R. v. Quinlan Date:, 2014 BCPC 374

Citation: R. v. Quinlan Date: 20141001 2014 BCPC 0374 File No: 199762-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DANIEL STEWART QUINLAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: J. Lester Counsel for the Defendant: D. Silverman Place of Hearing: Surrey , B.C. Dates of Hearing: June 24, 25 and 26, 2014 Date of Judgment: October 1, 2014 [ 1 ] It is alleged that the accused, Daniel Stewart Sean Quinlan, on or about the 23 rd day of August, 2011, at or near Surrey, in the

Province of British Columbia, did break and enter a dwelling house situated at 3409 196 Street and did commit an indictable offence therein, contrary to Section 348(1) (

d) of the Criminal Code ; further that, on or about the 23 rd day of August, 2011, at or near Surrey, in the Province of British Columbia, without lawful authority, confined James Sorensen, contrary to Section 279(2) of the Criminal Code; and further that, on or about the 23 rd day of August, 2011, at or near Surrey, in the Province of British Columbia, did, in committing an assault upon James Sorensen, use a weapon, to wit: an incapacitating and/or noxious spray, contract to

Section 267 (

a) of the Criminal Code . Mr. Quinlan has entered a plea of not guilty. Fingerprint identification is the crux of this matter. [ 2 ] The Court heard testimony from RCMP Officer Klassen, who has been with the detachment in Surrey, British Columbia, for the past six years. On August 23, 2011, he was working the night shift and received a call from dispatch to respond to a fire located at 3409 196 Street, in Surrey, British Columbia, which he described as being a remote area and secluded from the urban setting, that it had no street lighting and poor general lighting conditions.

He was working alone, was dispatched at 23:22 hours and arrived on scene at 23:40 hours. Upon his arrival, fire trucks were on scene, with their fire lines pulled out in service. He entered onto the property and saw the property representative, that being Mr. Sorensen. The fire department updated the Officer and he observed what he believed to be a grow op at the back of the property. He testified that he parked his vehicle north on 196, that he entered the property to the left, that the home was dark and he observed flames coming from an outbuilding on the property.

He observed that the rear entry to the home had a broken frame and there was used duct tape on the floor within the home. He was unable to remember if he was alone when he first entered the home. He was unable to recall if there were any lights on in the home and unable to recall how long he was in the home. He left the property at 02:22 a.m. on August 24, 2011, with security present on the scene. He testified that other RCMP officers had cleared the home prior to his entry of the home. He observed bear spray residue on the sheets but did not make a notation if it smelled.

He identified that photographs 72 and 74 of Exhibit 1 in these proceedings were of the bear spray residue. [ 3 ] On cross-examination, he testified that the home had been cleared by other members before he entered. He further clarified that because he had received a report of three persons holding someone, other members had entered and cleared the home initially to determine if others were inside of the home. He did not observe the other members clearing the home and was unable to recall how they entered the home.

The door to the home was ajar when he entered and the door was damaged when he entered the home. [ 4 ] Officer Kane has been with the RCMP for the past 15 years, of which the past 7½ years as a peace officer, all in Surrey, British Columbia. On August 23, 2011, he was working the night shift and was dispatched to 3409 196 Street, Surrey, British Columbia, in response to a structure fire. He arrived on scene at 23:39 hours and observed both fire and ambulance on scene. He observed flames coming from the back of the property and the main residence, that being the home, was not on fire.

He was not dealing or interacting with the tenant. Upon the fire being extinguished, he observed the remains smouldering and observed grow-op equipment and knew it was such because, in his career as a police officer, he had historically attended many grow-ops and he also observed a cylindrical carbon filter and metallic shrouds. He was told that it was safe to approach the building. He entered into the home in order to ensure that there were no persons in the home and was clearing the home. The first officers who entered the home to clear it were himself, Officers McDonald and Bignald.

None of them had weapons drawn. He described the area lighting as being in a rural areas, dark and poorly lit, therefore he used his flashlight. Once he entered the home, he said that the lights in the home were on. He entered the home via the rear doorway and noticed immediately damage to the dead bolt area of the door. He recognized the smell of bear spray and it irritated his nose, throat and eyes, and he observed scattered objects on the floor.

He testified that he knew the difference between bear spray versus pepper spray from training – that bear spray has a distinct stronger odour – and that bear spray is often used in Surrey so he is very familiar with it. The Officer was coughing both in and out of the home. He immediately smelled the bear spray as he entered the hallway near the bedroom.

In further detail, he described his entry to the home as entering the back doorway and into the kitchen where he observed a used roll of duct tape on the counter; on the floor was a rolled circular portion of duct tape that had bear spray residue in a yellow orange colour on it. He did not see anyone touch the tape on the counter nor on the floor.

