HIS MAJESTY THE KING - v. –, 2023 SKKB 170

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 170 Date: 2023 08 17 Docket: CRM-SA-00392-2022 Judicial Centre: Saskatoon BETWEEN: HIS MAJESTY THE KING - and – GARY ALEXANDER IRON Counsel: John P. Knox for the Crown Meagan J. Bortis for the defence ___________________________________________________________________________ JUDGMENT HILDEBRANDT J. August 17, 2023 ___________________________________________________________________________ INTRODUCTION [ 1 ] In the 1994 movie, The Shawshank Redemption, the narrator asks, “I mean, seriously, how often do you really look at a man’s shoes?”.

It appears the answer is more often than the script writers envisioned, as this case, which focuses on the issue of identity, demonstrates. [ 2 ] Gary Alexander Iron [Mr. Iron], born August 15, 1983, is charged that, on May 9, 2022, at Saskatoon, Saskatchewan, he did: 1) Commit robbery against Gordon Burgess of Caswells The Store For Men, contrary to Section 344(1) (

b) of the Criminal Code [RSC 1985, c C-46 ]. [ 3 ] Mr. Iron’s trial commenced Thursday, May 25, 2023 and continued through Friday, May 26, 2023. During the course of the trial, a recognition voir dire was conducted regarding the past dealings the witness, Cst. Sean Bonynge [Cst. Bonynge], had had with Mr. Iron. On May 26, 2023, I delivered my written ruling on the voir dire , which has been marked as Exhibit C1. By that ruling, I determined that the evidence proffered by Cst. Bonynge on the voir dire , including his opinion that the individual depicted in the

photos and videos obtained in the course of the investigation is Mr. Iron, was admissible as evidence in the trial. As detailed in Exhibit C1, I concluded that the evidence was admissible whether or not a recognition voir dire had actually been required in the circumstances, with such views being briefly summarized at paras. 7 and 8 of Exhibit C1: [7] … I am not persuaded that this falls within the recognition evidence context and I question the necessity of the voir dire . In my view, the testimony provided by Cst. Bonynge on the voir dire , and how Mr. Iron’s name was ultimately recalled, are admissible.

It was the entire investigative process, and not solely the past encounters between Cst. Bonynge and Mr. Iron, that led to the conclusion it was Mr. Iron depicted in the photos and video footage. [8] However, even if I am wrong in that assessment, the process of review of recognition evidence leads me to the same conclusion regarding admissibility of the evidence provided on the voir dire . Regarding that process, I am mindful of the comments of the Saskatchewan Court of Appeal in R v John, 2021 SKCA 83 … [ 4 ] Following my ruling, the Crown closed its case, having called four witnesses: Gordon Burgess [Mr.

Burgess], Tim Kurka [Mr. Kurka], Bryce Cote [Mr. Cote], and Cst. Bonynge, all four of whom I found to be forthright and credible. Although there were slight differences in some non-essential details regarding the incidents which occurred in Caswells The Store For Men [Caswells], the testimony of both Mr. Burgess and Mr. Kurka was reliable. The testimony of Mr. Cote also confirmed major aspects of the events which occurred in Caswells, although I considered his recollections to be less accurate, and thus less reliable, than those of Mr. Burgess and Mr. Kurka. The testimony of Cst.

Bonynge was highly reliable. [ 5 ] No witnesses were called on behalf of the defence. Exhibits P2 through P20, consisting largely of videos and still photographs as well as a pair of shoes (Exhibit P19) and a puffer vest (Exhibit P5), were filed on behalf of the Crown. Exhibit D1, a copy of a page from Cst. Bonynge’s notebook, was filed by the defence. ELEMENTS OF THE OFFENCES OTHER THAN IDENTITY [ 6 ] The element of identity is the key issue in this case, as mentioned previously.

