R. v. Gray, 2018 BCPC 89

Citation: R. v. Gray 2018 BCPC 89 Date: 20180316 File No: 218522-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. TYLER MATTHEW GRAY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.M. WOLF Counsel for the Crown: A. Lee Counsel for the Defendant: C. Paquette Place of Hearing: Surrey , B.C. Dates of Hearing: March 12, 13, 14, 2018 Date of Judgment: March 16, 2018 1. INTRODUCTION [ 1 ] These are the oral reasons for judgement in the matter of R. v. Tyler Matthew Gray . I note that Mr.

Gray is in custody, and we have continued this matter today in hopes that he might be able to conclude the trial sooner, rather than adjourning the matter for weeks or months from now for a more complete judgement.

[ 2 ] The brief facts are that a person with a knife walked into liquor shop and grabbed a cash drawer, smashed it on the ground, took some cash and exited the store. The face was covered so people at the scene are not able to identify the robber. However, a thumbprint was located on the cash drawer and the Crown submits that the print is from Mr. Gray, and was deposited there when he robbed the store that night. Identification of Mr. Gray as the one who committed the robbery is the main issue. 2. CHARGES ON INFORMATION 218522-1 1.

Tyler Matthew Gray, on or about the 29 th day of July 2016 at or near Surrey, in the Province of British Columbia, did rob Terry Lyn Vibert of monies contrary to Section 344(1) (

b) of the Criminal Code . 2. Tyler Matthew Gray, on or about the 29 th day of July 2016 at or near Surrey, in the Province of British Columbia, with intent to commit an indictable offence, did have his face masked, contrary to Section 351(2) of the Criminal Code . 3. Tyler Matthew Gray, on or about the 29 th day of July 2016 at or near Surrey, in the Province of British Columbia, did carry or have in his possession a weapon, to wit, a knife, for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to Section 88(1) of the Criminal Code . 3.

BURDEN OF PROOF AND STANDARD OF PROOF [ 3 ] Defence, quite properly, began their closing submissions with some of the most fundamental concepts to our Canadian justice system. [ 4 ] The Crown has the primary or ‘legal’ burden of proof throughout the trial and must prove all the elements of the actus reus and mens rea for each of the offences alleged. [ 5 ] The accused is presumed innocent until the Crown proves guilt to the standard “beyond a reasonable doubt.” T his standard of proof applies to the evidence as a whole, but generally not to individual facts. 4. CASE

SUMMARY FOR CROWN [ 6 ] The Crown called an investigating officer, a forensics expert, a cashier, and other store employees who were at the liquor store that was robbed. There is also video surveillance that has been provided that essentially shows a masked individual entering the liquor store, interacting with people in the store and obtaining money from a cash drawer that is part of a cash till. He was armed with a knife during this event. 5. CASE FOR DEFENCE [ 7 ] There was no defence called.

However, the main argument for the accused is that the Crown has failed to prove the elements of the offences beyond a reasonable doubt. More specifically, that Mr.

Gray was not identified beyond a reasonable doubt as the perpetrator of the crimes on July 29, 2016. [ 8 ] In short, the defence relies on the perfectly legal proposition that there can also be a reasonable doubt based on the absence of evidence or a simple failure of evidence to persuade me, as the trial judge, beyond a reasonable doubt. [ 9 ] Interwoven throughout the case for the defence is the proposition that the fingerprint relied upon by the Crown in this case is potentially flawed or unreliable. In short, I am asked to give it little weight. 6.

ISSUES [ 10 ] The main issue in this case is: has the Crown proven beyond a reasonable doubt the identity of the accused? Or to put it another way, has the Crown proven beyond a reasonable doubt that the accused Mr. Gray was the one who robbed the Clayton Liquor Store on July 29, 2016? If he was, it is admitted that the elements of the other charges have also been proven. That is, he was masked and in possession of a knife for a purpose dangerous to the public peace. [ 11 ] Evidence of identification is limited.