He cleared the kitchen, living room and bedrooms, observing items strewn and scattered, including drawers ransacked and objects on the floor that would not normally be on the floor. [ 5 ] As part of his Direct, the Officer identified a series of photographs in Exhibit 1, including Photograph 3 as being the residence that he attended; Photographs 8 and 30 as being the burned out-building; Photograph 42 as the back door that he entered; Photographs 43 and 44 as the damage that he observed; Photograph 47 as the entry with the duct tape by the shoe that he observed; Photographs 51 and 52 as the roll of duct tape in the identical position as he had initially observed it; Photograph 54 as the hallway to the bedroom with items scattered as he had observed; Photograph 59 as the living room with the items scattered as he observed; Photograph 62 as the hallway as he had observed; Photographs 71, 72 and 74 as the bear spray residue on the sheets as he had observed and re-iterated the intense smell of bear spray both there and in the hallway. [ 6 ] The Court heard testimony from Mr.

James Sorensen, the complainant/victim in the Information, who is employed as a general labourer in metal fabrication and as a painter. On August 23, 2011, he had just been laid off from the saw mill. He acknowledged to having a grow op on the property in which he testified he held a licence to both possess and produce. He lived alone on the five acre property which is located in Surrey, British Columbia. He was paying $1,150.00 a month in rent for the home and small outbuildings on the property. One outbuilding caught on fire and burned down. [ 7 ] In terms of further specifics in Direct, Mr.

Sorensen testified that on August 23, 2011, he was home, that he got out of the shower that evening, dried off and was naked when he heard a car door slam which he testified sounded close by to him. He walked to the kitchen window which overlooked the driveway and observed three men approach the house. He was not expecting anyone. It was after 10:00 p.m., but he was unable to recall the exact time. It was quite dark that evening but he was clearly able to see the three men. He and the men looked at one another, approximately 8-10 feet apart from one another, and he testified that one was holding a machete.

He retreated and grabbed his telephone. There was a loud sound on the back door which sounded like someone kicking the door. He testified that he was reluctant to call 911 because of what he described as a “grey area of grow ops”, that he fumbled with his phone and he went into the bedroom. When in the bedroom, he had bear spray to defend himself that was an approximate 8 inch aerosol can that he kept on a shelf or night stand in the bedroom which he had purchased at a surplus store and the pin was intact.

He was unable to recall if he had pulled the pin, however, he held the can in his hand and the men had entered the home and the house lights were on. He was unable to see the back door from the bedroom. He heard the door give way, he heard the men enter the home and while he was in the bedroom he looked into the hallway while he was naked and he and the men faced one another. He said that there were three men in the

kitchen area and thereafter one in the hallway, whom he described as being to the left when he faced them and was having, what he thought, looked like an automatic hand gun. The man in the middle was holding something that he thought looked like a pipe and the third man holding a machete. He testified that they sized up one another, that he fumbled for his phone while in the bedroom, that he decided not to use the bear spray but continued to hold it in his right hand and without anyone saying anything, the three men entered into the bedroom. He said that he was shocked and surprised and afraid of the machete.

He said that the three men entered into his bedroom and crowded and huddled around him. None of the three men had their faces covered. One of the men took his phone and he does not recall who but heard one of the men say to pepper spray him (meaning Mr. Sorensen). There was pepper spray used in his eyes that came from the right side that was from the spray taken from his own hand and the spray lasted from seconds to less than one minute. He lost his vision as a result of the spray. [ 8 ] When asked on Direct, Mr.

Sorensen was unable to identify anyone in Court as being a person whom he could identify nor did he know who was Dan Quinlan. He testified that he was sprayed point blank from the right side, thereafter the loss of vision became worse with his eyes burning and he closed his eyes. He was told and laid face down on his bed without resisting and his bed was approximately 3 to 4 feet from the bedroom door. His feet were facing the door when he lied across the bed, his eyes were burning and his chest was burning because the spray was running down his body.

He could hear the house being trashed, he heard one of the men asking repeatedly “Where are the keys?” He was hit a couple of times at the back of his leg with something that he said was a blunt instrument. He believed he was on the bed for 20 to 30 minutes. [ 9 ] He was unable to recall where he had left the keys, so he told the men to just kick down the door, which he presumed that they did, meaning to the outbuilding. One of the men remained with him in the bedroom, one went to the outbuilding and one was going through the house.

He figured such by the noises that he heard. [ 10 ] He described the grow op in an outbuilding as having 8 lights in the main part and 2 in the other, all containing immature pot plans and all less than 6 inches in height, with ten plants per light for approximately 80 plants, in addition to several mother plants. There were no flowers, no buds and he was not aware of the value. [ 11 ] He testified that his hands were tied behind his back with duct tape while he was on the bed. He recalled one person giving orders.

He testified that while face down he was told to put his hands together and he did so and heard the sound of duct tape, but then changed his testimony to state that he could not be sure that it was the sound of duct tape.

