R. v. Lake Date:, 2014 BCPC 229

Citation: R. v. Lake Date: 20140606 2014 BCPC 0229 File No: 232691-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. STAFFORD MARVEL LAKE EXCERPTS FROM PROCEEDINGS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. MEYERS Counsel for the Crown: P. Stabler Counsel for the Defendant: H. Gawley Place of Hearing: Vancouver , B.C. Date of Hearing: June 6, 2014

Date of Judgment: June 6, 2014 [ 1 ] THE COURT: This is a charge against Mr. Lake that on January 23rd of this year in Vancouver, he broke and entered business premises at 6464 Fraser Street and committed an indictable offence, theft, therein. [ 2 ] There are two issues that come about in this case, both really centring around whether or not Mr. Stafford Lake was the person who broke into those premises on January 23, 2014. The defence and Crown both agree that those premises were broken into. They were broken into on January 23, 2014, and whoever did break in there, broke in and committed a theft.

The only issue in this case has to do with the identification of Mr. Lake as the person who did break into that premises, or whether I have some doubt as to whether Mr. Lake was the person who broke into the premises. [ 3 ] The cases that are relevant in this particular type of inquiry are the cases that surround recognition identification, and also cases that surround the weighing of evidence when an accused testifies on his own behalf. The latter leading case, of course, is R. v. W.(D.) . [ 4 ] With respect to the recognition line of cases, there are a number of leading cases in that area.

I will give the cites a little later on, but one is R. v. Panghali , one is R. v. Anderson , one is R. v. Leaney , and one is R. v. John . [ 5 ] In this particular case, what we have are four witnesses for the Crown: two are parole officers who dealt with Mr. Lake, and two are police officers who dealt with Mr.

Lake in the past. [ 6 ] Now, the law as it is set out in the recognition cases is relevant here, because a video was playing of the break-in taking place or at least, I should not say the break-in taking place, the evidence agreed to by defence and Crown is whoever was shown in the video had broken into the premises and had gotten in through sawing or making a hole in the bottom of the wall of the office building, and it was through that wall that the two people who are depicted in the video had broken the wall and come in with break-and-enter tools. [ 7 ] It is agreed that, while in the premises, there is a clear view, in the submission of the Crown, of the man with a pry iron trying to pry open a safe, with that person using a hammer and a chisel, and then an electric drill and a screwdriver to try to open the safe in that particular office.

There is the view of the defence that the quality of the video is not good. The view of the Crown, as I said, is that the quality of the video is very good. [ 8 ] There is very little seen of the other person in the video. All of the video seems to show the one person, who the Crown alleges is Mr. Lake, performing various deeds inside the office. [ 9 ] The defence has argued that each of the four witnesses called on behalf of the Crown to identify the person in the videos as Mr. Lake are faulty, and at least their evidence should cause a reasonable doubt to be had by the trier of fact, myself, that that was Mr.

Lake. The defence cross-examined each of the four witnesses in great detail about their prior contacts with Mr. Lake, how much time had been spent with him at each of those contacts, over what period of time they had seen him, and brought forward, in his cross- examination, that none of them had seen him in quite a long time between, I think, 18 months and two years prior to the January 23, 2014, date. [ 10 ] The defence also called Mr. Lake himself, who testified that he was in bed at home on the early morning hours of January 23, 2014, when this B and E took place.

He filed medical reports showing that he had a whole variety of ailments that would mitigate against him being able to make the movements and do the things that the Crown say he did and were shown in the video on January 23, 2014. [ 11 ] The medical evidence that he put forward, by way of a recent letter from his doctor, showed that he had multiple respiratory disorders, that he needed some wrist surgery, he has arthritis in his foot, hips, and knees, and the defence said that for this man, who is, I believe, 65?

Sixty-five, to have, with all of these ailments, gone to that store, cut a hole in the wall, and then climbed through that hole in the wall, and then engaged in all this physical activity for an hour and a half to two hours in total, would not have been reasonably possible for Mr. Lake. [ 12 ] The fact that he, defence says, had to cut a hole in the wall, crawl through the hole, pushes a desk aside, moves large boxes, and then crawls out of the wall, and then stands doing the crowbar work or pry work and using the electric saw, as well as hammer and chisel, are far too onerous to have been done by Mr. Lake. Mr.

