R. v. Mackenzie Date:, 2015 BCPC 462

Citation: R. v. Mackenzie Date: 20151005 2015 BCPC 462 File No: 238379-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. CHRISTOPHER TIMOTHY MACKENZIE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: M. Mahoney Counsel for the Defendant: S. Rauch Place of Hearing: Vancouver , B.C. Date of Hearing: October 5, 2015 Date of Judgment: October 5, 2015 [ 1 ] THE COURT: We are here this morning for a decision on a charge that Mr. Mackenzie, on or about the 18th day of March, 2015, at or near Vancouver, in the Province of British Columbia, did attempt to break and enter a residence located at 1175 West 11th

Avenue, with the intent to commit an indictable offence therein, contrary to s. 348(1) (

a) and 463 (

b) of the Criminal Code . The Crown proceeded by indictment. The Crown Case [ 2 ] Mrs. McEachern and her husband lived at Suite 102, 1175 West 11th Avenue in Vancouver ("the suite" or "Suite 102"). Her son lived in the same apartment building, but in a different suite on a different floor. Mrs. McEachern's apartment was on the ground level on the northwest corner of the apartment building.

Although Suite 102 was at the northwest corner of the apartment building, the apartment building itself was not a corner building. [ 3 ] Suite 102 had an outdoor patio area which was completely surrounded by a combination of a fence, that was at least five feet high in parts, and the side and back walls of the apartment building which comprised the outside walls of Suite 102. [ 4 ] The patio area adjacent to the suite ran in an L-shape from the back of the suite and down the side of the suite. There was a back gate that led into the back portion of the patio. That back gate was not locked, but had a latch.

The back part of the patio faced north into the back alley and a parking area. A two-foot-high retaining wall separated the back patio from the parking area for the apartment building which was immediately adjacent to the patio area. On top of that two-foot retaining wall there was the five-foot fence previously mentioned. A sliding glass door that opened onto the back, that is the north side, of Suite 102 provided access to the back portion of the outdoor patio. [ 5 ] In cross-examination, Mrs.

McEachern was asked more detailed questions about that patio and she gave a more detailed description, which I will review in a moment. [ 6 ] Mrs. McEachern said the back area of the patio was securely gated so that people could not easily access the patio area from the parking lot. A person would need to jump up and lean over the fence with their whole body in order to manoeuvre the latch on the gate. [ 7 ] Mrs. McEachern said, on the day in question, no one other than her husband and son had permission to be in her residence.

I cannot recall now if she specifically used the word "residence", (I did not have an opportunity to listen to the DARS recording this morning) or if she used a more general term. She specifically said no one by the name of Mackenzie had permission to be there. [ 8 ] In the course of cross-examination, Mrs. McEachern was asked about the layout of the patio. She said the patio at the back could be accessed from the suite through a sliding glass door which is in the living room area of the suite. She described the back patio as being a nice-sized patio facing the alleyway.

The back area of the patio had a five-foot solid wood fence that one could not see through. On one side of the five-foot fence there was another fence that, as was described by Mrs. McEachern, "pulls into" the side of the building. In essence, it is a continuation of the same fence that goes across the back patio; however, at the side of the apartment building the fence is four feet high. [ 9 ] Mrs. McEachern said the four-foot-high fence on the side of the apartment building and on the side of her suite tied to the building itself along the side with a four-foot gate. The patio area is completely enclosed. Mrs.

McEachern said the two gates were made of solid wood, the one on the side was four feet high, the one at the back was five feet high. There was a latch on both gates but no lock. [ 10 ] On the side of the apartment building, next to the side patio, there is the building next door; there is no pathway. Mrs. McEachern described the side of the building as being quite treed and quite private. She said it provides complete privacy. On the side of the building, that is the same side as the four-foot fence, there are very large trees, and the wall of the building next door. Mrs.

