R v Smith-Lowe, 2023 ABCJ 179

In the Alberta Court of Justice Citation: R v Smith-Lowe, 2023 ABCJ 179 Date: 20230829 Docket: 211043088P1 Registry: Calgary Between: His Majesty the King - and - Tyler Millar Smith-Lowe Decision of the Honourable Ju stice H.A. Lamoureux [ 1 ] The accused, Tyler Millar Smith-Lowe is charged with 17 counts pursuant to the Criminal Code of Canada . The Crown has withdrawn counts 1, 13, 14, 15 and 16 at the commencement of trial. Count 12 has been amended to include an additional complainant. Count 10 has been amended by Court order to include the entire wording of section 403(1) (

d) of the Criminal Code of Canada . The remaining counts proceeding to trial include: multiple breaches of section 145(5) (a), section 348(1) (b), (break and enter with intent) section 346(1.1) (b) (extortion), section 403(1) (d) (impersonation), section 351(1) (possession of break and enter tools) and section 423(1) (a) (intimidation). Evidence at Trial [ 2 ] The material issue in this case is the question of identity. Proof of identity in this case, rests on circumstantial evidence. [ 3 ] The sequence of events giving rise to the multiple counts, begins on October 21, 2021.

A residence at 124 Canterville Drive SW, Calgary, Alberta was the subject of a break and enter. During the course of the break and enter, the entrance to the residence was damaged and items of personal property, including jewellery, coins and personal effects, were stolen. All of the subsequent offences alleged in this case arise after the initial break and enter into the residence of Dr. and Mr. Grossman, the complainants. Crown Witnesses Alice Wagner [ 4 ] Ms. Wagner is a neighbour of the complainants. On October 24, 2021, she was out for a walk in the neighbourhood.

She observed a black two-toned sportscar in the driveway of the Grossmans’ residence. This was in the middle of the day at approximately 1:10 PM. The vehicle attracted her attention because she knew that the Grossmans were away from the home. She also knew that the Grossman’s home had been the subject of a break and enter on October 21, 2021. The home security alarm was sounding. She noted that plywood that had been previously applied following the previous break in had been “pried off”. She saw a man by the sportscar parked in the driveway of the Grossman’s home. The man was masked. He was wearing a hoodie.

He had dark hair and animated darker eyes. He appeared to be about 40. Ms. Wagner observed that this man got into the sportscar and drove away “very fast”. She noted there was artwork in the back seat of the sports car. As the car drove away she was able to get the last three digits of the licence plate “895.” Ms. Wagner immediately called police. Ms. Wagner later attended a police photo line up in March 2022. She tells the

Court, “I couldn’t identify anyone 100%.” Alice Wagner is a credible and reliable witness. Lisa Cohen [ 5 ] This Crown witness is the daughter of the complainants, the Grossmans. Ms. Cohen was the first to respond to the break in on October 21, 2021 at her parents’ residence. She received a phone call at 5:00 AM on October 21, 2021, advising the alarm had been triggered at her parents’ residence. She immediately got up, contacted her father and called 911 as she drove to her parents’ home. Police arrived and in due course, Ms. Cohen entered the residence after it had been cleared by Calgary Police.

Glass had been smashed on the entry door, drawers and furniture in the home were open, closets were open, personal property had been pulled out, there were items of artwork missing from the residence and items taken from her father’s desk. The Grossman landline phone, located in the residence, has a call log. The call log is entered as Exhibit 4 . There is a call recorded on the landline phone on October 21, 2021 from 403-679-1568. The call log, Exhibit 4 , reflects calls to the Grossman’s residence from the same number, 403-679-1568, on October 22, 2021, and October 24, 2021.

The same number 403-679-1568, called Ms. Cohen’s mother, the complainant, on her cellphone. These calls are heard on speaker phone by Ms. Cohen and police as they are broadcast on the landline phone at the Cohen residence. Everyone hears a male voice threatening and intimidating, demanding money from the complainant, Dr. Grossman. As a result of the phone calls from the number 403-679-1568, the entire family was in fear. The last call was made to the complainants from 403-679-1568, on October 24, 2021. The Grossmans were later informed by police that a person had been apprehended that day.

The person that was apprehended is the accused. Lisa Cohen is a credible and reliable witness. Dr. Valerie Grossman [ 6 ] Dr. Grossman has had a long career in public education. She possesses three post-graduate degrees including a PhD in human and organization systems. Dr. Grossman is employed as a professor and is the founder and CEO of Health Reach Canada Inc. Dr. Grossman testified she and her husband have lived for 42 years in the same residence. Dr. Grossman tells the Court “I am Jewish.” [ 7 ] Dr. Grossman’s residence had a landline phone with call display features.

The phone number of the landline phone is 403- 281-2405. Dr. Grossman also had a cell phone which was connected to the business, Health Reach Canada Inc. The number of the cell phone was 403-830-6417. Dr. Grossman testified the business cards for Health Reach Canada Inc., with that cell phone number displayed were located in her home office in the residence which was the subject of the break and enter. Dr. Grossman testified that on October 21, 2021, her daughter called to advise that the Grossman home in Calgary had been the subject of a break and enter. They were in British Columbia at the time.

The Grossmans decided to drive back to Calgary. [ 8 ] On October 24, 2021, just before noon, while the Grossmans were enroute to Calgary, they received a call on Dr. Grossman’s cell phone which she had with her in the vehicle. The call was from a man who identified himself as “Ryan Jenkins.” The call display on the cell phone of Dr. Grossman showed that the number of the caller, the last four digits, was 1568. The caller told Dr. Grossman that he was from Black Diamond Alberta, he was interested in her charitable organization, Health Reach Canada Inc., and he wanted to meet her to make a donation.

