R. v. Drake, 2020 NLSC 23

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Drake , 2020 NLSC 23 Date : February 7, 2020 Docket : 201906G0139 HER MAJESTY THE QUEEN v. DILLON DRAKE Before: Justice Katherine O'Brien On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 0818A00123 dated the 5th day of June, 2019. Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: December 9, 2019

Summary: The Appellant was convicted following trial of three offences: break and enter contrary to section 348(1) (

b) of the Criminal Code , theft contrary to

section 334 (b)(ii) of the Criminal Code and breach of probation contrary to

section 733.1(1) (

b) of the Criminal Code . He appealed his convictions on the basis that the trial judge erred in assessing his credibility and in assessing the evidence of two police officers who recognized the Appellant from surveillance video. The appeal is allowed and a new trial is ordered. Appearances: Donald A. MacBeath, Q.C . Appearing on behalf of the Appellant Alison J. Manning Appearing on behalf of the Crown

Authorities Cited: CASES CONSIDERED: R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742, 12 W.C.B. (2d) 551 (SCC); R. v. Sinclair, 2011SCC 40; Housen v. Nikolaisen, 2002 SCC 33; R. v. Ryan, 2011 NLCA 53; R. v. Gagnon, 2006 SCC 17; R. v. M. (R.E.), 2008 SCC 51; R.v. Olliffe, 2015 ONCA 242; R. v. Downey, 2018 NSCA 33; R. v. Campbell, 2017 ONCA 65; Raymond Turnbull and Others (1976), 63Cr. App. R. 132; R. v. Field, 2018 BCCA 253; R. v. Hassan, 2014 ONSC 3764; R. v M.B., 2017 ONCA 653; R. v. Spatola, (ON CA), [1970] 4 C.C.C. 241, O.J. No. 1502 (Ont. C.A.); R. v.

Nikolovski, (SCC), [1996] 3 S.C.R. 1197, 111C.C.C. (3d) 403; R. v. Villaroman, 2016 SCC 33; R. v. Jackson-Bullshields, 2017 BCSC 1159 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] The Appellant was convicted following trial of three offences: break and enter contrary to section 348(1)(

b) of the CriminalCode, R.S.C. 1985, c. C-46 (the Criminal Code), theft contrary to

section 334(b)(ii) of the Criminal Code and breach of probationcontrary to

section 733.1(1)(

b) of the Criminal Code. He has appealed his convictions. [2] The charges arose out of a break and entry into a construction yard owned by Cluett’s Construction. The office building hadbeen entered as had been several outbuildings. Copper wire, a security camera and other items were stolen. Video footage was recoveredfrom a security camera that was located in the office. Two people could be seen on the video footage and one of them was identified asthe Appellant by two police officers at trial. The Appellant testified at his trial. [3] The Appellant has raised three main grounds of appeal: 1.

The trial judge erred in assessing the Appellant’s evidence pursuant to the instructions set out in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742, 12 W.C.B. (2d) 551 (SCC); 2. The trial judge erred in relying on the identification evidence of two police officers who identified the Appellant from avideo surveillance tape; and 3. The trial judge erred in finding that the video surveillance tape was created at the time of the commission of the offences. LAW [4] This is a

summary conviction appeal brought pursuant to

section 813 of the Criminal Code. Section 686(1) of the CriminalCode sets out the powers of an appellate court to allow an appeal of this nature: 686

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; [5] The procedure that the Court of Appeal should follow in deciding whether a verdict should be set aside on the ground that it isunreasonable or cannot be supported by the evidence was set out by Charron, J. of the Supreme Court of Canada in R. v. Sinclair, 2011SCC 40, at paragraph 84:

84 In my view, the s. 686(1) (a)(

i) inquiry in judge-alone trials should proceed as follows: (

a) The reviewing court should first apply the test in Yebes/Biniaris. The question is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered on the evidence as a whole. If not, then the test is met, the inquiry is over, and an acquittal is entered. (

b) If the verdict is available on the evidence, the reviewing court may go on to assess the reasonableness of the verdict under the Beaudry test by scrutinizing the actual findings of fact and inferences made by the trial judge. As stated earlier, an unreasonable verdict of the kind identified in Beaudry will be exceedingly rare. It is therefore not necessary to conduct this assessment in every case. Unless the issue is specifically raised, or the circumstances clearly call for this further inquiry, the impact of errors in the reasoning process that led to the verdict falls to be assessed under either s. 686(1) (a)(ii) (errors of law) or s. 686(1) (a)(iii) (miscarriage of justice). (

c) The Beaudry test may apply in exceptional cases where the reasoning process of the trial judge is so irrational, or so at odds with the evidence, that it vitiates the verdict — even though that verdict is available on the evidence as a whole. In these rare cases, an appellate court will be justified in concluding that the verdict itself is unreasonable. What precise kind of errors would justify this conclusion is a question better left to be decided in cases where the issue will arise.

If the reviewing court so concludes, a new trial is ordered, as the court will have already determined under the Yebes/Biniaris test that the verdict is otherwise available on the evidence. [ 6 ] The standard of appellate review on questions of law is correctness and on findings of fact is palpable and overriding error (see: Housen v. Nikolaisen , 2002 SCC 33 , R. v. Ryan , 2011 NLCA 53 ). Correctness is a lower standard than palpable and overriding error. If an error of law has occurred, the correctness standard permits appellate judges to substitute their findings for those of the trial judge.

If the palpable and overriding error standard applies, appellate judges must show great deference to trial judges with respect to their findings and inferences. [ 7 ] Having reviewed the law generally applicable to appellate review, I will analyze each issue in turn. Issue 1: Did The trial judge err in assessing the Appellant’s evidence? Facts related to Issue 1 [ 8 ] There is no question that someone broke into Cluett’s Construction and stole copper wire, a security camera and other items.

There is no question that the break, enter and theft occurred sometime in the two or three day period leading up to July 10, 2018 when Mr. Cluett visited the premises and discovered evidence of the crimes. The only real issue at trial was whether the Appellant committed the crimes. [ 9 ] The only evidence linking the Appellant to the crimes was video footage from a security camera. The Appellant testified at his trial, denying that it was him in the video and stating that he had not been anywhere near Mr. Cluett’s premises. The trial judge did not believe the Appellant.

His reasoning is set out in paragraphs 35 to 39 of his decision: [35] Having said that, the accused was not a strong witness. He said that he had been babysitting when the break and entry had been committed. When it was pointed out to him that the video recording had been made on a sunny day, and not at night (when he might have been babysitting), the accused did not reply. Then, he said, if it was a nice day, then he would have been working for Max Bungay, roofing. He did not know where he might have been roofing. [36] The evidence from the bail hearing was put to the accused.