McEachern said the trees on the side of the building where the patio is are outside the four-foot fence. There is no shrubbery on that side. Inside the fenced area of the patio there were just two planters with geraniums in them. [ 11 ] Mrs. McEachern's son was home that day. His suite was on the third floor of the apartment building and faced 11th Avenue. At approximately 2:00 p.m., he was sitting on his balcony, which also faced 11th Avenue. He noticed a person walking on the far side of the street. Although it was March and it was warm, the person had a hoodie over the head.

It turned out that person was a man. He was smoking a cigarette and walking with his head down. [ 12 ] Mr. McEachern watched as the man walked across the street and approached the front of the apartment building. Mr. McEachern's balcony was located directly above the walkway that led to the front door of the apartment building. He saw the man walk up and then go out of sight, because as the man approached, he essentially walked right underneath his balcony. [ 13 ] Mr. McEachern heard some noise that sounded like someone pulling on the front door. He also heard metal scraping against metal.

He waited approximately two minutes, but the sound stopped. He waited another minute and then went to check what was going on. He first went to the communal bike room in the apartment building. He noted that everything seemed to be okay. He looked at the front door of the apartment building, which also looked okay. There was no one in the lobby. [ 14 ] He also looked into his parents' suite by going in from an external door that is located on the side of the building and goes directly into his parents' suite.

He also went into his parents' suite by going in through the internal entrance door from inside the apartment building. [ 15 ] When Mr. McEachern looked into the apartment towards the sliding door that leads to the back, that is the north part of the patio, he saw the man he had seen walking up the front walkway. The man was standing with both hands on the sliding door, legs apart. The man's knees were bent, as if pulling on the door. Mr. McEachern said the man at the patio door was wearing the same clothing as the man who had walked up to the apartment building earlier.

Only three minutes had passed from the time the man walked up to the front door of the apartment building. The man at the sliding door looked up and saw him. The man took his hands off the sliding door and put them in his pocket. He then turned around and hopped over the fence and into the parking lot.

[ 16 ] Mr. McEachern took his cellphone out of his pocket and called 9-1-1. As he did so, he went to the alleyway and saw the man cutting between the apartment building where Mr. McEachern lived and the building next door. Mr. McEachern decided to follow the man by running after him. Mr. McEachern could see the man running from the apartment building down the alley. The man was running down the alley from west to east. Mr. McEachern said he had a clear view of the alleyway. The man was still wearing a hoodie and the hood was up. The man also had a baseball cap on and was wearing jeans. [ 17 ] Mr.

McEachern ran into the alley. He saw the man running on the north side between two buildings and yelled at the man to stop. The man was not running at a full sprint, but more like a jog. The man looked back at him as he was running between the two buildings. [ 18 ] At a later point in time, while Mr. McEachern was chasing the man, the man told Mr. McEachern to leave him alone. The man, according to Mr. McEachern, swore at him and threatened him. The man cut down towards Broadway and Alder. As he was chasing the man, Mr. McEachern noted the man alternated between walking and jogging.

At one point, the man cut across the street and so did Mr. McEachern. At another point, the man went into a densely treed area at 12th Avenue and Spruce. Mr. McEachern saw the man jump a gate to get into a gated area. [ 19 ] Mr. McEachern could not follow the man there, but he was able to see the man's feet through the gate. He saw the man's feet and legs, but not the rest of him. Mr. McEachern therefore followed the legs through the area. He saw the legs the entire time. The man was moving at a lethargic jog. Eventually the man made his way to Broadway Avenue. He went down Broadway heading west.

He cut across Broadway through traffic. The man got into a taxi that was stopped on the street on Broadway. Mr. McEachern ran after him and stood in front of the taxi to stop it from leaving. In the meantime, the man was yelling at the driver. At that juncture, they were in front of the Toys "R" Us store on Broadway. [ 20 ] While Mr. McEachern pursued the man, he remained on the 9-1-1 call. Mr. McEachern saw a police car with its lights engaged driving down the street. The man ran up the stairs near Toys "R" Us.

