2017 NBPC 7, 2017 NBPC 7

CANADA 2017NBPC07 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT HER MAJESTY THE QUEEN - and- COREY ANTHONY McKAY TRIAL held before the Honourable Judge Marco R. Cloutier, at Saint John, New Brunswick. Date of decision, November 1, 2017. APPEARANCES : Rebekah Logan, on behalf of Her Majesty the Queen Wesley McIntosh, on behalf of the Accused I.

Overview [ 1 ] The issue in this case is narrow: Has the Crown proven beyond a reasonable doubt that the accused is the individual who committed a break and enter in the dwelling house located at 180 Bon Accord Drive, Saint John, New Brunswick, on June 8, 2016? [ 2 ] The identification of the accused by two police officers as the suspect depicted in poor quality photos, coupled with Mr. Ingersoll’s assertion, honestly made, that the same person committed the break and enter, eventually led to Mr. Ingersoll identifying the accused in court as the culprit. It is a sinuous path. II.

Introduction [ 3 ] The accused, Corey McKay, (“the a ccused”) is charged with break and enter under s. 348(1) (

b) of the Criminal Code and with a breach of probation, namely failing to keep the peace and be of good behaviour, under s. 733.1 of the Criminal Code. Both offences are indictable. III. Evidence [ 4 ] The Crown called the following witnesses at trial:

a) John Eckstone;

b) Kevin Ingersoll;

c) Constable Amy Cunningham;

d) Constable Roger Paris;

e) Constable Tracy Simmons;

f) Constable Whalen;

g) Constable Adey;

h) Constable Rocca. [5] The Defence called no evidence. [6] I will not repeat nor summarize the evidence of each witness. Suffice it to say, however, that the evidence of each wasconsidered. [7] Documents introduced into evidence at trial include:

a) C-1: Eight laser copy colored photos depicting the residence at 180 Bon Accord Drive, Saint John, NB;

b) C-2, C-3, C-4: Laser copy colored photos depicting an individual at the Mitsubishi Dealer parking lot;

c) C-5: Amended Probation Order dated July 25th, 2014;

d) C-6: Notice of Intention under s. 733.1 CCC, 137 YCJA;

e) C-7: Laser copy colored photo depicting grey button-up jacket, black and red sneakersand black and red Toronto Raptors ball cap;

f) D-1: Hand drawn sketch depicting Bon Accord Drive and surrounding streets;and

g) D-2: Laser copy colored photo of the accused the day of his arrest. [8] At trial, a voir dire was held with respect to the admissibility of a statement made by the accused to a peace officer. Below is myruling. IV. Facts [9] The facts are not complicated. On June 8, 2016, Mr. Ingersoll observed an individual walking in and out of Mr. Eckstone’sdriveway located at 180 Bon Accord Drive, in Saint John, New Brunswick. Although he did not see him enter the residence, Mr.Ingersoll says the suspect walked in the driveway with one bag and, minutes later, he left with two. Concerned over a break and enter,Mr.

Ingersoll drove his vehicle in the subdivision and observed the suspect walking to the nearby Mitsubishi dealer. He says he madeeye contact with the suspect and, in particular, he noted that he was “clean shaven”, a hefty fellow and wearing a red and black hat withshort hair. He admits, however, that he did not notice the hair color. [10] Constables Cunningham and Paris were dispatched to the Mitsubishi dealer. Upon arrival, the suspect could not be located.Constable Cunningham obtained photos taken from the security cameras, namely C-2, C-3 and C-4 (“the photos”), which depicts thesuspect.

She circulated those amongst members of the Saint John Police Force. Constables Whalen and Adey recognized the accused inthe photos. The officers relied on the unique features of the jacket which they say the accused wore prior to the events of June 8, 2016.Constable Adey, in particular, relied on the accused’s build and facial features. [11] It is not in dispute that a break and enter occurred in Mr. Eckstone’s residence on June 8, 2016. Mr. Eckstone explains that anumber of items, including a baseball with cursive writing, were stolen from his residence.

