R. v. Field Date:, 2016 BCPC 423

Citation: R. v. Field Date: 20161019 2016 BCPC 423 File No: 208719-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. NATHAN ROBERT WAYNE FIELD REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: S. Hamade Counsel for the Defendant: M. Fingas Place of Hearing: Surrey , B.C. Dates of Hearing: October 13, 17, 2016 Date of Judgment: October 19, 2016

[1] These are the written reasons in this trial matter. ADMISSION OF FACTS [2] There are 26 paragraphs of admissions made. For our purposes, most of the admissions would not have been in dispute at atrial. I take it by their admission, counsel have simply put their mind to the reality that most of the facts would have been easily proven ifthe Crown had to.

For example, the birthdates of the co-accused and accused, while time consuming to prove at a trial, offer little toassist me, the trier of fact, as to the issue of guilt. [3] For this proactive and professional approach, I wish to thank both counsel for their diligent efforts to have the court time usedto focus on the main issue of the trial. [4] A complete understanding as to the exact admissions is filed as Exhibit 1 on the trial proper. THE CHARGES [5] Mr. Field is charged: on Count 1 with robbing Jameel Dawood, contrary to section 344(1)(

a) of the Criminal Code; on Count 2intent to commit an indictable offence, did have his face masked, contrary to Section 351(2) of the Criminal Code; and on Count 7 withrobbing Gordon Burns, contrary to Section 344(1)(

b) of the Criminal Code. THE ISSUES [6] The main issue is: Has the identity of the individual who robbed Jameel Dawood and Gordon Burns been proven beyond areasonable doubt? [7] Credibility and reliability are two considerations that I keep in mind when assessing the evidence in any criminal trial.

PRESUMPTION OF INNOCENCE [8] The most fundamental rule is that the burden of proving the guilt of the accused is upon the prosecution. [9] Ultimately, the law demands that before an accused can be convicted of an offence, the trier of fact must be satisfied beyond areasonable doubt of the existence of all the essential elements of the offence.

BURDEN OF PROOF AND STANDARD OF PROOF [10] The Crown has the primary or ‘legal’ burden of proof throughout the trial and must prove all the elements of the actus reus andmens rea. [11] The accused is presumed innocent until the Crown proves guilt to the standard “beyond a reasonable doubt.” This standard ofproof applies to the evidence as a whole, but generally not to individual facts. [12] R. v. J.H.S., a 2008 SCC case, while it was really an

interpretation of W.(D.) — reminds me of some basic principles regardingthe evidence in this trial: I may accept some of a witness’s testimony while disbelieving other parts; I must consider all the evidence indeciding whether there is any reasonable doubt; and any reasonable doubt, if it exists, should be resolved in favour of the accused. [13] If I believe certain aspects of a person’s testimony, I should ask myself why I believe them on these points. Equally, if I forsome reason do not believe them, I should ask myself why as well. [14] R. v. Artimowich, 2013 MBCA at paragraph 62 and R. v.

Walker, 2008 SCC 34, both stand for a proposition that there can be areasonable doubt based on the absence of evidence or a simple failure of evidence to persuade the judge beyond a reasonable doubt. LAW ON IDENTIFICATION EVIDENCE [15] R. v. Whitman, 2005 BCSC 1574 , [2005] B.C.J. 2448 is a 2005 BC Supreme Court decision. [16] At paragraph 37, Justice Romilly writes: Due to the frailties of eyewitness identification, a judge sitting alone should address himself or herself in a manner similar to what a juryas trier of fact would be subject to. The following lines as suggested in The People v.

Casey (No. 2), [1963] I.R. 33 at 39 and adopted byJessup J.A. in R. v. Sutton, (ON CA), [1970] 2 O.R. 358 at 368-69 (C.A.) are indicative of a proper approach: We are of opinion that juries as a whole may not be fully aware of the dangers involved in visual identification nor of the considerablenumber of cases in which such identification has been proved to be erroneous; and also that they may be inclined to attribute too muchprobative effect to the test of an identification parade.

