R. v. Burry, 2018 NLSC 38

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Burry , 2018 NLSC 38 Date : February 21, 2018 Docket : 201501g4311 Her Majesty The Queen v. Stephen Burry Before: Justice Valerie L. Marshall Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: January 19, 22, 23, 24, 26, 2018

Summary: The Accused was charged with break, enter and theft, unlawful possession of break-in instruments, and possession of a prohibited weapon contrary to court order. The Accused was found not guilty of all charges. Appearances: Dana Sullivan Appearing on behalf of the Crown Susan Day Appearing on behalf of the Accused

Authorities Cited: CASES CONSIDERED: R. v. Summers, 2016 NLTD(G) 171; R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr,2000 SCC 40; R. v. Holmes, (SCC), [1988] 1 S.C.R. 914; R. v. Pitcher, 2013 NLCA 22; Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (BCCA); R. v. Kowlyk, (SCC), [1988] 2 S.C.R. 59; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. v. Farnsworth, 2017 ABCA 358; R. v. Summers, 2017 NLTD(G) 104; R. v. Noble, (SCC), [1997] 1 S.C.R. 874. STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46; Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11. REASONS FOR JUDGMENT Marshall, J.: INTRODUCTION [1] Stephen Burry was charged with one count of break, enter and theft contrary to section 348(1)(

b) of the Criminal Code ofCanada, R.S.C. 1985, c. C-46 (the “Code”); one count of unlawfully possessing break-in instruments, contrary to section 351(1) of theCode; and one count of possession of a prohibited weapon in contravention of a court order, contrary to

section 117.01(1) of the Code. The charges against the Accused arose from a break, enter and theft of the Chapel Arm Pharmacy which occurred in the early morninghours of January 4, 2014, in Chapel Arm, Newfoundland and Labrador. BACKGROUND [2] The matter has a protracted history, some of which will be highlighted for background purposes. [3] Mr. Burry was initially charged along with two co-accused, Blair Summers and Ross Martin. The initial indictment againstthe three co-accused was filed on August 18, 2015. [4] On September 15, 2016, Mr.

Burry and Blair Summers were arraigned on a new indictment which no longer included RossMartin. On the same date, the Court commenced hearing pretrial applications filed by Mr. Burry and Mr. Summers, under the Charter ofRights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 (the“Charter”). In these Charter applications, Mr. Burry and Mr. Summers claimed a breach of their sections 9 and 10(

b) rights under theCharter. A judgment was given on October 27, 2016, with citation R. v. Summers, 2016 NLTD(G) 171; and their Charter applicationswere dismissed. Their trial was scheduled to commence on April 25, 2017. [5] On April 25, 2017, Mr. Burry fired his legal counsel, and the Court postponed the trial. Mr. Burry subsequently experiencedchallenges retaining new counsel for trial. [6] On May 24, 2017 Crown counsel applied to the Court for an order of severance of Mr. Burry’s and Mr. Summers’ matters,and a severance order was granted. Mr. Summers’ trial proceeded to commence on May 26, 2017. Mr.

Burry’s trial was rescheduled tocommence in October of 2017. [7] At a September 19, 2017 court appearance, the Court heard an application filed by Mr. Burry’s new counsel seeking a furtherpostponement of Mr. Burry’s trial. The application was granted, and the trial was postponed to January 19, 2018. [8] Mr. Burry’s trial proceeded on January 19, and January 22 to 26, 2018. At the trial, the Crown called several witnesses, andMr. Burry also testified in his own defence. [9] Mr. Burry’s counsel has also filed an application under

section 11(

b) of the Charter which, if it proceeds, is scheduled to be

heard in March of 2018. Onus and Elements of the Offences Charged [ 10 ] Counts 1 and 2 of the indictment state, as follows: Count 1 On or about 4 January 2014 at or near Chapel Arm, Newfoundland and Labrador did break and enter a place to wit: Chapel Arm Pharmacy and did commit therein the indictable offence of theft contrary to section 348(1) (

b) of the Criminal Code . Count 2 On or about 4 January 2014 at or near North River, Newfoundland and Labrador did without lawful excuse have in his possession instruments suitable for the purpose of breaking into a place to wit: pry bars and a sledgehammer under circumstances that gave rise to a reasonable inference that the instruments were used for such purpose contrary to section 351(1) of the Criminal Code . [ 11 ] Count 4 of the indictment states, as follows: Count 4 Stephen Burry stands charged that: On or about 4 January 2014 at or near North River Newfoundland and Labrador did possess a prohibited weapon while prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , dated 14 November 2011, contrary to

section 117.01(1) of the Criminal Code . [ 12 ] The relevant provisions of the Code for the charges are, as follows: 348

(1) Every one who … (

b) breaks and enters a place and commits an indictable offence therein … … is guilty … (

e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on

summary conviction. 351

(1) Every one who, without lawful excuse, the proof of which lies on them, has in their possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for such a purpose, (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or (

b) is guilty of an offence punishable on

summary conviction. 117.01

(1) Subject to subsection (4), every person commits an offence who possesses a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance while the person is prohibited from doing so by any order made under this Act or any other Act of Parliament. …

(3) Every person who commits an offence under subsection (1) or (2) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or (

b) is guilty of an offence punishable on

summary conviction. … [13] The Crown bears the onus of establishing beyond a reasonable doubt that the Accused committed any of the offences withwhich he is charged. Each element of an offence must be proven by the Crown beyond a reasonable doubt. The standard of “beyond areasonable doubt” was described in R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, where the Supreme Court of Canadastated at paragraph 36, as follows: 36 Perhaps a brief

summary of what the definition should and should not contain may be helpful.

It should be explained that: . the standard of proof beyond a reasonable doubt is inextricably intertwined with that principlefundamental to all criminal trials, the presumption of innocence; . the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; . a reasonable doubt is not a doubt based upon sympathy or prejudice; . rather, it is based upon reason and common sense; . it is logically connected to the evidence or absence of evidence; . it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginaryor frivolous doubt; and . more is required than proof that the accused is probably guilty -- a jury which concludes only that theaccused is probably guilty must acquit. [14] In R. v.

Starr, 2000 SCC 40, the Supreme Court of Canada further described the reasonable doubt standard as falling “muchcloser to absolute certainty than to proof on a balance of probabilities”. [15] With respect to the section 348(1)(

b) offence of break, enter and theft, the Crown had to establish beyond a reasonable doubtthat the Accused broke into Chapel Arm Pharmacy, entered the pharmacy, and committed theft. [16] Pursuant to

section 322 of the Code, the elements of the indictable offence of theft require that the Crown prove beyond areasonable doubt that the Accused took property from the Chapel Arm Pharmacy; that the property was taken fraudulently, and withoutcolour of right; that when the Accused took the property for his own use he meant to deprive Chapel Arm Pharmacy, or its owner, of theproperty or their interests in it; and that the property taken was worth more than $5000. [17] Under section 351(1) of the Code, the elements of the offence of possession of break-in instruments require that the Crownestablish beyond a reasonable doubt that the Accused possessed pry-bars and a sledgehammer, without lawful excuse; that thoseinstruments were suitable for breaking into Chapel Arm Pharmacy; and that the Accused’s possession must have been undercircumstances that gave rise to a reasonable inference that the instruments were intended by the Accused to be used for the purpose ofbreaking into the Chapel Arm Pharmacy, (see R. v.

