R. v. Glassco Date:, 2016 BCPC 476

Citation: R. v. Glassco Date: 20161117 2016 BCPC 476 File No: 206040-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. EUGENE GLASSCO ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.I.S. SUTHERLAND Counsel for the Crown: N. Melling Counsel for the Defendant: J. Whysall Place of Hearing: Surrey , B.C. Dates of Hearing: September 8, 9, 26, 2016 Date of Judgment: November 17, 2016

INTRODUCTION [ 1 ] The accused, Eugene Glassco, is charged with two offences; the first being that between November 12 th and 29 th , 2013 he did by deceit, falsehood or other fraudulent means defraud Luo Jian Dong of money in excess of $ 5,000 contrary to s . 380(1) (

a) of the Criminal Code . The second charge is that between those same dates that he committed theft of money of Mr. Dong of a value in excess of $5,000 contrary to s. 334(

a) of the Criminal Code. [ 2 ] The charges arise from Mr Glassco’s alleged involvement in what is known as a black money scam. Some detail of the black money scam will be mentioned in the overview of the facts later in these reasons. [ 3 ] Defence counsel argues that two essential elements of the offences have not been proven beyond a reasonable doubt. Firstly, that the alleged victim, Mr. Dong, has suffered any deprivation of his property, in this case money ; and secondly, that Mr . Glassco was the perpetrator, if indeed there was deprivation. [ 4 ] Mr. Dong, his wife Ms.

Feng, and the investigating police officer were the only witnesses called in the trial. The Crown and the defence agree that the credibility and reliability of Mr . Dong is critical to the outcome of the case. [ 5 ] What follows is an overview of the facts which are taken largely from Crown c ounsel’s opening submissions. More detail of the facts including, with some repetition, will be provided during the analysis, in particular, of the identification issue. OVERVIEW [ 6 ] It is alleged that Mr. Glassco, together with another man, approached Mr. Dong in November 2013 at Mr.

Dong’s toy store that he owned at the Guilford Mall. [ 7 ] It is alleged that Mr. Glassco introduced himself by the name Goodwin, and together with the other man who was introduced as Nelson, offered to buy Mr. Dong’s full stock of toys to sell in Africa. [ 8 ] It is alleged that Mr. Glassco, as Goodwin, informed Mr. Dong that he wanted to pay for the toys in cash but that the cash he had available was currently unusable as it had been covered with a black coating as a safety precaution against theft in Africa. The person referred to as Goodwin, then informed Mr.

Dong that the procedure for removing the black coating required real, uncoated dollar bills to be put against the black-coated money and a special chemical applied. Goodwin and his associate Nelson then demonstrated this procedure for Mr. Dong with small amounts of money on two occasions. [ 9 ] Following these demonstrations, Goodwin persuaded Mr. Dong to withdraw $65,000 from his personal and business accounts. In a storage room at Mr.

Dong’s store, Goodwin and his partner mixed these bills with a number of apparently black-coated dollar bills, applied a chemical and put the bills in a portable safe for which Nelson and Goodwin retained the only key. [ 10 ] On the evening of the same day, Mr. Dong drove from his store to his home in Surrey with Ms. Feng, Goodwin, his associate Nelson and the safe. In Mr.

Dong’s basement the safe was opened and Goodwin appeared to make an attempt at pouring a chemical on some of the money to facilitate the removal of the coating but then announced that the chemical was defective. [ 11 ] The following day Goodwin told Mr. Dong that he had found a company which could sell them a chemical that would remove the coating on the money. He brought a small bottle of what he claimed was the chemical and the two men, Goodwin and Nelson, opened the safe and applied the chemical to a single black-coated bill, removing the coating. [ 12 ] Goodwin then informed Mr.

Dong that he required a further $120,000 to purchase the chemical. Mr. Dong refused and over the course of several conversations Goodwin proposed lower amounts. Mr. Dong, meanwhile, becoming suspicious, hired a locksmith to open the safe which was still stored at Mr. Dong’s house and found packages of construction paper in the shape of dollar bills in place of the money that had been stored in the safe. [ 13 ] Mr. Dong called the police and subsequently met with Goodwin one more time at his store. After speaking with Mr. Dong, Goodwin fled the store, knocked over Mr. Dong’s wife, Ms.

Feng , on the way out and was subsequently arrested at the scene. The money was never recovered. [ 14 ] As mentioned, deprivation and whether, in fact, Mr. Glassco was indeed "Goodwin" are the issues before the court. ANALYSIS :

i) DEPRIVATION [ 15 ] In terms of the issue of deprivation, Mr. Dong is the only witness who can establish the element of deprivation. He testified that he withdrew $65,000 from the bank, it was placed in the safe provided by Goodwin and Nelson and they retained the only key. Sometime, when he was not looking, it was taken out by one or both of them and replaced with the dollar-sized bundles of construction paper and never returned. [ 16 ] Defence counsel points out that no banking documents were tendered to confirm that the money was indeed withdrawn from Mr.