Lake, of course, in his testimony agrees with that, he says he did not do that, he could not do that, and he was at home the night of the B and E. [ 13 ] Mr. Lake testified that he had no other corroborating evidence, but that was because he lives alone and, according to the medical reports, he is pretty well a loner most of the time and gets anxiety when he is with groups of people. [ 14 ] Mr. Lake had offered speculatively, I think is the way to put it, that although this person does have certain resemblances to him, it was not him.

He suggested that he had a brother, an older brother, three years older, who lived in Nova Scotia, who people constantly misidentified he and his -- mistook, rather, he and his brother. But the Crown, when they cross-examined him, indicated that he had been estranged from his brother for some 12 years, had not seen his brother in 12 years, and had no reason to believe he was in Vancouver on the evening or the early morning of January 23, 2014. [ 15 ] It should be said, of course, that the accused does not have to solve the crime for the police and, as I say, this was speculation on his part.

He did not name his brother as being the B and E person. He was simply saying that other people look like him, including a brother who looks identical to him. There is no obligation on him to, as I say, solve the crime for the police or explain who did it. All he has to do is say he did not, he was at home, and give his evidence, as he did. [ 16 ] I now go first to just outline a little bit of the law on recognition evidence. It is my view that recognition evidence is a matter of recognizing particular features of an individual, as well as, if possible, idiosyncrasies of that person's appearance. The more

idiosyncrasies that somebody can point to, I agree, should make the recognition stronger than simply a description of particular featuresof no real idiosyncrasy with respect to the individual. [17] The case law tells us that recognition can be from the basic, bare, "I recognize him", no reasons given as to on what basis thatrecognition is made, to he had a particular limp, he had scars, he had tattoos, and all kinds of other idiosyncratic characteristics of theindividual.

Most cases will fall somewhere in between those. [18] I agree with the case law that if somebody simply says, "Well, I recognize him, I know him," and that is it, and that is all wehave, that that is a very, very weak form of ID. On the other hand, if a person is able to recognize particular characteristics or features ofthe individual as they knew him to appear, and they looked at the video and say, "This is the same, this is the same, that is the same,"then that does carry some weight.

The amount of weight will depend on their past history with the individual; how often they saw him,when they saw him, their particular circumstances surrounding their sightings or visits with him.

For example, somebody who has a veryquick, passing view of somebody on maybe one or two occasions would certainly have less weight than somebody who has had multipleinteractions with the person, some fleeting, some sitting down and talking, and, of course, depending upon over what period of time, howfrequent, and how recent those interactions were. [19] The case that I first quote is Panghali, and that was a decision fairly recently, R. v. Panghali, 2010 B.C.

Supreme Court, and inthat decision by Madam Justice Holmes there are a number of facts and pieces of law that she has taken from other decisions of othercourts. [20] In particular, I am going to quote at page 3 of the Panghali decision, paragraph 4.

She says in that case: At the heart of the dispute concerning the admissibility of the evidence is whether and to what extent the law requires that the witnessoffering the lay opinion be able to articulate the basis of the recognition by reference to the recognized person's particular features or[and my emphasis is on "or"] idiosyncrasies as shown in the video. [Emphasis added] [21] Paragraph 5 goes on to say: Mr. Tammen for the defence submits that the test for the admission of lay opinion "recognition" evidence is as described by Mr. JusticeHarradence [in his] dissenting [opinion] in R. v.

Leaney [which I will go over later] (1987) . . . 1987 ABCA 206 , 55 Alta L.R.(2d) 362 . . . He submits that the witness must therefore be sufficiently familiar with the accused to be both aware of the unique featureswhich form the basis of the lay opinion, and able to articulate (by reference to particular features or idiosyncrasies shown in the video)the basis of his or her lay opinion. [22] Now, in the case of R. v. Anderson, 2005 BCSC 1346 at paragraph 25, Mr.

Justice Smith, as he then was, said the following andprovided an extensive review of recognition evidence and its admissibility -- I should say she, not he -- she noted that the recognitionevidence is evidence as to the identity of the accused that is generally based on past association with that individual. She summarized asfollows her review of the case law concerning the indicia of sufficient familiarity for admission, and that is the paragraph 25 I referredto. She says: In

summary, the case law suggests that the indicia for determining whether the threshold degree of familiarity for the reception ofrecognition evidence has been met is threefold: (

i) the length of the prior relationship between the witness and the accused; (ii) thecircumstances of the prior relationship between the witness and the accused; and, (iii) the recency of the contact between the witness andthe accused prior to the event where the witness recognized the accused.

