R. v. Drynock

2020 BCSC 1832 R. v. Drynock

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Drynock, 2020 BCSC 1832 Date: 20201124 Docket: 108672 Registry: Kamloops Regina v. Michael Jerry Drynock Before: The Honourable Madam Justice MacNaughton Oral Reasons for Judgment Counsel for the Crown: O. Potestio Counsel for the Accused: A. Dorin Place and Date of Trial/Hearing: Kamloops, B.C. November 16-17, 2020 Place and Date of Judgment: Kamloops, B.C. November 24, 2020 Table of Contents Introduction. 3 Summary of the Evidence. 4 Mr. Heppner's and Mr. Lukacs' Identification Evidence. 7 Mr. Heppner's Identification Evidence at Trial 7 Mr. Lukacs' Identification Evidence at Trial 8 The Name and the Facebook Pictures. 9 Cst. Bains' Testimony. 10 The Second Statements of Mr. Lukacs and Mr. Heppner 10 Analysis. 12 Conclusion. 17 Introduction [1] Mr. Drynock has pled not guilty to assaulting Michael Heppner and Andy Lukacs with a weapon, contrary to s. 267(a) of the Criminal Code, R.S.C., 1985, c. C-46 [Code]. [2] On behalf of the Crown, I heard evidence from: · Mr. Heppner and Mr. Lukacs, the two complainants; · Mahkayla Butts, who witnessed the alleged assault; and · Cst. Steven Bains, a Royal Canadian Mounted Police ("RCMP") officer who was one of the investigating officers. [3] Mr. Drynock did not testify and called no evidence. [4] The Crown and the defence filed Admissions of Fact (the "Admissions") pursuant to s. 655 of the Code, which were marked as Ex.

1. The Admissions provide that on November 6, 2019, Reserve Cst. Gaeten Parr attended the Kamloops Regional Correctional Centre, met with Mr. Drynock, and took approximately six photographs of Mr. Drynock's hands. The photographs were attached to the Admissions as Appendix A. The importance of those photographs to the issues will become apparent later in these reasons. [5] The undisputed evidence of Mr. Heppner, Mr. Lukacs, and Ms. Butts establishes that, on June 30, 2019, while Mr. Heppner and Mr. Lukacs were assisting Ms. Butts to move into her sister's residence at the corner of Garcia St. and Clark Ave. in Merritt, BC, they became involved in a dispute with a man in a residence directly across the street. Their evidence establishes that, after a heated verbal exchange, the man threatened Mr. Heppner and Mr. Lukacs with a weapon that they believed to be a shotgun. [6] Mr. Heppner, Mr. Lukacs, and Ms. Butts gave their first statements to Cst. Bains on June 30, 2019. Their evidence establishes that they did not know the man with the weapon when they gave those statements. However, in Mr. Heppner's and Mr. Lukacs' second statements to Cst. Bains, given on July 17, 2019, they identified the man with the weapon as Michael Drynock. They did so after learning Mr. Drynock's name through the grapevine, and after looking at photographs of Mr. Drynock on his Facebook page. [7] During

the trial, each of Mr. Heppner, Mr. Lukacs, and Ms. Butts identified Mr. Drynock in court, in the prisoner's box, as the man who assaulted Mr. Heppner and Mr. Lukacs with a weapon. [8] As conceded by Mr. Drynock's counsel in her closing submissions, the only issue in dispute is whether Mr. Heppner's, Mr. Lukacs', or Ms. Butts' identification of Mr. Drynock is credible and reliable. Counsel concedes that the Crown has proven, beyond a reasonable doubt, all the other elements of the offence of assault with a weapon. Mr. Drynock does not rely on a defence of self-defence. [9] Thus, if I find that the Crown has proven beyond a reasonable doubt that Mr. Drynock was the man carrying the gun on June 30, 2019, Mr. Drynock concedes that the Crown will have proven, to the necessary standard, all of the elements necessary to convict Mr. Drynock. In light of the undisputed evidence at trial, I agree that all of the other elements of the offence of assault with a weapon have been established. Summary of the Evidence [10] Mr. Heppner, Mr. Lukacs, and Ms. Butts testified that, on June 30, 2019, Mr. Heppner and Mr. Lukacs were helping Ms. Butts move into her sister's home at the corner of Garcia St. and Clark Ave. At the time, Mr. Heppner was in a relationship with Ms. Butts' sister, and Mr. Lukacs was in a relationship with Ms. Butts. [11] From a home across the street on Garcia, they heard