Holmes, (SCC), [1988] 1 S.C.R. 914, at paragraph 49). [18] The elements of the offence charged under

section 117.01(1) of the Code require that the Crown establish beyond a reasonabledoubt possession by the Accused of a prohibited weapon, while the Accused was bound to a prohibition order which was datedNovember 14, 2011. The Crown must further establish that the Accused had knowledge, or was reckless, with respect to thatprohibition.

SUMMARY OF EVIDENCE AT TRIAL Evidence of the Arresting Officers [19] The arresting officers were RCMP Corporal Mark Bishop and RCMP Constable Deborah Porter. Constable Deborah Porterwas the lead investigator. The officers had already testified at the Charter hearing. However, Counsel for the Accused and Crowncounsel agreed to not blend the evidence heard during the Charter application. That evidence was summarized in the Charterapplication decision, R. v.

Summers, 2016 NLTD(G) 171. [20] The arresting officers’ evidence at trial was that while they were on shift at the RCMP Whitbourne detachment in the earlymorning of January 4, 2014, they were informed via radio telecommunication/dispatch that there had been a possible break and enter atthe Chapel Arm Pharmacy, which is located in Chapel Arm, Newfoundland and Labrador. According to Constable Porter, the call camein about 2:42 a.m. on January 4, 2014.

Similarly, Corporal Bishop confirmed the call came between 2:40 and 2:45 a.m. [21] According to Constable Porter’s evidence, dispatch had advised that a call had been received indicating that there were severalmales breaking into the Chapel Arm Pharmacy, which was owned by the Ford Temple.

As a result, Constable Porter and CorporalBishop responded to the dispatch communication, and they proceeded to drive in a police vehicle in a westward direction on the TransCanada Highway, heading towards the Chapel Arm Pharmacy. [22] Their evidence suggested that the driving conditions were treacherous as there was an ongoing blizzard, the roads were snow-

covered and slippery, and there was blowing snow. Corporal Bishop described the driving conditions as poor. Constable Porter estimated that there was between six and ten inches of snow on the road. Their evidence was that visibility was reduced. [ 23 ] After driving ten or fifteen minutes in the westerly direction heading towards Chapel Arm, the officers observed two vehicles heading east on the Trans Canada Highway. According to Constable Porter, they encountered these vehicles about half way between Whitbourne and Chapel Arm.

According to Corporal Bishop, the vehicles were seen in the Peak Pond area, which he estimated as being a few kilometres west of Whitbourne. Those two vehicles were the only vehicles sighted by the officers on the road that evening. The first vehicle was described as a dark coloured SUV; and the second vehicle was described as a pickup truck. [ 24 ] Shortly after passing the two vehicles, an updated dispatch was received by the officers.

According to Corporal Bishop, the update was that the owner of the pharmacy had called back and said the pharmacy had been broken into, a safe had been stolen, and that an SUV or truck was involved in the break-in. According to Constable Porter, the second dispatch call informed them that three or four males had removed a large object from the pharmacy and loaded it onto a small truck with a cap, or an SUV, dark in colour. [ 25 ] In response to the updated dispatch, Constable Porter turned the police vehicle around and followed the tracks left by the two vehicles they had passed.

Constable Porter’s evidence was that the first vehicle they had passed matched the description from dispatch. The officers followed the tracks on the highway eastbound until they caught up to the pickup truck. [ 26 ] The officers pulled over the pickup truck, and conducted a traffic stop. Their evidence was that they wanted to rule out the potential that an occupant of that vehicle knew something about the break-in. Constable Porter’s evidence was that she spoke only with the driver. The driver provided insurance documents which indicated his name was Lucas Norman.

There was no photo on the insurance documents, and no other identification provided by the driver. Constable Porter’s evidence was that there was a female in the front seat, but her name was not recorded. Constable Porter’s evidence was that she did not see anyone else in the truck, however, she did not look towards the back seat. When asked whether it was possible there had been other occupants in the back seat, her response was that it was not impossible. [ 27 ] Corporal Bishop’s evidence was that he looked in the box of the truck, and that he saw nothing there.

He also confirmed that the driver was Lucas Norman. He agreed that there was possibly another occupant, being a female occupant; however, he couldn’t specifically recall this. Corporal Bishop’s evidence was that he recalled glancing inside the truck looking for a safe, but not for other people. He agreed in his cross-examination that there could have been two or three passengers in the truck. [ 28 ] The officers stopped detaining the truck, and then proceeded to pursue the SUV by following the tire tracks in the snow. They proceeded east following those tracks; at times, they could see taillights.

They followed the tracks onto the Veterans Memorial Highway, and towards Bay Roberts. They continued following the tracks in the direction down the on ramp to North River when they came upon the suspect SUV, which was stuck on its left side in a ditch. The SUV vehicle was a Jeep Cherokee, and it was dark in colour. [ 29 ] Constable Porter had been driving, and she pulled the police vehicle near parallel to the SUV. Constable Porter then approached the vehicle. Her evidence was that she saw silhouettes in the vehicle. She opened the front passenger door.

She observed three males in the vehicle; two males in the front seat and one male in the rear. Constable Porter ordered the male in the front passenger seat to exit the vehicle. According to Constable Porter, she shone her flashlight in the backseat, at which time she observed a large object which was consistent with the size and shape of a safe. She advised the males that they had property in relation to a break and enter, and that they were under arrest for break and enter. Constable Porter’s evidence was that she advised the three men of their rights and caution.

Her evidence was that the men were placed under arrest at 3:37 a.m. The three men were each searched by Corporal Bishop, and they were then secured by him in the back of the police vehicle. Corporal Bishop then proceeded to transport the three males back to the Harbour Grace RCMP detachment. Constable Porter remained with the SUV. [ 30 ] The evidence was that the three men were not identified at the time of the arrest. Rather, the three men were not identified until arrival at the detachment.

The three men were identified there as Stephen Burry, Blair Summers and Ross Martin. [ 31 ] Constable Porter’s evidence was that the first male ordered out of the SUV was the male in the front passenger seat, whom she testified was Blair Summers. According to her evidence, after Blair Summers exited, the rear passenger was ordered out, and she indicated that he was Ross Martin. Her evidence was that Stephen Burry was the final person ordered out of the SUV, and that he had been in the driver’s seat.

Constable Porter was confident that the Accused was the driver of the SUV. [ 32 ] In the meantime, Constable Porter’s police notes did not indicate the order in which the occupants exited the vehicle. Further, she had not made notes which would allow her to distinguish any of the occupants from each other; and she was not present when the three males were identified by Corporal Bishop at the Harbour Grace detachment. She was unsure of the time when she learned the names of the three men.

Her evidence was that she would have definitely known their names by the time of their release in the evening of January 4, 2014. [ 33 ] Corporal Bishop could not remember at trial who exited the vehicle first. However, he was referred to his police notes in which he had indicated that Ross Martin exited the vehicle first; then Mr. Burry, and then Mr. Summers. According to Corporal Bishop’s evidence, he observed Mr. Summers as the driver of the SUV, and the third male who exited the vehicle.

