ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-013
DATE: 2013-02-22
B E T W E E N:
Her Majesty the Queen
J. McKay, for the Crown
- and -
Rodger William Davis and Terry George Vaillancourt
R. Amy for the Accused Rodger William Davis
A.Seib for the Accused Terry George Vaillancourt
Accused
HEARD: December 10 and 11, 2012,
at Kenora, Ontario
Mr. Justice D. C. Shaw
Reasons For Judgment (Delivered Orally)
[1] Rodger William Davis and Terry George Vaillancourt are each charged with possession of property of North American Lumber, to wit, cheques and cash of a value exceeding $5000.00 knowing that the property was obtained by an indictable offence, contrary to s. 354(1)(a) of the Criminal Code.
[2] Mr. Davis is charged with breach of his recognizance by failing to comply with a curfew to be in his residence between 5:00 pm and 7:00 am, contrary to s. 145(3) of the Criminal Code. Mr. Vaillancourt is charged with breach of his undertaking by failing to comply with a curfew to be in his residence between 10:00 pm and 6:00 am, contrary to s. 145(3) of the Criminal Code.
Background
[3] The charges relate to a break and entry at the North American Lumber store in Keewatin. The break-in occurred sometime after the store was closed on Friday, August 5 and before it was opened on Saturday morning, August 6, 2011.
[4] A cash box containing approximately $8,000.00 in cheques and $6,000.00 in cash was taken during the break-in. The cash box was approximately 12” by 8” inches.
[5] The cash box was stored overnight in a filing cabinet in the office of the bookkeeper. The cash box was locked before it was put into the filing cabinet. The office was also locked. The filing cabinet was unlocked.
[6] The bookkeeper’s office was located directly behind the front counter of the main part of the store. It adjoined the manager’s office. A small window, wider than it was tall, was built into the wall separating the two offices. The manager’s office was not locked.
[7] Investigation of the break-in revealed that the window between the two offices had been pried open from the top. Police concluded from state of the window and dusty footprints on the interior roof of the two offices and on a shelf under the window in the bookkeeper’s office that the thief lowered himself down from the ceiling and went through the window into the bookkeeper’s office.
[8] At trial, the police photographer testified that although the window was wide enough for her to get through, someone larger would not have been able to do so.
[9] The police were not able to identify fingerprints, footprints or DNA.
[10] The building was entered by way of a small access door, described as a man door, at the side of the building. The door was locked after business hours with a padlock. When the break-in was discovered, the padlock was off the door. It was never located.
[11] The route from the man door at the side of the building to the bookkeeper’s office wound through the building and around various building inventory. The police photographer described it as navigating a maze. In her opinion, a person who was in the building for the first time would not have been able to go through the maze and find the window in the bookkeeper’s office.
[12] There was an alarm system, with motion detectors in the front, retail area of the store, extending over the front counter and by the back door entrance. There were no motion detectors in either of the two offices. The store’s lights were turned off when the business was closed Friday night. However, the manager testified that visibility in the store would not be bad, even with the lights out, because there were clear panels in the building that let in the light of the summer moon.
[13] The building was constructed for North American Lumber in 1957.
[14] The bookkeeper had been employed at the business for nine years. She stated that there was no way of knowing how many employees would have worked at North American Lumber over the years, who would have known the layout of the building.
[15] As of the date of the break-in, the business had seven employees, including the manager and the bookkeeper.
[16] Mr. Davis had briefly been an employee of the business, from June 2011 until approximately two weeks before the break-in. He had been terminated because of his failure to show up for work. On Friday, August 5, 2011, Mr. Davis came to the store to pick up his last cheque. However, his cheque had already been mailed, together with his separation slip.
[17] Mr. Davis had a set of keys to the building and to the gates of the fence surrounding the backyard. This included a key to the padlock on the man door. The manager did not ask Mr. Davis to return the keys when Mr. Davis showed up to get his final cheque.
[18] Three other employees, plus the manager and the bookkeeper, also had keys to the building. Only the manager and the bookkeeper had keys to the bookkeeper’s office.