yelling and swearing, things being slammed, and a child screaming and crying. In his evidence, Mr. Heppner described things being kicked around, slamming doors, a fence gate being kicked open, and a man swearing and "cussing" and acting belligerently. Mr. Lukacs described a wooden gate being violently slammed against a wall. [12] There was some disagreement about the time of the commotion and the subsequent events but, based on the 12:19 p.m. dispatch call to the RCMP, I find that the events occurred at about noon. [13] At the time of the commotion, Mr. Heppner said he was in his yard, close to his fence and was about 15-20 yards away. Mr. Heppner testified that Mr. Lukacs told the man to "knock it off" because he was not setting a good example for the child in the house. Mr. Heppner said that, at first, the man said he was sorry and would knock it off, but then things escalated. Mr. Heppner, Mr. Lukacs, and the man began swearing at each other back and forth and calling each other names. The man challenged them to a fight. Mr. Heppner recalled that he and Mr. Lukacs were standing at the fence in Mr. Heppner's yard, and the other man was standing at his fence, and they were yelling at each other from across the street. Mr. Lukacs recalled that he was at the top of the stairs. Mr. Heppner told the man to shut his mouth, go about his day, and stay where he was. [14] Mr. Heppner

said that when the man challenged them to a fight, he offered to meet him in the middle of the road. At the time, the man was either standing in the middle of the road or heading towards there. Mr. Heppner went around his fence to engage the man in the street. As he advanced, the man ran back into his own yard, went over a chain link fence, around the side to a wooden fence, grabbed a firearm and came back. Mr. Heppner estimated that he did so in about 5-10 seconds. [15] Mr. Lukacs' evidence was generally consistent with Mr. Heppner's, although he recalled the man jumping over the fence in his yard and strutting across the street, trying to look tough. The man leaned on Mr. Heppner's fence, told them how stupid they were to mess with him, and that they didn't want to tangle with him. Mr. Lukacs confirmed that, when Mr. Heppner went to confront the man, he ran back, went over the fence, went over by a wooden fence, grabbed a gun, and came back. [16] Mr. Heppner and Mr. Lukacs agreed that Mr. Lukacs had remained in Mr. Heppner's yard up until that point. When the man came back with the gun, Mr. Lukacs started walking into the street. Mr. Heppner testified that, on seeing the gun, his immediate reaction was to pause and assess whether the man was going to use it. Both Mr. Heppner and Mr. Lukacs testified that the man was brandishing the gun, holding it up with one hand on the

pistol grip and the other on the barrel, and pointing it towards them. Mr. Lukacs said the man was holding the gun "like a hero from an action film". The man said, "you guys fucked up and I have some serious fire power now". [17] Mr. Lukacs testified that he told the man to put the gun down and fight like a man. Mr. Lukacs said that the man kept approaching with the shotgun and was fidgeting and waving the gun around recklessly. Mr. Lukacs described "losing it" when the man waved the gun around and pointed it at him. He said that he was not afraid; adrenaline took over. In cross-examination, he agreed he was angry. [18] Both Mr. Heppner and Mr. Lukacs testified that they had grown up hunting and were familiar with weapons. In his direct evidence, Mr. Heppner described the gun as black, either a Mossberg or a Remington 12-gauge shotgun with a defender grip. He said it had a folding stock and a spot on the stock which could hold extra cartridges. He did not see any extra cartridges. In his direct evidence, Mr. Lukacs described the gun as a black, pump action shotgun with a folding stock. He said it looked like a Mossberg defender. He explained that the defender is a grip. He said that when he saw the gun, the stock was folded to the side. [19] Mr. Lukacs testified that as he went out to confront the gunman, he kept his eyes on the man's hands to try and anticipate what to expect.