The male caller informed Dr. Grossman that he was formerly a student at “Colonel Irvine School” and that his mother was a teacher. [ 9 ] After this call ended, Dr. Grossman received another call on her cell phone from the alarm company monitoring her residence informing her the home had been broken into for a second time. After the call from the alarm company informing Dr. Grossman of the break in, Dr. Grossman received a call on her cell phone 8 – 10 minutes later. Dr.

Grossman testified that she believed this caller to have the same voice as the first caller who had identified himself as “Ryan Jenkins.” The last four digits from the call coming into Dr. Grossman’s phone were 1568. [ 10 ] The second call, to Dr. Grossman’s cell phone on October 24, 2021, was a threatening, intimidating call in which the male caller used anti-Semitic language referring to Dr. Grossman’s ethnicity, and in which the caller demanded $1 million dollars in $100 dollar bills and 30 “kilos of German gold” in a gold bar.

The intimidating male demanded money and placed different deadlines for the money to be provided, at 2:00 PM, 3:00 PM, and 5:00 PM respectively. The caller stated to Dr. Grossman that if she did not do what he said with respect to the provision of the money, he would “come back and get me.” [ 11 ] The first threat by the male caller was made at 12:16 PM on October 24, 2021. In the second call from the male, at 1:37 PM, on October 24, 2021, the male threatened Dr. Grossman’s life if he did not receive the money or if she called police. Dr.

Grossman testified that both threatening calls were from a number on the call display with the last four digits 1568. [ 12 ] Dr. Grossman also received two text messages at 1:11 PM and 1:19 PM on October 24, 2021, which continued the threats. The threatening text messages are entered as Exhibit 6 . Dr. Grossman was receiving these threatening calls to her cell phone, as she was driving from British Columbia back to Calgary. She placed her daughter and the Calgary Police officer who were at her residence on the call so that they too could hear the male caller making the threatening calls. Dr.

Grossman tells the Court that she placed two cell phones located in the car on speaker, one cell phone connected to the male caller making the threats and the other cell phone connected to her daughter and Calgary Police at her residence. [ 13 ] Dr. Grossman testified she subsequently discovered, upon arriving at her residence, that personal property had been stolen. This included artwork, envelopes of information from her business office, boxes of jewellery, gold chains, identification cards, file folders from her home office, and an item she identified as a “memory box.” The business papers contained what Dr.

Grossman described as a Square, containing information of the client’s and donors of the charity, Health Reach Canada Inc. The list of clients in the business records inside Dr. Grossman’s study in her residence were contacted “over and over.” Dr. Grossman is a credible and reliable witness. Mitchell Grossman

[ 14 ] Mr. Grossman tells the Court in examination-in-chief, that “I am Jewish, married 54 years, and I built the home, which is the subject of the break, and enter in 1982.” Mr. Grossman informs the Court he is retired; he maintains a home office in the basement of the residence. Mr. Grossman testified that as he and his wife were driving in their vehicle back to Calgary from British Columbia on October 24, 2021, his wife received several telephone calls. The calls were put on the speaker mode. The first call was from a male who identified himself as Ryan Jenkins.

The second call from the male speaker demanded that Dr. Grossman pay $1 million dollars and what was called “30 kilos of German gold.” Mr. Grossman testified he heard the male voice say, “All you Jews know each other, you can get money.” Mr. Grossman also heard the male caller utter anti-Semitic words to his wife, Dr. Grossman, as the demands were being made for the money and the gold. Mr. Grossman testified they were given various deadlines by the male caller. All of the calls to his wife’s cellphone displayed the same cellphone number 403-679-1568. Mr.

Grossman testified that this same cellphone number 403-679-1568 was recorded on the display screen of the landline phone located in the Grossman residence at the time of the break and enter. Mr. Grossman believed the cellphone calls were from the same male speaker. Mr. Grossman agreed with his wife that personal possessions were stolen from the residence in the break and enter, including his gold watch and valuable art. None of this property has been returned. Mr. Grossman is a credible and reliable witness. Cst. Blake Van Hereweghe [ 15 ] Cst.

Van Hereweghe is a member of the Calgary Police Service and has served in that capacity for 18 years. He is a credible and reliable witness. On October 24, 2021, he responded to a stolen vehicle complaint, a vehicle proceeding westbound on 16 th Avenue in Calgary, being followed by the HAWCS helicopter. The vehicle was identified as a 2008 Porsche motor vehicle, grey in colour. Cst. Van Hereweghe located the Porsche vehicle and the accused, identified as the driver, was taken into custody at the scene.

The last three numbers – 895 - on the licence plate of the Porsche matched the last three numbers of the licence plate of the vehicle which was seen in the Grossman driveway. The full licence plate number was NZY 895. The Porsche was confirmed to be a stolen motor vehicle. [ 16 ] While this officer was investigating the crime, he received a telephone call from a fellow officer, Cst. Diamond, informing him the stolen Porsche motor vehicle was also involved in another crime being investigated by Calgary Police. Cst.

Diamond informed this officer that police wanted to check to see if a cell phone that had just been seized from the accused at the time of his arrest would ring when they called the number 403-679-1568. This cellphone was located in personal property seized by police from the accused at the time of arrest. The call by Officer Diamond to the phone number 403-679-1568 and the sound of the phone ringing is recorded on police body-worn camera. The body-worn camera footage is entered into evidence. Cst. David Bryden [ 17 ] Officer Bryden has been a member of the Calgary Police Service for 17 years.

He is a tactical HAWCS flight officer, a police officer, and a communications officer. Constable Bryden is a credible and reliable witness. He is familiar with the continuous zoom camera operated by Calgary Police in the HAWCS helicopter which is used to observe traffic on the streets in the City of Calgary. The camera is powerful enough to depict people inside the vehicles operated on the streets in the City of Calgary. Officer Bryden testified this camera is powerful enough to allow him to read a licence plate on a vehicle being operated on a roadway in Calgary from a distance of 1 kilometer.

