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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
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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,
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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
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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
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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.
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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,
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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
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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
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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
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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,
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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
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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.
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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.
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18 Certified Pursuant to Rule 723
of the Rules of Court
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Jane Romanowich, CSR(A)
22 Court Reporter
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