Those stairs provided access to a parking lot at the top of the building. [ 21 ] Two police officers approached Mr. McEachern and told him to stay where he was. They followed the man up the stairs. Later a woman came down the stairs and provided Mr. McEachern with some information. He subsequently provided that information to the police officers. [ 22 ] A short while later, one of the police officers got down on the ground in the parking lot and spotted the man under an SUV. The man under the SUV was the same person Mr. McEachern had been chasing and the same man Mr. McEachern had seen at the patio door.

He described the person as a male, between 40 to 45 years old, short hair, five o'clock shadow, wearing a top and baggy blue jeans and a green baseball cap. The man also had on a hoodie and a black T-shirt. [ 23 ] Constable Jonathan Vegt, was working with his partner, Constable Domingo. He was the passenger and Constable Domingo was driving the marked police car. At approximately 2:26 p.m., they arrived in the area by Toys "R" Us on Broadway. At that point, they saw a man running westbound on the south side of the 1100 block of Broadway.

A second man was looking at the police officers and emphatically pointing to the other man. Constable Vegt said the man who was running matched the description he had been given of the suspect. There was no one near the area where the other man was pointing except the male suspect. [ 24 ] Constable Domingo did a U-turn and they both got out of the patrol car. Constable Vegt saw the man run up the stairs on the south side of Babies "R" Us. Constable Vegt and Constable Domingo both went up the stairs to the parking lot.

Constable Vegt said the suspect was out of his field of vision temporarily, but Constable Vegt had a conversation with Mr. McEachern who provided him with some information. Following this conversation, Constable Vegt checked under a vehicle and saw a man underneath it. [ 25 ] Constable Vegt said the man under the vehicle crawled out. He assisted his partner, Constable Domingo, in placing the man in handcuffs. The man was arrested and given his Charter rights. In a search incident to arrest, they found identification on the man that said he was Christopher Mackenzie. Constable Vegt said Mr.

Mackenzie was sweating profusely. He seemed to be in the state of someone who had been running. Constable Vegt said Mr. Mackenzie was holding a green hoodie and wearing jeans, a black T-shirt with writing on it, and a grey T-shirt underneath and a black T-shirt. The man Constable Vegt had seen earlier had been wearing the same clothing Mr. Mackenzie had on when he came out from under the car. [ 26 ] Constable Vegt went to Suite 102, 1175 West 11th Avenue. He noted that the patio area was fenced off. It was a very tall fence, taller than him; however, he did not say how tall he was.

I could not recall if he was tall or short from observing him in the stand, his testimony was given so long ago. In any event, Constable Vegt said the fence was gated in two locations, at the front and at the rear. I interpreted the word "front" to mean the side of the apartment building which had a gate access. [ 27 ] Constable Domingo said when he arrived on West Broadway, he saw Mr. McEachern point to a man, so he made a U-turn. He saw the man going up a staircase. He and Constable Vegt followed. He said the man was found under a vehicle. He placed handcuffs on him and searched him following arrest.

The Defence Case [ 28 ] Upon completion of the Crown's case on June 23, 2015, the defence elected to call no evidence, so the parties proceeded to argument. The matter was put over to July 24, 2015, for decision. On that date, defence counsel made an application to reopen the trial. Defence counsel told this court that on reflection and after reviewing the case law and the elements required to prove the offence (which are not quite as straightforward as one might think) she was concerned that the decision not to call evidence from the accused, Mr.

Mackenzie, would unduly affect his interests and his right to a fair trial. Those were not the exact words used, but that was the gist of the defence application. [ 29 ] The Crown acknowledged this court has jurisdiction to grant the defence application. As the application was made before a decision was rendered, it was not too late for the court to exercise its jurisdiction.