He hadn’t been working: he had been receiving employment insurance benefits, and waiting for a call to go to B.C. to work. The accused replied that he had been in receipt of employment insurance and also working for Max Bungay at the same time. He was not getting paid for working for Bungay, he said, because he was “working off a loan”. There had been no mention of this during the bail hearing. [37] The accused said that he had been babysitting at night and roofing during the day. Because he was collecting employment insurance benefits, Max Bungay was not paying him to work as a roofer.

Instead, he was working to pay off a loan that he owed Max Bungay. This was while he was waiting for a call to go to British Columbia to work. [38] He was not arrested on a jobsite. Instead, he was taken out of a car. He explained that he must have been on his lunch break. However, he could not say where he was roofing that day, or where he was going for lunch. He did say that he had not been in the construction yard, and that it was not him shown on the video. [39] As indicated above, the accused was not a strong witness.

In the context of the first and second steps of the three-step test from W. (D.) , his evidence was not believed, nor did it raise a reasonable doubt as to his guilt. Law Related to Issue 1

[10] The three-step test from W. (D.) referred to by the trial judge is from the reasons of Cory J. who wrote for the majority of theSupreme Court of Canada at paragraph 11: 11 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 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. [11] The three questions above are now frequently referred to as the W. (D.) test and used by triers of fact regularly in theirassessment of evidence of an accused. Questions one and two focus on the credibility of the accused. Question three focuses on otherevidence, which must still be considered even if the accused is not believed. [12] A trial judge’s determination of credibility of a witness, including an accused witness, attracts a high degree of deference.

Thetrial judge is in a unique position to see and hear witnesses in the courtroom whereas an appellate judge typically has only a writtenrecord of proceedings. In R. v. Gagnon, 2006 SCC 17, Bastarache, LeBel and Abella JJ., writing for the majority, wrote at paragraph 20: 20 Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

That is whythis Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptionsshould be respected. [13] In applying the W. (D.) test, the trial judge does not need to take a formal or rigid approach. This was reiterated by the SupremeCourt of Canada in R. v. M. (R.E.), 2008 SCC 51, where McLachlin, C.J. wrote for the court commencing at paragraph 31: 31 More recently, in R. c. Dinardo [2008] 1 S.C.R. 788, 2008 SCC 24 (S.C.C.), the Court, per Charron J., rejected a formalisticapproach. The case turned on credibility.

The trial judge's reasons failed to articulate the alternatives to be considered in determiningreasonable doubt as set out in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 (S.C.C.).

Charron J. stated that only thesubstance, not the form, of W. (D.) need be captured by the trial judge, then went on to say: In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether theaccused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. [para. 23] Analysis of Issue 1 [14] Is this one of those rare instances where the trial judge’s determination of credibility should be interfered with?

Or, to put itanother way, did the trial judge make a palpable and overriding error in deciding that the Appellant was not believable? I have decidedthat the answer to both of these questions is no. [15] The trial judge gave reasons for why he did not find the Appellant credible. The trial judge suggested that the Appellant wasvague in his answers. He specifically observed that the Appellant did not give details about the day of his arrest, such as where he wasworking or where he was going for lunch.

Additionally, at his bail hearing, the trial judge noted that the Appellant had not advised thecourt that he was working, but rather only that he was collecting employment insurance. [16] The trial judge stated twice that the Appellant was “not a strong witness” and he signaled that it was difficult to preciselyarticulate his reasons for finding so by quoting paragraph 49 of M. (R.E.) and emphasizing the last sentence: 49 While it is useful for a judge to attempt to articulate the reasons for believing witness and disbelieving another in general or on aparticular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about thewitness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting hisevidence and convicting him, but adding negative comments about his demeanor.

In short, assessing credibility is a difficult and delicatematter that does not always lend itself to precise and complete verbalization. [17] I can find no palpable and overriding error in the trial judge’s finding that the Appellant’s evidence was not believable and did

not raise a reasonable doubt. The trial judge gave reasons for why he did not find the Appellant credible and I find that those reasons are sufficient. Issue 2: Did The trial judge err in relying on the identification evidence of two police officers? Facts Related to Issue 2 [ 18 ] As noted, the only evidence linking the Appellant to the crimes was video footage from a security camera. That footage showed two individuals in Mr. Cluett’s on-site office. The face of one of the individuals was visible in the footage for a brief moment. The face was in profile and the individual appeared to be wearing a hood.

The face of the second person was not visible. [ 19 ] The video footage was provided to the Royal Canadian Mounted Police (“RCMP”) and reviewed by a number of officers, three of whom testified at the trial. The Appellant was known to all three of the officers from their work as police officers in the Marystown area. One officer did not recognize the person in the video. The other two officers did.

Both testified that they recognized the person whose face was visible as the Appellant and both were very confident in their identification. [ 20 ] Although defence counsel suggested that the video was of poor quality and asked the trial judge to make his own assessment of the video to determine whether the person seen in it was the Appellant, the trial judge did not do so. Instead, he accepted and relied upon the evidence of the two police officers who identified the Appellant.

In doing so, the trial judge applied the reasoning of Ryan , a decision of the Newfoundland and Labrador Court of Appeal which considered the distinction between identification of a stranger and recognition of someone previously known to the witness. In Ryan , a police officer who had extensive previous dealings with Mr. Ryan recognized him when he had a clear view of him as their vehicles met at an intersection.

The officer’s evidence was accepted. [ 21 ] The trial judge’s reasoning on this issue is set out in paragraphs 46 to 48 of his decision: [46] The recognition of Ryan was based on recognition by one police officer who had had prior dealings with the accused, during a meeting of two cars in an intersection.

By contrast, in this matter, two police officers, independent of each other, and without prompting, recognized the accused on a security camera video, which could be stopped, rewound, and played ahead as often as the police wanted. [47] Madame Justice Hoegg said, at para 32 of the Ryan decision, that 32 In the result, there is no basis upon which to conclude that Cst. Marshall's eyewitness identification evidence is unreliable. The trial judge's reasons explain why he accepted Cst. Marshall's identification evidence and why he rejected Mr. Marsh's alibi evidence.

It is clear from his decision, as well as from his remarks during the trial, that he was alive to the well-known frailties of eyewitness identification evidence and that he gave reasoned consideration to the alibi evidence. The identity of Mr. Ryan as the driver is well supported by the evidentiary record. Accordingly, Mr. Ryan has not shown that the trial judge's convictions of him could not reasonably be found on the evidence presented. His appeal on this ground fails. [48] All of the remarks made in Ryan apply in this matter.

There is a significant difference between identification of the accused by a stranger and recognition of the accused by a police officer who has had prior dealings with the accused. I accept the evidence of the police officers that they recognized the accused on the security camera video. As a result, I accept as proven beyond reasonable doubt that the accused was one of the men captured on video going through C’s bungalow in the construction yard. Law Related to Issue 2 Recognition v.