He testified that he was unable to recall the last time he used duct tape and that it was not unusual for him to have it. [ 12 ] He had not consumed any alcohol and that it was possible that he had smoked a small amount of marijuana but was unable to recall definitively. [ 13 ] With his hands behind his back and bound, he said he was not in pain and he focussed on the pain from the spray burning and going into his arm pits. [ 14 ] He testified that there was one of the three men in particular who kept asking where’s the money and where’s the dope. One person said that he (referring to Mr.

Sorensen) made $300,000 by growing it and asked him why he didn’t have money to which Mr. Sorensen said, “I guess I’m not very good at growing it, am I?” [ 15 ] After the fire, the house had been ransacked.

Computers had been stacked up to leave, a fake Rolex was missing, cufflinks were missing, family rings and jewellery was missing, a box of shot gun shells was left behind. [ 16 ] The men told him that he should have been working for them and that had he done so they would have only taken 20 per cent, to which he said he told them “let’s make a deal” and one man told him that they had already smashed the lights (referring to the lights in the grow op). He heard one man yell “Fire… there’s a fire”, someone said to check his car. He lied face down until they left.

He got up and ran out and saw flames from the outbuilding when he looked out of the window, his hands were still bound. He ran outside and pounded on his neighbour’s door despite obstructed vision. His neighbour was sleeping and he told his neighbour to cut him loose and he acknowledged to being agitated. He said that the neighbour was looking for a knife to cut him loose but he said that he had a knife so ran back to his house for a knife. The length between the two homes is approximately 150 - 200 feet and was dark on a trail.

He recalled that somehow at one point his neighbour cut the tape off but was unable to recall if it was all cut off and removed. He pulled his hands apart when he was returning to his home and ran into his home to put on his pants. He was unable to recall where he dropped the cut duct tape. He thereafter grabbed the garden hose. He never called fire or police; however, the fire department arrived on scene first. Police attended and he testified that he reluctantly dealt with police. He was arrested for what he described as “cultivation for the purpose of trafficking” and later released.

He testified that he felt the effects of the spray for two to three days.

He testified that he was worried about his cat, that the Officer allowed him to get some of his clothes, and thereafter he stayed at a friend’s house. [ 17 ] When asked to identify the photographs contained in Exhibit 1, he identified Photograph 1 as being the entry to the home located at 3409 196 Street, Surrey; Photograph 8 was the outbuilding containing the grow op; Photograph 24 was the garage; Photograph 26 was his own pump but he was unable to recall if the hammer was there; Photographs 29 and 30 was the grow op on the left and the house on the right; Photograph 37 was the back of the house; Photograph 40 was the door behind the hot tub; Photographs 41 and 42 was the door where the three men entered, Photographs 43 and 44 was of the door the men entered which had new damage including to the dead bolt; Photograph 46 was into the kitchen; Photograph 47 was the kitchen; Photographs 48 and 49 he testified that he had not observed the duct tape prior to his entering the home in that spot and did not recall it until he saw the photographs; Photographs 51 and 52 he testified that the tape was not there before this incident; Photograph 54 was from the kitchen with the bedroom door being on the right with two computers in the office and that the home looked like this when he returned from dealing with the police; Photograph 55 was of the living room and particularly the wooden box should have been on the table; Photographs 59 and 60 were his cushions that the men had cut up; Photograph 62 was of items that he said had been disrupted; Photographs 64 and 65 were of items moved about; Photograph 66 was of items knocked over; Photographs 71 and 72 was the bedroom entrance and the spray that had been on his face.

He testified that while he was on the bed, someone had lifted the bed and moved it. [ 18 ] On Cross Examination, Mr. Sorensen acknowledged that he provided a statement to the police later and was advised that

evening that he was not being charged. He described the three men as not having any mask to conceal their identity, that he heard a car door slam as he was exiting the bathroom, that he observed the three men outside of his kitchen window and that he had direct observation of the three men when they were in the hall of the home. He testified that he was first put on the bed and then hit by one of the men, and that he was sprayed while he was standing and while being sprayed, one of the men told him not to look at him.

When pressed about the contents of his statement to the police, he acknowledges that in his statement he did not say he heard tape being pulled off a roll and that he did not observe any of the men actually handling the duct tape. He did, however, state that duct tape has a distinctive sound. In response to Exhibit 1, Photograph 66 of alcohol, he acknowledged that the Blue is 0.5% alcohol and was his and that the Bud beer was from guests on a prior occasion. He acknowledged that he was unable to identify any of the suspects from a photo pack.

He reiterated that things stolen that evening included cufflinks, a tie clip, alcohol and a fake Rolex watch. He concluded his Cross by stating that he has “kinda put the whole thing behind” him. [ 19 ] The Court heard testimony from RCMP Officer Veltmeyer who was qualified as an expert in the taking, analysis, comparison of fingerprints and the collection, preservation and comparison of evidence.