Corporal Bishop further confirmed that at the time of the preliminary inquiry, he had testified that it was Blair Summers who was in the driver’s seat of the vehicle. [ 34 ] The evidence was that when the three men arrived at the Harbour Grace detachment, they were processed and placed in cells. According to Corporal Bishop’s evidence, Mr. Burry did not have any wallet or I.D. on him. He did have a cell phone, keys, medication and cash. [ 35 ] As stated, Constable Porter stayed with the SUV after Corporal Bishop had left with the three men in the police vehicle.

She remained in the vehicle until a tow truck arrived. While sitting in the front passenger seat of the vehicle, she observed tools, including hammers and pry-bars which were in the back seat of the vehicle, and she could clearly see a safe poking above the rear seat of the

SUV. [ 36 ] Constable Porter’s evidence was that the tow truck arrived at about 4:30 a.m., and the SUV was removed at approximately 4:47 a.m. The SUV was brought to the RCMP detachment in Bay Roberts. At the detachment, photos were taken by Constable Porter of the exterior and interior of the vehicle. Constable Porter’s evidence was that the SUV was not registered to any of the three accused. [ 37 ] Constable Porter’s next involvement was later in the day on January 4, 2014 when Corporal Baldwin asked her to return to the Harbour Grace detachment to release the three accused.

Her evidence was the three men were released sometime around 8:00 p.m. that evening. [ 38 ] Constable Porter’s evidence was that on January 5, 2014 she attended the Chapel Arm Pharmacy at 3:27 p.m. Her evidence was that she met Ford and Linda Temple at the pharmacy. Mr. Temple is the owner and operator of Chapel Arm Pharmacy. Upon arrival she noted that there was a security camera that had been knocked down from the front of the building.

She also noted that cables had been cut at the back of the building, and she described seeing the pry-marks and damage to the rear door of the pharmacy. [ 39 ] Constable Porter entered the pharmacy and proceeded to take numerous photographs which depicted the damage to the interior of the pharmacy; and which were consistent with a break and enter and theft having occurred. She also searched unsuccessfully for a clear fingerprint. [ 40 ] Constable Porter’s photos of the back door of the pharmacy clearly depicted the damage she had described, including pry- marks, which were blue in colour.

The photos also depicted holes through an interior door to the left, which she observed as she walked through the pharmacy. The photos depicted damage to the prescription drop-off and dispensary area, including a counter pushed forward, drawers pulled out and a shelf displaced with products knocked off the shelf. There were photos of a sledgehammer having been left on the counter of the pharmaceutical area. There were photos of a duffle bag which had been left over the dispensary counter area, including a photo of paper in the bag.

There were photos of a computer printout listing pharmacies with the letter ‘X’ marked by them. The photos also depicted an empty space between shelving and a mini-fridge in the pharmacy dispensing area. The photos depicted a hole in the floor in that empty space between the mini-fridge and shelving. The photos also depicted a footwear impression, however, Constable Porter indicated that footwear analysis was not done.

The photos also depicted a cash register which had been displaced, and drag marks on the floor leading to the front door exit. [ 41 ] Constable Porter’s evidence was that a warrant to search the SUV was executed on January 13, 2014. The search was conducted at the Bay Roberts secure bay, where the vehicle had been stored. She did the search and obtained more photographs, including photos of the interior of the vehicle. It is evident from the photos submitted in evidence that the safe was visible in the hatch when looking at the back seat of the vehicle from the front passenger seat.

Constable Porter noted that blue paint was on the door of the safe, and blue paint was also on the point of entry to the pharmacy. [ 42 ] Constable Porter’s photos also depicted items in the interior of the vehicle including what she described as a two-way radio, a Blackberry cell phone, flashlights, a sledgehammer, blue pry-bars, gloves, a duffle bag, a case of beer, bandannas and jackets. [ 43 ] The photos also depicted a package of prescription drugs in a duffle bag, with the prescription having been issued by Chapel Arm Pharmacy.

There were also photos of a weapon in the center console of the vehicle, which Constable Porter identified as being a butterfly knife. According to Constable Porter, a butterfly knife is a prohibited weapon. There were photos of other knives as well. [ 44 ] Constable Porter’s evidence was also that on January 15, 2014 in the course of the investigation, the RCMP received eight rounds of ammunition, two Blackberries and an iPod, all of which had subsequently been retrieved from the SUV. [ 45 ] On January 20, 2014 Constable Porter was able to open up the safe. Mr. Temple had given her the combination to the safe.

The combination allowed the dial of the safe to turn, and click, but the door was jammed and would not open. The RCMP eventually managed to get the door opened at which time various drugs and narcotics were located in the safe. Constable Porter’s evidence was that an inventory provided by Mr. Temple matched up with the contents of the safe. She recorded the contents of the safe with photos. Evidence of Eileen King and James King [ 46 ] Eileen King and James King are spouses who reside directly across the street from Chapel Arm Pharmacy. The front door of the pharmacy is about 200 feet from their house.

Their evidence was that in the early morning of January 4, 2014 they awoke to the sounds of sirens coming from the Chapel Arm Pharmacy. Mr. King’s evidence was that he heard the sirens at around 2:00 in the morning; Mrs. King’s evidence was that she heard the sirens a little after 2:00 in the morning. [ 47 ] Upon hearing the sirens, Mr. and Mrs. King both looked out their bedroom window, looking directly across the street at the front of Chapel Arm Pharmacy. Mr. King saw a dark coloured SUV backed into the front of the building, at a slight angle and near the front door.

He saw a gentleman wearing a snowsuit, or a parka with a hood, and standing in front of the SUV looking like he was “on watch”. Mrs. King similarly described a dark coloured vehicle parked with the front of the vehicle facing her house. Her evidence was that she saw a tall man walking back and forth behind the vehicle. [ 48 ] Mr. and Mrs. King both indicated that this was all occurring in the middle of a snowstorm. Mr. King indicated that it was a bad night and sometimes he couldn’t see directly across the street at times.

However, they both testified that the Chapel Arm Pharmacy was well lit up that night by the streetlights, and by the lights in the eaves of the pharmacy building. [ 49 ] While Mr. King remained upstairs viewing the scene, Mrs. King went downstairs to call Ford Temple, the owner of Chapel Arm Pharmacy. Her evidence was that she told Mr. Temple, or his wife, that she thought someone was breaking into the pharmacy. When she went back upstairs, the vehicle was gone so she didn’t see anything else. [ 50 ] Mr.

King, however, said he watched the scene for about 20 minutes, and that he saw a couple of men dragging what he described as a black box, and possibly a safe, out through the front door of the pharmacy. They loaded the black box into the back of the

SUV, put the hatch down and drove on. His evidence was that the men were wearing dark clothing. [ 51 ] In cross-examination, Mr. King was questioned on how many males he saw. His evidence was that he saw three for sure, and he confirmed that at times he thought it could have been four. However, now he thinks that there were only three, but he couldn’t swear to it. [ 52 ] Mrs. King spoke with the RCMP about 20 minutes after she had spoken with Mr. Temple. She indicated to the RCMP that the vehicle could have been an SUV, or small truck with a cap, dark in colour.

Later in the day she provided a statement to the RCMP. Mr. King also provided a statement to the RCMP. Evidence of Ford Temple [ 53 ] Mr. Temple is a pharmacist who has owned and operated the Chapel Arm Pharmacy for about 22 years. Mr. Temple’s evidence was that on the evening of January 3, 2014, he closed the pharmacy early due to the storm. He set the alarm and locked the door. [ 54 ] Mr. Temple’s evidence was that at around 2:00 in the morning of January 4, 2014, James or Eileen King phoned his house and spoke to his wife, to say that a break-in was in process at the pharmacy. Mr.