Dong’s account and if so, that it was not redeposited. [ 17 ] Furthermore, it is pointed out that the locksmith who opened the safe was not called as a witness. [ 18 ] In other words, that there is no corroborative evidence of Mr. Dong’s version with respect to deprivation. Mr. Dong’s version is

circumstantial, in any event, as he did not directly observe the money being taken. [19] The legal test to be applied when considering whether a case built on circumstantial evidence meets the criminal standard ofproof beyond a reasonable doubt is that a trier of fact must be satisfied beyond a reasonable doubt that the guilt of the accused is the onlyreasonable inference to be drawn from the evidence, and the absence of evidence when assessed logically and in light of humanexperience and common sense. [R. v. Villaroman, 2016 SCC 33 , [2016] S.C.J. No. 33; R. v. Griffin, 2009 SCC 28 ,[2009] 2 S.C.R. 42; R. v.

Cooper (1977), (SCC), 34 C.C.C. (2d) 18 (S.C.C.).] [20] When considering circumstantial evidence, logical inferences must be distinguished from speculation. [R. v. Villaroman; R. v.Griffin.] In considering reasonable inferences, I am mindful that there must be proven facts which logically give rise to the facts soughtto be inferred before an inference can be made. [R. v. Clark, 2015 BCCA 488.] Otherwise, impermissible speculation to bridgeevidentiary gaps takes place. [R. v.

Kang, 2009 BCSC 1826.] Inferences consistent with innocence do not have to arise from provenfacts, however, a reasonable inference other than guilt is not speculative because it arises from a lack of evidence. [R. v. Villaroman.] [21] In considering the inferences that can reasonably be drawn in this case, I also bear in mind the admonition by Chief JusticeMcEachern, as he was, in R. v.

To (1992), (BC CA), 16 B.C.A.C. 223, not to over-intellectualize but, rather, to bring adegree of realism to the analysis of whether there are any other reasonable conclusions other than the guilt of the accused whenreviewing the evidence. I also bear in mind that it is important to consider all of the evidence together. Further, that one piece ofevidence may put a different complexion on another seemingly innocuous piece of evidence. [22] In

summary, the question is whether the circumstantial evidence in this particular case supports as the only reasonable inferencethat Mr. Dong was deprived of property. [23] The issue of deprivation turns on Mr. Dong’s credibility and reliability. In assessing his credibility, I note that his evidencecovered a series of events over roughly a little more than two weeks. It had some complexity to the narrative. I found his evidencedetailed.

As one example, but certainly not the only one, he detailed, even in the absence of banking records, the amount of money thatwas withdrawn and the dates it was withdrawn with some precision. [24] Despite the period of time covered in his evidence and the detail of his evidence, I found his evidence internally consistentwithin itself, externally consistent with other evidence I do accept, and consistent with common sense. [25] Potential inconsistencies between his evidence and that of Cst. Rego about whether Mr. Dong wanted to make a plan to captureGoodwin, or between he and Ms. Feng about whether Mr.

Dong made contact with Goodwin when he tried to grab him prior to hisarrest, or why he did not mention to the police the shortened thumb of Goodwin if he had noticed it, which is a point I will discuss inmore detail later in the next issue, are not significant in the overall assessment of his credibility, in my view. [26] Although I find Mr.

Dong’s evidence does not require corroboration to be accepted, I also note his evidence is confirmed to adegree by the appearance of the safe, the type of wrapping and the contents, his cell phone screen shots that purportedly recorded calllogs for some of the relevant days that showed phone communication between he and Goodwin. [27] Further, there is no contradictory evidence to Mr. Dong’s rendition of the events. I do not mean to imply that Mr. Glassco wasrequired to call any contradictory evidence. Mr.

Glassco sat at the trial as a presumed innocent person without any burden to establishhis innocence in any way. However, among the Crown witnesses or any of the witnesses, and any of the documents or exhibits tendered,there is no contradictory evidence to Mr. Dong’s rendition of the events and its material points. [28] Finally, I do agree with Crown counsel that this is not the type of narrative where Mr. Dong is just mistaken about the materialparts of what happened or that it happened at all. This was a narrative over a period of time with discreet chapters in its progression thathad detail and complexity.

