R. v. Cooper-Flaherty, 2020 NUCJ 34

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Cooper-Flaherty, 2020 NUCJ 34 Date: 20201009 Docket: 08-20-98 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Michael Cooper-Flaherty ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): E. Baasch Counsel (Accused): M.

Manocchio Location Heard: Iqaluit, Nunavut Date Heard: September 8, 15, and 25, 2020 Matters: Trial decision on charges for offences under Criminal Code of Canada, RSC 1985, c C-46, ss. 344(1) (b), 351(2) , and 145(2) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Contents I. INTRODUCTION .. 3 II. THE LAW ... 3 A. The Criminal Code charges . 3 i. Robbery . 3 ii. Wearing a face covering with intent to commit an indictable offence . 4 iii. Failure to attend court 4 B. The essential elements of each offence . 4 C. The presumption of innocence; proof beyond a reasonable doubt 4 D. In-court eyewitness evidence . 5 E. Circumstantial evidence . 6 F. Video-recorded surveillance evidence . 7 III. ISSUES .. 8 IV. THE CASE FOR THE CROWN .. 8 A. The investigating officer 8 B. The arresting officer 11 C. Quick Stop customer 11 D. Quick Stop manager 13 E. Quick Stop clerk . 15 V.

THE POSITIONS OF THE PARTIES .. 18 A. The Crown .. 19 B. The Defence . 19 VI. ANALYSIS .. 21 A. The police investigation .. 21 B. Counts one and two, robbery and masking . 22 i. The Quick Stop security videos and photographic enhancements . 23 ii. The black Canada Goose winter coat 23 iii. The black shoes . 24 vi. the black baseball style hat 25 v. The facial cross and teardrop tattoos . 25 vi. Height and stature . 30 vii. The blue bandana . 30 VII. DECISION .. 31

I. INTRODUCTION [ 1 ] This is a case where a tattoo tells much of the tale. [ 2 ] The accused, Michael Cooper-Flaherty, is charged with committing a robbery while concealing part of his face with a bandana and breach of a bail order. The incident happened in Iqaluit at the KFC Quick Stop on February 22, 2020. I conducted his trial on September 8, 15, and 25, 2020. The Crown called five witnesses: the investigator, the arresting constable, two Quick Stop employees, and an eyewitness.

The accused elected not to testify or to mount a defence. [ 3 ] At the end of the Crown’s case, on my own motion and after hearing from counsel, I directed a verdict of not guilty for lack of proof on the breach of bail charge. [ 4 ] I reserved my judgment on the robbery and masking charges until today, October 9, 2020. These are my reasons for decision. II. THE LAW [ 5 ] I will first say a few things about the law I must apply to my assessment of the trial evidence and my ultimate decision. A.

The Criminal Code charges [ 6 ] The accused is charged on the charging document—called the Information—with three Criminal Code [1] offences. I will deal with each charge in turn. i. Robbery [ 7 ] Count 1 alleges the accused committed indictable robbery. The Criminal Code says that there are several different ways a person can commit robbery. In this case, the Crown alleges that the accused stole from a local convenience store while armed with an offensive weapon, a knife. [2] ii.

Wearing a face covering with intent to commit an indictable offence [ 8 ] Count 2 alleges that the accused covered his face with the intention of committing the robbery. [3] In this case, the Crown alleges that the accused wore a blue bandana covering the lower half of his face during the robbery. iii. Failure to attend court [ 9 ] Count 3 had alleged that the accused breached his bail order on February 20, 2020 by failing to attend court as required by his bail conditions.

B. The essential elements of each offence [ 10 ] There are several essential elements, or necessary things, contained in each charge which the prosecutor must prove in a criminal case. [ 11 ] For example, to prove the robbery charge, the prosecutor must prove the following seven essential elements: 1) that the accused was the person, 2) who concealed his face and, 3) stole $1,680, 4) while armed with a knife, 5) from the KFC Quick Stop (Quick Stop), 6) in Iqaluit, 7) on February 22, 2020. C.

The presumption of innocence; proof beyond a reasonable doubt [ 12 ] In Canada, a person accused of a criminal offence is innocent unless, and until, the prosecutor has proven that he is guilty beyond a reasonable doubt. The prosecutor must prove each one of the essential elements or aspects of the charge beyond a reasonable doubt. [4] [ 13 ] Furthermore, the accused does not have to prove to me that he is innocent. The burden of proof, by which I mean the job of convincing me that the accused is guilty, is on and stays with the prosecutor throughout the trial.

If I am satisfied beyond a reasonable doubt that the accused is guilty after I have considered the evidence, only then can I find the accused guilty. If I am not satisfied beyond a reasonable doubt at the end of the trial, then the law says I must find the accused not guilty. [ 14 ] Throughout my reasons, whenever I say I am satisfied, I am saying that I am satisfied beyond a reasonable doubt. [ 15 ] The Crown’s case hinges, in part, upon in-court eyewitness testimony, as well as circumstantial and video recorded evidence. I now will say a few words about the law respecting these three areas. D.

In-court eyewitness evidence [ 16 ] In-court eyewitness evidence is inherently unreliable, and judges must be careful when they assess it. Even the most certain and honest witness can be mistaken when it comes to identifying an accused in court. I remind myself that mistaken in-court eyewitness identification may lead to the conviction of an innocent person. [ 17 ] Trial judges are required to remind themselves of the dangers that attach to in-court eyewitness identification, and to think carefully about the significant factors which affect identification.

I also remind myself that once I have done that, I must explicitly address those factors in my decision. [5] I must consider those factors carefully to test the reliability of the in-court eyewitness identification and testimony. [ 18 ] A judge’s analysis of in-court eyewitness identification evidence is a broad one which necessarily looks at a range of factors.