Exhibit 4 in these proceedings is Corporal Veltmeyer’s CV which included being an Auxiliary Constable from 1992 – 1995; RCMP Depot training from 1995 – 1996; a Diploma from BCIT in Mining Technology; employment as a peace officer with the RCMP since 1996; training at the Canadian Police College in forensic identification which included fingerprints, photography, digital imaging and examinations of crime scenes; and his current posting as a Forensic Identification Member of the Lower Mainland District Integrated Forensic Identification Services since 2011.

He testified that he is currently completing the third phase of the RCMP Forensic Identification Apprenticeship Training Programme which includes further training, including blood scene analysis. [ 20 ] He testified that in Canada there is one national standard for forensic training which is undertaken either at the Ontario Police College or at the Canadian Police College. Part of his training as a crime scene investigator includes impressions, biological evidence and physical comparisons (such as footwear).

In being qualified as an expert, he has conducted 790 independent case examinations and secured 752 suitable fingerprints and conducted over 221 fingerprint individualizations (meaning a latent print to a known print). His testimony included that in his training at the Canadian Police College, he made zero errors in his training and analysis. Officer Veltmeyer testified that fingerprint impressions will vary with the impression, the surface and the matrix in a fingerprint. As a qualified expert, he testified that each fingerprint is unique.

A fingerprint at a scene has variables and distortions impacted by the weight of the impression and the surface. He will enhance a fingerprint to scrutinize it and record it, he will place fingerprint powder on a surface for a latent print or use a chemical on surfaces such a paper.

On this particular court file, his work was verified by Officer Burwell who is a senior officer and is trained in peer review and was responsible for verification. [ 21 ] In addition to his testimony, the Officer also reviewed the contents of Exhibit 1, the series of exhibited photographs. [ 22 ] He testified that he attended the scene on August 24, 2011, after 7:00 a.m. but before 8:00 a.m., in response to an arson. Upon his arrival, the perimeter was secured and he became aware of the home invasion allegation.

In response to the arson, he was unable to locate any accelerant and the doors to the out building were on the door and secured. He walked through the property and took photographs of the home, the shed and the outbuilding. The victim was not on the scene and as such, he had to look for something or things that would be out of the ordinary. Regarding Exhibit 1, Photograph 32 of the duct tape, he testified that in taking that photograph he was not aware that there was relevance to the duct tape. There is an approximate distance of 25 feet from the house to the outbuilding.

Exhibit 1, Photographs 43 and 44 are of the back door showing the cracked and splintered area by the dead bolt and Photographs 45 and 46 were of the wood splinters. He was asked by a fellow Officer to seize the duct tape, which he did so and in doing so, he testified that at the time Mr. Sorensen was not on the scene, and that he was not aware of the fine details of the alleged home invasion. The duct tape was seized as he found it and observed it with the orange staining on it. He observed it to be the same stain colour as that he observed on the bed sheet and that it smelled as if it was pepper spray.

He testified that he could smell pepper spray throughout the home. After seizing and analysing the duct tape, he observed a hair on the adhesive portion of the tape. Photograph 49 indicates approximately seven pieces of the duct tape when separated at a later time in his analysis; Photographs 51, 52, and 53 was the roll that was found on the tray in the kitchen with the torn end which he testified was not a linear cut. He did not observe any other duct tape other than what he secured and seized. Photograph 71 is of the bedroom where again, he testified, was the smell of pepper spray throughout the home.

He obtained the exhibits for analysis on October 26, 2011, which included the duct tape, the roll of the duct tape and the baggies. He photographed the tape before commencing the analysis. Thereafter the bundle of duct tape was meticulously pulled apart as part of his analysis and the roll was unrolled, and thereafter the duct tape was treated with chemicals as part of the forensic analysis process.

Photograph 103 is of the bundle of the tape which he did not cut and he used the cut in the tape already in place to take apart as part of Photograph 49. [ 23 ] As part of his forensic analysis, the Officer testified in great detail that in Photograph 82 it was placed in a cabinet with steam where the vapour adheres to the constituents of the fingerprint and will allow him to secure a readable fingerprint and in doing so applied the dye stain.

It was then visualized under the laser light, he took the photographs in Photographs 87 - 91 inclusive, the green marks in those photographs occur after the process he described above and thereafter he added the scale tabs. He found no fingerprints on the bundle of tape and he found two fingerprints on the roll of the duct tape. [ 24 ] Photographs 83 and 84 are of the torn end of the roll of the duct tape. The Officer testified that if the tape in Photograph 83 was rolled back to what is marked on the Photograph as R1, the print would match up.

