hand restraints from behind his back to his front, and the passenger made this accommodation as they drove along. [ 16 ] Eventually, they got to Brooks, Alberta. Mr. Foster said that it was early in the morning with people starting to go to work. Mr. Coulter stopped for gas and they got something to eat at a fast food restaurant in Brooks. According to Mr. Foster’s testimony, a deal was struck by that time: he would give them guns and two cars. So Mr.

Coulter turned the car around and they headed back to Swift Current to make those arrangements. [ 17 ] Mr. Coulter said that during this trip all three did some cocaine that was supplied by Mr. Coulter and the passenger. He testified that despite this, his recollection of the events was not affected, and he was not having “hallucinations”. [ 18 ] The three drove to Mr. Foster’s apartment residence on the west side of Swift Current. Mr. Foster testified that Mr. Coulter and the passenger then left but returned shortly in a white half-ton truck along with a female passenger to collect the guns and a car.

It appears there had been some discussion about two cars but ended up being one car. [ 19 ] Mr. Foster then got six or seven long guns and a disassembled .45 calibre pistol and gave these to Mr. Coulter and the passenger. Mr. Foster offered his Monte Carlo to these gentlemen. As I have stated, there appears to have been two cars discussed but only one was available. However, Mr. Foster could not find the keys, and Mr. Coulter and his passenger tried to hot-wire the vehicle unsuccessfully. The vehicle eventually was towed away at the behest of Mr. Coulter and the passenger.

The gun exchange took place in a private area. The business of the car was done in public, on the street. [ 20 ] Mr. Foster testified that a police car arrived and parked a few houses down in an intersection, with the police officers observing the activity outside the apartment that morning, particularly the car being taken away. At that time, the individuals that were present appear to have been Mr. Foster, Mr. Coulter, the passenger and the new female, Mr. Foster’s spouse, and Mr. Foster’s brother. According to Mr. Foster, all of this at the apartment took about 45 minutes. [ 21 ] As it turned out, after Mr.

Coulter and the passenger and the female left the scene, the police asked Mr. Foster to go to the Swift Current RCMP detachment. He was asked by the police what had happened. Parenthetically, I will add that the police attendance and subsequent interest suggests they had somehow learned that something was afoot. Mr. Foster testified that at the time he was addicted and selling drugs and did not want trouble so he decided to lie to the police and so he said that nothing was going on.

He testified the police remained interested for some time and continued to contact him over this, but he maintained his unwillingness to discuss these matters with the police. However, he testified that by 2020 he decided to be more forthright and told the police a different version, which ultimately led to this prosecution. [ 22 ] Crown counsel asked Mr. Foster about Mr. Mikituk. Mr. Foster said that this event was the first time he had met Mr. Mikituk. Mr. Foster identified Mr. Mikituk in court and testified this person was the fellow with the pistol in the motel room and the passenger in the car.

He testified he came to sort out the accused’s name because of a discussion with a fellow inmate in the Drumheller prison. However, he also said that while Mr. Foster was in remand in the Regina Correctional Centre in 2020, he was on the same range with Mr. Mikituk, about two cells away. Mr. Foster’s evidence was that Mr. Mikituk’s name appeared on some sort of attendance board at the jail. [ 23 ] Mr. Foster, while he was on the same range with Mr. Mikituk, recognized the accused as the fellow involved in these matters. He said he had a conversation with Mr. Mikituk about the Monte Carlo car. [ 24 ] In

summary, his evidence was that he was not actually introduced by Mr. Coulter to Mr. Mikituk at the motel scene or elsewhere during the event. However, Mr. Foster testified he subsequently learned of the accused’s name, saw his name on a prisoner attendance board, and then spent time with Mr. Mikituk in remand. Indeed, his testimony was that in jail Mr. Mikituk talked openly to him about the taking of the Monte Carlo car. [ 25 ] Mr. Foster had no hesitation in saying he could identify the accused in court as the person who participated with Mr. Coulter in the kidnapping. [ 26 ] The prosecution then led Mr.

Foster through testimony about Mr. Foster’s personal knowledge of guns. Mr. Foster testified he considered himself knowledgeable about guns, having been a hunter and collector of numerous guns throughout his youth and adult life, including a .45 calibre pistol. [ 27 ] Mr. Foster testified he had no doubt that Mr. Mikituk had what appeared to be a .45 calibre pistol tucked into his pant waistband. Mr. Foster testified that he was familiar with this calibre and style of handgun that Mr. Mikituk had on his person because Mr. Foster also owned such a gun, and indeed that was the type of handgun he gave to Mr.

