Q.B.C.N.J. A.D. 1999 No. 28 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: HER MAJESTY THE QUEEN and GERALD KELVIN DOTY M.T. Beaton for Her Majesty the Queen J.T. Schuck for Gerald Kelvin Doty JUDGMENT KRAUS J. June 29, 1999 [1] The central issue is identity. [2] The accused wrote letter to fellow inmate within one month of the trial. The text of the letter is as follows: ALEX Hey Dude! How are you? I'm fine. DOTY here... [two paragraphs of personal irrelevant information deleted] So I'm up to 200 lbs, lift weights everyday. Read lots....this doing time is hard on Remand. Remand is different than population. Remind is kinda hard time. may as well get to the point ... I'm charged with armed robbery ... and I'm trying to find an alibi. witness to tell them was at Eureka Club. 1st I'll say, really don't think you'll want to do this, certainly don't expect you too, and if you don't, absolutely no hard feelings. Could you just hear me out before you decide...? Why am asking you? Well honestly, don't have no friends. I'm totally on my own here. wrote another letter to you (but never sent it) trying to explain how my life ended up this way. No family, no friends. But this other letter sounded to much self pity. guess I'm tryin[sic] to figure out for myself why don't have any close friends. should tell you, these letters are safe, no one reads them. But they open in-coming mail, but usually don't read it. Well don't hardly ever us[sic] the phone, haven't had canteen service since got here. Lost my car last year, my oldest boy won't talk to me, the other kids are in foster care ... are you buttered up yet? I've been here since Feb 5/98 except weeks last summer and also weeks last Christmas. Last fall got charged for armed robbery, this robbery happened last summer (July 18). The Jan 14 got charged for another armed robbery which occurred Jan 8/99. already beat this last one not guilty (Jan 8) so still got this one from last summer. It was DOMO gas station that got robbed. should be able to prove my innocent's[sic], but its close. The robbery happened 10:00 p.m. SATURDAY July 18. On Sept 25/98 someone told cops did it, but cops never took photo line up to gas jockey's[sic] until November. One gas jockey picked my picture and said it was me. The other gas jockey never picked no picture. At my Preliminary Hearing neither gas jockey picked me out (in court room). The only other evidence they have is ... they (cops) say they found motorcycle matching description of one used for this robbery, they found it 2-3 blocks from my apartment. So they really have weak case ... but if judge thinks one gas jockey picking my picture out of photo line up is enough to convict me guilty, I'll get years PEN TIME ... So what I'm asking is ... would you be willing to testify TESTIFY that you seen me at Eureka Club, all night, from 9:00 p.m. 1:00 p.m., Saturday July 18 ... then sometime Sunday talked to you and you remember was really down because July 19 is my littlest boys birthday. was down because LUKE is in Foster Care and couldn't see him on his birthday. This is how you'd remember July 18 at Eureka, the day before Lukes[sic] birthday. We could fill in the blanks, or get our story straight, my trial isn't until June 9. Because I'm writing all this doesn't mean expect you to do this. understand its scary thing and its hassle. I'll still respect and like you if you say no. wrote Sandy Weisgerber letter asking the same and asked JOE ROSS (if you know him) if he would. Joe said he would but he never showed up at my pre-trial conference so can't trust him to show up at my trial. The cops or Crown prosecutor don't know anything about any of this. told my lawyer was at Eureka and am trying to find someone to testify. Before my pre-trial conference told my lawyer Joe Ross might show up ... but he never. Sooooo Also understand, know what I'm doing. know the system. would never ask unless was 100% sure it was safe for you. Its fool proof. For thing Crown has to tell my lawyer all there[sic] evidence before trial, so if somehow Crown could proof[sic] wasn't at Eureka, or you weren't at Eureka, they'd have to tell my lawyer. Remember this was last summer. already phoned Eureka to make sure there was dance that night. There was. There's just nothing that could go wrong. Theirs[sic] the moral issue, but man I've seen cops lie so many times, I've seen the prosecutors lie ... this system sucks. For you it would be ... say you call my lawyer and tell him you'll be witness. Then he has to notify prosecutor, sometimes they'll send cops to take statement from you. I'm not sure if you have to or not. But my lawyer said you don't have to have given statement to testify at trial. So this could be hassle or stress. The cops coming to your house. But you don't have to answer the door. Other than this when you go to court you'd have to wait