There is no evidence indicating that fingerprints or DNA evidence was found at the crime scene. V. Law and AnalysisAdmissibility of Statement and Post Offence Conduct [12] The facts surrounding the statement made by the accused are straightforward. Constables Rocca and Adey testified that on June9, 2016, the day following the break and enter, they observed the accused walking on King Street in Saint John approaching acollectibles store.

As they approached him, the accused retrieved a baseball in his pocket and threw it to another male who walked away.After reading his Charter rights, Constable Adey asked the accused why he threw the baseball just prior to his arrest. The accusedreplied: “What baseball?” Of note, the baseball was never found and there is no evidence it is indeed the baseball stolen during the breakand enter. Both officers add that they observed cursive writing on the baseball. [13] The Crown relies on both the accused’s statement and his post offence conduct as part of the circumstantial evidence.

At trial, Iruled that the officers’ observations (i.e. the accused throwing the baseball to another male) consisted of post offence conduct which, atany rate, was admissible and would flow into the record as part of the narrative.

I am also mindful that with the post offence conductbeing admitted, I must still nonetheless assess and weigh it like any other piece of evidence at the conclusion of the evidentiary portionof the trial: See R v White, (SCC), [1998] 2 SCR 72 and R v Turcotte, 2005 SCC 50 , [2005] 2 SCR 519. [14] The Crown has the onus of proving beyond a reasonable doubt that the accused made the statement (i.e. What baseball?)voluntarily to Cst. Adey. The question, ultimately, is did the accused exercise free will by choosing to make his statement? R v Oikle,2000 SCC 38, identifies four factors to be considered:

(1) The absence of any inducement by police;

(2) The absence of any oppression by police;

(3) The presence of an operating mind in the accused; and

(4) The absence of any police trickery. [15] Each of the factors must be proven beyond a reasonable doubt to show that the accused’s statement was voluntary. A Courtshould attempt to understand all of the circumstances surrounding any statement and ask if it gives rise to a reasonable doubt as to itsvoluntariness. [16] In my view, there is nothing in this case which suggests that any of the Oikle concerns occurred. There is no suggestion ofinducement, threats or promises.

Likewise, there is no allegation of adverse conditions brought on by the duration of the interview.Rather, the statement consisted of a spontaneous reply to a clear and simple question. Of importance, Cst. Rocca had read the accused’sCharter rights earlier. [17] I am also satisfied that neither of the officers engaged in any particularly aggressive questioning. Moreover, it is axiomatic thatthe accused was aware he was speaking with a police officer.

There was simply nothing in the evidence to suggest that the accused didnot understand what he was doing or that he was not in any condition to understand and respond to Constable Adey’s question. [18] For the reasons summarized herein above, I conclude that the accused’s statement is admissible. Identification evidence [19] Some preliminary observations are warranted in dealing with identification evidence.

In my opinion, there is probably no otherarea of the law that potentially may be more responsible for a miscarriage of justice than that of a well-intentioned but incorrectidentification of an accused. [20] It should be emphasized that a trial judge must instruct himself or herself on the need for caution when dealing with identificationevidence. It is not just an issue of credibility but it involves the inherent frailties of identification evidence simply because of theunreliability of human observation and recollection.

Eyewitness in-court identification [21] I find instructive the Supreme Court of Canada's observations in R v Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at par. 50: (…) the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest andsincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jurymay place on it. [22] I also recognize that the same applies when the trier of fact is a judge.

Recognition evidence as a subset of eyewitness identification [23] Recognition evidence is a subset of eyewitness identification evidence in which the eyewitness' identification is based on prioracquaintance. The recognition witness may, or as in this case may not, have been present at the scene of the crime. [24] Hourigan J.A. stated in R v Olliffe, 2015 ONCA 242 at par. 39 that "recognition evidence is merely a form of identificationevidence".

As such, "the same concerns apply and the same caution must be taken in considering its reliability as in dealing with anyother identification evidence." [25] The test for admitting recognition evidence is established in the Supreme Court of Canada's decision in R v Leaney, (SCC), [1989] 2 S.C.R. 393 and re-affirmed in R v Brown, (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.).

