Her Majesty the Queen - v. -, 2018 SKPC 58

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 058 Date: October 9, 2018 Information: 991025086 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joshua Kahnapace Appearing: Mr. D. Belanger For the Crown Ms. T. Hagey For the Accused TRIAL DECISION M. HINDS , J [ 1 ] Joshua Kahnapace is charged that on the 4 th day of September 2017, at or near Regina, Saskatchewan, he did: 1. In committing an assault on Ryan Jones use a weapon, to wit a firearm, contrary to

section 267 (

a) of the Criminal Code . 2. Use a firearm, to wit: a shotgun while committing the indictable offence of assault with a weapon, contrary to section 85(1) (

a) of the Criminal Code . 3. Possess ammunition, to wit: shotgun ammunition while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code and 4. Breach of an Undertaking by failing to keep the peace and be of good behaviour contrary to section 145(3) of the Criminal Code .

[2] The Crown argues that it has proved beyond a reasonable doubt that Joshua Kahnapace committed these offences. Inparticular the Crown submits that, by virtue of direct and circumstantial evidence, it has established the identity of Joshua Kahnapace. The defence argued that the Crown has not met the standard of proof on identity. [3] In this case I have determined that the Crown has established identity beyond a reasonable doubt. As a result I find thatJoshua Kahnapace is guilty of all of the charges before the Court. ISSUE [4] The issue to be dealt with at the trial is as follows: 1.

Has the Crown proven beyond a reasonable doubt the identity of the accused as being the individual who took a shotgun out of avehicle at Regent Family Restaurant and pointed it at the complainant Ryan Jones and subsequently discharged the shotgun onSeptember 4, 2017? THE LAW [5] The Crown has tendered video surveillance evidence (Exhibit P-1) as proof of identity. The leading authority on the use ofvideo surveillance for the purpose of establishing identity is set out in the Supreme Court of Canada’s decision in R v Nikolovski, (SCC), [1996] 3 SCR 1197 [Nikolovski].

The Court in Nikolovski held that a video recording can be admitted at trial as an“objective silent witness” if the video is of good quality and gives a clear picture of the events and the perpetrator. In that decision, CoryJ. stated as follows: [21] The video camera on the other hand is never subject to stress. Through tumultuous events it continues to record accurately anddispassionately all that comes before it. Although silent, it remains a constant, unbiased witness with instant and total recall of all that itobserved. The trier of fact may review the evidence of this silent witness as often as desired.

The tape may be stopped and studied at acritical juncture. [22] So long as the videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the bestevidence of the identity of the perpetrator. It is relevant and admissible evidence that can by itself be cogent and convincing evidence onthe issue of identity. Indeed, it may be the only evidence available. For example, in the course of a robbery, every eyewitness may bekilled yet the video camera will steadfastly continue to impassively record the robbery and the actions of the robbers.

Should a trier offact be denied the use of the videotape because there is no intermediary in the form of a human witness to make some identification ofthe accused? Such a conclusion would be contrary to common sense and a totally unacceptable result. It would deny the trier of fact theuse of clear, accurate and convincing evidence readily available by modern technology. The powerful and probative record provided bythe videotape should not be excluded when it can provide such valuable assistance in the search for truth.

In the course of theirdeliberations, triers of fact will make their assessment of the weight that should be accorded the evidence of the videotape just as theyassess the weight of the evidence given by viva voce testimony. [23] It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of factcan use it as the sole basis for the identification of the accused before them as the perpetrator of the crime.

It is clear that a trier of factmay, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a singleeyewitness. It follows that the same result may be reached with even greater certainty upon the basis of good quality video evidence.Surely, if a jury had only the videotape and the accused before them, they would be at liberty to find that the accused they see in the boxwas the person shown in the videotape at the scene of the crime committing the offence.

If an appellate court, upon a review of the tape,is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person inthe tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accusedas the person depicted in the videotape. . . . [28] Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomesadmissible and relevant evidence.

Not only is the tape (or photograph) real evidence in the sense that that term has been used in earliercases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crimehas been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional,unbiased and accurate witness who has complete and instant recall of events.

It may provide such strong and convincing evidence that ofitself it will demonstrate clearly either the innocence or guilt of the accused. [29] The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of thetape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing theweight which a trier of fact may properly place upon the evidence.