On October 24, 2021, Officer Bryden was working as the flight officer in the HAWCS helicopter. Cst. Friesen communicated to him that a stolen Porsche motor vehicle was proceeding westbound on 16th Avenue in Calgary, Alberta. Officer Bryden directed the HAWCS camera to zoom in to locate the Porsche. He testified a Porsche sportscar is rare on Calgary roads and he sees only one or two a day as he flies the HAWCS helicopter. Officer Bryden quickly located a match to a Porsche and followed the vehicle in the HAWCS helicopter. He observed a male to exit from the Porsche wearing a dark top and light-coloured pants.

The male proceeded into a liquor store, Trans Canada Liquor, and exited a moment later. The driver of the Porsche, the male observed by Officer Bryden, was taken into custody immediately by Calgary Police Service officers. He was later identified as Tyler Smith-Lowe. Other Calgary Police Officers confirmed that the stolen Porsche motor vehicle from which the accused was arrested was the stolen Porsche motor vehicle with the licence plate NZY 895. The last three digits matched the license plate of the vehicle observed in the Grossman driveway by Alice Wagner. Cst.

Mark Friesen [ 18 ] Constable Mark Friesen has been employed with the Calgary Police Service for 13 years. He has specific training in the use and operation of body-worn camera deployed when the police interact with a member of the public. Officer Friesen was in uniform wearing his body-worn camera on October 24, 2021. Officer Friesen was in an unmarked police vehicle. He was working with his partner Constable Majewski. Officer Friesen received information from District 5 of a stolen Porsche motor vehicle. He observed a Porsche 911 motor vehicle on the street in Calgary, Alberta.

He ran the plate NZY 895 on this Porsche on the police computer data-base systems and determined that the Porsche motor vehicle was reported as stolen. The Porsche motor vehicle, in Officer Friesen’s opinion, is a vehicle which “stands out” on Calgary streets. Officer Friesen was informed this Porsche motor vehicle, reported as stolen, may have been involved in a break and enter into a private residence. [ 19 ] All of this information concerning the stolen Porsche, the licence plate, the location from first observation, was related by Officer Friesen to Calgary Police HAWCS.

The driver of the Porsche was observed proceeding into a liquor store. Officer Friesen parked his vehicle in an alley close to the liquor store and got out of his police vehicle in order to apprehend the driver when he emerged from the liquor store. As the male exited the doorway of the liquor store, Officer Friesen challenged him. He said, “Police. Stop.” The male continued to walk away, southbound, requiring Officer Friesen to run over and tackle the male to the ground. Officer Friesen testified that he had observed the driver in the stolen Porsche, a male wearing a black hoodie and a white bandana.

This male was a wearing a brown satchel across his chest. At the time of the arrest of the accused, Officer Friesen removed a brown satchel worn across the chest of the male. The male gave what was later determined to be a false name to Officer Friesen. Eventually the male gave his correct name: Tyler Smith-Lowe, date of birth August 3, 1986. Officer Friesen entered that information into the Calgary Police data- base and learned that Tyler Smith Lowe was bound by multiple conditions on judicial interim release.

Officer Friesen observed his police partner as she read to the accused his rights under the Canadian Charter of Rights and Freedoms . Officer Friesen was informed

by Calgary Police from District 6 that the accused was “arrestable” for a break and enter offence into a residence and that the accused was a suspect in the original theft of the Porsche motor vehicle. Officer Friesen searched the accused, placed the satchel seized from the accused’s body on the hood of the car. The satchel seized from the accused person contained a cellphone (later the subject of forensic analysis by the expert witness), black mechanic’s gloves, cannabis marijuana, and a crowbar.

The break and enter tools, the crowbar, were located inside the satchel found in possession of the accused incident to the arrest. Officer Friesen was able to identify the accused in the dock as the male he arrested on October 24, 2021, Tyler Smith-Lowe. There was no other occupant in the Porsche at the time of Mr. Smith-Lowe’s arrest and no one else in the parking lot where the stolen Porsche was parked, in front of the liquor store. Officer Friesen is a credible and reliable witness. Cst. Colin Adair [ 20 ] Officer Adair is a police officer and is now a lawyer.

He was a member of Calgary Police Service at the time of these events. On October 24, 2021, Officer Adair was on duty. It was he who took the police dispatch call of the break and enter into the Grossman residence on Canterville Road SW Calgary. He arrived at the residence of the Grossmans at 1:20 PM on October 24, 2021. He was provided some information at the time of his attendance at the residence including the sighting by the neighbour Alice Wagner of an individual in a vehicle parked in the driveway of the Grossman residence with artwork in the vehicle.

This officer met with Lisa Cohen, the daughter of the Grossmans and they toured the Grossman house together. This officer was in contact with Lisa Cohen’s parents, the complainants, in the presence of Lisa Cohen, as the conversations occurred on the speaker landline phone inside the Grossman residence. This officer made the observations of the displayed call logs on the landline phone in the Grossman residence.

He received information from the complainants that the number appearing on the call log on the land line phone was also the number calling the Grossmans on another phone, a cell phone, in an attempt to extort the Grossmans of money and gold. Officer Friesen was also informed by the complainants that the male, calling the Grossmans on their cell phone to extort gold and money, appeared to have “the same voice” as the man who had posed as a donor wanting to donate to Dr. Grossman’s charity.

The officer’s body-worn camera displays the officer listening on speaker on the Grossmans’ landline phone to the actual call from the alleged extortionist to the Grossman’s cellphone. Officer Adair later learned that the accused, Mr. Smith-Lowe, was arrested with a cellphone.

Officer Diamond, the CPS officer leading the investigation, had called the phone number found in the call logs at the Grossman residence 403-679-1568 and determined that the phone in the accused’s possession in his satchel at the time of his arrest responded with ringing when a call was placed by police to that cell phone number 403-679-1568. This officer completed an application for a Production Order which is entered as Exhibit 3 in the trial. The call logs disclosed in Exhibit 3 is with respect to the cell phone 403-679-1568 between October 19 – October 26, 2021.