Temple immediately contacted the RCMP and left his house to drive to the pharmacy. Upon arriving, he observed that the security camera on the front southern corner of the building had been knocked off the eaves. Mr. Temple also observed that the exterior phone and internet lines had been cut. He also observed that the back door of the building had been destroyed. When he closed the pharmacy on January 3, 2014, the back door was in perfect condition. [ 55 ] Mr. Temple did not immediately enter the building. Rather, he waited in the parking lot until the RCMP arrived in the afternoon.

His evidence was that he did not enter the building until Constable Porter came out the next day for investigation. [ 56 ] Upon entering the building with Constable Porter, Mr. Temple observed the damage to the interior of the pharmacy. According to his evidence, the damage he observed at that time was not there when he left the building on the evening of January 3, 2014. [ 57 ] Mr. Temple described the damage which had been observed by him, and which was also depicted in the photographs.

The damage included the following: the narcotics safe was missing; the door to the electrical room had been beaten in with holes in it; the dispensary counter had been pushed out of place; there was a hole in the floor where the safe had previously been bolted to the floor; there were numerous items knocked off the shelves; and the back door was significantly damaged and had pry-marks, including blue marks. [ 58 ] Mr. Temple’s evidence was also that a number of items were found within the pharmacy, which had not been there when he left the evening before.

These were depicted in the photographs, and included a sports duffle bag hanging on the dispensary, sheets of paper with other pharmacies’ names on them, and a sledgehammer. [ 59 ] Mr. Temple’s evidence was that the safe retrieved by the RCMP was indeed his pharmacy’s safe. The damage to the safe depicted in the photographs, including the pry-marks, was not there when he had left the pharmacy the evening before. He confirmed that he gave the RCMP his combination to open the safe. [ 60 ] Mr. Temple’s evidence was that the stolen safe cost about $3000, and was damaged beyond repair.

Further, the narcotics and controlled drugs in the interior of the safe had a wholesale value of approximately $8000. He confirmed that he had provided Constable Porter with an inventory list of the contents of the safe which matched the contents of the safe. [ 61 ] Mr. Temple identified the names of the various narcotics and controlled substances which had been contained in the safe, and photographed by Constable Porter.

These included, but are not limited to: targin, oxycodone, codeine, nabilone, hydromorphone, biphentin, dexedrine, phenobarbital, cocaine, CoActifed, morphine, adderall, oxycocet, cesamet, methylphenidate, demerol, cotridin, Tylenol with codeine, fiorinal, robaxacet, delatestryl, suboxone, fentanyl, BuTrans, dilaudid and atasol. Evidence of RCMP Corporal Trevor Baldwin [ 62 ] Corporal Baldwin testified as to his involvement in the investigation.

His evidence was that he received a call at around 3:31 a.m. on January 4, 2014 informing him of the break-in; and he received a subsequent call at approximately 3:55 a.m. from Constable Porter and Corporal Bishop. His evidence was that in that second phone-call, he could hear that the suspects were being arrested. His evidence was that due to the weather conditions, no back-up was available for the officers. [ 63 ] Further, also due to the weather conditions, Constable Baldwin was unable to attend at Chapel Arm Pharmacy until 2:30 in the afternoon of the following day.

At that time, he met Ford Temple and proceeded to take photos of the exterior of the building. He observed the damaged back door of the pharmacy with blue pry-marks, the lines cut in the back of the building, and the front security camera knocked out of the eave of the front of the building. [ 64 ] Corporal Baldwin took statements from James and Eileen King.

Evidence of RCMP Corporal Stephen Barker and Retired RCMP Sergeant Thomas Murray [ 65 ] Also testifying at the trial were RCMP Corporal Stephen Barker and retired RCMP Sergeant Thomas Murray. [ 66 ] Corporal Barker indicated that he had received a call on January 14, 2014 from the towing company that was to collect the suspect vehicle from the Bay Roberts detachment secure bay. Upon arrival at the secure bay, the tow truck driver asked Corporal Barker

if the keys were in the vehicle. Corporal Barker opened the vehicle door and found the keys. At that time, Corporal Barker observed a couple of cell phones in the vehicle. He checked the phones to see if they were working, and upon discovering they were not, he threw them back in the vehicle. He also thought he observed an iPod. [ 67 ] Retired Sergeant Murray indicated that on January 15, 2014 he attended at Mahoney’s Towing, and he met with Walter Snow who turned over two cell phones, an iPod and 8 bullets which had been retrieved from the suspect vehicle.

He took a statement and turned these items over to Constable Porter. Evidence of Walter Snow [ 68 ] Mr. Snow works with a towing business, Mahoney’s Service Station in North River. His evidence was that he had received a call from the RCMP to pick up the suspect vehicle at the Bay Roberts detachment. When he arrived at the detachment he observed an RCMP officer checking a cell phone retrieved from the vehicle. He observed the officer attempt to turn the phone on, and, according to his evidence, the RCMP officer then “pitched” the cell phone back into the vehicle. [ 69 ] Mr.

Snow proceeded to tow the vehicle to the garage. At the garage, Mr. Snow retrieved from the vehicle a box of tissues in which he found a baggie containing bullets. He contacted the RCMP and the bullets were handed over to Sergeant Murray, along with two cell phones, and an iPod, which Mr. Snow had also retrieved from the vehicle. Evidence of Stephen Burry [ 70 ] The Accused testified at trial. He had also testified at the hearing of his Charter application, along with then co-accused, Blair Summers.

However, as stated, the evidence from the Charter hearing was not blended into the evidence at trial. [ 71 ] The Accused denied having any involvement with the break and enter at Chapel Arm Pharmacy. He denied ever having been in Chapel Arm. [ 72 ] The Accused’s evidence at trial was that on January 3, 2014 Blair Summers asked him to drive to Clarenville to pick up a truck which Mr. Summers was planning on purchasing. His evidence was that he, Blair Summers, Ross Martin and Amy George, who was Blair Summers’ girlfriend at the time, drove out to Clarenville in Amy’s Jeep.

While driving out to Clarenville, he and Ross Martin were in the back seat, Blair Summers drove the Jeep, and Amy was in the front passenger seat. [ 73 ] In cross-examination, he was questioned as to whether he could recall seeing pry-bars, sledgehammers, duffle bag, flashlights, a case of beer, or a safe in the Jeep, when he was in the back seat driving out to Clarenville.

His evidence was he did not see anything of that nature, and he indicated that he did not take inventory of what was in the truck when he drove out. [ 74 ] The Accused’s evidence was that when they drove out to Clarenville, he was not aware that a blizzard was coming. He said the weather was nice before they had left for Clarenville. His evidence was they drove to Clarenville around lunchtime. [ 75 ] Mr. Burry’s evidence was that he spent most of the day in Clarenville. Mr. Burry and Mr. Summers were dropped off at the house of the seller of the truck, and Mr.

Summers proceeded to purchase a silver or grey Dodge Ram. He was not sure when it was that Mr. Summers purchased the truck, but he suggested it could have been a couple of hours after they arrived in Clarenville. [ 76 ] The Accused’s evidence was that they went out for supper in Clarenville. He was unsure as to when he left Clarenville; however, his evidence was that it was nighttime, and his evidence suggested that they left from a gas station. [ 77 ] In cross-examination, the Crown put it to the Accused that he had previously testified (at the Charter hearing) that the time he left Clarenville was before dark.