The time of depiction may not be significant for even if there are buta few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of

fact has reviewed the tape on several occasions and stopped it to study the pertinent frames. [30] Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given to them as to how they are to approach this task.

They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this.

Further, they should be told once again of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused. [31] The jury or trial judge sitting alone must be able to review the videotape during their deliberations. However, the viewing equipment used at that time should be the same or similar to that used during the trial.

I would think that very often triers of fact will want to review the tape on more than one occasion. [32] A trial judge sitting alone must be subject to the same cautions and directions as a jury in considering videotape evidence of identification. It would be helpful if, after reviewing the tape, the trial judge indicated that he or she was impressed with its clarity and quality to the extent that a finding of identity could be based upon it.

This courtesy would permit Crown or particularly defence counsel to call, for example, expert evidence as to the quality of the tape or evidence as to any changes in appearance of the accused between the taking of the videotape and the trial and to prepare submissions pertaining to identification based on the tape. [ 6 ] In R v Delorme , 2017 SKCA 3 the Saskatchewan Court of Appeal commented upon Nikolovski and stated as follows at para 38: The Nikolovski decision makes it abundantly clear that the assessment of a video and of its inherent value, deficiencies, or shortcomings is a matter that lies particularly within a trial judge’s function. [ 7 ] I am also mindful of the Saskatchewan Court of Appeal’s decision in R v Mckay , 2017 SKCA 4 wherein the Court stated it was an error of law to apply the criminal standard of proof beyond a reasonable doubt to individual pieces of evidence.

Rather, the trier of fact must consider the cumulative effect of all relevant evidence as a whole when determining whether guilt is established beyond a reasonable doubt. [ 8 ] In the present case, the Crown also relies on the evidence of the complainant to identity the accused. I am reminded of the concerns which courts have regarding eyewitness identification and the inherent danger in convicting on such evidence. In R v Bigsky , 2006 SKCA 145 , 289 Sask R 179 Madam Justice Jackson provides this helpful

summary of the case law at paragraphs 41 – 43: [41] In the judge-alone cases, when a court of appeal will intervene depends on a variety of factors: (

i) whether the trial judge can be taken to have instructed himself or herself regarding the frailties of eyewitness testimony and the need to test its reliability; (ii) the extent to which the trial judge has reviewed the evidence with such an instruction in mind; (iii) the extent to which proof of the Crown's case depends on the eyewitness's testimony or, in other words, the presence or absence of other evidence that can be considered in determining whether a court of appeal should intervene; (iv) the nature of the eyewitness observation including such matters as whether the eyewitness had previously known the accused and the length and quality of the observation; and (

v) whether there is other evidence which may tend to make the evidence unreliable, i.e., the witness's evidence has been strengthened by inappropriate police or other procedures between the time of the eyewitness observation and the time of testimony. [42] In those judge-alone cases where a conviction based on eyewitness testimony has been upheld, the court of appeal found that the trial judge has instructed himself or herself properly on the appropriate standard of proof and the frailties of eyewitness testimony and applied those standards in the analysis; the eyewitness has either known the accused; or the evidence formed a part only of evidence of guilt; and there has been no suggestion that the eyewitness identification has been contaminated or weakened by some sighting after the incident.

It is also relevant, in the appellate context, whether the accused testified. [43] Where courts of appeal have found error, the reasons have been insufficient, the eyewitness identification rests on a "fleeting glance" or some improper procedure took place after the incident which may have inappropriately strengthened the witness's testimony . [ 9 ] The Crown also relies upon circumstantial evidence in support of identification of the accused. The case of R v Toutsaint , 2017 SKPC 29 [ Toutsaint ] involved the issue of identity and circumstantial evidence.

In Toutsaint Judge Baniak stated as follows at paragraph 54: [54] Courts and the learned authors of The Law of Evidence in Canada, 2 nd ed. (Markham Lexis Nexis, 1999) has held and stated that circumstantial evidence . . .

. . . need not alone lead to the conclusion sought to be proved. Pieces of evidence, each by itself insufficient, may, however, when combined, justify inference that the facts exist (p 41). [ 10 ] I adopt this statement of the law.