Photograph 108 is a full length scale of the tape that was used and found on the floor, in which the end of the tape in Photograph 108 would match up to the end of the actual roll of the seized duct tape. The tape in Photograph 108 is approximately 30 cm. Photograph 92 is a piece of the tape from the roll that the Officer took from the roll for examination which was approximately 35 cm in length. [ 25 ] Exhibit 5 in these proceedings is the Bench Notes of the Officer.

The Officer testified that ultimately only R1, as set out in the exhibited photographs in Exhibit 1, was sufficient for the Officer to complete his fingerprint analysis. [ 26 ] Photographs 87 - 89 inclusive is of R1 show in Photograph 87 two prints and 88 and 89 show the one print being R1 which photographs were taken under a laser with a filter. While the Officer testified that he was focussing on R1 for his print analysis, he was still considering the R2 for analysis. Photographs are taken with a particular lens by the Officer to allow sufficient detail to be picked up for his analysis.

The Officer was satisfied that R1, as set out in Photographs 88 and 89, contained sufficient detail for the Officer to

undertake his print analysis. [ 27 ] Exhibit 6 in these proceedings are the Bench Notes from the Officer dated November 3, 2011, of R1 including an attached colour photograph and a black and white photograph of R1. His Bench Notes indicated that R1 “contains sufficient unique detail in sequence for comparison to eliminate or individualize”. His Bench Notes for R2 contain a notation of November 2011 of “insufficient clarity to individualize”. The R2 Bench Notes exhibited contain the Bench Note and an attached colour photograph of R2.

His Bench Notes, also known as Analysis Notes, followed all protocol and training requirements. [ 28 ] The Officer testified in great detail that in considering and undertaking the analysis, he considered the matrix, the pressure, the clarity and the comparison, if possible, and individualization. He undertook that step by step analysis for both R1 and R2. The Officer testified that based on his experience, training and knowledge, he noted in R1, in particular with the left ulnar loop, there was a tall impression that was from a right thumb. He noted oils and sweats on R1 in his analysis.

He found a heavy pressure in the centre and top of R1, that lines in R1 were not squished up due to heavy pressure particularly at the centre top, that the crescent part on R1 was the best part for analysis because it was uninterrupted. He concluded the direction of R1, as set out in Photograph 82, where it is rounded, is the top portion of the impression. He testified that the impressions in the base of R2 are creased where they are typically found at the base of a finger.

He was confident that the secured area on R1 was sufficient for him to make a comparison to a known print in order to eliminate, identify and individualize. [ 29 ] The Officer testified that there was no concern about the prints breaking down over time because the seized items were in a sealed envelope and therefore not exposed to any degradation due to sunlight or sweat from fingers using or touching it. R2 was not sufficient for an analysis because the small band was highly distorted and R2 had smearing and smudging from movement and contained a cross impression.

The Officer testified that each and every fingerprint pattern is unique and is never repeated, including in identical twins. There are never duplicate fingerprints. Fingerprints are developed in the womb and are subject to a number of factors in utero. [ 30 ] Produced in these proceedings as Exhibit 7 is the C-216 (Criminal Fingerprint Identification) certified true copy of the accused taken on June 22, 2013. Exhibit 8 in these proceedings is the Friction Ridge Comparison Report completed by Officer Veltmeyer, analysing the prints found on the seized duct tape from the alleged offence to the C-216 of the accused.

The Comparison Report utilized the R1 impression that was obtained from a piece of the seized duct tape and the report analysed the substrate, the matrix, the development medium, the deposition pressure, the pressure distortion, the clarity, the Level 1, 2, and 3 detail. The Comparison Report found that “…the friction ridge formations were in agreement and there is sufficient uniqueness to individualize”.

The Comparison Report concluded: Individualization is the decision by an examiner that there are sufficient features in agreement to conclude that two areas of friction ridge impressions originated from the same source. Individualization of an impression to one source is the decision that the likelihood the impression was made by another different source is so remote that it is considered as a practical impossibility. [ 31 ] This Report was subject to a peer review and was verified by Officer Burwell who used the same national standards.

The Officer undertook the comparison between the latent versus the known print on June 26, 2013, using in addition his Bench Notes and the C-216 (both exhibited in these proceedings). In analysing the R1 of the latent to the known print, he compared all of the visible ridges and the points were spatially in agreement.

The Officer extensively testified about the pattern, the ulnar loop, the ridge shapes and thickness, that there were no scars, that the crescent had an abundance of detail, and that there was no puckering. [ 32 ] Exhibit 9 in these proceedings is the Fingerprint Comparison Chart analysis undertaken by the Officer with the latent versus the known print. Exhibit 10 in these proceedings is the Physical Evidence Comparison Report of the duct tape which included the distinguishing features of an irregular break from the finished edge to the finished edge.