The indicia also go to the weight to be assigned to therecognition evidence along with two other factors, namely: the cumulative effect of recognition evidence provided by more than onewitness and the circumstances under which the witness recognized the accused. [23] So just adding onto that last piece, here we have four witnesses who have testified as to the recognition of the accused in thevideotape. What Madam Justice Smith is saying there, that there can be a cumulative effect of recognition evidence provided by morethan one witness.

So the fact that there are four witnesses here of various abilities to articulate and recall specific similarities orcharacteristics, unique or otherwise, to Mr. Lake is certainly a significant factor of the judge's consideration of the whole of the evidence,as far as recognition is concerned. [24] So in other words, if one witness is weak, two witnesses are weak, three witnesses are weak, or four, they can still all togetheradd up to sufficient strength of proof beyond a reasonable doubt as to the identity of the accused as the person in the videotapes.

Here, Iwill go into it later, but I am not suggesting that all of the witnesses were weak in their identification of Mr. Lake. [25] The next case to which I refer is R. v. Leaney, the Supreme Court of Canada, I have already given the cite, and in that one, thatcase is of the Supreme Court of Canada, and generally is regarded as the main decision on recognition identification. [26] In the Leaney case, the trial judge originally had admitted the evidence of five police officers who each testified theyrecognized the accused in a videotape of a robbery.

In the Court of Appeal, it was common ground that he had erred in doing so, and thatwas because four of the officers had no previous acquaintance with the accused and were therefore in no better position than the trialjudge to say whether or not persons shown in the video were the accused. The fifth officer was in a different position. He had knownone of the accused since childhood and had spent time with him shortly before the two incidents.

[ 27 ] In her majority reasons, Madam Justice McLachlin said the admissibility of that officer's evidence ought to have been determined as a preliminary matter but was clearly admissible, in any event.

In the result, the majority upheld the robbery convictions because the trial judge had independently satisfied himself by viewing the videotape that the accused was shown in. [ 28 ] So that last line again brings to another point in this particular case where I, as the trial judge, had the opportunity to view the videotape of the person in the office, and also to view the accused as he presented himself in court during the day-long trial, that is while he was sitting at counsel table, and then also to observe him while he was in the witness stand. [ 29 ] The basis on which lay witnesses are able to provide evidence to the court is that each witness has to be in a better position than the trier of fact to make the recognition.

Each witness must articulate the basis on which he or she made the identification. That comes from page 9, paragraph 31 of the Panghali decision. [ 30 ] One last comment on the law, and that comes from the case of R. v. John , 2010 ONSC 6085 , and at page 12 of that judgment, and that is when the judge in the Panghali case was going over the Supreme Court of Canada decision in Leaney , the observations made by Madam Justice Holmes in the Panghali case, she makes these observations at paragraph 38 of her decision: [Mr.

Justice] Code did observe that if "a lay . . . witness could offer little more than a bare conclusory opinion that the accused is the man depicted in the photo or video of the crime, without providing any underlying basis for the opinion, then the evidence would be of little or no probative value and would be prejudicial because of the cross-examiner's inability to test its weight" . . .

He accordingly considered the articulated bases of the lay opinions, in admitting them into evidence. [He] found the witnesses able to satisfactorily articulate the basis for their lay opinions . . . -- and the defence had sufficient ability to cross-examine those witnesses, and the court had sufficient ability to evaluate the weight of those evidences. [ 31 ] She goes on to say at paragraph 42 of Panghali : Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail.

But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or [again] idiosyncrasies that underlie the recognition. [ 32 ] She goes on to finalize her judgment by saying: That said, a complete inability to respond to questions about the basis for the opinion may, even in a person long familiar with the subject identified, call into question the value of [their] opinion. [ 33 ] When each of the witnesses gave evidence for the Crown identifying Mr.

Lake as the person shown in the video, defence did a cross-examination extensively of each witness, trying to point out the weaknesses in their past observations of Mr. Lake, in order to cast some doubt on the reliability and weight of their recognition evidence. [ 34 ] The first witness called by the Crown was Ms. Sehmbi, I believe it is spelled S-e-h-m-b-i. She was a supervising parole officer when Mr.

