R. v. Franklin and Aikman Date:, 2017 BCPC 312

Citation: R. v. Franklin and Aikman Date: 20170720 2017 BCPC 312 File No: 212803-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAYSON ANTHONY FRANKLIN ANDREW JAMES AIKMAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. R. GARDNER Counsel for the Crown: S. Wagner, A. Wilms Counsel for the Defendants: B. Jessop (for Franklin) M. Swartz (for Aikman) Place of Hearing: Surrey , B.C.

Dates of Hearing: Aug. 16, 17, 18, 19, 22, 31; Nov. 14, 15, 16; Dec. 2, 5, 2016 Feb. 20, Mar. 19 , 2017 Date of Judgment: July 20, 2017 [ 1 ] THE COURT: The accused are co-accused on Information number 212803 alleging 14 separate counts. [ 2 ] On August the 9th of 2014 at 10:28 a.m., a male believed to be Jason Franklin, entered an Esso gas station at 6422 120th Street in Surrey and could be seen purchasing and redeeming lottery tickets. The store video captures him wearing a red baseball cap.

He is also carrying a green/tan knapsack and wearing distinctive running shoes. [ 3 ] Later that same day, around 10:00 p.m., a 2007 white Ford F350, B.C. licence plate HS1968, is last seen near 20778 90th Avenue in Langley. It is later captured on video crossing the Golden Ears Bridge at 1:12 a.m., on August the 10th, heading northbound towards Maple Ridge. [ 4 ] At 2:32 a.m. a Chevron station in Maple Ridge is robbed by two masked men who smashed a front door while the cashier, Mr. Emery, is inside the store. One male throws an orange bin at him and commands him to put cigarettes into it.

He is wearing a skull mask. The second culprit is wearing a red bandana. The stolen merchandise includes 708 packages of cigarettes valued at $7,355; $70 in cash and lottery tickets valued at $12,550. [ 5 ] Store video reveals a white pickup truck matching the description of the stolen Ford F350 pulling up to the front doors immediately prior to the robbery. The truck was not reported stolen until five hours later. [ 6 ] The first male who entered the Chevron station is wearing a red baseball cap, black sweatpants with a white stripe and black shoes with white and grey markings.

The second male at the Chevron robbery, believed to be Andrew Aikman, is wearing a dark- coloured hoodie with a circle with wings graphics on the chest, as well as red Nike running shoes with white accents, red gloves and a red bandana. [ 7 ] At 8:04 a.m. on August the 10th, the stolen white Ford F350 is seen on video at the Petro-Canada station at 14419 104th Avenue in Surrey. It is being driven by a person believed to be Jason Franklin. The male passenger is seen wearing a hoodie similar to the one worn by the second male at the Chevron robbery in Maple Ridge.

The person believed to be the accused Franklin enters the store and checks 27 scratch-and-win lottery tickets, 23 of which had been previously shipped to the Maple Ridge Chevron station which had been robbed five and a half hours earlier. The person that entered the store also checked a Lotto Max ticket which was purchased from the Esso gas station the day before. In the Surrey Petro-Canada video, the male checking the lottery tickets is wearing a red baseball cap and black pants with a stripe down the side.

He is also observed to be driving a vehicle bearing a very similar resemblance to the one used in the Maple Ridge robbery. The male passenger, believed to be Aikman, is wearing a hoodie with a similar design to that worn by the second suspect in the earlier robbery. [ 8 ] Two days later, on August 12th, 2014, around 12:30 a.m., a 2000 red Cadillac Escalade, B.C. licence plate 378 WTE, is last seen by its owner in the area of 7120 133rd Street in Surrey. [ 9 ] At 3:19 a.m. that same morning, the Shell gas station at 5157 216th Street in Langley was robbed. It was closed at the time.

Two males were observed on video surveillance entering the store by using what appears to be a crowbar to pry open the front door. The door alarm triggered a police response. The culprits stole 40 to 45 cartons of cigarettes valued at more than $3,700. A red vehicle which matches the description of the recently stolen Escalade is parked by the front doors. The first male, believed to be Franklin, is wearing a black baseball cap, a dark green hoodie, dark blue jeans, dark-coloured running shoes with what appears to be red soles. He was deploying a tire iron during the robbery.

The two males are observed getting into a white pickup truck which matches the description of the stolen white Ford F350 that Franklin is observed driving at 8:00 a.m. on August the 10th while purchasing and redeeming lottery tickets at the Petro-Canada.