Here are some of the factors I must consider when I consider the reliability of the in-court eyewitness evidence in this case: • The witness’ opportunity to observe; • The length and quality of the witness’ observation; • The witness’ eyesight, and whether they are wearing eye-glasses or contact lenses; • The witness’ colour perception; • The state of the witness’ health; • Whether the witness had consumed any prescription medication or other drugs;

• The witness’ state of sobriety; • The reliability of the witness’ memory; • Whether the witness’ present memory is affected by any fear or stress induced by the incident; • Whether the witness is able to communicate their story; • Whether the witness knew the accused or saw the accused before the incident; • Light conditions, visibility, and weather; • The distance from the witness to the accused, and whether the witness’ line of sight was obstructed in any way; • The presence or absence of distinguishing features of the accused in the witness’ identification; • Whether there is other evidence which might tend to make the witness’ evidence unreliable; • Whether the evidence been contaminated or weakened by something that happened after the incident, such as some improper police procedure; and • Whether the police investigation confirmed the identification. [6] There may be other relevant factors depending upon the nature of the Crown’s case. [ 19 ] I must also weigh the evidence carefully because the robber concealed the lower part of his face with a bandana to thwart his identification.

E. Circumstantial evidence [ 20 ] I turn now to circumstantial evidence. Circumstantial, or indirect, evidence is any evidence apart from direct eyewitness evidence which establishes a material fact. Circumstantial evidence “…is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”. [7] The law here cautions trial judges to avoid jumping to conclusions. [ 21 ] What process, then, does the trial judge follow to draw any appropriate inference from the facts, or absence of facts, before him?

The Supreme Court of Canada clarified this area of the law in the 2016 decision R v Villaroman . [8] Speaking on behalf of a unanimous court, Cromwell J set out the test as follows: … in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence … an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits … to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences … The inferences that may be drawn … must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. [9] [ 22 ] I remind myself that I must not apply the proof beyond a reasonable doubt standard to each individual piece of circumstantial evidence.

I must consider all the relevant evidence taken together before I may draw any factual inferences from the circumstantial evidence. [10] This is an important consideration in this case as we shall see in a moment. F. Video-recorded surveillance evidence [ 23 ] Video-recorded surveillance evidence is potentially a powerful piece of evidence in the hands of the prosecution. Unaltered video- recorded images obtained from properly functioning equipment can be reliable sources of evidence. I can do no better than repeat what Cory J said on behalf of the majority in the Supreme Court of Canada case R v Nikolovski .

This form of evidence

… may indeed be a silent, trustworthy, unemotional, unbiased, and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused. [11] [ 24 ] Yet, trial judges must remember that even video-recorded images may vary in their usefulness and the weight which may be placed upon them.

This cautionary note was made by Cory J when he continued that juries should be told that they must … consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. [12] [ 25 ] So, too, must the trial judge be cautious in his use of this evidence. This factor shall form an important part of my analysis of the evidence in this case. III.

ISSUES [ 26 ] There is no doubt, and the Defence concedes, that a masked individual robbed a clerk at knifepoint at the KFC Quick Stop in Iqaluit on February 22, 2020. The only contested issue before me is whether the prosecution has established beyond a reasonable doubt that it was the accused who committed the robbery. I thank counsel for their helpful oral and written submissions. IV. THE CASE FOR THE CROWN [ 27 ] I will now outline briefly the key evidence given by each witness. A. The investigating officer [ 28 ] RCMP Cst.

Bruce Moore testified that he assumed responsibility for the investigation two days after the incident. Apart from providing an overview of the investigation, he brought to Court several investigative items which the prosecution tendered into evidence as exhibits. [ 29 ] Exhibit 1 is a computer disc containing security video footage from the Quick Stop. These videos depict the scene from four vantage points inside the store.

I shall refer to them as video one through four in the order that they appear in the exhibit. [ 30 ] The camera in video one was in the front of the store and was pointing towards the entrance. The camera shows the robber entering the store, moving back and forth twice, then leaving the store after a customer enters. The robber can be seen putting what appears to be $50 bills into his pocket. The robber can be seen wearing a black winter coat, black baseball style hat, khaki pants, black shoes, and a blue bandana. What appear to be crossed flags can be seen on his chest.

The still photograph enhancement confirms that the patch contains the Canada and Nunavut flags. However, the resolution is not high enough to permit the viewer to get a clear view of the exposed part of the robber’s face. [ 31 ] The camera in video two was located across the store and it shows the cash area and entrance which are seen towards the top right of the screen. The robber can be seen clearly but the resolution is not high enough to be able to identify the chest patch or the robber’s face.

Among other things, the video shows the robber tuck the knife into his waist area as he moves back from behind to in front of the counter.

[ 32 ] The camera in video three was located up and to the right of the cash, most of which can be seen. The top of the counter is not visible. The video shows the clerk leave the cash to go to the kitchen. The robber is seen going behind the cash with a knife in his right hand. The crossed Nunavut and Canada flags of the chest patch on the upper left chest are clearly visible and easily identifiable.

This video also shows the bottom part of the blue bandana and paper money being removed from the till and given by the manager to the robber. [ 33 ] The camera in video four was located at the back left of the store and it pointed toward the cash which is seen at the top right corner of the screen. The video shows the robber stride into the store and engage with the clerk, who goes back into the kitchen. The video shows the robber from behind and it clearly shows the manager standing at the kitchen entrance seemingly engaging with the robber. The manager is seen wearing glasses.

The robber returns in front of the cash, then leaves the store after the manager hands him something unidentifiable, with his head down. The video only shows the robber at this point in profile and while the blue bandana can be seen, the resolution is not high enough to get a clear look at the right side of the robber’s face. [ 34 ] Exhibit 1 also contains video footage of the accused being processed in the RCMP detachment cell block area as well as the police seizing some items of the accused’s clothing. The exhibit also contains a warned cautioned statement given by the accused to the investigating officer.