ANALYSIS [ 11 ] The burden of proof is on the Crown to prove beyond a reasonable doubt that Joshua Kahnapace was the individual who, on September 4, 2017, took a shotgun out of a vehicle parked outside of the Regent Family Restaurant, initially pointed it at Ryan Jones and subsequently discharged the gun. [ 12 ] The Crown’s identification evidence is made up of both direct and circumstantial evidence. The Crown contends that it has presented three forms of direct evidence establishing that Joshua Kahnapace was the perpetrator of these offences. Direct Evidence of Identity A.

Surveillance Video Recordings [ 13 ] The Crown’s direct evidence of identity consists of a series of video recordings obtained from several surveillance cameras located at the Regent Family Restaurant on September 4, 2017. The owner of Regent Family Restaurant, Nikolas Lagodontis, provided the surveillance video recordings to the police who, in turn, put the video recordings on a disc, which is Exhibit P-1.

There is nothing to suggest that the video recordings set out in Exhibit P-1 were altered or changed in any way from the original recordings. [ 14 ] I have reviewed the surveillance video (P-1) from the Regent Family Restaurant and I am of the view it is of sufficient quality and clarity and shows the accused for a sufficient time to enable me to conclude that identification of Joshua Kahnapace has been proven beyond a reasonable doubt. Put another way, it gives a clear picture of events and the perpetrator, Joshua Kahnapace.

I have had an opportunity to review the surveillance video (P-1) both in court and in the privacy of my chamber on several occasions. I have also had the opportunity to see and observe Joshua Kahnapace in my court on April 6, 16, May 8, July 16 & 17 and September 4 and 13, 2018 I also had the opportunity to see and observe Joshua Kahnapace’s friend, Erin Cote, in my court on May 8, 2018. [ 15 ] I am of the view that the video surveillance reveals that the male and female depicted in the video are the accused, Joshua Kahnapace and his friend, Erin Cote.

The two arrived at the Regent Family Restaurant around 9:17 p.m. and got out of a white Hummer motor vehicle and go into the Regent Family Restaurant. Camera 16 reveals the couple spent approximately nine minutes between 9:19:20 and 9:28:16 in the gaming area of the restaurant. The video also reveals a 23 second in-person encounter between the complainant, Ryan Jones, and Joshua Kahnapace in the gaming area; this occurred between 9:25:18 and 9:25:41. I note that just prior to this encounter, Mr. Kahnapace rises from his chair to face camera 16 at 9:25:16.

During approximately 15 of the next 25 seconds the video reveals excellent full frontal and side views of Mr. Kahnapace’s face. He is wearing black topped running shoes, with white soles, black sweat pants with white writing “No time for losers” on the upper right pant leg and “0 0” in white on the upper left pant leg. He is also wearing a black hoodie and a dark ball cap with the letters “SKFT”. [ 16 ] The video evidence (P-1) reveals that Erin Cote and Joshua Kahnapace left the Regent Family Restaurant slot machine area at 9:28:16 and returned to the white Hummer which is parked outside.

Camera 17 of the video surveillance reveals that at approximately 9:29 Joshua Kahnapace goes to and opens the rear driver’s side door of the white Hummer and, at 9:29:10, takes out what appears to be a gun, holds it in the direction of Ryan Jones for several seconds beginning around 9:29:14. Mr. Jones’s body flinches at 9:29:15. The gun is raised in the direction of Mr. Jones again at 9:29:20 for a short time. The second encounter in the parking lot area between Joshua Kahnapace and Ryan Jones lasts in total for approximately 22 seconds after which Joshua Kahnapace and Erin Cote leave the parking lot at 9:29:45.

B. In-Dock Identification of Accused by the Complainant

[ 17 ] The Crown also asserts that the complainant, Ryan Jones, identified Joshua Kahnapace as the man he first encountered in the gaming area at the Regent Family Restaurant. In-chief, Mr. Jones indicated that while in the restaurant, he walked by “Joshua” on route to the bathroom and Joshua turned around and asked him for $20.00. Mr. Jones testified on cross-examination that he knows the name “Joshua” because it was written on his subpoena. Mr. Jones further testified in-chief “That’s him. I think that’s him.” while looking at Mr. Kahnapace in the prisoners’ box.

He added “It looks like he has gained some weight.” He indicated that he could tell this was the man he encountered due to the shape of his face and his eyes. On cross-examination Mr. Jones agreed that he described the man he encountered as being skinny, young, native, 24 to 26 years old. Mr. Jones further agreed that the only Aboriginal male in the courtroom during his testimony was the person in the prisoners’ box. On cross-examination Mr. Jones testified that he had talked to the detective involved in the investigation who told him they got the man. Mr.