outside court room till your turn to testify. figure you'd be on the stand about 15-20 minutes. If prosecutor even asked you any questions they'd want to know how you remember this Saturday night, and how can you be sure never left and came back, and did we talk or sit together ... But my lawyer would ask questions 1st and after he asked you all the questions, usually, the prosecutor doesn't ask questions (like in this case) because my lawyer already asked all the questions. could get my lawyer to make it so you don't have to wait outside court room to long. Sometimes witness's have to wait an hour or more. My lawyer keeps telling me to get an alibi (witness). He would help you. If it happens Crown wants statement my lawyer could probably set up time so you could be expecting cops. can't thing of nothing else of importance. Alls[sic] can say is ... If you do this, MAN would appreciate it. would give you my clothing advance I'd get from welfare, thats[sic] 200$ or 250$ ÷2 100$ or 125$. give you my word I'd give this to you. No problem. Compared to over yrs in jail, 100$ is nothing. If it'd[sic] make difference I'd give you more. Like if you'd do it for 500$ please tell me, cause if you could give me months to pay you (in payments) I'd peice[sic] you off, would too. just gotta get job, and will. There's chance oil rigs will start up, then could pay 1st and 2nd check (250$ each). Well, they have weak case, but, this asking you is something had to do, just had to try. Sandy never got back to me and wrote her about wks ago so guess she doesn't want to. If Joe would sow up then you wouldn't have to take the stand. Well, old feller, I've run out of paper. Please don't let any of this stress you out. And no hard feelings if you don't want too[sic]. Gerald Doty If you'll do this just call my lawyer, then I'll give you call. he's not legal aid he's private court appointed My lawyer is Joe Schick 565-5163 [I have added emphasis] [3] admitted this letter into evidence following voir dire. The defence had applied to exclude the letter on the basis that it was obtained by an unreasonable search or seizure and thereby violated the right of the accused under s. of the Canadian Charter of Rights and Freedoms, Part of the Constitution Act, 1982, being Schedule to the Canada Act 1982 (U.K.), 1982, c. 11. [4] Does the letter admit fact which is against the accused's interest? Or is the letter exculpatory? Or are parts of the letter admissions of fact against the interest of the accused and other parts of the letter exculpatory? What is the evidentiary value of the whole of the letter? [5] The accused expressly said in his letter: He is charged with armed robbery. He is trying to find an alibi. He is seeking a witness to testify that he was at the Eureka Club on the date and at the time of the robbery. The accused says that he should be able to prove his innocence, but it is close. He proposes to the potential witness that they "could fill in the blanks and get our stories straight". He says that if the Crown can prove that he was not at the Eureka Club or that the proposed witness were not at the Eureka Club, the Crown would have to give disclosure to the defence. He acknowledges that he is requesting the proposed witness to lie, but justifies it on the rationale that "cops lie so many times" and "the prosecutors lie ... this system sucks". He coaches the proposed witness by suggesting that the prosecutor may ask how he would be able to remember this particular date and whether the accused was always in the presence of the proposed witness throughout the evening. The accused offers to pay the proposed witness for his proposed testimony. He refers to another potential witness who has not responded to his request to give evidence but says that if that other witness were to appear at trial, then the witness to whom this letter were addressed would not be required to testify. [6] Of course, the letter is not an alibi — it is an attempt to induce a potential witness to fabricate an alibi. If it were an alibi, the requirements set out by the Supreme Court of Canada in R. v. Cleghorn (1995), 1995 CanLII 63 (SCC), 100 C.C.C. (3d) 393 would apply that is, it must be given in sufficient time to permit the authorities to investigate and it must be given with sufficient particularity to enable the authorities to meaningfully investigate. Furthermore, when alibi evidence is offered at trial, the trial judge has the opportunity to weigh and assess the alibi evidence in light of all of the other evidence, and to assess credibility. As well, the trial judge then has the benefit of guidance from the jurisprudence of making distinction between disbelief of the alibi or proof of its falsity the distinction being that if the trial judge disbelieves the alibi, it is treated as if it had not been given, whereas proof of falsehood leads the trial