He said he was not too worried about the gun being loaded. He was looking for a chance to take the gun and subdue the gunman. He beckoned the man with his hands to come and fight. Mr. Lukacs estimated that the closest the gunman got to him was about eight or ten feet, while advancing forward. [20] Mr. Heppner described that the man pointed the shotgun directly at Mr. Lukacs, who was in the middle of the road. Mr. Heppner was still in the yard, and Mr. Lukacs was in front of him. He said that Mr. Lukacs and the gunman were about five feet apart and the man held the shotgun at his hip with one hand on the pistol grip and the other on the pump action. [21] Mr. Lukacs agreed that the gunman was holding the gun at about mid-height and pointing it at him. He testified that the gunman had his finger on the trigger. [22] The gunman was yelling that he had a gun and Mr. Lukacs should run. Mr. Lukacs did not back down. Mr. Lukacs challenged the gunman, saying that if he was going to shoot, he should do it. Mr. Heppner told the man that the gun was a stupid idea, the police were probably on their way, and he cannot walk around flailing a shotgun. Mr. Heppner said the gunman said something like "you'll regret it" and that they were stupid because he had a gun. Mr. Heppner said he told someone to call the police and was preparing to rush in if the gunman did anything. [23] Mr. Heppner and

Mr. Lukacs testified that the gunman backed off. He ran down the road to the end of the street onto a trail along the Coldwater River. Mr. Lukacs said that he saw the gunman poke his head out of the bushes a few minutes later. [24] Both Mr. Heppner and Mr. Lukacs believed that the gunman was intoxicated. [25] Mr. Heppner, Mr. Lukacs, and Ms. Butts provided statements to the RCMP on June 30, 2019. Mr. Heppner and Mr. Lukacs provided second statements on July 17, 2019. I will return to those statements later in these reasons. Mr. Heppner's and Mr. Lukacs' Identification Evidence. Mr. Heppner's Identification Evidence at Trial [26] Mr. Heppner testified that he did not know the man involved in the events of June 30. In cross-examination, he agreed that the man was absolutely unfamiliar to him. He had not otherwise seen him, in person, outside of the court. He identified Mr. Drynock, in the prisoner's box, as the person who threatened him and Mr. Lukacs with a gun. [27] In his evidence, Mr. Heppner described the man as young--in his late teens or early twenties--and "native". Mr. Heppner said the man was of average height; a little shorter than Mr. Heppner, who is 5'10"; and that he weighed about 140-150 lbs. He described scars or tattoos on the man's knuckles that he said looked like a spade or a diamond from a deck of cards. He first noticed the scars or tattoos when the man was

across the road, leaning over the fence, and they were yelling at each other back and forth. He also saw them when the man got closer. He could not recall whether the scars or tattoos were on one or both of the man's hands, but said they were on the front part of the knuckles, the part exposed on a clenched fist. He did not recall the colour of the scars; he said he did not think they were coloured. He described them as scars that looked like they had been carved in recently. Mr. Heppner said that the closest the man got to him was about six or seven feet away, when the man came close to his fence. [28] Mr. Heppner was shown the photographs of Mr. Drynock's hands in the Appendix to the Admissions and testified that the tattoos depicted in photograph 2, in particular the diamond shape, were what he saw on June 30, 2019. Mr. Lukacs' Identification Evidence at Trial [29] In his direct evidence, Mr. Lukacs testified that he had seen the gunman before June 30, about two or three times in passing. He did not know him, and they had never spoken. [30] In his evidence, Mr. Lukacs described the gunman as between 5' 8" and 5' 10" in height, and about 21 to 25 years of age. He said the man was of slim build, was wearing shorts but no shirt, and had dark or black hair that was cut very short, appearing shaved. He also testified that the man was wearing glasses, was "native", and had

pockmarks on his cheeks. Mr. Lukacs said the man had scars or tattoos on his fingers, one of which was like a "squared-off", "crappy"-shaped diamond. The scars or tattoos were on the first finger knuckle at the base of his fingers. He described the scars or tattoos as dark, almost like fresh cut, but dark nonetheless. Mr. Lukacs first noticed the scars or tattoos, on what he believed was the man's left hand, when the man was about 20 feet away and closing in towards him. [31] Mr. Lukacs was also shown the photographs of Mr. Drynock's hands in the Appendix to the Admissions. He said photograph 2 was consistent with what he saw on June 30, 2019, but the scars on that date looked "fresher", like they were "cut in" and not actually tattooed. The Name and the Facebook Pictures [32] Mr. Heppner testified that, at some point shortly after the events of June 30, 2019, he was told by someone that the man's name was Michael Drynock. One or two days later, he was shown pictures of Mr. Drynock on Facebook, and he recognized the man in those pictures as the man involved in the events of June 30. [33] In cross-examination, Mr. Heppner identified the Facebook photographs that he said he and Mr. Lukacs looked at together. The Facebook photographs were marked as Ex. 2. [34] Mr. Lukacs said that Mr. Drynock's Facebook photographs matched the person with the shotgun. In cross-examination, Mr.