First, while a video of the robber exists, it only shows a tall, thin, person, wearing certain items of clothing. It does not show his or her face, which is covered with a bandana. As well, the eyes are covered by sunglasses. [ 12 ] One witness was Ms. Vibert, a cashier. She was at one of the cash registers when the robber came into the store. She testified that the robber came in through an exit door and walked up behind her without her seeing him. [ 13 ] Was she able to identify the accused as being the robber? She told the court that he was tall.

By her best estimate the robber was ‘tall’ perhaps six-foot three or four. On the topic of height, I note that the Crown asked me to acknowledge that Mr. Gray was quite tall. I pointed out that I was not in a position to estimate his height as there were two computer screens that blocked him from my view when he walked into the prisoners dock. I note that for most of the trial he was seated, and as such I am not in a position to estimate his height. I do note, however, that there is a Corrections document in evidence that indicates that Mr.

Gray is 188 centimeters, which is almost exactly six-foot two inches. [ 14 ] What about the idea that the robber had a tattoo on his neck and does that descriptive feature match Mr. Gray’s tattoos? Ms. Paquette argues that the lack of a tattoo on Mr. Gray is “exculpatory” evidence that exists and supports a finding of an acquittal due to the Crown not having proven identification beyond a reasonable doubt. When the robbery was happening, Ms. Vibert, the cashier, thought she could see a tattoo on his neck. This is what she told a police officer in a statement taken about a month after the robbery.

She testified in court that she now believes it was not a tattoo, but it may have been the bandana that covered the robber’s face and neck area.

[15] One way or the other, I have no information as to whether Mr. Gray has any neck tattoos. If he does, they are not listed on hisCorrections document, although there is mention of other tattoos. [16] I have been asked to take Judicial Notice that Mr. Gray does not have any tattoos on his neck. I do not do so. From my vantagepoint I am limited in what I can see - as mentioned, there are two computer monitors between myself and Mr. Gray. At one point in thetrial, he did gesture his neck in my direction and at a quick glance I note there does not appear to be any overly visible markings on hisneck.

What were the markings possibly seen by the witness? Was it one side, the other or back of the neck? There are no details inevidence. I was not invited to take a close look and examine Mr. Gray’s neck. In any event, in my view, whether he has a tattoo or not isnot of much help as I am hesitant to rely on Ms. Vibert’s identification of the robber. In my view, even if the witness said there was aspecific tattoo and the accused had a specific tattoo, I would give very little weight to that evidence.

The cashier was startled, and theinteraction between her and the robber was limited in time, the whole event lasting only a minute or two. No doubt the interaction was ina stressful environment and I must be careful as to how much weight I give any of her descriptions. I do note that the video shows therobber as being significantly taller than Ms. Vibert. As well, Ms.

Vibert recalls this height difference and says she specificallyremembers this fact, because, as she said with a smile, she is so short. [17] One witness recalls that in her opinion the robber was Caucasian, and for what it is worth, I observe the accused appears to beCaucasian. [18] Other than being tall and Caucasian, what is being relied on? In this case the Crown has led evidence of a fingerprint or, morespecifically, a thumbprint. This circumstantial evidence that is being tendered is the foundation in which the Crown submitsidentification has been proven beyond a reasonable doubt. 7.

CIRCUMSTANTIAL EVIDENCE [19] When we rely on fingerprint evidence, we are really considering circumstantial evidence. [20] In R. v. Field, 2016 BCPC 423, I surveyed some of the authorities on circumstantial evidence. In Field the issues involved thefrailties of dock identification, which are different than the issues in this case, but in my view the points on circumstantial evidence are agood reference point when considering fingerprint evidence. At paragraph 26 of that decision I rely on the guidance of our SupremeCourt of Canada; Ms.