In our opinion it is desirable that in all cases, where the verdict dependssubstantially on the correctness of an identification, their attention should be called in general terms to the fact that in a number ofinstances such identification has proved erroneous, to the possibilities of mistake in the case before them and to the necessity of caution. Nor do we think that such warning should be confined to cases where the identification is that of only one witness. Experience hasshown that mistakes can occur where two or more witnesses have made positive identifications.

We consider juries in cases where thecorrectness of an identification is challenged should be directed on the following lines, namely, that if their verdict as to the guilt of theprisoner is to depend wholly or substantially on the correctness of such identification, they should bear in mind that there have been anumber of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had beenadequate, made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous; and

accordingly that they should be specially cautious before accepting such evidence of identification as correct; but that if after carefulexamination of such evidence in the light of all the circumstances, and with due regard to all the other evidence in the case, they feelsatisfied beyond reasonable doubt of the correctness of the identification they are at liberty to act upon it. [17] It is stressed at paragraph 39 that “tragedies have occurred as a result of mistakes made by honest, right-thinking eye witnesses.

It should be explained that a vast majority of the wrongful convictions of innocent persons have arisen as a result of faulty eyewitnessidentification.” [18] At paragraph 40 again, relying on R. v. Bulloch, a 1999 Ontario case, the point is made that: Eyewitness identification evidencecan be notoriously unreliable calling for considerable caution by the triers of fact. I realize that I must be particularly cautious of relyingon evidence where the suspect is unknown to the witness. [19] The law as stated in the BC Court of Appeal case R. v. Reitsma, [1997], could not make the point any more clear.

Atparagraphs 58 the Court states: The frailties of eye-witness identification may be most pronounced in cases where the accused was not known to the complainant beforethe offence and where the complainant's opportunity to observe the perpetrator was limited to a brief, stressful encounter. [20] I fully accept that such identifications have to be given very little weight - or perhaps even none. [21] I find that the Queen v.

Nikolovski, at 409, as stated by Cory J. summarizes my duty and cautions - reminding me to takeappropriate cautions when he stated: The ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth. In a criminal trial the search for truth isundertaken to determine whether the accused before the court is, beyond a reasonable doubt, guilty of the crime with which he ischarged. The evidence adduced must be relevant and admissible. That is to say, it must be logically probative and legally receivable.

The evidence may be that of eyewitnesses or it may be circumstantial… As a minimum it must be determined whether the witness was physically in a position to see the accused and, if so, whether that witnesshad sound vision, good hearing, intelligence and the ability to communicate what was seen and heard. Did the witness have the ability tounderstand and recount what had been perceived? Did the witness have a sound memory? What was the effect of fear or excitement onthe ability of the witness to perceive clearly and to later recount the events accurately?

Did the witness have a bias or at least a biasedperception of the event or the parties involved? Other judicially formulated checklists provide similar factors for analysis: Mezzo v. TheQueen (1986), (SCC), 27 C.C.C. (3d) 97 (S.C.C.) at 129-132 per Wilson, J. In an appropriate case, a trier-of-fact maybe justified in convicting on the evidence of a single eye-witness: see Pelletier v. The Queen, (SCC), [1996] 3 S.C.R.601 at 601 per Lamer C.J.C. (affirming [1995] A.Q. No. 1129 (C.A.)).

In this regard, at page 413 of the Nikolovski decision, Cory J.stated: it is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basisof the testimony of a single eye-witness. A fleeting glance of a suspect by an eye-witness is generally unsatisfactory: Regina v.Carpenter, [1998] O.J. No. 1819 (C.A.) at para. 1 per Abella J.A. [22] R. v. Hibbert, 2002 SCC 39 , [2002] 2 S.C.R. 445 at paragraphs 50 to 53 - once more remind me of the dangers of awrongful conviction arising from faulty but apparently persuasive eyewitness identification.