Mr. Burry explained the contradiction by saying that at the time he gave his evidence at the Charter hearing, it was two years after the events, and he was then giving his best guess. Further, he did indicate in his evidence, at times, that it had now been four years since the incident, and he appeared to have some difficulty with remembering specifics. [ 78 ] In any event, Mr. Burry suggested in his evidence that when he and Mr. Summers left Clarenville, two other vehicles also left the gas station to travel to St. John’s with them. He elaborated that when he left Clarenville, he and Mr. Summers were in Mr.

Summers’ newly purchased truck; and Amy George and Ross Martin left in Amy’s Jeep. Further, he indicated that two other persons named Luke and Kelly, whom they had met at some point in Clarenville, perhaps at the gas station, also drove towards St. John’s. Luke and Kelly apparently drove in a large Ford truck, with an extended cab. Mr. Burry did not know who left Clarenville first. [ 79 ] The Accused further testified that at the time that they left Clarenville, the weather was very bad as there were blizzard and whiteout conditions.

He recalled seeing only a plow and another truck stopped in the snow. [ 80 ] His evidence was that after leaving Clarenville, Mr. Summers was driving. They drove for a while in the blizzard. Eventually, he and Mr. Summers slid off onto the shoulder of the road and got stuck in the snow. They spent some time trying to get the truck out of the snow; however, the truck eventually broke down. Mr. Burry couldn’t estimate how much time they spent trying to get the truck out of the snowbank.

Further, his evidence was that he was not familiar with the area, and he therefore could not say precisely where the truck had broken down. [ 81 ] Mr. Burry’s evidence was that Mr. Summers called Amy George to come back to get them. His evidence was that Luke eventually came back in Amy’s Jeep to pick up Mr. Burry and Mr. Summers. Mr. Summers and Mr. Burry got in the Jeep with Luke, and Mr. Summers drove them in Amy’s Jeep back to Luke’s truck. According to Mr. Burry, when he was driven by Mr. Summers in the Jeep, Luke was in the back of the truck, while Mr. Burry was in the front passenger seat.

His evidence was that it had been about 15 hours since he had been in Amy’s Jeep earlier in the day.

[82] The Accused’s evidence was also that Amy George did not want to drive back to St. John’s on her own. She therefore stayedin Luke’s truck, and she and Luke drove back to St. John’s in Luke’s truck. Mr. Burry watched Luke get into Luke’s truck. He didn’tactually see anyone else who was in Luke’s truck, but he surmised that Kelly and Amy were in the truck as they were the people withthem earlier in the day. At the same time, Ross Martin had switched vehicles by leaving Luke’s truck, and going into the back seat ofAmy’s Jeep. [83] The Accused’s evidence was that Mr.

Summers then drove he and Ross Martin back to St. John’s. Mr. Burry remained in thefront passenger seat. His evidence suggested that during that drive in Amy’s Jeep, his entire attention was focussed on the severe drivingconditions. His evidence suggested that he was concerned as it did not seem like they would make it back. His evidence was that Mr.Summers eventually tried to pull the Jeep off onto an exit, because Mr. Summers wanted to get off the highway as he felt they were notgoing to make it. The Jeep went down an on-ramp, and eventually it ended up in a snowbank in a ditch. [84] Mr.

Burry was questioned in cross-examination regarding what he saw in Amy’s Jeep when he got in the Jeep, after Luke hadcome to pick up Mr. Summers and Mr. Burry. Mr. Burry’s evidence was that he was sitting in the front passenger seat, and he did nottake an inventory of what was in the back seat of the Jeep. He could not recall seeing any of the items that were depicted in the photostaken by Constable Porter of the interior of the Jeep.

Specifically, he indicated that he was not aware of having seen the safe, thesledgehammer, the hammers, the duffle bag, any gloves, jackets, the hat, the tissue box, the pry-bars, bandannas, the case of beer or aflashlight. While in Amy’s Jeep, all he recalled was looking forward, and to the side out the truck, because of the weather conditions. Mr. Burry was adamant that he therefore never saw the safe in the hatch, and he had no theory on how it got there. He acknowledgedthat he wouldn’t be able to miss the safe if he had turned around.

His evidence was that he would have remembered seeing somethinglike that. [85] The Accused’s evidence was also that shortly after Amy’s Jeep became lodged in the snowbank, the police arrived. Hisevidence was that a female officer knocked on the window, and told them to put their hands up. His evidence was that Ross Martin wastaken out of the car first, then she asked Mr. Burry to exit the car. After Mr. Burry exited the car he was put in handcuffs. The lastperson to get out of the car, according to Mr. Burry’s evidence, was Blair Summers.

His evidence was that in the course of the arrest,the police officers repeatedly made reference to the possibility of a fourth suspect. [86] The Accused’s evidence was that the three men were then driven to the RCMP detachment. At the detachment he emptied hispockets and gave the RCMP his jacket and sneakers. His evidence was he was wearing jeans, blue sneakers and a Fall jacket. Thepolice officers took his inhaler, the chain around his neck and his money. They were placed in cells; and they were eventually releasedlater in the evening. [87] Mr.

Burry’s evidence was that he is just under six feet, two inches tall, and Mr. Summers is a little bit shorter than him;however, Mr. Martin is about six foot, five inches tall, and has a noticeably bigger build than he and Mr. Summers. ANALYSIS [88] With respect to the charge of break, enter and theft, the Defence acknowledged that the Crown had established that there was abreak, enter and theft of the Chapel Arm Pharmacy in the early morning of January 4, 2014. I agree. Therefore, the issue to bedetermined was whether Mr.

Burry was one of the persons who participated in that break, enter and theft. [89] There is no doubt that Mr. Burry was found in the vehicle with the safe, which had been stolen from the Chapel ArmPharmacy. The Crown therefore sought to apply the evidentiary rule of the doctrine of recent possession. [90] The evidentiary rule of recent possession was recently reviewed in R. v. Pitcher, 2013 NLCA 22 where the Court of Appealstated at paragraphs 14 to 16, as follows: 14 Mr. Pitcher also raises the evidentiary rule of recent possession which is discussed in R. v. Newton, (SCC),[1977] 1 S.C.R. 399, at page 405: ...

The rule has been variously stated in different cases, but in my view the essence of the matter is that in a case such as the present onewhere it has been established that the accused was in possession of recently stolen goods and where no explanation whatever has beenadvanced, the jury should be instructed that the evidence of such possession standing alone raises a prima facie case upon which they areentitled to bring in a verdict of guilty. 15 Subsequently, following a comprehensive discussion of judicial authority, the rule was summarized by McIntyre J., for themajority, in R. v.

Kowlyk, (SCC), [1988] 2 S.C.R. 59, at pages 74 to 75: In

summary, then, it is my view, based on the cases, both English and Canadian, which I have referred to, that what has been called thedoctrine of recent possession may be succinctly stated in the following terms. Upon proof of the unexplained possession of recentlystolen property, the trier of fact may - but not must - draw an inference of guilt of theft or of offences incidental thereto.