I have also considered Mr. Dong’s demeanour while testifying and in the end, I am satisfied beyond areasonable doubt by the events described by Mr. Dong, that they happened and that he was deprived of $65,000 as a result. [29] Furthermore, I am satisfied that it was Goodwin and Nelson who were responsible for the deprivation. They were clearlyworking in concert. They induced Mr. Dong to withdraw his money. They provided the safe to put it into, which is the last knownlocation of it before it went missing. They were responsible for putting the money in the safe. Only Mr. Dong, Mr.

Nelson and Mr.Goodwin knew that the money was in the safe. Mr. Nelson, and I find by inference Mr. Goodwin, retained the only key to the safe. They were always present when the safe was open with the money inside. Mr. Goodwin drew Mr. Dong’s attention away from the safeat times when it was open, leaving a clear opportunity to take the money without Mr. Dong knowing on at least three different occasions, two on November 20th and one on November 21st. Nelson had a means of concealing it in his heavy jacket.

There is noevidence that the safe was insecure or tampered with when it was not in the presence of Goodwin and Nelson, and it was only a matter ofdays between the time when the money was last put in the safe and it disappearing. Furthermore, was Mr. Goodwin’s attempts to getmore money for reasons related to the initial reason, the money that went missing was put in the safe. [30] Under all of those circumstances, I am satisfied that there is no reasonable conclusion, based on the evidence or lack thereof,and human experience other than Mr. Dong was deprived of his $65,000 by a theft of a fraudulent means by Mr.

Goodwin and Mr.Nelson. ii) IDENTIFICATION [31] Although I am satisfied beyond a reasonable doubt that Mr. Dong was deprived of $65,000 from the black money scamperpetrated by Goodwin and Nelson, it remains to be determined whether Mr. Glassco was Goodwin. This determination depends, onceagain, on Mr. Dong’s credibility and reliability with his reliability becoming particularly in focus, although both are important. [32] With respect to the law generally with respect to identification, I must be guided by various principles and I will start with thatstated in R. v. Burke, (SCC), [1996] 1 S.C.R. 474 by Mr.

Justice Sopinka as follows:

The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made bydirect visual confrontation of the accused. By reason of the many instances in which identification has proved erroneous, the trier of factmust be cognizant of "the inherent frailties of identification evidence arising from the psychological fact of the unreliability of humanobservation and recollection": R. v. Sutton, (ON CA), [1970] 2 O.R. 358 (C.A.). In R. v.

Spatola, (ON CA), [1970] 3 O.R. 74 (C.A.) Laskin J.A. (as he then was) made the following observation aboutidentification evidence: Errors of recognition have a long documented history. Identification experiments have underlined the frailty of memory and thefallibility of powers of observation. Studies have shown the progressive assurance that builds upon an original identification that may beerroneous....

The very question of admissibility of identification evidence in some of its aspects has caused sufficient apprehension insome jurisdictions to give pause to uncritical reliance on such evidence, when admitted, as the basis of conviction. [33] These comments were also made in R. v. Atfield (1983), 1983 ABCA 44 , 25 Alta. L.R. (2d) 97 at pages 98 to 99, ascited with approval in R. v. Izzard (1990), (ON CA), 54 C.C.C. (3d) 252.

Quoting from Atfield, a decision of theAlberta Court of Appeal: The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comes fromwitnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonetheless mistaken.Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriages of justicethrough mistaken identity. [34] In terms of recognition evidence versus identification evidence, this arises in the case before me given the evolution of therelationship between Goodwin and Mr.

Dong. These comments were made in R. v. Pierce, 2011 BCCA 485, a 2011 decision of theBritish Columbia Court of Appeal, where Madam Justice Smith noted at paragraph 39: While recognition evidence may be more reliable than eyewitness identification of a stranger, special caution must still be taken whenusing it to identify an offender, as it is still merely a statement of a witness’s opinion about what he or she saw. Like all identificationevidence its weight or reliability will depend on such circumstances as the nature, length and memorable features of the witness’sprevious contact with the accused. In R. v.

Bardales (1995), (BC CA), 101 C.C.C. (3d) 289 (B.C.C.A.), aff'd (SCC), [1996] 2 S.C.R. 461, Mr. Justice Wood, albeit dissenting in the result, described the character and role of recognitionevidence in this helpful manner: With respect, I am of the view that there is no legal distinction between eye-witness identification cases on the one hand, and so-called“recognition” cases on the other.

In both, the identification of the accused is based on the evidence of one or more witnesses who offerthe opinion: “That is the person who I saw.” Where it is a factor, recognition is a circumstance which does no more than enhance theweight to be attributed to that opinion by the trier of fact. [35] In terms of in-court identification, case law and commissions of inquiries are replete with warnings about the frailties ofeyewitness evidence generally. Those frailties extend to the courtroom itself.