The cellphone subject to the Production Order Exhibit 3 also underwent forensic analysis by Calgary Police Digital Forensics Unit on January 25, 2022, and is the subject of an expert opinion evidence provided by Crown expert, Constable Murphy. Constable Adair is a credible and reliable witness. Cst. Ashley Majewski [ 21 ] Constable Ashley Majewski is a member of Calgary Police Services. She is a credible and reliable witness. In October 24 th she was partnered with Cst. Mark Friesen, on duty, in uniform, in traffic surveillance in an unmarked police vehicle.

Officer Majewski, like Officer Friesen, was aware of a police report of a stolen Porsche motor vehicle. She observed the 2008 Porsche 911, dark gray in color, with license plate NZY 895 westbound on 16 th Avenue in Calgary, Alberta at 15:09 hrs. The driver of the vehicle was observed to be wearing a white bandanna. Officer Majewski did not observe any other occupant in the Porsche motor vehicle. Ofc. Majewski and Ofc. Friesen were communicating from their police car with the HAWCS helicopter. The Porsche motor vehicle was tracked by HAWCS helicopter to the Trans Canada Liquor Store at 428 16 th Ave. NE, Calgary.

The two police officers attended to the liquor store identified by the HAWCS helicopter. The accused was at the scene and placed into custody at 15:12 hrs. Ofc. Majewski testified that the Porsche motor vehicle located by police at the liquor store and driven by the accused was a match to the stolen Porsche motor vehicle with license plate NZY 895. Ofc. Majewski chartered and questioned the accused after placing him under arrest at 15:23 hrs. Ofc. Majewski testified that her partner Ofc. Friesen placed a brown bag found on the person of the accused, on the hood of the Porsche motor vehicle. It was Ofc.

Friesen who searched the brown bag incident to arrest. He seized the brown bag and its contents together with other items, identification and cash found on the accused’s person at the time of arrest. The Expert Witness Jeffrey Banawa [ 22 ] Mr. Banawa has a bachelor’s degree from post-graduate education in Computer Science. Mr. Banawa, as part of that training has education with respect to a forensic tool consisting of hardware and software known as Gray Key. This particular forensic tool, Gray Key is utilized to extract data from a cellphone. Mr.

Banawa has undertaken 400 previous extractions of data from cellphones in a forensic capacity. On February 1, 2022 he undertook a forensic data extraction from the cellphone seized from the bag found on the person of the accused. Mr. Banawa used the Gray Key forensic tool which consists of a software and a hardware component to extract the data from the cellphone. He did not assist police investigators to review the extracted data in this particular case. Mr. Banawa was able to extract a full file system from the cellphone seized from the accused which included raw data, and the “Hash” which Mr.

Banawa described as the “fingerprint” for the data on the cellphone. The extraction of the hash identification confirms the authenticity of the actual data records on the cellphone extracted in the forensic process undertaken by Mr. Banawa. [ 23 ] Raw data extracted from the cellphone by Mr. Banawa was uploaded to a “forensic server” which generates, with the assistance of a software program, a reader report. Mr. Banawa double-checked the hash number from the reader report to verify these had the same hash number or hash value as the raw data uploaded from the cellphone to the forensic server.

Once that hash value is compared and found to be the same a PDF report is placed on the server in order to permit the investigator to review it and prepare a formal expert report. In this case, the reader report included text messages found on the cellphone. The extraction report was identified as Exhibit C ( Exhibit 9 ). A Microsoft spreadsheet generated within the extraction report was entered as Exhibit B ( Exhibit 10 ). Mr. Banawa is a credible and reliable witness.

Cst. Richard Diamond [ 24 ] Constable Diamond is the Calgary police officer dispatched to the break and enter at the residence of the complainants, the Grossmans, on October 24, 2021 at 13:20 hrs. He is a credible and reliable witness. Cst. Diamond confirmed that there had been a break and enter into the residence as the side door was smashed. He entered the residence together with Calgary police officer Cst. Adair and cleared the residence for the presence of any danger. Thereafter, the daughter of the homeowners, Lisa Cohen, toured the residence in the presence of the police officers.

They determined that personal property and artwork was missing. It is this police officer who took a statement from Alice Wagner who was the neighbour of the complainant. Ms. Wagner appeared as the first Crown witness in the trial. In the presence of Cst. Diamond, Lisa Cohen engaged in a telephone conversation on the residence landline with her parents, the complainants. Cst. Diamond was able to listen to Dr. Grossman on the speaker landline phone as Dr. Grossman was speaking to a male on her cellphone as she was driving towards Calgary in her motor vehicle. Cst.

Diamond was able to observe the phone number of the male who was speaking to Dr. Grossman. The cellphone number was 403-679-1568. This interaction was recorded on the body-worn camera worn by Cst. Diamond. The same phone number 403-679-1568 was observed by Ofc. Diamond to be playing on the recording display feature of the landline phone in the Grossman residence. Exhibit 4 is a photo of the landline recording, Exhibit 5 is the display of the text messages sent from 403-679-1568 to Dr. Grossman’s phone.

The same number 403-679-1568 is registered as an incoming call to the Grossman’s landline phone on 6 occasions between October 21 to 24. This same number is displayed on Dr. Grossman’s cellphone. Cst. Diamond testified that when he learned of the arrest of the accused with respect to the stolen Porsche motor vehicle he actually contacted his fellow police officers at the scene of Mr. Smith Lowe’s arrest. Testimony heard from these officers confirmed that they had seized the cellphone found in the satchel in the possession of Mr. Smith Lowe. Ofc.