Coulter and Mr. Mikituk at his apartment – a .45 calibre pistol. However, Mr. Foster readily acknowledged that you can get a pellet gun that is a replica of a .45 calibre handgun and he could not rule out that was what Mr. Mikituk had. [ 28 ] Mr. Foster testified that he gained nothing for coming forward with this complaint several years later and that he received nothing for testifying or cooperating. He said he received no reduction in any sentence, no favour from any person and no one paid him any money to participate in these proceedings. Mr.

Foster said he is doing this to clean up his past “garbage,” to show he is done with his past life or people. In short, his evidence was that he had no ulterior motive to get Mr. Mikituk in trouble or to receive any benefit out of all of this. (

b) Evidence of Christopher Foster in cross-examination [ 29 ] Defence counsel started by establishing that Mr. Foster is now 51 years of age. He would have been about 45 at the time of the alleged offences. Defence counsel challenged Mr. Foster, describing him as a career criminal. Mr. Foster denied this description. He stated his addiction caused him to break the law to feed his habit, but despite this he said he has been married for a considerable length of time, had four children and had been gainfully employed for over 25 years.

[ 30 ] To support the defence contention that Mr. Foster is a career criminal, defence counsel took Mr. Foster through his extensive criminal record (Exhibit D-1), starting with convictions in 1989. The record is exhibited and I need not repeat it here. Suffice it to say Mr.

Foster has, by my count, some 17 convictions for property offences (break and enter, theft, possession of stolen goods, etc.), one conviction for robbery, a careless storage of firearms conviction, one weapons trafficking conviction, a possession of firearms conviction, three drug convictions, three failures to appear or comply and one obstruction conviction. His record starts in 1989 and appears to run to August 2020. When confronted with his record, Mr. Foster candidly admitted it, offering no excuses other than he was an addict and his record was because of that.

I took this to mean he was not robbing and stealing to make a living; he was doing this to support his addiction disorder. [ 31 ] Defence counsel then took him through the day in question, so to speak. Mr. Foster readily admitted he was an intravenous cocaine and morphine user at that time. He was asked about his trial testimony use of the words “pass out” during his evidence in chief. Mr. Foster said that was an unfortunate use of the words. He clarified he did not mean he was like a passed out drunk. He meant tired, but emphasized he was not “out of it”; just tired. [ 32 ] Mr.

Foster was asked about the event in the motel room, and he confirmed he had never met the male who came out of the bathroom before. [ 33 ] Defence counsel crossed-examined Mr. Foster about the amount of drug debt. Mr. Foster stated that at other times, and with other people unrelated to this trial, he had owed as much as $80,000 in drug debts.

He put the drug debt in question at between $8,000 to $10,000, essentially an approximate amount, explaining that since this was another drug dealer’s debt put on him: he had no idea of the real amount. [ 34 ] Defence counsel then went through three police statements given by Mr. Foster in the course of the investigation of these offences. [ 35 ] Mr. Foster was asked by the police on February 15, 2016, after the alleged event, to come down to the Swift Current RCMP detachment to be interviewed. A transcript of this was produced and selectively gone through by defence counsel with the witness.

I need not catalogue in detail each query; suffice it to say Mr. Foster was asked repeatedly during cross-examination to compare what he told the police with what he said in court. It was plain he told the police a different version – not providing any complaint against either Mr. Coulter or as it turned out Mr. Mikituk. Defence counsel was easily able to elicit Mr. Foster’s agreement that if he was now offering his court testimony as true, then he had lied to the police. The corollary being the witness had lied to the police or was now being dishonest in court.

In short, the two versions, the-out-of court statement and his trial testimony, did not jive. [ 36 ] Mr. Foster did not attempt to deny the obviousness of this, but rather again explained that he did not want to cooperate with the police because he did not wish their involvement because he was an addict, a drug dealer and he did not want to cause trouble for himself or his family. [ 37 ] A second statement given January 22, 2017 was produced for cross-examination. [ 38 ] Mr.