Paquette also relies on the following propositions of law: [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 negativethese reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful,which might 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. 8. FINGERPRINT EVIDENCE A. What does the fingerprint prove, if anything? [21] The issue of whether a single fingerprint can be proof of guilt beyond a reasonable doubt has been the main issue in many casesover the last twenty years.

[22] R. v. O'Neill, 1996 CanLII BCCA 976 at paras. 4-6 of that BC Court of Appeal decision, the court writes: [4] The facts are not complicated. Sometime between the 6th and 9th of March, 1994, the above-named Church was burglarized andseveral items were stolen including a computer and telephone answering machine. [5] The evidence linking the appellant to the break-in was a single latent fingerprint found on the outside of a box which was locatedinside the Church. The box contained some intercom equipment and had been stored in a credenza behind the secretary's desk.

Theequipment had been purchased by the secretary in 1989 from the Radio Shack at Hillside Mall and used until 1991 when new equipmenthad been installed. At that time, the secretary put the intercoms into the box and returned the box to the credenza in her office. The boxhad not been moved at any other time nor was there any evidence that anyone else at the Church had touched that box.

The evidencewas that during the burglary it was moved into the lounge area. [6] The appellant gave an explanation that during the ages of 13 to 16, he had regularly, on almost a daily basis, attended theHillside Mall to play computer games at the Radio Shack and he might well have touched this box during one of these visits. He wenton to testify that merchandise was stored all over the store and that boxes containing similar intercom equipment could very well havebeen among that merchandise.

As I stated earlier, the only evidence the Crown tendered linking the appellant to this crime was the latentfingerprint on this intercom box. [23] The accused was not believed, but the court made it clear that a trial judge must be careful when dealing with cases where thereis simply a fingerprint.

At para. 21 the true test of whether the Crown’s case was restated by the majority: [21] In this situation, the print being the only evidence linking the accused with the crime, the trier of fact must certainly give carefulconsideration to all of the circumstances surrounding the print, its location and whether in the final analysis the presence of thefingerprint was consistent with the innocence of the accused.

To put it another way under the rule in Hodge's case, was the printconsistent with the accused's guilt and inconsistent with any other rational hypothesis or conclusion? [24] The BC Court of Appeal has made numerous rulings from that time period up to and including 2017. Notably, and not wantingto overstate the conclusion, and in full appreciation that each case turns on its facts, R. v. Hoppe, [2017] BCCA 25 at para. 12 found: …as the cases indicate, a single fingerprint can support a conviction: see R. v. O’Neill (1996), (BC CA), 71 BCAC295; R. v. Gauthier, 2009 BCCA 24; R. v.

Chudley, 2015 BCCA 315. [25] In Hoppe, a single fingerprint was found on the underside of a cash register. An explanation as to how it may have gotten therewas provided by the accused. The court concluded that in the absence of a credible explanation for how Mr. Hoppe’s fingerprint cameto be on the underside of the cash register, it was open to the trial judge to find that it was placed there when Mr. Hoppe moved the cashregister away from the front counter of the restaurant. [26] From this concept, Ms.

Paquette differentiates the circumstances of the Hoppe case and our case, pointing out that thefingerprint in Hoppe was on the underside of the drawer, where one might not be located unless it was moved, as was alleged; versushere, a print was found on top, where there were many indicators that many people had touched the till. [27] On this point, to me it is less significant that there are indicators of other people touching the drawer. If a print was located, thatprint might have been explained by some evidence. The question is not how many people touched the drawer, but what can I makeabout the fact that Mr.

Gray touched this drawer? [28] R. v. Frank, 2011 BCSC 1716 is a decision from 2011 that I find useful in its examination of fingerprints andcircumstantial evidence. It is an older case; however, it surveys much of the law around fingerprints. I have reviewed most of the casesreferred to in Frank, including R. v. Ricketts, 2011 BCCA 4302 and R. v. Samuels, 2009 ONCA 719 . [29] The facts of the case in Frank are basically that four men kicked down a door of a house and bound two victims. Neither of thevictims was able to identify the intruders.