Exhibit 12 in these proceedings is the Physical Evidence Comparison Chart of the duct tape. In analysing the physical evidence, the Officer testified that no two pieces touched one another during his analysis and that all parts aligned with one another except point (

f) because it was tucked under. He testified that the class and characteristics agreed with one another as did the irregular surface. He concluded that at one time both the unknown and the known parts of the physical evidence were one continuous roll of tape. Exhibits 13, 14 and 15 were of the tape. [ 33 ] On Cross Examination, the Officer testified that finding a print gives a link to a person but not as to the time when the print was left. He testified that with a plastic surface, it is relatively easy to obtain a print with the proper technique.

Duct tape is plastic, a man- made chemical substance, that it has an adhesive component and that the print was found on the plastic surface. In regards to R1, he testified it was a partial print because the top was distorted, that the core was distorted because of the pressure applied; however, in the centre he could see the elements. The physical crime scene was a large rural property that he entered at approximately 8 a.m. on the date.

He was not aware if anything else was seized and understood that he was starting his investigation as he referred to as being “fresh” and he was not aware if any weapons were used.

The duct tape had hair on it, but he did not investigate any DNA analysis on it and he was not aware of any analysis on the victim of being taped. [ 34 ] On Cross Examination, he testified that it is normal to obtain partial and distorted prints and that his national standard training includes addressing and studying such. [ 35 ] In Closing, Crown Counsel respectfully submits that what is unchallenged is that there was a home invasion, on a particular date, place and time. What is unchallenged is that the outbuilding burned down and the assailants left. Mr.

Sorensen was not challenged that he had bear spray, there were stains on the sheets from the spray and there was stains from spray on the seized tape. Each of the three men arrived together with each bearing a weapon, there was banging on the door, they all entered together, they all huddled around Mr. Sorensen, someone says spray him, and all of the three men aid and abet one another. Mr. Sorensen was sprayed and forced onto the bed, thus meeting the elements of forcible confinement. Mr. Sorensen did not provoke any of the three men; he was sprayed, forced on the bed and his hands tied. Mr.

Sorensen did not use any force. In further detail, Crown submits that in his direct testimony Mr. Sorensen gave a visual physical description of the three men wherein two of those three men who entered match the physical descriptors of Mr. Quinlan. Mr. Sorensen remained clear headed throughout the ordeal. All of the three men who concurrently entered the home were acting in concert with one another including one providing demands and instructions, one observing Mr. Sorensen after he was bound and confined, one went to the grow op, and one ransacked the home, of which the ransacking and damage was confirmed by the

police testimony and that of Mr. Sorensen. [36] The unlawful confinement of Mr. Sorensen was further exacerbated by the binding of his hands with the duct tape in which Mr.Sorensen said he felt and believes he heard the sound of such when he was face down. Crown submits, to which this Court agrees, it wasunchallenged by Defence counsel that the duct tape in the positions as noted by the testifying officers was not in that position prior to thehome invasion (Exhibit 1, Photographs 48, 29, and 52). Mr.

Sorensen was clear that the bundle of tape was not there prior to the homeinvasion and that he used the tray that day to eat his food and there was no duct tape on the tray that day. [37] The Officer who testified was firm in his testimony that in clearing the house, in Exhibit 1, Photographs 49 and 52 place the rollof duct tape and the bundle in the home at the time of the home invasion. Officer Veltmeyer was qualified as an expert and provided avery detailed analysis of his findings, observations and conclusions.

Exhibit 5 of the R1 had supporting expert testimony from OfficerVeltmeyer that the right side of the tape would partially cover over the R1, that Officer Veltmeyer found the match of the two pieces inthat the end of the roll matched a piece from the used bundle of the duct tape, which was the same bundle of duct tape used to bind Mr.Sorensen. There was testimony from Mr. Sorensen that he threw and tossed the duct tape that bound his hands after the home invasionhad occurred and Crown counsel is correct in then concluding that there is a detailed line of continuity of the crime scene.

There was noother evidence of any other tape at the time of the home invasion. Exhibit 1, Photograph 49 shows specific breaks in the tape which isconsistent with tape being wrapped around. [38] Crown counsel respectfully submits that the duct tape was used to bind Mr.

Sorensen; that in accordance with the detailedtestimony of the qualified expert of Officer Veltmeyer, the piece matches up to the roll; that Exhibit 1, Photographs 52 and 53, show thatthe accused touched the tape; that the fingerprint located by Officer Veltmeyer was found on the pristine portion of the tape; that theaccused’s fingerprint was found on an inside portion of the tape layer that was revealed as the tape unwound to tape Mr.

Sorensen’swrists and that this portion of the tape was only exposed after the wrists were bound. [39] Defence counsel respectfully submits that there is no issue that there is an abundance of evidence of a break and enter and thatMr. Sorensen was unlawfully confined. Crown counsel is not able to identify which of the three men used the spray nor can Mr.Sorensen. Mr. Sorensen sees three men enter his home, there are few specific physical descriptors including height, weight andclothing. Mr.

