R. v. Rochemont, 2017 BCSC 930

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Rochemont, 2017 BCSC 930 Date: 20170602 Docket: 50265-4 Registry: Vernon Regina v. Robin James Rochemont Before: The Honourable Mr. Justice Kent Oral Reasons for Judgment Counsel for the Crown: Shirley A. Meldrum Counsel for the Accused: Joseph L. Deuling Place and Dates of Hearing: Kelowna, B.C. May 29–June 1, 2017 Place and Date of Judgment: Kelowna, B.C. June 2, 2016 Table of Contents Introduction .. 3

Summary of Crown Evidence .. 3 Police Witnesses . 4 Cpl. Scholes . 4 Sgt. Saxton .. 4 Cpl. Cook . 5 Sgt. Romailler 6 Cst. Sczboticsanec . 8 S/Sgt. Daly . 8 Cst. Scott 9 Cst. Parish .. 9 Lay Witnesses . 10 Janet Buyer 10 Alex Reynolds . 11 Rebecca Jollimore . 13 Tiara Morrison .. 14 Gordon Grimm .. 15 Kyle Fitzpatrick . 16 Catherine Giampa . 16 Ian Stewart 18 Admissions of Fact 18

Applicable Law ... 19 Elements of Offences Charged . 19 Reasonable Doubt and the Presumption of Innocence . 22 Evidence, Inferences and Credibility . 23 Analysis, Findings and Conclusions .. 25 Introduction [ 1 ] Following a shooting incident which occurred on August 12, 2014 in Polson Park, Vernon, British Columbia, Mr.

Rochemont was ultimately charged with committing the following offences on that date: 1. discharge of a prohibited or restricted firearm at Jacob Lowes or another person, with intent to wound, maim or disfigure, or to endanger the life of Jacob Lowes or another person, contrary to s. 244(1) of the Criminal Code , R.S.C. 1985, c. C-46 (Count 1); 2. intentional discharge of a restricted or prohibited firearm, a handgun, while being reckless as to the life or safety of another person contrary to s. 244.2(1) (

b) of the Criminal Code (Count 2); 3. possession of a loaded restricted or prohibited firearm, a handgun, without being the holder of an authorization or a licence under which he may possess the same in that place and a registration certificate for that firearm, contrary to s. 95(1) of the Criminal Code (Count 3); 4. carrying a concealed weapon, a handgun, contrary to s. 90(1) of the Criminal Code (Count 5); and 5. carrying or having in his possession a weapon, a handgun, for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to s. 88 (1) of the Criminal Code brackets (Count 6). [ 2 ] Mr.

Rochemont entered a not guilty plea to all of the charges. His trial took place before me in Kelowna, British Columbia during the period May 29 to June 1, 2017. The Crown called 16 witnesses and also submitted certain admissions of fact pursuant to s. 655 of the Criminal Code . No evidence was called on behalf of the accused.

Summary of Crown Evidence [ 3 ] The following is a non-exhaustive

summary of the evidence presented by the Crown. Police Witnesses Cpl. Scholes [ 4 ] In August 2014 an establishment known as the Green Valley Motel was located at the southwest corner of 32nd Street (Highway 97) and 25th Avenue (Highway 6) in Vernon, British Columbia. The motel has since closed but was still in business in August 2014. [ 5 ] Polson Park is located to the east of the Green Valley Motel on the other side of 32nd Street (Highway 97). It too is bordered to the north by 25th Avenue (Highway 6).

The park is green space and is home to mature trees and vegetation, a fountain, several pathways as well as, among other structures, a lawn bowling centre, a skateboard park, and the Vernon Arts Centre. [ 6 ] Cpl. Scholes, who is now retired from the RCMP, was a police officer for 35 years, the last 10 of which were spent with the RCMP. He was a member of the Forensic Identification

Section of the RCMP in Vernon and he was called to both the motel and Polson Park to identify and collect forensic evidence related to the shooting incidents that had occurred in that vicinity on the morning of August 12, 2014. He identified aerial photographs depicting the layout and configuration of both the motel and the park in relation to 32nd Street and 25th Avenue. He also photographed both those areas of the park in which physical evidence was located, i.e. , casings, "slugs" (deformed bullets), and holes in the turf thought to be related to the latter. [ 7 ] Cpl.

Scholes also took photographs of the exterior of the Green Valley Motel including the entranceway to unit 109, a concrete pathway running alongside the end of the building where unit 109 was located, and a shotgun located behind a cedar hedge at the end of that pathway. Sgt. Saxton [ 8 ] Sgt. Saxton, a member of the RCMP since 1997, is also with the Forensic Identification

Section in Vernon. [ 9 ] He attended Polson Park on the morning of August 12, 2014 and performed a search with a metal detector. That search led to the discovery of the deformed bullets in the earth and a couple of the casings which had not been revealed to eyesight.

[ 10 ] The interior of unit 109 at the Green Valley Motel was searched on August 14, 2014. Sgt. Saxton was in attendance and took photographs of various items discovered during the search including drug paraphernalia, various knives, a machete, a homemade spear, rifles and unspent ammunition. [ 11 ] Sgt. Saxton also photographed a hole in the north wall of unit 109, surrounding embedded shotgun pellets, and a plastic wad from a shotgun on the floor below that hole. [ 12 ] In April 2016, sometime after the Green Valley Motel had closed its business, Sgt.

Saxton re-attended the building and took additional photographs of its exterior including the patio at the rear of unit 109. Access to the patio is gained from unit 109 through sliding doors which were depicted in the photographs. [ 13 ] Sgt. Saxton took fingerprint evidence from the inside surface of both the glass sliding doors and the back window in unit 109 during the course of his earlier attendance at the premises. Those fingerprints did not match those of Mr. Rochemont. Indeed, no Rochemont fingerprints were found at all in the premises. Cpl. Cook [ 14 ] Cpl. Cook has been with the Forensic Identification

Section of the RCMP in Vernon for a little more than nine years. He too assisted Sgt. Saxton with the search of unit 109 at the Green Valley Motel. [ 15 ] Cpl. Cook has extensive experience with guns. He identified the hole in the north wall as damage from a shotgun blast. He extracted 10 to 12 lead pellets from the wall. He identified the wad that was found on the floor. [ 16 ] Cpl. Cook took photographs during the course of an August 18, 2014 search of a green Chevrolet Cavalier motor vehicle in Kelowna. The search was made pursuant to a warrant and was performed with Sgt.