Lukacs said that, after the incident and after he had given his first statement to the RCMP, he was told by someone named "Martin", who said he was Mr. Drynock's father, that the gunman's name was Michael Drynock. Mr. Lukacs did not know Martin's surname, but he believed what he was told. He testified that Martin was not present during the confrontation, but came along afterwards. [35] Mr. Lukacs said that he pulled out his "device" (presumably a phone), right then and there and "punched [Mr. Drynock] into Facebook". He testified that "there the man was" and that the photographs he saw matched the person with the shotgun "one hundred percent, beyond a shadow of a doubt". [36] In cross-examination, Mr. Lukacs testified that he and Mr. Heppner never looked at Mr. Drynock's Facebook page together. [37] During their direct evidence, Mr. Heppner, Mr. Lukacs, and Ms. Butts all identified Mr. Drynock in the courtroom as the individual who was involved in the June 30 incident. Mr. Heppner and Mr. Lukacs said Mr. Drynock was the man who had threatened them with a shotgun. Mr. Heppner said that he was very sure he could identify Mr. Drynock as the man involved. Despite being pressured in cross-examination, Mr. Lukacs said Mr. Drynock was the man he had seen. Ms. Butts said she was 100% sure that Mr. Drynock was the man; she remembered his face, and it brought back fear. Cst. Bains'

Testimony [38] Cst. Bains testified that he, and other officers, responded to a dispatch call about a man walking southbound on Garcia St. towards the river trail, carrying a shotgun. Because of the concern for public safety, the call was a "priority 1", an urgent call. Six officers and the Kamloops police dog service responded. [39] When Cst. Bains first arrived at Garcia St., he had a brief, unrecorded, conversation with Mr. Lukacs in which he asked Mr. Lukacs to tell him what happened and to describe the person he argued with. Based on what he was told, Cst. Bains concluded that there was an outstanding safety risk with respect to a possibly intoxicated man, on foot, with a possibly loaded firearm. He then took recorded statements from Mr. Lukacs and Mr. Heppner. [40] At some point in the investigation, Cst. Bains identified Mr. Drynock as a potential suspect. The RCMP did not locate Mr. Drynock on June 30, 2019, and no shotgun was ever found. The Second Statements of Mr. Lukacs and Mr. Heppner [41] On July 17, 2019, Cst. Bains took follow-up statements from Mr. Heppner and Mr. Lukacs. He intended to have them participate in a photo line-up, but, because they caught wind of who the man was, and identified him through photographs on Facebook, Cst. Bains did not proceed with the line-up. Cst. Bains agreed in cross-examination that the purpose of a photo line-up is to test the

reliability of a witness' recollection. He agreed he did not do one because Mr. Heppner's and Mr. Lukacs' evidence was tainted. He could not be sure whether they would be identifying a suspect from the Facebook photos, or from their recollection of the gunman. As a result, Mr. Heppner and Mr. Lukacs never identified Mr. Drynock from a photo line-up. [42] In cross-examination, Mr. Heppner agreed that, in his first statement to Cst. Bains, he described Mr. Drynock as being of average height, skinny build, with short hair, and as a "native" guy. He described him wearing green shorts and brown boots. Mr. Heppner acknowledged that he did not mention scars or tattoos on Mr. Drynock's hands. [43] It was not until his July 17, 2019 statement that Mr. Heppner described the scars on Mr. Drynock's hands. He said that it looked like Mr. Drynock had carved a diamond or spade on his knuckles and that the scars were red in colour. He said they did not look like a tattoo. [44] In cross-examination, Mr. Lukacs agreed that, in his first statement to Cst. Bains, he described the gunman as "native, about 5'9" to 5'10", wearing black shorts but no shirt, and with hair shaved fairly close to his head. He agreed that he was being truthful and he understood the importance of describing the gunman and telling the RCMP everything he remembered. [45] Mr. Lukacs agreed in cross-examination that, in his