Lake was in Belkin House between January of 2011 and January 2012, and she said that she recognized him right away when she saw the picture that was sent to her. [ 35 ] I pause there to say what the police did is they took a still picture from the video, which showed the suspect in the office break-in looking front-on into the camera. The picture was sent to the parole office and Ms. Sehmbi looked at it, and her evidence was, "I recognized him right away," meaning Lake. [ 36 ] She said the picture was somewhat blurry. I agree that the printed picture was somewhat blurry.

She said that she often, after he stopped being in the Belkin House, which she said would be a period of time, and then she often saw him daily, or once a week even, between January of 2011 and January of 2012, and afterwards into 2013, because he would often be at the Vancouver Parole Office where she would go for meetings. So she had a number of years, from 2009 until 2013, to have viewed him a great many times, most predominantly between February of 2009 and August of 2009 when he was in Belkin House.

I believe she said also, though, that he did return to Belkin House between January 2011 and January 2012. [ 37 ] In any event, she says that she saw him daily sometimes during that period, and weekly at other times. So we have a long history of her being both face to face with him and in passing seeing him. [ 38 ] She was asked what it was about the video or what was it about the photo that she saw initially, that was taken from the video, and then she was asked about the video, that causes her to believe that Mr.

Lake was the man in the picture that she got, taken from the video, and he was the man in the video. She said he had grey hair, he had glasses, he had a rather unique grey beard which was a goatee. He had a pot belly, as she described it. His glasses were similar glasses he wore in the past and he was slow moving.

She said those are features that she recognized as being in the picture and/or video. [ 39 ] She says that she had not seen him in about a year, but she said that the glasses he wore and the other body type descriptions and hair and glasses, the hair and the pot belly were very similar, if not identical, to what she recalls him as looking like. [ 40 ] Defence cross-examined that in the photo and on the video, the man is not wearing a cap with any logos. His glasses, you cannot see the colour of his eyes. You cannot see the nose very well. No scars or tattoos on either side.

There is nothing significant in the clothing that he was wearing that would be able to match up to what he used to wear or what they saw him.

[ 41 ] The defence also points out that a significant amount of time has come and gone, and that during that time everyone changes their appearance somewhat. She was very steadfast in her evidence that she was able to look at him and come to the conclusion that he was the man. She did not have any specific idiosyncratic observations, but the general ones of grey hair, glasses, unique beard, and the pot belly and slow moving were, to her, instant recognition of Mr. Lake.

She was not given any indication who it was, except she was sent the thumbnail by one of the Vancouver Police and asked because, she says, as a Parole Board supervisor and parole officer, she would routinely be sent pictures of all kinds of people, whether they were under her parole, on parole, or just the police were looking at as a potential suspect in some crime or other. She had no advance notification that anyone had suggested the person that was depicted in the photo thumbnail that she got was indeed Mr. Lake.

She came up with that on her own. [ 42 ] Another parole officer was called, Diane Yumazuki [phonetic], and she has been a parole officer since 1988, I believe. She was supervising as a parole officer for Mr. Lake when he was at Belkin House. She said she was his supervisor from February 2009 to August of 2009, the same period that Ms. Sehmbi had talked about, Sehmbi was the supervisor. She says she supervised Mr.

Lake for about two and a half years in total. [ 43 ] She said initially he had been reporting to her about eight times a month for three months, then four times a month after that, and then between January 2010 and January 2012, she saw him daily. She has not seen him since January of 2012. She said that he pretty much looked the same in face, body type. She saw the photos sent to her and she said she recognized him as Stafford Lake immediately as well. [ 44 ] She says the reasons she identified him, given the number of times and close proximity that she had seen and been with Mr.

Lake, involved his grey beard and grey moustache, the colour of his hair, his nose, the glasses that he wore, and she said that there are no distinct identifying characteristics, just that he was the right size, shape, colour, and approximate age as the man that she had dealt with over the years. [ 45 ] She said that the picture that was sent to her was a little blurry, but she could still make him out. She said she was a hundred percent sure it was Mr.