[19] The manager testified that during his 15 years at the store, Mr. Davis was the first person he had terminated, although approximately eight other persons had quit. The manager’s son had previously worked at the store, but had been fired by head office for theft.
[20] During the summer of 2011, North American Lumber had been busy. The manager testified that a good number of contractors came into the store during that summer and that there had been hundreds of people who had access to the back of the store, from which the office could be accessed.
[21] The manager testified that the cash box would usually be taken out of the filing cabinet by the bookkeeper at the beginning of the day, at about 7:45 am, when the truck drivers, like Mr. Davis, would be milling around the front counter to get their orders for the day. The bookkeeper testified that at the end of the day, the door to her office would be opened as she cashed out and put the day’s sales into the cash box.
Evidence of Kyle Christie
[22] The main witness for the Crown, implicating Mr. Davis and Mr. Vaillancourt, was Mr. Kyle Christie. Mr. Christie gave the following evidence:
[23] On Friday evening, August 5, 2011, at about 10:00 or 11:00 pm, he was sitting at home watching television when Mr. Vaillancourt telephoned him. Mr. Christie lived with his father, mother, sister and brother. Mr. Vaillancourt asked him to ask his father to use his father’s van to pick up Mr. Vaillancourt’s boat. Mr. Christie asked his father. His father agreed.. Mr. Christie put a trailer hitch on the van and drove to Mr. Vaillancourt’s house. There he picked up Mr. Vaillancourt and John McDonald. Mr. McDonald put a bag, with what sounded like tools in it, into the trunk. The three men then went to pick up Mr. Davis, arriving at about 12:30 am. Mr. Davis got into the truck. Mr. Christie drove to Keewatin, going by the North American Lumber store. Mr. Davis and Mr. McDonald told him to stop. He pulled over to the side of the road, dropped Mr. Davis and Mr. McDonald off about a half block from the store. Mr. McDonald took the bag and told Mr. Christie that they were picking up Mr. Vaillancourt’s boat. Mr. Christie parked behind a bank, across the street from North American Lumber. Mr. Vaillancourt remained in the back seat of the vehicle. About 15 to 20 minutes later, Mr. Davis and Mr. McDonald came back, got into the van and told Mr. Christie to go.
[24] Mr. McDonald had a cash box with him, about 12” by 6”. Mr. McDonald sat in the front passenger seat and broke open the cash box. Mr. Christie saw that the cash box contained cash and cheques. As Mr. Christie drove, he asked Mr. McDonald what it was and was told, “Just never mind”. Mr. McDonald told Mr. Christie to stop at Round Lake. Mr. McDonald got out with the cash box, which he emptied, and threw the cash box into the lake.
[25] Mr. Christie dropped off Mr. Davis. He then dropped off Mr. Vaillancourt and Mr. McDonald at Mr. Vaillancourt’s home. Mr. Christie was given some of the cash for gas.
[26] Mr. Christie went back to the residence where he had dropped off Mr. Davis and picked up marijuana for Mr. Vaillancourt from a woman named Alana.
[27] He put gas in the van, drove the van home, and left they keys for the van on the table with a note for his father saying he had put gas in the van.
[28] At about 2:00 am Mr. Christie took a taxi back to Mr. Vaillancourt’s residence. Mr. Vaillancourt paid for the taxi. He stayed at Mr. Vaillancourt’s and then went home about 5:00 am or 6:00 am. He went into work later that day.
[29] That afternoon, Mr. Christie’s mother found a stolen cheque in the van. His father, who had learned of the break-in at North American Lumber, picked Mr. Christie up at about 9:00 pm. and took him to the police station.
Evidence of Glendon Loranger
[30] Mr. Christie’s father, Glendon Loranger, was called as a witness by the Crown. He said that at about 10:00 pm to 12:00 am on the evening of August 5, 2011, he was at home when he took a telephone call from Mr. Vaillancourt who said he needed Mr. Loranger’s van to pick up his boat because a friend who had it was leaving town. Mr. Christie was out at the time, picking up Mr. Loranger’s other son. They came back at about 12:30 am. Mr. Loranger gave the message to Mr. Christie. Mr. Christie left with the van. Mr. Loranger next saw Mr. Christie about 2:00 am or 2:15 am, when Mr. Loranger came downstairs, having heard Mr. Christie in the kitchen. Mr. Loranger found a note saying that Mr. Christie had put gas in the van. He saw Mr. Christie leave the home, walking up the hill from the house.