Diamond performed a short test and called 403-679-1568 from his work phone to see if there would be a corresponding ring on the cellphone located at the scene of Mr. Smith Lowe’s arrest in Mr. Smith Lowe’s possession. Ofc. Diamond placed a call from his work phone 403-305-2975 to the number 403-679-1568. The process of making this call was recorded on Ofc. Diamond’s body-worn camera. As Ofc. Diamond makes the call to 403-679-1568 the phone rings and call is answered by the police officer who has seized the cellphone at the scene of Mr. Smith Lowe’s arrest. Exhibit 9 is the data that Ofc.

Diamond requested to be extracted from the cellphone seized from Mr. Smith Lowe. Ofc. Diamond in cross-examination informed defence counsel that the police had secured a Production Order with respect to the seized cellphone. Following an adjournment granted to permit defence to review the Production Order, cross-examination of the witness continued. Cst. Diamond testified that the seized cellphone subject to the Production Order in fact had two telephone numbers 403-679- 1568 and 403-690-8794. Ofc. Diamond did not obtain any production data with respect to the number 403-690-8794. Ofc.

Diamond did obtain data for the phone number 403-679-1568 which is the number identified in all of the transmissions in this case. The Court concludes that the number 403-690-8794 which was reviewed in the Production Order was irrelevant to these proceedings. It is a fictitious number created by use of a cellphone function called “My Number.” The results of the Production Order for the number 403- 679-1568 were entered as Exhibit 12 . The Expert Witness Kyle Murphy [ 25 ] Cst.

Kyle Murphy was qualified by the Court as an expert witness entitled to give opinion evidence with respect to the methodology of the forensic extraction and analysis of data from the cellphone found in the bag possessed by the accused. Cst. Murphy has an extensive curriculum vitae entered as Exhibit 13 . He has confirmed his awareness of his duty to the Court to provide impartial, fair and objective opinion evidence. Cst.

Murphy is in the Court’s view, well-qualified to provide complex opinion evidence with respect to the forensic analysis of electronic devices including cellphones, and well-qualified to undertake investigation of the issues raised in this case with respect to the existence of two cellphone numbers on the cellphone seized from the accused. Cst. Murphy followed the proper scientific method with respect to investigating the cause of the existence of two cellphone numbers linked on the cellphone seized from the accused: the number 403-679-1568 and the number 403-690-8794.

The key cellphone number in this case is 403-679-1568. The calls made to the complainant came from a cellphone displaying that number. This cellphone is a burner cellphone. The calls to the landline phone at the residence of the complainant came from a phone displaying that number, 403-679-1568. The test call from police to the cellphone found in the possession of the accused at the time of his arrest is the same number 403-679-1568. The forensic analysis undertaken by Ofc. Murphy was acquired to analyze the authentic cellphone number linked to the cellphone found in the possession of the accused.

The expert witness was tasked with conducting investigation of a forensic nature, to determine origin of the “two numbers” found in the cellphone. [ 26 ] The Court is impressed with the expert witness’s methodology. It appears he utilized the scientific method of developing various hypotheses, testing each hypothesis and discarding any hypothesis that did not accord with the function of the cellphone. Defence made reference to these various hypotheses developed by the expert witness as opinions. In fact they are not.

The Court accepts that the officer developed various hypotheses, testing those hypotheses in accordance with known facts, testing the data on the cellphone seized from the accused’s possession prior to arriving at a final expert opinion. The various hypotheses developed by Ofc. Murphy prior to arriving at his final opinion are as follows: 1. Hypothesis A – that one cellphone number was forwarding calls from another entity or individual to the second cellphone number. If this hypothesis was proved, it would lead to the possibility that there were two individuals with two cellphones.

This first hypothesis of the experts was disproved on examination of the “SIM card” in the phone that was seized by police. The SIM card interacts with the cellphone provider network using two numbers, the username, password and the account number. The expert witness disproved the existence of two separate SIM cards linked to two provider networks. 2. Hypothesis B – The expert witness retrieved the cellphone records for the cellphone number 403-679-1568 from the SIM card and compared these records to the application user log of the cellphone 403-679-1568.

The expert was able to match the cellphone records to the application user logs of the cellphone. In other words, as is reflected in Exhibit 3 the data from 403-679-1568 matched the cellphone application user log allowing the expert to determine that all the calls that were made in this case came from the cellphone seized from the accused at the time of arrest. That did not end the forensic investigation as the officer still was required to determine the relationship between the two cellphone

numbers displaying on the cellphone under analysis. The officer obtained Production Orders for each cellphone number to allow him to investigate further. The Production Order for the cellphone 403-690-8794 disclosed that there was no record of the SIM card for that phone being used during the period of relevance to the investigation in this case. 3. Hypothesis C – the experts tested the “My Number” setting on the cellphone in the forensic analysis.

He determined that the “My Number” function on the cellphone can permit editing, but that does not internally change the original number issued at inception by the cellphone manufacturer and provider. Essentially, the My Number function permitted a user to write a new number into the SIM card affiliated with the phone which will override the original phone number, for display purposes. The user of the cellphone, in the opinion of the expert, can “write a fake phone number” using the My Number application to override the original phone number on the SIM card.

However, overriding the original phone number in this manner on the SIM card does not effect changes to two key numbers which are recognized by all cellphone providers: ICCID and MC.

The final conclusion and proven hypothesis as a result of the expert witness forensic examination was that a cellphone user can change the My Number settings on a cellphone and “write it to the SIM card.” However, that number is written onto the SIM card is “ never transferred to the service provider .” The service provider recognizes only the ICCID for the purpose of associating that ICCID number to the account the service provider has on its business records.

The expert concluded that the cellphone user in this case endeavoured to change the cellphone settings using the My Number application from 403-679-1568 to 403-690-8794. This attempt to change the phone number by the cellphone user did not have any impact on the ICCID number recognized by the cellphone provider linked to the cellphone.