[ 30 ] I granted the defence application to reopen the case. Accordingly, the trial continued on August 28, 2015, when the accused gave evidence and final arguments were made. Mr. Mackenzie's Evidence [ 31 ] Mr. Mackenzie acknowledged he has a criminal record. He said he has been diagnosed with Fetal Alcohol Spectrum Disorder (FASD). This was in approximately 2008/2009. At the time, he was in a federal institution and working with Michelle Roxbury. In the last 10 years, he has also had a problem with alcohol, which often leads him to abuse cocaine and heroin.

He has entered a number of treatment facilities to attempt to address his addiction. [ 32 ] In October 2014, he was not in custody on any matter. He decided he needed help. Therefore, on his own initiative, he signed himself into a treatment facility, Choices Recovery House ("Choices"). While involved in a boot camp program at Choices, he broke his leg. At one point, he went to Vancouver General Hospital ("VGH") for treatment of his leg. While he was there, he was placed on morphine. Mr. Mackenzie explained that while he was residing at Choices, he was clean and sober.

However, after injuring his leg, an injury which turned out to be a compound fracture, he ended up taking medications such as morphine, Demerol, and morphone. [ 33 ] After being released from VGH, he went back to Choices. For a while he managed. However, he was concerned he was not doing very well, therefore he sought help from Vancouver Coastal Health. He noted, however, that by this time he had an ample supply of legal prescription drugs. By the end of February 2015, he relapsed and started taking non-prescription drugs, namely, alcohol, cocaine, and heroin. [ 34 ] Mr.

Mackenzie was prescribed a regime of physiotherapy so he was supposed to go for physiotherapy. However, in March he missed his physiotherapy appointments. He said he was using a substantial amount of drugs. By the middle of March, close to the date of the offence in this case, Mr. Mackenzie said he was drinking at night and using drugs. He would wake up in the morning; usually he was really sick. [ 35 ] Mr. Mackenzie testified that on the morning in question, that is the morning of March 18, he was on his way to VGH to see his physiotherapist for an assessment of his leg.

At that point, his leg was in very bad shape. He woke up that morning and was really sick. At that point, Mr. Mackenzie was staying with a friend in downtown Vancouver. He took a bus from downtown Vancouver to Broadway and Granville and headed towards VGH on foot. He carried some heroin with him that day and had already taken oxycodone by the time he left for VGH. He said he had also been drinking orange vodka coolers that morning. [ 36 ] Mr. Mackenzie said he got off the bus at Broadway and Granville and began walking towards VGH. As he was walking, he felt really sick.

He said he was cutting in and out of places and puking. He was at a spot from which he could see the Diamond Centre, which is one of the centres located in the VGH compound. He said he saw a large number of bushes four to five feet high. He went into the bushes and saw a fence with a gate which was approximately three feet high. He said the gate went up to his waist. The gate was open and he went in through the gate. However, he noted that the gate had a latch. He walked down the side of the building for approximately 10 to 20 feet to the back. That is when he saw a patio. The patio was fenced.

The fence was about four feet high. He thought it would be a perfect place to sit. He said he needed somewhere to sit and burn the foil. He said the patio was "enclosed". [ 37 ] Mr. Mackenzie said he had tin foil on him, a straw, and a blue flap with one-half gram of heroin. He sat down and smoked the heroin. He believed he was on the patio five to 10 minutes, maybe longer. Mr. Mackenzie smoked the heroin because he was feeling sick. His stomach was hurting and he felt dizzy. His only thought was to get high, because that made him feel better.

After he smoked the heroin, he was not feeling sick anymore. [ 38 ] Mr. Mackenzie acknowledged he sat down in the patio area. He was sitting on the patio, and as he stood up, he saw a man inside the suite coming towards the door. Mr. Mackenzie said a guy came toward the area where he was seated. He freaked out, and jumped over the fence. Mr. Mackenzie said he is six feet tall. He just went over it; he did not need to climb over the fence. Mr. Mackenzie ran down the alley. The man followed him. [ 39 ] Mr. Mackenzie said he tried to explain to the man that he had not done anything.