The accused sits in a compromised position as appearingto be, to the witnesses, the only person who could possibly be the accused in the case. I am very mindful of that and I am also mindfulthat an identification of an accused as the offender, made for the first time when the prisoner is in the dock, as is the case before me,possesses particular frailties over and above the normal frailties attaching to identification evidence. I am also mindful of the vastlyreduced weight to be given to an in-court identification for those reasons.

I have also instructed myself that there is little connection, asmentioned in one of the quotes earlier, between the confidence of a witness and the accuracy of an identification. [36] Finally, the last point I wish to make with respect to identification is with respect to discrepancies. [37] As noted in R. v.

Keshane, (1992), (BC CA), 11 B.C.A.C. 86, which is a 1992 BC Court of Appeal decisionthat was quoted with approval in Pierce, supra, at paragraph 40 of Pierce this passage in Keshane is noted: ...even where the witness’ identification is not based on the recognition of a distinctive characteristic of the accused this does notnecessarily undercut the efficacy of the identification. Similarly, where there is a discrepancy between the description given by a witnessand the person subsequently identified by that witness, this is not necessarily fatal to a positive identification.

The sufficiency of theidentification evidence will depend on the circumstances surrounding the original identification, the nature of the discrepancy, andwhether there is other cogent evidence in the case pointing away from the guilt of the accused. [Citations omitted.] [38] Finally, just referring to the reasonable doubt standard, it is worth mentioning that the ultimate conclusion I must reach iswhether the Crown has proven the charges against Mr. Glassco beyond a reasonable doubt. In making this determination, I bear in mindthat proof beyond a reasonable doubt is not proof to an absolute certainty.

Further, that reasonable is exactly what that term implies, adoubt based on reason and common sense that is logically connected to the evidence or absence of evidence, and that if I find that Mr.Glassco most likely or probably was Goodwin, that is insufficient to meet the beyond a reasonable doubt standard. That is R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320. [39] No out-of-court identification procedures such as photo line-ups were conducted in this case. No camera images, no forensicevidence pointing to Mr. Glassco being Goodwin was put in evidence. Furthermore, the arresting officer of Goodwin did not testify.

Nocell phone evidence identifying Mr. Glassco as Goodwin was presented, and so the only evidence that Mr. Glassco as Goodwin comesfrom the in-court identification of Mr. Dong and his wife, Ms. Feng. [40] For proper consideration of the weight to be applied to their identifications, a more detailed consideration of the facts isrequired. As mentioned, some of these facts were referred to in the earlier overview that I have already provided. [41] Mr. Dong has been in Canada for about 14 years. He is from China. English is clearly his second language.

He owned FunFlying Toys in the Guilford Town Centre, which was a toy retail store and he worked there on a daily basis along with his wife, Ms.

Feng. [ 42 ] On November 12, 2013, two individuals came into his store. They met with Mr. Dong repeatedly over the next two-and-a-half weeks. One of them introduced themselves as Nelson and the other Goodwin. As mentioned, the allegation is that Mr. Glassco is Goodwin. [ 43 ] Mr. Dong provided the following description of Goodwin in court.

That he was tall, 1.7 metres; he was close to 30 years of age; he had a bit of a robust or heavier build; he had a smaller, square-sized face; he was of black complexion; his nose was a little wider than normal; his mouth had thicker lips; his eyes were more round and bigger; his hair was very short and black and he did not have any facial hair. [ 44 ] The description that Mr. Dong provided to Cst. Rego when Mr.

Dong first called the police back in 2013 was that Goodwin was black skinned, male with short hair, a square face, a solid build, no facial hair, 176 centimetres tall and no unique characteristics. [ 45 ] As it turns out, Mr. Glassco, who has not testified but who has appeared in court, has what is advanced as a distinguishing feature, which is half of a thumb. It appears that half of it was amputated. When asked about this, Mr. Dong testified that he had noticed it. He considered that Mr. Goodwin had a disability. Mr.

Dong said he did not look closely at it but he believed that one "finger", as he described it, was shorter than the others, but that he did not pay much attention because of a respect for Goodwin’s privacy, given this was a disability. [ 46 ] Furthermore, he said that he did not tell the police about this for two reasons; one, because it did not affect a description of Goodwin’s face; and secondly because it was not proper to mention someone’s disability. When the police asked him how he looked, he was not specifically asked if Goodwin had a disability. When Mr. Dong was asked to look at Mr.

Glassco’s thumb in court, Mr. Dong looked at it and said that he did not see much. He said all he could say is that his thumb was shorter than usual but that it was not obvious to Mr. Dong when he looked at Mr. Glassco’s thumb in court. [ 47 ] An in-court identification was made by both Ms. Feng and Mr. Dong of Mr. Glassco as being Goodwin. In court, Mr. Dong was asked if he would recognize Goodwin again and he answered, through an interpreter, “If he is not much changed, I believe I can recognize him,” and then he pointed to Mr. Glassco as being Goodwin. In response, Crown Counsel asked how sure Mr.