Romailler. [ 17 ] Evidence retrieved and photographed by Cpl. Cook during the vehicle search included ICBC registration papers in the name of Caroline Rochemont, a Québec driver's licence and health insurance card in the name of Robin Rochemont, a wallet containing approximately $100 cash and identification for Adrian Dziedzic, and two large baggies of marihuana buds. [ 18 ] On September 25, 2014, Cst. Cook was presented with and photographed certain items of evidence related to the Polson Park shooting including a spent shotgun shell, and a shotgun. Sgt. Romailler [ 19 ] Sgt.

Romailler has been a member of the RCMP since 1995. At approximately 8:00 a.m. on August 12, 2014 he received a telephone call from an off-duty RCMP member who was sitting in a Tim Hortons restaurant located on Highway 6 on the eastern boundary of Polson Park. The off-duty officer inquired whether there had been some sort of incident in the area as he was observing a male person who had come into the restaurant, who had not ordered any food and who appeared in a nervous or frantic state. [ 20 ] Sgt.

Romailler called his dispatcher and learned of the "shots fired" incident in the vicinity of the Green Valley Motel. He decided to go to the Tim Hortons and requested a couple other officers also attend. [ 21 ] Upon arrival at Tim Hortons the off-duty officer motioned towards the male suspect he had referred to in the telephone conversation. That individual was Mr. Alex Reynolds. When he was detained by Sgt. Romailler and asked if he had anything in his pocket, Mr.

Reynolds volunteered that he had "bear spray" and he started volunteering information about being shot at in Polson Park. [ 22 ] At approximately 10:00 a.m., Sgt. Romailler formally arrested Mr. Reynolds for possession of the bear spray. Mr. Reynolds was transported to the RCMP detachment where he was interviewed. During that interview Sgt. Romailler learned that Mr. Reynolds and two of his friends had been chased by a male and the latter had shot a firearm at Mr. Reynolds four to five times. [ 23 ] Later that day, Sgt. Romailler interviewed another witness, Ms. Tiara Morrison.

During that interview he learned that Robin Rochemont was residing in Ms. Morrison's house at 3509 – 27th Avenue, Vernon. He also learned information respecting an alleged robbery by Mr. Reynolds which had included a firearm. He was told this latter incident occurred at the Green Valley Motel and had spilled over into Polson Park. [ 24 ] Later that afternoon, Sgt. Romailler formally arrested Mr. Reynolds for robbery with a firearm. However, charges were not ultimately laid against Mr. Reynolds. Sgt. Romailler does not know why that is the case. [ 25 ] Sgt. Romailler was involved in a search of Ms.

Morrison's house at 3509 – 27th Avenue, Vernon, during the afternoon of August 13, 2014. It appears several people were living there. It was a 2 1/2 level home and Mr. Rochemont appeared to live in the top floor of the house. Nothing of interest was found on the top floor, however three boxes of 7.62 x 39mm ammunition were found in a hallway closet on the middle floor. [ 26 ] Sgt. Romailler was also involved in the August 18 search of the green Chevrolet Cavalier in Kelowna. A search warrant had been issued for handguns, bullets, and two cell phones. Sgt.

Romailler had observed the green Cavalier earlier that month, on August 8, 2014, while undertaking surveillance at the premises in Vernon. At that time he recognized Robin Rochemont as one of the occupants of the vehicle. He followed the vehicle towards the Green Valley Motel and then requested a vehicle stop by a uniformed police officer. He saw Mr. Rochemont get out of the vehicle at that time along with another male and one female. Cst. Sczboticsanec [ 27 ] Cst. Sczboticsanec has been a police officer for 26 years, 13 with the Vancouver Police Department and 13 with the RCMP. At

7:55 a.m. she heard an alert over the police radio about three males shooting at each other in Polson Park. She attended the scene and parked her vehicle next to the water fountain at the northwest corner of the park. [ 28 ] Cst. Sczboticsanec was assigned as the "exhibit custodian" for this incident. That afternoon she took possession of the shotgun which had been located at the Green Valley Motel. She identified it as the shotgun depicted in the photographs marked as exhibits at trial.

She referred to it as a "modified" shotgun because its barrel has been shortened. [ 29 ] The shotgun had been located at the scene by another police officer and had also been photographed and examined by Cpl. Scholes. Because it was thought that the shotgun contained a live round, Cst. Sczboticsanec took the gun to a local gun store so that the round could be removed. Photographs of the shell removed from the shotgun were taken and put into evidence at trial. S/Sgt. Daly [ 30 ] S/Sgt.

Daly was the RCMP officer who took control of the scene at both Polson Park and the Green Valley Motel for the purposes of securing evidence. Later in the day he learned three suspects had been arrested in Kelowna in relation to the shooting incident, two male and one female. He ordered the seizure of their car and clothes, as well as testing for the presence of gunshot residue on both persons and clothing. [ 31 ] S/Sgt. Daly was aware that Alex Reynolds had also been arrested in respect of the shooting incident. He did not order that Mr. Reynolds be tested for any gunshot residue. Cst. Scott [ 32 ] Cst.

Scott has been with the Vernon RCMP since April 2009. He is attached to the Serious Crime Unit and was the "lead investigator" for the shooting incident that is the subject matter of this trial. [ 33 ] Cst. Scott retrieved 10 hours of surveillance video made by the security cameras at the Urban Point apartment complex in Vernon on August 12, 2014.

He downloaded the video onto a USB flash drive and thereafter created various video clips as well as a series of 28 still images (photographs) taken from the video, all of which were marked as exhibits at the trial. [ 34 ] The video and still images depict Adrian Dziedzic in the entrance way and lobby of the building at 1:51 a.m. and 2:08 a.m. They also depict Alex Reynolds exiting the building at 3:06 a.m. and returning at 3:07 a.m. carrying a large black duffel bag. At 7:06 a.m. Alex Reynolds is captured on film as he is leaving the building, dressed in black and carrying the large black duffel bag.