Foster did not distinctly recall the circumstances surrounding the taking of this second statement but believed he possibly had been arrested for something at the time. It appears from the passages put to the witness that Mr. Foster was being more cooperative and this out-of-court statement appeared to be more in line with his court testimony. This statement revealed that at one point on the trip to Brooks because Mr. Foster’s spouse was constantly calling him on his cell phone (which was in the possession of either Mr. Coulter or the passenger) he was eventually allowed to talk to her.

This had not been mentioned in direct examination. [ 39 ] Mr. Foster advised defence counsel that he had wanted the police to lay charges by December 2017, but had no idea why they did not. [ 40 ] The third statement was taken on March 17, 2020. Mr. Foster was in remand at that time. The statement shows that Mr. Foster finally had a name for the accused: Curtis Mikituk, based on a conversation with an inmate in the Drumheller prison. [ 41 ] Defence counsel challenged him on this, that this was jailhouse talk, but Mr.

Foster countered by saying he had no doubt that the accused was one of the two people that had handcuffed him and taken him away in the car. [ 42 ] Defence counsel then moved on to the preliminary inquiry held on July 26, 2021. The evidence given by Mr. Foster at the preliminary inquiry seems to be that the amount of drug debt could have been $7,000. Mr. Foster’s reply was that his knowledge of the amount he supposedly owed was approximate. [ 43 ] In the end, defence counsel laid out in cross-examination a sort of theory of progression regarding Mr.

Foster’s identification knowledge starting with the event, then the Drumheller jailhouse talk, and finally how it came to be that Mr. Foster and Mr. Mikituk were both prisoners in the Regina remand unit in 2020. Despite pressing Mr. Foster about this, the witness remained steadfast in his testimony as to how he came to figure out Mr. Mikituk’s name. Mr. Foster ended this by confirming the accused in court, now identified as Curtis Arjan Mikituk, was the fellow involved in the kidnapping. V. THE LAW AND APPLICATION OF THE LAW TO MR.

FOSTER’S EVIDENCE [ 44 ] Defence counsel has raised legal issues that for convenience I will look at here. (

a) Vetrovec warning [ 45 ] This I believe can be said in large measure to encapsulate the overarching theme of the defence. In this regard I turn to Sidney N. Lederman, Michelle K. Fuerst & Hamish C. Stewart, The Law of Evidence in Canada , 6th ed (Toronto: LexisNexis, 2022) where the learned authors write, at page 23:

§ 1.85 Many wrongful convictions have resulted from evidence given by witnesses whose credibility is inherently suspect. Our law permits the parties to call any witness with relevant evidence to give, no mater how disreputable, unsavoury or unreliable the witness may be. But the law does require that the trial judge give the jury a “ Vetrovec ” warning about the danger of acting upon such unconfirmed evidence. Although there is no magic formula of words for the caution, it should have the following four characteristics.:

(1) The evidence of certain witnesses is identified as requiring special scrutiny.

(2) The characteristics of the witness that bring his or her evidence into serious question are identified.

(3) The jury is cautioned that although it is entitled to act on the unconfirmed evidence of a witness, it is dangerous to do so.

(4) The jury is cautioned to look for other independent evidence which tends to confirm material parts of the evidence of the witness with respect to whom the warning has been given. [Footnotes omitted] [ 46 ] This caution often finds its application with so called jailhouse informants or co-accuseds resorting to what has been colloquially referred to as “the cut throat defence”. However, it does of course find its application with any witness, including a complainant. [ 47 ] I have set out Mr. Foster’s evidence in some detail but, for the sake of brevity, have resisted any attempt at a verbatim rendition.

Suffice it to say, as the trier of fact I have considered all of his evidence carefully, both in direct examination and in cross-examination. [ 48 ] I believe the Vetrovec warning is presented by defence counsel primarily because of Mr. Foster’s criminal record. I accept that the “lying” to the police during the February 15, 2016, 80-page statement can be seen as playing a role in the description of “unsavoury” and contextually can be added here. Additionally, Mr.

Foster’s admission he was at the material time and for a few years later a drug addict and a drug dealer also add to his disreputable character. [ 49 ] The Court acknowledges the duty to instruct myself with a Vetrovec warning as set out above. I also appreciate there is a danger in accepting the uncollaborated evidence of such a witness. [ 50 ] I believe it is safe to say if a Vetrovec warning is needed this does not mean the witness’s evidence must automatically be rejected. In my view that would be the wrong application of the warning.