INTERWOVEN INTO THE FRAILTIES OF DOCK IDENTIFICATION IS THE CONCEPT OF RECOGNITION EVIDENCE [23] R. v. Muncey, [2013], a BC Supreme Court case of Justice Voith, provides me with guidance at paragraphs 46 to 51 specifically,at paragraph 47 he writes: Different types of identification evidence may have more acute or specific concerns attached to them; R. v. Pierce, 2011 BCCA 485 at paras. 36-37, 313 B.C.A.C. 181. Nevertheless, it is clear that "recognition evidence" is not a distinct legal category ofidentification evidence. In Pierce at para.39, D.

Smith J.A., for the court, said: [39] While recognition evidence may be more reliable than eyewitness identification of a stranger, special caution must still be takenwhen using it to identify an offender, as it is still merely a statement of a witness’s opinion about what he or she saw. Like allidentification evidence its weight or reliability will depend on such circumstances as the nature, length and memorable features of thewitness’s previous contact with the accused. In R. v. Bardales (1995), (BC CA), 101 C.C.C. (3d) 289 (B.C.C.A.),aff’d (SCC), [1996] 2 S.C.R. 461, Mr.

Justice Wood, albeit dissenting in the result, described the character and role ofrecognition evidence in this helpful manner: [102] With respect, I am of the view that there is no legal distinction between eye-witness identification cases on the one hand, and so-called “recognition” cases on the other.

In both, the identification of the accused is based on the evidence of one or more witnesses whooffer the opinion: “That is the person who I saw.” Where it is a factor, recognition is a circumstance which does no more than enhancethe weight to be attributed to that opinion by the trier of fact. [24] Another case that has been tendered, which I find useful, is the R. v. Miaponoose, (ON CA) case – while outof Ontario succinctly provides trial judges with a starting point as to factors involved in evaluating eyewitness identification evidence.

The weight of eyewitness identification will obviously vary greatly depending on the circumstances. In an often quoted passage fromthe decision of R. v. Smierciak (1946), (ON CA), 87 C.C.C. 175, 2 C.R. 434, Laidlaw J.A., in writing for the OntarioCourt of Appeal, succinctly set out a number of relevant factors to be considered in the assessment of identification evidence. His wordsare particularly useful to the review of this case (at p. 177): The weight of evidence of identification of an accused person varies according to many circumstances.

A witness called upon to identifyanother person may have been so well acquainted with him or her as to make the identification certain and safe. The person to be

identified may possess such outstanding features or characteristics as to make an identification comparatively free from doubt. Theconditions under which an observation is made, the care with which it is made, and the ability of the observer, affect the weight of theevidence. In addition to such matters, and of the utmost importance, is the method used to recall or refresh the recollections of a witnesswho is to be relied upon to identify a person suspected of wrongdoing or who is under arrest.

If a witness has no previous knowledge ofthe accused person so as to make him familiar with that person's appearance, the greatest care ought to be used to ensure the absoluteindependence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias createddirectly or indirectly. Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonablyprejudice the accused, the value of the evidence may be partially or wholly destroyed.

Anything which tends to convey to a witness thata person is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. Submitting a prisoneralone for scrutiny after arrest is unfair and unjust. Likewise, permitting a witness to see a single photograph of a suspected person or of aprisoner, after arrest and before scrutiny, can have no other effect, in my opinion, than one of prejudice to such a person. [25] Of course, I believe these factors are only some that can be considered and by no means meant to be an exhaustive list.

LAW WITH RESPECT TO CIRCUMSTANTIAL EVIDENCE [26] There is much case law on circumstantial evidence. But I find that the best authority is R. v. Villaroman, 2016 SCC 33, a recent decision of the Supreme Court of Canada. I duplicate the passages from paragraph 37 to 43 that states: [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff’d (SCC), [1938] S.C.R. 396; R. v.

Baigent, 2013 BCCA 28 , 335 B.C.A.C. 11, at para. 20; R.v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative thesereasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, whichmight be consistent with the innocence of the accused”: R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Otherplausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence ofevidence, not on speculation. [38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question is whetherthe circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference otherthan that the accused is guilty. [39] I have found two particularly useful statements of this principle. [40] The first is from an old Australian case, Martin v. Osborne, 55 C.L.R. 367, at p. 375: In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.