The video also depicts a green vehicle pulling up outside. [ 35 ] Cst. Scott confirmed that none of the forensic or physical evidence secured as part of the investigation in this case was found to bear either the fingerprints or DNA of Mr. Rochemont (with the sole exception of fingerprints on the bag of marihuana found in the green car). He also confirmed that the gunshot residue testing of Mr. Rochemont and his clothing came back "negative". Cst. Parish [ 36 ] On August 13, 2014, the day after the shooting incident, Cst.

Parish retrieved surveillance video from various cameras at the Polson Park Motel located beside and just south of the Green Valley Motel. She downloaded and reviewed four hours of video taken between 6:00 and 10:00 a.m. from the day before, although the timer on the video was actually 17 minutes slower than "real-time". Various clips from that video along with 18 captured images (photographs) taken from the video were put into evidence. [ 37 ] The video and the photographs depict a green car parking behind the motel at approximately 7:24 a.m. (video recorder time). Three males emerged from the car.

One (subsequently identified as Alex Reynolds) was dressed in black long pants and a black long- sleeved top. The second (subsequently identified by Mr. Reynolds as being Mr. Rochemont) was wearing a black short-sleeved shirt and black shorts. He had tattoos on his arm. He also was carrying a shoulder bag (a bag with a strap over his shoulders). [ 38 ] The third male (subsequently identified by Mr. Reynolds as Adrian Dziedzic), was dressed in a grey hoodie and grey sweatpants.

He was carrying a long black duffel bag. [ 39 ] The three men are depicted walking past the main entrance of the Polson Park Motel in the direction of the Green Valley Motel at 7:31 a.m. (video recorder time). At 7:38 a.m. two men are depicted running back to the Polson Park Motel, one in black shorts and the other in the grey sweat suit, and at 7:39 a.m. (video recorder times) the green vehicle leaves the motel's parking lot. The quality of the video is such that the licence plates on the vehicle are not discernible. Lay Witnesses Janet Buyer [ 40 ] Ms.

Buyer, a nurse, was on her way home after a long shift when the shooting incident happened. She was driving north on Highway 97 and approaching the intersection with 25th Avenue, slowing her vehicle in anticipation of the traffic lights turning red ahead. She caught sight in her left peripheral vision of a person running towards her car, "racing across" the front of it, and then entering the grassy area of Polson Park to her right. That individual was followed by a second male who took the same path and who appeared to be chasing the first. [ 41 ] The first male was described by Ms.

Buyer as wearing long pants and a long-sleeved shirt, both dark in colour. He had short hair and was carrying a bag with a strap slung over his shoulder.

[ 42 ] The second man was described as "disheveled", with long fair hair, black shorts and a dark-coloured short-sleeved shirt. That person appeared to be clutching something to the front of his shorts. [ 43 ] Ms. Buyer also saw a third man running from what appeared to be a northerly direction into the park entrance at the intersection and past the water fountain located at that entrance. She described him as a Caucasian, wearing dark pants and a long-sleeved shirt. He too appeared to have a bag strap over his shoulders. [ 44 ] After refreshing her memory from her statement to police on August 20, 2014, Ms.

Buyer testified that the two men who ran onto the grass close to the trees near the border of the park both brought out handguns and started shooting at each other. Ms. Buyer believes she heard three to five shots and she was just about to start moving her vehicle forward when the man in shorts again ran in front of her vehicle, this time heading from Polson Park towards the motel on the other side of Highway 97. She accelerated away, turned a corner and then called 9-1-1. [ 45 ] Ms. Buyer described the three men as being in their mid-20s to mid-30s. She did not see any tattoos on any of them.

She also did not see any gun in the hands of the third man who had run past the fountain. Alex Reynolds [ 46 ] Mr. Reynolds is currently 26 years old. He acknowledged that while he has not taken drugs in the past year, at the time of the shooting incident he had been using speed and heroin over a period of several days with little sleep or food. He acknowledged that his drug consumption affected his memory at the time, making it hard to recall things, and resulting in him being "a little confused".

Under cross-examination he also acknowledged he "may have been hallucinating" for "some bits of time" during that period. [ 47 ] At various times during his cross-examination, Mr. Reynolds acknowledged there was "a lot of stuff I don't really recall" and that he "can't remember much" of August 12, 2014, including the particulars of various statements he may have made to the police that day or, indeed, the following day on August 13, 2014. [ 48 ] Mr.

Reynolds was confronted with the video and still images from the Polson Park Motel as well as still images taken early in the morning of August 12, 2014 from the security camera at the Urban Point apartment building at which he was living at the time. [ 49 ] Mr. Reynolds testified that he lived on the third floor at the Urban Point apartments with three other individuals, one of whom was Adrian Dziedzic. He admitted that the photographs taken at approximately 2:00 a.m. on that day depicted him carrying a black shoulder bag in the entrance to the apartment building.

He also admitted that the images captured from the video at 7:05 a.m. depicted him in black sweatpants and a black hoodie carrying a long black duffel bag out of the premises. [ 50 ] Mr. Reynolds testified that he had been given the black duffel bag earlier in the day by Adrian Dziedzic, who had asked him to take it upstairs and put it in his bedroom. He says he did not open the bag and was not aware of its contents. Shortly after 7:00 a.m. he received a phone call from Adrian Dziedzic asking him to get the bag and come downstairs to a car that was waiting outside.

He did so, whereupon the black bag was placed in the trunk of a green Chevrolet Cavalier driven by Mr. Rochemont. [ 51 ] Mr. Reynolds says that the three of them drove down the road to a nearby house, the address of which he is unable to recall. He says that he stayed outside the house having a smoke while Adrian Dziedzic and Mr. Rochemont went inside. When they emerged all three of them got into the green Chevrolet Cavalier and drove to the Polson Park Motel. After parking at that location, the three men then walked to the Green Valley Motel.

Adrian Dziedzic was carrying the black duffel bag. [ 52 ] At the Green Valley Motel, Mr. Reynolds says he was instructed to stand outside at the bottom of some stairs while Adrian Dziedzic and Mr. Rochemont went around the side and into one of the units. After about two minutes he heard a loud bang and the two men then came running towards him. Adrian Dziedzic dropped the black bag and a shotgun fell out of it. [ 53 ] Mr. Reynolds says he immediately started following Messrs. Dziedzic and Rochemont as they ran out front, across the intersection and into Polson Park.