Stranger Identification [ 22 ] There is a distinction between identification evidence from a witness who has previously known the person being identified and recognizes him or her, and identification evidence from a witness who is a stranger to the person being identified. Hoegg J.A., states this clearly at paragraph 25 of Ryan . She goes on to explain that distinction commencing at paragraph 26 to 28: 26 Another British Columbia case, R. v. Bob , 2008 BCCA 485 , illustrates the point.

In Bob , an accused bicycle thief was convicted on the strength of a police officer recognizing him from several previous dealings. Mr. Bob appealed, arguing the trial judge erred in finding that the police officer’s identification of him was reliable given the particular circumstances and the well known frailties of eyewitness identifications. In dismissing the appeal, Huddart J.A. commented on the difference between recognition eyewitness identifications and stranger eyewitness identifications at paragraph 13: 13 The difficulty he [Mr.

Bob] faces, however, is that this was a case of recognition, rather than identification. There is a significant difference between cases in which a witness is asked to identify a stranger never seen by him before the offence, and cases in which a witness recognizes a person previously known to her. While caution must still be taken to ensure that the evidence is sufficient to prove identity, recognition evidence is generally considered to be more reliable and to carry more weight than identification evidence: … 27 In Aburto , the same court described the distinction at paragraphs 21 and 23:

21 In this case, however, the witness was not being asked to identify a person who was a complete stranger to her prior to thecommission of the offence .... . . . . . 23 The issue is therefore not really one of identification. The issue is whether the circumstances at the time of the offence were suchthat Ms. Neville could reliably recognize the appellant.

The distinction between cases of eyewitness identification of a person seen forthe first time and cases where the witness recognizes someone previously known to them is well-discussed in the case authorities: ... 28 All eyewitness identification evidence is subject to reliability assessment, although reliability may be easier to achieve inrecognition cases. A court must always consider the circumstances surrounding a witness' identification of an accused, which inrecognition cases would indicate the nature and degree of past interaction between the witness and the accused.

In this regard, thecomment of Rowe J.A. at paragraph 71 of Russell is apt: 71 In many cases, such [eyewitness] identification is entirely reliable, in others, it is not. Like much else, it is specific to the facts ofeach case. Credibility vs. Reliability [23] Regardless of whether identification evidence is provided by a stranger or someone who knows and recognizes the accused,there is a difference between reliability of the identification evidence and the credibility of the witness providing that evidence. Unreliable identification evidence can be given by a credible witness.

This point is well made in the following passage from R. v. Olliffe,2015 ONCA 242, at paragraphs 36 and 37: 36 The inherent frailties in identification evidence are well known and have been the subject of considerable judicial comment andreview in social science literature. 37 The focus of the concern is not the credibility of the witness providing the identification evidence; rather, it is the reliability ofthe evidence and the potential for it to be given undue weight. Identification evidence is often deceptively reliable because it comes fromcredible and convincing witnesses.

Triers of fact place undue reliance on such testimony in comparison to other types of evidence. Ourcourts recognize that they must vigilantly guard against convicting based on honest and convincing, but mistaken, eyewitnessidentification: R. v. Quercia (1990), (ON CA), 75 O.R. (2d) 463 (Ont. C.A.), at p. 465; R. v. Goran, 2008 ONCA 195(Ont. C.A.), at para. 33. [24] Courts dealing with recognition-type identification evidence give similar cautions. In R. v.

Downey, 2018 NSCA 33, arecognition case, Saunders J.A. wrote for the court at paragraph 57: 57 Our law recognizes the inherent dangers of identification evidence, especially where the witness appears both honest andconvincing. Consequently, fact-finders (whether trial judges or juries) must be satisfied as to both the credibility and the reliability of theeyewitness testimony. As the Alberta Court of Appeal observed in R. v. Atfield, 1983 ABCA 44 (Alta.

C.A.) at ¶ 3: [3] The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comesfrom witnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonethelessmistaken. Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriages ofjustice through mistaken identity. The accuracy of this type of evidence cannot be determined by the usual tests of credibility ofwitnesses, but must be tested by a close scrutiny of other evidence.

In cases, where the criminal act is not contested and the identity ofthe accused as the perpetrator the only issue, identification is determinative of guilt or innocence; its accuracy becomes the focal issue attrial and must itself be put on trial, so to speak. As is said in Turnbull, the jury (or the judge sitting alone) must be satisfied of both thehonesty of the witness and the correctness of the identification.

Honesty is determined by the jury (or judge sitting alone) by observingand hearing the witness, but correctness of identification must be found from evidence of circumstances in which it has been made or inother supporting evidence. If the accuracy of the identification is left in doubt because the circumstances surrounding the identificationare unfavorable, or supporting evidence is lacking or weak, honesty of the witnesses will not suffice to raise the case to the requisitestandard of proof and a conviction so founded is unsatisfactory and unsafe and will be set aside.

It should always be remembered that inthe famous Adolph Beck case, twenty seemingly honest witnesses mistakenly identified Beck as the wrongdoer. [25] At paragraph 28 of Ryan, quoted above, Hoegg J.A. also highlighted the duty on the trier of fact to assess the reliability of allidentification evidence, whether it is recognition identification or stranger identification. Reliability Assessment: Nature and Degree of the Relationship [26] One of the ways that the reliability of recognition evidence is assessed is by considering the nature and degree of the

relationship between the witness and the accused. At paragraph 55 of Downey, Saunders J.A. made this point by quoting from R. v.Campbell, 2017 ONCA 65, a decision of the Ontario Court of Appeal: 55 Recent observations by the Ontario Court of Appeal, per curiam, in R. v. Campbell, 2017 ONCA 65 (Ont. C.A.), are equally apt: [10] This court has confirmed that "recognition evidence is merely a form of identification evidence" and, as such, "[t]he sameconcerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence": R.v.

Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39. This court also noted in that paragraph, however, that "[t]he level offamiliarity between the accused and the witness may serve to enhance the reliability of the evidence." Unlike cases involving theidentification of a stranger, the reliability of recognition evidence depends heavily on the extent of the previous acquaintanceship and theopportunity for observation during the incident: R. v. Miaponoose (1996), (ON CA), 30 O.R. (3d) 419 (C.A.), at p.424, citing R. v. Smierciak (1946), (ON CA), 87 C.C.C. 175, at p. 177. Recently, in R. v.