In simple terms, even though the phone number ending in the digits 8794 showed on display on the cellphone the phone number calling the complainant’s landline and the complainant’s cellphone is the phone number 403-679-1568, the original number linked to the ICCID number of the cellphone recognized by the service provider. [ 27 ] In cross-examination, further and important evidence was elicited from the expert witness.

This finding by the expert witness that the change of a number on the My Number setting on a cellphone does not change the internal and original cellphone number recognized by the cellphone provider; is in fact a new finding with respect to the operation and function of cellphones.

The cross- examination of the expert witness also confirmed that the SIM card for the material phone number ending in 1568 was not located in another cellphone device but rather that number was the authentic number of the seized cellphone. [ 28 ] The Court agrees that the essential issue in this case is the question of identity of the individual who committed the offences under sections 403 , 348(1) (b), 346.1 and 423(1) (

a) of the Criminal Code of Canada . The defence agrees that the essential elements of the offences that are charged in the multi-count Information have been made out and proved beyond a reasonable doubt with the exception of the identity of the perpetrator. The defence also admits that all of the seven counts alleging breaches of various orders pursuant to sec 145(5)(

a) have been proved beyond a reasonable doubt. [ 29 ] As the Crown submits in its brief, there is no issue with respect to credibility and reliability of the testimony of all of the witnesses who were heard in this case. The reason for that is that the witnesses themselves are credible and reliable and their evidence is in many instances, corroborated by police body-worn camera and other video evidence.

As the Crown says in its brief the narrative established through viva voce evidence and the video evidence proves the offences as charged beyond a reasonable doubt. [ 30 ] The Court agrees with Crown and defence that the only issue is the identity of the person who extorted the complainants, intimidated the complainants and committed a break and enter into the residence of the complainants with intent to commit an indictable offence, theft.

Defence concedes that the contents of the cellphone call and the wording of the text messages ( Exhibit 11 ) are authentic and that the elements of the offences of extortion and intimidation are established beyond a reasonable doubt. The Crown can prove identity by way of direct evidence and circumstantial evidence. This case is complex on the issue of circumstantial evidence as there are multiple aspects of circumstantial evidence which the Crown says join together to prove beyond reasonable doubt that Mr.

Smith-Lowe is the perpetrator of the break and enter into the residence of the Grossmans, the attempt to extort the Grossmans, the intimidation of the Grossmans, the impersonation of another individual at the time of arrest and of course the individual who breached all of the various counts relating to release conditions. The multiple types of circumstantial evidence presented in this case are summarized by the Crown in paragraph 11(

a) through (

f) of its closing submissions filed as an exhibit. The Crown submits, the Court agrees, that the body-worn clips from Cst. Friesen, Cst. Majewski, and the HAWCS video provide direct evidence with respect to multiple video views of Mr. Smith-Lowe’s arrest, his commission of the offence of impersonation, his possession of break and enter tools (crowbar) found inside an open satchel on Mr. Smith-Lowe’s person at the time of arrest. [ 31 ] The circumstantial evidence presented by the Crown in this case includes testimony from Dr. and Mr.

Grossman the complainants, the evidence of the possession of the cellular electronic device by the accused, the conclusion from the forensic analysis of authenticated cellular phone records and the opinion of an expert witness with respect to the forensic evidence contained within the seized cellular phone. [ 32 ] The Crown and defence both agree that the decision by the Supreme Court of Canada in R v Villaroman , 2016 SCC 33 , is the case that must be applied by this Court in its analysis of all of the circumstantial evidence. [ 33 ] The Crown and defence do not disagree on the process that the Court must use with respect to the drawing of reasonable inferences from circumstantial evidence.

The defence submits that there are other reasonable inferences inconsistent with guilt of the accused which may be drawn from the circumstantial evidence presented in trial. Defence submits that if there are other reasonable inferences which may be drawn from the evidence presented, that the Crown will need to negative other reasonable inferences, in order to prove identity beyond a reasonable doubt.

The Crown agrees that if the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused committed the offences as charged, that the Crown’s case identity is not proved beyond a reasonable doubt. In undertaking the analysis of the circumstantial evidence the Court must not analyze each piece of circumstantial evidence separately and the Court must not analyze each piece of circumstantial evidence out of context with the evidence presented in its entirety. R v Banovic , 2012 BCCA 471 at paragraph 27 .

The Court agrees that it is bound as well by the decision of Horner J. in R v Wheyee , 2019 ABQB 548 and in particular the cautionary principles identified by the court with respect to the process of drawing reasonable inferences at paragraph 94:

“ The trier of fact is cautioned against merely filling in blanks, jumping to conclusions, distorting or forcing the facts to fit a particular narrative as to what occurred. Similarly, the trier of fact is warned not to view and organize the information in such a way as to emphasize certain pieces of the evidence or to indulge in impermissible speculation and conjecture or to jump to conclusions .” [ 34 ] The Court is bound to proceed with the drawing of inferences in the two steps as outlined in R v Wheyee , supra .

In the first step, the Court must find that the facts from which the inference is to be drawn have been proved by the Crown beyond a reasonable doubt. The second step requires the Court to make an inference only from proven facts and only an inference that is reasonable, rational and logical. The Court accepts the definition of inference as found in Watt’s Manual of Criminal Evidence, 2011 ed as cited by the court in R v Balendran, 2012 ONSC 4016 at paragraph 19 .

The concept of inference drawing follows a logical and reasonable approach of deducing facts drawn from other facts found or otherwise established in the trial. Dealing first with the evidence based on breaches of various release orders binding the accused at the time of these alleged offences the Crown and defence both agree that the Crown has met the evidentiary burden with respect to counts 2,3,4,5,6,7 and 8.