He looked back over his shoulder and saw "a guy chasing us with a handgun". He later identified that person as "Jacob". Jacob was "a few feet" behind them as the three of them were crossing the intersection. [ 54 ] At the park, Adrian Dziedzic and Mr. Rochemont went right running towards the trees. Mr. Reynolds kept running towards the skateboard park further to the east. As he got near to the skateboard park, he turned around and saw Mr. Rochemont and Jacob firing handguns at each other. He had heard shots as he was running, he thinks four in total.

When he turned around to look back, there were more shots, although Mr. Reynolds is unable to recall exactly how many. [ 55 ] Mr. Reynolds says he does not know where Mr. Rochemont had obtained his gun. He had not seen any guns on Mr. Rochemont before the shooting incident in the park. While he agreed on cross-examination that the foliage on the trees and bushes in the park might have impaired his full view of the shooting scene, he says he is "positive" that Mr. Rochemont was shooting at Jacob. [ 56 ] Mr.

Reynolds then continued past the skateboard park towards the Vernon Arts Centre where he removed his black hoodie and deposited it in the bushes along with an "Airsoft" BB gun that he had been carrying. He then continued across Highway 6 to a Tim Hortons where he was detained by the police a few minutes later. Rebecca Jollimore [ 57 ] On August 12, 2014 Ms. Jollimore was a resident at room 107 of the Green Valley Motel. While she has been "clean" for some time, on that particular date she was "struggling with drugs" and had been on a "cocaine binge" for two days. [ 58 ] Ms.

Jollimore had attended at unit 109 of the motel to purchase drugs on at least two occasions. She had not been inside the unit but, rather, had knocked on the window to make the transaction.

[ 59 ] On the morning of August 12, 2014 Ms. Jollimore left her room by way of the rear patio intending to visit her girlfriend in unit 304. As she turned right to go towards the side of the building, she saw two men walking onto the patio of unit 109. She recognized one of the men as Robin Rochemont, a person she had met a couple days before. As she passed the patio of unit 109, she saw Mr. Rochemont crouching at the window, while the second man was standing by the sliding door. [ 60 ] Ms. Jollimore continued around the corner of the building and then turned right along the front to access the stairs.

She noticed another man standing outside the front of unit 109 having a smoke. She described him as a tall, skinny man with blondish, short hair. She acknowledged the man and kept on walking upstairs to unit 304 to visit her friend. [ 61 ] Ms. Jollimore acknowledged identifying the man in front of unit 109 as "Dave" in her April 2015 statement to the police, although she also thinks his name may have been "Dan". She "knows he's associated with Jacob" who lived in unit 109, as he was "always there". [ 62 ] Ms. Jollimore says that she heard gunshots coming from the back corner of the Green Valley Motel.

She remembers a male voice aggressively declaring, "Fuck you Robin, you're dead". Tiara Morrison [ 63 ] In August 2014, Ms. Morrison was living in a split-level house on 27th Avenue in Vernon. She shared the house with her boyfriend and also Mr. Rochemont and his girlfriend, Jessica. The latter two had been living in the premises, occupying a room on the upper level of the house, for a few months. [ 64 ] Ms. Morrison remembers August 12, 2014 as "the day they tried to rob someone at the Green Valley". The night before she had overheard some discussion between Mr.

Rochemont and Adrian Dziedzic about "doing a score", i.e. , robbing someone to get money. She knew Adrian Dziedzic as a person "working with Dan over in the other house selling drugs". [ 65 ] Ms. Morrison also knows Mr. Jacob Lowes. He was a person who "also worked for Dan" and he lived at unit 109 of the Green Valley Motel. Ms. Morrison had been at that unit in the past to purchase drugs from Jacob Lowes. The transactions had occurred in the back patio of unit 109. [ 66 ] Mr. Rochemont had been "moving his stuff out of my house" the day before the robbery incident. She saw Mr.

Rochemont and Adrian Dziedzic together in the living room of her house several times during the night. When they left in the morning they were accompanied by a third individual who had been there for a while. She did not know this third person but described him as being a tall, blond man in his 20s. [ 67 ] Ms. Morrison confirmed that whilst he was living with her, Mr. Rochemont had a green sedan motor vehicle. Gordon Grimm [ 68 ] On August 12, 2014 Mr. Grimm was a passenger in a vehicle driven by Kyle Fitzpatrick, which was stopped in the southbound lane of Highway 97 at the intersection of 25th Avenue in Vernon.

He estimates their vehicle was approximately five cars back from the intersection. [ 69 ] Mr. Grimm saw an individual running across 97th Avenue from the west, between the vehicle stopped on the road, and into the park by the fountain. That individual was approximately 6 feet tall, approximately 30 years of age, had dark hair and stubble, and was wearing black pants and a shirt. [ 70 ] Mr. Grimm did not see the individual inside the park, but as the light had turned green and the vehicle was moving forward again, he heard what he thought were three to five gunshots. Kyle Fitzpatrick [ 71 ] Mr.

Fitzpatrick was the driver of the vehicle in which Mr. Grimm was the passenger. He estimates his car was stopped "five to ten car lengths" from the red light. He saw three individuals in dark clothes moving across the road. He thought they appeared "scared", similar to exhibiting an "adrenaline rush". [ 72 ] The group split up as they moved into the park. One individual headed east towards the skateboard park.

The other two went into the grassy area of the park between the trees on the east side of Highway 97. [ 73 ] As he drove by, heading south on Highway 97, he saw two men beside the trees standing approximately 10 to 20 feet apart pointing handguns at each other. He heard three to five shots being fired, although he did not actually see the shootings. [ 74 ] Mr. Fitzpatrick believes all three individuals were wearing black clothing and were in their early 20s to 30s. He does not recall seeing tattoos on any of the individuals. Catherine Giampa [ 75 ] Ms.