This means that,according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would beaccompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.] [41] While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify aconviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonablealternative — a helpful way of describing the line between plausible theories and speculation. [42] The second is from R. v.

Dipnarine, 2014 ABCA 328 , 584 A.R. 138, at paras. 22 and 24-25. The court stated that“[c]ircumstantial evidence does not have to totally exclude other conceivable inferences;” that the trier of fact should not act onalternative

interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable,not just possible. [43] Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greaterclarity than it is in these passages. THE EVIDENCE FOR THE CROWN [27] The Crown called: (

i) Illias Khan, taxi driver; (ii) Jimilda Wood, receptionist/desk clerk of hotel; (iii) Gordon Burns, driver of van; (iv) A police officer who, with the assistance of a police services dog, located, amongst other things, a cash box, a firearm, and someclothing. [28] The Crown also called two probation officers: (

i) Ms. Nash, probation officer (ii) Ms. Fuess, probation officer [29] It is argued that their recognition evidence be used by the court to find that the accused has been identified as the individualwho perpetrated the robbery. [30] Their evidence was the subject of a voir dire and I determined that their evidence was admissible and invited counsel to make

submissions as to the weight that it should be afforded. [ 31 ] My reasons for the voir dire have some application in considering what weight to give their evidence. Evidence of Mr. Khan - The Taxi Driver [ 32 ] Ultimately, Mr. Khan said he picked up two people at an address and was asked to take them to another address. He did this around between 6:05 and 6:10 p.m. on November 20, 2014. He testified that he waited for them until around 6:20 p.m.

He said that he then saw “These two guys were running towards my cab” when he realized “something was wrong.” He then decided to drive away when one of them “yelled at me to stop, stop, but I didn’t stop. I drove away for my own safety.” He told the court that he could see that “they were holding something but I cannot really tell what they were holding.” He also said “I could tell they were the same guys by their get up, their clothes.” [ 33 ] He could not remember details about their clothing. He also admitted on cross-examination that even though he was driving “he did take a few glances.” Evidence of Mr.

Wood - The Hotel Clerk [ 34 ] He described working that day when two males entered, one holding a gun, while the other came around the desk and took a cash box. [ 35 ] He was not able to describe the individuals’ faces in any detail as they were masked. Evidence of Gordon Burns - The Driver in the Van [ 36 ] He testified that he is the 47-year-old father of two boys, aged 13 and 10 at the time of the incident. Both he and his boys were sitting in his van when the incident began.

He described the event by saying, “On November 20, I was sitting in a parking lot sitting in my van at 138 and104th - the engine was running; it was about 6:30 and I was actually looking at my phone.” The next thing he recalls is somebody on both sides of his van was there and one was yelling “get out of the van.” Both were pounding on his windows and he said “I can’t, I’ve got my kids in the back.” At this point, he told the court that the male on the driver’s side said to the other person “He’s got kids” and took off.

The person on the passenger’s side had his face covered, was wearing a jacket and said, “I don’t care,” opened the door and jumped in yelling at him to “get out.” As he got into the van, Mr. Burns noticed that he had a black cash box in his hands. He knew it was a cash box because he could hear the coins rattling around on the inside. At this point, he turned to his boys and said, “Okay guys, get out” and they all got out of the van. As he was exiting the van, he quietly turned the van off, pocketed the keys and left the van.

Just before exiting, he saw that the man who jumped into the passenger’s seat was no longer masked and he caught a glimpse of his face as the interior cabin light turned on as he opened his door. He provided clear descriptors of the man who entered the van, which included a “longish face, short hair, Caucasian about 5 foot 11 and 160 pounds.” In cross-examination, he confirmed the whole incident took less than 30 seconds and he only saw the individual’s face for 3 or 4 seconds at the most. CONCLUSION AS TO IDENTIFICATION OF MR. FIELD BY THE TAXI DRIVER, MR. KHAN AND THE VAN DRIVER, MR.