Jones added “Well, I would hope you got the right guy!”, “He looks like my buddy” and “I’m 100% sure that is him.” [ 18 ] I am reminded of the inherent frailties of eyewitness identification. In this case it is apparent that Mr. Jones had been drinking quite a bit of alcohol that evening and this may have affected his observations and recollection. He testified in-chief that he was probably starting to feel drunk that night and had consumed four to five Kokanee beer before the incident. On cross-examination he readily conceded that he could have consumed more than four or five beers.

In addition he stated “This day I was going at it. The alcohol hit me pretty hard.” I am also mindful that Mr. Jones did not know Joshua Kahnapace prior to September 4, 2017, and his two encounters with him that evening were of a relatively short duration. It is also apparent that Mr. Jones was quite surprised by and somewhat shocked by the second encounter that evening in the parking lot. Mr. Jones in-dock identification of the accused, being the only Aboriginal man in the entire courtroom is also a concern. Lastly, I am concerned that, having been assured by a detective that “they got the man”, Mr.

Jones appears to have been influenced by this remark leading him to testify “Well, I would hope you got the right guy!” It appears that an interaction between a detective and Mr. Jones took place after the incident which may have inappropriately strengthened Mr. Jones’ testimony. Overall, I find this eyewitness identification to be weak. C. Identification of Accused by his friend, Erin Cote [ 19 ] The Crown called Erin Cote as a witness at trial. At the time of the offences, Ms. Cote had recently been dating the accused and they still remained friends on September 4, 2017.

During the course of her testimony in-chief Ms. Cote indicated that in September 2017 she was “messed up”. She testified that she was addicted to drugs and was drinking every day. On September 4, 2017, she recalled being drunk all day and that she was in a Hummer (motor vehicle) that day. Around 9:00 p.m., Ms. Cote testified, she and Joshua Kahnapace and other people were in the Hummer which drove around to a lot of places in Regina. They drank and played some slots. She recalled being at Triple Pizza. She could not recall if she and Joshua Kahnapace were at the Regent Family Restaurant. [ 20 ] Ms.

Cote was arrested on September 9, 2017 in relation to theft and breach charges. She was held in police custody. A video recording (Exhibit P-1 on the voir dire ) was made of an interview of Erin Cote on September 10, 2017, conducted by Constable Chelsea Kotylak at the Regina Police Station. [ 21 ] Ms. Cote did not recall giving a video recorded statement to Constable Kotylak on September 10, 2017. When the Crown asked Ms. Cote again about providing such a statement, Ms.

Cote asserted that she did a line of crystal meth in police cells prior to the video and that she was messed up when the video was taken. [ 22 ] The Crown brought an application under section 9(2) of the Canada Evidence Act , RSC 1985, c C-5. I found significant inconsistencies between Erin Cote’s evidence in court and what she said to Constable Kotylak during the video recording of September 10, 2017. In particular, there was an inconsistency between Ms.

Cote’s testimony wherein she was unable to recall if she was with Joshua Kahnapace at the Regent Family Restaurant on September 4, 2017 and her statement to the police of September 10, 2017, that she was with Joshua Kahnapace at the Regent Family Restaurant on September 4, 2017. [ 23 ] The Crown proved that the video statement of Erin Cote was recorded on September 10, 2017, by calling Constable Kotylak who was present during the video statement. I permitted the Crown to cross-examine Erin Cote on her video statement of September 10, 2017. [ 24 ] The Crown also asked Ms.

Cote questions about (Exhibit P-1 at trial) being in certain video clips obtained from Regent Family Restaurant from September 4, 2017 and in particular, the segment showing a male and female in the slot machine area of the restaurant between 9:19 p.m. and 9:25 p.m. Initially, Ms. Cote indicates that she recognizes herself as being the female (“Well, that’s me obviously.” page T-59 line 12). However, she was not sure if the male she was with that evening was Joshua Kahnapace (page T-59 line 21) and “I can’t be certain”.