However, the onus is on the Crown to prove each of the elements of robbery beyond a reasonable doubt, recognizing the presumption of innocence with which Mr. Iron is cloaked. During her closing argument, defence counsel focussed on the identity issue and stated, “At the end of the day, this case is about identification.” Accordingly, no submissions were made by defence on elements other than identity. Nonetheless, it is incumbent on this court to consider whether all the elements have been established beyond a reasonable doubt. [ 7 ] The indictment is based on s. 344(1) (

b) of the Criminal Code, RSC 1985, c C-46 , which states: 344(1) Every person who commits robbery is guilty of an indictable offence and liable … (

b) in any other case, to imprisonment for life. [ 8 ] The offence of robbery is defined in s. 343 of the Criminal Code : 343 Every one commits robbery who (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person ; (

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof. [Emphasis added] [ 9 ] The date referenced in the indictment, May 9, 2022, has been established through both the testimony of all four of the Crown witnesses as well as the date and time stamp on the video recordings and still photos obtained by Cst. Bonynge in his investigation, specifically Exhibits P12, P13, P15, and P16, the first three of which indicate “05-09-2022 Mon” while the latter is marked “2022-05-09”.

Notably, he testified that he requested video footage for the pertinent time period. [ 10 ] Likewise, the location, Caswells, a men’s clothing store located in downtown Saskatoon, Saskatchewan, was also clearly established in the testimony of each of the Crown witnesses and was shown in the photos and video taken by Mr. Kurka, the latter of which is marked as Exhibit P9. Mr. Burgess has owned Caswells since 1996 and Mr. Kurka, as of May 9, 2022, had worked at Caswells for seven years. Mr. Cote had attended at Caswells on the day in question to speak with Mr. Kurka about having a custom suit fitted. Cst.

Bonynge was dispatched in response to a call that a robbery had occurred at Caswells and arrived at the scene approximately an hour after the call. [ 11 ] The offence of robbery, as described in s. 343 of the Criminal Code , includes the term “steal”, which is defined in s. 2 of the Criminal Code , as “to commit theft”.

Thus, further elements of the offence of robbery are that the accused intentionally took the property in question, which property was not owned by him and to which he had no right. [ 12 ] The shirt and puffer vest taken from Caswells were similar to those pictured in Exhibits P6 and P7, albeit the vest was darker than that shown in P7. Both Mr. Burgess and Mr. Kurka testified that the thief was directed to a dressing room and later came out wearing the ECOALF brand puffer vest and the geometric print shirt. These were clothing items which belonged to Caswells and were available for purchase in the store.

[ 13 ] The unchallenged evidence of Mr. Burgess, who had the most contact with the thief, was that the thief also tried to take jeans out of Mr. Burgess’ hands. Mr. Burgess said, “These aren’t yours—they’re for somebody else”. The thief then walked toward the front counter and Mr. Burgess walked to the till. The thief reached into his pocket and pulled out about 85 cents and a button, then wandered around in the store for a bit longer. When the thief again approached Mr. Burgess, the latter asked, “Are you ready to pay for those items now?” The thief responded, “The old lady got it”, to which Mr.

Burgess replied, “There’s no old lady here”, and informed the thief that he should pay. The thief mumbled some more and Mr. Burgess told the thief that if he was not paying for the clothing, he was to go back to the dressing room and take them off. The thief then lowered his sunglasses and looked at Mr. Burgess, who repeated the direction regarding returning to the dressing room if he was not going to pay for the goods. Following a “shuffle step” toward the dressing room, the thief turned around quickly and hit Mr.

Burgess twice before exiting the front door of Caswells and turning to the right. [ 14 ] The puffer vest had a value of $295 and the shirt was valued at $185, according to Mr. Burgess, such being significantly more than the 85 cents and button left behind by the thief. The video footage captured immediately after the robbery, as shown in Exhibits P12 through P18 and Exhibit P20, shows the thief wearing the puffer vest and shirt. The puffer vest, marked as Exhibit P5, was later seized following the arrest of Mr. Iron. Mr. Burgess confirmed that Exhibit P5 was “the vest that was taken from our store”. Mr.

Burgess also noted, when shown Exhibit P18, that the price tag was still on the vest in the photos and videos taken of the thief immediately following his exit of Caswells. [ 15 ] The evidence establishes that the thief stole the clothing items. He intentionally took property which belonged to Caswells, and to which he had no right. [ 16 ] By s. 343(

b) of the Criminal Code , the infliction of personal violence is another element of the offence of robbery: “Every one commits robbery who . . . steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person”. This element has been established on the evidence. As noted previously, Mr. Burgess testified that he was hit twice by the thief, noting that he “hit me with his right hand above my left eye” and then took “a swing at my forehead”. Mr. Burgess managed to dodge the third swing. Under cross-examination, Mr.