BURNS [ 37 ] I have no doubt that Mr. Khan believes he could recognize the person who got in his taxi that night. He did point him out in court. [ 38 ] But as was elicited on cross-examination, he has many customers, and has had many, over the period of the last two years. When asked if he could recognize every customer, he was fair, and in my opinion honest, when he said “obviously not.” [ 39 ] Mr. Burns described the event as stressful.

His exposure to the person’s face who entered his van that night was limited in time, and at times his view was blocked by a mask, hoodie and the dark of night. [ 40 ] With great respect to Mr. Burns and Mr. Khan, their evidence is exactly what the authorities caution me not to rely on. [ 41 ] Neither of them knew Mr. Field prior to this incident.

Neither had a great opportunity in any sort of quality environment to view the individual’s face in a well-lit, un-stressful, environment. [ 42 ] In my view, with respect to the identification of the person that was in that taxi that night, as well as the person that was trying to ‘car jack’ the van, I cannot rely on the in-dock identification by Mr. Khan or Mr. Burns. [ 43 ] They may have a clear recollection that ‘this was the man’ that was there. However, the very nature of their eyewitness identification is fraught with frailties and I believe it would be dangerous to rely on their identification of Mr.

Fields. THE MAIN EVIDENCE AS TO THE IDENTIFICATION OF THE ACCUSED Stacey Nash - Probation Officer [ 44 ] Ms. Nash was a probation officer since January 2008 and has worked in Fort St. John, a few other northern communities and most recently in Surrey, New Westminster and Maple Ridge. [ 45 ] She testified that she first met the accused in August 2009 while she was working as a probation officer in Fort St. John. She supervised him for approximately a year to July 2010. During this time period she estimated that she met with him anywhere from 11 to 44 times.

Each of her meetings were in an interview room, where she was about two or three feet away from him for their face to face meetings which took place for anywhere from 30 minutes to an hour. [ 46 ] In 2014, she became reacquainted with the accused at the Surrey North Corrections office. One of her colleagues had casually

mentioned the name of a person that she was supervising and by coincidence it was the accused. These two probation officers met with the accused and asked him if he would like Ms. Nash to take over his supervision. He agreed that this was a good idea. [ 47 ] She met with him four or five times from August 2014 to October 15 2014. These meetings were also face to face meetings in an interview room for periods of 30 or 40 minutes. [ 48 ] Ms. Nash confirmed that she received some photographs from a police officer that depicted two individuals.

I understand that it is not uncommon for police officers to forward pictures of suspects to individuals such as parole officers or probation officers or other police officers in hopes that the unknown suspect might be recognized. [ 49 ] Ms. Nash said she recognized the accused, Nathan Fields, as one of the people in the photograph. She said she recognized him immediately and was extremely certain.

When asked why she was certain, she said she recognized his “overall face shape, cheekbones, shape of his nose, shape and size of his eyebrows.” She identified the accused as the person in the photograph. [ 50 ] In cross-examination it was elicited that Ms. Nash saw many clients over the years. Ms. Nash said that while she was not sure how old he was when she first met him, there were very few changes to his appearance other than a missing tooth and his face had a little more weight on it. [ 51 ] Ms.

Nash agreed with counsel in cross-examination that the photographs were not the highest quality, that they were blurry, and only offered a partial view of the subject. However, she was adamant with respect to the quality of her identification and said that his “face, nose and cheekbones were fairly distinctive to me.” Katja Fuess - Probation Officer [ 52 ] Ms. Fuess has been a probation officer in Surrey since December 2013. She told the court that she met the accused in June 2014 and had interviewed him 6 times until Ms. Nash took over the supervision in October 2014.

I note her supervision ended approximately one month before the offence date. [ 53 ] Her descriptions of her meetings with the accused were similar to those of Ms. Nash. Each of her meetings with the accused was a face to face meeting that lasted anywhere from five to forty-five minutes. Her last meeting with him was on November 5, 2014, when she met him for about 15 minutes. [ 54 ] She told the court that in December 2014 she had received an email from Ms. Nash with a question attached to it that read “Do you recognize anyone from it?” She was not given any idea as to who it might be.

