R. v. Israel Date:, 2013 BCPC 107

Citation: R. v. Israel Date: 20130412 2013 BCPC 0107 File No: 227076-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROGER HENRY ISRAEL EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. GOVE Counsel for the Crown: J.L. Horneland Counsel for the Defendant: G.K. Lee Place of Hearing: Vancouver , B.C. Date of Judgment: April 12, 2013 [ 1 ] THE COURT: Mr. Israel is charged on an information proceeded with by indictment, nine counts that relate to allegations of

entering a dwelling house, robbing the occupant, assaulting the occupant with a weapon and then assaulting and threatening various people who attempt his apprehension. He is also charged with possession of instruments or tools that are intended to be used to break into residences as well as possession of a weapon, being bear spray, and possession of stolen property, binoculars, stolen from the residence. [ 2 ] The evidence unfolds as follows. Wendy Dubois, her husband Jeffrey Dubois, and their 21-year-old son, Daniel Dubois, live in a dwelling house at 1143 The Castings, Vancouver.

On July the 8th, 2012, Wendy and Jeffrey Dubois returned from a trip. On the morning of July the 9th, Jeffrey Dubois left the house to return a rented vehicle. As he was to be gone for a short time, he did not lock the front door of the house. Wendy Dubois remained in bed sleeping in her bedroom, as did Daniel in his. When Wendy Dubois heard a noise in the house, including someone coming up the stairs to the second floor where her bedroom was located, she assumed that Jeffrey had returned home. The door of the bedroom opened and she was shocked to see the accused about to enter.

She flung off her bed sheet and yelled, "Get the hell out of my house." He ran down the stairs with her following him screaming, "Help, help, robber." [ 3 ] The accused ran out the front door with Wendy Dubois following. Outside the accused stopped and turned to look back at Wendy Dubois. He sprayed at her with a can of pepper spray causing her pain and distress. Daniel Dubois heard his mother yelling. He jumped out of bed and still in his underwear ran out of the house past his mother and towards the accused. He was also sprayed by the pepper spray. [ 4 ] Dennis Deatley lives in a townhouse next to the Dubois.

He was outside of his house when he heard Wendy Dubois screaming. The accused came directly towards Deatley who put up his hands to stop the advance. The accused threatened and sprayed Deatley with pepper spray causing his eyes to burn. The accused ran towards Deatley causing Deatley to run into a sign from which he received an injury; cracked ribs. Daniel was running towards them. The accused ran off with both Deatley and Daniel chasing him. The accused turned and pepper sprayed them again. The accused ran up a staircase leading to a parking lot that was directly above the street where the incident commenced.

Deatley followed behind and pulled a backpack off of the accused's back. The backpack fell to the foot of the staircase. The accused continued to climb to the top of the stairs with Deatley and Daniel following. [ 5 ] Michael Briscoe [phonetic], a Parks Board employee, was working in the vicinity when he heard Wendy Dubois screaming. He saw Daniel and Deatley chasing the accused. He joined in the chase. The accused was pushed to the ground on several occasions by Deatley and Briscoe. He eventually submitted to those chasing him. During the altercation the accused brandished a small knife.

Briscoe escorted the accused back to the Dubois residence. On the way the accused wanted to retrieve his backpack. Deatley went ahead and took the backpack which eventually ended up on the front lawn of the Dubois' residence next to where the accused was when the police arrived. [ 6 ] Jeffrey Dubois returned home during the latter part of this incident and identified his binoculars. They had been in the den of the house and they were found in the backpack of the accused. Police Constable Leonard Smith was one of the officers who attended. He entered the Dubois house and could smell pepper spray inside.

Police Constable Wien [phonetic] arrested the accused, searched the backpack where he found numerous tools and seized his clothes. [ 7 ] The accused testified that he was in the area of the Dubois home on his bicycle that had a flat tire. He left the bicycle and was walking past the Dubois home when he heard yelling and he was accused of doing a break-in. He says that he was then chased by three men. He admits that he did have pepper spray on him and he admits that he sprayed it. He denies spraying Wendy Dubois, however. He denies having been in the Dubois house and he denies having taken the binoculars.