Dong was and Mr. Dong responded by standing up, he paused for a considerable period of time and then through the interpreter, and as it had been interpreted, it came out as “I believe he is the one”. When asked by Crown counsel if he could provide a percentage of how sure he was, Mr. Dong commented that three years had gone by, and as it was interpreted by the interpreter, said words to the effect that he wondered if he could use a percentage. [ 48 ] There was then the morning break and Crown counsel revisited the issue without the interpreter, inviting Mr. Dong to reply in English. Although English is Mr.

Dong’s second language, Mr. Dong does have a degree of proficiency in English. When he was asked in English about Mr. Glassco being Goodwin, Mr. Dong said he was “sure” that he was Goodwin and went on to say that – his comments were translated to "I believe", but that is not what he meant. Rather, he meant to convey that he was certain. When he was asked to give a percentage in English, Mr. Dong replied in English that he was 100 percent sure that Mr.

Glassco was, indeed, Goodwin. [ 49 ] To provide context to those identifications, it is important to note the interactions that took place between Goodwin and Nelson and Mr. Dong and Ms. Feng. The first meeting was November 12, 2013 at the store. According to Mr. Dong, Goodwin asked if Mr. Dong was the owner. Goodwin took out a piece of paper with lots of merchandise listed. Goodwin said he wanted to purchase Mr. Dong’s toys to ship to Africa. Goodwin said he wanted to buy all of the toys and that they could sell them in Africa. It was Goodwin who said where they were from. Indeed, Mr.

Dong noted that all of the talking was really with Mr. Goodwin over the course of the history of their relationship. [ 50 ] There was brief discussion where Mr. Dong told them that he would provide them with a good discount. Mr. Goodwin said that he would pay in cash. Contact information was exchanged and, indeed, telephone calls were exchanged as well over the course of their relationship. Screenshot photos were taken of Mr. Dong’s cell phone that showed a call history and, indeed, appeared to indicate, on Mr.

Dong’s evidence, as appeared to be confirmed from the screenshots that there were calls back and forth between the person listed in the phone as Goodwin and Mr. Dong during the relevant period of time. [ 51 ] The next day, November 13, 2013, Mr. Goodwin and Mr. Nelson returned to the store. They discussed the different types of toys in the store. Mr. Dong directed his comments to Goodwin. Mr. Dong was asked how to operate some of the toys and Mr. Dong said that he would give them the best price he can in terms of the sale of the toys. He said this meeting lasted about 20 to 30 minutes and Mr. Goodwin and Mr.

Nelson said that they would return the next day, November 14 th . [ 52 ] This is the third occasion where they got together. It was at the store where Mr. Goodwin and Nelson returned. Goodwin asked for them to go to the storage area of the store because he wanted to show Mr. Dong something and asked Mr. Dong to bring a $20 note with him. At the back of the store Mr. Goodwin and Nelson took out two pieces of packing paper that were black in colour. This, I infer, was part of what I will call the black money. In the middle of the black money was placed a legitimate $20 bill of Mr. Dong’s. Mr.

Goodwin then sprayed the pieces of black paper with a small bottle that had some chemical liquid inside, according to Goodwin. Goodwin then rolled it all up, put it inside a plastic bag, put it underneath Mr. Dong’s foot, told Mr. Dong to step on it. Mr. Dong did. A moment later Mr. Goodwin took the money out and went to the sink, used water to wash it off and the black coating came off the bills to reveal that the black paper were actually $20 bills, currency. Mr. Dong examined it, it looked genuine, only Mr. Dong and Goodwin and Nelson were present. [ 53 ] Mr.

Goodwin said that they would pay for the toys with this type of black cash and that they had lots of it. Goodwin said the black money was in this condition to prevent it from being stolen and that the Canadian government was supportive of this condition of the money. This was to prevent theft in Africa. Goodwin said that he wanted Mr. Dong to withdraw money from the bank so they could wash all of the money that they had. Goodwin said that he would buy all of Mr. Dong’s inventory for $65,000 Canadian.

[ 54 ] On November 15, 2013, Mr. Dong went to his bank and withdrew $15,000 cash. After the withdrawal, he spoke to Goodwin on the phone and Goodwin and Nelson came to the store, this now being the fourth meeting. Mr. Goodwin asked Dong for $900 and Goodwin put in $100 of his own. They then took that money and used it as part of a rouse in washing the black money to produce $2,000. This was in the back with Mr. Goodwin, Nelson and Mr. Dong. Chemical was sprayed on the money, the black was washed off, and the money became clean. Goodwin asked Mr.