Where thecircumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier offact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases theinference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trierof fact is not satisfied of its truth, the doctrine will not apply. 16 As to offences incidental to the unexplained possession of recently stolen goods, McIntyre J. wrote, at page 72:

The question which arises here is whether the unexplained recent possession of stolen goods, standing alone, will also warrant aninference of guilt of breaking and entering and theft of the goods under s. 306(1)(

b) of the Criminal Code. It is my view that this questionmust be answered in favour of the Crown. ... [91] Based on the above excerpt, the issue to be determined is whether Mr. Burry’s explanation for being in the vehicle with thestolen safe “might reasonably be true”, or whether the inference of guilt may be drawn based on all of the circumstances of this case. [92] The Crown submitted that the explanation offered by the Accused with respect to his being in the presence of the safe, as wellas the break-in instruments in the vehicle, could not reasonably be true.

As a result, the Crown submitted that the Accused should befound guilty of the offence of break, enter and theft, and the offence of possession of break-in instruments. [93] The Crown submitted that the testimony at trial of the Crowns’ witnesses was credible. The Crown further submitted that Mr.Burry’s evidence was not credible. [94] On the issue of credibility, the Crown referred the Court to the decision Faryna v.

Chorny, (BC CA), [1952]2 D.L.R. 354 (BCCA), and particularly to paragraphs 11 and 12 of that decision, as follows: 11 The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whetherthe personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to anexamination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth ofthe story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informedperson would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise thetestimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long andsuccessful experience in combining skilful exaggeration with partial suppression of the truth.

Again a witness may testify what hesincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to betelling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of adangerous kind. 12 The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion.

The law does not clothe thetrial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge'sfinding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can hetested in the particular case. [95] After considering the whole of the evidence at trial, and considering the above excerpts from Faryna, I find that the evidenceof all Crown witnesses was credible and in keeping “with the preponderance of probabilities in the case”. The Crown witnesses’evidence is also reliable.

There were some inconsistencies, but such were minor and easily explained. [96] Based on the evidence, I therefore find that it has been established beyond a reasonable doubt that the Chapel Arm Pharmacywas robbed by at least three persons on January 4, 2014 at around 2:00 a.m. The time of the robbery is based upon the evidence ofJames and Eileen King. Further, based on the evidence, I find that the thieves caused damage to the exterior and interior of the ChapelArm Pharmacy in the course of carrying out the robbery.

The security camera in the front of the building was damaged, and the backdoor was pried open by the thieves. Upon gaining entry, the thieves caused damage to the pharmacy as depicted in the photos, and aswas described by Mr. Temple in his evidence. The thieves took a safe containing approximately $8000 in narcotics and controlled drugs. [97] Based on the evidence of Mr. and Mrs. King, I find that the robbery was committed by at least three persons. As Mr.

Kingobserved, the thieves dragged the safe out of the pharmacy, and then loaded it onto a dark coloured SUV; which was established as beingAmy’s Jeep. [98] Further, I find that Constable Porter and Corporal Bishop responded to dispatch communications regarding the break and enter,and that dispatch communications were received sometime between 2:40 and 2:45 a.m. on January 4, 2014. In response, the officers leftWhitbourne and proceeded to drive west on the TCH towards Chapel Arm. They drove approximately 10 or 15 minutes beforeencountering a pickup truck and SUV travelling east on the TCH.

According to Constable Porter, this encounter was about half waybetween Whitbourne and Chapel Arm. According to Corporal Bishop, they passed the SUV and truck in the Peak’s Pond area which heindicated was a few kilometers west of Whitbourne. [99] Shortly after passing the two vehicles, and in response to a second dispatch communication, the officers turned their vehiclearound, and subsequently pulled over the pickup truck they had passed. The truck did not contain a safe. The officers then followedtracks in the snow searching for the Jeep on the highway.

They ultimately located the Jeep stuck in a snowbank on the on-ramp to NorthRiver. The Jeep was occupied by Ross Martin, Stephen Burry and Blair Summers. The safe from Chapel Arm Pharmacy was in thatJeep. Also in the Jeep were a number of pry-bars, bandannas, sledgehammer, hammers, jackets, a duffle bag, and other items. TheAccused was arrested along with Mr. Summers and Mr. Martin. [100] At trial, the Accused offered an explanation for his being in the Jeep with the stolen safe. I must determine whether thatexplanation “might reasonably be true” (Pitcher, at paragraph 15 in reference to R. v.

Kowlyk, (SCC), [1988] 2 S.C.R.59) [101] To recap, the Accused’s explanation was that on January 3, 2014 he travelled with Blair Summers, Amy George and Ross

Martin out to Clarenville in a Jeep belonging to Amy George. At some point in the day, he accompanied Mr. Summers who purchased anew truck. After spending the day in Clarenville, and eating supper, Mr. Burry ultimately left Clarenville in Mr. Summers’ newlypurchased truck to travel in the direction of St. John’s. His evidence was that at the same time Amy left with Ross Martin in her Jeep;and other persons they had met, being Luke and Kelly, travelled around the same time, in Luke’s pickup truck, to St. John’s. Mr. Burrywas unable to specify when he and the other vehicles left Clarenville. [102] Mr.

Burry’s evidence was that the vehicle he was in was driven by Mr. Summers. That vehicle was ultimately stuck in thesnow, and broke down. He was unable to identify where that happened. His evidence was that contact was made by Mr. Summers withAmy; and ultimately they were rescued by being picked up in Amy’s Jeep, which was driven by Luke. Mr. Burry’s evidence was that heultimately proceeded on the highway in the front passenger seat of Amy’s Jeep, with Mr. Summers driving and Mr. Martin in the backseat.

His evidence was that he was primarily focussed on the weather and the hazardous driving conditions he, and his friends, hadfound themselves in. His evidence was that while in the front passenger seat of the Jeep, he did not observe any of the items in thevehicle, including the safe, the pry-bars, the sledgehammer, the duffle bag, and the other items in the back seat. His evidence was alsothat when he drove out in the Jeep earlier in that day, he had not observed any such items in the vehicle. [103] Ultimately, the Jeep went into a snowbank. The police subsequently approached the Jeep, and ordered Mr.

Burry, and theothers, out of the Jeep. They were arrested and taken to the police detachment, and released later that evening. [104] Mr. Burry has offered an explanation as to why he was found in the Jeep, with a safe, and instruments which could be used forbreak-in purposes. As stated, I must determine whether or not the Accused’s explanation “might reasonably be true”. If so, the doctrineof recent possession will not apply. If, however, I determine his explanation might not reasonably be true, then the doctrine applies, andan inference of guilt may be considered. [105] Because Mr.

Burry is the Accused, his testimony must be considered under the instruction of R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742, where the Supreme Court of Canada stated as follows, at paragraphs 26 to 28: 26 It is clear that the trial judge erred in his recharge. It is incorrect to instruct a jury in a criminal case that, in order to render averdict, they must decide whether they believe the defence evidence or the Crown's evidence.

Putting this either/or proposition to thejury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in thecontext of the evidence as a whole, may still have a reasonable doubt as to his guilt. 27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses.

Specifically, thetrial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, ifthey do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in thecontext of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved inR. v.

Morin, supra, at p. 357. 28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge.A trial judge might well [page758] instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement thatthe Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should bemade to avoid mistakes in charging the jury on this basic principle. [106] The R. v.

