R. v. Bourgeois, 2018 NLSC 34

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Bourgeois , 2018 NLSC 34 Date : February 14, 2018 Docket : 201704G0112 Her Majesty The Queen v. Dillon Bourgeois Before: Justice George L. Murphy Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: January 11 and 12, 2018 Date of Oral Judgment: February 14, 2018

Summary: The Court convicted the Accused of the offence of robbery under

section 343 of the Criminal Code on the basis that he had knowingly and intentionally assisted the principal offender in getting into the gas station to carry out the robbery while having specific knowledge that the principal offender intended to commit the robbery. Appearances:

Lori St. Croix Appearing on behalf of Her Majesty The Queen Karen Rehner Appearing on behalf of Dillon Bourgeois Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40 , 2000 S.C.C.40; R. v. J.K., 2015 NLCA 14; and R. v. O’Connor (2002), (ON CA), 166 O.A.C. 202, 170 C.C.C. (3d) 365. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] Mr.

Bourgeois (hereinafter the “Accused”) is charged with the following offences: Count #1 on or about the 2nd day of July, A.D., 2015, at or near Corner Brook in the Province of Newfoundland and Labrador did have in hispossession a weapon to wit: a knife, for a purpose of committing an offence, contrary to section 88(1) of the Criminal Code. Count #2 on or about the 2nd day of July, A.D., 2015, at or near Corner Brook in the Province of Newfoundland and Labrador did steal fromCorner Brook Esso while armed with an offensive weapon contrary to

Section 343 of the Criminal Code [2] The trial of these charges was conducted on January 11 and 12, 2018. The Crown called two witnesses. The first witness wasSkylar Penney who was the attendant at the Esso gas station on Main Street in Corner Brook (hereinafter the “gas station”) which wasrobbed on July 2, 2015. The second witness was Constable Amy Sharpe of the Royal Newfoundland Constabulary (hereinafter the“R.N.C.”) who investigated the robbery. In addition there was also entered into evidence the following: a. A copy of the Criminal Record of Ashley Park which showed a conviction for an offence under

section 343 of the CriminalCode, R.S.C. 1985, c. C-46 with an offence date of July 2, 2015; b. Two cautioned statements that were given by the Accused, the first on July 2, 2015, the day of the robbery, and the secondon July 9, 2015, which was given after the police had reviewed some surveillance video which they had obtained after the initialstatement by the Accused on July 2, 2015; and c. Agreed Statement of Facts with four appendices: i. Appendix A which is video surveillance from the gas station on July 2, 2015 at the time ofthe robbery; ii.

Appendix B which is video surveillance from National Shoe located on Broadway in CornerBrook showing video surveillance of the area behind National Shoe known as Regent Square and the area in front of National Shoeknown as Broadway; iii. Appendix C which consisted of an audio recording obtained pursuant to a judicial one-partyauthorization which allowed the recording of conversations between the Accused and R.N.C. Constable Scott Haye who was acting as aprisoner in the course of an undercover operation and was in Her Majesty’s Penitentiary Corner Brook cells with the Accused; and

iv. Appendix D which is a transcript of a portion of the audio recording of certain conversations between R.N.C. Constable Scott Haye and the Accused. The Defence, as it is entitled to do, elected not to call any evidence. [ 3 ] In this case, it is not disputed that the gas station was robbed on July 2, 2015 and that it was Ashley Park who carried out the robbery using a knife. The Crown in this case alleges that the Accused is liable as a party to this offence of robbery which was committed by Ashley Park.

The theory of the Crown is that the role of the Accused was to assist Ashley Park in gaining entry to the gas station. The evidence established that the entrance door to the gas station had a magnetic buzzer lock on it which could be operated by the gas station attendant so that he or she would be able to view the person wanting to gain entry before deciding whether to let the person in. Skylar Penney testified that the door was supposed to be locked from 12 o’clock at night until 6 o’clock in the morning so that a person could only gain entry by being buzzed in by the attendant.

However, Skylar Penney also indicated that the attendant had the ability to turn the buzzer lock off meaning the door would remain unlocked and that on the night in question she did not have the door locked. [ 4 ] The Crown submitted that Ashley Park expected that the entrance door to the gas station would be locked when he approached it with his face partially covered to carry out the robbery.

The Crown’s theory is that the Accused agreed to approach the store with his face uncovered along with Ashley Park with the expectation that he would be buzzed in by the attendant and Ashley Park would enter the gas station immediately behind the Accused with his face partially covered and carry out the robbery.