judge to an inference of guilt. [7] I do, however, draw an adverse inference against the accused by his attempt to induce a potential witness to fabricate an alibi by perjury. do not view the accused's letter as an attempt by an innocent man to protect himself against wrongful conviction by system that is skewed by police and prosecutorial misconduct (as stated by the accused in his letter). I am convinced beyond a reasonable doubt that the purpose of the accused in formulating his letter was not to insure himself against the prospect of wrongful conviction, but to induce perjured evidence for his benefit in order to discredit the identification evidence adduced at the preliminary inquiry. That portion of his letter "so if somehow Crown could proof[sic] wasn't at Eureka, or you weren't at Eureka, they'd have to tell my lawyer" leaves me in no doubt about the intentions of the accused nor in any doubt about his whereabouts at the time of the robbery. His letter is direct evidence that he was not at the Eureka Club at the time of the robbery and is corroboration for the identification evidence of Robert Hanson. [8] The adverse inference which have drawn against the accused is independent evidence which corroborates the evidence of Mr. Hanson. make this connection corroboration as matter of common sense. adopt the reasoning of Mr. Justice de Grandpré in R. v. Warketin, Hanson and Brown (1976), 1976 CanLII 190 (SCC), 30 C.C.C. (2d) (S.C.C.) wherein he said at p. 16: Corroboration is not word of art. It is matter of common sense. In recent years, this Court has repeatedly refused to give narrow legalistic reading of that word and to impose upon trial Judges artificial restraints in their instructions to juries or to themselves... He later observed at p. 18-19: This treatment of corroboration as matter of common sense, the purpose of which is to ensure that no conviction will be entered if there is reasonable doubt as to the guilt, is not restricted to Canada. It is sufficient for my purpose to refer to two recent decisions of the House of Lords, namely: Director of Public Prosecutions v. Hester, [1972] All E.R. 1056, and Director of Public Prosecutions v. Kilbourne, [1973] All E.R. 440. From the headnote of this last case, extract two sentences: The word "corroboration" had no special technical meaning; by itself it meant no more than evidence tending to confirm other evidence. No distinction could, therefore, be drawn between evidence which could be used as corroboration and evidence which might help the jury to determine the truth of the matter. [9] I view the evidence of Mr. Hanson to be direct evidence to prove the accused\'s identity, and the accused\'s letter is corroborative evidence of such a nature that leads me to a reasoned conclusion that Mr. Hanson correctly identified the accused in the photo ID line-up. Mr. Hanson testified that he was visited by the robber on two occasions, first in the early evening when he drove to the service station on his motorcycle. Mr. Hanson had an opportunity to look at his face on that occasion; he was wearing helmet with no visor or mouth guard. That occasion was remarkable because the motorcyclist dismounted his motorcycle and asked Mr. Hanson few questions, including whether he had telephone, but did not purchase anything. few hours later, the same motorcyclist reappeared, dismounted the same motorcycle at the same location and ordered some cigarettes and chips. While Mr. Hanson was filling the order, the motorcyclist appeared with knife in his right hand which was pointed at Mr. Hanson's stomach. The robber demanded money; Mr. Hanson complied. Mr. Hanson asked him why he was doing it; to which the robber replied "desperate". Mr. Hanson observed the robber's face, knife and clothing, and testified that it was important to "get description of the individual". As soon as the robber left, he called the police. He judged the robber to be between 5'7" and 5'9" in height, with blue eyes which were bloodshot, wearing cut-off tee shirt (grey) and jeans. He testified that the robber's hair was blonde/reddish. He did not notice scar on the arm of the robber but said that he would not have noticed it in the circumstances. [10] It is understandable that Mr. Hanson did not observe the scar on the accused's arm in those frightful circumstances since his attention was directed primarily on the robber's face and knife. Mr. Hanson testified that there were not lot of customers that evening. Subsequently, on November 4, 1998, Mr. Hanson was shown photo ID line-up by Sergeant Smith of the Regina City Police who telephoned earlier to advise that he would be attending. Mr. Hanson testified that Sergeant Smith said that the police had someone who they thought had committed the crime, although Sergeant Smith was careful to instruct Mr. Hanson not to jump at anything and cautioned him that the person may not be in the line-up. Indeed, the photographic line-up instructions were entered as Exhibit P-2; both Mr. Hanson and Sergeant Smith testified that there were no other instructions or suggestions given to Mr. Hanson who signed the declaration to that effect on Exhibit P-2 which also indicated that he had read over the following instructions, namely: 1. The person who committed the crime may or may not be in the group of photographs. 