A single fingerprint of the accused was found on a piece of duct tape used to bind the victims. The defendants argued that “there are other reasonable explanations aside from the guilt of Mr. Frank. The Crown argued that “the onlyreasonable explanation for Mr. Frank’s thumbprint on the duct tape is that Mr. Frank was one of the offenders…” [30] In my view, the arguments with respect to Mr. Gray are parallel. The Crown contends that the only explanation for thefingerprint was because it was Mr. Gray who committed the robbery as depicted on the video. [31] Ms. Paquette, counsel for Mr.

Gray, would contend that there are other plausible, reasonable alternative inferences that thecourt can consider, without speculating. [32] On page 3 of her written submissions, Ms. Paquette states that “the scene had been disturbed prior to the police arriving.” Ihave been shown a photograph where a garbage bin is in one picture laying down, and in another standing up properly. It is in theimmediate vicinity of the cash drawer. Witnesses were quite clear that, in their view, nothing was touched before the police came. It isargued that the pictures show that something was touched.

It is further argued that customers were coming and going, and Mr. Graymay have been one of the individuals who came in or went out or somehow, during this time, period touched the drawer. The Crown, inreply, is correct when they submit for me to create an imaginary possibility that Mr. Gray might have been in the store is, to use theCrown’s word, “speculative.” To me, without having some sort of foundation for this conclusion, it is pure speculation.

I also note thatthese pictures or differences regarding the garbage can were not specifically put to any witnesses. [33] Further, it is argued that the court must evaluate the strength and weight of the fingerprint evidence. On the strength of thisargument, while I note I have already ruled on the admissibility of the expert opinion of Cst. Sloan, it is still true that counsel can point toflaws, frailties, or other concerns to do with the opinion, and question the weight her opinion might have.

In short, it is open for Ms.Paquette to submit that the fingerprint is inherently unreliable and thus not suitable circumstantial evidence upon which to safely found aconviction.

[34] On this topic, I pause to mention that I provided some reasons on a voir dire in this matter concerning an application by theCrown to have the court receive expert evidence from Cst. Sloan with respect to fingerprint evidence. I note that the Constable, at thetime of her involvement in this matter, was junior in her experience with fingerprints. As such, Ms. Paquette’s argument that theConstable was somewhat limited in her “training, knowledge and experience” is one that I have put my mind to.

However, as Crownmentioned in reply, she was an officer for quite some time, she has been mentored by experienced forensic specialists, and has beenaccepted in the RCMP as a person with specific training in the arena of forensic identification. [35] I recognize that even when it comes to expert evidence, and equally applicable to all witnesses, if I believe certain aspects of aperson’s testimony, I should ask myself why I believe them on these points. Equally, if I, for some reason, do not believe them, I shouldask myself why. As well, does the evidence make sense?

Even if I believe certain aspects of a person’s testimony, I still must besatisfied that the evidence is cogent and logical. [36] I found Cst. Sloan’s evidence to be clear, concise and delivered in a fair professional manner. She did not appear to overstatematters and openly admitted what she did, why she did it, and how she has improved or changed her methodology. [37] I accept her conclusion that a print was found on the cash drawer that belongs to the accused, Mr.Gray. I did not find heropinion to be biased. [38] The only real question is, what can the court make of the thumbprint? B.

Is the fingerprint only consistent with a conclusion of guilt? [39] In R. v. Ricketts, 2011 BCCA 402 the British Columbia Court of Appeal examined the meaning of a fingerprint. Theyconcluded basically that just because you touch something - that does not make you guilty of a crime, wherein at para. 12 the court heldthat: Evidence which establishes that at some time the appellant … pressed his hand against a part of a cabin window … does not provebeyond a reasonable doubt that, at that time, he had formed the intention to break into the cabin and had actively taken steps to do so.