[31] In the morning, Mr. Loranger went in the van with his wife Tammy Derksen and their daughter to go to yard sales. They were gone from 8:00 am until 1:00 or 2:00 pm. After they returned from the yard sales, Mr. Loranger was setting up a computer in the home when Ms. Derksen came in with a cheque for $274.97 drawn on the account of B&B General Store, payable to North American Lumber.
[32] Sometime after supper, Mr. Loranger saw Mr. Christie and asked him about the cheque. Mr. Christie told him that he had no clue. Mr. Loranger took Mr. Christie to the police station.
Evidence of Tammy Derksen
[33] Ms. Derksen testified that she had gone yard saling on August 6, 2011, in the van, with Mr. Loranger, her daughter and two friends of her daughter. She said that after returning in the afternoon, she went to the van to take a brush from the front seat and found the cheque from B&B General Store on the floor of the front passenger seat. The cheque looked new, not crumpled or dirty and there were no foot prints on it. She said that while going to yard sales, they had made a number of stops, with people going in and out of the van. She expressed the opinion that if the cheque had been there while they were at the yard sales, she would likely have seen it. She said that she had been sitting in the front seat and had not noticed it all day. It was over to the left of the floor at the passenger seat, where she would have put her feet.
Questioning and Charging of Kyle Christie
[34] After Mr. Christie’s father took him to the police station, Mr. Christie was questioned by the police. He initially denied any knowledge of the break and enter. The police told him that with the cheque found in the van that they did not believe his denial. Mr. Christie then changed his story and implicated Mr. Davis, Mr. Vaillancourt and Mr. McDonald. I will go into more detail about Mr. Christie’s discussions with the police later in these Reasons.
[35] Mr. Christie was charged by the police. The matter was scheduled for a preliminary inquiry on January 23, 2012. On January 22, 2012, Mr. Christie pleaded guilty to the charge of possession of the cheque stolen from B&B General Store. Mr. Christie was represented by counsel. He testified that he was given a deal, through his lawyer, whereby he agreed to plead guilty to the offence of possession of the stolen cheque and to testify against Mr. Davis, Mr. Vaillancourt and Mr. McDonald, in exchange for a discharge.
[36] The accused did not testify.
Position of the Crown
[37] The Crown submits that Mr. Christie was duped by Mr. Davis and Mr. Vaillancourt. The Crown submits that Mr. Christie was not someone who would be able to plan the break-in, open the door of the building, navigate his way through the building, in the dark, know where the cash box was and avoid setting off the alarm.
[38] The Crown submits that in contrast, Mr. Davis, as a former employee, was familiar with the building and had a key to the man door. The Crown submits that Mr. Davis would have known where the cash box was and where the motion detectors were.
[39] The Crown acknowledges that Mr. Davis was too large to go through the window into the bookkeeper’s office. The Crown’s theory is that Mr. McDonald went through the window.
[40] The Crown submits that there is confirmatory evidence of Mr. Christie’s testimony in the telephone call from Mr. Vaillancourt, which Mr. Loranger took, and in the cheque found in the van in the area of the front passenger seat were Mr. Christie testified that Mr. McDonald was sitting when he broke open the cash box.
Position of the Defence
[41] The defence submits that the evidence of Mr. Christie, as an accomplice and a co-accused, is deserving of the strongest possible Vetrovec warning.
[42] The defence points to the fact that Mr. Christie first told the police that he knew nothing about the events in question and only changed his story to implicate Mr. Davis and Mr. Vaillancourt after he knew that the police were not accepting his denials and after he knew that he was looking at jail, an outcome which he feared. The defence submits that Mr. Christie knew that the police really wanted Mr. Davis and Mr. Vaillancourt and that Mr. Christie lied about their involvement in order to save himself.