Burgess confirmed that once he had been struck by the thief, he fell “back and sidewards” onto the ground. He further noted that the thief was “leaning over me when he tried the third punch and missed”. [ 17 ] Mr. Kurka testified that he “heard something” so turned and saw that Mr. Burgess had been struck and was on his back on the floor. Mr. Kurka saw the thief strike Mr. Burgess “again on the right eye”. Mr. Kurka also took the photos which show Mr. Burgess’ injuries, which have been marked as Exhibits P3 and P4. [ 18 ] Mr.

Cote also testified that he “heard the scuffle”, adding “all’s I saw was him hitting [Mr. Burgess]”. [ 19 ] The evidence is uncontroverted that, during the course of stealing the puffer vest and shirt from Caswells, the thief used personal violence against Mr. Burgess, striking him twice, causing him to fall to the floor, and attempting to strike him a third time before departing the store with the stolen items. [ 20 ] The final element, identity, will be discussed further below.

However, it is apparent that the Crown has established all other elements of the offence of robbery, as alleged in the indictment, beyond a reasonable doubt. I turn now to a consideration of whether the final element has also been proven by the Crown to that same standard. THE ELEMENT OF IDENTITY [ 21 ] With respect to identification, there are several sources of confirmation that it was indeed Mr. Iron who committed the robbery at Caswells. These include the testimony of the three eyewitnesses, Mr. Burgess, Mr. Kurka, and Mr. Cote; the conclusions of Cst.

Bonynge following his investigation, including, among other things, his opinion regarding the identity of the individual in the photos and video footage taken at the pertinent time; and this court’s review of the photos and video footage having simultaneous opportunity to observe the accused. Three Civilian Eyewitnesses [ 22 ] In reviewing the evidence concerning the element of identity, I am mindful of, and have instructed myself regarding, the frailties of eyewitness testimony and the need to assess its reliability. I am also very cognizant of the presumption of innocence in relation to Mr.

Iron and the onus on the Crown to prove each element of an offence beyond a reasonable doubt. These principles were underscored in R v Bigsky, 2006 SKCA 145 , 217 CCC (3d) 441 , on which both Crown and defence counsel relied, at paras. 41-43: [41] In the judge-alone cases, when a court of appeal will intervene depends on a variety of factors: (

i) whether the trial judge can be taken to have instructed himself or herself regarding the frailties of eyewitness testimony and the need to test its reliability; (ii) the extent to which the trial judge has reviewed the evidence with such an instruction in mind; (iii) the extent to which proof of the Crown’s case depends on the eyewitness’s testimony or, in other words, the presence or absence of other evidence that can be considered in determining whether a court of appeal should intervene; (iv) the nature of the eyewitness observation including such matters as whether the eyewitness had previously known the accused and the length and quality of the observation; and (

v) whether there is other evidence which may tend to make the evidence unreliable, i.e., the witness's evidence has been strengthened by inappropriate police or other procedures between the time of the eyewitness observation and the time of testimony. [42] In those judge-alone cases where a conviction based on eyewitness testimony has been upheld, the court of appeal found that the trial judge has instructed himself or herself properly on the appropriate standard of proof and the frailties of eyewitness testimony and applied those standards in the analysis; the eyewitness has

either known the accused; or the evidence formed a part only of evidence of guilt; and there has been no suggestion that the eyewitnessidentification has been contaminated or weakened by some sighting after the incident.

It is also relevant, in the appellate context,whether the accused testified. [43] Where courts of appeal have found error, the reasons have been insufficient, the eyewitness identification rests on a “fleetingglance” or some improper procedure took place after the incident which may have inappropriately strengthened the witness’s testimony. [23] I am also mindful of the decision in R v MacLellan, 2017 NSSC 307 [MacLellan], more recently referenced bythe Saskatchewan Court of Appeal in R v Kytwayhat, 2021 SKCA 67. MacLellan noted the challenges associated with cross-racialidentification.