Sorensen testified that he was sprayed, put onto the bed and he was found face down with tape but he did not see the tape,he heard tape but was unable to conclusively tell the police in his testimony that it was duct tape. Defence counsel submits that perhapsduct tape was used to bind Mr. Sorensen but Mr. Sorensen was unable to testify with specifics where he dropped the bound tape.

NoDNA analysis was undertaken of the hair on the duct tape. [40] Both counsel relied upon a number of cases. [41] In Regina v Yonkman, 2005 BCCA 561 , [2005] BCJ No. 2488 (hereinafter referred to as “Yonkman”), at issue beforethe British Columbia Court of Appeal was whether the sole fingerprint located inside the vehicle in the course of a break and enter wassufficient to prove beyond a reasonable doubt the presence of the accused in the commission of the offence.

The Court of Appeal failedto find sufficient evidence to support the temporal connection necessary to infer that the accused’s fingerprints on the mirror of thevehicle meant that he was in the vehicle at the time of the offence. Yonkman (supra) is applicable in the matter before me, however, Iam satisfied beyond a reasonable doubt that Crown has met that burden and that there is no other reasonable inference for how thefingerprint, otherwise known as R1 by Officer Veltmeyer, from the duct tape that being a latent print, matches up to the known print ofthe accused.

I am satisfied, as set out in detail above, that Crown counsel has addressed all of the continuity of the tape, the existence ofthe tape, the placement of the tape, both before and after the home invasion, and that the testimony of Mr. Sorensen supports continuity. There is no other doubt left as to how the accused’s fingerprint could have been left on the duct tape by the accused other than at thetime of the home invasion.

The evidence as a whole, applying the Yonkman test, allows this Court to conclude that, beyond a reasonabledoubt, the evidence as a whole is consistent with one approach and is inconsistent with any other possible rational conclusion. I amsatisfied that taken into consideration the Yonkman decision, that in the matter before me, there is a continual pattern that shows a tightand uninterrupted nexus to conclude that the latent print of R1 from the duct tape from the home invasion is sufficient to place theaccused at the home at the time of the home invasion and as one who used the duct tape. [42] In Regina v.

Mars 2006 Can LII 3460 (Ontario Court of Appeal), hereinafter referred to as Mars), a fingerprint was obtainedfrom a pizza box that was used in the course of an offence. In Mars (supra), similarly to the testimony of Officer Veltmeyer, held thatfingerprint evidence can connect an accused to a crime, however, fingerprint evidence cannot connect an accused to a time.

In Mars(supra), the Court of Appeal was satisfied that the fingerprint left on the pizza box was indeed that of the accused’s, however, was notconvinced that it was left on the time and date of the offence and may have been left on another date and time. In the matter before me,the Mars (supra) decision is distinguishable because, as I have outlined above and set out in the

summary of the Crown’s closingsubmissions, I am satisfied that there is a distinct and clear uninterrupted pattern, including the expert testimony, placing the accused inthe home at the time of the home invasion. Mr. Sorensen testified that he does not know the accused and had never seen the accusedbefore and further, that the duct tape was not on the tray before the home invasion nor was the roll of used tape found in the home beforethe home invasion.

For reasons that I have articulated, the expert testimony of Officer Veltmeyer clearly places the fingerprint of theaccused on the duct tape with the pristine fingerprint of the accused that the Officer found on the rolled portion of the duct tape after heunrolled it in the course of his analysis. [43] In Regina v. Gauthier, [2007] BCJ No. 3000, and Regina v. Gauthier, [2009] BCJ No. 102 (British Columbia Court of Appeal)(hereinafter referred to as “Gauthier”), a beer bottle containing the fingerprints of the accused was found inside a bedroom within a homethat a break and enter had occurred.

Similarly to the matter before me, in Gauthier (supra), the Court concluded that a decision toconnect the fingerprint to the accused must be based on the evidence presented and not on speculation. In Gauthier (supra), the Courtnoted that the bottle was not beside the bed prior to the break and enter, that the accused was not known to the complainant, and that thebottle was located by a gun that had been used in the commission of the offence. Here, the duct tape was not on the tray in the rolledportion nor inside in the used portion before the commission of the offence and the accused is not known to Mr. Sorensen.

Like theGauthier (supra) decision, there was no evidence to support that the accused had been invited or attended Mr. Sorensen’s private home. The Court of Appeal in Gauthier (supra) concluded at Paragraph 14 that “no other explanation for the presence of the beer bottle on thebed and the fingerprint on the bottle reasonably emerges from the evidence.”

[44] Regina v. Frank, [2011] BCJ No. 2417 (hereinafter referred to as “Frank”), a similar fact pattern faced the Court forconsideration to consider if a single fingerprint that matched the accused found on duct tape to bind a complainant was sufficient to provebeyond a reasonable doubt that the accused was one of the offenders, and the Court held that a court must be satisfied beyond areasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. Mr.