He said the man had seen him getting high. However, he also said he was not sure if the man had seen him holding the foil and a lighter. Mr. Mackenzie testified he had those items on him, in his cigarette package when the police arrested him, I interpreted that to mean the foil and the lighter. [ 40 ] Mr. Mackenzie told the man who was chasing him he did not do anything and he wanted the man to leave him alone. Mr. Mackenzie said he felt really hot. He claimed he was not very aware of his surroundings. [ 41 ] I now turn to the cross-examination of Mr. Mackenzie. [ 42 ] In cross-examination, Mr.

Mackenzie acknowledged that at the point in time when this incident occurred, he had been using alcohol for about a month, cocaine for about a month, and heroin for about a month. He had also been using morphine for about four months and oxycodone for about three months. In particular, Mr. Mackenzie testified that morning he drank three to four litres of a cooler which was a mixture of vodka and orange juice. He had also taken heroin, cocaine, and morphine the day before. He acknowledged he is an addict and he has been struggling with his addiction since 1990.

He acknowledged that, at that point in time, he was deep into his addiction. [ 43 ] Mr. Mackenzie was asked several times whether he agreed his memory would not have been very good, given his use of drugs and alcohol. It took several questions before Mr. Mackenzie acknowledged that his recollection of events was not likely to be accurate. It was not clear to this court whether he did not understand the question or whether he was trying to avoid answering it. [ 44 ] It was specifically put to Mr.

Mackenzie that his recollection of the events on March 18, 2015, could be inaccurate because of the alcohol and drugs he had consumed. He said he did not agree. He said he was very focused on getting high, he was in a propelled, driven state, that is why he went into the bushes.

[45] It was put to Mr. Mackenzie that he did not remember. He maintained he was not guessing. He agreed he was drunk and high. It was put to him that he got derailed from his original plan, namely, to go to physiotherapy, by the need to do drugs. He agreed. However, he did not agree that his plan was not to go to physiotherapy at all because he was high. He said he did not want to be sickbecause there are often 25 to 30 people in the physiotherapy office. He thought it would be better to be high than sick. [46] Mr. Mackenzie was asked about his record.

In particular, he was asked about a conviction on January 3, 2014, of an offence forwhich he received a conditional sentence order. He agreed he had been given a conditional sentence order on January 3, 2014, but he didnot remember if he had committed an offence on that date. When he was questioned about it a short time later, Mr. Mackenzie agreed herecalled an incident on January 3, 2014, when he stole a bike from a bike locker. He agreed that when he was sentenced earlier that day,he had no intention of going out and committing a crime.

He explained, however, that after he was released that evening the police werefollowing him. He was full of anxiety. He went drinking with a friend, and that was when he broke into the bike locker. He agreed hewas not thinking clearly when he did that. Mr. Mackenzie agreed he had consumed alcohol and maybe a quarter gram of heroin. [47] It was put to Mr. Mackenzie that, because of his record, he was more fearful of going to jail for longer periods of time. Mr. Mackenzie said he never thought of it like that.

It was put to him he could not have been thinking clearly, because a person who wasthinking clearly would know that. He agreed. He also agreed that he did not want to incur more convictions and go to jail. It was put tohim that would give him a motive to lie. Mr. Mackenzie said he was not lying. It was also put to him that his desire not to go to jailaffected his ability to recall matters. He said he did not understand. [48] With respect to the incident, it was put to Mr. Mackenzie that he was high and drunk when he was found on the patio. Heagreed. It was also put to him that he ran away from the man. Mr.

Mackenzie said he did not run away, he just walked away veryquickly. It was put to him he was trying to get away from the man. He said no, he was trying to get away from the situation. [49] Mr. Mackenzie was asked why he crawled under a vehicle, if he had done nothing wrong as he claimed. He said he hadnowhere to hide except under the vehicle. He had drugs and stuff on him. He was hiding because he did not want to go back to jail. [50] It was put to Mr. Mackenzie that on the day of the incident, March 18, 2015, he had consumed so much alcohol and drugs thathe did not remember the events. Mr.