Nevertheless, she testified that she recognized the accused Nathan Field immediately. To use her words “I was very certain.” When asked by counsel to help us understand why she recognized him immediately, she said “Nathan has a slender, long and narrow face and the way his eyes were set were very telling for me.” As Ms. Nash did, Ms. Fuess also verified her opinion that the accused was the individual depicted in the photo. She did not recognize the other individual in the photo. [ 55 ] In

summary, she was very confident that the picture was Nathan Field and even commented that he had put on a little weight since the time she knew him and as a result looked a little healthier. DETAILED ASSESSMENT OF THE QUALITY OF IDENTIFICATION EVIDENCE [ 56 ] I do not wish to be repetitive. However, I believe some of the dangers of identification evidence can be mitigated by reviewing the evidence with a careful eye through the lens of the guiding authorities. Level of Acquaintance [ 57 ] Ms. Nash was his probation officer in two places between August 2009 and October 2014. Ms.

Fuess was also his probation officer, albeit for a shorter time period, between June and October 2014. Features/Characteristics [ 58 ] Both Ms. Nash and Ms. Fuess were able to clearly identify descriptors of Mr. Field. They were specific and able to easily explain why they believed Mr. Field was the person in the photo. Again, their combined description included: overall face shape, cheekbones, shape of his nose, shape and size of his eyebrows.

Again, to use the language of one of the witnesses his “face, nose and cheekbones were fairly distinctive to me.” Conditions under which an observation is made [ 59 ] The observations were in interview rooms that were well lit. The meetings were face to face and unobstructed. They were not for short periods of time, but varied in length to times as long as half an hour to an hour. Both probation officers said that it was their habit to make direct observations of the clients they interviewed. Care with which it is made [ 60 ] Both individuals made notes contemporaneously with the interviews.

The notes were able to assist each witness in identifying the quantity and timing of their interviews with Mr. Field. The ability of the observer [ 61 ] Both witnesses are professional probation officers. They have through their employment been trained to observe clients. In my view, as a matter of common sense, essential to the idea of supervising someone on probation is exactly that, an ability to observe. I recall the specific words that one of them said: “I always look at my clients in the face.”

Without suggestion, assistance (the concept of bias) [ 62 ] As I found in the ruling on the voir dire , there is nothing to suggest that the email either probation officer received had any message on it that might skew or otherwise call into question their identification of Mr. Field. In other words, in my view, it was not tainted in any way.

QUALITY OF THE PHOTO [ 63 ] It has been submitted that the quality of the two photos as found in exhibit 3, are not of good quality. [ 64 ] Specifically it is argued that the two main photos depicting the person in the back seat of the taxi on November 20th, that was driven by Mr. Khan is ‘blurry, grainy’ and otherwise just generally of bad quality due to the overexposure of the photo. [ 65 ] It is true that the quality of the photo is not excellent. It is by no means a surveillance video of HD quality. [ 66 ] The quality of the photo is not an issue in itself.

In my view, the question is whether the photo is of sufficient quality as to assist the two witnesses. Are they able to look at the photo and tell the court with any degree of certainty that the person in the photo is Mr. Field? [ 67 ] I have been asked to look at the photo and find that it is a photo of Mr. Field. In considering this possibility, I can say that there are striking similarities between the photo and Mr. Field. Specifically, by my viewing, the shape of the nose and long face depicted in the photo almost certainly resemble Mr. Field. However, as I noted in the voir dire decision, I did not know Mr.

Field in 2014. [ 68 ] I am told by both probation officers that he has put on weight. So, there is a recognition by the witnesses that Mr. Field may look different than he did in 2014. [ 69 ] I am extremely reluctant to rely on my viewing of the photo for any purpose. To be clear, I did not know Mr. Field in 2014 and I am not going to consider my opinion. Striking similarities and an almost certain resemblance is not enough - that is not proof beyond a reasonable doubt. [ 70 ] However, I need not guess as to whether the photo is Mr. Field or not. There is clear, unequivocal evidence from two witnesses.