W. (D.) instruction is to be followed when considering whether the Accused’s explanation for being found in the carwith the safe, “might reasonably be true”. [107] Crown counsel submitted that the Accused’s explanation at trial was not reasonable. Crown counsel submitted that Mr. Burrywas not credible when he said that he did not see the safe in the vehicle. Specifically, the Crown submitted that he must have seen it atsome point upon getting in the Jeep, considering the size of the safe, and how it was clearly visible in the back seat of the Jeep. [108] On this point, I agree that when Mr.

Burry was purportedly seated in the front of the Jeep, if Mr. Burry had glanced, at any time,towards the back seat of the Jeep, then he could not have missed viewing the safe. Similarly, the tools which could be used for break-ininstruments were clearly visible in the back seat, along with a duffle bag. Having said that, however, considering the extreme weather, Iaccept that Mr. Burry’s attention could reasonably have been entirely focussed on the treacherous driving conditions.

I therefore acceptthat the extreme weather conditions could have compromised his ability to observe any items within the interior of the Jeep, after being

picked up by Luke. Therefore, I find that Mr. Burry’s credibility is not impacted by his assertion that he did not see the safe, and other items. [ 109 ] Further, the Crown submitted that Mr. Burry’s credibility was put in question when he testified that when he first drove out to Clarenville, there was nothing in the back of the Jeep. The Crown submitted that he provided no explanation as to how these items suddenly appeared in the back seat of the vehicle.

However, in my view, it is reasonable to find that the items may not have been observed by him at the time that he first drove out to Clarenville; the items, including the pry-bars and sledgehammer, could have then been in the hatch of the SUV. [ 110 ] Further, on the issue of the credibility of Mr. Burry, the Crown submitted that the timeline suggested by Mr. Burry’s evidence was not reasonable. [ 111 ] To elaborate, the Crown noted that Mr. and Mrs. King woke up to the sirens from the pharmacy’s alarm at about 2:00 a.m. Mr.

King’s evidence was that he watched the scene outside the pharmacy for approximately 20 minutes. The first RCMP dispatch was at around 2:42 a.m. According to Constable Porter, she and Corporal Bishop then went in the RCMP vehicle, and after driving for 10 or 15 minutes, they passed the SUV and the truck, which were travelling east on the TCH. Therefore, according to the evidence of Mr.

Burry, and as submitted by the Crown, in the period from 2:20 a.m. to the time that the arresting officers first passed the SUV and truck on the TCH (being about 10 or 15 minutes after 2:42 a.m.), the following would have had to occur: Mr. Summers would have called Amy; Amy would then have called Luke; the occupants of Luke’s and Amy’s vehicles would have shifted at some point, such that Luke ended up driving Amy’s Jeep, and Amy ended up in Luke’s truck; Luke then would have had to find Mr. Summers and Mr. Burry and drove them to his truck; and some of the occupants of the vehicle then shifted again; and Mr.

Burry proceeded in Amy’s Jeep on the road to the point where the police first encountered the SUV and truck. The Crown suggested this was too short a timeframe for all this to have occurred, being from 2:20 a.m. to shortly before 3:00 a.m. As well, Mr. Burry offered no explanation as to why Luke left his truck, and ended up picking up Mr. Burry and Mr. Summers in Amy’s Jeep, instead of Luke’s vehicle. [ 112 ] Further on this point, the Crown referred the Court to the Alberta Court of Appeal decision in R. v.

Farnsworth , 2017 ABCA 358 , where the Alberta Court of Appeal stated that when determining whether there is recent possession, one consideration is the duration of the time lapse between the stealing of the property and when an accused is found in possession of it. The Crown submitted the short time lapse in Mr. Burry’s case supports a finding of recent possession. [ 113 ] I agree that it would indeed be challenging to fit Mr. Burry’s explanation of what transpired into the timeframe from 2:20 a.m., to just before 3:00 a.m.; however, it is neither impossible, nor unreasonable.

The timeframe in evidence is not, by any means, a precise and definite timeframe. Specifically, the evidence of Mr. King with respect to the timeline attributable to his observations was not definite, as it was approximate. Similarly, Constable Porter’s evidence, and Corporal Bishop’s evidence was not precise with respect to how long they had travelled before coming upon the SUV and the truck, after having received the first dispatch call. Further, it stands to reason that it would be difficult to provide estimates of precise driving times, given the extreme weather conditions. As well, even though Mr.

Burry could not identify the location where Mr. Summers’ vehicle allegedly had broken down, he provided a reasonable explanation for his inability to do so; he is unfamiliar with the area. [ 114 ] Further on this point, I must be mindful that the test is whether the explanation offered by Mr. Burry “might reasonably be true”. Mr. Burry’s explanation indeed suggests that a number of events had to have occurred from the time of the robbery, to the time the SUV and the truck passed the officers on the highway.

However, I find that this does not sufficiently detract from finding that his explanation “might reasonably be true”. [ 115 ] Further, on this point, when assessing whether Mr. Burry’s explanation “might reasonably be true”, I have also considered that the evidence of both Constable Porter and Corporal Bishop did not rule out the possibility of there having been other persons in the pickup truck they first pulled over. Specifically, the officers’ evidence was that the driver of the truck was a male, who provided insurance documents indicating that his name was Lucas Norman.

Their evidence also indicated that there was a female passenger. Neither officer could say that they had canvassed the truck in a manner which would rule out the possibility of another passenger, or passengers, being in the rear of the vehicle. Therefore, the officers’ evidence did not contradict Mr. Burry’s evidence, when he suggested that the pickup truck must have had at least three occupants, including Luke, Kelly and Amy. [ 116 ] Nevertheless, there were aspects of Mr. Burry’s evidence which lead me to conclude that I am not entirely satisfied as to the truth of his testimony.

As was pointed out by the Crown, there was an inconsistency in his testimony at the Charter application, and his testimony at trial. Specifically, at trial he indicated that he left Clarenville to drive back to town some time after supper, and when it was dark; whereas, during the Charter application, he testified that he had left when it was just before dark.

As stated, his explanation at trial for this contradictory evidence at the Charter hearing was based upon the timeframe between January 4, 2014 and the Charter hearing in September of 2016, as he implicitly suggested that this timeframe may have impacted his recollection. While this is a reasonable explanation, I also found some of his evidence at trial to be, at times, vague. [ 117 ] To elaborate, his evidence was vague in that he was unable to provide even approximate times. For example, as stated, his evidence was that he left Clarenville after supper.

However, his evidence also suggested that he would have left Clarenville at a very late time because the arrest did not occur until after 3:30 a.m. While I would not necessarily expect him to recall the precise time of his departure from Clarenville, I would expect that, at a minimum, he would have recalled that the departure was extremely late. [ 118 ] Mr. Burry’s evidence was also vague regarding specifics of the locations of the vehicle he was in, as he was not familiar with the geography of the area, and his evidence was that he had only driven on the Trans Canada two times, in the past four years.

He was also unable to estimate lengths of time, such as the time they spent trying to get Mr. Summers’ new truck out of the snowbank. [ 119 ] Having said this, while Mr. Burry’s evidence was, at times, vague, he was neither evasive nor confusing.

Rather, I infer from his evidence that he was oblivious to the timeframe and his surroundings, due in part to his attention being focussed on the extreme the weather conditions; and perhaps also due in part to the passage of time since the incident occurred. [ 120 ] Nevertheless, after considering the whole of the evidence at trial, I conclude that I am not completely satisfied of the truth of Mr.