The Crown submits that the entirety of the evidence supports this theory and proves beyond a reasonable doubt that the Accused did in fact agree to assist Ashley Park by going to the gas station with him for the purpose of helping him gain entry so that he could carry out the robbery and that he did just that while not knowing that the entrance was in fact not locked that night. evidence [ 5 ] I will briefly summarize the evidence presented by the Crown as it relates to the charges against the Accused. Skylar Penney was the first Crown witness.

She was working the 8 p.m. – 8 a.m. shift at the gas station at the time Ashley Park entered the store and committed the robbery. She told the Court that she did not actually see Ashley Park enter the gas station but that she saw a person come in prior to Mr. Park and that this person was perusing through soda bottles while Mr. Park entered and committed the robbery. It is not disputed that the person perusing through soda bottles was the Accused. Ms. Penney told the Court that the Accused left the gas station while the robbery was in progress. She said that after Mr.

Park left the store, she went outside to see where he went and the Accused was milling about outside the gas station between the gas pumps and a garbage dumpster. She said she asked the Accused his name and he told her it was Dillon Payne. She said that she recognized him vaguely but was not familiar enough with him to know his first name. She described the Accused as being anxious and that he did not want to stick around for the cops to show up. Ms. Penney told the Court she had pushed the panic button while the robbery was in progress.

She explained that she then received a call from the security company which receives the signal when the panic button is pushed. They wanted to know if it had been pushed for a reason. She told the Court that it is the security company which calls the police. Ms. Penney also explained that the entrance door had a magnetic buzzer lock on it and described how it operated as was referred to earlier in this judgment. She also advised that the door was not locked that night. [ 6 ] Constable Amy Sharpe was the only other witness called by the Crown.

She outlined her role in the taking of the two cautioned statements from the Accused which were entered into evidence. She told the Court that she had no concerns with the level of sobriety of the Accused during the taking of either of the cautioned statements. [ 7 ] In the first cautioned statement given by the Accused on July 2, 2015, he admitted being at the gas station when Ashley Park carried out the robbery. However, he denied that he knew it was Ashley Park who committed the robbery and denied that he had anything to do with the robbery.

He also denied knowing that the robber entered the store immediately behind him. He acknowledged that he left the gas station during the robbery and also acknowledged milling about outside and talking to the gas station attendant after the robbery. He described in this statement why he went to the gas station that night, the route he took to get there from his friend’s house and the route he took afterwards back to his friend’s house.

The Accused also described in his statement where the person who had committed the robbery went after he left the gas station. [ 8 ] In his second cautioned statement, the Accused admitted that he knew that it was Ashley Park who carried out the robbery. In fact, he admitted that him and Ashley Park had walked down to the gas station together from the residence of a person named Jamie where they had been hanging out.

The Accused also admitted that him and Ashley Park had not gone directly to the gas station but had waited across the street near some trucks where they could see the gas station and see when a customer who was at the gas station left. He also acknowledged that Ashley Park followed behind him when he entered the gas station and that they had done so after the only customer who was at the gas station had left. Further, the Accused acknowledged that he expected the door to be locked when he approached it on the night of the robbery because he had been there a few nights before and had to be buzzed in.

The Accused also acknowledged that him and Ashley Park met up after the robbery in the parking lot near the Padernic Lounge and the E.I. building and then proceeded back toward Jamie’s place where they had been hanging out prior to going to the gas station. While the Accused admitted the foregoing, he stated that there was no plan discussed between him and Ashley Park to carry out the robbery, including no plan that the Accused would assist Mr. Park in gaining entry to the gas station and he maintained that he did not know Ashley Park was going to carry out the robbery.

He also indicated that there was no plan to meet up after the robbery and essentially suggested it was coincidence that they did in fact meet up. [ 9 ] In the recorded conversation between the Accused and the undercover R.N.C. officer, the Accused spoke about the robbery carried out by Ashley Park and the following exchange occurred: BOURGEIOS: (sic) And fuckin cause I – I got near (inaudible) cause I was there when he got an armed robbery. I got interviewed. I don’t even know what I said cause—

UC: Ya. BOURGEIOS: But ah – I don’t know what I said so I can’t even recall what I said. They questioned me when I was fucked up. I don’t even know what I said. So he started trying to haul me back blah blah blah. But his brother told me he was going to take the heat and everything. UC: Ya. BOURGEIOS: Cause I had nothing to do with it. UC: Ya. BOURGEIOS: I didn’t want to. I can remember that. He was like, “alright just get the door open for me”. UC: Hm. BOURGEIOS: So that’s what I did and I went in through the cooler. UC: Ya. BOURGEIOS: He went in and robbed the store and I walked out like that. UC: Right.