Both witnesses knew Mr. Field within a month of the offence. Ms. Nash in particular had a lengthy professional relationship with Mr. Field. She had close face to face one on one interviews and was perfectly placed to view Mr. Field’s facial features at the time of the offence. [ 71 ] Further, she was, as was Ms. Fuess, able to clearly explain to the court why she was immediately and extremely certain as to her identification. [ 72 ] She was not shaken on cross-examination. The quality of the photo did not give her any doubt as to her extreme certainty. [ 73 ] Equally, Ms.

Fuess had a similar, but shorter, professional relationship. However, she too was immediately certain. She too was able to with great detail explain why she was certain. [ 74 ] While perhaps only a side-note, when the witnesses are describing certain facial features such as his long narrow face, shape of his nose and the way his eyes are set, I, as the trial judge have had the ability to look at the accused - when I did, it was immediately apparent to me exactly the features that they were describing. Mr. Field does have a very unique facial structure.

Again, my observations have no value and I only mention this to point out that I have a special vantage point when hearing the descriptors from the witnesses. CONCLUSION REGARDING THE RECOGNITION EVIDENCE OF THE TWO PROBATION OFFICERS, MS. NASH AND MS. FUESS [ 75 ] I conclude that Ms. Nash was in a better position to provide recognition to the court. She knew Mr. Field for a longer period of time, including the time period close to the offence date. I find that her evidence is not only helpful, but satisfies me beyond a reasonable doubt that the person sitting in that taxi that night was Mr.

Field. [ 76 ] I also find that Ms. Fuess’s evidence is very compelling. She too was in a unique position in that she has had a number of meetings with Mr. Field and had no difficulty at all recognizing him in the photo. I find that her evidence independent of Ms. Nash’s, is also sufficiently reliable so as to support a finding of fact that Mr. Field was the man in that taxi. [ 77 ] I am fully aware that being in a taxi is not a crime. I now will consider the rest of the circumstantial evidence linking Mr.

Field to the offences he is charged with. [ 78 ] The taxi driver, while I have not accepted his evidence with respect to the identification of the face of the passenger in his taxi, has provided other evidence that I consider. [ 79 ] He describes picking up two passengers. One is identified as Mr. Goossens. I should point out that in the admissions there is reference to Mr. Goossens. [ 80 ] Now, as I have found, Mr. Field is in the taxi next to him on that evening. [ 81 ] Mr. Khan describes the situation where he drops off Mr. Field and Mr.

Goossens and approximately 8 to 10 minutes later “he heard these two guys and someone else shouting” and that “they were running towards my cab” and that “they yelled at me to stop, stop.” As I mentioned earlier, it was his testimony that these were the same two guys.

[ 82 ] It was within this time period of dropping them off to them coming back to the taxi, that the Crown alleges the hotel was robbed. [ 83 ] Video surveillance shows that two people walked into the Surrey Central Inn and walked out. It is clear by the evidence of the desk clerk that they were masked. [ 84 ] To summarize, Mr. Field and Mr. Goossens are dressed in certain clothing. They are picked up together by the taxi. They are dropped off right next to the Surrey Central Inn.

Moments later two individuals, wearing exactly the same clothing, coming from the very direction that the taxi driver said he was waiting for them, walk into the hotel and commit a robbery. [ 85 ] One of the males, Mr. Goossens has acknowledged that he was one of those males. Certainly the admission of facts sets out the circumstantial evidence of Mr. Goossens. [ 86 ] One of the males, alleged to be Mr. Field, grabs the cash box and exits the hotel. Moments later, the taxi driver sees the same two males, wearing the same clothing, running towards him, one of them holding something in his hands - although Mr.

Khan cannot say what it was. He said that they got about 1.5 meters to 2 meters away from him. [ 87 ] There are no alternative theories. In my view it would be pure speculation to even consider that within moments of the taxi arriving that the accused gave his clothes to another, who then carried out the robbery. It is pure speculation to consider that by some odd coincidence somebody else, dressed just like Mr. Field, found himself to be in the company of Mr.