Ido not consider it reasonable to conclude otherwise. The evidence of the appellant’s fingerprints cannot be said to be inconsistent withany conclusion other than guilt. [40] The argument that flows from this passage is, even if I accept that Mr. Gray had his thumbprint on the cash drawer, does thatnecessarily mean that he is the robber? C. Is there a connection to the cash drawer? [41] In Frank, and other cases, the court examined whether there was any other explanation that might explain why and when thefingerprint was deposited on the duct tape or the other particular item that an accused potentially touched.

In Frank, the court consideredwhether the accused had any connection to the tape. For example, could he have touched the tape at another time? In other words,Frank considers the connection between the accused and the tape. They found that since there was no connection, then they could drawan inference that he was one of the offenders. [42] In this case, there is no distinct or obvious connection between Mr. Gray and the cash drawer.

Did he ever work at the liquorstore or have anything to do with the creation of the store? [43] While I recognize the argument being made in written form at page three of defence’s written submissions is we “do not knowthe life of this till,” I note that Ms. Lowe provided evidence. She is one of the owners of the company that installed the money till. Theprocess described was that the item was shipped to the company, brought to the store by the installers, put in place, and to the best ofeveryone's knowledge not taken out since the instalment.

To the best of her knowledge her company was solely responsible for theshipping, unpacking and installation of the drawer, and this company had never had Mr. Gray as an employee. [44] It was also confirmed from the manager of the store that at one point the store was located across the street and was shifted toits new location. He was clear that it was only Ms. Lowe’s company, and the liquor store employees that accomplished the move. Thistopic was covered quite well in my view, and I accept that Mr. Gray's fingerprint was not deposited on this cash drawer while he wasworking for either of those companies. D.

Is there anything else that assists me in placing the fingerprint into an evidentiary context? [45] In R. v. Samuels, the Court of Appeal for Ontario examined comments made in R. v. Mars, (ON CA) whereinDoherty J.A., writing for the court in Mars, said at para. 19: The probative value of fingerprint evidence depends on the totality of the evidence. Fingerprint evidence will almost always affordcogent evidence that the person whose fingerprint is left on the object touched that object.

However, the ability of the fingerprintevidence to connect an accused to the crime charged will depend on whether there is other evidence capable of establishing that theaccused touched the object at the relevant time and place so as to connect the accused to the crime. [46] The court in Samuels had the benefit of other evidence. There was an eye witness account who could say when and how thefingerprint was deposited. There was also a separate piece of evidence, a forensic footprint to back up their testimony. [47] In Mr. Gray's case, there is also a separate piece of evidence - the video footage.

It shows a person doing something. Anumber of witnesses have confirmed the general timing of the event. This timeframe was also confirmed by the video. In short, thefingerprint shows up exactly in a place and a time that is consistent with eyewitness accounts and video footage. [48] Ms. Vibert also testified that she saw the robber take both hands, place them on either side of the drawer and remove the

drawer. Her motions were consistent with the general actions of the robber on video. 9. AM I SATISFIED BEYOND A REASONABLE DOUBT THAT THE ONLY CONCLUSION I CAN DRAW FROM THE EXISTENCE OF THIS FINGERPRINT IS THAT THE ACCUSED IS GUILTY? WHAT ARE THE CIRCUMSTANCES OF THE FINGERPRINT? [ 49 ] Ms. Paquette passionately and ably argues that the fingerprint is flawed or, at least, we cannot be certain that it was dealt with properly. [ 50 ] First, and this is done subtly and respectfully, especially in the context of the court’s ruling that Cst. Sloan is an expert, it is argued that Cst.

Sloan is not yet a specialist in the eyes of the RCMP and thus the court should question or at least be careful with respect to her evidence. On this point, I have already provided reasons as to why she was qualified as an expert. And I do not automatically accept her evidence on every point. For example, the Crown put a question to her after she viewed the robber taking the cash drawer out of its position. The Constable was basically asked whether the details of the print were consistent with what she saw on the video. Her answer was yes. But I put little weight on her conclusion.