[43] The defence points out that there is no corroborative evidence that either of the accused got into the van with Mr. Christie.
[44] The defence submits that the fact that Mr. Davis had a key to the man door is not corroborative. The padlock was never recovered. It is not possible to say whether it was unlocked or pried off. The defence points to the evidence of the manager as to the hundreds of contractors who had access to the back area and the numerous employees, past and present, who had knowledge of the building and the business practices of the bookkeeper. The defence submits that an inference cannot be drawn that the break-in was an inside job by Mr. Davis or an inside job at all.
[45] The defence notes that Mr. Christie pleaded guilty to possession of the stolen cheques, but continued to maintain that he had not handled the cheques and that he believed that he had done nothing wrong.
[46] The defence submits that during the police questioning, Mr. Christie never mentioned Mr. Davis or Mr. Vaillancourt until their names were brought up by the police and until Mr. Christie was told that they were in fact the individuals that the police really wanted.
Vetrovec Warning
[47] As Justice Fish observed in R v. Khela, [2009] S.C.C. 4 (S.C.C.), it has long been recognized that it is dangerous to rest a criminal conviction on the testimony of a single witness, although the evidence of a single witness can be sufficient to support a conviction. Where the guilt of the accused rests exclusively, or substantially on the unsupported evidence of witnesses who are “unsavoury” or “untrustworthy”, “unreliable” or “tainted”, the danger of a wrongful conviction is particularly acute. For this reason, judges may, and in some circumstances must, include in their charge to a jury, where there is evidence from such witnesses, “a clear and sharp warning to attract the attention of the jurors to the risks of adopting, without more, the evidence of the witness” (See Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811, at p. 831)
[48] Mr. Christie can fairly be regarded as an “unsavoury witness”. He clearly had an interest in the outcome of this trial. Mr. Christie was an accused. He initially categorically denied to the police that he was in any way involved with the break-in. He changed his story when he became fearful that the police had enough evidence against him to lead to a conviction and a jail term and when he learned that the police were more interested in Mr. Davis and Mr. Vaillancourt. By Mr. Christie’s own evidence, he entered into a “deal” through his lawyer to testify against Mr. Davis and Mr. Vaillancourt in consideration of the Crown’s agreement to a discharge on a plea of guilty to unlawful possession of the cheque found in the van. The evidence against Mr. Davis and Mr. Vaillancourt rests on the evidence of Mr. Christie. Unless his evidence is accepted beyond a reasonable doubt, there can be no convictions.
[49] In Khela, the Supreme Court of Canada set out a framework to assist trial judges in constructing Vetrovec warnings appropriate to the circumstances of each case. Although there is no jury in this case, the cautioning principles of a Vetrovec warning are applicable in assessing the evidence of Mr. Christie. The four main elements of the caution are:
drawing the attention of the jury to the testimonial evidence requiring special scrutiny;
explaining why this evidence is subject to special scrutiny;
cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and
that the jury, in determining the veracity of the subject evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused.
(See Khela, at para. 37).
[50] With respect to the fourth element, the confirmatory evidence need not implicate the accused. However, it should give comfort to the jury that the witness can be trusted in his assertions that the accused is the person who committed the offence. (See Khela, at paras. 41-42.)
Discussion
[51] I am not satisfied that the Crown has proved the guilt of the accused beyond a reasonable doubt.
[52] The evidence of Mr. Christie must be viewed with the greatest scrutiny and caution. For the reasons I have given, I regard him as an unsavoury and unreliable witness upon whose unconfirmed evidence it would be dangerous to convict the accused.
[53] Mr. Christie testified that when he went to talk to the police, what was weighing heavily on his mind was how he was going to avoid going to jail. He was afraid to go to jail. He said that the police told him that someone like him was not going to have a very good time in jail. He agreed in cross-examination that his game plan was to avoid going to jail “by putting it on everybody else”. He agreed that he was willing to do anything not to go to jail, including lying to the police.