2. You are in no way obliged to select anyone. 3. Study each photograph carefully before making any comments. Consider that the photographs could be old or new, that hairstyles change and that persons can alter their appearance by growing or shaving facial hair. [11] Mr. Hanson readily identified the accused's photograph from the photo ID line-up which consisted of eight photographs in total and he commented on the instruction sheet "The face is the one that remember". These photographs are black and white and obviously do not show hair and eye colour. The photo ID line-up shown to Mr. Hanson does not contain the names and dates of anyone in the line-up or any other particulars and is produced by digital system which has been used by the police service for long time. Sergeant Smith testified that he utilizes the black and white photos in order to make it more difficult for witnesses. [12] The day following his interview with Mr. Hanson, Sergeant Smith attended at the Provincial Correction Centre to arrest the accused and noted that he matched the initial description given by Mr. Hanson to the police at the time of the robbery. During cross-examination, Sergeant Smith testified that he received the file approximately two months after the robbery and that he could be characterized as the investigating officer at the time he prepared the photo ID line-up. Sergeant Smith and Mr. Hanson are credible witnesses and am satisfied that the integrity of the identification system employed was maintained. Sergeant Smith showed the photo ID line-up to Mr. Hanson's girlfriend who was also in the small kiosk at the time of the robbery. She was behind Mr. Hanson who was standing between her and the robber. Although she had clear view of the robber, am certain that her opportunity for observation of his facial features was less than that of Mr. Hanson who had seen the robber approximately two hours previously. In any event, she did not pick out the accused from the photo ID line-up take that as being supportive of the integrity of the identification system employed by Sergeant Smith but do not attach any great importance to her evidence because of the circumstances of the robbery. [13] Neither Mr. Hanson nor his girlfriend were able to identify the accused at his preliminary inquiry or at his trial. At trial, the accused was clean shaven but the defence photograph taken within one month of the trial shows him with prominent mustache slightly reddish. The black and white photograph identified by Mr. Hanson shows the accused without mustache. Mr. Hanson reported to the police, at the time, that the robber had mustache. take Mr. Hanson's girlfriend's failure to identify the accused as evidence supportive of the integrity of the system. Considering and weighing the evidence of the description of the robber given by Mr. Hanson and his girlfriend to the police at the time, the evidence related in court by each of those witnesses, the photograph of the accused identified by Mr. Hanson in the photo ID line-up, the photograph of the accused tendered as defence evidence, and the appearance of the accused in court (no mustache), have no reasonable doubt that Mr. Hanson identified the accused as being the robber. [14] In assessing the evidence of Mr. Hanson, am satisfied that he looked at the accused directly and without obstruction for period of several minutes at very close distance. There was nothing which obstructed his view nor was there anything else which was happening at the time which my have distracted him except, obviously, for the holding of the knife by the accused and Mr. Hanson's compliance with his instruction to give him money. Mr. Hanson appears to have good eyesight and memory. Mr. Hanson immediately notified the police on the telephone and gave good description of the accused. During the course of his testimony at the preliminary inquiry and at the trial, Mr. Hanson did make some change to the description of the accused but it was not significant. Mr. Hanson's girlfriend gave similar description but she was unable to identify the accused from the photo ID line-up some three and one-half months after the robbery. attach more weight to Mr. Hanson's evidence since he had an opportunity to observe the accused prior to the robbery when the accused first came to the gas station approximately two hours before the robbery. On that occasion, the accused acted out of