Rather, once a witness’s characteristics or background warrant this heightened scrutiny by the trier of fact (and more so if the evidence is unconfirmed), the trier of fact should then assess the witness’s evidence in light of this so-called danger. It does not mean the evidence is tossed away once the warning flag is waved; it means the trier of fact must tread extra carefully. [ 51 ] Mr. Foster’s lengthy criminal record, although for the most part property offences (explained by Mr.

Foster as being the product of his addiction), his initial unwillingness to tell the police what he testified to, and having been a drug dealer, does necessitate a Vetrovec warning. I will say that this is somewhat on the borderline because he provides a reasonable explanation for his bad behaviour in the past ( i.e. drug addiction), but out of an abundance of caution I will apply a Vetrovec warning. [ 52 ] Accordingly, I identify Mr. Foster’s evidence as requiring special scrutiny. The Court further acknowledges that the aforesaid characteristics of Mr. Foster can put his evidence into “serious question”.

I have instructed myself that while I am entitled to act on the unconfirmed evidence of Mr. Foster; it is dangerous to do so. I am to look for “other independent evidence” to confirm Mr. Foster’s testimony. [ 53 ] I will be brief here because I have set out the evidence in detail with some comments above. I find that despite applying the Vetrovec warning in all its fullness, nevertheless I will not cast Mr. Foster’s evidence aside simply because it falls under the Vetrovec rubric. I accept his explanation as to why he lied to the police initially.

It makes sense and he gave his testimony in a straightforward manner, accepting criticism in cross-examination, but nevertheless not wavering. He did not want police involvement at that time for understandable reasons that have been set out. I appreciate his lengthy record, but note “any witness with relevant evidence to give, no matter how disreputable, unsavoury or unreliable” can be called to give evidence. I note he is not a jailhouse informant looking for favour or a disloyal partner in crime looking for a way out of a jam – he is a complainant who I am satisfied has no reason to lie in court.

No benefit arises. No reward has been promised or given. I simply see no motivation for trying to frame Mr. Mikituk. [ 54 ] I reiterate that I do not believe the law is that once a Vetrovec warning is applied then the evidence must be ignored. If that was the case, a judge would either hold a voir dire to shelter the jury from such evidence or ask the jury to completely disregard such evidence. Rather, with the Vetrovec warning in place, the trier of fact is left to assess the evidence. [ 55 ] The Court also acknowledges that Mr. Foster’s evidence stands alone.

There is no other confirming evidence and that is a consideration. However, again the lack of independent confirmation does not in itself disqualify the evidence. The trier of fact must take the lack of corroboration into consideration in determining what to do with the witness’s testimony. I have done this and find that the lack of independent confirmation does not rule out the evidence. The strength of Mr. Foster’s testimony, as I have discussed above and will below, in my opinion makes up for this. Nor do I find that the absence of testimony from other persons identified by Mr.

Foster in his testimony (police officers, his spouse, people in the motel room) cannot mechanically result in disqualification of his evidence. As Crown counsel pointed out, there can be valid reasons why a party does not call witnesses in a trial, and a court should not speculate as to their absence or possible value as witnesses. [ 56 ] Therefore, in

summary, I have applied the Vetrovec warning but have decided that does not disqualify Mr. Foster’s evidence. (

b) Credibility of Mr. Foster

[57] Defence counsel argues that Mr. Foster lacks credibility and therefore his evidence should not be accepted or isso affected with credibility issues that such evidence should raise a reasonable doubt as to the proof of the essential elements of the tworemaining counts in the Indictment. I understand this is based on the criminal record, his drug life and drug dealing, lying to the police,inconsistencies between his evidence at trial and that of the preliminary inquiry, and possible differences in his evidence at trial betweendirect and cross-examination.

I have touched upon this already, but for the purposes of thoroughness I will break this down again. i. The criminal record [58] This approach to impeaching credibility has gained some notoriety. The authors in The Law of Evidence inCanada canvass this area, with the view it is “A rather odd method of impeaching the credibility of a witness …” (§16.208). The authorsnote, at §16.213: §16.213 There continues to remain uncertainty in Canada as to the treatment of prior convictions for offences that cannot becharacterized as ones of dishonesty.