BOURGEIOS: Pretended I saw him at the store. UC: Hm. BOURGEIOS: And he was supposed to take the heat anyways so. UC: Right. BOURGEIOS: And he’s out there fucking running his mouth, so this is his younger brother. position of the parties [ 10 ] The Crown made no submissions on the section 88(1) Criminal Code charge essentially acknowledging that this charge was not proven. Instead, the Crown’s submissions focused on the

section 343 Criminal Code charge. The Crown argued that the Accused was a party to the robbery offence carried out by Ashley Park and that the job of the Accused was to assist Mr. Park in gaining entry to the gas station, which was expected to be locked, by approaching it with his face uncovered so that he would be buzzed in and Ashley Park would then follow him into the gas station with his face covered. [ 11 ] The Crown asked the Court to make a finding that the first cautioned statement given by the Accused was a fabrication and that it was made to divert suspicion from the Accused and Ashley Park.

The Crown asked the Court to draw an inference of consciousness of guilt on the part of the Accused from the fabricated statement. [ 12 ] In respect of the first cautioned statement, it was conceded by counsel for the Accused that he was not forthright in that statement but it was argued that consciousness of guilt was not a proper inference to be drawn in the circumstances given that the Accused in his second cautioned statement gave reasons for not being truthful in his first cautioned statement. [ 13 ] The Defence also argued that the Crown needed to prove

an act or omission on the part of the Accused that facilitated the commission of an offence in order to prove the Accused was a party to the offence. The Defence questioned whether the fact the

Accused opened the door was enough and pointed out that the assistance of the Accused was not needed as the door was unlocked. [14] Finally, the Defence argued that the Crown was required to prove more than simply that the Accused generally speakingintended to assist Ashley Park. Instead, it was argued that the Crown needed to prove that the Accused knew Ashley Park intended tocarry out the robbery and that the Accused assisted him while having that specific knowledge in order for the Accused to be found guiltyof robbery.

The Defence essentially argued that there was insufficient evidence that the Accused knew what Mr. Park intended to do.Counsel for the Accused did concede that if the Court was satisfied that the Accused simply intended to assist Mr. Park withoutspecifically knowing that Mr. Park intended to carry out a robbery, it was still open to the Court to find that the Accused was a party tothe lesser and included offence of theft. the law [15] In R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320, Cory, J. states as follows on the issue of burden of proof and thepresumption of innocence at paragraph 39: 39 Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given alongthese lines: The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until suchtime as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression “beyond a reasonable doubt” mean?

The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is soengrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based onreason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. [16] The Supreme Court of Canada further elaborates on the definition of reasonable doubt in R. v. Starr, 2000 SCC 40 ,2000 S.C.C. 40. At paragraph 242, Iacobucci, J. said as follows: 242 In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolutecertainty than to proof on a balance of probabilities.

As stated in Lifchus, a trial judge is required to explain that something less thanabsolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of thesealternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonabledoubt standard appropriately between these two standards.

The additional instructions to the jury set out in Lifchus as to the meaning andappropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proofbeyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177: If standards of proof were marked on a measure, proof “beyond reasonable doubt” would lie much closer to “absolute certainty” than to“a balance of probabilities”.

Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, inmy view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of nosignificance, but the idea itself must be conveyed. . . . [17] It is also important to remember that in applying the doctrine of proof beyond a reasonable doubt it is the cumulative effect ofall of the evidence that must satisfy the standard not each individual piece or item of evidence. In R. v.

J.K., 2015 NLCA 14, Rowe, J.A.(as he then was) said at paragraphs 5 – 7: 5 Misapplication of the doctrine of proof beyond a reasonable doubt occurred at several passages in the judge’s reasons for decision. These passages indicate that the trial judge did not apply reasonable doubt to the cumulative effect of all the evidence pointing awayfrom the guilt of the accused, weighed against the cumulative effect of all the evidence pointing toward the guilt of the accused. Rather,

the judge applied reasonable doubt to items of evidence in a piecemeal fashion. It is settled law that this constitutes a legal error. 6 In R. v. Morin, (SCC), [1988] 2 S.C.R. 345, Sopinka J. wrote at page 354: [I]t is misdirection to instruct a jury to apply the standard of reasonable doubt to individual items of evidence. There is ample authorityfor this view: Stewart v. The Queen, (SCC), [1977] 2 S.C.R. 748, at pp. 759-61; R. v. Bouvier (1984), (ON CA), 11 C.C.C. (3d) 257 (Ont.