[ 25 ] When Ms. Cote was questioned about the video still taken at 9:25:34 she testified “Josh was with me that night. I don’t know if that’s Josh right there.” (T-64 line 4). [ 26 ] A voir dire was held to determine whether a video recording of a police interview of Erin Cote conducted on September 10, 2017 could be admitted into evidence at trial. On September 4, 2018, I determined that this video recording of Erin Cote was admissible as a principled exception to the hearsay rule, as it is substantively reliable and met threshold reliability.

The video recording is set out in Exhibit P-19. [ 27 ] The material of Erin Cote’s statement which the Crown tenders for its truth are the following: (

i) She and Joshua Kahnapace were at the Regent Family Restaurant during the evening of September 4, 2017. (ii) Joshua Kahnapace and a guy had words – an argument – while at the Regent Family Restaurant on the evening of September 4, 2017. (iii) Joshua Kahnapace had a shotgun earlier in the evening and pulled it out of the Hummer motor vehicle at the Regent Family Restaurant. Ms. Cote saw the shotgun go off in the parking lot area. [ 28 ] As stated by Mr. Justice Kalmakoff in R v Faith Goforth (unpublished) in a Judgment dated October 16, 2017: I must keep in mind what “threshold” reliability means.

It is not to be confused with “ultimate” reliability. Threshold reliability is not synonymous with truthfulness. The question of threshold reliability relates to whether the evidence is sufficiently reliable to overcome the dangers arising from the inability to test it by means of contemporaneous cross-examination. To put it another way, finding that Mr.

Stonechild’s out-of-court statement is reliable would not be the same as finding that it should be believed, but only that it is sufficiently reliable to be considered as evidence and assessed by the jury along with her in-court testimony. [ 29 ] In this case, I am of the view that Ms. Cote’s out-of-court statement of September 10, 2017, when assessed with her in-court statement, would not be of sufficient weight to establish the identity of Joshua Kahnapace as being the perpetrator of these offences. Overall I find this evidence to be equivocal.

Circumstantial Evidence of Identity [ 30 ] The Crown submits that the following circumstantial evidence establishes identity: I. Items police seized from Joshua Kahnapace on September 6, 2017 consisting of:

a) Exhibit P-8 being dark coloured ball cap with the letters “SKFT” written on it;

b) Exhibits P-5 & 6 being a matched pair of black Nike shoes with white soles; and

c) Exhibit P-9 watch. II. Exhibit P-10 being a black hooded sweater police seized from a stolen red Honda Civic, Saskatchewan licence plate 605 GTP on September 5, 2017, which contains Joshua Kahnapace’s DNA on the right cuff. III. One spend shotgun cartridge (Exhibit P-4) seized from the parking lot of Regent Family Restaurant and two shotgun shells seized from right cargo pant pocket of Joshua Kahnapace (Exhibit P-5) on September 6, 2017. IV. Left thumb print of Joshua Kahnapace lifted from the vanity mirror of 2009 white Hummer motor vehicle (Exhibits 15, 16 & 17).

[ 31 ] I am of the view that Nike shoes from Joshua Kahnapace on September 6, 2017, appear to match the Nike shoes worn by Joshua Kahnapace at Regent Family Restaurant on the evening of September 4, 2017. The shape, colour and design of the Nike shoes appear to be identical. The dark ball cap bearing the words “SKFT” appears to be an exact match. While it appears Joshua Kahnapace is wearing a dark watch in the video surveillance, I am unable to conclude this watch matches the watch seized from Mr.

Kahnapace on September 6, 2017. [ 32 ] The evidence reveals that a red Honda Civic motor vehicle with Saskatchewan licence plate 605 GTP was stolen from Courtney Kelly on September 5, 2017, by a female who got out of a white Hummer which had been driven by another female. Sgt. Scott Thompson testified that he observed Joshua Kahnapace driving the red Honda Civic on September 5, 2017 in Regina. The red Honda Civic was recovered later that day and a black hoodie was seized from it which contains Joshua Kahnapace’s DNA on the right cuff.

The Crown invites me to conclude that the black hoodie seized from the red Honda Civic is the same black hoodie which Joshua Kahnapace was wearing on September 4, 2017 at the Regent Family Restaurant. I am unable to do so. The black hoodie which Joshua Kahnapace was wearing on September 4, 2017, appears to have few distinguishing features. It was black and did not have a zipper. The black hoodie seized from the red Honda Civic is also black and lacks a zipper. The black hoodie seized from the red Honda Civic had a “Champion” logo on the left sleeve.