Charles, 2016 ONCA 892, atparas. 50-51, this court noted the "critical difference" between recognition cases and cases involving identification by a witness of acomplete stranger, and referred to the relevance of the "timeline of the identification narrative". See also R. v. Peterpaul (2001), (ON CA), 52 O.R. (3d) 631 (C.A.), at p. 638 [27] This is why in recognition-type cases courts regularly analyze the nature of the dealings between the witness and the personidentified: how well did they know each other?; how many previous dealings did they have together?; how long were those dealings?;when was the last one?

Although it is a not a precise formula or linear relationship, generally speaking, the closer the relationship andthe more substantial and recent the dealings, the greater the reliability of the recognition is assessed. [28] However, the extent of the previous relationship is not the only factor that is considered in a reliability assessment ofrecognition. As stated by Lord Widgery in the case of Raymond Turnbull and Others (1976), 63 Cr. App.

R. 132, at page 137,recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whomhe knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. As per Atfield,cited in paragraph 57 of Downey, the circumstances surrounding the observation and the supporting evidence are also assessed. I willdeal with these each in turn.

Circumstances of the Observation [29] Evaluation of the circumstances surrounding the observation primarily focuses on the witness’s opportunity to view the personbeing identified. For cases where the witness experienced events in real time and is now testifying that he or she recognized a person atthe time of those events, it is usual to consider questions such as: how long did the witness have to view the person?; from whatdistance?; what was the lighting?; how much of the person did they see?; what else was happening at the same time?; was the witnessimpaired in any way?

In assessing the police officer’s recognition evidence in Ryan, for example, at paragraph 29, Hoegg J.A. notedthat the officer said he had a “clear view” of Mr. Ryan driving the car as it “passed by him slowly”. At paragraph 6, a review of theevidence indicates that the police officer was three to four feet away when he observed Mr. Ryan. Reliability Assessment: Quality and Clarity of the Images [30] In cases where the identification is done by photograph or video, many of the same questions do not apply because the view iscaptured on the photograph or video.

For example, the question “what else was happening at the same time?” would typically not berelevant because in a photograph or video one can focus on the area of interest without being distracted by other images in the sameframe. Likewise the question: “how long did the witness have to view the person?” is not relevant when the witness can look at aphotograph for as long as the witness likes or re-watch and even pause and freeze on a single frame of video. However, many of thequestions remain relevant to assess the quality and clarity of the images used. [31] R. v.

Field, 2018 BCCA 253, is a recent example of recognition evidence from photographs in which the Court of Appealconsidered the trial judge’s assessment of the quality of the images. Leave to appeal to the Supreme Court of Canada was denied. InField, the Appellant was convicted of robbery and wearing a mask to commit an indictable offence. The principal identificationevidence relied upon by the trial judge was recognition evidence provided by two probation officers based on photographs taken near thecrime scene. On appeal, Mr. Field challenged the admissibility of the evidence and its treatment by the trial judge.

His appeal wasdismissed. Like Mr. Drake in the present case, Mr. Field argued that the trial judge had not considered the quality of the photographsused by the probation officers. The Court of Appeal disagreed, writing commencing at paragraph 43: 43 Mr. Field argues that the trial judge erred in his assessment of the recognition evidence by focusing on the degree offamiliarity of the two probation officers with Mr. Field’s appearance, without giving due consideration to the quality of the photos theywere reviewing.

I agree that the quality of the photos is a matter for consideration when the judge assesses the weight to be given to therecognition evidence. However, I do not agree that the trial judge failed in this case to give the quality of the photos adequateconsideration. 44 In his judgment, the judge commented that the best photo was “not excellent” and was “by no means a surveillance video ofHD quality”, but held that the question was “whether the photo is of sufficient quality as to assist the two witnesses.” He then reviewedthe photo and concluded that there were “striking similarities between the photo and Mr.

Field” and “an almost certain resemblance” tothe appellant. His stated reluctance to rely on his own assessment of the photo was not based on qualitative deficiencies of the photo, butrather that he did not know Mr. Field in 2014 when the photo was taken, and there was some evidence that Mr. Field may have lookeddifferent at the time of the trial than in 2014.

45 In my view, this is a sufficient consideration of the quality of the photos to permit the judge to rely on the recognitionevidence of two witnesses who were well acquainted with Mr. Field, particularly in 2014 when the photos were taken. [Emphasis added.] [32] As per the underlined passages above, the Court of Appeal in Field agreed with the Appellant that the trial judge should haveconsidered the quality of the images in assessing the reliability of the recognition evidence but found that the trial judge had done so. [33] In R. v.

Hassan, 2014 ONSC 3764, the trial judge considered the quality of the images used and found it deficient. In Hassan,two men were charged with several offences arising from a drug-related robbery in which a man was shot and wounded. An image fromthe surveillance camera at the victim’s apartment building was posted on the Toronto police computer system with a request forassistance from other officers in identifying the men depicted in the image. A police detective saw the image and recognized one of themen. He then viewed the entire surveillance video and identified another of the men as Mr. Hassan.

At paragraph 41, the trial judgewrote: 41 Based on his prior dealings with Mr. Hassan, Detective Nasser is someone capable of recognizing him. Because of that, he is in abetter position than I am to say whether the shorter person in the surveillance video is Mr. Hassan. The fact that Detective Nasser is in abetter position in that respect, however, does not shield his opinion from scrutiny.

With respect to a determination of what can be seen inthe surveillance video itself, the court is in as good a position as he is. [34] The trial judge went on to assess the quality of the video and compared it with the detective’s recognition evidence atparagraphs 42 to 44: 42 The video camera was located in a hallway inside the west door of the apartment building. It looked through a window in theupper half of the doorway into a laneway. All of the relevant images of the shorter man’s face were captured through the window whilethe man was outside of the building, some 10 to 15 feet from the camera.

It was after 8:00 p.m. and it was dark, although the area wasilluminated with artificial lighting. The man was wearing a black hoodie and he had the hood up over his head. The hood and theshadows it cast made it impossible to capture a complete and clear view of the man’s face at any point. 43 Notwithstanding those difficulties, Detective Nasser testified that after watching the surveillance video at 13 Division he wascertain that the shorter man was Mr. Hassan. He pointed to two brief portions of the video that were most important to him in coming tothat conclusion.

He testified that by freezing the frames of the video in those portions, he was able to recognize Mr. Hassan from his highcheekbones, his long pointed nose, and his slight moustache. 44 Detective Nasser acknowledged that what he perceived to be a moustache might actually just be a shadow. Thatacknowledgment highlighted the limitations of the surveillance video. While the quality of the images is not poor, neither can it be saidto be good. I have carefully examined the images relied upon by Detective Nasser.