At par.39 of Brown, Rosenberg J.A. stated that "this type of non expert opinion evidence is admissible provided that the witness has a prioracquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator". [26] At the conclusion of a voir dire held during the trial proper, I concluded that both Constables Simmons and Constable Whalenwere allowed to provide non expert recognition opinion evidence. I found that both officers were well acquainted with the accused.

Itfollowed that, in my view, they were in a better position than the trier of fact to opine as to whether the accused is depicted on thesecurity camera photos. Simply put, I was satisfied that they met the familiarity/prior acquaintance test. Of course, what weight to be

given to this type of evidence is a different consideration. [27] Constable Simmons testified that he recognized the accused as the suspect depicted in the photos based on the jacket and hat. Hesays the accused wore those when he dealt with him some three weeks prior to his arrest. The officer adds that there is a distinctivefeature on the accused’s jacket, namely tiny black and white numbers. [28] For his part, Constable Whalen testified that upon looking at the photos, he immediately recognized the accused.

He explainedthat a week prior to arrest, he observed the accused walking on the street wearing the same jacket. He states: “I remember thinking whowould wear such an ugly jacket”. Otherwise, the officer relies on the “face, build and structure of the face” to recognize the accused inthe photos. [29] I am now prepared to comment on the officers’ recognition evidence. [30] I find that the officers’ recognition evidence is less fragile than other pieces of similar evidence in cases where virtual strangersare asked to pick someone out of a physical or photographic line up.

It is so because, in those situations, the complainants are expected tosee the culprit after experiencing a stressful situation which, in most cases, occurred within a very short duration. I am, however, mindfulof the context of the officers relationship with the accused: investigator and suspect. I also appreciate the potential this may have tocolour the officers’ belief that they recognize the accused in the photos. [31] In my respectful view, the recognition evidence of the officers is problematic. Let me explain.

Despite their professed familiaritywith the accused, I find that the officers were unable to provide any unique identifiable features of the accused, let alone any facial ones.That so much detail is lacking in their description causes me some concern. [32] I can only give limited weight to the fact that it appears both the suspect depicted in the photos and the accused equally had “anugly jacket”, to use the words of Constable Whalen.

In terms of the level of details provided by Constable Whalen with respect to theaccused’s physical description, there is little beyond a generic description given: "face, build and structure of face". [33] One important point. The recognition evidence of both officers is based on photos which, to say the least, are unclear. Forexample, the quality of the images, or lack thereof, is so poor and blurry that one cannot determine if the suspect is in his 20s, 30s, 40s,etc. In some photos, it appears the suspect’s face is that of a male in his 20s; in others, I would venture to suggest he would be more inhis 50s.

There should be no misunderstanding of my findings that the facial features of the suspect are not visible in the photos. Thisconsiderably weakens the value of the officers’ recognition evidence. [34] Essentially, I find the recognition evidence of the officers taken on its own is not convincing nor is it convincing in conjunctionwith the other evidence which I accept. Regretfully, what is left of the officers’ opinion is anything but convincing. [35] Here, there is no question about the integrity of the officers. That, of course, is not the issue.

Their correctness in making theinitial identification and then relating that to the identity of the culprit is critical. [36] I close the curtains on this issue by offering one caveat: a trier of fact who relies solely on recognition evidence without extremecaution is doing a disservice to the presumption of innocence, at best. The Nikolovski principle [37] I have, ex proprio motu, considered the case of R. v.

Nikolovski, (SCC), [1996] 3 S.C.R. 1197 (S.C.C.) whichallows the trier of fact to take its own common sense view of photographs or video recording provided, of course, it is of sufficientclarity and quality that it would be reasonable for the trier of fact to use it as the sole basis for identifying the accused. What’s more,witness identification based on video recordings or photos can, under certain circumstances, be more reliable as it allows repeated andunhurried consideration. That being said, however, the kind of clear video recording described in Nikolovski contrasts with the blurryphotos in this case.