Mostly because I do not know how she reached that conclusion. Further, I believe it is my role as trier of fact to make this determination. However, in my view, Constable Sloan was not asked, nor did she offer, any great details as to why she came to this conclusion. For example, was the pressure consistent with the print? Were there any tests done as to where a print might land for a person with hands generally the size of Mr. Gray - or anyone? I agree that my own layperson viewing of the video surveillance leads me to the conclusion that the robber may have had a thumb in the approximate area as to where Mr.

Gray’s print was located. However, other than Cst. Sloan saying ‘yes’, which happens to coincide with my view, ‘yes’, I have no other expert context upon which to consider her opinion. [ 51 ] Second, it is argued that the fingerprint expert was flawed in her approach. For example, she did not take notes of certain events in her methodology for this case that she would for a case she has done more recently. Cst. Sloan openly admitted to having changed her practice in some respects from the time she worked on this case in 2016 to her practice today in 2018.

I do not find her approach at the time of her work on this case was flawed as much as the approach she might take on a more recent case is improved. [ 52 ] Third, there has been an issue of what I would call ‘verification’. This to me is an important issue that I must resolve in this case. The submissions of defence are found in paragraph 5 of their written argument. [ 53 ] As was elicited from Cst. Sloan, the evidence shows that fingerprinting in itself is not necessarily a science. While it may have qualities of a scientific approach, its methodology is what distinguishes it from educated guessing.

There has been much evidence and many submissions given on the importance of ‘verification’. I do not wish to get distracted by the reality that sometimes in these cases an additional expert is often called at the trial. The second expert essentially ‘verifies’ the work of the first. [ 54 ] To me the verification process is useful and can create an additional confidence in the fingerprinting process. For the RCMP this ‘peer review’ verification process might even provide an additional layer of objectivity, which may increase the reliability of the fingerprint opinion evidence to be provided.

However, in my view ‘verification’, and proof of it, while perhaps important, is not necessary. In my view it potentially leads to a different set of problems. If the argument is, this officer is limited in experience, and the one who verified the findings is also junior, should the court not then seek further evidence of a more senior person verifying the work of the first two. And so on. [ 55 ] For me, as the trial Judge, verification is less important than examining the strength of the expert’s opinion. Is the opinion solid, logical, unbiased, cogent, based on all the information and reliable?

If there is any doubt as to its reliability, then in my view, it would be dangerous to solely rely on a fingerprint and find a person guilty of a criminal offence. [ 56 ] On the topic of verification, while not raised by counsel, I note that I am aware of cases in Canada which are similar. R. v. Pakula , 2017 ABPC 33 is a case from last year. It is an Alberta authority, and as a result I appreciate it is not a binding authority. In that case, a single thumbprint was found on a TV mounted on a wall of a home that had been broken into.

This thumbprint was the sole evidence upon which the Crown sought a conviction for breaking and entering into that home. Defence argued that the fingerprint expert had not provided any proof of verification of the print and thus argued that the print in itself was unreliable. It was argued that it was the only circumstantial evidence available for the court to consider and it would be improper to found a conviction on it. The court agreed.

In that case there was no evidence as to where the TV was from or how it got there, and the learned trial judge found that without some sort of other evidence, it would be improper in law to convict a person on an unverified single thumbprint. But our case is different. [ 57 ] Who deposited this print? I accept Cst. Sloan’s testimony that the print was of sufficient quality to conclude that the fingerprint was made by Mr. Gray. Detailed evidence was provided on this topic. There were a minimum of 15 quantitative characteristics of agreement.

In simple terms, the evidence is very compelling that the print found is from Mr. Gray. I have no doubts about this at all. [ 58 ] Where was it deposited? It was on a cash register drawer. Ms. Paquette argues that the drawer was in a public area and anyone, including Mr. Gray, could have touched it. Respectfully, I disagree. That drawer was not readily accessible to anyone other than employees of the store. It was an item that one might even label as quite ‘private’, in the sense that it held money for a business.