Giampa was driving her vehicle northbound on Highway 97 on the morning of August 12, 2014. The traffic lights at the intersection with Highway 6 ahead had turned red and she brought her vehicle to a stop approximately seven to eight car lengths away from the intersection. [ 76 ] Ms. Giampa saw three men crossing 97th Avenue in an easterly direction towards Polson Park. The first ran across the crosswalk at the intersection towards the fountain at the entrance to the park. He was a Caucasian male, approximately 5'10" tall, brown

hair and medium build. She remembers that he was wearing shorts but otherwise cannot recall anything else about his clothing. [ 77 ] The second male was "jaywalking" and actually "cut in front" of Ms. Giampa's vehicle. He was approximately 6 feet tall, had short, dark hair and an "olive, Mediterranean complexion". He was wearing a short-sleeved T-shirt and dark-coloured long pants. He had tattoos on his neck and arms. Ms. Giampa did not actually see him entering the park but she believes he "hopped the fence" and then went down the grassy slope.

The second male appeared to be running with a "funny gait" and was "shoulder checking behind", which Ms. Giampa thought was rather odd. [ 78 ] The third male ran across the crosswalk. He was also Caucasian, approximately 5'10" tall, medium build and had short brown hair. He was wearing a T-shirt and she thinks he was also wearing shorts but she is not sure. She noticed that this individual's right hand was rolled up into the bottom of his T-shirt. [ 79 ] All three males were in the range of 25 to 35 years old. [ 80 ] All three men entered the park.

She saw the third male go behind one of the cottonwood trees that had a "hump" on it, pull his right hand out of his shirt, thereby revealing a gun, rest it against the tree and point it towards the second man (the one who had crossed directly in front of her vehicle). [ 81 ] As the light had turned green and the traffic was moving forward, Ms. Giampa observed some of these events in her rear-view mirror and she also heard three "pops" of sound. After clearing the intersection she pulled over and called 9-1-1. [ 82 ] Exhibit 1 in the trial is an aerial photograph of the northwest corner of Polson Park.

It depicts the fountain at the northwest entrance to the park as well as a line of four cottonwood trees in a north to south alignment approximately 20 to 30 feet east of Highway 97, and a tubular metal fence which separates the sidewalk from the grass in the park. Ms. Giampa identified the "tree with a hump" as the second-most northerly of the four trees. Ian Stewart [ 83 ] Mr. Stewart was driving southbound on Highway 97 at the time of the shooting incident and had stopped north of the intersection with 25th Avenue because of a red light.

He observed four people crossing Highway 97 at the south side of the intersection and heading towards the park. The first two crossed at the crosswalk. The third made his way through the traffic. A fourth person seemed to be pursuing them although he was "some way behind them". [ 84 ] Mr. Stewart was vague in his description of the four males. He remembers the first to have been wearing dark clothing. He recalls the second to have been taller and thinner and he seemed to be trying to hold his pants up in what Mr. Stewart thought was a rather comical fashion.

He was unable to describe the appearance or clothing of the third and fourth men. [ 85 ] After the lights at the intersection had turned green and Mr. Stewart had advanced through the intersection he heard gunshots, he thinks four in number. He saw one of the men standing by a tree with a gun in his hand. He thinks he saw another one of the men running away but he is not sure of that recollection. Like Ms.

Giampa, he placed the male with the gun at the second-most northerly tree depicted in the aerial photograph marked as Exhibit 1. [ 86 ] Adrian Dziedzic was also charged with two offences on the same indictment as Mr. Rochemont. He was charged with offences under ss. 88(1) and 90(1) of the Criminal Code , two of the offences with which Mr. Rochemont was also charged. The court was advised that Mr. Dziedzic had recently pleaded guilty to both charges and that his sentencing hearing is pending. Mr. Dziedzic was not called as a witness at the trial.

Admissions of Fact [ 87 ] Pursuant to s. 655 of the Criminal Code , the accused made certain admissions of fact for the purposes of this trial including: 1. Cst. Sczboticsanec provided a semi-automatic shotgun to a gun shop in Vernon, B.C., on August 12, 2014 with a request that the shell be removed; 2. a spent shell was extracted from the shotgun and tested for DNA; and 3. the DNA matched Adrian Dziedzic. [ 88 ] All of the photographs and video clips referred to above were marked as exhibits at the trial.

It should also be noted that no handguns were retrieved either from unit 109 at the Green Valley Motel or from the scene of events in Polson Park. None of the physical evidence retrieved at the scene (casings, slugs, shotgun, pellets, plug, et cetera ) was entered into evidence. Applicable Law Elements of Offences Charged [ 89 ] In order to convict Mr.

Rochemont for any of the five offences with which he is charged, the Crown must prove beyond a reasonable doubt and by way of properly admissible evidence each constituent element of the particular offence. [ 90 ] For the purposes of the charge under s. 244(1) of the Criminal Code , the Crown must prove:

1. Mr. Rochemont discharged a firearm; 2. he discharged that firearm at Jacob Lowes or another person; 3. he did so with an intent to either wound, maim or disfigure, or to endanger the life of Jacob Lowes or another person; and 4. the firearm was a "prohibited" or "restricted" firearm. [ 91 ] In order to convict Mr. Rochemont of the charge under s. 244.2(1) (

b) of the Criminal Code , the Crown must prove beyond a reasonable doubt each of the following: 1. discharge of a firearm by Mr. Rochemont; 2. the discharge was intentional on Mr. Rochemont's part; and 3. in doing so, Mr. Rochemont was being reckless as to the life or safety of another person. [ 92 ] In order to convict Mr. Rochemont of an offence contrary to s. 95(1) of the Criminal Code , the Crown must prove beyond a reasonable doubt each of the following: 1. Mr. Rochemont was in possession of a firearm that was either a "prohibited" or "restricted" firearm; 2. the firearm was loaded at the time; and 3. Mr. Rochemont was not the holder of (

a) an authorization or licence for the possession of the firearm, and (

b) a registration certificate for that firearm. [ 93 ] In order to convict Mr. Rochemont of an offence under s. 90(1) of the Criminal Code , the Crown must prove beyond a reasonable doubt each of the following: 1. Mr. Rochemont was carrying a "weapon" (here said to be a handgun); and 2. in doing so, he intentionally concealed that weapon, in the sense that he took steps to hide it from view or to avoid it being observed by others. [ 94 ] In order to convict Mr. Rochemont of an offence under s. 88(1) of the Criminal Code , the Crown must prove beyond a reasonable doubt each of the following: 1. Mr.

