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Abstract: Transcript of the Reasons for Judgment on Conditional Sentence Breach Hearing
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R. v. Taggart, 2014 NWTSC 11 S-1-CR-2011-000189 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - JUSTIN TAGGART __________________________________________________________ Transcript of the Reasons for Judgment on Conditional Sentence Breach Hearing delivered by The Honourable Justice L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 20th day of November, A.D. 2013. __________________________________________________________ APPEARANCES: Mr. M. Lecorre: Counsel for the Crown Mr. C. Davison: Counsel for the Accused (Charges under s. 5(1) x2 of the Controlled Drugs and Substances Act) 1 THE COURT: I have reviewed the evidence, 2 Counsel, and I am able to give my decision on the 3 question of whether this alleged breach has been 4 established. I will just provide brief reasons 5 for my decision. 6 Justin Taggart is under the terms of the 7 Conditional Sentence Order that I imposed in 8 December 2012. One of the terms of this order is 9 that he has to be inside his residence, subject 10 to certain exceptions and conditions. This house 11 arrest condition is going to be in force until 12 April 30th, 2013. 13 The Crown alleges that Mr. Taggart breached 14 his house arrest condition on November 2nd, 2013, 15 by being outside his residence, more specifically 16 at the Reddi Mart on Old Airport Road in 17 Yellowknife. This morning a hearing was held 18 into that allegation. Mr. Taggart disputes it. 19 The Crown relies on the evidence of Su-Ellen 20 Kolback who has been Mr. Taggart's conditional 21 sentence supervisor from the time the sentence 22 was imposed. She has met with him regularly 23 since the sentence was imposed and I accept that 24 she is familiar with him and what he looks like. 25 She filed a breach report and a brief 26 witness statement but also testified at the 27 hearing this morning. She explained that on the Official Court Reporters 1 1 day in question, which was a Saturday, she was in 2 her vehicle on Old Airport Road. Her daughter 3 was with her, on the passenger seat. She was 4 stopped at a red light on the corner of Old 5 Airport Road and Byrne Road. The Reddi Mart was 6 on her right side and she was on the right-side 7 lane of Old Airport Road. She said her daughter 8 was talking to her and, as Ms. Kolback turned 9 toward her, she saw Mr. Taggart coming out of the 10 Reddi Mart. She said he looked in her direction 11 and then he got into a black truck, on the 12 driver's side. She turned right at the lights 13 and then she turned into the parking lot of the 14 McDonald's, which is on the other side of Byrne 15 Road. She said that as she was doing this, she 16 saw Mr. Taggart turning away from her and looking 17 back as he was sitting in the truck. Then she 18 drove through the McDonald's parking area and 19 came back out the exit of the McDonald's parking, 20 and then she saw this black truck proceeding on 21 Byrne Road towards Beck Court, which I guess 22 would be in a southerly direction. She did not 23 see a licence plate and she did not follow the 24 vehicle. 25 She also said that she thought that the 26 Reddi Mart is about a five-minute drive from the 27 residence where Mr. Taggart currently lives, Official Court Reporters 2 1 assuming that there is no traffic. She noted the 2 time on the clock in her vehicle and it said 3 4:24. She was asked if it was getting dark out 4 in cross-examination and she said that it was not 5 and the streetlights were not on. 6 I do not understand Defence here to be 7 calling into question Ms. Kolback's credibility 8 in the sense that I do not think anyone is 9 suggesting that she lied under oath or is trying 10 to mislead the Court in her testimony. In having 11 listened to her, I have no doubt that she told 12 the truth as far as she understood it to be; that 13 is that she is quite certain that it was 14 Mr. Taggart that she saw, and in that certainty, 15 she was not shaken. It is not her credibility 16 that is the point here, it is more a question of 17 the reliability of her identification evidence. 18 Defence has called evidence as well. 19 Mr. Taggart himself says he did go out that 20 afternoon because he went and did some of his 21 community service work hours, which is another 22 requirement of his conditional sentence. He said 23 that he did not go to the Reddi Mart that day and 24 that after he returned home from doing his 25 community service work, he just stayed home, he 26 had dinner with his family and then they watched 27 a hockey game. He said he thought they had Official Court Reporters 3 1 dinner at around five. 2 His father also testified, and for clarity, 3 I will refer to him as "Mr. Taggart's father". 4 Mr. Taggart's father said that he was at home 5 that day. He did not recall specifically what he 6 was doing. He was not sure if his son went out 7 during that afternoon. He did say there was a 8 hockey game that night that started at five, and 9 because of that and because the plan was to watch 10 that game, the family had supper together at 11 four. He said his son was there for dinner and 12 remained at home all evening. Mr. Taggart's 13 father said that he watched the hockey game while 14 Mr. Taggart was in an adjoining room and worked 15 out for part of the time and sometimes also came 16 out and checked out on the game. It sounds like 17 Mr. Taggart's father watched hockey for most of 18 that evening, and apparently there were many 19 games in many time zones that night. 