Stafford Lake. [ 46 ] Defence brought out, in his able cross-examination, that she was not able to articulate the basis for the assertion, that is what she ultimately admitted, but during the course of her evidence she did give, as I said, some indications of the grey beard, grey moustache, and the goatee type arrangement, and the colour of the hair and the way the glasses were normally worn. [ 47 ] We then moved over to Constable Gray, who is a police officer of 15 years. He met Mr. Stafford Lake in the fall of 2009.

He last saw him in October -- October 22nd of 2012, the last date he saw him in person at his residence. He was going there to check whether Mr. Lake was still living there. He said he talked to him there for a few minutes, he was with another officer. [ 48 ] He says that between 2009 and 2012, he saw him a dozen times, and also in addition to seeing him, although briefly each time, he had seen monthly photo pictures of him.

I am not sure why he would be seeing that, but in any event he did see month pictures of him between 2009 and 2012, as well as the viewings of him a dozen times between that time of 2009 and October of 2012. The dozen times would include the one time on October 22nd when he went to Lake's residence and talked to him for a few minutes in person. [ 49 ] He said, in his evidence, that Mr. Lake looked the same today as he did in the past, except for slightly different glasses. He described him as recalling him to be six foot to six foot six inches tall, heavy build, heavy paunch.

He said he recognized Lake in the video, he said, beside the clothing, hat, and glasses, he looked the same today as he did in the video. He said he recalled him always having a goatee, always having a moustache, and he particularly recalls how he held his cigarette. He said he holds a cigarette between his index and middle finger.

He says the way he holds a cigarette between those two fingers, he says, is unique because, although he is not a smoker, he says he never saw anybody that held a cigarette in that fashion; that is, between the index finger and the middle finger. [ 50 ] He says that he has a recognizable paunch, but so do many other people. He says there was something unique about his stance, his posture, and his bodily movements, and that he lacked a distinctive jaw line.

This, he says, were all of the features that led him to come to the conclusion that when he looked at the picture, the thumbnail that was originally sent to him on, I think it is called the -- what is it called, the . . ? [ 51 ] MR. STABLER: Patrol Board. [ 52 ] THE COURT: Patrol Board, he had a little thumbnail there and he looked at him and he knew instantly that is who it was. He notified the officer who had put up the thumbnail looking for whoever was depicted in the thumbnail.

He also sent to one of his former partners, who was the next witness on the stand, an email saying, "Take a look at this," and "that is your friend," meaning it was an invitation to Officer Bentley, who he sent it to, to tip him off, according to defence, that Gray was satisfied that the person that was depicted was Mr. Lake, and referring to him as his friend was colloquial and police, I suppose as in other groups, have a way of referring to somebody who is well known to the other as his friend, even though he is not a friend.

In any event, that goes over to Bentley and I will talk about that in a minute. [ 53 ] He says, in cross-examination, again ably done by counsel, that he agreed that many people smoke cigarettes in many different ways. He says that he simply has not seen, he said, anybody who seems to hold the cigarette in that unique way, and just hold it there kind of endlessly in between puffs, and he says that he recalls very clearly that Mr. Lake did smoke cigarettes, did smoke them in that way. He also recalls that this is one of the best surveillance videos he had ever seen.

He said that in terms of clarity, he said that this video taken in the inside shop was particularly good, and that view was reiterated by all three of the other witnesses. [ 54 ] He said he also saw, from his point of view, as a distinctive feature the lack of a distinctive jaw line, and he said he saw that in person on Mr. Lake, he saw it on the thumbnail, and he saw it in the video as well. [ 55 ] He said that he was only at Mr.

Lake's house on October 22, 2012, for about five minutes, but he did say that he had seen him a dozen times, but only once, he admitted, up close and personal for that address verification in October of 2012.

[ 56 ] He said, "I recognized Lake instantly from the thumbnail photo on the -- photo that was sent to me on the Patrol Board." That was filed, of course, as Exhibit 2. [ 57 ] He said the reasons, he reiterated in cross-examination, the lenses, glasses or lenses were dark black or dark brown. He says the stems were always thick stems, straight stems, similar to what he always wore and what the person is wearing on the video. He said he had a pointed nose. He said again the distinctive way he holds a cigarette.