In the case at hand, some, if not all, of the eyewitnesses are Caucasian and Mr. Iron, as emphasized by defence counsel inher various cross-examinations of the witnesses, is Aboriginal. One of the factors quoted at para. 37 of the MacLellan decision, from thecase of R v Powell (2007), (ON SC), 215 CCC (3d) 274 (Ont Sup Ct), is other reliable circumstantial evidence. TheMacLellan court noted that: [13]…The existence of such evidence “can go a long way to minimizing the dangers inherent in eyewitness identification.” [24] As will be discussed more fully in the context of the consideration of Cst.

Bonynge’s investigation andevidence, such circumstantial evidence is present in this case. Nonetheless, we have the testimony of the three civilian witnesses, all ofwhom identified Mr. Iron as the thief in Caswells who struck and injured Mr. Burgess. [25] Mr. Burgess had three direct interactions with the thief in Caswells, initially interacting with him when hesought to take jeans out of Mr. Burgess’ hands, although Mr. Burgess had earlier observed the individual in the store. Undercross-examination, Mr.

Burgess confirmed that each of his direct interactions with the thief were certainly more than a few seconds andthat Mr. Burgess has a practice of, when dealing with clients, “also observing what is happening in the store”. Mr. Burgess alsoconfirmed in cross-examination that the total amount of time the thief was in Caswells on May 9, 2022 was “between 15-20 minutes”,providing considerable time for observation, apart from when the thief was in the change room. [26] Later during the robbery, when Mr.

Burgess inquired whether the thief was ready to pay for the clothing items,the two had a brief conversation, during which the thief lowered his sunglasses to his nose and looked directly at Mr. Burgess.Following that interaction, when the thief struck Mr. Burgess after Mr. Burgess had suggested that he should return to the dressing roomand remove the clothing items if he was not intending to pay for them, Mr. Burgess had further opportunity to observe the thief, as Mr.Burgess testified that the thief was “leaning over me when he tried the third punch and missed”. [27] With these opportunities for observation, Mr.

Burgess confirmed that the thief was present in the courtroom,positively identifying Mr. Iron, and noting, “he has obviously shaved his head and put on a little weight”. When asked how Mr. Burgessknew Mr. Iron was the same person as the thief in Caswells, Mr. Burgess responded, “I can tell from his facial structure”. [28] The second witness, Mr. Kurka, testified that he had three interactions with the thief. When he first entered thestore, Mr. Kurka saw him and welcomed him. Mr.

Kurka then watched the thief “throughout the store several times”, also discreetlytaking a video, prior to the second interaction, when Mr. Kurka directed the thief to the change room. The third interaction was when thethief was striking Mr. Burgess. Mr. Kurka, on cross-examination, confirmed that he had seen the second blow the thief administered toMr. Burgess, albeit not the first. Mr. Kurka testified that he said to the thief, “Hey, what are you doing?”, to which the thief respondedby swearing. Mr. Kurka’s estimation of the time the thief was in Caswells was “probably about 20-25 minutes”. [29] Mr.

Kurka, when asked if he recognized the thief in the courtroom, indicated Mr. Iron, noting that he was “a lotheavier and had quite a hair cut”. Mr. Kurka said he was “99% confident” that Mr. Iron was the person in Caswells because of “the facialappearance”, as well as the mannerisms and demeanour of Mr. Iron. [30] Mr. Cote was a customer in Caswells at the time of the robbery. He had not testified at the preliminary hearingand his testimony at trial was that he and the thief were “kinda walking beside each other by the shirt stand” for “about five minutes”.Mr. Cote then went to talk with Mr.

Kurka about a custom suit and the thief went to the change room. Later, Mr. Cote said he and Mr.Kurka heard a scuffle, dropped the suit jackets on the racks, and walked up toward the front of the store. Mr. Burgess was on the groundand Mr. Kurka attended to Mr. Burgess, after Mr. Burgess was hit by the thief. Mr. Cote said he observed the thief holding the door shutfrom the outside, after he had exited the store. He “stood there and then fled”. Mr. Cote was about two feet away from the thief andobserved him for “like 5 seconds, not even”. Mr.

Cote said he believed that the thief’s sunglasses and hat had fallen off and he was “kindof sweating”. Mr. Cote identified Mr. Iron in the courtroom as the thief he had seen at Caswells on May 9, 2022, saying, “By seeing hisface, I can pretty easily tell”. [31] As noted previously, I consider Mr. Cote’s testimony to be slightly less reliable than that of either Mr. Burgessor Mr. Kurka, in part because neither of those witnesses gave any indication that the thief’s hat and sunglasses had fallen off when hewas exiting the store. However, such may have occurred as, at that juncture, Mr. Kurka was attending to Mr.