20 Mr. Taggart's father did appear a bit 21 nervous and a bit uncomfortable during his 22 evidence, but I do not find that surprising 23 because that is the effect that the courtroom has 24 on most people, especially those who are not in 25 the habit of spending time there. He was not 26 clear on certain details, but I also do not find 27 that surprising for someone who is talking about Official Court Reporters 4 1 a day or an afternoon that at the time was 2 essentially not very eventful, and they would not 3 know, at the time of the events, that they would 4 have to recall the details of what they were 5 doing. 6 Counsel are in agreement that the standard 7 of proof that applies on a hearing like this, and 8 this is very clear, is not the standard of proof 9 beyond a reasonable doubt; it is a standard of 10 balance of probabilities. Because of that, Crown 11 is correct, the approach to the evidence is not 12 the same as it would be after trial when there 13 has been conflicting evidence. It is not the 14 approach that is set out in the D.W. case. What 15 I have to examine here is the civil standard of 16 proof: What scenario is more probable than the 17 other? 18 So put another way, in this case, it boils 19 down to this: Is it more probable that both 20 Mr. Taggart and his father perjured themselves 21 under oath this morning and lied about what was 22 going on that afternoon, or is it more probable 23 that everyone at this hearing told the truth but 24 Ms. Kolback made an honest mistake in her 25 identification of Mr. Taggart at the Reddi Mart? 26 Because, as I said, I am quite certain that she 27 is sure this is who she saw. Official Court Reporters 5 1 The Crown invites me to reject the evidence 2 of Mr. Taggart and the evidence of his father and 3 asks me to consider inconsistencies between their 4 versions of events. Those differences are about 5 the time that the family had dinner. Was it 6 four? Was it five? Where exactly Mr. Taggart's 7 son was during the hockey game? Was he in the 8 room watching the game or was he in another room 9 working out? Was Mr. Taggart out in the 10 afternoon or not? And, if so, was it because he 11 was doing community service work or was it 12 because he went to do groceries? On that point, 13 I think Mr. Taggart's father's evidence was he 14 really did not know. So I do not see that as an 15 inconsistency per se. As for the others, I do 16 not think they are significant inconsistencies. 17 If these two witnesses had given identical 18 details on the events of that afternoon, I would 19 be far more suspicious because, as I said, this 20 would be an uneventful day for them and there 21 would be no reason for them to remember all the 22 details. 23 Mr. Taggart said that he did go out that day 24 to do some community service work, and his 25 evidence about that is corroborated by the fact 26 that after all of these observations and after 27 seeking direction from her supervisor, Official Court Reporters 6 1 Ms. Kolback checked her messages at her office 2 and she did have two messages from Mr. Taggart. 3 This is consistent with their agreement that when 4 he leaves to go do his community service work, he 5 has to call her when he leaves the house to go, 6 and he has to call her when he returns after. 7 She said that she did have two messages from him, 8 that they were both about his community service 9 work, and that the second one was left at 3:08. 10 She did not remember the time of the first one. 11 The fact that there was actually hockey that 12 night (quite apart from the fact that I think I 13 could probably take judicial notice that there is 14 always hockey on Saturdays in the winter) and the 15 specific fact that there was a hockey game 16 starting at five between the teams that 17 Mr. Taggart's father referred to is also 18 admitted. If the plan was to watch a hockey game 19 that started at five, it would make sense to have 20 supper at four, and so for that I would tend to 21 accept the evidence of the father as to the time 22 that the family had dinner. 23 What is interesting about the inconsistency, 24 I think, is if Mr. Taggart was trying to mislead 25 the Court or if he and his father had somehow 26 cooked up a story, it would be a better story for 27 Mr. Taggart to say, like his father did, that he Official Court Reporters 7 1 had dinner at four because that would place him 2 in the house at the time that Ms. Kolback says 3 she saw him at Reddi Mart. But what Mr. Taggart 4 said was that he had supper around five. So his 5 evidence does not put the suppertime in conflict 6 with the time that Ms. Kolback said she saw him 7 at Reddi Mart. That is another reason why I find 8 it difficult to use these inconsistencies as a 9 basis to reject his evidence. 10 The law does recognize the frailties of 11 eyewitness identification. This applies when a 12 person is identifying someone that is unknown to 13 them, which is not the case here. But it also 14 applies to identification when the witness only 15 gets a quick look at someone, even somebody they 16 know. 17 I do recognize that Ms. Kolback is well 18 acquainted with Mr. Taggart, and were there not 19 any other evidence for me to consider, I might 20 find that her identification in the way that she 21 describes it is compelling enough to make out the 22 standard. But there is contrary evidence here. 23 And, she was in a vehicle on a Saturday afternoon 24 on a busy Yellowknife street, she had her 25 daughter with her, and after she made the initial 26 observations, she had to pay attention to the 27 light, she had to pay attention to her driving as Official Court Reporters 8 1 she was turning, and, after