second statement on July 17, he told Cst. Bains about three additional identifying features of the gunman. He said that the man was wearing glasses, had "pockmarked" skin, and had marks on his hands that looked like scarring. Mr. Lukacs told Cst. Bains that he remembered seeing marks on the gunman's fingers that did not look like tattoos, more like cuts or homemade tattoos gouged in, with ink on top. Mr. Lukacs agreed that he had not mentioned these additional features in his first statement and that they would have been important information because the marking on the gunman's hands was distinctive. [46] Mr. Lukacs said that he was sure he told Cst. Bains about the additional features on June 30, 2019, but the RCMP had not recorded them. He agreed that he had never alerted anyone about his missing comments. In fact, he testified that he said his first statement was correct and complete to the best of his knowledge. After a break in the trial, Mr. Lukacs testified that not all of his first statement had been recorded by Cst. Bains. He said he was 99% sure that was what had happened. When he was cross-examined on whether he had changed his evidence to make it seem more plausible, he denied that was the case. Analysis [47] As I said at the outset of this decision, the sole issue is whether the Crown has proven, beyond a reasonable doubt, the identity of Mr. Drynock as the man who

assaulted Mr. Heppner and Mr. Lukacs with a weapon. [48] All three witnesses, Mr. Heppner, Mr. Lukacs, and Ms. Butts, were there on June 30, 2019, and stated that Mr. Drynock was not known to them prior to the events on June 30, 2019. All three of them also identified Mr. Drynock as the man who had assaulted Mr. Heppner and Mr. Lukacs. They did so in the courtroom, for the first time, about 17 months after the events. [49] I will consider the reliability of their evidence. In doing so, I am mindful of the fact that human observations and memories are often unreliable when it comes to identifying others, particularly when they have different racial characteristics. [50] When it was put to Mr. Heppner, Mr. Lukacs, and Ms. Butts in cross-examination that Mr. Drynock was the only Indigenous man in the courtroom, they agreed, but confirmed their identification of him. Mr. Heppner said that he was very sure that Mr. Drynock was the man. Mr. Lukacs said it was not possible that he identified the wrong person and there was no possibility that he had made a mistake. Ms. Butts said she was 100% sure that it was Mr. Drynock and that when she saw his face, it brought back fear. [51] Although the witnesses were confident of the accuracy of their identification of Mr. Drynock in the prisoner's box, as explained in R. v. Hibbert, 2002 SCC 39 at paras. 49-52, in-court eyewitness identification

has inherent frailties although it is deceptively credible. The Court described in-court identification as having almost no value as reliable evidence of positive identification and said it should be given very little weight. In this case, in addition to Mr. Drynock being seated in the prisoner's box, he was the only Indigenous man in the courtroom. [52] In addition to the little weight generally afforded to in-court identification, there are other frailties with the identification evidence in this case. [53] In particular, in Mr. Heppner's first statement to Cst. Bains, when asked to describe the man involved in the assault, he gave a fairly generic description of a "native" man with short hair, of average height and skinny build. Mr. Heppner did not mention that the man had scars or tattoos on his knuckles that looked like a spade or a diamond from a deck of cards. [54] As this was a unique and distinguishing feature of the gunman, I would have expected Mr. Heppner to mention it to Cst. Bains at the first opportunity, particularly because he said the scars or tattoos were so visible. Mr. Heppner testified that they were visible to him from across the street, a distance he estimated to be about 15-20 yards, and were also visible when the gunman got closer. [55] Mr. Heppner first mentioned the scars in his July 17 statement, a few weeks later. That statement was given after Mr.