Burgess’ injuries. In anyevent, the hat and sunglasses were back on the thief when he appeared on the video surveillance. A further inconsistency relates to Mr.Cote’s recollection that Mr. Burgess had attempted to recover the clothing from the thief. In this regard, I accept the testimony of Mr.Burgess that he did not physically attempt to retrieve the vest and shirt but merely directed the thief to either pay for the goods or returnto the dressing room and take them off, such being consistent with Mr. Burgess’ practice regarding would-be shoplifters in Caswells overthe years. It may be that Mr.

Cote is superimposing a recollection of the thief attempting to tussle jeans from Mr. Burgess’ hands earlier. [32] In the circumstances, I am not relying on Mr. Cote’s identification of Mr. Iron. However, both Mr. Burgess andMr. Kurka referenced Mr. Iron’s “facial structure” or “facial appearance” and were able to clarify that Mr. Iron had cut his hair andgained some weight since the robbery on May 9, 2022. Given Mr. Iron’s distinct chin and jaw line, which will be considered further inthis decision, I accept their identification of Mr. Iron as the perpetrator.

[33] Although I have assessed Mr. Burgess and Mr. Kurka as honest and fair witnesses, who provided reliabletestimony, I am also mindful of the frailties of in dock eyewitness identification, as was noted at para. 61 of the dissent in R v Reitsma(1997), (BC CA), 97 BCAC 303 (BCCA), and ultimately affirmed by the Supreme Court of Canada at (SCC), [1998] 1 SCR 769. There is, however, considerable other evidence which further supports that Mr.

Iron is indeed theindividual who committed the offence. [34] In this regard, as in MacLellan, the in dock identification of the accused is considered in the totality of thecircumstantial facts. It is in light of such evidence, taken as a whole, that I find myself in the same position as the trial judge inMacLellan.

At para. 45 of the MacLellan decision, the court noted: . . . it was the totality of these circumstantial facts from which the learned trial judge drew what she considered to be the only reasonableinference available to her: the identify of the accused as the perpetrator of the sexual assault. [35] Many of these circumstantial facts arise through the investigative work of Cst. Bonynge, which will now beconsidered. Investigation by Cst. Bonynge [36] As mentioned earlier, a recognition voir dire was conducted mid-trial. However, even apart from the evidenceprovided by Cst.

Bonynge on the voir dire, his testimony on the trial proper clearly points to Mr. Iron as the offender in this case. [37] All three civilian witnesses described the thief as wearing sunglasses and a black ball cap, along with the stolen shirt and puffer vest, when he left Caswells and turned right, heading north toward 22nd Street. Mr. Kurka also noted that the thief waswearing fingerless gloves and wearing shoes that “were a taupey-tan colour”. He was also “clutching what seemed to be a Kleenex boxin his jacket”. [38] Cst.

Bonynge was on the Saskatoon Police Service [SPS] bike patrol unit on May 9, 2022, working the day shift.He is an experienced officer, who was in his thirteenth year with the SPS at the time. He was dispatched to respond to the call regardingthe robbery at Caswells. He arrived within an hour of the robbery and spoke to the three witnesses, Mr. Burgess, Mr. Kurka, and Mr. Cote. Learning that the thief had exited Caswells and moved northbound, Cst. Bonynge “went out and followed that route” north on 2nd Avenue, then turning into an alley. He was looking “to see if there were any video cameras”.

He observed cameras, including some onthe exterior of the Drinkle building, and returned the following day, May 10, 2022, to request the video footage for the pertinent timeperiod. [39] Cst. Bonynge obtained videos and still photos from the manager of the Drinkle building, photographing themfrom her phone on his police issue phone. Exhibits P12 through P18 and Exhibit P20 are the images he obtained, showing various viewsof the thief who had left Caswells, wearing the stolen puffer jacket and stolen shirt, as well as a black hat, sunglasses, and red fingerlessgloves, and clutching a box.