Dong to withdraw the full $65,000 in order to assist with buying the toys. After this $2,000 was washed as a demonstration, $900 was returned to Mr. Dong immediately after. He was given another $900 and told that that would form part of the payment. Mr. Dong gave them three remote control planes, as samples. [ 55 ] Goodwin proposed using the $65,000 of Mr. Dong’s to wash $130,000. He said that Mr. Dong would get his initial $65,000 of the $130,000 back and that Mr. Goodwin and Nelson would keep the other $65,000 for their, as Mr. Dong described it, "livelihood". [ 56 ] Mr.

Dong then went to the bank November 15 th , as mentioned, and withdrew $15,000 from his personal account. [ 57 ] On November 18 th , $9,700 was withdrawn from his personal account. [ 58 ] On November 20 th , there were two transactions during the same visit to the bank, $30,000 was taken from his personal account during one of the visits. On the other visit, $2,500 was withdrawn from his business account and $7,500 was withdrawn from his personal account.

He chipped in a little bit more from his own pocket to get up to $65,000. [ 59 ] Numerous phone calls were made back and forth between November 15 th and November 20 th between Goodwin and Mr. Dong. Mr Goodwin had told Dong to try to get bills with $100 or $50 denominations. [ 60 ] They next met November 20 th , this is the fifth meeting. They met in the afternoon, at the store. Nelson brought to the store a bag with all of the black money. Goodwin was carrying a safe. They all went to the back of the store to the storage area. The black bills were removed from the bag.

In the storage area Goodwin took out the black-coloured money from the bag, Mr. Dong took out his $65,000. Goodwin and Nelson put on rubber gloves and mixed up the money together; the legitimate cash and the black money. Mr. Goodwin told Dong that he had to do it on his own because the chemical he was going to use was quite poisonous. It took about 15 minutes. After spraying the chemical, Nelson put the money into a smaller package and used tinfoil to wrap it up. He used tape to wrap around the package as well, and then they used a towel to wrap it up and put the whole bundle in the safe.

Nelson locked up the safe with the key. There was only the three of them in this small, 10-square-metre, according to Mr. Dong, storage area. Mr. Dong said he watched the whole time from around one metre away and was focused on Goodwin and Nelson. He said he never lost sight of them. [ 61 ] That evening they got together again after Nelson and Goodwin had left the store for about four or five hours. They returned to the store, took the safe, now this is the sixth time they got together, and Mr. Dong closed the store. He, Goodwin, Nelson and Mr. Dong’s wife, Ms. Feng, drove to Mr.

Dong’s house with the safe in the trunk and Ms. Feng in the front passenger seat. Mr. Dong said that Ms. Feng exchanged pleasantries with Goodwin and Nelson. [ 62 ] They arrived at Mr. Dong and Ms. Feng's home and moved the safe to the basement. Goodwin and Nelson went to the basement. Mr. Dong went upstairs to get food and drinks for them. He left Goodwin and Nelson with the safe unattended in the basement for about three minutes. He then came down and when they were in the basement, Nelson opened the safe with a key. He picked up a knife, cut open the wrapping that was around the money. Mr.

Dong said he saw the black money inside and it was then placed in a plastic basin that was in the basement. Goodwin then took out a plastic container that purported to have the chemical that would be used to wash the money. He showed it to Mr. Dong, poured some of it into the basin and then cried out loudly that the chemical had crystallized. He acted very angrily, no doubt drawing considerable attention to himself, and started to shake the container. [ 63 ] Mr. Nelson was behind Mr. Dong’s back and Mr. Dong could not see what he was doing, Mr Dong, being distracted by what Goodwin was doing.

Goodwin was shaking the bottle and Mr. Dong said he was watching him, as you would expect him to be. He said he watched Mr. Goodwin for a long time, more than five minutes. He said he never looked at Nelson during this time. Goodwin said that he needed to make a phone call to his mother to clean up the situation. Indeed, a call was made on Mr. Goodwin's phone. A male voice answered and a conversation ensued. In the end, the package of money was on the safe. Mr. Dong told Nelson to put it back in the safe and lock it up. Mr.

Nelson did and Goodwin and Nelson left the house, leaving the safe locked in the basement. [ 64 ] The next day, November 21 st , now the seventh time they got together, Goodwin and Nelson came to Mr. Dong’s house. Goodwin brought a small bottle of chemical that he had in his pocket. Nelson was wearing a large overcoat down to his knees that did not fit the weather given, and Mr. Dong noted that Goodwin was wearing casual short sleeves, as was Mr. Dong, while Mr.