Where, like here, the photo quality is poor, the trier of fact must use greater caution: R. v. Cuming (2001), (ON CA), 158 C.C.C. (3d) 433 (Ont. C.A.), at par. 19. [38] As the trier of fact here, from my observation of the photos, I am not satisfied beyond a reasonable doubt that the accused is theperson who committed the break and enter on June 8, 2016. Again, the photos of the suspect are of such poor quality that it is impossibleto identify the suspect solely from reviewing these exhibits.

Circumstantial evidence [39] With the exception of the Non Expert Recognition Evidence of two officers and the in-dock identification by one witness, theCrown's case depends wholly or perhaps largely on circumstantial evidence. Hence, I should be careful in weighing it. A decision madeor inference drawn from such circumstantial evidence should be logically and rationally based on the evidence as a whole. Thecircumstantial evidence should have a rational, logical connection to the accused and the act complained of for there to be a valid findingof guilt.

The inference should be free of speculation, presumption or bias. In short, it must be compelling. This, in my view, consists ofthe appropriate analytical framework for considering circumstantial evidence. [40] The law of circumstantial evidence is also admirably summarized in R v. Cooper, (SCC), [1978] 1 S.C.R. 860.Before basing a guilty verdict on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt ofthe accused is the only reasonable inference to be drawn from the proven facts. [41] The New Brunswick Court of Appeal in R v Delano, [2001] N.B.J.

No. 118 also stated at par. 6:

It is trite law that direct evidence is not necessary to sustain a conviction and that circumstantial evidence is sufficient provided it meetsthe threshold standard of proof "beyond a reasonable doubt". While a conviction based on circumstantial evidence requires a trier of factto draw inferences from proven facts, all inferences must be logically drawn from the evidence and cannot amount to mere "speculation","conjecture", "guessing" or "suspicion". Moreover, the burden is on the Crown to establish that the guilt of the accused is the onlyreasonable inference to be drawn from the proven facts.

If the evidence supports the drawing of other reasonable inferences then theaccused must be acquitted. (…) (Emphasis added) Applying the law to the facts of this matter [42] When I consider the evidence in its totality, I note once again that the recognition evidence of the officers taken on its own is notconvincing nor is it convincing in conjunction with the other evidence which I accept. To begin with, however, I do accept that thesuspect had a jacket and a hat similar to what the accused was seen wearing within weeks prior to the break and enter.

But, that is notcompelling on its own or in conjunction with the whole of the evidence. Notably, there is no evidence of finger prints or any piece ofevidence connecting the accused to Mr. Eckstone’s residence. To be clear, however, I am not saying that this type of evidence is alwaysnecessary. I also remind myself that upon arrest, the accused wore a black and red hat and it appears the suspect observed by Mr.Ingersoll also wore a similar one the day before. Mr. Ingersoll testified that he observed the accused walking in and out of Mr. Eckstone’s residence and he made eye contact with him shortly after.

He also identified the accused through in-court identification.The Crown argues that this, coupled with the accused’s post offence conduct and his statement, leads to the inescapable and only rationalconclusion that the identity of the suspect is indeed the accused. With respect, I disagree. [43] In my view, the whole of the evidence is only capable of elevating the Crown’s case to a probability that the identity of thesuspect is the accused. Put differently, the inferences suggested by the Crown, and its case altogether, is not compelling.

To concludeotherwise would, in my view, unjustly magnify the uniqueness of the accused’s clothing amongst residents of Saint John. [44] Taken cumulatively, and considering the evidence as a whole, a number of discrepancies leave the Court with a reasonable doubtas to whether the accused is the individual who committed the break and enter. Chief amongst those are the fact there is no evidentiarylink between the baseball stolen in the break and enter and the one the officers claim they observed the accused throw to another male aday later. Recall that neither was found.