C.A.), at pp. 265, aff’d (SCC), [1985] 2 S.C.R. 485. 7 Sopinka J. set out the correct way to apply reasonable doubt, which is to consider the “cumulative effect” of the evidence. At page 359,he adopted a passage from Thomas v.

The Queen, [1972] N.Z.L.R. 34 (C.A.), in which the trial judge charged the jury in the followinglanguage (at page. 36) Now whilst each piece of evidence must be carefully examined, because that is the accused’s right and that is your duty, the case is notdecided by a series of separate and exclusive judgments on each item or by asking what does that by itself prove, or does it prove guilt?That is not the process at all. It is the cumulative effect… analysis [18] Section 21(1) of the Criminal Code deals with parties to an offence and it provides: 21

(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. [19] In this case, the allegation is that the Accused aided or assisted Ashley Park in committing the robbery of the gas station. Thequestion is whether the Crown has proven beyond a reasonable doubt that he did in fact aid or assist Mr. Park. [20] Let me begin my analysis of this question by summarizing in point form what I am able to conclude about what happened onthe night in question from the evidence presented: a.

The Accused and Ashley Park had hung out together for part of the day on July 1, 2015 and had got together again that night at theresidence of a person named Jamie. b. The Accused and Ashley Park left Jamie’s house together on July 2, 2015 and proceeded to the gas station. c. The Accused and Ashley Park did not go directly into the gas station when they arrived there as there was an unknown customeralready inside the gas station. Instead, they waited near some trucks by another building across from the gas station.

From the placewhere they watched, they could see the gas station and see when the customer left the gas station. d. The Accused and Ashley Park entered the gas station a very short time after the customer left the gas station. The Accused enteredthe gas station first followed almost immediately behind by Ashley Park. The Accused’s face was uncovered while Mr. Park’s face waspartially covered. e.

The Accused believed the door to the gas station would be locked when he approached to enter and that he would have to be buzzedin because he had been there a few nights earlier and the door was locked and he had to be buzzed in. f. Upon entering the gas station through the entrance door, the Accused went to his right toward the coolers away from the area wherethe attendant was and Ashley Park went to his left to the counter area where the attendant was and committed the offence of robberyunder

section 343 of the Criminal Code. g. The Accused left the gas station prior to Ashley Park finishing the robbery and without having gone to the counter area where theattendant was. The Accused milled about outside the gas station and spoke to the attendant when she came outside to see the direction inwhich Mr. Park had gone after he came out of the gas station. h. A short time after the robbery, the Accused and Ashley Park met up in the parking lot near the Padernic Lounge and the E.I.building.

The video shows them running through the parking lot and they then proceeded up to Broadway where they were still runningand then up a street off Broadway in the direction of the residence of Jamie from which they had earlier left to go to the gas station. [21] Next I move on to review the first cautioned statement of the Accused and whether or not I am prepared to draw an inferencefrom it of a consciousness of guilt on the part of the Accused on the basis it was a fabricated statement.

I would note that any suchinference drawn merely becomes a piece of circumstantial evidence of the guilt of the Accused to be considered and assessed along withall of the other evidence presented by the Crown.

[22] As previously noted, the Defence conceded that the Accused was not forthright in his first statement.

The Defence pointed out,however, that the Accused gave a number of reasons why he was not forthright in his first statement when he gave his second statement.The Defence argued that if the Court accepted his explanation of the reasons for not being forthright then drawing an inference ofconsciousness of guilt would not be proper. [23] The use that can be made of a false out of court statement has been the subject of much review and debate in Canadian courts.The Ontario Court of Appeal dealt with the issue in the case of R. v. O’Connor (2002), (ON CA), 166 O.A.C. 202,170 C.C.C. (3d) 365.

At paragraph 17, O’Connor, A.C.J.O. for the Court of Appeal said: 17 It is well settled that there is a distinction between an alibi that is disbelieved and, therefore, rejected and an alibi that is found to beconcocted or deliberately fabricated. The former has no evidentiary value; the latter can constitute evidence from which an inference ofguilt may be drawn: at end of document] R. v. Hibbert, 2002 SCC 39, 163 C.C.C. (3d) 129 at pp. 148-52; R. v. Coutts (1998), (ON CA), 40 O.R. (3d) 198, 126 C.C.C. (3d) 545 (C.A.) (leave to appeal dismissed, [1998] S.C.C.A. No. 450 (Quicklaw));and R. v.