There can be no doubt that the individual in the photos and videos is the one who committed the robbery atCaswells. [40] Exhibit P20 clearly shows the shoes the thief was wearing. These shoes are also visible in Exhibit P9, the videotaken by Mr. Kurka while the thief was in Caswells. Cst. Bonynge testified that he found the shoes “to be very distinctive”.Cst. Bonynge also astutely noted that, from his observations working in the downtown area of Saskatoon for numerous years, people donot often change their shoes, particularly if they have found a pair that fits well. Thus, armed with the images of the shoes, Cst.

Bonyngeworked his subsequent bike patrol shift “out looking for those shoes”. [41] Under cross-examination, Cst. Bonynge confirmed that he was “distinctly looking for those shoes because theyare very unique”. They were beige and had two white stripes. Cst. Bonynge further explained that “jackets and pants can easily getchanged, but it is harder to find shoes that fit.” For this reason, shoes “rarely get changed” and Cst. Bonynge believed finding the shoeswas “the best chance” he had at locating the individual responsible for the robbery at Caswells. [42] On May 11, 2022, as Cst.

Bonynge reached the intersection of 1st Avenue and 23rd Street in Saskatoon, helooked toward where the Saskatoon Tribal Council [STC] building was located at that time. The STC, he testified, offered help to peoplewho do not have places to stay. As he looked toward the STC, Cst. Bonynge spotted a “male wearing those shoes” and wearing the samepuffer jacket that had been stolen from Caswells. The “male had the same hairstyle” as Cst. Bonynge had seen in the images provided bythe staff members. [43] When Cst. Bonynge approached the male, he identified himself as Gary Iron. Cst. Bonynge called for assistanceand Mr.

Iron was placed under arrest, read his rights and warnings, and transported to the detention cells. The puffer jacket he waswearing was seized. It was marked as Exhibit P5 at trial, which both Mr. Burgess and Mr. Kurka confirmed was the one taken fromCaswells. The shoes Mr. Iron was wearing were also seized and marked as Exhibit P11 at trial, with Exhibit P19 being a photo of them. [44] Cst. Bonynge testified that he was confident that the man arrested, Mr. Iron, was the one who had committed therobbery two days prior. While defence counsel suggested, in her cross-examination of Cst.

Bonynge, that thrift or used clothing storesexist in Saskatoon, such is not sufficient to dislodge the only reasonable inference in the circumstances, namely that Mr. Iron, wearingthe shoes and puffer jacket in question, was the individual who struck Mr. Burgess and fled Caswells with the stolen items on May 9,2022. [45] Defence counsel also highlighted that neither the shirt the thief left behind in the change room at Caswells northe coins and button he left on the counter had been analyzed for DNA evidence.

Indeed, the coins and button were not even seized.Defence counsel thus suggested that the investigation had been only “cursory”. However, Cst. Bonynge, under cross-examination,explained that, although coins can possibly have a fingerprint, they can also be passed readily and thus their relevance was limited.Further, Cst. Bonynge noted that since the COVID-19 pandemic, non-emergent submissions to DNA labs were not being entertained,

given the backlog of more serious offences. Although this robbery included an assault, it was, for example, not a murder case. Cst.Bonynge therefore “made a judgment call” and did not submit items for DNA testing given the likelihood of little, if any, evidentiaryvalue in the results. Instead, he focussed on locating the individual with the shoes and clothing in question. [46] Given Cst.

Bonynge’s perceptive and thorough investigation, in following the footwear, I am satisfied,recognizing the test discussed by the Supreme Court of Canada in R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, that thecircumstantial evidence in this case is very strong and leads to the inescapable conclusion that Mr. Iron committed the robbery atCaswells on May 9, 2022. Cst.

Bonynge’s opinion on identity [47] In my view, even without the evidence admitted through the recognition voir dire, conducted in accordance withthe process outlined in R v John, 2021 SKCA 83 at para 22, 405 CCC (3d) 184 [John], the Crown has proven the element of identitybeyond a reasonable doubt. Thus, even if I am incorrect in my ruling on the voir dire, marked as Exhibit C1, in which Cst. Bonynge’sopinion that the individual in the still photos and videos in evidence is Mr.

Iron was determined to be admissible, there is sufficientevidence to establish the element of identity in this case. [48] However, as is detailed more fully in my ruling, Cst. Bonynge testified on the voir dire that he recognized theperson on the video footage “but couldn’t recall the name Gary Iron”. Cst. Bonynge knew he had, during his policing career, had aprevious dealing with the person depicted. On May 11, 2022, when Cst. Bonynge located the male wearing the shoes he had observed inthe video footage, along with the jacket, he made his way over to the man and began speaking to him, asking his name.