The statement was not entered into evidence by the prosecutor, and it is not before the Court. [ 35 ] Exhibit 2 contains the black winter Canada Goose coat with hand sewn crossed Nunavut and Canada flags on the upper left chest which the accused wore when he was arrested. [ 36 ] Exhibit 3 contains the black shoes worn by the accused when he was arrested. [ 37 ] Exhibit 4 contains the black baseball style hat worn by the accused when he was arrested. [ 38 ] Exhibit 5 contains photographs of the clothing seized from the accused as well as nine still photographs of the robber taken from the security video. [ 39 ] Exhibit 6 contains demonstrative comparison photographs prepared by the RCMP Forensic Video Analysis Unit.

The photographs depict the clothing seized from the accused as well as enhanced still photographs of the robber taken from the security videos. Cst. Moore stated he had asked to have the images of the robber’s face enhanced; however, the videos’ quality did not permit that enhancement to be done. [ 40 ] Exhibit 7 is a photograph of the accused taken by the police. It shows the accused’s face, neck, and tattoos. [ 41 ] Exhibit 8 is a certified copy of the accused’s release order dated January 16, 2020 which was in force on February 20, 2020. [ 42 ] Cst.

Moore obtained a cautioned, warned statement from the accused the voluntariness of which was conceded by Defence Counsel. He also highlighted the cross tattoo below and to the right side of the accused’s right eye as shown in Exhibit 7. [ 43 ] On September 25, I permitted the Crown at the request of the Defence to reopen its case to have Cst. Moore present two further exhibits. Exhibit 9 is an RCMP photograph of Leevity Paneak. Cst. Moore testified that Mr. Paneak is shown sporting a teardrop tattoo below his left eye. Cst. Moore said he did not know when the photograph was taken.

Exhibit 10 is an RCMP photograph of Mosesee Nakashook. Although the photograph does not show it, Cst. Moore testified that Mr. Nakashook sports a cross tattoo between his eyebrows. Cst. Moore could not say when this photograph was taken. [ 44 ] Cst. Moore also stated that he was advised by NorthMart’s loss prevention officer that the robber stole $1,680 from the Quick Stop in denominations of $50, $20, $10, and $5 bills.

[ 45 ] In cross examination, Cst. Moore agreed that the accused also sports a teardrop tattoo in the area below his left eye. He said he had never seen another person during his three years in Iqaluit with a facial tattoo or facial cross tattoo. Defence Counsel then cross examined Cst. Moore about the seized clothing and the photograph comparisons prepared by the Forensic Video Unit. Cst. Moore agreed with Defence Counsel that the accused was their only suspect during the investigation. B. The arresting officer [ 46 ] RCMP Cst. Jason Nikkel arrested the accused around 2:20 p.m. on February 24th.

He arrested the accused at Building 306 Apt. 10, which was not where the accused lived. At the time of the arrest, the accused was awake, dressed, and alone in one of the bedrooms. The accused is seen wearing the same clothing in the detachment cell block area in Exhibit 1. The constable could not recall whether the accused was wearing his shoes when he was arrested, but the accused had his shoes on when he left the bedroom upon arrest. [ 47 ] In cross examination, Cst. Nikkel confirmed that he had been instructed to arrest the accused on at least one outstanding arrest warrant.

He agreed that Building 306 Apt. 10 is well known to the police and that he personally has seen and arrested various people there. [ 48 ] Cst. Nikkel told me that he is about 5’11½”, about the same height as the accused. [ 49 ] Cst. Nikkel had little recollection of who or what may have been found at the apartment. It was clear to me that Cst. Nikkel found and arrested the accused as he had been directed with no further direction to seek out any evidence in plain view. This failure to brief Cst. Nikkel on the nature of the investigation squandered an opportunity for him to look for evidence in plain view. C.

Quick Stop customer [ 50 ] The prosecutor called a Quick Stop customer (“the customer”) as a witness. The customer is seen in the security videos entering the store while the robbery was in progress and while the robber and the manager are at the cash, just before the manager hands money over to the robber. [ 51 ] The customer was in the witness box for only a short time. He testified that about five minutes after he entered the store, he heard the robber say “money, money”. The customer saw the knife.

The clerk gave the robber the money, the robber ran out and the clerk said “I got robbed”. [13] The store clerk was a “young kid” who seemed nervous. [14] The clerk called his manager who showed up later. [ 52 ] The customer said the robber had his face covered from “the glasses down”, but he could not describe the covering. “You could see his eyes only”, he continued. [15] A bit later, he stated “The only thing I saw was his eyes, that’s it. He was all covered up, and the hood was on and everything”. [16] [ 53 ] The robber, he said, wore either a black or blue jacket.

Moments later, he said the jacket “could be green or black”. [17] The customer turned his head and saw the knife, and the robber ran out after he got the money. He watched the incident unfold for five minutes or so. [ 54 ] In cross examination, the customer denied that he was close to the robber. He said he was eight feet away from the robber by the pop cooler. He later said that he could not see the robber’s eyes because he, the customer, was at the pop cooler. Then he said the robber had his back to him. [ 55 ] The customer struck me as an uninterested witness.

I noted that he slumped sideways in the witness box and shrugged his shoulders and blew air between his lips frequently when he started to answer a question. He also impressed me as a remarkably unobservant and unreliable witness. The security videos reveal that among other things, the customer was a poor judge of time, distance, height, and colour.

[ 56 ] For example, the customer testified that the incident unfolded for about five minutes after he entered the store. The security videos show that the incident was over within approximately 24 seconds of his entering the store and his standing immediately beside the robber. [ 57 ] The customer also described the robber as being slightly shorter than he, but the video clearly shows that the robber was taller than the customer. [ 58 ] In direct examination, the customer twice said that he could only see the robber’s eyes. He was not asked, nor did he describe, the robber’s eyes.

In cross examination, he stated that he could not see the robber’s eyes because he, the customer, was eight feet away, and the robber was standing with his back to him. The security videos show that the customer stood beside and within a few feet of the robber. [ 59 ] The customer twice said the robber ran out of the store after he got the money.