He said the goatee is distinctive too, and the way he moves was distinctive as well. [ 58 ] Defence counsel cross-examined that many people have goatees, many people can hold a cigarette that way. He agreed that many people have goatees, but said that this was distinctive in the shape and the colouring of the goatee and moustache. He also said that he had not -- he repeated he had not seen any people hold a cigarette in that same way. [ 59 ] He also commented on the way he moves, which was slow and deliberate, and looking in the video, the movements are indeed slow and deliberate. He said that Mr.

Lake had not changed over the years. He had not seen him since October of 2012, but he said his look never changed, his goatee never changed, his holding of the cigarette he saw in the video was always the way it was held, and he described a really unique way. [ 60 ] He said that his job as a police officer, particularly in the unit that he is working, is to pay specific attention to the way a person looks, so that he is sure that he is identifying the person he is supposed to when he does address verifications.

He said that in all ways that I have described, he says that he had no trouble at all picking out Lake from the picture that was sent to him, the thumbnail, thumbprint, rather, and from watching the video as well. He called his walking as lumbering slowly around, and that indeed is the way I would see the person's manner of walking while in the video that I had seen. [ 61 ] The next witness was Constable Bentley, and he testified that he had had in the past three actual dealings in interviews with Mr. Lake: one in September of 2009, one in October of 2010, and one in February of 2013. He said he saw Mr.

Lake on about six other occasions in various locations, including at 312 Main. He also said, "I saw regular photos of him once a month, depending upon the circumstances, between September 22, '09 and February of 2013." [ 62 ] He said that on September 22, 2009, he was alone in a room, just the two of them, for about 15 to 20 minutes. October 2012, he was with Constable Gray to do the address verification. He agreed they were there for five minutes in total. In February of 2013, he had a 10- to 15-minute face-to-face interview with Mr.

Lake. [ 63 ] He had a great deal, or at least a lot more than Constable Gray, to observe over time Mr. Lake, and he gave certain distinctive, as he called it, qualities that allowed him to come to the conclusion that the person he saw in the thumbnail and the person he saw in the video was indeed the Mr. Lake he knew and saw in court. [ 64 ] He gave these as his distinctive features or what he called distinctive features: He said on the end of Mr.

Lake's nose there looks like a bubble pip, and he says he always remembers that, and that is shown in the picture taken from the video and it is shown in the video, you can see it as well, and in person when he is here you can also see it. He said he always wears thick-armed glasses, that is the stems were thick, both on the video and in the picture. Grey goatee, grey hair, and no definitive jaw line. He said he looked pretty much the same since 2009 and now. He always had grey hair. He always had the goatee.

He was about the same build size, kind of heavy, and he walked slowly, not jerky, not standing erect, and about six foot six inches tall. He said, "That is definitely Mr. Lake in the picture taken from the video and that is exactly as I recall him when I see him on the video itself." [ 65 ] One of the other pieces of evidence he had was the distinctive way he held a cigarette, which he said was with an outstretched hand and the cigarette between two of the fingers.

When Constable Gray demonstrated how he held the cigarette, it was not with the arm outstretched, but rather with the cigarette placed between the two fingers in somewhat of a unique manner. [ 66 ] Although Bentley does differ somewhat on the holding of the cigarette, that is with the outstretched arm or outstretched hand, which really was not exactly the same as Gray had described it, his other distinctive characteristics are comparable or the same as those of Constable Gray. [ 67 ] One of the big issues that defence counsel effectively brought out was that, according to this officer, the main distinctive feature was the round ball at the end or bubble at the tip of Mr.

Lake's nose that he saw in the video and in the picture. However, defence brought out through Mr. Lake that he had had cancer and had surgery on his nose, and that surgery occurred after the last time that Constable Bentley had seen him, which leads one to conclude that that particular observation of Bentley is probably not accurate. [ 68 ] Does that mean everything else is inaccurate? Not necessarily, but his evidence can be combined, on the parts I accept, with all the other evidence cumulatively to work towards an identification.

However, if it was him alone, that weakness the defence brought out would have, in my mind, been serious enough to cast doubt on all of the evidence of him, because simply noting as a very distinctive feature that ball on the nose could not have been something that he had seen in all the time he was with Mr. Lake in the past, because Mr. Lake's evidence, and I accept that part of Mr.