that, she was quite 2 some distance away. So on the whole, I think it 3 is more probable that, certain as she might be, 4 she did make an honest mistake about who she saw. 5 I think that is more probable than the other 6 alternative which is that both Mr. Taggart and 7 Mr. Taggart's father lied under oath this morning 8 in talking about this. 9 I do not find I have any real basis to 10 reject their evidence. Of course Mr. Taggart 11 would be in great jeopardy if he breached his 12 order again, and I suppose it can be argued that 13 his father would naturally want to protect him 14 from some of those consequences. But that would 15 always be the case when people testify in their 16 own cases and would always be the case when they 17 call witnesses who are their friends or family 18 members. On its own, I just do not find a 19 sufficient basis to reject their evidence. 20 The Court is of course concerned that its 21 orders be strictly complied with, and with that 22 in mind, I would suggest that any time that there 23 is a concern that a person who is on house arrest 24 is not complying with the term of their house 25 arrest, whether this is an observation that a 26 police officer makes on a regular patrol or a 27 conditional sentence supervisor or anyone else Official Court Reporters 9 1 concerned with upholding the law, the prudent 2 thing to do would be to take immediate steps to 3 try to either confirm the identity of the person 4 by following them, if that is possible, or by 5 getting a licence plate number, which may not 6 always be determinative but certainly could help. 7 Another option would be to attempt to confirm in 8 a positive way that the person is not inside 9 their house through an immediate phone call or an 10 immediate in-person visit. Now, I am not saying 11 this to be critical of Ms. Kolback. I realize 12 she was not working that day, she had her 13 daughter with her and she may well not have had 14 any of these options. I am just saying, in a 15 general way, for enforcement purposes and given 16 that there is a standard to be met, there are 17 ways where situations could be cleared up. In 18 fact, in the event that it is a mistake and the 19 person is in compliance, then of course it would 20 avoid their arrest and a breach hearing if it 21 turns out that, in fact, they are in compliance. 22 But that is all besides the point as far as this 23 hearing is concerned. On the whole, for the 24 reasons I have given, I am not satisfied that a 25 breach has been established on a balance of 26 probabilities. 27 Is there anything further you need, Official Court Reporters 10 1 Mr. Lecorre? 2 MR. LECORRE: No, Your Honour. 3 THE COURT: So the Conditional Sentence 4 Order is still in force. It remains in force and 5 as of now is in effect again. Is there anything 6 else required to have Mr. Taggart return under 7 the scope of that order as far as you are aware, 8 Mr. Davison? 9 MR. DAVISON: Not that I am aware of. 10 THE COURT: Once I decide there has been 11 no breach, that is that and there are no further 12 steps to be taken? 13 MR. DAVISON: I think that's correct. 14 THE COURT: I think so too. All right, 15 Mr. Taggart, you have heard my decision. This 16 order is in force for quite a long time yet, and 17 I know you understand that there is no more 18 buffer on this. So you really need to adhere 19 strictly to the conditions and phone in when you 20 are leaving, phone in when you come back, and 21 otherwise comply with all the conditions. 22 One thing that occurred to me when I was 23 reviewing the order, I do not think the new 24 address is reflected on the order. At least in 25 the -- Well, maybe it is. I do not know. But I 26 do not think it was ever amended. There is a 27 condition in there that says the address can Official Court Reporters 11 1 change with the permission of the supervisor, 2 which is fine. So we can leave it that way. Is 3 it the expectation that this will -- this current 4 address, whatever it is, will be the address for 5 the next foreseeable future? 6 MR. DAVISON: His father is indicating 7 "yes". Yes, both Mr. Taggart junior and 8 Mr. Taggart senior are indicating they do expect 9 it will continue -- 10 THE COURT: Because while we are all here, 11 it would make sense. 136 Enterprise was your 12 other address; right? 13 THE ACCUSED: Yes. 14 THE COURT: The old address? 15 THE ACCUSED: Yes. 16 THE COURT: What is the address where you 17 are living now? 18 MR. DAVISON: I understand it's 800 Range 19 Lake Court. 20 THE COURT: 800 Range Lake Court? 21 MR. DAVISON: Yes. 22 THE COURT: Mr. Clerk, I'm going to 23 amend -- Well, the order said "current address", 24 but I think that can be amended to the address 25 Mr. Davison has just said as of today's date just 26 so that the order is consistent with reality. 27 MR. DAVISON: Sure. Official Court Reporters 12 1 THE COURT: And it can be changed again 2 with the permission of your conditional sentence 3 supervisor. But I think it would be better if 4 the order reflected the actual address. 5 So if there is nothing further, Mr. Clerk, I 6 will ask you to amend the original and make sure 7 Mr. Taggart gets a copy of the amended version 8 before he goes. 9 THE COURT CLERK: Yes, Your Honour. 10 THE COURT: I think that is it for today, 11 Mr. Clerk. 12 THE COURT CLERK: That is correct, Your Honour. 13 THE COURT: We will close court. Thank 14 you, Counsel. 15 ................................. 16 17 18 Certified Pursuant to Rule 723 of the Rules of Court 19 20 21 Jane Romanowich, CSR(A) 22 Court Reporter 23 24 25 26 27 Official Court Reporters 13
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