At a minimum there is room for debate with respect towhat facial features can be seen, and I am not satisfied that the specific features of Mr. Hassan on which Nasser’s opinion depends can beseen with clarity. [35] Ultimately, the trial judge concluded that the detective was credible and trustworthy, but the quality of the video that he hadrelied upon was not sufficient, writing at paragraph 46: 46 Detective Nasser was a credible and trustworthy witness, but it is trite to say that in the area of identification credible andtrustworthy witnesses can be mistaken. Nasser’s opinion that the shorter male is Mr.

Hassan may well be correct, but in light of thedeficiencies in the quality of the images that he relied on in forming that opinion I cannot say that I am satisfied beyond a reasonabledoubt that he is correct. [36] R. v M.B., 2017 ONCA 653, is an example of video being found deficient at the appellate level. In M.B., the Appellant wasfound guilty of aggravated assault, discharge of a weapon with intent and breach of probation. The only issue at trial was identity.

Theshooter had been captured on video surveillance from multiple angles and was identified by three witnesses, all of whom previouslyknew the Appellant and two of whom were police officers. The video surveillance was the only evidence that connected the Appellant tothe crime. It was of poor quality and although the shooter’s face was in view, the facial features were not visible because the image wasblurred and detail was not displayed. Despite this, the trial judge was satisfied that the witnesses could identify the Appellant as theshooter from the way the shooter moved.

The Court of Appeal found that the trial judge erred in law by failing to properly scrutinize thereliability of the recognition evidence. [37] There are a number of aspects of M.B. that are of assistance to the present case. First, the Court of Appeal commented onappellate review of identification evidence at paragraph 30: 30 For these reasons, although identification is a matter of fact, appellate courts will subject such findings to closer scrutinythan other findings of fact. Justice Doherty summarized this approach in the context of an unreasonable verdict argument in R. v.

Tat(1997), (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.), at paras. 99-100, where he said:

While recognizing the limited review permitted under s. 686(1)(a)(i), convictions based on eyewitness identification evidence areparticularly well suited to review under that section.

This is so because of the well-recognized potential for injustice in such cases and thesuitability of the appellate review process to cases which turn primarily on the reliability of eyewitness evidence and not the credibilityof the eyewitness. [38] Second, the Court of Appeal stated that the trier of fact must use greater caution in assessing reliability where the video or photoquality is poor, writing at paragraph 32: 32 Witness identification based on video recordings can under certain circumstances be more reliable as it allows repeated andunhurried consideration. For example, R. v.

Nikolovski, (SCC), [1996] 3 S.C.R. 1197 (S.C.C.), at para. 23,contemplates a videotape of "sufficient clarity and quality" that it would be reasonable for the trier of fact to use it as the sole basis foridentifying the accused: It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can useit as the sole basis for the identification of the accused before them as the perpetrator of the crime.

It is clear that a trier of fact may,despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness. Itfollows that the same result may be reached with even greater certainty upon the basis of good quality video evidence. Surely, if a juryhad only the videotape and the accused before them, they would be at liberty to find that the accused they see in the box was the personshown in the videotape at the scene of the crime committing the offence.

If an appellate court, upon a review of the tape, is satisfied thatit is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tapebeyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as theperson depicted in the videotape. [Emphasis added.] The kind of clear video recording described in Nikolovski , however, sharply contrasts with the video recording in this case. The trier offact must use greater caution where the video or photo quality is poor: R. v.

Cuming (2001), (ON CA), 158 C.C.C.(3d) 433 (Ont. C.A.), at para. 19. [39] Third, the Court of Appeal in M.B. emphasized importance of the trial judge’s careful assessment of the evidence given that thevideo was the only inculpatory evidence, noting at paragraph 43: 43 Given the poor quality of the video and the lack of any other evidence connecting the appellant to the shooting, it wasimperative that the trial judge exercise the utmost caution in assessing the identification evidence.

Reliability Assessment: Distinguishing Features [40] Another way that identification evidence is assessed for reliability is by considering the distinguishing features orcharacteristics relied upon by the witness to identify the person. As stated by Laskin, J.A. of the Ontario Court of Appeal (as he thenwas) in R. v. Spatola, (ON CA), [1970] 4 C.C.C. 241, O.J. No. 1502, (Ont. C.A.) at paragraph 23: 23 Bare recognition unsupported by reference to distinguishing marks, and standing alone, is a risky foundation for conviction evenwhen made by a witness who has seen or met the accused before.

Of course, the extent of their previous acquaintanceship must have avery important bearing on the cogency of the identification evidence, as will the circumstances in which the alleged recognitionoccurred. [41] As alluded to in the second sentence of the above passage, in cases of recognition the importance of articulating distinguishingfeatures may be less. As noted by Saunders, J.A. at paragraph 69 of Downey: 69 To summarize then, the importance of articulating identifiable features or idiosyncrasies will vary depending upon the level offamiliarity the witness has with the person to be identified.

In some cases a witness may be sufficiently familiar with the person, so as torender the identification by the witness of any unique identifiable feature unnecessary, in order for a court to properly assign substantialvalue to that evidence. Common sense and one's life experience reminds us that people have vastly different abilities when it comes toidentifying or expressing the particular features of people they know and recognize, through their contact with one another. Wherecontact is fleeting, a person's recognition evidence may be of little value unless the witness can explain its basis in some detail.

On theother hand, a simple conclusory recognition without additional elaboration of any points of distinctiveness, may still be highly probativein the case of a person who is closely familiar with the accused. See for example R. v. Panghali, 2010 BCSC 1710 , [2010]B.C.J. No. 2729 (B.C. S.C.); R. v. Benson, 2015 ONCA 827 (Ont. C.A.); and R. v. M.B., 2017 ONCA 653 (Ont. C.A.). [42] The need for the witness to identify distinguishing features will thus vary with the facts of the case and the relationship of thepeople involved.

But simply being acquainted with the person does not obviate the need for the witness to articulate distinguishingfeatures. This point was made by the Court of Appeal in M.B. at paragraph 47: 47 In my view, the trial judge was wrong to interpret Berhe as minimizing the importance of unique identifiable features in

determining the weight of recognition evidence. Here, none of the witnesses had a “long and closely familiar” relationship with theappellant. Cst. Howard had seen the appellant in the neighbourhood and had spoken to him once for minutes at the end of August. T.C.had served the appellant an unspecified number of times in the restaurant and had seen him there, had spoken to him only when takinghis order and did not know his name. Cst. Kay had the greatest acquaintance with the appellant – having observed him 10 to 15 times asan undercover officer and having spoken with him on one occasion for 35-40 minutes.

This was a case in which the inability to“articulate the particular features or idiosyncrasies that underlie the recognition” was important and should have been weightedappropriately. Reliability Assessment: Other Evidence [43] Finally, in assessing reliability of identification evidence, other evidence, be it corroborative or exculpatory, should beconsidered. It is well established that the trier of fact should not take a piecemeal approach to assessing evidence but rather shouldassess the whole body of evidence in its totality.