Rochemont had in his possession a "weapon" (here a handgun); and 2. he was doing so for either (

a) a purpose dangerous to the public peace, or (

b) the purpose of committing an offence. [ 95 ] Some of the terms used in these sections of the Criminal Code are expressly defined by that legislation. For example, under s. 2 of the Criminal Code : • "weapon" means anything used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm ...; • "firearm" means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person. ... [ 96 ]

Section 84 of the Criminal Code defines "prohibited firearm" and "restricted firearm" to mean: prohibited firearm means (

a) a handgun that (

i) has a barrel equal to or less than 105 mm in length, or (ii) is designed or adapted to discharge a 25 or 32 calibre cartridge, but does not include any such handgun that is prescribed, where the handgun is for use in international sporting competitions governed by the rules of the International Shooting Union, (

b) a firearm that is adapted from a rifle or shotgun, whether by sawing, cutting or any other alteration, and that, as so adapted, (

i) is less than 660 mm in length, or (ii) is 660 mm or greater in length and has a barrel less than 457 mm in length,

(

c) an automatic firearm, whether or not it has been altered to discharge only one projectile with one pressure of the trigger, or (

d) any firearm that is prescribed to be a prohibited firearm; ... restricted firearm means (

a) a handgun that is not a prohibited firearm, (

b) a firearm that (

i) is not a prohibited firearm, (ii) has a barrel less than 470 mm in length, and (iii) is capable of discharging centre-fire ammunition in a semi-automatic manner, (

c) a firearm that is designed or adapted to be fired when reduced to a length of less than 660 mm by folding, telescoping orotherwise, or (

d) a firearm of any other kind that is prescribed to be a restricted firearm; As is apparent from these

definitions, it is necessary to determine the specific characteristics of any given firearm to determine whether itfalls into the category of "prohibited firearm" or "restricted firearm". [97] Section 4(3) of the Criminal Code addresses the concept of "possession" as follows: Possession

(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of anotherperson; and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shallbe deemed to be in the custody and possession of each and all of them. [98] In order to prove that Mr. Rochemont had personal possession of a handgun, the Crown must prove three things beyond areasonable doubt: 1. first, that Mr. Rochemont had actual physical possession of the handgun; 2. second, that Mr. Rochemont was aware (i.e., knew) that he had actual physical possession of that handgun, and 3. third, that Mr.

Rochemont exerted control over the handgun while he had actual physical possession of it. Reasonable Doubt and the Presumption of Innocence [99] It is a fundamental principle of Canadian criminal law that any person charged with an offence is presumed to be innocent untilproven guilty and convicted in a court of law. First articulated in the common law, this principle is also prescribed by s. 6(1) of theCriminal Code, and is now enshrined in s. 11(

d) of the Canadian Charter of Rights and Freedoms. [100] In a criminal case, the obligation is upon the Crown to prove all elements of an offence beyond a reasonable doubt, and onlythen can a court convict. The burden remains on the Crown throughout. Where a reasonable doubt exists respecting any of theconstituent elements of the offence charged, the accused must be acquitted of that offence. [101] Reasonable doubt means a doubt that is based upon reason and common sense. Such doubt must be logically connected to theevidence or absence of evidence. It must not be based on sympathy or prejudice.

The Crown is not required to prove all elements of anoffence to an absolute certainty ... as this would be an impossibly high standard. However, the reasonable doubt standard falls muchcloser to absolute certainty than to the standard of proof used in civil cases, i.e., the balance of probabilities. Indeed, in a criminal case ifthe court can only find that the accused probably committed the offence, the accused must be acquited. See R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320 and R. v.

Starr, 2000 SCC 40. [102] The difference between these various standards of proof is a critical component of our system of criminal justice. In a case suchas the present one, involving unsavoury characters and an exchange of gunfire in public space, the court of public opinion might well beinclined to "convict" based on a combination of poor character, presence at the scene of events, and perceptions of what likely orprobably occurred.

In criminal matters, however, the law rightly imposes a very high standard of proof before an individual, no matterhow unsavoury, can be convicted of an offence under the Criminal Code.

Evidence, Inferences and Credibility [ 103 ] The primary role of a trial judge is to make findings of fact, i.e. , determine what happened in any given case, and then to apply the law to those facts in order to generate the appropriate legal result. Findings of fact are based on admissible evidence presented to the Court. As in this case, that evidence can include testimony under oath from witnesses respecting their actions and observations, photographs, videos, documents and other physical objects.

The role of the trial judge is to appropriately weigh all of this evidence and to determine whether any alleged fact has been proved in accordance with the applicable standard of proof (in criminal matters, proof beyond a reasonable doubt). [ 104 ] The trial court is also entitled to draw inferences. An inference is a deduction of fact which is logically and reasonably drawn from other facts established in the case. It must not be speculation.

The boundary separating permissible inferences from impermissible speculation can sometimes be difficult to draw, particularly in connection with circumstantial evidence. [ 105 ] Insofar as inferences and the standard of proof in criminal cases is concerned, if there are reasonable inferences other than guilt that can be drawn from the facts, the Crown's evidence does not meet the "proof beyond reasonable doubt" standard. Gaps in evidence can also result in inferences other than guilt.

But all such inferences must be reasonable based on the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense: R. v. Villaroman , 2016 SCC 33 . [ 106 ] The assessment of a witness's oral testimony necessarily entails an assessment of credibility. The role of the court is not usually reduced to simply choosing between two or more versions of events. It is not an "all or nothing process".

In determining facts, i.e. , making findings as to what actually occurred in any given case, the court is free to reject some aspects of a witness's evidence and accept others and, indeed, to assign different weight to different parts of a witness's evidence. [ 107 ] Accepting all or part of the testimony of any witness involves an assessment of credibility (truthfulness/honesty) and reliability (accuracy) of both the witness and the evidence.