Blazeiko (2000), (ON CA), 48 O.R. (3d) 652, 145 C.C.C. (3d) 557 (C.A.). In R. v.

Hibbert, Arbour J.made it clear at p. 151 C.C.C. that "[e]ven if an alibi is advanced by the accused himself and is rejected, the finding that the alibi isuntrue cannot serve to corroborate or complement the case for the prosecution, let alone permit an inference that the accused is guilty."However, where the Crown adduces evidence from which it can be inferred that an accused fabricated an alibi, that evidence is capableof supporting an inference of guilt. [24] While O’Connor, A.C.J.O. at paragraph 17 was referring to the situation of an alibi, he went on at paragraph 18 to say asfollows: 18 Many of the cases address the need for evidence of fabrication in situations where it is an accused's alibi that is disbelieved; somecases, however, refer to the requirement applying to disbelieved exculpatory statements generally.

I see no reason to distinguish theapproach taken to disbelieved statements that constitute alibis and those that are otherwise exculpatory. In my view, the requirement forevidence of fabrication before any adverse inference may arise applies equally to both kinds of statements.

In analyzing the evidentiaryvalue of a disbelieved statement that is not an alibi, however, the court will need to have regard to the content of what it is that isdisbelieved and the connection of the disbelieved statement to the offence charged. [page273] [25] Thus, the same principles apply here where we are dealing with an out of court exculpatory statement by the Accused. [26] In order for a court to draw an adverse inference against an accused from a disbelieved statement there must be independentevidence capable of showing fabrication.

In terms of what evidence would be needed to show fabrication, O’Connor, A.C.J.O. said atparagraphs 24 – 26: 24 On the other hand, I am satisfied that it is open to a trier of fact to consider evidence of the circumstances in which an accused madean out-of-court statement which is disbelieved as independent evidence to show that the accused fabricated the statement.

The differencein approach to disbelieved testimony and disbelieved out-of-court statements turns both on the policy reasons underlying the requirementfor independent evidence of fabrication as well as on the potential evidentiary value of the circumstances in which the two types ofstatements are made. [25] When an out-of-court statement of an accused is introduced into evidence, it does not have the same immediate connection to thetrial itself as an accused's testimony, and for that reason, even if shown to be false, it does not present the same threat that the trier of factwill confuse mere disbelief with affirmative evidence of guilt and improperly lessen the burden on the Crown. [26] In addition, the circumstances in which an accused, or a person who eventually becomes an accused, makes an out-of-courtstatement which is found to be untrue may have an evidentiary value that is not present in the circumstance where an accused testifiesand is disbelieved.

False exculpatory statements made by a person upon being informed that a crime has been committed will in somecircumstances be consistent with that person being conscious of having committed the crime, and may point to guilt in the same way thatother after-the-fact conduct such as flight, a threat to a witness, or concealment of evidence can be probative of guilt. The circumstancesin which a false statement is made may show an intent to mislead the police or others or an intent to deflect suspicion and may beevidence of a conscious mind that he or she has committed an offence.

When a court is addressing the admissibility of evidencecontradicting an accused's out-of-court statement, it will be required to determine if there is independent evidence of fabrication, but indoing so, the court may consider the circumstances [page275] in which the allegedly false statement was made.

If those circumstancestend to support a conclusion that the accused made a false statement because he or she was conscious of having committed the offence,then those circumstances may be used as independent evidence of fabrication. [27] In terms of the particular facts before the court in O’Connor, it was stated as follows at paragraphs 31 and 32: 31 In this case, it is my view that the circumstances in which the appellant made the allegedly false statements to the police and thedetailed nature of those statements constitute sufficient evidence upon which a jury could conclude that the appellant fabricated thestatements in order to mislead the police and divert suspicion from himself.

His first statement was made the same day as the shootingand, importantly, was made to the police at a time when the police did not suspect the appellant and the appellant did not have reason tobelieve that he was a suspect. The police, as a matter of routine, questioned witnesses who might have information about the deceased'swhereabouts prior to the shooting. The appellant's initial statement furnished a complete alibi and, if true, would lead the police toconclude that he was not involved in the offence.