However, videos one and four show the robber did not run out of the store. [ 60 ] The customer also could not remember the colour of the robber’s jacket, saying at different times that the jacket could have been black, blue, or green. [ 61 ] The customer said it was light outside during the robbery. Video two shows the entrance door, which has a window. It is dark outside, and one can see the headlights of a car pulling up outside the store moments before the customer enters. [ 62 ] This is a classic example of the weaknesses inherent in eyewitness testimony.

I did not find this evidence to be helpful, and I can place no weight on it except for one point. The customer said that he is 5’8”. I accept his evidence on that point. D. Quick Stop manager [ 63 ] The next Crown witness, the store manager (“the manager”), on the other hand, was an impressive, observant, and thoughtful witness. He paused often to ponder the question posed to him before answering. He described the incident clearly and in detail. His evidence is supported materially by what is shown on the security videos. His evidence was consistent throughout both direct and cross examination.

I found the manager to be an accurate and reliable witness. I believe he told me the truth to the best of his recollection. [ 64 ] The manager told me he was the store supervisor that evening. He testified that he was in the kitchen when the robber entered. The clerk was working the cash. At one point, the clerk went into the kitchen to tell the manager that “this guy out there has a piece”, meaning a weapon. [18] The manager told the clerk to stay in the kitchen before going out to the cash to deal with the situation. [ 65 ] The manager said that the robber wore ... khaki coloured pants … a black winter jacket.

I believe he was wearing a blue sweater underneath the winter jacket, and he had a blue bandana covering his mouth and nose, and he was wearing a hood. [19] [ 66 ] I note that the manager accurately described the clothing worn by the robber as corroborated by the Exhibit 1 videos and exhibit 5 photographs. [ 67 ] The robber told the manager “give me the money before the cops come”, and “give me the money before I get angry”. [20] The

manager did not approach him right away because he saw the knife. The manager replied to the robber saying he would help him, but only if he put the knife away. At this point, the robber put the knife in his waist belt with his hand still on the handle. The manager then approached the till. The manager tried to stall for about two seconds, but then a customer walked in. The manager did not want to give the robber the money, but he did as soon as the customer came in. The manager opened the cash, took out some of the money, and handed it over to the robber who then left.

He believed the robber stole “just a bit over two grand”. [21] [ 68 ] The robber, he continued, wore a black winter jacket with a blue sweater underneath, khaki pants, and a blue bandana around his face. (In cross examination, he added that the bandana covered the robber’s face from neck to nose tip.) [ 69 ] The manager testified that the robber had a cross tattoo below and near his right eye. The cross was made up of two single, black lines which intersected “not in the middle” but higher, and it resembled a cross of the “Christian faith”. [22] He did not recall seeing any other tattoos.

When the prosecutor showed him the photograph of the accused in Exhibit 7, he replied immediately “That’s the one I recognize” while pointing to the facial cross on the face of the accused. [23] [ 70 ] In cross examination, Defence Counsel questioned the manager about the location of the robber’s cross tattoo, and he agreed that he did not notice a facial teardrop tattoo. He said that he had looked right into the robber’s eyes when he handed over the money. This was when he had seen the cross tattoo.

The manager than stated that the cross tattoo was “very plain”. [ 71 ] At no time, he continued, has he discussed the specifics of the case with the clerk. The manager agreed that he felt stressed during the incident and that he that he had not noticed any badges or writing on the front of the robber’s coat. E. Quick Stop clerk [ 72 ] The eighteen-year-old clerk was the fifth witness called by the Crown.

He had not been given a chance by the prosecutor to review the statement he gave to police before he came to court. [ 73 ] The clerk was employed as a clerk at the Quick Stop and he was at the cash when the robber entered the store.

He testified about his interactions with the robber before he went into what he called the storage area to get the manager. [ 74 ] In direct examination, the clerk testified that the robber entered the store around seven in the “nighttime”. [24] The robber approached the cash and pulled out a knife telling him to give him all the cash. [25] He could not recall from where the robber had pulled the knife.

The clerk told the robber “I have to get the manager”, and he went into what he called the storage area to speak to the manager. [26] [ 75 ] At first, the clerk could not describe the robber, what he was wearing, or what the knife looked like. However, he later said the robber was wearing a green mask, not a hospital mask but the kind robbers wear. The mask went up to the tip of the robber’s nose. [ 76 ] The robber, he continued, had a small teardrop below his left eye. The clerk had seen the robber around Arctic Ventures in the past, but he did not know his name at the time.

In response to the leading question “And just from this tattoo you recognized this person”, he answered “yes”. [27] [ 77 ] The clerk also testified that he recognised the accused in Court as being the robber. He said the accused’s name is Michael. Defence Counsel reminded me at this point that the accused was the only other person in the room. A bit later, the clerk told me he now knows the accused’s name because he saw it on Facebook the next day. [ 78 ] The clerk said the customer was already in the store when the robber entered.

The next day, he said he went on Facebook where he read that the police had arrested Michael Cooper-Flaherty for the robbery. The clerk told me that he, the clerk, is 5’2 or 5’3” or 5’1” tall and that the robber was taller, “like maybe five four … around there”. [28]

[ 79 ] I was alerted to the frailties in the clerk’s recollection early in his direct examination when he said that the customer was already in the store when the robber entered. The security video clearly shows that the customer entered the store after the clerk had retreated to the kitchen area and the manager had replaced him at the cash. [ 80 ] There were further problems with the clerk’s testimony which became apparent in cross examination.

After much prodding by Defence Counsel, and after the clerk had reviewed his five page police statement, the clerk eventually agreed with Defence Counsel that he had not told the police immediately after the incident that the robber had sported a teardrop tattoo. [ 81 ] In fact, this is what the clerk had told the police in his statement: “He’s got a tattoo like [the manager] said, a cross”. [29] It turned out that a Cst.

Morin had taken audio statements from both the manager and the clerk while the two witnesses were standing right beside each other; and, plainly, the clerk had heard what the manager had told Cst. Morin. I must remind myself that the clerk’s statement to Cst.