Heppner had seen a photograph on Mr. Drynock's Facebook page, in which scars on his hands are visible in the shape of what appears to be a diamond and a heart or a spade. In the Appendix to the Admissions, taken months after the events, Mr. Drynock's tattoos have healed, are black in colour, are clearly in the shape of a diamond and a heart, and appear to have been done by an amateur tattooist. [56] Mr. Heppner's second statement to Cst. Bains may have been tainted by him learning Mr. Drynock's name, and reviewing pictures of Mr. Drynock, prior to giving it. [57] In Mr. Lukacs' first statement to Cst. Bains, when asked to describe the man involved in the assault, he gave a fairly generic description of a young Indigenous man. [58] Like Mr. Heppner, Mr. Lukacs did not mention the fresh-cut scars or tattoos on the gunman's fingers, one of which was in the shape of a squared off diamond. He also did not mention that the gunman wore glasses or had pockmarked skin on his cheeks. [59] The first time Mr. Lukacs mentioned the marks on the gunman's fingers, his glasses, and his pockmarks was in his July 17 statement. As is the case with Mr. Heppner, that statement was given after Mr. Lukacs had seen Mr. Drynock's Facebook photograph in which he is seen wearing glasses and where there are visible pockmarks on his skin. All three of these features were distinguishing, and I would have

expected them to have been mentioned by Mr. Lukacs at the earliest opportunity. [60] When he was cross-examined about these three omissions in his description, Mr. Lukacs gave several explanations. First, with respect to the glasses, Mr. Lukacs said that when the man came through the gate, he had glasses on, but he did not have them on when he came across the street. This statement, during cross-examination, was the first time Mr. Lukacs referred to the man initially wearing glasses but then not wearing them at some point during the interaction. He suggested that the gunman may have lost his glasses at some point. Second, with respect to the pockmarks on the gunman's face and the markings on his hands, Mr. Lukacs said that his first statement was given quickly to Cst. Bains at the side of the street. [61] Third, after a break and while still under cross-examination, Mr. Lukacs said that he was "ninety-nine percent sure" that he had told Cst. Bains about the man's three additional distinguishing features when he first spoke to him. He explained that Cst. Bains had not recorded the first part of their conversation because he was anxious to find the man. He acknowledged that he had never told Cst. Bains or the Crown that his first statement was incomplete. He said it never occurred to him to do so. [62] Cst. Bains acknowledged having an unrecorded conversation with Mr. Lukacs. He

was concerned about the outstanding safety risk to the public of a man with a gun. In cross-examination, he testified that he asked Mr. Lukacs to repeat their conversation so that it could be recorded. He said that if Mr. Lukacs had provided a more detailed description of the suspect, when they were off the record, he would have asked Mr. Lukacs to repeat that detailed information on record. In particular, he would have had him repeat the information about the suspect wearing glasses, the marks on his hands, and his pockmarked skin. Cst. Bains said that Mr. Lukacs had not told him those details on June 30. [63] Other details in Mr. Lukacs' evidence call its reliability into question. In his first statement to Cst. Bains, he described the man as carrying a sawed-off shotgun. In his evidence at trial, Mr. Lukacs gave a description of the shotgun that was remarkably similar to Mr. Heppner's description of it. He denied that he had spoken to Mr. Heppner about the shotgun. Instead, he testified that he had been mistaken in his description and had not known that a sawed-off shotgun describes a gun in which the barrel has been sawed off. He said he was under the misconception that a sawed-off shotgun could also describe a gun that had been sawed off at the butt. This misconception seems unlikely for a man who said that he was familiar with guns. [64] It was also of note that when Mr.

Lukacs was asked to identify the page from Mr. Drynock's Facebook account that he used to identify Mr. Drynock, he acknowledged seeing all of the photographs on the first page except the one showing the raw tattoos on Mr. Drynock's hands. Unlike Mr. Lukacs, Mr. Heppner agreed that he had seen all four photographs. Mr. Lukacs' evidence, that he had only looked at three of the four photographs on the page, was not believable. [65] I also have reliability concerns with respect to Ms. Butts' identification evidence. Repeatedly, in her evidence, she referred to her anxiety. It appears that she avoided observing much of the altercation in order to remain calm. [66] Ms. Butts testified that she was standing on the bed of the pickup truck, unloading her belongings, when she heard a man across the street yelling and swearing. She said that, from the bed of the truck, she could see over into the yard of the house across the street. She saw the man who was swearing and yelling coming up from the basement, going into the yard, and up the steps into the upstairs of the house. She estimated that the man was 50-60 feet away from her. [67] She said that to remain calm, she tuned things out at first but when she heard more yelling, she stepped into the house and closed her eyes. She did not see or hear anything. [68] When Ms. Butts came back outside to finish unloading, she saw the man with