Burry’s testimony. However, I also conclude that his explanation for being found in the Jeep with the safe “might reasonably be true”. I reach this latter conclusion after carefully considering the whole of the evidence at trial, and after considering Mr. Burry’s evidence in light of the whole of the evidence. The Accused’s evidence was consistent, for the most part, and had sufficient detail to support the finding that his explanation for being in the Jeep with the stolen safe “might reasonably be true”. His explanation generally made sense. [ 121 ] I add that aspects of Mr.

Burry’s testimony were supported by other evidence at trial. For example, there was indeed a second truck on the road that evening, being the truck pulled over by Constable Porter and Corporal Bishop. Mr. Burry’s evidence was that the truck was Luke’s; and indeed the driver of the truck produced an insurance policy with the name Lucas Norman. Further, as stated, the officers did not dispute the possibility that there could have been more persons in that truck, other than the two passengers they had described. As well, there was evidence of severe weather conditions, making plausible Mr.

Burry’s testimony regarding Mr. Summers’ new truck getting stuck in a snowbank. Finally, Corporal Bishop’s evidence suggesting that Mr. Summers had been the driver of the Jeep is consistent with Mr. Burry’s testimony. [ 122 ] Finally, in considering whether Mr.

Burry’s explanation might reasonably be true, I have also considered that there is no direct evidence linking him to the scene of the crime; including, but not limited to, DNA evidence, footwear impression evidence, or fingerprint evidence. [ 123 ] Based on the foregoing analysis, and after considering the whole of the evidence at trial, I have found that the explanation offered by Mr. Burry “might reasonably be true”, even though I am not entirely satisfied of its truth.

As a result, the doctrine of recent possession cannot be applied for the purposes of determining an inference of guilt in relation to the charge of break, enter and theft. [ 124 ] Specifically, it “might reasonably be true” that Mr. Burry did indeed drive out to Clarenville with Mr. Summers, Amy George and Ross Martin; that he went with Mr. Summers who purchased a truck; and that they spent the day in Clarenville. Further, it might reasonably be true that some time after the three vehicles left Clarenville to drive to St. John’s, it was after dark, and Mr. Burry and Mr.

Summers got stuck in the snow, as there was a blizzard. It might also be reasonably true that, in the meantime, other persons used Amy’s Jeep to commit the break and enter of Chapel Arm Pharmacy, prior to Mr. Burry and Mr. Summers being picked up in Amy’s Jeep by Luke. It might reasonably be true that after being picked up by Luke, Mr. Burry was in the front passenger seat of Amy’s Jeep, where he remained. It might also be reasonably true that Luke proceeded on in his truck with other persons, while Mr. Burry, Mr. Martin and Mr. Summers attempted to navigate the blizzard conditions on the highway.

It might be reasonably true that when the officers pulled over the pickup truck, the truck was occupied at least by Luke, Amy and Kelly. It might also reasonably be true that while Mr. Burry was in the front passenger seat of Amy’s Jeep, he did not notice any items, including the safe, due to his focus on the extreme weather conditions. [ 125 ] Further, while Mr.

Burry did not offer a theory of who committed the break, enter and theft, it might reasonably be true that is because he was not involved, and therefore did not know who committed that crime. [ 126 ] As stated, I have found that the doctrine of recent possession cannot be applied. Further, in my view, in this case the second step of R. v. W. (D.) is engaged. Even though I do not entirely believe Mr. Burry’s testimony, I am left in reasonable doubt by it. I conclude this based on the whole of the evidence, and for the same reasons which caused me to conclude that Mr. Burry’s explanation “might reasonably be true”.

Therefore, the Accused must be acquitted of the offence of break, enter and theft. [ 127 ] I add that the Crown also suggested that the trial evidence of Mr. Burry was inconsistent with Mr. Summers’ trial evidence as detailed in R. v. Summers , 2017 NLTD(G) 104. The Crown submitted that case for my consideration when reviewing Mr. Burry’s evidence. In that R. v. Summers decision, I had also found that Mr. Summers’ version of events might reasonably be true. The Crown submitted that Mr. Summers’ version of events differed from that of Mr.

Burry’s; and there could not be two versions of events which might reasonably be true. [ 128 ] On this point, I disagree with the Crown’s submission that I can consider the evidence given by Mr. Summers in his separate trial. The matters were severed, and in the circumstances before me, Mr. Summers’ evidence given at Mr. Summer’s trial cannot be considered when assessing the evidence of Mr. Burry at Mr. Burry’s trial. As well, the Charter evidence of both was not blended into either trial.

In any event, I also add that I disagree with the Crown’s submission that there could not be more than one version of events which “might reasonably be true”. As in this case, the determination in Mr. Summers’ trial was also made based on the second part of the R. v. W. (D.) analysis. [ 129 ] Similarly, based on the foregoing analysis, and after considering the evidence at trial, I conclude that the Accused must also be acquitted of the offence of possession of break-in instruments.

The Crown did not establish beyond a reasonable doubt that the Accused had knowledge and control of the break-in instruments in the vehicle; therefore possession by the Accused was not established. Again, based on the foregoing analysis, even though I was not completely satisfied with the truth of the Accused’s evidence, including that he had no knowledge of the contents of the vehicle, I was left in reasonable doubt by it. [ 130 ] With respect to the

section 117.01(1) charge against Mr. Burry, the evidence was that a prohibited weapon, being a butterfly knife, was found within the console of the vehicle. However, the Accused was not the only person in the car; and the car was not owned by the Accused. Further, the Crown acknowledged that it had not been established beyond a reasonable doubt that Mr. Burry was the driver of the vehicle. As to who was the driver, Constable Porter’s evidence conflicted with the evidence of Corporal Bishop; specifically, Constable Porter was of the view that Mr.

Burry was the driver, whereas and Corporal Bishop had been of the view that Mr. Summers had been the driver. I did not find this conflict to impact the credibility and reliability of the officers’ evidence. The extreme weather conditions under which the officers were working could reasonably impact accuracy of recall. [ 131 ] Considering the foregoing, along with the evidence as a whole, and my being left in reasonable doubt by the Accused’s testimony, I find that the Crown did not establish beyond a reasonable doubt that the Accused had knowledge and control of the knife.

As a result, the Accused is hereby also acquitted of the charge under

section 117.01(1) of the Code . [ 132 ] Finally, I add that I considered the Crown’s submissions that Mr. Burry’s version of events was alibi evidence, and he should

have provided notice to the Crown of such. However, in my view, no better notice of Mr. Burry’s version of events could have beenprovided than through his previous testimony at the hearing of the Charter application. The testimony was sufficiently particularized ina timely manner prior to trial so as to allow investigation of the Accused’s version of events (see R. v. Noble, (SCC),[1997] 1 S.C.R. 874 at paragraph 111). An adverse inference should therefore not be drawn in the circumstances.

SUMMARY AND CONCLUSION [133] To summarize, after considering all the evidence at trial, the submissions of the Crown and the Defence, and the case law, Ihave found that the Accused is not guilty of all of the offences with which he is charged. The doctrine of recent possession did not apply,and the Crown did not establish proof of guilt beyond a reasonable doubt with respect to all charges. The Accused is acquitted of allcharges. _____________________________ Valerie L. Marshall Justice