Mackenzie disagreed and said he remembered almost everything. He was asked about hisstatement that he thought the man, who later chased him, had seen him get high. Mr. Mackenzie acknowledged he said that. Mr. Mackenzie said he had tin foil and the flap and he put it in the cigarette package. When questioned further, he acknowledged he didnot know for sure whether or not the man saw him get high. He simply assumed the man had seen him. [51] Mr. Mackenzie was asked about the statement made by Mr. McEachern that he had seen Mr. Mackenzie pulling on the patiodoor. Mr.

Mackenzie asserted he never touched the patio door. It was put to him that was when he was drunk and high. In particular, itwas put to Mr. Mackenzie that he had been doing drugs and alcohol in a heavy way for about a month, and in fact had taken drugs thatmorning. He agreed. It was also put to him that he did not have control over his behaviour. He agreed that was the case. [52] Mr. Mackenzie agreed he had started the day of the incident by using drugs. It was put to him that sometimes he madeimpulsive decisions. He agreed. It was put to Mr. Mackenzie that he needed money for drugs to support his habit.

He denied that. Hesaid he had money both in the bank and on him that day. It was further put to Mr. Mackenzie that he tried to jiggle the sliding door to getinto the suite. He denied that. [53] Mr. Mackenzie said he went towards the back and found the patio. He denied that the gates were locked. It was put toMr. Mackenzie that he climbed over the fence with the intention of getting into the suite. He said he never did that. He said he went tothe back patio because it was "enclosed", that is where he got high.

He had no intent to steal or do damage to the suite. [54] In redirect, he was asked about the small gate at the side of the apartment building. He said it reached his waist and it wasunlocked. Position of the Parties [55] The Crown submits there is no issue with identification. Mr. Mackenzie was identified by Mr. McEachern, who chased himand maintained visual continuity. He was arrested by the police immediately after the chase and they confirmed his identity. Moreover,once the case was reopened, Mr.

Mackenzie testified so any doubt as to the identity of the man on the patio was put to rest. [56] The Crown submits Mr. Mackenzie has been charged with an attempt to break and enter. It points to the fact he was in a privatearea pulling on the sliding door. The Crown submits the explanation provided by Mr. Mackenzie should not be believed. The Crownsubmits that if I am not prepared to find the enclosed patio was part of a dwelling house or the residence, then I should consider s. 348(3)(b). The Crown urges me to accept the evidence of the complainant and her son.

The Crown submits there is no reason to disbelieve theCrown witnesses. [57] The Crown acknowledges I have to consider the test set out in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. However, the Crown points out that the simple fact an accused person testifies does not mean he or she ought to be acquitted. TheCrown argues that the evidence of the accused has not raised a reasonable doubt, and the accused should be found guilty as charged. [58] The defence, in its initial submission, before the case was reopened, argued that the Crown had not proved its case beyond areasonable doubt for the following reasons:

a) The Crown had not proven there was a break and enter or an attempted break and enter. All Mr. McEachern could say was that theman's hands were on the door. The defence said the only evidence is that Mr. McEachern saw Mr. Mackenzie at the back door with hisknees bent, his legs wide apart, and his hands on the sliding door. The defence said this is not sufficient to establish a break and enter oran attempt to break and enter.

b) The defence argued that a break and enter does not include a person going onto a private patio.

c) The defence argued that the evidence in this case is, at best, circumstantial and falls short of proving the actus reus and the mens rea. [59] On the last point, the defence noted that the Crown must establish there was a break and enter and, further, that there was anattempt to commit an indictable offence. The defence argued there is insufficient evidence to establish that element of the charge. Thedefence submitted there is no evidence that Mr.

Mackenzie had the intent to commit an indictable offence. [60] Today, after reopening the case, the defence argues that the Crown has not proven its case beyond a reasonable doubt in tworespects, which are somewhat intertwined. First, the Crown has not proven that the patio constitutes a place. However, the defenceacknowledges the case law is somewhat unsettled in this area. Second, the Crown has not proven that Mr. Mackenzie had the requisiteintent.