Sorensen testifiedin a straight-forward manner, was unable to identify the accused, had never met the accused before, testified that he used the tray formeals and that the duct tape roll was not on the tray before the home invasion, testified that the used portion of duct tape was not outsidethe home prior to the home invasion. Mr. Sorensen was sprayed, he was forced face down onto his bed and his hands were bound withduct tape, all against his will nor did Mr. Sorensen provoke any such actions.

In Frank (supra), the Court found that the fingerprint onthe duct tape being of the accused was circumstantial evidence, however, the matter before me has a much tighter nexus and the tape, asanalysed by Officer Veltmeyer, shows a pristine portion of the rolled tape that contained the R1 print for analysis. In the matter beforeme, the only rational inference that can be made from the circumstantial and actual evidence before me leads me to conclude that theaccused is to be found guilty on all counts.

In Frank (supra), just as the fact pattern is before me, the Court concluded at Paragraph 46 asstating: Even if the duct tape used to bind the victims was not the duct tape from the home, there is no other explanation arising from theevidence to suggest that Mr. Frank had ever had an opportunity to handle the roll of duct tape, except on the night of the event. [45] In Regina v.

Ricketts, [2011] BCJ No. 1921 (hereinafter referred to as “Ricketts”), the British Columbia Court of Appealoverturned the trial conviction finding that there were other rational explanations that could account for the presence of the print. Thatdoes not exist in the matter before me. [46] In Regina v. Huynh, [2014] BCJ No. 678 (hereinafter referred to as “Huynh”), the Court provided an excellent basic

summaryof the law at Paragraphs 20–23 by stating: A person charged with a criminal offence is presumed to be innocent. The Crown has the burden of proving its case. The burden nevershifts to the defence. The Crown is required to prove each element of the offence beyond a reasonable doubt. A reasonable doubt is adoubt based upon reason and common sense and is logically derived from the evidence. …The test to be applied is addressed in R. v.

Cooper, (SCC), [1978] 1 SCR 860, where the majority stated that “beforebasing a verdict of guilty on circumstantial evidence, the [judge] must be satisfied beyond a reasonable doubt that the guilt of the accusedis the only reasonable inference to be drawn from the proven facts.” The standard of proof beyond a reasonable doubt is high, but not one of “absolute certainty”: R. v. Johnson, 2008 BCSC 1272 at para.18. Evidence should be assessed in a common sense, practical, and realistic manner, in its totality and not on a piece meal basis.

Thereasonable doubt standard does not apply to individual pieces of evidence, but to the case as a whole: R. v. Twohey, 2009 BCAA 428 atpara. 18. Alternatives to the guilt of the accused must themselves be rational conclusions based on inferences from the proven facts. Noconclusion can be a rational conclusion if it is not founded on evidence. Such a conclusion would be speculative or imaginative, notrational: R. v. McNeil, 2010 BCAA 295 at para. 11. [47] The final case presented by counsel for consideration is one that is currently waiting appeal, that being Regina v.

Bornyk,[2013] BCJ No. 2313 (hereinafter referred to as “Bornyk”). When asked in the course of his testimony, Officer Veltmeyer was alsofamiliar with the Bornyk decision and very correctly addressed the Bornyk decision and allows that decision to be easily distinguishable. In Bornyk, the Court made a number of comments that I must respectfully find are not supportable, including that there is an institutionalbias with respect to the RCMP fingerprint analysis process. Officer Veltmeyer in great and clear detail explained the training that heundertook and the national standard applied in a fingerprint analysis.

There is no evidence of any institutional bias. [48] In Bornyk (supra), the Court found that there was the use of a photocopy of the fingerprint during an analysis instead of theoriginal photograph and that the Bench Notes of the officer were not disclosed to defence counsel. In the matter before me, OfficerVeltmeyer analysed originally placed prints from the duct tape seized, they were not only disclosed but also formed an Exhibit in theseproceedings.

Most notably, in Bornyk (supra), the matter is distinguishable on the facts because after legal argument, the Courtundertook research that was not initially before the Court from either counsel regarding fingerprint methodology and analysis in theUnited States of America and Scotland.

Without going into great detail, it was Officer Veltmeyer who was unchallenged and wasexcellent in his testimony pro-actively addressing the Bornyk (supra) decision by testifying that in the United States of America there isno uniform standard for fingerprint analysis and that similarly the Scottish protocol is not like the national standard that exists inCanada. [49] I am satisfied that the Crown has proven the requisite elements beyond a reasonable doubt and that Mr. Quinlan is to be foundguilty on all counts. [50] These are my Reasons. The Honourable Judge K. Arthur-Leung

Provincial Court of British Columbia