I do appreciate, nonetheless, that there exists a temporal relation of about 24 hours. It alsofollows that, placed in its proper context, the accused statement wherein he denies being in possession of a baseball is not convincing onits own nor is it convincing in conjunction with the whole of the evidence. This is particularly true given the concerns recently expressedby the Court of Appeal in R v Oland [2016] N.B.J. No. 230 as it relates to post offence conduct. [45] Admittedly, Mr. Ingersoll identified the accused through in-court identification as the suspect he observed walking in and out ofMr.

Eckstone’s driveway. While I do not doubt that Mr. Ingersoll is being truthful, it is not just an issue of credibility. It also involvesthe inherent frailties of identification evidence simply because of the oft-quoted unreliability of human observation and recollection. [46] Of particular importance is the fact that Mr. Ingersoll emphasized that he made eye contact with the suspect after lunch on June8, 2016. He describes his face as “clean shaven”. Mr. Ingersoll also candidly admits that he could not see the hair color.

Yet, the nextday, mid-afternoon on June 9, 2016, an officer took a photo of the accused (D-2). D-2 obviously depicts much more than facial hairwhich could have possibly grown within about 24 hours. The accused clearly had a beard and a moustache. This is a discrepancy aboutidentification which affects my confidence in the identification of the accused as the culprit. [47] On the whole, the evidence is equally consistent, if not more consistent, with there being another individual walking near Mr.Ingersoll whose face was “clean shaven”.

This is clearly another explanation which reasonably emerges from the evidence based on theonly logical inference I can draw from photo D-2 depicting the accused’s beard. Arguably, Mr. Ingersoll could have mistaken thesuspect’s face as “clean shaven” because of a light colored beard or the distance from which he made his observations. While I agree,this theory does not rise above speculation. Recall that Mr. Ingersoll drove close enough to the suspect to make eye contact with him andit was at that point he noted the suspect was “clean shaven”.

It is trite law that any inference I make should be free of speculation,presumption or bias. That is precisely what the jurisprudence teaches us. [48] It bears underscoring that in order to base a conviction largely on circumstantial evidence, the Court must be satisfied not onlythat the circumstantial evidence is consistent with the conclusion that the accused committed the offence, but also that the facts whichhave been proven are inconsistent with any other rational conclusion.

The evidence before this Court does not support the inference thatthe accused committed the offence of break and enter or the resulting breach of probation. VI. Conclusion [49] My conclusion, after carefully reviewing all of the evidence, and after considering all the applicable legal principles, is that theCrown has not proven beyond a reasonable doubt that the accused was the person who committed a break and enter in Mr. Eckstone’sresidence on June 8, 2016.

I find that the evidence does not establish identity beyond a reasonable doubt. [50] I would note, in closing, that the circumstances in the case of R v Burn 2003 NBQB 436 , [2003] N.B.J. No. 445 bearsome similarities with the present ones. Therefore, to use the words of Russell J. at par. 28, I would reiterate a statement of the obvious.Identification of an accused as the culprit is one of the essential elements the Crown must prove beyond a reasonable doubt. Reasonabledoubt is based on reason and common sense. It must logically come from the evidence or the lack thereof.

While it is virtuallyimpossible to prove anything to an absolute certainty - and the Crown is not required to do so because such a standard of proof is

impossibly high - the Crown still has the burden of proving the identity of Mr. McKay beyond a reasonable doubt. If, based upon the evidence before the Court, I am certain that Mr. McKay committed the offence of break and enter, I should convict. Here, Mr. McKay probably was the man breaking and entering in Mr. Eckstone’s residence and he probably was the suspect depicted in the photos. He probably did commit such offence but probability does not meet the standard of proof beyond a reasonable doubt. The required standard has not been met. Accordingly, I find the accused not guilty of the s. 348(1) (

b) charge. [ 51 ] Because of my findings on the s. 348(1) (

b) charge, I find it unnecessary to deal with the merits of the s. 733.1 charge. Suffice it to say that the Crown has not proven the offence beyond a reasonable doubt. [ 52 ] In the result, the accused is found not guilty on both counts. Dated at Saint John, New Brunswick, this 1st day of November 2017. Marco R. Cloutier Judge of the New Brunswick Provincial Court