This point is well made by Freedman, J.A., in Downey at paragraphs 99 to 103, aportion of which is quoted below: 100 So too with any criminal prosecution. Proof to the requisite criminal standard does not require that every piece of evidence issubjected to a standard of proof beyond a reasonable doubt. On the contrary. What the trier of fact (whether judge or jury) is obliged todo is have regard to the whole body of evidence in its totality and decide whether the essential elements of the offence have been provenbeyond a reasonable doubt.

It is a serious error of law for the decision-maker to isolate every particular piece of evidence and examine itforensically through the lens of criminal proof beyond a reasonable doubt. … 102 In R. v. B.(G.), (SCC), [1990] 2 S.C.R. 57, Wilson, J. observed: … I find the words of the High Court of Australia in Chamberlain v. The Queen (1984), 58 A.L.J.R. 133, which was referred to in Morin,very much on point. Chief Justice Gibbs and Justice Mason stated at p. 139: We have no doubt that the position is correctly stated in the following passage in R. v. Beble [1979] Qd.

R. 278 at 289, that "It is not thelaw that a jury should examine separately each item of evidence adduced by the prosecution, apply the onus of proof beyond reasonabledoubt as to that evidence and reject it if they are not so satisfied." At the end of the trial the jury must consider all the evidence, and indoing so they may find that one piece of evidence resolves their doubts as to another.

For example, the jury, considering the evidence ofone witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers theevidence as a whole they may decide that the witness should be believed.

Again, the quality of evidence of identification may be poor,but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness"separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence . . . . [Emphasis in original.] [44] In Olliffe, the trial judge was found to be in error for failing to assess recognition evidence against potentially exculpatoryevidence. At paragraph 44, Hourigan, J.A. wrote: 44 The trial judge compounded his error by accepting Ms.

Hiscock’s evidence virtually in isolation. While he relied on theclothing and other evidence seized from the appellant as offering some support for Ms. Hiscock’s testimony, he failed to assess herevidence against the potentially exculpatory eyewitness evidence adduced at trial. [45] In Ryan, Hoegg, J.A. also considered the evidentiary record in upholding the trial judge’s reliability assessment of the policeofficer who testified to recognizing Mr. Ryan. She wrote at paragraph 32: 32 In the result, there is no basis upon which to conclude that Cst. Marshall’s eyewitness identification evidence is unreliable.

The trial judge’s reasons explain why he accepted Cst. Marshall’s identification evidence and why he rejected Mr. Marsh’s alibievidence. It is clear from his decision, as well as from his remarks during the trial, that he was alive to the well-known frailties ofeyewitness identification evidence and that he gave reasoned consideration to the alibi evidence. The identity of Mr. Ryan as the driveris well supported by the evidentiary record. Accordingly, Mr. Ryan has not shown that the trial judge’s convictions of him could notreasonably be found on the evidence presented. His appeal on this ground fails.

Reliability also looks at corroborating evidence. Notpiecemeal assessment of the evidence. [Emphasis added.] [46] There is no need for me to review all of the details of Ryan, but in short, the evidentiary record established that Mr. Ryan hadaccess to the vehicle the officer saw him driving on the relevant date. This evidence obviously supported the officer’s recognitiontestimony.

Analysis of Issue 2 [ 47 ] The Crown submits that the trial judge’s acceptance of the recognition evidence of the police officers is a finding of fact and, as such, it is due great deference and should not be interfered with unless it is clearly wrong or unsupported by the evidence and unreasonable. [ 48 ] The Appellant submits that the trial judge’s failure to independently assess the video to evaluate the basis on which the officers made their identification is an error of law, and thus subject to review on a standard of correctness.

He further submits that the video is so dark and the appearance of the figures so brief that it is impossible to identify either one of them. [ 49 ] It is well accepted law that an assessment of the evidence based on a wrong legal principle is an error of law. In Downey , the Nova Scotia Court of Appeal found the trial judge had erred in law by failing to apply the proper “test” in his assessment of the reliability of the identification evidence.

Likewise, in Olliffe , the Ontario Court of Appeal found the trial judge had erred in law by failing to critically analyze the problematic aspects of the recognition evidence. Similarly, in M.B. the Ontario Court of Appeal held at paragraphs 25 and 27: “[T]he trial judge properly instructed himself and cited the appropriate case law. At the same time, his reasons show he did not actively consider the matters about which he initially cautioned himself.

In this, he erred in law. … He failed to approach the recognition evidence with caution and to grapple with the evident problems in the evidence”. [ 50 ] In the present case, I find that the trial judge erred in law by failing to give any consideration to the quality of the video in his assessment of the reliability of the police officers’ evidence. I will explain my finding. [ 51 ] At the outset of my analysis, it is important to reiterate that the only evidence linking the Appellant to the crime was the video.

Although footwear impressions were found and photographed at the scene, there was no evidence that the police matched, or attempted to match, them to any footwear. There was nothing incriminating found in the Appellant’s possession or in his vehicle. No stolen items were recovered. Although a person can be convicted on the basis of recognition evidence from even one witness, when that is all the evidence there is, the importance of careful scrutiny of the reliability of the recognition evidence is heightened.

This point is made in M.B. , discussed above. [ 52 ] It is implicit in the trial judge’s reasons that he found the two officers credible and honest. I take no issue with this finding. But a finding of credibility is distinct from one of reliability and a finding that a witness is credible does not lessen the obligation on the trier of fact to assess the reliability of the witness’s evidence. [ 53 ] The trial judge did take some steps to assess reliability. First, he reviewed the relationship of the officers to the Appellant, noting at paragraph 21 that “Cpl.

McGrath testified that he has had numerous dealings with Dillon Drake in the eight years since he was first posted to the Burin Peninsula” and at paragraph 23: 23 Cst. Green said that he is very familiar with the accused, having dealt with him on numerous occasions.

This included multiple interactions while the accused had served a sentence in the police station cell block, and also several conversations while they had discussed the possibility of the accused providing information to the police. [ 54 ] The evidence clearly established that both officers knew the Appellant and, although their relationships were not of close familiarity, I agree with the trial judge that the relationships were sufficient to support recognition.

There will always be a spectrum of intimacy for relationships and only those of close familiarity will support a simple conclusory recognition without additional elaboration of any points of distinctiveness. The relationships of the two officers in this case were not of very close familiarity so some elaboration beyond a “bare recognition” would be expected. Some such elaboration was considered by the trial judge who, for example, wrote at paragraph 21: 21 Cpl. McGrath testified that he has had numerous dealings with Dillon Drake in the eight years since he was first posted to the Burin Peninsula.