The “Champion” logo is not visible on the left sleeve of the black hoodie worn by Joshua Kahnapace in the video (Exhibit P-1) as the left sleeve is rolled up. While the two hoodies appear to be very similar, I cannot conclude they are one in the same. [ 33 ] The Crown invites the Court to conclude that the single spent shotgun cartridge (Exhibit P-4) retrieved from the parking lot of Regent Family Restaurant on September 4, 2017, matches two shotgun shells seized from the right cargo pant pocket of Joshua Kahnapace (Exhibit P-5) on September 6, 2017. Sgt.

Scott Thompson compared the spent shotgun cartridge (Exhibit P-4) to the two shotgun shells seized from Joshua Kahnapace (Exhibit P-5). Sgt. Thompson testified as to the similarities of the two exhibits: (1) the Winchester brand name exists on the brass of each of the exhibits (2) each of the brasses are shallow as opposed to tall (3) each of the exhibits are 12 gauge (4) each exhibit has a red plastic shell (5) each of the exhibits has a X logo on the red plastic shell and (6) such ammunition is typically used for hunting upland birds. I am of the view that despite Sgt.

Thompson’s concession on cross-examination that 12 gauge Winchester shotgun shells are widely accessible in several retail stores. Exhibit P-4 and Exhibit P-5 appear to be an exact match and are connected to Mr.

Kahnapace over a two-day time period in an urban setting in Regina. [ 34 ] The Crown invites the Court to conclude that the white Hummer motor vehicle shown in the surveillance video taken at the Regent Family Restaurant (Exhibit P-1) matches the 2009 white Hummer motor vehicle which was seized by the police on or about September 5, 2017, and from which the left thumb print of Joshua Kahnapace was found on the vanity mirror (Exhibits P-16 & 17). Sgt.

Giroux testified that there was only one white Hummer reported to be stolen in Regina at the material time. [ 35 ] The white Hummer depicted in Exhibit P-1 looks strikingly similar to photographs of a white Hummer shown in Exhibit P- 15. Each of the white Hummers have black vented hoods, the same front grill, the same headlights and fog lights, the same two black towing rings and the same black running boards. There is one exception. The white Hummer depicted in Exhibit P-15 has a rear Saskatchewan licence plate 404 IYK.

There is also a second Saskatchewan licence plate 398 KUC located on the rear bench seat of the white Hummer depicted in Exhibit P-15. The video surveillance of the white Hummer at the Regent Family Restaurant does not record an image of the rear of the vehicle or the interior rear bench seat. Hence, neither a rear licence plate nor another licence plate can be observed. I am, however, of the view that this difference attributable to a camera angle on a surveillance camera is not fatal.

Overall, I am satisfied that given there was only a single report of a stolen white Hummer at the material time, and two white Hummers appear to be so strikingly similar, I infer they are one in the same. Conclusion [ 36 ] I am of the view that the Crown has proved the identity of Joshua Kahnapace as being the perpetrator of the offences before the Court. I am of the view that the video surveillance evidence from the Regent Family Restaurant reveals that the male and female depicted in the video are the accused, Joshua Kahnapace and his friend, Erin Cote.

While I found the eyewitness evidence of Ryan Jones to be weak and the evidence of Erin Cote to be equivocal, when I consider the cumulative effect of all the evidence as a whole, I find it to be convincing. That evidence also includes: (1) the items police seized from Joshua Kahnapace on September 6, 2017, consisting of (

a) Exhibit P-8 being dark coloured ball cap with the letters “SKFT” written on it, (

b) Exhibits P-5 & 6 being a matched pair of black Nike shoes with white soles (2) one spent shotgun cartridge (Exhibit P-4) seized from the parking lot of Regent Family Restaurant and two shotgun shells seized from right cargo pant pocket of Joshua Kahnapace (Exhibit P-5) on September 6, 2017 and (3) the left thumb print of Joshua Kahnapace lifted from the vanity mirror of a 2009 white Hummer motor vehicle (Exhibits 15, 16 & 17). Therefore, I am satisfied that the Crown has established identity of Joshua Kahnapace as being the perpetrator of the offences before the Court. [ 37 ] As a result I find the accused guilty of all of the charges.

_____________________ M. Hinds, J.