Not just anyone would be able to lean over a counter and start touching it. [ 59 ] It was not easily movable and the installer was of the view that once installed, it would not have been removed. Ms. Paquette argues that we have no way of knowing how old the till is or what its history is. The argument that is made is that Mr. Gray could have touched the till at a different time and place. Once more, as I mentioned, we do know an extraordinary amount of detail. We know where the drawer was made, who it was mailed to, and how it was installed. I suppose there is some imaginary world that Mr.

Gray worked on the assembly line down in the southern United States where this drawer was made, but this would require a speculative leap. [ 60 ] After installation, the manager of the store and employees confirmed that the drawer was probably not even regularly cleaned, which of course may explain why there were so many smudges on the top portion front area which has been described as a high traffic area.

[61] How was it deposited? Was the orientation of the print consistent with the inference of guilt? Yes. It was in an angle exactlyconsistent with the video depiction of the robber taking out the drawer. Specifically, it was on the left top, and it was the left thumbprintof Mr. Gray, and it was on the front top portion of the drawer. So its placement, angle and general positioning are all only consistent withan inference of guilt. [62] What else can I consider? Is this consistent with other testimony or evidence? Oral evidence was provided that is consistentwith the timing and placement of the print.

That is, the witness saw the robber place both hands on the drawer, and her motions wereexactly consistent with the left thumb being placed in the area that the video described. While not caught in any detail by words, I didnote for the record the motions that Ms. Vibert made with respect to how she saw the robber touch the drawer. The description andvideo are consistent with the fingerprint evidence. [63] Is it consistent with any other explanation provided? There are no alternatives to consider and thus any other conclusionswould be pure speculative guessing on my behalf. [64] I conclude Mr.

Gray was the one who walked into the liquor store on July 29, 2016 and committed the offences of robbery,while having his face masked, and while armed with a knife. [65] I find that the Crown has proven the elements of the offences on Information 218522 beyond a reasonable doubt and I find Mr.Tyler Matthew Gray guilty of robbery, having his face masked contrary to

section 351 and being in possession of a weapon, specificallya knife, for a purpose dangerous to the public peace contrary to section 88(1) of the Criminal Code. [66] In reaching the above conclusion, I wish to acknowledge that there is another legal analysis that I could have relied on thatwould equally take me to a finding of guilt on all Mr. Gray’s charges. [67] Starting with the great and Honourable Judge Lilles from the Yukon Territory in the case of R. v.

Smarch, 2003 YKTC 63: Inference From Fingerprints on the Garbage Bag [17] A number of reported cases have determined that fingerprints found on a container or wrapping alone are insufficient to establisha finding that the accused was guilty of possession of the contents: R. v. Kuhn (No. 1) (1973), (SK CA), 15 C.C.C. (2d)17 (Sask. C.A.); R. v. Breau (1987), (NB CA), 33 C.C.C. (3d) 354 (N.B.C.A.); R. v. Mehrabnia, [1993] O.J. No.2717 (Ont. Ct. J.). [18] The Supreme Court of Canada had occasion to consider this issue in R. v.

Lepage, (SCC), [1995] 1 S.C.R. 654.One of the issues considered was whether the trial judge was entitled to infer that the accused had possession of the drugs in a bag fromthe fingerprints on the bag itself. The court concluded that whether or not the inference of possession can be drawn from the presence offingerprints on the bag is a question of fact, which depends on all the circumstances of the case and all the evidence adduced.

The Courtalso noted that the trial judge was entitled to draw an adverse inference from the accused’s failure to offer an explanation for thepresence of his fingerprints on the bag, once the Crown had established a prima facie case. The fact that the prints were found on theoutside of the bag, rather than on its contents, is merely another factor to be taken into account, but the fact that the accused’sfingerprints were on the bag was “clearly highly probable of possession of the drugs”. [My emphasis.] [68] Also, The Honourable Judge Merrick in the case of R. v.