Crown proves these counts beyond a reasonable doubt based on the evidence in Exhibits 1 and 2 as well as the credible and reliable evidence of the police officers, Constables Bryden, Friesen, Majewski and Van Hereweghe. The facts prove beyond a reasonable doubt leading to convictions on these counts proved that upon his arrest: 1. Mr. Smith-Lowe was not carrying release documents or written authorization from Probation; 2. Mr. Smith-Lowe was found behind a steering wheel of a motor vehicle for which he had no valid operator’s license, no certificate of registration and no proof of insurance; 3. Mr.

Smith-Lowe was on a motor vehicle, the Porsche, without the registered owner, Gary Warner being present; 4. Mr. Smith-Lowe was observed by police driving the stolen Porsche when he was banned from operating a motor vehicle and occupying the driver’s seat required to operate a motor vehicle; 5. At the time of arrest, Mr. Smith-Lowe was in possession of cannabis marijuana located in a satchel the latter of which was located around his neck; 6. Mr. Smith-Lowe did go into and out of a liquor store on October 24, 2021; 7. Mr. Smith-Lowe was in possession of a knife; and 8. Mr.

Smith-Lowe at the time of his arrest was bound by court order to keep the peace and be of good behaviour, however, on October 24, 2021 he was observed by police driving a stolen vehicle, entering and exiting a liquor store, providing police false identification evidence and not in possession of release documents. [ 35 ] Crown and defence agree that the evidence proves guilt beyond a reasonable doubt on counts 2 through 8 on the Information before the Court. The Court finds the accused guilty on counts 2 through 8 accordingly. Findings of Fact with Respect to the Remaining Counts [ 36 ] 1.

Exhibit 3, the usage report for the cellphone 403-679-1568 from October 19 – October 25, 2021 is an authentic and accurate document confirming the calls from the cellphone number 403-679-1568 for that time frame. 2. Over the period of October 21 – 24, 2021 five calls were made from the cellphone 403-679-1568 to the landline home phone of the complainant Dr. and Mr. Grossman, the said landline phone located within the personal residence of the Grossmans at 124 Canterville Rd. SW Calgary Alberta. 3. Cellphone number 403-679-1568 made 10 calls to the cellphone of Dr.

Grossman (403-830-6417) on October 24, 2021 and 3 MMS (texts) calls on October 24, 2021. 4. The cellphone 403-679-1568 found inside the satchel located on the person of the accused at the time of arrest on October 24, 2021 received a telephone call (a test call) after arrest from a police officer’s cellphone on 403-305-2975. 5. The cellphone 403-679-1568 made incoming calls to the landline phone at Dr. Grossman’s residence as depicted in Exhibit 4 the calls made on October 21, 22 and 24, 2021. 6. The cellphone 403-679-1568 sent 3 text messages to the cellphone of Dr. Valerie Grossman on October 24, 2021.

The phone number for Dr. Grossman’s cellphone used by the caller emanated from business cards in Dr. Grossman’s personal residence in her office. 7. The accused possessed at the time of his arrest, on his person, identification in the name of Aaron Malcolm and provided this identification to the arresting officer in a search incident to arrest following a request by the officer for the identification of Mr. Smith-Lowe. 8. At no time did Mr. Smith-Lowe have any lawful ability to be in possession of the stolen motor vehicle, the 2008 Porsche 911 belonging to Gary Warner.

The accused was seen driving this vehicle on October 24, 2021 immediately prior to his arrest

9. Arising from the testimony of a civilian witness, Ms. Wagner, the Court is making the following findings of fact:

a) On October 24, 2021, Ms. Wagner was out for a walk at approximately 12:15 PM. Ms. Wagner is a neighbour of the Grossmans. As she walked in the SW Calgary community of Canyon Meadows Ms. Wagner saw a sportscar back into the Grossman driveway. At this time Ms. Wagner knew that the Grossmans were away. Ms. Wagner also was aware that the Grossmans’ home that she was observing, had been broken into a few days earlier. Ms. Wagner saw a white man standing beside the sportscar. She walked closer. She made eye contact with the man.

He immediately got into the sportscar and left the Grossman residence at a high rate of speed. Ms. Wagner recorded the last three digits of the license plate of the sportscar as it drove away. Those numbers were 895. The accused would later be found in possession of a stolen Porsche sportscar with license plates matching the last three digits of the license plate observed by Ms. Wagner - 895. 10. The Grossman residence was the subject of a break and enter on October 21, 2021 which is confirmed by their daughter, the witness Lisa Cohen. The evidence of Ms.

Cohen establishes a break and enter to the residence causing damage to the exterior of a side door and damage to the home. Ms. Cohen is the witness who identified that personal property was missing from the residence or it was out of its ordinary place. Lisa Cohen also confirmed to the Court that her parents’ home is the subject of a second break and enter on October 24, 2021. Ms. Cohen is able to confirm that the repairs that they’ve made from the previous break and enter to the door had been torn off. Ms. Cohen observed that there was also a broken window and a door that had been “jimmied through.” Ms.

Cohen is also able to confirm that as she walked through her parents’ home her mother called her and asked her to check the residence landline call history and locate a phone number of a caller who had been calling on Dr. Grossman’s cellphone. That number on the landline’s telephone call history was 403-679-1568, the same number of the cellphone found in the possession of the accused at the time of arrest. Lisa Cohen was also able to confirm that the same cellphone number 403-679-1568 had made numerous calls to the Grossman landline phone on October 24 and on October 22 nd .

Items belonging to the Grossmans were stolen from the Grossman residence by the intruder. The Court accepts the evidence of the civilian witnesses, the complainants. 11. The evidence of Dr. Valerie Grossman establishes the fact that Dr. Grossman and her family are of the Jewish faith. They had resided at the 124 Canterville home for more than 50 years. The Court accepts that Dr. Grossman had a home office in the residence where she kept documents relating to her non-profit corporation. The Court accepts that the landline telephone number in the Grossman residence was 403-281-2104. Dr.