Morin may well have been contaminated and compromised by this faulty investigative procedure. [ 82 ] The security videos reveal other flaws in the clerk’s memory. [ 83 ] For the first time in cross examination, the clerk said that the robber had tattoos on his fingers. [30] The security videos show that the robber wore gloves, and that his fingers were not visible during the robbery. [ 84 ] Defence Counsel asked the clerk how long he had seen the robber. He replied 3 to 4 minutes.

He then agreed with Defence Counsel to what was obvious to me from the security videos, that his entire interaction with the robber lasted a matter of seconds. [ 85 ] Again, this time in cross examination, the clerk testified to what he did after the manager gave the money to the robber. The following exchange between Defence Counsel and the clerk is instructive: Q. So you’re at the cash. He asks for money. You go in back. You go see Marshall. You stay there, Marshall comes, gives him the money. At what point do you come out from the storage area? A. After the robber left. Q. After the robber left? A. M-hm. Q.

Was he gone or was he leaving and you saw the back of his --- of his head? A. Leaving – leaving. Q. Leaving – leaving, and you tell the Judge that after that you went out and you checked like this on both sides to see which side he went? A. But gone. Q. Pardon? A. He was gone. Q. He was gone? A. Yeah. Q. But did you go outside? A. No, I just opened the door, check. Q. You opened the door? A. Just a little, yeah. Q. Like open, check, he’s gone? A. Gone.

Q. Right? Okay. Who locked the door? A. Marshall. [31] [ 86 ] As I followed this evidence, I understood the clerk to say that he could see the back of the robber as he was leaving, and he went to the entrance, opened the door a little and looked to see in which direction the robber fled. The clerk’s version of what he did is not supported by what was recorded on video two. [ 87 ] In video two, we see the manager go to the entrance and lock the door after the robber has left. The manager returns to the cash and then the clerk comes out and he stands behind the counter.

After about 25 seconds, the clerk heads towards the entrance apparently to let in a customer who we see appear at the door, but he stops suddenly and looks back at the customer, who is inside the store. The customer nods his head twice in the direction of the cash and the clerk goes back to the cash. The video continues for another 45 seconds with the clerk behind the counter. [ 88 ] The clerk later said that the manager became scared when told about the robber and that he, the manager, had run to the cash. This, too, is not supported by the security videos.

I have already noted that the camera over the cash shows the manager standing at the entrance to the kitchen engaging in discussion with the robber before he walks over to the cash. [ 89 ] In

summary, I found the clerk to be an honest but unreliable witness, and I can give little weight to his evidence, identification or otherwise. V. THE POSITIONS OF THE PARTIES [ 90 ] I will now outline briefly the positions advanced by the parties. A. The Crown [ 91 ] The prosecutor urged the Court to find the accused guilty. She correctly identified the identity of the robber as the only disputed issue in this case. She pointed to seven “circumstantial indications of identity” in “decreasing order of reliability”: 1. The security footage from the KFC Quickstop [sic] and stills taken therefrom. 2.

The clothing worn by Mr. Cooper-Flaherty at the time of his arrest. 3. The identification by the manager of the tattoo of the robber. 4. The description of the height, clothing, and general appearance, of the robber by the manager. 5. The identification by the manager of the tattoo in Mr. Cooper-Flaherty’s file photo. 6. The description of the height and some of the clothing of the robber by the customer. 7. The description of the appearance, tattoo, mask, and appearance of the robber by the clerk. [32] “These individual pieces, however,” she continued, “considered as a whole provide a clear link between Mr.

Cooper-Flaherty and the robbery. There is no other reasonable explanation for the identity of the robber in question”. [33] B. The Defence

[ 92 ] Defence Counsel admitted that a robbery happened at the KFC Quick Stop in Iqaluit on February 22, 2020. “At face value”, she continued, One may conclude that the Crown proved the essential elements of the robbery offence beyond a reasonable doubt.

However, after thorough cross-examination of the witnesses, the defence argues that there are too many questions that remain unanswered and too many errors made by the police officers in their investigation to come to this conclusion. [34] [ 93 ] Specifically, Defence Counsel argued that the police suffered from “tunnel vision” by not considering that someone other than the accused may have committed the robbery. [35] Further, despite the police officers not finding a bandana, beige [sic] coloured pants, gloves, a knife, or any money, there [sic] did not return to the process of looking for suspects.

They maintained their conclusion during the arrest of Mr.

Cooper-Flagherty [sic] and they didn’t think of investigating any further. [36] [ 94 ] Defence Counsel continued saying the customer did not identify the accused, and the clerk “was simply unreliable”. [37] She raised the possibility that the clerk’s description of the cross tattoo may have been contaminated, and that in cross examination “he didn’t seem to remember what he saw”. [38] As for the manager’s identification of the cross tattoo, she submitted: It seemed so precise for the police that it’s at this point that they use the tunnel vision and that they conclude, after meeting the witnesses and looking at the video footage, that the perpetrator was Mr.

Cooper-Flagherty [sic]. They never bothered to search, in their computer system, or ask other police officers at the RCMP detachment if other people in Nunavut had a cross tattoo under the right eye. Actually, the police officers testified to the fact that they have not seen anyone in the territory with a cross tattoo in [sic] their face, which is not totally accurate. The only person the police officers knew who had a cross-tattoo [sic] on their face was Mr. Cooper-Flagherty [sic]. However, other people in Nunavut have tattoos in [sic] their face. No photo lineups were shown to the witnesses.

None of the witnesses identified Mr. Cooper-Flagherty [sic] as being the perpetrator either (except [the clerk] who found out on Facebook the next day). [39] [ 95 ] In her oral submissions, Defence Counsel asserted that too much time had passed from the robbery to the accused’s arrest for me to be persuaded by the circumstantial evidence on identity. I should find the accused not guilty. VI. ANALYSIS [ 96 ] I now turn to my analysis of the evidence, and I shall deal with the charges of robbery and masking together as they are intimately intertwined.