Pryce and Defaveri, 2012 BCPC 361 , 2012 BCPC 0361which is a case where I, as counsel, became painfully aware of the possible reasonable inferences a Judge can make with respect to asingle fingerprint. In that case Mr. Defaveri had a bloody fingerprint found at the scene of a crime, which also happened to be his home. It was the only evidence that convicted him of aggravated assault for which he received a significant sentence. I acknowledge casesinvolving single fingerprints are often very triable. And thus, I do not believe accused people should be penalized for asserting theirright to a fair trial.

While they might not benefit from the mitigating features of a guilty plea, I can understand the decision to take amatter to trial, when there is only a fingerprint, is tempting. In Pryce and Defaveri, the Honourable Judge Merrick perfectly captured thelaw on circumstantial evidence when he wrote: [20] The proper approach to prosecutions that rely on circumstantial evidence has been summarized as follows in R. v. Butler, 2007BCCA 526 at paragraph 13, quoting from R. v.

Cooper: It is enough if it is made plain to the members of the jury that before basing a verdict of guilty on circumstantial evidence they must besatisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. [21] Circumstantial evidence is considered cumulatively. As the learned authors of The Law of Evidence in Canada, 2nd Edition,Markham, LexisNexis, 1999, have stated … [27] Each piece of evidence need not alone lead to the conclusions sought to be proved.

Pieces of evidence, each by itselfinsufficient, may however, when combined, justify the inference that the fact exists. [28] Where the number of incriminating facts each established by proof on a balance of probabilities reaches a certain thresholdstanding together, then an inference of guilt beyond a reasonable doubt will become irresistible. [29] As Justice Irving and Justice Clement concurring expressed it in R. v. Jenkins, [1908] B.C.J.

No. 52, a decision of the Full Court: It is true that a man is not called upon to explain suspicious things, but there comes a time when, circumstantial evidence havingenveloped a man in a strong and cogent net-work of inculpatory facts, that man is bound to make some explanation or stand condemned.

[30] This quotation and approach were endorsed by the British Columbia Court of Appeal in R. v. Dae , [2010] B.C.J. No. 2136 , a case in which a conviction based on circumstantial evidence was upheld. [31] In Dae , Justice Prowse for the court stated: The trial judge was aware that he could only find knowledge on the part of Mr. Dae if it was the only reasonable inference to be drawn from the evidence. In his view, the evidence called by the Crown in this case was sufficiently compelling to invoke the principle from R. v.

Jenkins . . . [32] As in all prosecutions built on circumstantial evidence, the case at bar requires the court to be mindful of the distinction that exists between inferences drawn from proven facts and mere conjecture or speculation. An inference capable of satisfying a trial judge beyond a reasonable doubt that an accused committed an offence must rest upon and be drawn from a foundation of proven facts.

By parity of reasoning, an inference inconsistent with guilt that is capable of raising a reasonable doubt must also rest upon and be drawn from a foundation of proven facts. [ 69 ] I do not rely on this perfectly acceptable legal reasoning as to me it almost gives an appearance of shifting the onus onto the accused. To me the essence of the presumption of innocence is that the accused need never call evidence. His right to remain silent is always at the core of his right to a fair trial.

In this way, the burden on the Crown to prove each element of the offence beyond a reasonable doubt is always on the Crown. [ 70 ] In this circumstance, they have met their burden and Mr. Gray while found guilty of the offences, is now guilty, not because he did not call evidence on his own behalf, but because the Crown have met their burden and proven each element of the offences charged beyond a reasonable doubt. [ 71 ] In short, there is forensic identification evidence that is clear and only consistent with the guilt of the accused.

It is independently corroborated by information seen on the video surveillance as well as witnesses from the scene. [ 72 ] This concludes these oral reasons. The Honourable Judge A.M. Wolf Provincial Court of British Columbia