That in turn involves consideration of many different factors including: • internal consistency of the witness's account of events; • consistency with other evidence afforded by witnesses, documents or physical evidence; • whether the evidence is reliably corroborated or contradicted by other evidence; • the witness's ability/opportunity to observe the events in question and to reliably recall/communicate same; • the demeanour of the witness and whether the questions are answered in a frank and forthright fashion without evasion, speculation or exaggeration; • whether the witness has any interest in the trial outcome or has any motive to fabricate; • whether (based on properly admissible evidence) the witness has "poor character for truthfulness"; and • the inherent plausibility of the evidence and its consistency with the probabilities affecting the case as a whole.

Analysis, Findings and Conclusions [ 108 ] In the course of final submissions, Crown counsel rightly acknowledged no evidence had been put before the Court respecting the absence of any authorization/licence and registration certificate for any firearm that Mr. Rochemont may have possessed, and that Count three of the indictment (an offence under s. 95(1) of the Criminal Code ) had not therefore been proved. Mr.

Rochemont therefore must be and is hereby acquitted of that offence. [ 109 ] With respect to the remaining four counts on the indictment, defence counsel correctly submits the key issue is whether or not the Crown has proved beyond a reasonable doubt that Mr. Rochemont was ever in possession of a handgun. While there were several witnesses who testified about observations made while sitting in their motor vehicles from both sides of the intersection of Highway 97 with 25th Avenue (Highway 6), the only person who expressly identified Mr. Rochemont as being in possession of a firearm was Mr. Reynolds. Mr.

Reynolds testified he had not seen a weapon on Mr. Rochemont at any time before the instant that he looked back from the skateboard park and observed Mr. Rochemont and "Jacob" shooting at each other with handguns. [ 110 ] The Crown concedes that, although sensible inferences drawn from other evidence in this case might support a finding beyond reasonable doubt that Mr. Rochemont was one of the two individuals shooting firearms in the park, if the Court finds Mr.

Reynolds' testimony to be untruthful or unreliable, whether as a whole or just with respect to his observations from near the skateboard area, then there is "no case" to meet and Mr.

Rochemont must be acquitted. [ 111 ] In this case the video evidence proves beyond reasonable doubt several important facts, namely: • the physical characteristics of Adrian Dziedzic as well as the clothing he was wearing on the morning of August 12, 2014; • Alex Reynolds entered the Urban Point apartment shortly after 3:00 a.m. on August 12, 2014 carrying a long black duffel bag and left that building carrying the same bag shortly after 7:00 a.m. on the same day; • all three of Alex Reynolds, Adrian Dziedzic and Mr.

Rochemont arrived at the Polson Park Motel at approximately 7:47 a.m. by way of a green sedan motor vehicle which they parked at the side of the motel;

• Mr.

Rochemont was wearing a black T-shirt and black shorts, had a shoulder bag around his torso, and was sporting tattoos on his arms; • Alex Reynolds was wearing black sweatpants and a black long-sleeved hoodie along with white-coloured footwear; • Adrian Dziedzic was wearing grey sweatpants, a grey long-sleeved hoodie, and was carrying both the long black duffel bag as well as a shoulder bag strapped around his right shoulder to his left hip; • within a minute of parking the car at the side of the Polson Park Motel, all three men walked in front of that motel in the direction of the Green Valley Motel next door; and • approximately seven minutes later Adrian Dziedzic and Mr.

Rochemont ran back past the entrance to the Polson Park Motel, got into the green sedan and drove away. [ 112 ] I also accept the evidence of the police officers respecting their sighting of Mr. Rochemont driving a dark green Chevrolet Cavalier motor vehicle, the same vehicle which was recorded pulling up to the front of the Urban Point apartments shortly after 7:00 a.m. on August 12, 2014, which was seized by the RCMP following the arrest of Mr. Rochemont in Kelowna later that day, and which was searched pursuant to a search warrant in Kelowna on August 18, 2014.

The markings on the rear of the green Chevrolet Cavalier match the markings on the rear of the green sedan videotaped parking at and departing from the Polson Park Motel shortly before 8:00 a.m. on August 12, 2014. I find as a fact proven beyond a reasonable doubt that the vehicle seized in Kelowna was the same vehicle depicted in the video recordings. [ 113 ] I have no hesitation in accepting the evidence of Rebecca Jollimore. She was frank, candid and direct in her testimony, testimony that has not been controverted in any meaningful way.

I find as facts proven beyond a reasonable doubt that: • shortly before 8:00 a.m. on August 12, 2014 Ms. Jollimore exited unit 107 at the Green Valley Motel via the patio and turned right towards the corner of the building in order to make her way around to the front and upstairs to visit her girlfriend in unit 304; • she saw two men walking onto the patio of unit 109, one of whom was Mr. Rochemont, and as she passed that patio Mr.

Rochemont was crouching at the rear window and the second male was standing by the sliding door into unit 109; • a short while later two or three gunshots rang out from unit 109 and a male voice aggressively declared, "Fuck you Robin, you're dead". [ 114 ] It is also of course clear from the common testimony of all the lay witnesses and I find as a fact proven beyond a reasonable doubt that: • two to four males were observed crossing Highway 97 from west to east and entering the northwest part of Polson Park; • a shooting incident occurred involving at least two males at or near the center of a stand of four cottonwood trees located approximately 30 feet east of the sidewalk between the Park and the surface of Highway 97; and • at least two firearms were involved in that incident which discharged the two types of casings described in the evidence of the police officers (.45 Cal Winchester and 9mm). [ 115 ] The question then remains whether it has been proved beyond a reasonable doubt that Mr.

Rochemont was one of the individuals near the stand of cottonwood trees holding and firing one of the handguns involved in the shooting incident. It is not sufficient for me to conclude, as indeed I do, that it was likely or probable that Mr. Rochemont was one of the shooters. Rather, in order for Mr. Rochemont to be convicted, I must be near certain or sure of that fact. And, albeit reluctantly in the circumstances, I find myself obliged to find reasonable doubt on this point such that he must be acquitted of all charges against him. [ 116 ] Mr.