As pointed out by McFadyen J.A. in R. v Charland [R v Charland (1996), (ABCA), 110 CCC (3d) 300 (Alta CA)]: In the eight years since Corbett [R v Corbett, (SCC), [1988] 1 SCR 670] was decided, it has been the subject of a greatdeal of judicial and academic consideration. The debate continues regarding the probative value of prior convictions for offences, otherthan those directly related to honesty. … [T] here is little consistency in the decisions of the appellate courts regarding the probative value of prior convictions for offences similarto the charges before the Court.

What has emerged is a clear indication that each case must be decided on its own facts. [Footnotes omitted] [59] I agree with the authors and apply this authoritative writing here. The criminal record of Mr. Foster (Exhibit D-1) does not reveal convictions “directly relating to honesty” in my view. Certainly Mr. Foster has a long record that he testified wascaused by his addictions. For the most part he appears to have been convicted of property offences or drug charges. This was addressedunder the Vetrovec heading. I am not persuaded that I should disbelieve him because of his record. ii. His character [60] Mr.

Foster acknowledges quite candidly that he was a drug addict and a drug dealer for much of his adult life,but he has been clean and sober for a few years now. The Court looked at this under the Vetrovec heading already. In any event, I did notfind his evidence was affected by this criticism and see no dampening of his credibility. I find despite these concerns that his evidencewas believable. iii. Lying to the police [61] I have covered this above. The Court accepts Mr. Foster’s testimony that he initially lied to the police for thereasons I have set out above.

These make sense, perhaps misguided, but still under the circumstances believable. I find that while there isan expectation in society that citizens should be truthful to the police, nevertheless in the end I accept his reasons and do not find that thisultimately affects his credibility. iv. Previous inconsistencies with Mr. Foster’s testimony either at trial or the preliminary inquiry [62] I have set this out above. Any inconsistencies are minor, whether they appear between the direct and cross-examination of Mr. Foster during the trial or the preliminary inquiry.

Any differences in the amount of the drug debt are understandableand the explanation given by Mr. Foster acceptable. I do not find that these criticisms affect the believability or credibility of the witness. [63] I will for clarity’s sake end this credibility challenge by saying that throughout Mr. Foster’s testimony, both indirect and cross-examination, I found him to be a credible and believable witness. He was straightforward. He was understandable. Hedid not waiver in his evidence during cross-examination.

He certainly has had a rough and tumble life and not always conducted himselfproperly, but when it came to his trial evidence I have no difficulty accepting his evidence and find him quite credible. (

c) Reliability [64] Defence counsel quite correctly points out there is a big difference between credibility (a witness can trulybelieve something happened) and reliability. Reliability speaks to whether a court can rely on a witness’s evidence.

There are manyfactors that may raise a reasonable doubt over reliability: age (very young or very old witnesses); alcohol or drug consumption; thepassage of time; preconceived notions that taint a witness’s perception; environmental conditions such as lighting or weather; the speedat which something happens; distractions; and the list goes on. [65] Here defence counsel pivots and argues perhaps Mr. Foster believes all of this happened, but because of his druguse or the combination of drug use and fatigue, he is not a reliable witness. I have already discussed this above. Mr.

Foster candidlydescribes his drug usage and whether it affected him. He testified he could still function. He was not out of it. I have already addressedmy findings regarding credibility (see also paragraph 68). The Court accepts Mr. Foster’s testimony that he knew what was going onduring the event. I do not find that the passage of time affected his memory or recollection. He gave detailed evidence. It was logical andmade sense. There was no reason for him to fabricate his evidence on the witness stand. Mr. Foster has no axe to grind with the accused.He got nothing for his testimony.

I am satisfied I can accept the reliability of his evidence. (

d) The identification of the accused by Mr. Foster in court

[66] I again turn to the authors in The Law of Evidence in Canada who succinctly write, at §12.20: §12.20 A trial judge should caution a jury concerning the reliability of identification evidence and should inform the jury that an honestand convincing witness(es) may nonetheless be mistaken. Where the prosecution’s case depends entirely or largely on eyewitnessidentification evidence, the Ontario specimen jury charge informs the jurors that there have been miscarriages of justice and personshave been wrongly convicted because of mistaken eyewitness identification.

The specimen charge sets out the potential frailties of eyewitness identification. In R. v Gonsalves [R v Gonsalves (2008), (ON SC), 56 CR (6th) 379 (Ont Sup Ct)], a trialjudge catalogued the frailties of eyewitness identification where the witness was not previously acquainted with the accused. The juryinstruction containing a caution about the danger of eyewitness evidence and extensive instructions about the frailties of the eyewitnessidentification evidence may not survive appellate review.