[54] He initially told the police “I know for a fact that I did not go anywhere near Keewatin. This is a hundred percent the honest truth.” and “… I didn’t go, I swear to God”.
[55] He agreed that even though he did not feel he did anything wrong that night, he entered a guilty plea to possessing a stolen cheque and that, in that sense, he was willing to lie to the court.
[56] He testified that the police told him they were really after Mr. Davis and Mr. Vaillancourt. He agreed that he was happy to oblige them with the story of their involvement because he did not want to go to jail. He agreed in cross-examination that he came up with his story about Mr. Davis and Mr. Vaillancourt to save himself.
[57] He agreed that Mr. Davis and Mr. Vaillancourt had never threatened him. However, he agreed that he told the police that they had threatened him. He told the police that “If he (Mr. Vaillancourt) gets put in jail he’s going to kill me when he gets out”. He agreed that he said this because he was “willing to say anything”.
[58] Based on these admissions, I cannot be satisfied that Mr. Christie’s evidence is true.
[59] There were also discrepancies in Mr. Christie’s evidence at trial.
[60] In his evidence in chief, he could not remember if he had been working at the time of the break-in. In cross-examination he remembered that he had in fact been working at Ristorante Pizzaria for over a year.
[61] He testified in chief that he received the telephone call from Mr. Vaillancourt at 10:00 pm or 11:00 pm on August 5, 2012 but there was evidence that he picked his brother up from McDonald’s at 12:00 am and returned home at 12:30 am.
[62] He was confused as to how much money he received from Mr. Vaillancourt.
[63] He testified that he had dropped Mr. Davis and Mr. Vaillancourt off on the street after he had just driven past North American Lumber. At the preliminary inquiry, he testified that he let them off after he had parked the vehicle behind the bank.
[64] With respect to confirmatory evidence, I do not find that the cheque discovered by Mr. Christie’s mother on the floor of the passenger side of the van is confirmatory of Mr. Christie’s evidence. It is at least as consistent with Mr. Christie dropping the cheque as it is with Mr. McDonald being in the front seat dropping the cheque. There is nothing independent of Mr. Christie’s evidence to tie the cheque to Mr. McDonald. As noted in Khela, at para. 39, evidence that is “tainted” by connection to the Vetrovec witness cannot serve to confirm his testimony”. The cheque, itself, says nothing about Mr. McDonald’s involvement unless one accepts Mr. Christie’s evidence.
[65] I accept Mr. Loranger’s evidence that Mr. Vaillancourt called to request the use of Mr. Loranger’s van and that Mr. Christie took the van after he returned home from picking up his brother and then returned home with the van at about 2:00 am. This evidence is independent and credible. However, it is not sufficient to restore my faith in the relevant aspects of Mr. Christie’s evidence, and to conclude beyond a reasonable doubt that he is telling the truth about whether Mr. Davis and Mr. Vaillancourt committed the offences. The concerns about Mr. Christie’s evidence, as expressed above, are too serious to set aside.
[66] The Crown’s theory is that Mr. Davis unlocked the padlock and led Mr. McDonald through the store to the offices where Mr. McDonald then went through the window into the bookkeeper’s office. The evidence of the police photographer was that although she could get through the window, the larger Mr. Davis would not have been able t do so. There was no other evidence led as to the size of the window. Importantly, there was no evidence as to the size of Mr. McDonald and whether he could have gone through the window. Mr. McDonald did not testify. His size is unknown. The Crown’s theory, without more, is conjecture.
[67] The padlock was not recovered. It would be equally speculative to find that it was opened with a key as to find that it had been cut off.
[68] In conclusion, the Crown has failed to satisfy me beyond a reasonable doubt that Mr. Davis and Mr. Vaillancourt are guilty of the charges in the indictment. There will therefore be a finding of not guilty on all counts.
The Hon. Mr. Justice D. C. Shaw
Released: February 22, 2013
COURT FILE NO.: CR-12-013
DATE: 2013-02-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
- and –
Rodger William Davis and Terry George Vaillancourt
Defendants
REASONS FOR JUDGMENT
Shaw J.
Released: February 22, 2013
/mls