what she believed to be a shotgun, pointing it at Mr. Lukacs who was in the street. She said that Mr. Lukacs was telling the gunman he needed to stop. She went back inside into a bedroom from which she could watch but would be safe. She testified that, at first, she sat for about five minutes, telling herself to breathe, and then looked out the window. [69] She estimated that she was about 20 feet away and that the gunman was about five to ten feet away from Mr. Lukacs. She testified that the closest she came to the gunman was about 30 feet. [70] In light of Ms. Butts' distance from the gunman, and the short time before the gunman backed down and ran off, I conclude that Ms. Butts' ability to observe, and therefore identify the suspect, was considerably limited. Her description of the gunman was at odds with the descriptions given by Mr. Heppner and Mr. Lukacs. She described the gunman as shorter and about 50 lbs heavier than either Mr. Heppner or Mr. Lukacs described him. They were closer to him and observed him for longer. I conclude her description of the gunman is unreliable. Conclusion [71] For the reasons given, I conclude that Mr. Heppner's and Mr. Lukacs' in-court identification of Mr. Drynock was likely based on their memory of the photographs they saw of him on his Facebook page, instead of their memory of the person they saw on June 30, 2019. They did not know the

man with whom they became involved on that date. Their descriptions changed and became more detailed between their first and second statements to Cst. Bains. Their first statements were generic. Their second statements were made after they were told who Mr. Drynock was and they saw his Facebook page. In their second statements, for the first time, Mr. Heppner mentioned one distinctive and distinguishing feature, and Mr. Lukacs mentioned three. I would have expected them to have mentioned those distinguishing features to the RCMP at the first opportunity. All of those features were visible on the Facebook page which they reviewed between giving their first and second statements. [72] In these circumstances, Mr. Heppner's, Mr. Lukacs', and Ms. Butts' first-time identification of Mr. Drynock in the prisoner's box in the courtroom can be given almost no weight. [73] Before the trial, none of Mr. Heppner, Mr. Lukacs, and Ms. Butts had picked out Mr. Drynock from a number of other persons of similar age, size, and general physical appearance as would occur in an actual photographic line-up. Cst. Bains was concerned enough about Mr. Heppner's and Mr. Lukacs' identification being tainted by the Facebook pictures that he did not conduct the photographic line-up he had planned. He never asked Ms. Butts to participate in a photographic line-up. [74] By reviewing the Facebook photographs

of Mr. Drynock, the complainants effectively conducted a photographic line-up of one person after they were told the name of the suspect. [75] Both Mr. Heppner and Mr. Lukacs described the events as occurring and being over relatively quickly. They both estimated that their entire interaction with the man was for less than two minutes. For approximately half of that time, the man had a gun, which was a focus of their attention. Both were able to describe how the man was holding and pointing the gun. Mr. Heppner was able to describe the gun in some detail and to see that there were no additional cartridges on the stock. Mr. Heppner was assessing whether the man was going to use the gun and was afraid that Mr. Lukacs would be shot. Mr. Lukacs was looking for an opportunity to disarm and subdue the gunman. Neither complainant was entirely focused on the gunman. [76] The concerns expressed Hibbert are present here. Mr. Heppner, Mr. Lukacs, and Ms. Butts naturally anticipated that the offender would be present in the courtroom. In this case, those concerns are accentuated because Mr. Drynock was the only Indigenous man in the courtroom. The only other men in the courtroom were Crown Counsel, who was gowned, and the Sheriff, who was in uniform. [77] The impact of Mr. Heppner and Mr. Lukacs having seen the Facebook photographs of Mr. Drynock could not be undone, and they could not be

expected to divorce their previous recollections of the gunman's appearance from what they saw on Facebook. [78] Further, in this case, the Crown did not have any other evidence linking Mr. Drynock to the residence from which the commotion was heard and the gunman emerged with the gun. Mr. Drynock was not found with a gun, and the gun has never been located. [79] In all the circumstances, I find that the Crown has not established beyond a reasonable doubt that Mr. Drynock was the man who assaulted Mr. Heppner and Mr. Lukacs on June 30, 2019, and dismiss the charge against him. "MacNaughton J."