The trial just must go further and instruct the jurors concerning the particularproblems of the dentification in the subject case and relate the frailties to the facts of the subject case. A trial judge sitting without a juryshould similarly instruct herself or himself on the frailties of eyewitness identification. [Footnotes omitted] (See also: §12.21 to 12.23) [67] This is not a case of docket identification by an identifying witness of an accused to whom the witness had noprior involvement with that arose out of a brief transaction and to whom the witness did not encounter again until court.

Here theevidence is that while Mr. Foster had never met Mr. Mikituk before the event on February 15, 2016, he did end up spending aconsiderable amount of time with the accused that day. They spent hours together driving from Swift Current to Brooks and return.Defence counsel cross-examined Mr. Foster on the heavy clothing Mr. Coulter and the passenger may have had on in the car for wintertravel, but that challenge had no effect on Mr. Foster’s recollection of the identity of the passenger. Next, Mr. Foster, Mr. Coulter and thepassenger spent about 45 minutes together milling around Mr.

Foster’s apartment and the apartment building outer area. Again, this wasample time for the witness to see the accused. [68] In terms of Mr. Foster’s state at that time, it is understood that he was coming down from his drug use andlooking for more drugs when all of this started. Additionally, the three of them on the way to Brooks did some drugs. It is acknowledgedthat the witness was tired. However, he did not waiver in his evidence that throughout all of this he was not out of it. He was nothallucinating and not passed out in a drunkard’s way. He was functioning. Mr.

Foster acknowledged that sometimes he became forgetfulwhile he was on drugs or on a combination of lack of sleep and drugs, but he repeatedly said this did not affect his ability to know thatMr. Mikituk was the fellow involved. I accept his testimony. [69] Therefore, I find that I have no reasonable doubt as to Mr. Foster’s ability to accurately recall Mr. Mikituk fromthat February 15, 2016 encounter and therefore subsequently identify the accused at trial. [70] Additionally, Mr.

Foster was able (and this was supported by his direct and cross-examination testimony) topiece together the passenger’s name; in other words, put a name to a face. This started in prison in Drumheller and then carried on withhis encounter with Mr. Mikituk in the Regina remand unit. He noticed Mr. Mikituk’s name on a jail attendance/inmate board and thenended up being on the same range with Mr. Mikituk. [71] This led to Mr. Mikituk and Mr. Foster talking about the event, at least about the Monte Carlo that Mr. Mikitukhad been involved in and towed away. At this point, Mr. Foster had already recognized that Mr.

Mikituk was the male involved alongwith Mr. Coulter, and Mr. Mikituk actually queried Mr. Foster as to whether he knew he had been the person involved with the MonteCarlo. [72] I am satisfied beyond a reasonable doubt that Mr. Foster correctly identified Mr. Mikituk in court as the maleinvolved with Mr. Coulter on February 15, 2016, the fellow with the so-called pistol in his pants and who was the unnamed T.S. memberwho travelled with Mr. Foster and Mr. Coulter to and from Brooks. VI. THE PISTOL – WHAT WAS IT? [73] Mr. Foster described what he believed was a real .45 calibre pistol on Mr. Mikituk.

There was no gun or firearmseized or entered into evidence and no firearms testing was done. The Court has only Mr. Foster’s evidence that it looked to him, as anexperienced gun owner, that Mr. Mikituk had a .45 calibre pistol on his person, although Mr. Foster readily admitted he did not know forsure. It could have been a pellet gun replica. I accept Mr. Foster’s testimony. He saw what appeared to be a pistol. However, theremaining two counts as set out in the Indictment have to be considered in this light.

Count 1, “a restricted firearm, to wit: a pistol”, andCount 5, “carry a concealed weapon, to wit: a pistol”, require distinct analysis. [74] I will start by finding beyond a reasonable doubt that Mr. Mikituk had concealed in his pant waist somethingthat was, as far as Mr. Foster was concerned, a real .45 calibre pistol, and that this was one of the reasons Mr. Foster went along withbeing handcuffed and placed in a car by Mr. Coulter and Mr.