He said that he recognized Dillon Drake’s face as well as he recognized Mr. MacBeath’s or Ms. Manning’s faces. Cpl. McGrath said that his recognition of the accused was not based on the clothing he wore, or by any facial hair. He said that he could not see the accused’s haircut, or length of his hair, in the video, because he had his hood up. However, he said, he recognized the accused’s face in the video. He said that it is clear to him that it is Dillon Drake on the video. [ 55 ] A review of the evidentiary record reveals that the officers did provide further details. Under cross-examination, Cst.

Green testified that he considered the height of the person in the video, which he assessed at “6 foot or more” and a “pointy nose” and “the combination of his facial features together” (Transcript pages 106-108). Also under cross-examination, Cpl. McGrath identified distinguishing features of the Appellant: “[he] is tall, he’s skinny, his nose is a bit pointy, he usually wears his hair longer than he has it today” (Transcript page 122). Referencing the video, he testified that he could not say exactly why he could recognize his face “other than his nose”.

He acknowledged that he was not relying on facial hair or clothing in the video. [ 56 ] Defence counsel suggests that these limited distinguishing features were not sufficient. Although, it may have been preferable for the trial judge to review the above evidence in more detail, he does reference it, and in a case of recognition, there is no requirement for substantial evidence on distinguishing features. I do not see any error in the trial judge’s reliability assessment of the officer’s recognition evidence with respect to distinguishing features.

This was more than a bare assertion of recognition. [ 57 ] The error is that the trial judge ended his assessment of the officers’ evidence too soon. He assessed their relationship to the accused, and how they articulated their recognition, but he did not go on to assess the quality of the video they relied upon. [ 58 ] The cases I have reviewed above establish that the quality of the images is a matter for the trier of fact to consider in assessing the reliability of recognition evidence from photographs or video.

To understand why this is necessary, it is helpful to consider the harm that we hope to prevent by insisting on a rigorous reliability assessment of identification witnesses. I will be specific. The risk in a case such as this is that officers policing in a small community may have in their minds a list of “usual suspects” for certain types of crime. When they see a video, consciously or subconsciously, their minds seek to match what they are seeing to their internal list of “usual suspects”. They find that mental match and they are confident that they have the right person. But, they may still be wrong .

If we only

accept the officers’ testimony without giving any scrutiny to the video or photographs used, then there is no check or balance protectingagainst the officers’ potential internal biases, whether conscious or subconscious. The trier of fact must provide that check or balance. [59] While not conclusive, there is evidence of a potential for bias in the evidence of Cst. Green in the following excerpt from page99 of the Transcript: Q. Okay, So, Staff Sergeant Foote was the first person who said that it was Dillon Drake on the video? A. Yup. Q. Okay. And you agreed with him that it was? A.

He called me out and asked me to review the video, not saying who it was. He said, “Look at the video,” and he said, “Tell mewho you think this is.” And I told him “Dillon Drake” when I watched the video. [60] S/Sgt. Foote did not testify at trial so there is was no recognition evidence from him. Yet the above passage raises concern thatin asking Cst. Green to review the video, S/Sgt. Foote may have suggested to Cst.

Green that the person in the video was known to bothof them. “Tell me who you think this is” is different than “Do you recognize anyone in this video?” [61] The evidence of the third officer who testified with respect to video footage was not addressed by the trial judge. Cst. Hiscock,who was the lead investigator and had dealings with the Appellant prior to his arrest, also reviewed the video. He could not identify theAppellant in the video [Transcript, page 33]. Cst. Hiscock was not questioned about the reasons he could not make an identification.

Yet, given that he had prior dealings with the Appellant, was lead investigator on this file, and had been tasked with arresting theAppellant, his inability to make an identification does, at the very least, raise a question as to the quality of the video. [62] It is important to note that there is a difference between the trier of fact assessing the video as part of the reliability assessmentof the recognition evidence of a witness and the trier of fact assessing the video to actually make the identification.

Although a trier offact may identify an offender directly from video evidence that is of good quality and gives a clear picture, as held by the Supreme Courtof Canada in R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197, 111 C.C.C. (3d) 403 there is no obligation on the trier offact to do so. In the present case, in making an application for a directed verdict, counsel for the Appellant urged the trial judge toreview the video and decide for himself whether he could identify the Appellant. The trial judge declined to do so.

There was no errorin this decision because, as he noted, there were witnesses with prior acquaintance of the Appellant who were in a better position thanhim to make the identification (Transcript page 130 and 131).

However, his decision to identify the perpetrator himself did not relievehim of the obligation to assess the video in his evaluation of the officers’ identification. [63] For the foregoing reasons, I am satisfied that the trial judge erred in law in his treatment of the recognition evidence,specifically, by failing to give any to consideration to the quality of the video used by the police offers to make their identification. Issue 3: Did The trial judge err in finding that the video surveillance tape was created at the time of the commission of theoffences?

Facts Related to Issue 3 [64] The video surveillance footage included a date and time stamp. The date stamp was “2018 07 12” and the time stamp, which ofcourse changed through the video, showed times around 1:30 p.m. Mr. Cluett had uncovered the break-in on July 10, 2018 and giventhe chip from the surveillance camera to the RCMP on July 11, 2018, so the date stamp on the video had to be incorrect. The accuracyof the time stamp is unknown. [65] Mr. Cluett’s testimony did not resolve the issue of the date.

Although he was certain that the break-in had happened in the twoor three days since he had last visited his premises, when asked on cross-examination when, prior to his calling the police, he had lastchecked the video, his answer was “I never checked. What I usually do is go in and unplug and plug it back and light comes on. That’sit. I don’t know how he could tell the right dates.” (Transcript page 64). When asked when the video was recorded, his answer was“You got me. Because I told you, I just told you the camera mightn’t be running 100 percent.

We’d have to check the camera out.”(Transcript page 67). [66] Mr. Cluett testified that he was certain that the two people seen on the video had no reason to be in his office. He also testifiedthat his premises had been broken into numerous times over the years, the last time being about a month before this theft. Each timecopper was stolen and sometimes other items also. [67] Defence counsel submitted that even if the trial judge was satisfied that it was the Appellant in the video, there was no evidenceto link that video to this theft.

He argued that the video could have been taken six months before July 10, 2019, given that the datestamp was wrong, Mr. Cluett did not check the video previously and there is nothing in the video that links it to this particular crime. [68] The trial judge did not accept this argument. While acknowledging that there was no direct evidence linking the Appellant tothe crime, the trial judge was satisfied that circumstantial evidence established his guilt beyond a reasonable doubt.

The trial judge’sreasoning is set out in paragraphs 52 to 56 of his decision: [52] I have already explained why I accept as proven beyond reasonable doubt that the accused was in the bungalow. He was therewithout invitation: C said that, whoever it was on the video, they had no right to have been there. The owner of the place said that he hadleft the place locked, and that the cupboard and locker doors had been closed. When he discovered the burglary, the back door had beenforced open, and cupboard and locker doors had been opened as well.