The manidentified himself as Gary Iron and, as noted at para. 6 of Exhibit C1: [6] It was at this juncture that things “crystallized”, as Crown counsel put it, and Cst. Bonynge knew the name of the individual he hadpreviously recognized in the footage, but whose name he could not recall when he first viewed the photos and video clips. As Cst.Bonynge testified, “when he [being Mr. Iron] said his name . . . that took me back to my first dealing” with him in September of 2014. [49] Cst. Bonynge then described the circumstances of a previous arrest of Mr.

Iron and noted that, in the ensuingyears, while on patrol in the downtown area, Cst. Bonynge encountered Mr. Iron on a few occasions and the two would acknowledgeone another. Thus, Cst. Bonynge’s opinion that Mr. Iron is the individual shown in the photos and videos exhibited at P12 through P18,is reliable and highly probative, as is Cst. Bonynge’s identification of Mr. Iron in the courtroom.

Again, however, even if I am incorrectin my ruling on the voir dire, the element of identity has been established beyond a reasonable doubt through the eyewitness testimony,the strong circumstantial evidence garnered through Cst. Bonynge’s investigation, and my own observations of the exhibits and Mr. Ironin the courtroom.

The court’s review of photos and videos [50] In John, the Saskatchewan Court of Appeal noted, at para. 23: [23] The last of the three recognized forms of identification evidence is where the trier of fact is invited to make his or her ownidentification by comparing still photos or a video to the accused as he or she appears in court. In R v Nikolovski, (SCC), [1996] 3 SCR 1197 [Nikolovski], the Supreme Court recognized the legitimate use of video evidence by a trier of fact to identifyan accused.

The Supreme Court commented that video evidence can often present clear and convincing evidence of identification that atrier of fact can use as the sole basis for identifying the accused in the courtroom as the perpetrator of the crime. See also R v Hill, 2005NSCA 108, 200 CCC (3d) 218, and R v Delorme, 2017 SKCA 3. [51] In this case, independently of the opinion proffered by Cst. Bonynge through the voir dire process, I concludethat it is Mr. Iron depicted in the photos and videos filed as exhibits.

During the trial, these exhibits were viewed by me on a monitor onthe dais, the angle of which permitted me to readily compare the images with Mr. Iron’s facial features, as he was sitting directly in thesame sight line as the monitor. [52] Although defence counsel has suggested that the videos obtained from the Drinkle building surveillance camerasare not of good quality, I concur with Cst. Bonygne’s view that they cannot be described as “grainy” and, like Cst. Bonygne, I “have seensubstantially worse” videos.

The exhibits, and particularly the still shots filed as Exhibits P17 and P18, clearly show the chin and jawstructure of the individual who committed the robbery at Caswells and departed with the stolen clothing items. Mr. Iron has the sameunique dimpled chin and strong jaw line. I have therefore independently concluded that Mr. Iron is the individual shown in the photosand videos. [53] I also note that defence counsel was critical of the witnesses for their reference to Mr. Iron’s “facial structure”rather than addressing his chin and jaw specifically.

I consider an individual’s chin and jaw to be part of his facial structure and thereforecannot diminish the views of the witnesses for their terminology. Further, while Mr. Iron’s hairstyle changed between May 9, 2022 andtrial, as Cst. Bonynge noted in cross-examination, “[Mr. Iron’s] facial structure cannot change”. [54] On the issue of identification, given the observations of the eyewitnesses, the investigation by Cst.

Bonyngewhich resulted in strong circumstantial evidence yielding only one reasonable inference, and this court’s own observations, I am satisfiedthat the Crown has proven the element of identity beyond a reasonable doubt. This conclusion is only underscored by the recognitionevidence proffered by Cst. Bonynge. [55] With this final element having been established, the Crown has proven all the elements of the indictment beyonda reasonable doubt. CONCLUSION

[ 56 ] For the reasons discussed in the foregoing, and having considered the totality of the evidence, on the sole count of the indictment, I find Mr. Iron guilty. J. B.R. HILDEBRANDT