The second male, believed to be Aikman, is wearing Nike running shoes with red accents, red gloves, a red bandana and a blue hoodie with white or lighter-coloured drawstrings. [ 10 ] At 3:55 a.m. on August the 12th, Amardeep Kooner, an employee at Mac’s Convenience Store, was robbed by two men who stole cigarettes worth over $5,000, a cash register and a large safe. The Mac’s store is located at 13983 16th Avenue in Surrey. The first male, believed to be Franklin, is wearing a blue baseball cap, dark blue jeans, a green hoodie, a skull mask and black shoes with a grey/white accent.

He was using a similar and distinctive wrench as used in the Chevron robbery on August 10th. The second male, believed to be Aikman, is wearing black Nike running shoes with red accents, red gloves, a mask, a hoodie with white or white-coloured drawstrings and a red bandana. [ 11 ] Within minutes, Cst. Logan of the Surrey RCMP attended the Mac’s store that had been robbed and heard a radio update that a red SUV possibly associated to the robbery at that store, was travelling northbound at a high rate of speed on 128th Street in Surrey. Cst.

Logan attended at 140th Street and Crescent Road to set up stop sticks but before he was able to do so, a red sports utility vehicle passed him at a high rate of speed. [ 12 ] At 4:15 a.m., multiple 9-1-1 calls were made, reporting that two males had abandoned a red Escalade in a field located near 6671 121st Street in Surrey. Santosh Jamwal, one of the 9-1-1 callers, saw two white males moving back and forth between a red SUV and a white pickup truck in a parking lot beneath his bedroom window. Both vehicles’ engines were running. One of the males used an aerosol can to spray the red SUV.

The males then drove off in the white pickup truck. Mr. Jamwal could not see the licence number but believed the pickup truck could be a Ford. [ 13 ] At 4:16 a.m., Cst. Logan received an update that a red Cadillac Escalade had been recovered at 6671 121 Street. He also learned that the suspects had left in a white pickup truck. As he was heading to that location, he saw a white pickup truck almost run a

red light, slam on its brakes and slide into the intersection at 132nd Street and 68th Avenue in Surrey. Cst. Logan activated his emergency lights while the pickup accelerated and drove down 68th Avenue. He noted the licence plate number, DL4071, which was associated with the 2006 Ford F150 pickup which had been stolen between August 10th and 12th from 120th Street and 80th Avenue in Surrey. After seeing the stolen pickup swerve into oncoming traffic, Cst. Logan stopped his pursuit. [ 14 ] At 4:25 a.m., Cst. Yacyshn found the stolen red Escalade at 6671 121st Street in Surrey.

Its rear window had been shattered, the ignition had been punched and the stolen safe from the Mac’s store was found in the trunk, as well as numerous cigarette packages in the trunk. The interior of the vehicle had been pepper-sprayed. [ 15 ] On August 13th, 2014, the stolen white Ford pickup was located at 6:00 a.m. at 153rd Street and 66th Avenue. The windows and sunroof were open, the interior of the vehicle was wet. No items were located inside the trunk. [ 16 ] At 8:36 a.m., the police found numerous cigarette packages in the rear of the red Escalade. The interior was covered with pepper spray.

A tire iron was located behind a large metal safe which had been stolen from the Mac’s convenience store. An officer noted the strong odour of pepper spray inside the vehicle. [ 17 ] Later that day, at 3:49 p.m., a male believed to be Franklin, who was identified from surveillance video at the Walmart store at Guildford Mall purchases two Keno lottery tickets. These Keno lottery tickets were later recovered from the knapsack seized during his subsequent arrest. [ 18 ] At 7:45 a.m. on August 15th, the police commenced surveillance on 6762 130th Street in Surrey. [ 19 ] At 2:15 p.m., a taxi cab arrives.

A person believed to be Aikman leaves the residence and loads several sports bags into the trunk. Shortly after, Franklin and a female, later identified as Ashley Ulmer exit the residence. All three of them enter the cab and drove to 7488 King George Boulevard. [ 20 ] At 2:38 p.m., the cab stopped in front of the Bank of Montreal on King George Boulevard. Franklin goes to the rear of the taxi, then reaches into the trunk. Cst. Hughes initially drew his firearm but then holstered it because of public safety concerns. He ran and tackled Franklin to the pavement. He was arrested for outstanding warrants.

A can of pepper spray was found on Franklin. A green/tan knapsack was seized near the spot where he was arrested. Inside the knapsack were a number of lottery tickets. At the time of his arrest, Franklin was wearing a gold chain and black running shoes with red soles. [ 21 ] At 2:48 p.m., Aikman was removed from the taxi and searched. He is wearing black body armour. He is also wearing a black hoodie with a white logo on the front.