Nelson had his large coat and kept claiming that he was cold, wrapping his arms around himself. [ 65 ] In the basement, Nelson opened the safe and picked up money from the package inside. Nelson gave one of the black bills to Goodwin. Goodwin went over to the basin and picked up a different black bill from his own pocket that he said had been given to him by the chemical company. [ 66 ] Goodwin said there was a new type of chemical that could be sprayed directly on the money to wash it. He said he had the new chemical in a small bottle as a tester. [ 67 ] Goodwin put two bills in the basin and drew Mr.

Dong to the basin as well, telling him to stare at the basin. Indeed, Dong did, not paying attention to what Nelson was doing but instead was focused on the basin where Goodwin sprayed the chemical onto the bills. After spraying them, the bills started to look valid. Dong said he was watching the basin and Goodwin for seven to eight minutes and then changed his estimate to almost ten minutes. He said the last time he saw the safe before looking at the basin, the safe was open, and the package of money was on top.

He said Nelson’s coat was certainly big enough to conceal the money. [ 68 ] Goodwin then, after this demonstration, told Dong that the spray cost $120,000 Canadian for a bucket. Dong told Goodwin he did not have that much money. Goodwin said he would negotiate the price to try to get it down.

[ 69 ] Mr. Dong asked Nelson to lock the safe, which he did after wrapping up the package of what he believed to be the money. The package was wrapped in tinfoil, duct taped and then placed in a towel. Indeed, this is how it appeared in the photographs taken by Cst. Rego that were presented in court. [ 70 ] Nelson took the key to the safe with him. Goodwin and Nelson left the house and, in fact, it was Mr. Dong who drove them to the Guildford Mall where they parted ways. [ 71 ] Mr. Goodwin called Mr. Dong. Mr.

Dong recognized his voice on November 21 st and 22 nd , at first saying the chemical would cost $120,000 and then later, in another call, saying it was $60,000. Then later in another call he said the price was down to $30,000. [ 72 ] At this point, Mr. Dong was getting suspicious. He told Goodwin that he would find a way to get the money for him. This was a way of keeping Goodwin interested so that some investigative steps could take place. Mr. Dong said he did not intend to get the money for the chemical but was getting suspicious. [ 73 ] Mr.

Dong hired a locksmith, who arrived on November 28 th to open the safe. The safe was opened and the locksmith left. Mr. Dong saw the package wrapped in a bath towel. He unwrapped it and found construction paper that was cut to the dimensions of Canadian bank notes. The construction paper was purple in colour. There was not $65,000 inside, in fact, there was no money inside anymore. He noticed that the package in the safe had already been cut open. [ 74 ] Mr. Dong called the police right away. [ 75 ] Goodwin had been calling Mr.

Dong virtually every day about buying the chemicals and paying extra money for them in order to wash the remaining black money. [ 76 ] On December 2 nd , when Dong spoke to Goodwin on the phone Goodwin asked for the money. Mr. Dong said he had borrowed it and it was ready. Goodwin said he could come to pick up the money at the store. [ 77 ] Indeed, Goodwin did come to the store alone. Ms. Feng was present as well. Goodwin asked Mr. Dong for the money. Mr. Dong asked how he would purchase the chemicals and that he wanted Nelson to come to the store as well.

This appears to have sparked a concern in Goodwin who, according to Mr. Dong, started nervously looking around and then started to walk towards the exit of the store. Mr. Dong stopped him at the doorway and claims he held Goodwin by the arms and said, “You are a robber.” Goodwin pushed him to the ground and security arrived. According to Mr. Dong, Goodwin pushed security and as he was rushing to get away, he pushed Ms. Feng to the ground as well. The police later arrived and arrested Goodwin who was apprehended by mall security until police arrived. [ 78 ] Mr.

Dong provided a description of Nelson that differed from the description of Goodwin. He certainly distinguished the two of them in his description. According to Mr. Dong, Ms. Feng saw Goodwin every time he entered the store because she took primary care of sales at the store. He said that he observed them exchange simple pleasantries like, “Hello, how are you," each time. [ 79 ] Ms. Feng testified. She, too, speaks English as her second language, however she can speak basic English. She testified that the first time that she saw Goodwin and Nelson was November 12 th .

She said they came to the store but she did not speak to them. She said she did get a good look at them though, that they spoke to her husband, and that they were there for several minutes. [ 80 ] The next day, she said they came into the store and they introduced themselves to her as Goodwin and Nelson. She said she got a good look at their faces. She did not have a discussion with them other than the introduction. She said between November 11 th and December 2 nd they came to the store every day, sometimes more than once per day if Mr. Dong was not in the store when they first came in.