This largely circumstantial case highlights the frailty of in-court eyewitness evidence, and the need for trial judges to scrutinise such evidence carefully. But first, I shall address Defence Counsel’s concerns about the potential impact on the case by police investigation. A. The police investigation [ 97 ] Clearly, the police did not conduct a perfect investigation. To use a Canadian Football League metaphor, the prosecution left points on the field.

Whether or not the investigation displayed tunnel vision, the investigation does appear to have stopped once the police felt they had reasonable and probable grounds to charge the accused. Reasonable and probable grounds, however, do not alone ensure a reasonable prospect of conviction. [40] [ 98 ] The police knew that the robber was masked, so they knew an eventual prosecution would by necessity depend heavily on circumstantial and frail eyewitness evidence. None of the three civilian witnesses noticed a teardrop tattoo near the robber’s left eye.

The accused has a teardrop tattoo in plain view below and under his left eye. Two of the witnesses could not even provide a reliable

description of the robber, or what he was wearing. [ 99 ] The security videos—and the forensic photograph enhancements—while helpful in many respects do not permit the viewer to see in detail the upper portion of the robber’s face. So, the security videos and still photographs do not tell us whether the robber had a facial cross or teardrop tattoo. [ 100 ] Height is another factor I must consider, but the prosecution did not enter any evidence that the police ever measured the accused’s height to compare with estimates given by the witnesses who were present. Remember, this is largely a circumstantial case.

The prosecutor did ask Cst. Nikkel to estimate the accused’s height, but Cst. Nikkel had little memory of the events surrounding the arrest, and I cannot rely on his memory and estimate. [ 101 ] Furthermore, the accused was not arrested at home. On arrest, the accused was not wearing, like the robber, a blue bandana, khaki pants, or gloves. Nor on arrest did the accused possess a knife or money. Perhaps those items were in plain view at Building 306, Apt. 10, where the accused was arrested, but no one briefed Cst.

Nikkel to be on the lookout for potential evidence. [ 102 ] Nor on the evidence does it appear that the police considered executing a search warrant at the home of the accused to look for these incriminating pieces of evidence. [ 103 ] All that said, the investigation and the prosecution are not on trial. This is not one of those cases where investigative tunnel vision has led to a prosecution without a reasonable prospect of conviction. I must decide whether the evidence provided by the police to the prosecutor, as led by the prosecutor in Court, persuades me beyond a reasonable doubt that the accused is guilty.

B. Counts one and two, robbery and masking [ 104 ] I note again that the prosecutor must prove each essential element—or legal aspect—of each offence beyond a reasonable doubt. And, whenever I say I am satisfied that the Crown has proven an element, I mean it has proven that part of its case beyond a reasonable doubt. [ 105 ] As I noted at the beginning, I have only one live issue to resolve: am I satisfied that the Crown has proven that the accused is the robber shown in the security videos in Exhibit 1? i.

The Quick Stop security videos and photographic enhancements [ 106 ] The store’s security videos and the still photographs derived from them play a critical role in my analysis, and I have watched and examined them many times. Along with the testimony of the three civilian witnesses, the videos and photographs help establish beyond a reasonable doubt that a robbery indeed took place at the Quick Stop on February 22, 2020. [ 107 ] Before I go on, I note that the Information alleges as a particular that the robber stole $1,680.

The manager told me that his supervisor told him that the robber stole “about two grand.” Cst. Moore told me that NorthMart’s loss prevention officer told him that the robber stole $1680. However, this evidence from both the manager and investigation officer is hearsay and not admissible for its truth. The prosecutor told me that the NorthMart loss prevention officer had been subpoenaed and was available to testify; however, she did not call him as a witness. [ 108 ] Defence Counsel did not contest this issue.

I am satisfied by the manager’s account that he gave the robber money from the cash and by what is seen on videos 1 and 4 that the robber stole money. This evidence is sufficient to establish that essential element of the offence.

[ 109 ] The videos and photographs also, and importantly, provide evidence which corroborates much of what the manager claims to have done and seen. And as we shall also see, the videos provide a link between what the robber wore and what the accused was wearing at the time of his arrest less than 48 hours later. However, the videos alone cannot be used to identify the accused as the robber. ii. The black Canada Goose winter coat [ 110 ] Early in her direct examination, the prosecutor asked the manager to describe what the robber wore.

The manager then gave an accurate description of the colours of various items of clothing. A bit later, the prosecutor asked him if there was anything distinctive about the robber’s clothing. The manager immediately said the robber had a cross tattoo under his right eye. Unfortunately, the prosecutor did not return to her question respecting the presence of any distinctive features of the clothing. I am not troubled by that gap in the evidence thanks to the security videos. [ 111 ] The robber is seen in the security videos wearing a black winter coat with a Canada Goose patch on its left sleeve.

The accused was arrested wearing a similar if not identical black Canada Goose winter coat. The robber’s coat has a patch on its upper left breast. The coat worn by the accused has an identical patch in the identical spot. This distinctive patch consists of crossed Nunavut and Canada flags. [ 112 ] I accept Cst.

Moore’s evidence that the distinctive patch on the accused’s coat was clearly sewn on by hand; its stitching is loose and irregular, unlike the consistent, even, and machined appearance of the stitching around the Canada Goose shoulder patch. [ 113 ] It simply does not make sense to suggest that a distinctive and personalized patch clearly sewn on by hand would be found in the identical spot on a virtually identical coat worn by someone else. This is not a Team Nunavut jacket commonly seen across the territory. The only rational inference I can draw is that this is not a mere coincidence.

The distinctive and personalised patch supports the other circumstantial evidence on identity which I am about to discuss. I am satisfied that the coat worn by the robber was the same coat worn by the accused at the time of his arrest. [ 114 ] In this regard, I have considered Defence Counsel’s submission that too much time had passed after the robbery for the Court to place weight on the clothing worn by the accused when he was arrested. This argument may have had merit had many weeks or months passed between the robbery and the accused’s arrest. However, Cst.