Aikman also had a red paisley bandana, a black and white mask with skull design, white and red Nike shoes, as well as red and black Under Armour gloves on or near his person at the time of his arrest. The police removed two sports bags from the trunk. A .22 calibre rifle was found in the Rawlings bag, a shotgun was located in the Onyx bag. Both firearms were loaded with live ammunition. Aikman’s DNA was discovered on the butt of a loaded magazine compatible with the rifle and found in the Rawlings bag. The only piece of clothing in that bag was a female jacket. A guitar case was also found.

POSITION OF THE ACCUSED [ 22 ] Mr. Swartz has submitted, on behalf of Mr. Aikman, that the clothing that has been submitted in evidence is generic and so common that it should carry little weight. He also argued that his client’s fingerprints were not found on either of the vehicles. Furthermore, a decision had been made to arrest Aikman even though he was unknown to the police prior to the takedown. Also, there is no evidence that Aikman ever tried to leave the cab prior to being pulled out by the police. He also submitted that the photographs of the person believed to be his client are inconclusive.

He acknowledges that a conclusion of guilt may be reached but is not the only possible explanation. As to the possession of the firearms, he submits that, in order to be found guilty, his client has to be found to have knowledge, consent and control of those items. As for the residence, Aikman was seen to be leaving, there is no evidence as to how long he had been inside the residence or whether he has any connection with that place. He also argued that Aikman was carrying those bags for only a matter of seconds and that the bags were closed. [ 23 ] Mr. Jessop has argued on behalf of Mr.

Franklin that the discovery of his client’s DNA on the firearm does not mean that he touched it as the officer he was struggling with at the time of his arrest also touched that item and it could have been transferred by the officer which the Crown expert conceded. It is also submitted that just because Franklin walked to the back of the cab, it does not mean that he had knowledge or control of what was found in these bags.

Furthermore, stolen vehicles are commonly used by multiple people which gives rise to a possibility that multiple people were involved in these robberies. [ 24 ] Counsel also argued that, in the absence of DNA on the firearms, there is no evidence of knowledge or control of those items. Furthermore, the shoes depicted in the photographs and video are of such a generic nature, they have no probative value. Counsel also argued that circumstantial evidence is not strong enough for a finding of guilt.

POSITION OF THE CROWN [ 25 ] The Crown has asked the court to consider both direct and circumstantial evidence that these crimes were solely committed by the two accused. [ 26 ] First of all, a Lottery Max ticket purchased by Franklin at the Esso gas station on August 9th is seized at the time of his arrest from a knapsack found near him. He is also seen carrying an identical looking bag in the Esso surveillance video. Franklin is seen wearing a red baseball cap similar to the one worn by a male observed in the Maple Ridge Chevron robbery on August 10th.

Franklin is seen carrying a green/tan knapsack similar to the one found at the time of his arrest. He is also seen carrying a similar bag at Walmart on August the 13th at 3:50 p.m. Franklin’s shoes are similar to the shoes worn by one of the males in the Maple Ridge robbery. [ 27 ] A white Ford F350 is observed around the time the stolen red Escalade is dumped after the Shell and Mac’s robberies on the morning of August 12th. Two men are observed getting out of the stolen Escalade and into a white pickup truck which was later

identified as stolen. Items stolen from both the Shell and Mac’s stores, that being cigarettes and a safe, are left in the red Escalade. When the white F350 is recovered on August the 12th, the attached licence plate had been stolen within the preceding 48 hours. [ 28 ] During the Chevron robbery, a white pickup truck matching the description of the stolen white F350 is visible pulling up to the front doors immediately prior to the robbery.

A person believed to be Franklin enters the Chevron store, is the same male who was seen on video checking lottery tickets which had been received by the Chevron store at the Petro-Can station five and a half hours later. The male believed to be Franklin, enters the Chevron store wearing a red baseball cap, black sweatpants with a white stripe, black shoes with white/grey markings. That person can be seen wearing the same items on the Petro-Can and Walmart videos.

Franklin was seen driving a similar white Ford pickup earlier, on August the 9th. [ 29 ] The second male involved in the Chevron robbery, believed to be Aikman, is wearing a dark-coloured hoodie with a circle with wings graphic on the chest which is the same hoodie he was wearing at the time of his arrest.

He is wearing red Nike shoes with white accents, red gloves and a red bandana, all of which were found in his possession when he was arrested. [ 30 ] On the morning of August the 10th, the stolen white F350 is observed at the Petro-Can store on 104th Avenue in Surrey being driven by a person believed to be Franklin who then enters the store and checks 27 scratch lottery tickets, 23 of which had previously been shipped to the Chevron station which had been robbed five and a half hours earlier. The person believed to be Franklin is wearing the same articles of clothing as in the Chevron robbery.