She said she saw them close to 20 times. I do not accept that she saw them close to 20 times, but I do accept that she saw them at the store each time they attended. She said she never spoke to them these times other than to exchange pleasantries. Ms. Feng said they were always together, except the last time, and she always got a good look at their faces. [ 81 ] On December 2 nd , she said she saw Goodwin walk in. She now was aware of the situation and she called mall security and 9-1- 1. She went back into the store. She saw Goodwin talking to her husband.

Goodwin walked to the door of the store, she cried out “robber” and Mr. Dong, she said, was unsuccessful in grabbing Goodwin. Goodwin turned, saw security, turned again, ran, and then Goodwin hit her to the ground and security held him. [ 82 ] She described Goodwin as being 30 years old, 170 centimetres tall (plus or minus), robust, big, healthy build, dark skin, thick lips, round eyes, wide nose with black skin and black short hair. In terms of his left hand, she said she would not necessarily have noticed it because she was more focused on his face. [ 83 ] She testified that Mr. Dong tried to grab Mr.

Goodwin but did not actually make contact. I have already alluded to the significance of that discrepancy when discussing Mr. Dong’s evidence. She said that she was 100 percent sure that Mr. Glassco was Goodwin. She pointed him out in court. [ 84 ] In reviewing the evidence, as I just have in some detail, I have paid particular attention to how often Mr. Dong and Ms. Feng were in Goodwin’s presence; how long Mr. Dong and Ms. Feng were in Goodwin’s presence; how focused they were on Goodwin during that exposure; how good their memory is; how much time has elapsed between the last time Mr. Dong or Ms.

Feng saw Goodwin and when they identified Mr. Glassco in court as being Goodwin. I have considered the quality of the description of Goodwin provided to the police, including any unique characteristics of Goodwin’s. I have compared the accuracy of the descriptions given by Mr. Dong and Ms. Feng to Mr. Glassco’s appearance in court. I have considered any conflicting descriptions of Goodwin among the witnesses. I have considered the relationship between Goodwin, Mr. Dong and Ms. Feng and its evolution from strangers to business acquaintances, and considered the nature and the importance of the interactions to Mr.

Dong and Ms. Feng. I have also considered whether there is other evidence that supports the identification of Mr. Dong that Mr. Glassco is Goodwin, bearing in mind that the identification by one

witness can support that of another, however, even a number of honest witnesses can be mistaken. [ 85 ] From a review of this evidence and with these considerations in mind, the following is apparent. [ 86 ] Firstly, human experience tells us that one would expect, from the nature and the subject matter of their dealings, that Mr Dong would give careful attention to Goodwin and Nelson, their interaction, and their appearance. These were important dealings. They were not highly stressful, spontaneous, sudden encounters like you see in many of the identification cases in the case law.

There was no fear or anxiety to distract from accurately perceiving the appearance of Goodwin. On the contrary, the conditions were good as there was a need to pay attention during the dealings, given their importance. [ 87 ] Secondly, Goodwin became known to Mr. Dong over the course of dealings, so Mr. Dong was not identifying a stranger; rather, his identification was really a matter of recognition. [ 88 ] Next, Mr. Dong and Ms. Feng provided detail of the facial features of Goodwin which I find the detail and the description to be pretty consistent with the appearance of Mr. Glassco in court.

There is a discrepancy with respect to the thumb, but I do not find that that discrepancy is overly significant. I do find that there were likely cultural considerations at play as described by Mr. Dong. [ 89 ] Furthermore, the thumb is not as glaring as if there was total amputation, although it is noticeable when attention was brought to it. [ 90 ] I do note that both Mr. Dong and Ms. Feng’s evidence of who was Goodwin was consistent and supports one another’s identification of Mr. Glassco as being Mr. Goodwin.

I do not see any obvious frailties in the memory of either, other than what would be natural from the passage of time. In terms of the manner of in-court identification, I attribute it more to Mr. Dong being careful in his identification and a language obstacle. [ 91 ] In the end, I must weigh the lack of out-of-court investigative steps taken by the police, for example the lack of a photo line-up, that have left the first identification by Mr. Dong and Ms. Feng of Goodwin, to be in-dock identification with its inherent prejudices to Mr.

Glassco almost three years after the fact, balanced against the prolonged and multiple opportunities that Mr. Dong and, to a lesser extent, Ms. Feng had to observe who Goodwin was and his appearance. I find the quality of those opportunities was high to make that determination. [ 92 ] When I weigh these factors and I consider all of the evidence, I find that the in-court identification of Mr. Glassco as Goodwin is sufficient, that it proves beyond a reasonable doubt that Mr. Glassco was Goodwin. [ 93 ] Therefore, I find that the Crown has proven Mr.

Glassco’s guilt beyond a reasonable doubt on both offences and consequently, I find him guilty. (REASONS FOR JUDGMENT CONCLUDED)