Reynolds' testimony respecting the events within Polson Park lacks both credibility and reliability. He displayed an odd demeanour in the witness stand; he avoided looking at the accused and, more generally, looking directly at counsel or the Court when being questioned. He put his arms on the edge of the witness box and laid his head on his arms. He stated at various times that he had little memory of the events of August 12, 2014, that he was confused at the time by several days of speed and heroin consumption, and that he may even have been hallucinating part of the time.

To say the least, it is difficult to place much credence in the evidence of a witness who acts in such a fashion and who makes such admissions. [ 117 ] The evidence is clear that Mr. Reynolds was interviewed extensively by the police at various times during the day of August 12, 2014. He also testified at the preliminary inquiry that was held in this matter. Yet at trial, he was unable to remember any of these events, let alone the content of what he might have said on such occasions. [ 118 ] It was not until the end of his evidence-in-chief that Mr.

Reynolds disclosed that he too had been carrying a gun at both the Green Valley Motel and his attendance in Polson Park across the street. He claims that it was an "Airsoft" pellet gun which he discarded in the bushes as he was leaving the park after the shooting incident, but provided no corroboration of the claim. [ 119 ] Mr. Reynolds purported to identify on the aerial photograph of Polson Park the precise location from which he claims to have seen Mr. Rochemont exchanging gunfire with "Jacob".

It is clear from the photograph that the spot he identified is some 70 to 80 metres away from the scene of the shooting. It is also clear from the photograph that there are several trees located in his line of sight. The trees in the photograph are depicted with substantial foliage (albeit from above) but, given that the events occurred in the month of August when the foliage in the park would have been at full bloom, it is highly unlikely that Mr. Reynolds would have had a clear line of sight.

This casts doubt on both the truthfulness and reliability of the observations he claims to have made, and indeed the veracity of his testimony as a whole.

[ 120 ] Quite apart from Mr. Reynolds' testimony, the Crown invites the Court to, in effect, "join the dots" raised by the evidence of the independent lay witnesses to infer or otherwise conclude that Mr. Rochemont was in fact one of the shooters exchanging gunfire in the park. The Crown particularly relies on the evidence of Ms. Giampa. She testified that a man wearing a short-sleeved T-shirt and sporting tattoos on his neck and arms ran across Highway 97 right in front of her stopped vehicle.

She testified that she saw that same man being targeted by another who was aiming his gun from behind one of the cottonwood trees that had a distinctive "hump" on it. [ 121 ] The Crown argues that, given the video recording of Mr. Rochemont wearing a dark T-shirt and displaying tattoos on his arms that day, he (Mr. Rochemont) must have been the man who was the target of the intended gunplay. The Crown then points to the evidence of Mr. Fitzpatrick who witnessed two men beside the trees standing approximately 10 to 20 feet apart and pointing handguns at each other. Mr.

Fitzpatrick did not actually see any shootings, but he heard three to five shots being fired. [ 122 ] All of this, says the Crown, combined with the physical evidence respecting two different types of casings at the scene, should be sufficient for a finding of fact that Mr. Rochemont was one of the two men involved in the drama and that both men discharged their respective handguns at each other. [ 123 ] I cannot deny that there is considerable logic in this submission by the Crown. But there are a sufficient number of frailties in the proposition to raise reasonable doubt about its validity. Ms.

Buyer recounts a version of events that is similar to that of Ms. Giampa, i.e. , two men cutting right in front of her vehicle, entering the park close to the trees, bringing out handguns and shooting at each other. There are, however, significant inconsistencies between their respective versions of events. Both say the first man was wearing dark- coloured long pants. Both think the second man was wearing shorts. Mr. Rochemont, who was wearing shorts that day, could only have been the second man according to these descriptions. Yet Ms. Buyer describes the second individual as having "long fair hair". Both Mr.

Fitzpatrick and Mr. Stewart described the individuals as wearing "dark clothes", and neither refers to shorts. Mr. Reynolds, of course, was wearing dark clothes at the time. [ 124 ] Mr. Grimm saw only one individual crossing 97th Avenue and entering the park. All of Ms. Buyer, Ms. Giampa, and Mr. Fitzpatrick saw three men crossing Highway 97. Mr. Stewart observed four people crossing the road.

The precise location where those people crossed the road varies quite significantly in their evidence. [ 125 ] It is of course not unusual for witnesses to recount what they consider to be truthful versions of the same event but which are partially or even completely inconsistent insofar as significant details might be concerned. Such witnesses are acting honestly without any intent to deceive and yet some or even all of them are mistaken. In civil cases the court will make its findings of fact by balancing the probabilities arising from the evidence as a whole.

In criminal cases, however, significant inconsistencies in the evidence of persons witnessing the same event can amount to "reasonable doubt" in the proof of the facts alleged. [ 126 ] I recognize there are consistencies in the general thrust of the evidence provided by the lay witnesses, which, combined with some of the objective physical evidence in this case, point the finger of guilt towards Mr. Rochemont. But that is not enough. If reasonable doubt exists as to whether Mr.

Rochemont even had a gun in his hand let alone participated in the gunshot exchange, he must be acquitted of all of the offences with which he is charged. The inconsistencies in the version of events of the independent lay witnesses, combines with the unreliability and lack of credibility pervading Mr. Reynolds' evidence to constitute such reasonable doubt. [ 127 ] My conclusions in this regard are reinforced by the absence of certain types of evidence in this case. No handguns of any sort have been retrieved from the scene and put into evidence.

No evidence has been tendered respecting Adrian Dziedzic's actions in the park. Unlike Mr. Dziedzic's DNA on the shotgun shell, there was no evidence of Mr. Rochemont's DNA or fingerprints being present on any of the physical evidence ( e.g. , casings) retrieved from the park. And the gunshot residue testing of Mr. Rochemont and his clothing undertaken upon his arrest later in the day was "negative". While none of these things are in and of themselves determinative, the collective absence of such evidence can reasonably serve to raise some doubt about the extent of Mr.

Rochemont's involvement, if any, in the gunfire exchange in Polson Park on the morning of August 12, 2014. [ 128 ] I therefore conclude that the Crown has not proven beyond a reasonable doubt that Mr. Rochemont in fact possessed and used a handgun in the shooting incident which occurred in Polson Park on August 12, 2014. Accordingly, I find Mr. Rochemont not guilty of all of the offences charged in the indictment against him. KENT J.