Lake's evidence, was that the nose operation leaving the ball was subsequent to the last time that Constable Bentley had seen him. [ 69 ] Bentley did tell us that he had, over a period of years, seen him in passing a dozen times and in two different interviews with him, 10 to 15 minutes one, 15 to 20 the other, maybe 25 to 30 minutes, plus passing by, 10 to 20 minutes, a total of 45 minutes. He agreed that he got the picture from his former partner, Constable Gray, and the reference was clearly that Gray thought it was Mr.

Lake. [ 70 ] So the influence on him, I think, is something that casts certainly some concerns about his observations in general about Mr. Lake being the person identified. But, as I say, the ones other than the ball on the nose are consistent in other ways pretty much with all the other witnesses' descriptions of the particular characteristics, albeit not unique characteristics, of Mr. Lake. [ 71 ] Mr. Lake himself testified. He said that on January 23, 2014, he was at home. He lives alone. Did not go out that night. He generally goes to bed about 10:30 to 11:00 at night. This is about 2:30 in the morning.

He said that Dr. Hii in 2012 wrote a letter

confirming his disability. He said he had cancer, he has psoriasis, and many other problems that I have talked about: the arthritis in the knees, the hips, the feet, the hands. [ 72 ] He said all his left hand ligaments were cut previously. He cannot wear a watch on his left hand above his wrist. One of the points that he makes there is that the person in the video obviously is wearing a watch on the left hand. He says he cannot, because of the torn ligaments on his left hand that have not yet been fixed. [ 73 ] He says his knees give out. His feet swell if he stands up too much.

He said he had asthma, he had emphysema, and he has got chronic pulmonary disease. He said that there is no way that he could be up that late doing all those things shown in the video for an hour and a half to two hours. Just too old, too sick, and too disabled to do any of that. [ 74 ] He says he cannot get his breath if he walks up a flight of stairs or he exerts himself.

He carries around an inhaler with him all the time, and he says if you look at the man who is doing all those things, that is a man who is in pretty good shape, who does not need rest constantly, is not using a puffer or any kind of breathing aid. He says walking around, bending and twisting and hammering with a chisel and hammer, using a pry bar, and putting weight on the pry bar, he says that cannot be him because he is just not capable of it.

He says he wishes he were, but he is simply not. [ 75 ] He did show me in the witness stand how he uses his various puffers, and he did show that with his hands, twisting and turning motions. He said, "I am not even allowed to pick up 10 pounds after I had an umbilical hernia surgery repair," and he said, "that again would militate against me being that person in the stand [sic]." [ 76 ] He said, "I cannot stand for more than 30 minutes," and he cannot even bend to put on his socks. It takes him a long time to get out of a chair. His knees swell up and his hands and hips hurt.

He said he would collapse after 10 minutes if he exerted himself in the way that that person on the video was exerting himself. He would, at the very least, need a pill, and he is told not to over exert himself and he does not. [ 77 ] The Crown cross-examined Mr. Lake, brought out that he does smoke, which this man was doing. He says that he has a lookalike brother, this is the one I mentioned, the brother Dale, three years old, I think, or one year older -- yes, three years older than him. He is -- [ 78 ] MR. GAWLEY: Excuse me, Your Honour. [ 79 ] THE COURT: Hmm? [ 80 ] MR.

GAWLEY: I apologize, but the evidence was that he had smoked, but he had quit. [ 81 ] THE COURT: Oh, okay, thank you. [ 82 ] MR. GAWLEY: Yes. [ 83 ] THE COURT: All right, that he had smoked, he said, but he quit because -- quit, you are right, because it made him cough too much. He said he had a brother Dale, who lived in Nova Scotia, who is a lookalike, same grey hair and goatee, wherein many people have looked at pictures over the years and said you cannot tell one from the other.

However, he had not talked to him in about 35 years and he had nothing to found a belief that his brother Dale from Nova Scotia had been in Vancouver on that particular day. [ 84 ] He, as I said at the beginning, was not and did not have to put blame on or solve the crime for the Crown, say who did it. He speculated, well, his brother looks like him, it could have been the brother, could have been anybody, but it certainly was not him. [ 85 ] I then go over to my observations of the person on the video.

First of all, I say the video is of an excellent quality, better than most of the videos that do come across the witness stand here in Vancouver. It is in colour, it is clear, and you can make out much of what the person looks like. You cannot do a very clear definition of the person's characteristics in terms of eye colour, eye shape.