[53] Counsel for the accused said that, because there was no evidence of when the video had recorded the men in the bungalow, it“could have been recorded six months ago”. Since there was no evidence to link the accused to the break, enter, and theft discovered onJuly 10, 2018, he said, there is no proof that the accused committed any crime. With respect, I disagree. [54] The fact that the accused was photographed inside a burgled premises invites an inference that he was there when the burglarytook place. This, especially when there is no evidence to support any other logical inference.

Given that there is no evidence that theaccused was invited inside the bungalow, or that he was there at some other time than when the break and enter and theft was committed,it is a reasonable inference to draw that the video camera captured his image while he was in the process of committing the offence. [55] In R. v.

Villaroman, 2016 SCC 33 , [2016] 1 SCR 1000, the Supreme Court said that when assessing circumstantialevidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt.The Crown thus may need to negative these reasonable possibilities, but certainly does not need to disprove every possible conjecturewhich might be consistent with innocence.

Other plausible theories or other reasonable possibilities must be based on logic andexperience applied to the evidence or the absence of evidence, not on speculation. [56] The accused denied being at the scene of the crime. There is, as a result, no evidence of his having been there at some othertime. To guess that the accused might not have been there when the crime was committed is to engage in the kind of speculationprohibited by the Supreme Court in Villaroman.

The only logical inference from the recording of the accused at the scene, when thecamera was checked soon after the burglary, was that the accused and the other unidentified man had committed the offences of break,entry and theft, as well as the theft of the camera. Law Related to Issue 3 [69] R. v. Villaroman, 2016 SCC 33, cited by the trial judge, provides a clear statement of the law with respect to circumstantialevidence.

In addition to the passages cited by the trial judge above, I would add the follow paragraphs from Villaroman which clarifythat there is no burden on the accused to provide evidence of reasonable alternatives: 35 At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rationalconclusions based on inferences drawn from proven facts”: see R. v. McIver, (ON CA), [1965] 2 O.R. 475 (C.A.), at p.479, aff’d without discussion of this point (SCC), [1966] S.C.R. 254. However, that view is no longer accepted.

Inassessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA614, 14 C.R. (7th) 149, at para. 28.

Requiring proven facts to support explanations other than guilt wrongly puts an obligation on anaccused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence.The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonableinferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. 36 I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” bythe mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason andcommon sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in theevidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense. [70] With respect to the incorrect date stamp on the video, similar facts were found in R. v. Jackson-Bullshields, 2017 BCSC 1159. At paragraph 32 the court wrote: 32 Moreover, during the course of proceedings, defence counsel pointed out that the time stamp on the video was incorrect. Whilethe time of day matched up with eyewitness testimony, the time stamp indicated that the date was July 17, 2016, rather than July 16,2016.

Courts have recognized that time stamps on such videos “are often inaccurate”: R. v. James, 2015 ONSC 3902 at para. 31. In caseswhere this is an issue, when presented with expert evidence, courts have made findings regarding the “actual time” captured in avideo: R. v. Cook, 2015 BCSC 301 at para. 68. However, I have not given the video substantial weight due to the problem with the timestamp.

However, it is useful to indicate once again the escape route taken by the person who caused the accident and ran from the scene [Emphasis added.] Analysis of Issue 3 [71] The trial judge’s finding that the video was taken on the day that the crime that the Appellant was charged with occurred is afinding of fact. As such it is due great deference unless the trial judge either failed to consider all relative evidence or assessed theevidence on a wrong legal principle. [72] Unlike in Jackson-Bullshields where the court did not give substantial weight to a video that had an incorrect date stamp, in the

present case the trial judge placed great weight on the video. Given that it is the only evidence that could link the Appellant to the crime, I believe the trial judge’s treatment of the video merits careful scrutiny. [ 73 ] There is no question that the trial judge stated the law of circumstantial evidence correctly. The issue is with the application of that law. [ 74 ] The trial judge’s reasoning on this issue is found in paragraph 56 where he wrote: “The accused denied being at the scene of the crime. There is, as a result, no evidence of his having been there at some other time.

To guess that the accused might not have been there when the crime was committed is to engage in the kind of speculation prohibited by the Supreme Court in Villaroman ”. [ 75 ] As there is no duty on an accused to prove anything, the failure of the Appellant to provide an alternate reasonable explanation does not end the inquiry. The trial judge must still assess all of the evidence, and any gaps in the evidence, that may result in inferences other than guilt. In the present case, no evidence was offered by the Crown to explain the incorrect date stamp.

In fact, there was no evidence as to how the 20-second video clip was selected, who selected it, or what other video footage was on the chip that Mr. Cluett provided to the police. Mr. Cluett did not know how many hours of video was captured on the chip. In fact, it was not clear that Mr. Cluett had viewed the video prior to providing the chip to the police. He does not say that he did and at page 70 of the Transcript he states “All I knows is when I took the chip, the cops there, they come up with buddy’s picture”. [ 76 ] Mr.

Cluett’s evidence that his premises had last been broken into about a month before coupled with the lack of evidence as to when the video was recorded and the clearly incorrect date stamp, creates a possible alternate explanation that was not considered by the trial judge. I believe that by focusing on the accused’s evidence, the trial judge failed to consider another reasonable possibility arising from the evidence and the lack of evidence. [ 77 ] As odd as it may seem, even it was properly established that the Appellant was the person on the video, that video still has to be linked to the crime that took place.

While I agree with the Crown’s submission, which was not contested by defence counsel, that the date alleged in the Information of July 10, 2018 was not an essential element of the offence that had to be proven by the Crown, it was still necessary to establish that the video captured the people involved in the theft that Mr. Cluett complained of on July 10, 2018. It could not be video evidence of prior break or entry.

There was nothing on the video that showed evidence of this break in or theft. [ 78 ] For the above reasons, I find that the trial judge erred in finding that the video surveillance tape was created at the time of the commission of the offence because he failed to consider another reasonable inference that arose from the evidence and lack of evidence.

DISPOSITION [ 79 ] For the foregoing reasons, I allow the appeal and remit the matter back to the Provincial Court of Newfoundland and Labrador for retrial. [ 80 ] Although Defence counsel submitted that, in the event the appeal was allowed, the appropriate remedy was to set aside the conviction and enter an acquittal, I cannot agree. Defence counsel reasoned that there was no other possible evidence and thus the evidence on a retrial would be the same that was before me.

However, further evidence is possible and I cannot conclude that the evidentiary record would be the same following a retrial. _____________________________ Katherine O'Brien JUSTICE