At the Shell robbery, the culprit was seen wearing clothing very similar to what Franklin was wearing at the time his arrest. The person believed to be Franklin was using a tire iron. The tire iron was later seized from the stolen Escalade. The two men observed getting out of the Escalade matched the description of the two males involved in the previous two robberies.

They also matched the general description of the two accused. [ 31 ] The two suspects get into a white pickup truck that matches the description of the stolen white F350 that Franklin drives into the Petro-Canada station to purchase or redeem lottery tickets. The recovered Escalade contains cigarettes and the safe stolen from the Mac’s store. The stolen Escalade is coated in pepper spray. Franklin was in possession of pepper spray when he was arrested. The second male involved in the Shell robbery, believed to be Aikman, is wearing similar clothing to what Aikman was wearing when he was arrested.

Merchandise stolen from the Mac’s store was found in the red Escalade. In the Walmart video, the person believed to be Franklin, is carrying a Rawlings bag and a knapsack similar, if not identical, to the bag seized when he is arrested. He is also wearing a red baseball cap and a gold chain. Franklin can clearly be seen getting out of the driver’s seat of the white F350 in the Petro-Can video. [ 32 ] The Crown also relies on the evidence of Cpl. Kokoros (phonetic) who has studied the videos and has identified the two accused before the court as being the robbers captured on the surveillance equipment.

LEGAL PRINCIPLES TO CONSIDER [ 33 ] As to the issue of what constitutes possession, I have been referred to the case of Madam Justice Holmes in R. v. Sanghera , a 2012 decision of our Supreme Court where, at paragraph 10 she states: All parties agree that the law defines “possession” as requiring knowledge, consent, and some measure of control. A person with physical or personal possession of an item must know what the item is, consent to having it, and have some control over it. The classic statement of the law appears in R. v.

Hess ... -- citation given, a 1948 decision of our Court Appeal, where the court stated: To constitute “possession” within the meaning of the criminal law it is my judgement, that whereas here there is manual handling of a thing, it must be co-existent with knowledge of what the thing is, and both these elements must be co-existent with some act of control (outside public duty). When those three elements exist together, I think it must be conceded that under s.4(1)(

d) it does not then matter if the thing is retained for an innocent purpose. [ 34 ] As to the law in relation to circumstantial evidence, I have been referred to the case of R. v. Chualna , a 2003 decision of our Court of Appeal where they quoted from a previous judgment of Chief Justice of McEachern in R. v. To , a 1992 decision of the B.C. Court of Appeal: I have reached the conclusion that it would be legitimate, on the broad facts of this case, to infer beyond a reasonable doubt that the accused knew the plastic bag contained a prohibited drug.

In fact, I think that would be the only reasonable inference which could be drawn. I believe that not just because the accused was found in physical control of the drugs, but also because of the highly suspicious circumstances and the immense quantity and value of the drugs. These facts make it so unlikely that such a large quantity of drugs would be entrusted to anyone who did not know what was in the bags that such a possibility may safely be rejected.

In addition, his antecedent, highly suspicious conduct, most of which was proven affirmatively before he gave his disbelieved evidence, make it impossible to draw any inferences which would displace the legitimate inference which may be drawn from physical possession that he knew what he was possessing. It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility.

The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty. I do not think it could properly be said that an inference of knowledge in this case would be unreasonable or unsupported by the evidence. CONCLUSIONS [ 35 ] In considering the evidence as to whether or not Aikman was in possession of the shotgun, I acknowledge there is a possibility that DNA could have been transferred during his struggle with the arresting officer, but it is noteworthy that his DNA was located on the trigger and the grip of the shotgun.

Whether or not he was in possession of these firearms has to be viewed in the context of the actions of the two accused over the preceding six days. There is a commonality of purpose that exist between these two people.

[ 36 ] Upon reviewing the evidence presented during this case, as well as the submissions of counsel and the relevant case law, I am in agreement with the submissions of Crown counsel that the two accused were partners in crime and committed this series of offences of which they are charged. They were participating in a series of robberies that were almost certainly interrupted by police involvement. [ 37 ] As for the issue of whether they had knowledge, consent and control of the firearms found in the sports bags, logic dictates that these are not the type of items entrusted to innocent third parties.

Given the series of robberies they have committed, each of them must have been fully aware that the firearms were contained inside the bags. [ 38 ] Taking into account not only the direct evidence but the circumstantial evidence as has been presented to the court, I am led to the only possible conclusion that the two accused committed all of the offences for which they have been charged. [ 39 ] Accordingly, I find Mr. Aikman and Mr.

Franklin guilty of Counts 1 through 8, and Counts 13 and 14 of the indictment, where they are individually charged with possession of firearms and Counts 9, 10, 11 and 12, I find each of them guilty as well. (REASONS FOR JUDGMENT CONCLUDED)