Goossens and walking into the Surrey Central Inn to commit a robbery at that exact time on November 20, 2014. [ 88 ] In my view there is absolutely no doubt that it was Mr. Goossens and Mr. Field that left that taxi, went into the Inn together and robbed the desk clerk of the cash. Mr. Goossens had a gun. Mr. Field was the one who grabbed the cash box. [ 89 ] Mr. Field, I am satisfied beyond a reasonable doubt that the Crown has proven both counts one and count two of the indictment. [ 90 ] Specifically, that you are guilty of the robbery contrary to Section 344(1)(

a) of Jameel Dawood. I accept that you were not the one that carried the restricted or prohibited firearm. [ 91 ] Further, Mr. Field, I am satisfied that you had your face masked, with intent to commit an indictable offence, specifically robbery, contrary to Section 351(2) of the Criminal Code . [ 92 ] I am satisfied to the point I do not believe I need to address the other pieces of circumstantial evidence. That is specifically, Mr. Burns has provided some information as to which direction the two accused ran. As a result of this information, searches were done by a police dog and many items were found.

The cash box, a coat matching the description of what Mr. Field was wearing, gloves and a t- shirt were all located in that direction, and a short time after that Mr. Field was seen running. [ 93 ] It may be that these pieces of circumstantial evidence, as well as the other items identified to be those of Mr. Goossens support the proposition that it was in fact Mr. Goossens and Mr. Field who are guilty of the offences they are charged with. However, I believe their value to be little and I do not rely on them in support of my findings above. I NOW TURN TO COUNT 7 THE ALLEGATION THAT MR. NATHAN FIELD ROBBED MR.

GORDON BURNS [ 94 ] As I have already mentioned, Mr. Burns’ evidence, while well intended, is not enough for me to find a positive finding of identification of Mr. Field. To be clear, he said he recognized Mr. Field, but I put very little to no weight on his evidence. SO WHAT OTHER EVIDENCE DOES HE PROVIDE TO THE COURT? [ 95 ] He provided a description of two people coming up to his van.

On the driver’s side he described the person to be wearing a “grey and green khaki jacket, with something darker across his face.” He told the court that after some words were exchanged, that person took off north and down the street. [ 96 ] With respect to the person on the passenger’s side of the vehicle, which the Crown alleges was the accused, he was able to clearly recall the words that were exchanged and what he did. This information was surveyed earlier in these reasons. With respect to the identification of that individual, he described a person wearing a dark hoodie and jeans.

Since his face was uncovered for part of their interaction, he was able to describe some of the facial features. It was this person that Mr. Burns said had the cash box. [ 97 ] With the greatest respect, Mr. Burns’ description is a bit vague. It is unclear to me what either of the two individuals was wearing. It is also unclear to me the time that lapsed from the robbery to the attempted robbery of Mr. Burns in the van. I fully appreciate that may have been moments or minutes, but I do not have any continuity of the accused from the time of the robbery to the interaction with Mr. Burns.

I do not recall any evidence from Mr. Khan that he saw the two individuals run from his cab over towards the van. [ 98 ] Could either of the accused have passed the cash box to the other? Again, it is just speculation to consider that point. But I have no ability to know with any degree of certainty which of the two accused was at the passenger side of the door.

The descriptors are vague enough to be either of the two accused. [ 99 ] The items located in the van do nothing more than circumstantially link the person that was in the van to the robbery, but it does not provide me with enough evidence to know which of the two was actually in the van. [ 100 ] As a result, I do have some doubt as to which accused was in the van. I cannot rely on Mr. Burns’ identification of Mr. Fields as I have given little to no weight to his evidence on this point. [ 101 ] In the end, I am not satisfied beyond a reasonable doubt that Mr. Fields was necessarily the one who tried to take Mr.

Burns’

van. I strongly believe it was; but there is doubt and I weigh that doubt in favour of the accused and, as a result, I acquit him on the robbery of Gordon Burns. [ 102 ] I wish to thank both counsel for their extensive submissions on the appropriate legal authorities. The Honourable Judge A. Wolf Provincial Court of British Columbia