Nikkel arrested the accused approximately 43 hours after the robbery. Therefore, I cannot place any weight on this entirely speculative argument. iii. The black shoes [ 115 ] I turn now to the black shoes, which provide another compelling piece of evidence incriminating the accused. I do not need to resolve whether the accused was wearing his shoes when Cst. Nikkel entered the bedroom at house 306 apartment 10 or whether he put them on in the bedroom before leaving the room with Cst. Nikkel. I accept Cst.

Nikkel’s evidence that the accused was wearing the black shoes at the time he left the bedroom while under arrest. I am satisfied that the black shoes worn by the accused at the time of his arrest – and seized as evidence by the police – were his shoes. [ 116 ] On examining exhibit 5, photograph 3—a still photograph taken from the RCMP cell block video—I immediately noticed that the accused’s right shoe had a shiny chrome looking disc lying flat against his right shoe at the base of the laces.

What appears to be an identical disc is found on his left shoe; however, unlike the right one, it is perpendicular to the shoe itself. I looked closely at the shoes themselves—exhibit 3—and I am satisfied that this was in fact the case. [ 117 ] When I say I immediately noticed this distinctive difference between the two shoes, it is because I had noticed the same thing on the shoes worn by the robber. This can clearly be seen in the photograph of the robber’s shoes in Exhibit 5, photograph 17.

The disc on the robber’s right shoe appears flat while the disc on the left shoe appears to be perpendicular to the shoe. [ 118 ] Again, it defies common sense to suggest that it is merely a coincidence that the robber and the accused both wore virtually identical black shoes with this distinctive characteristic on each of their left shoes. The only rational inference I can draw is that this distinctive footwear evidence supports the other circumstantial evidence on identity. I am satisfied that the robber wore the same shoes which the accused wore at the time of his arrest.

vi. The black baseball style hat [ 119 ] The robber wore a black baseball style cap. At the time of his arrest, the accused was wearing, and the police seized, a black baseball style hat with a virtually identical brim. This evidence also supports the other incriminating circumstantial evidence concerning identity. v.

The facial cross and teardrop tattoos [ 120 ] I turn now to the robber’s facial teardrop tattoo described by the clerk, the robber’s facial cross tattoo described by the manager and the clerk, and the teardrop and facial cross tattoos sported by the accused. [ 121 ] The Crown’s case rests, in part, on the eye-witness evidence given by the three civilians. I have already discounted what the customer told me as honest but unreliable and of no weight. [ 122 ] I turn now to the clerk. The clerk testified in direct examination that the robber had a facial teardrop tattoo under his left eye.

The accused has just such a tattoo. Can I conclude on this evidence that the accused was the robber? I cannot based on my analysis of his evidence. [ 123 ] In direct examination, the clerk said he could not remember what the robber looked like or what he was wearing. A few moments later, however, he said that he had seen the robber outside Arctic Ventures some undisclosed time before the robbery. It was at this point he said that he had recognised the teardrop tattoo. The clerk did not say, and he was not asked by the prosecutor, to elaborate on the circumstances surrounding this earlier sighting, or sightings.

How many times had the clerk seen this person, and what were the relevant circumstances surrounding each one of these sightings? I do not know and this significant gap in the evidence undermines the reliability of the clerk’s in-court identification. [ 124 ] I accept the clerk’s evidence that he did not know the person he saw outside Arctic Ventures nor did he know his name. How, then, can I be satisfied that the person he saw outside Arctic Ventures—who he said is the accused—is in fact the robber? Two other pieces of evidence assist me here. [ 125 ] First, the clerk spoke to Cst.

Morin shortly after the incident but he did not tell the constable that the robber had a facial teardrop tattoo. What he told Cst. Morin was, and I quote again, “he’s got a tattoo like [the manager] said, a cross”. I cannot say whether or to what extent the clerk’s statement was affected by what he heard the manager tell Cst. Morin. However, the clerk did not mention the teardrop tattoo and this scenario obviously undermines the quality and reliability of the clerk’s present memory. [ 126 ] Second, the clerk brought up for the first time in cross examination that the robber had tattoos on his fingers.

He had not told this to Cst. Morin and he did not provide any details in cross examination. This troubles me because the security videos show that the robber’s hands were gloved. How, then, could the clerk see that the robber had tattoos on his fingers? [ 127 ] The accused does have tattoos on his fingers. Accused persons sit beside their lawyers in court. Witnesses can easily see the hands and the left profile of the face of an accused from the witness box.

I cannot discount the possibility that the clerk’s in-court identifications of the robber’s teardrop and finger tattoos were influenced by the accused’s appearance in court. I have already commented on the general unreliability of the clerk’s evidence. For all these reasons, I cannot rely on the accuracy of the clerk’s present memory, and I cannot give any weight to his identification evidence. [ 128 ] I now turn to the manager. In-court eyewitness identifications are inherently unreliable. It is, therefore, imperative that the prosecutor assist the witness by asking relevant and probing questions.

I am hampered somewhat in this regard because the prosecutor did not put several key questions to the manager. For example,

• What was the manager’s general state of health that day? • Had he consumed any drugs, medication, or alcohol that day which might have affected his visual acuity? • Did he require glasses or contact lenses to assist his vision and, if so, was he wearing them? • What was his state of mind during the incident? • Where was he when he first had direct contact with the robber? • How much time did he spend looking directly at the robber? • When he looked at the robber, where did he focus his attention? • What was the colour of the robber’s skin? • What was the colour of the robber’s eyes?

The answers to these and other questions would have assisted me in grappling with this critical issue. [ 129 ] Despite these gaps in the evidence, I am assisted greatly in my assessment of the identification evidence by the security videos. The security videos clearly show, and I am satisfied: 1. That the store including the cash area was well lit; 2. That the robber’s face between the lid of his cap and the tip of his nose was uncovered and visible; 3. That the manager had his first conversation with the robber when he, the manager, was standing at the entry to the kitchen behind the cash.