the ordinary and Mr. Hanson recalls the conversation with the accused at that time in detail. During the robbery, Mr. Hanson and the robber were face to face. Mr. Hanson did not see photograph of the accused before he made the identification of the accused in the photo ID line-up and am satisfied that his selection of the accused from the photo ID line-up was from his memory of the person who committed the offence. [15] During able cross-examination of Mr. Hanson, he did admit certain discrepancies in his evidence at trial from previous evidence at the preliminary inquiry, but am satisfied that the discrepancies were minor in nature and did not affect the central issue of the identity of the accused. For example, Mr. Hanson testified that the accused was not wearing glasses at the time of the robbery whereas at the preliminary inquiry he said that he could not remember. Also, during cross-examination, Mr. Hanson agreed that his memory was not as good at the time of the photo ID line-up as it was at the time of the robbery but he added that "you don't forget face like that". And yet he did not identify the accused who was in the prisoner's docket at the preliminary inquiry and at trial (having been remanded in custody). The accused did not have mustache at trial, but he did not have mustache in the photo ID line-up either. do not find Mr. Hanson's failure to identify the accused at the preliminary inquiry (eight months after the robbery) nor at trial (eleven months after the robbery) to be reason to suspect or reject his evidence that he identified the accused in the photo ID line-up three and one-half months after the robbery and gave an accurate description to the police immediately at the time of the robbery. However, this evidence does not stand alone and is buttressed and supported by the adverse inference which have drawn from the contents of the letter of the accused made within month of his trial. [16] have no reasonable doubt that the motorcyclist (on the first occasion), the motorcyclist on the second occasion, the robber, the person reported to the police at the time, and the person identified in the photo ID line-up by Mr. Hanson approximately three and one-half months thereafter, are the same person the accused. [17] In weighing the entirety of the letter, have concluded that it is tantamount to an admission by the accused that he was not at the Eureka Club at the time of the robbery, and that he attempted to manufacture an alibi by eliciting false testimony from potential witness. There is no other explanation in evidence for the purpose of the request for the false evidence to be given; the defence asserts that the accused, as an experienced criminal, knows that he may be wrongfully convicted unless he comes up with an alibi and, ergo, the intention of the accused was pure that is, to ensure that an innocent man would not be wrongfully convicted. The defence urges that the letter may be construed in that light. am satisfied that the sole reason for the intended fabrication was to deceive the court; there is no other express or inferred explanation in evidence. The admission by the accused that he was not at the Eureka Club at the time of the robbery, taken together with his knowledge of all of the circumstances of the offence and his plan to meet that evidence at trial by fabricating evidence, warrants an adverse inference against him which, together with the identification facts which have been proved, leads to the reasonable and just conclusion that the accused is the person who committed the robbery. have not drawn this inference with mathematical certainty, but am satisfied beyond reasonable doubt by all of the evidence that the accused is the perpetrator of the robbery, and that all of the other elements of the Indictment have been proven beyond reasonable doubt as well, that is, that the accused stole money from Domo Gas while armed with an offensive weapon. [18] Accordingly, I find the accused guilty as charged in the Indictment.
The accused is on trial for armed robbery and the central issue is identity. The Court admitted a letter into evidence in which the accused attempts to induce a potential witness to fabricate an alibi for him. HELD: Accused found guilty. The accused was correctly identified. The Court drew an adverse inference against the accused by his attempt to induce a potential witness to fabricate an alibi by. The Court was convinced beyond a reasonable doubt that the accused's purpose in writing the letter was not to insure himself against the prospect of wrongful conviction, but to induce perjured evidence for his benefit in order to discredit the identification evidence adduced at the preliminary inquiry. The letter is direct evidence of where the accused was not at the time of the robbery and is corroboration for the identification evidence of the Crown witness.