That statement and the next two statements were very precise, both as to the appellant'swhereabouts and the times he was in the various places. If the jury were to disbelieve the appellant's statements, they might fairly askwhy would the appellant tell such detailed and specific lies to the investigators. Why not tell the truth? And how was it that the appellantwas so well prepared with a detailed and precise statement about his whereabouts when questioned by the police?

In my view, it wouldbe open to a jury to use the evidence of the circumstances surrounding the making of those statements and the nature of the statements

themselves to conclude that the appellant fabricated the statements to avoid suspicion. [32] To be clear, it is not the evidence establishing the falsity of the statements which constitutes the evidence of fabrication; [page277] rather, it is the evidence of the circumstances in which the disbelieved statements were made and the detailed nature of those statements which, in my view, is capable of furnishing the independent evidence of fabrication. [ 28 ] In this case when I examine the circumstances in which both cautioned statements were given, the video surveillance evidence and the evidence of the statements of the Accused to the undercover R.N.C. officer, then it is my determination that there is the necessary independent evidence of fabrication.

It is my conclusion that the Accused fabricated the story he gave to the police in the first cautioned statement in order to mislead the police and divert suspicion away from both Ashley Park and himself. I am satisfied that this conclusion supports the drawing of an inference of consciousness of guilt on the part of the Accused and that this piece of circumstantial evidence can be assessed and considered along with all of the other evidence presented by the Crown. [ 29 ] I will now move on to an assessment of the evidence.

When I consider the cumulative effect of the following: a. the actions of the Accused on the night in question as summarized at paragraph 20 of this judgment; b. the inference of consciousness of guilt that I have drawn based on the fabricated story the Accused gave the police in his first cautioned statement; and c. what amounted to an admission to the undercover police officer by the Accused that Ashley Park had asked him to get the door open for him and that this is what he had done; I am satisfied that the Crown has proven beyond a reasonable doubt that the Accused aided or assisted Ashley Park in committing the robbery at the gas station on July 2, 2015.

He is thereby guilty of the offence as a result of him being a party thereto pursuant to section 21(1) of the Criminal Code . [ 30 ] Before concluding my decision, there are two further points I would like to address. Firstly, while I have considered the inference of consciousness of guilt in arriving at my decision, I would note that it was not necessary for me to do so.

That is because even without considering this inference, I am satisfied based on the remaining evidence that the Crown has proven beyond a reasonable doubt that the Accused was a party to the offence of robbery committed by Ashley Park on July 2, 2015 by knowingly and intentionally assisting him in gaining entry to the gas station so that he could carry out the robbery. [ 31 ] The final point I would like to address is the argument by the Defence that the Accused could only be found guilty if he knew Ashley Park intended to commit robbery.

A related argument was that if the Court was merely satisfied that the Accused intended to assist Ashley Park in gaining entry to the gas station for some nefarious purpose, but did not know that Ashley Park intended to commit robbery, he could not be found guilty of being a party to the offence of robbery but that it was open to the Court to find him guilty as a party to the lesser and included offence of theft. [ 32 ] While there was no admission by the Accused in either of his cautioned statements that he knew Ashley Park intended to commit the offence of robbery, an admission is not necessary to prove that he had such knowledge.

I am satisfied beyond a reasonable doubt based on all of the evidence presented that the Accused did know that Ashley Park intended to commit the offence of robbery.

I would point to the fact that the Accused and Ashley Park went to the gas station together, they waited across from the gas station until the sole customer left, the Accused expected to have to get buzzed in, and the Accused approached the door first with his face uncovered and Ashley Park followed immediately behind with his face partially covered and gained entry before the door to the gas station would have had time to close. [ 33 ] All of the foregoing, together with the statements made by the Accused to the undercover officer, including his admission that he agreed to help Ashley Park by getting the door open for him, satisfies me beyond a reasonable doubt that notwithstanding his denial, the Accused knew that Ashley Park intended to rob the gas station on the night in question.

As a result, by intentionally and knowingly assisting Ashley Park in getting in the door of the gas station to carry out the robbery, he was a party to the offence of robbery.

summary and conclusion [ 34 ] The Crown has proven beyond a reasonable doubt that the Accused is guilty of the offence against him under

section 343 of the Criminal Code by virtue of him being a party to the robbery committed by Ashley Park by assisting him in carrying out that robbery. Accordingly, a conviction is entered against the Accused on the charge under

section 343 of the Criminal Code . [ 35 ] The charge against the Accused under section 88(1) of the Criminal Code is dismissed. _____________________________ George L. Murphy Justice