At this point, the robber had gone halfway behind the cash and was facing directly at the manager; only a few unobstructed and well-lit feet separated them; 4. That the robber put the knife into his waist area as he was talking with the manager behind the cash; 5. That the manager was close to the robber as he crossed the short distance from the kitchen to the cash; 6. That the manager was face-to-face with the robber as the robber was right across the counter from him; 7. That the manager was his wearing glasses; 8. That the manager appeared calm and unagitated; 9.

That the manager looked directly at the robber’s face when he arrived behind the cash, and when he later handed him the money; and 10. That the manager had a close, clear, well lit, and unobstructed view of the robber’s face throughout the incident. [ 130 ] These factors are critical because the manager testified—after giving the matter some thought, then again later when he asked Defence Counsel to return to the issue so he could clarify his evidence—that the robber had a cross below his right eye.

Clearly, the manager had ample opportunity, was well placed, and had the visual acuity to see what he said he saw. [ 131 ] At this point, we return to the manager’s description of the robber’s facial cross. You will recall he said that the cross was made up of two, single, black, lines which intersected not in the middle but higher, and that it resembled a “very plain” cross of the Christian faith.

I am satisfied that the manager’s clear and detailed description of the cross is reliable and probative evidence. [ 132 ] It was only after he had provided this detailed description of the cross tattoo that the prosecutor showed the manager the photograph of the accused’s face in exhibit 7. The manager immediately said “That’s the cross I recognized”. I noted with interest that that was the quickest answer the manager gave throughout his entire time in the witness box. [ 133 ] I remind myself again that a confident witness may be honestly mistaken. Consequently, I have examined exhibit 7 carefully, the

police photograph of the accused. I cannot think of a more accurate description of the distinctive cross on the accused’s face than the one given by the manager of the cross on the face of the robber. [ 134 ] I am not troubled by the fact that the manager did not recall seeing a teardrop tattoo below the robber’s left eye. The accused sports just such a teardrop. Referring again to exhibit 7, I note that the teardrop tattoo is tiny. Indeed, I had to look at it several times at first to see if it was not, in fact, a dark freckle.

I am satisfied that the manager’s sight was captured by the cross, and that he easily missed the teardrop on the robber’s face. [ 135 ] I am also assisted by the accuracy and quality of the manager’s memory. I said earlier that the manager testified in a clear, consistent, and straightforward way.

And, while there is no need for there to be evidence corroborating a witness’ evidence before I may accept it, when there is such corroboration, it helps to establish the witness’ reliability. [ 136 ] The manager’s recollection of what happened is borne out by what is easily observable in the security videos. [ 137 ] For example, the manager testified that he told the robber that he would help him, but that he would first have to put the knife away. The security video in exhibit 1 taken from the camera behind the cash corroborates the manager’s version of what happened at that critical juncture.

One can clearly see the robber gesturing and moving his head as he engages the manager. Then, one sees the robber tuck the knife into his waist—just as the manager said—before going back to the other side of the cash. The manager then walks after him to the cash. [ 138 ] For all these reasons, I am satisfied that the manager had ample opportunity and visual acuity to describe accurately the robber’s facial cross tattoo. Combined with the rest of the prosecution’s identity evidence, it incriminates the accused.

I am satisfied that the only rational inference I can draw is that the identical tattoo shown on the accused’s face in Exhibit 7 was accurately identified by the manager in-court as being the one he saw on the robber’s face. [ 139 ] I have considered the police photographs of Leevity Paneak and Mosesee Nakashook, exhibits 9 and 10, which were tendered by the prosecutor at the request of the Defence. Neither man sports a facial cross tattoo in the photographs. Mr Nakashook apparently now has a tattoo between his eyes, but not below his right eye. I was also not provided with a description of that tattoo.

Furthermore, I do not know when these two photographs were taken. They do not assist my analysis and I can give them no weight. vi. Height and stature [ 140 ] I now turn to the robber’s height and stature. While I found the customer to be an honest but unreliable witness, I did believe him when he testified that he is 5’8”. In the security videos, one can see the customer standing directly beside the robber. The robber appears to be somewhat taller than the customer.

Making allowance for the hood and cap worn by the robber, this evidence puts the respective heights of the robber and the accused in the same category. [ 141 ] A close examination of the security videos also reveals that the robber, making allowance for the bandana and winter jacket, has the same stature as the accused who has attended court throughout the trial. The only rational inference I can draw is that this evidence, too, incriminates the accused. vii. The blue bandana [ 142 ] I turn now to the blue bandana, the use of which by the robber underpins the masking charge in count 2.

There is no doubt on the evidence that the robber carried out a premeditated plan to commit the indictable offence of robbery at the Quickstop during the evening of February 22, 2020. The robber entered the store with the lower part of his face covered. The robber brought a knife with him into the store which he pulled out during the robbery. The robber never looked up leading me to draw the inference that he did not want to expose his upper face to the security cameras.

I am satisfied that the robber, who I am satisfied was the accused, intentionally covered his face to facilitate his carrying out the indictable robbery.

VII. DECISION [ 143 ] I am satisfied on the basis of all the evidence I have discussed that the accused was, indeed, the bandanaed and tattooed man in the black Canada Goose winter coat, black sneakers, and black baseball hat who robbed the Iqaluit Quick Stop on February 22, 2020. There simply is no other rational or reasonable alternative theory which might point to the accused’s innocence. [ 144 ] Stand up, please, Mr. Cooper-Flaherty. The prosecution has proven its case against you beyond a reasonable doubt on counts 1 and 2, and I find you guilty.

You may sit down. [ 145 ] After discussion with counsel, I have set the sentencing hearing to November 13, 2020. Dated at the City of Iqaluit this 9th day of October, 2020 ___________________ Justice P. Bychok Nunavut Court of Justice