Mikituk and driven to Brooks and back to Swift Current and ended upgiving over the guns and a car to these gentleman. [75] I will now go through these two counts since they require distinct analysis. (

a) Count 1: “did use a restricted firearm, to wit: a pistol” [76]

Section 2 of the Criminal Code defines “firearm” as follows: firearm means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causingserious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted

for use as a firearm; [ 77 ] “Pistol” is not a defined term under the Criminal Code . [ 78 ] I find that the Crown has not proven beyond a reasonable doubt that the object in Mr. Mikituk’s pants, and that at one point he bandied about, was a firearm as defined by the Criminal Code . (

b) Count 5: “did carry a concealed weapon, to wit: a pistol” [ 79 ] I find that the Crown has proven beyond a reasonable doubt that Mr. Foster was intimidated by the object he referred to as a .45 calibre pistol. I have already found that the Crown has not been able to prove that this was an actual firearm as defined by the Criminal Code . However, I am satisfied beyond a reasonable doubt that it was an imitation or replica of a pistol, something that the complainant was acquainted with. I accept his evidence in this regard.

It would therefore fall under the definition of “weapon” found in s. 2 of the Criminal Code reproduced as follows: weapon means any thing used, designed to be used or intended for use (

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

b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88 , 267 and 272 , any thing used, designed to be used or intended for use in binding or tying up a person against their will; [Emphasis added] [ 80 ] Therefore, I find that I am satisfied beyond a reasonable doubt a weapon as defined under the Criminal Code was carried by Mr. Mikituk and that weapon was concealed by his clothing. VII. DECISION [ 81 ] I found that Mr. Foster was both a credible and reliable witness and I accept his testimony.

I have also found that as far as Count 1 goes the Crown has not been able to prove the pistol was a firearm as defined under the Criminal Code , but the Crown has proven Mr. Mikituk carried a concealed weapon as defined by the Criminal Code during the events set out in the evidence. I will now go through each remaining count briefly as to the elements required to be proven by the Crown. (

a) Count 1: On or about February 15, 2016, at Swift Current, in the Province of Saskatchewan did use a restricted firearm, to wit: a pistol, in kidnapping Christopher Foster with intent to cause him to be confined against his will, contrary to s. 279(1.1) of the Criminal Code . [ 82 ] In order for the Crown to obtain a conviction under s. 279(1.1) of the Criminal Code , the prosecution must be able to prove a firearm was used in the commission of the alleged offence. The Crown has not been able to do this as set out above in my reasons. Accordingly, the Court must find Mr.

Mikituk not guilty of Count 1 of the Indictment. However, the Court must consider the included offence of kidnapping under s. 279(1) of the Criminal Code , which is reproduced as follows: Kidnapping 279

(1) Every person commits an offence who kidnaps a person with intent (

a) to cause the person to be confined or imprisoned against the person’s will; (

b) to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or (

c) to hold the person for ransom or to service against the person’s will. [ 83 ] The actus reus of this offence consists of abduction and asportation (moving the victim to a place) against the victim’s will. I need not repeat all of my findings here. I am satisfied beyond a reasonable doubt that Mr. Mikituk abducted Mr. Foster and he was part of the threat that caused Mr. Foster go with him in the red Honda to Brooks and back to Swift Current. This was against Mr. Foster’s will. It does not matter whether Mr. Foster verbalized opposition to being taken or protested.

It is clear from his testimony that all of this took place against his will. Therefore, I am satisfied that the Crown has proven this offence beyond a reasonable doubt and I find Mr. Mikituk guilty of the included offence of kidnapping under s. 279(1) of the Criminal Code . (

b) Count 5: On or about February 15, 2016, at Swift Current, in the Province of Saskatchewan did carry a concealed weapon, to wit: a pistol, contrary to s. 90 of the Criminal Code . [ 84 ] The essence of this offence is the concealment of the weapon. The external circumstances consist of the carriage and concealment. The Crown has proven beyond a reasonable doubt the elements of this offence. Mr. Mikituk was the person with the “weapon” as defined in the Criminal Code . This weapon was concealed in his clothing and it was carried by Mr. Mikituk. Therefore, I find Mr.

Mikituk guilty of this count. [ 85 ] To summarize, the Court finds Mr. Mikituk not guilty of the offence under s. 279(1.1) of the Criminal Code set out in Count 1, but guilty of the included offence of kidnapping contrary to s. 279(1) of the Criminal Code arising out of Count 1, guilty of Count 5, and not guilty of Counts 2, 3 and 4 of the Indictment.

[ 86 ] I will now hear from counsel as to sentencing. J. T.J. KEENE