Grossman’s cellphone number was 403-830-6417. On October 24, 2021 Dr. Grossman did in fact receive a call to her cellphone from a man who told her his name was “Ryan Jenkins.” The incoming number was from 403-679-1568. Immediately after this call, Dr. Grossman is informed that her residence at 124 Canterville had been the subject of a break and enter for a second occasion. As Dr. Grossman proceeded to drive back to Calgary she received a second phone call from the number 403-679- 1568. The call was placed to her cellphone. She thought the voice was of the same quality as the person who had called earlier.

The Court accepts that during this second call Dr. Grossman was threatened by the male caller and was the subject of extortion by the male caller who demanded 1 million dollars and gold bars, failing which, Dr. Grossman would be harmed. During the same call the male caller made various anti-Semitic comments towards Dr. Grossman and her husband. In addition to cellphone calls, Dr. Grossman received text messages.

The Court accepts the evidence of the expert witness that this number displayed on the text messages was caused by the user of the cellphone changing the “My Number” settings in the iPhone to make it appear that the text messages were coming from 403-690-8794. In fact, the call displaying the text messages came from the authentic cellphone number 403-679-1568. The attempt to change the phone number display to 403-690-8794 was a ruse. The Court accepts the evidence of the expert witness on that point in its entirety. In particular, the Court agrees with the

summary of that evidence of the expert witness as outlined in paragraph 81 of the Crown written brief. The Court accepts the evidence of Dr. Grossman that her cellphone number, the cellphone which received the call from 403-679-1568 was the number printed on her business card inside her residence but not posted to Dr. Grossman’s Internet website. 12. The Court accepts the fact that the stolen Porsche motor vehicle was tracked by HAWCS helicopter on October 24, 2021 driving in the city of Calgary.

The vehicle proceeding into a liquor store and the driver of the Porsche exiting the Porsche and entering into the liquor store. The Court accepts the evidence of Cst. Mark Friesen and accepts the fact that the stolen Porsche motor vehicle was observed driving and then parking in front of the liquor store was occupied by the accused who was the individual who left the Porsche motor vehicle and entered into the liquor store. The Court accepts as a fact that when Mr.

Smith-Lowe was arrested moments later upon exiting the liquor store that there was a brown open satchel around his neck which was searched at the time of arrest. Inside the open brown satchel were located break and enter tools, cannabis marijuana and a cellular telephone which was later confirmed by the expert witness to have the authentic telephone number 403-679-1568. 13. The accused, at the time of arrest, provided a false identity to the arresting officer. This false name matched an identification card in the pocket of the accused which was in the name of Aaron Malcolm.

The license plates of the Porsche motor vehicle in which the accused was arrested was NZY895, the last three numbers matching the numbers identified by the civilian witness who saw a sports motor vehicle in the driveway of the Grossman residence on October 24, 2021. 14. The Court accepts the fact that Cst. Richard Diamond recorded on the body-worn camera the Grossman landline call display which confirmed incoming calls from 403-679-1568. Ofc. Diamond’s evidence with respect to the text messages received by the complainant entered as Exhibit 5 , confirm that text messages were from the same cellphone 403-679-1568.

Cst. Diamond actually called the cellphone number 403-679-1568. He did so after the arrest of Mr. Smith-Lowe and after the seizure of the cellphone found in the satchel of Mr. Smith-Lowe, the satchel being on Mr. Smith-Lowe’s person at the time of arrest. When Ofc. Diamond called this number the cellphone 403-679-1568 rang and Cst. Van Herheweghe answered the call. It was all recorded from body-worn camera entered as exhibits into trial. 15. It is a fact that after the arrest of Mr.

Smith-Lowe no further calls were received on the Grossman landline or on the Grossmans’ cellphone from the cellphone number 403-679-1568. The cellphone bearing that authentic number has been in police custody since Mr. Smith-Lowe’s arrest on October 24, 2021. 16. It is a fact that the cellphone calls and text messages received at the Grossman landline phone and by the Grossman’s cellphone between October 21 to October 24, 2021, both dates inclusive were sent from the cellphone in the possession of the accused inside a brown satchel on his person at the time of his arrest on October 24, 2021.

[ 37 ] The Court disagrees with the defence submission that the Crown must prove actual authorship of the cellphone calls and the text messages in order to prove the identity of the perpetrator. The Court does not accept the defence submissions on that point. The Court agrees with the Crown that at all times the Crown has to prove identity of the perpetrator of the offences beyond a reasonable doubt.

The Court now proceeds to the second step having made various findings of facts with respect to the inference drawing process. [ 38 ] There cannot be any other reasonable inference drawn from the vast amount of circumstantial evidence introduced into this trial other than that the identity of the perpetrator for every single offence in the Information is Tyler Smith-Lowe, the accused. Any other suggestions made by the defence with respect to other inferences that could be drawn are speculative.

If the Court follows the definition of the inference drawing process as outlined in the case law the Court can conclude that the only reasonable inference to be drawn is that the accused was the perpetrator who broke into and entered into the Grossman residence on two occasions October 21 and 24, 2021, the accused was the individual who stole items from the Grossman residence during the break in, the accused was the individual who made the calls of intimidation and extortion to the Grossmans, the accused was the drafter of the threatening anti-Semitic text messages sent to the Grossmans, the accused possessed the cellphone that he used to make the calls and texts at the time of his arrest.

Finally, the Crown has proved beyond a reasonable doubt that the accused attempted to impersonate another person to avoid collateral consequences associated with his arrest, the accused possessed break and enter instruments, the accused is the author and instigator of all of the offences described in counts 9,10,11,12 and 17 on the Information before the Court. The Crown has proved these counts beyond a reasonable doubt. The accused is guilty as charged. Dated at the City of Calgary, Alberta this 29 th day of August, 2023. H.A. Lamoureux A Judge of the Provincial Court of Alberta Appearances: D.

Spaner for the Crown J. Zahara for the Accused