He further denied having a knife. [ 8 ] The issue raised by the accused in this trial is the identification of him as the man who was in the Dubois house. There is no question he was the man that was chased and caught and held for the police. [ 9 ] Wendy Dubois testified that the man who had been in her house was wearing gloves whereas none of the others involved in the chase saw gloves. Aside from this apparent inconsistency, Wendy Dubois' evidence on identity is strong.

She saw his face a few feet from her in her bedroom long enough, she says, that she was able to, "Stare him down." She followed him outside and was eight feet from him when he turned towards her and sprayed pepper spray at her. She kept him in her view as, "She did not want him to leave my sight until someone came to my rescue. I wanted him to get caught." [ 10 ] She was certain that the backpack that was returned to her lawn was the one that the accused had been wearing.

When asked if it was possible that the man who was in her house and pepper sprayed her was different from the one arrested, she said, "No, it's not possible." Corroborating her evidence is the binoculars that were taken from the house and were found in the accused's backpack. [ 11 ] The accused also submits that his evidence should raise a reasonable doubt when one considers the principles of R. v. W. (D.). I did not find the accused's version of events to be believable.

His stark denial that he was not in the house in spite of the clear evidence of Wendy Dubois that he was, corroborated by the binoculars taken from the house found in his backpack, leave no doubt that his version of events are simply not true. [ 12 ] His evidence that he has no idea how the binoculars came to be in his backpack is not credible. His version of events of the chase are so at odds with the other witnesses that I doubt his veracity. I reject the evidence given by the accused as simply not being able to be believed.

It certainly does not raise a reasonable doubt. [ 13 ] The area in which the incident of the break-in and the chase took place was a very small area. The accused was clearly seen by Mrs. Dubois leaving her house and being pursued by her son and others.

I am satisfied beyond a reasonable doubt that the accused is the man who entered the Dubois house, was about to enter Wendy Dubois' bedroom when she confronted him, was chased by her out of the house, he sprayed her with the pepper spray can that he had on him when he entered her house, and he was eventually captured and returned to the Dubois lawn by the three men who chased him. [ 14 ] With respect to Counts 1, 5 and 8, they relate to Wendy Dubois.

I am satisfied that he broke and entered her house, he committed a robbery by stealing the binoculars while armed with an offensive weapon, the pepper spray, and he assaulted her using the pepper spray as a weapon.

[ 15 ] Counts 2 and 9 relate to Dennis Deatley. I am satisfied that he uttered a threat to him and that he assaulted him using the pepper spray as a weapon. [ 16 ] Count 4 relates to Daniel Dubois. I am satisfied the accused assaulted him using the pepper spray as a weapon. [ 17 ] Count 6 relates to Jeffrey Dubois.

I am satisfied that the accused had possession of Jeffrey Dubois' binoculars that had been stolen from his house. [ 18 ] Count 3 is he had possession of pepper spray as a weapon dangerous to the public peace or for the purposes of committing an offence, and seven, he did possess numerous tools suitable for breaking into a place under circumstances that give rise to an inference that the tools were intended to be used for such purpose. [ 19 ] He is guilty on all counts. [ 20 ] I now invite counsel to make submissions either now or shortly with regards to the application of the principles of Kienapple . (DISCUSSION RE MORNING RECESS) (PROCEEDINGS ADJOURNED FOR MORNING RECESS) (PROCEEDINGS RECONVENED) (SUBMISSIONS) [ 21 ] THE COURT: Okay.

So convictions will be recorded on Counts 1, 2, 3, 4, 5, 7 and 9, and there will be a conditional stay of proceedings on conditions [sic] 6 and 8. (REASONS CONCLUDED)