You can, though, clearly see that it is a man in his early sixties, wearing a hat, but both on the sides of the hat you can see thick, grey hair, and coming out of the back of the hat where there is that band that you can tighten or loosen, there is a space there, you can also see thick grey hair coming out from there. Mr. Lake in court is seen by me with a thick head of greyish hair, and also on the sides and the back of his head, also having lots of thick, grey hair. [ 86 ] The man on the video has what I say is a distinctive goatee.

Goatees can of course be all round, or they can have a little sort of peak to them. His is all round. Yes, there are many people who have goatees these days, predominantly younger people, I can take judicial notice of it. However, many older people do have goatees, but the picture of Mr.

Lake in the video is very clear as to the goatee being around his nose and in kind of a circular fashion around his chin, and that is what he appears to have today as being the same type of goatee. [ 87 ] The glasses that he was wearing in the video appear to be dark black stems to them, cannot be certain it is dark black, could be dark brown, but there is something distinctive about the glasses that he is wearing today. I do not think they are the same glasses, because I did not see the thick black rims on the top, so the only similarity really is in the stems.

I cannot make any kind of indication that that is indicative that it is the same man. [ 88 ] I did watch him walk during the video, while he is inside the office, and he does move very slowly and he does kind of lumber, and each time that Mr.

Lake did come from the prisoners' dock to counsel table, and counsel table back to the prisoners' dock, and then when he went to the witness stand and back, he does have a very similar type of lumbering, slow walk which obviously, from his medical report, is due to arthritis and age in all kinds of moving parts of his body, but the movements were pretty much the same. [ 89 ] The manner of holding the cigarette in the video to me was very clear to my eye as being a distinctive characteristic of holding a cigarette, and it corresponds with what the first officer, Constable Gray, had said it was.

I was impressed with Gray, because Gray

seemed to take it a serious part and significant part of his job to be sure that he is able to recognize persons he is interviewing to confirm he has got the right person he is talking to when he is confirming an address. I thought he was very careful in his manner of identification, and I did notice that on the video. [ 90 ] When I looked at the body weight, at the shape of the body with the paunch, again it looked to me like Mr. Lake. The size, I could not tell from the video whether he was large or small, because of the angle it was taken.

It seemed to be taken somewhat at a higher level than he was, so in terms of the height, whether the man depicted there is six foot or six foot six, or five foot 10, I do not know and I cannot use that as an identifying feature for Mr.

Lake. [ 91 ] However, when I look at the man who comes before me with the grey beard and moustache, commonly called a goatee, I look at his thick hair, I look at the glasses similar that he is wearing, I look at the body type, heavy with a paunch, I look at the slow-moving nature of the man and the way he holds a cigarette, as I have observed him in court, I can identify him as being very much close to the man I see on the video screen. [ 92 ] I have supplemented my view that he is the man cautiously, because I want to do that cautiously.

The evidence of the two parole officers and Constable Gray, in particular, as being also able to articulate and identify particulars of the way Mr. Gray [sic] looked before and on the video, and I am satisfied that that was him on the video. [ 93 ] Dealing with Mr. Lake's own evidence, of course, I am to consider the criteria or the methodology used in the R. v. W.(D.) case. In Mr. Lake's case, I do not believe his evidence that he was not the man, that he was home at night, he was alone, and did not commit these acts.

I accept the ailments that he had, because that was agreed upon by way of a fact agreement between defence and Crown and although, on the surface of it, one would think it remarkable that somebody with all those things could do what the person on the video was doing, but nonetheless it being remarkable does not mean that it cannot be done. [ 94 ] I do not accept that the tremendous degrees of similarity between the man on the video and Mr. Lake here in person are such that they should raise any kind of reasonable doubt.

As I say, there is so much evidence of a quality nature, including my own observations, of the likeness of the person on the thumbnail, the person on the video from which the thumbnail was taken, and by watching the video and by watching Mr. Lake, I have no doubt that he is the man who is depicted in the picture.

His evidence does not raise any reasonable doubt and I do not accept his evidence. [ 95 ] On the evidence of the Crown, there is ample evidence to conclude, including my observations of comparison, proof beyond a reasonable doubt that he is the man shown in the video filed as an exhibit, and accordingly, Mr. Lake, you are found guilty. (REASONS CONCLUDED)