The defence notes that the onus is always on the Crown, notwithstanding the presumption contained in s. 348 of the CriminalCode. [61] The defence expanded on its argument. The defence notes that Mr. Mackenzie was charged with an attempt to commit a breakand enter at a residence with the intent to commit an indictable offence, contrary to s. 348(1)(

a) of the Code. The defence notes thats. 348(1)(a), provides that one of the elements of the offence is that there has to be a break and enter. The other element is that the breakand enter has to be in a place. The term "place" is defined in s. 348(3) as meaning a "dwelling house". Furthermore, the term "dwellinghouse" is defined in s. 2 of the Code. [62] The defence argues it is not entirely clear whether the area, namely the back patio, where Mr. McEachern saw Mr. Mackenziefits the definition of "dwelling house". The defence argues there are no cases directly on point.

She notes that a number of cases werebrought to the court's attention, but they must be read in light of the specific facts in each of those cases. The defence further argues thatthose cases are ambiguous on this point. [63] The defence argues there are a number of factors to consider in this regard. Some of the cases have considered such things aswhether there was a building, whether there was a fence, how high the fence was, and whether the fence was scaled by the accused. [64] The defence argues Mr. Mackenzie was in an area that the tenants said they considered private.

However, it is not entirely clearwhat people walking in would consider that area to be. She acknowledges there was a fence and gates. However, she notes that one ofthe officers did not remember opening or closing the gate in order to access the patio, and Constable Domingo said he walked in throughthe gate. [65] The defence argues it is not clear on the evidence that the gates, fences, bushes, trees, and buildings were such that the area inquestion should be considered a dwelling house. The defence notes that Mr. Mackenzie said there was an area toward the front of thebuilding where one could walk along the side.

However, she submits Mr. Mackenzie was ambiguous about the gate. It is not clear onthe evidence where that gate was in terms of accessing the patio. Nevertheless, it was clear that the patio could be accessed. [66] The defence says this distinguishes the case before the court from the cases that had been referred to or cited to the court. Inthis circumstance, the defence argues it is not clear whether the patio falls within the definition of dwelling house. [67] The defence points to the evidence or lack thereof. She notes that although Mr.

McEachern said he saw the hand of the accusedon the sliding door, there is no corroborating fingerprint evidence. Moreover, Mr. Mackenzie testified he did not do that. The defenceurges the court to accept Mr. Mackenzie's evidence. [68] The defence also argues there was no evidence about how Mr. Mackenzie entered the patio area, in that it is not clear whetherhe went in by the side gate. I asked counsel whether she agreed it was clear, by the accused's own evidence, that he came in by the sidegate. She would not agree it was clear. She maintains there was no evidence about how he got there.

I read from my notes and notedMr. Mackenzie said he walked in through a short gate. There was evidence before the court that there were two gates, a short gate andfence and a tall gate and fence. The defence, however, argues there was confusion and a lack of evidence to show how Mr. Mackenziegot there and what happened. [69] As to the definition of "place", the defence argues the court must consider whether the fact there is an opening necessarilyestablishes that a location is a place as defined in the case law and the Criminal Code. She maintains the issue is not clear. She pointsout that Mrs.

McEachern testified there was some kind of gate, but on the evidence the court does not know whether the gate was open orclosed. She points to the case of R. v. Johnson, (SCC), [1977] 2 S.C.R. 646, which deals with "constructive breaking"versus "actual breaking", and sets out the elements of the offence. However, she notes the analysis is not straightforward. [70] The defence says there is a credibility issue between the Crown witnesses and the accused. She maintains there is confusingand conflicting evidence between Mrs. McEachern and her son, Mr. McEachern, and the police officers. She also submitsMr.

McEachern was so concerned that someone might be looking around that he was in a state of heightened suspicion. This goes to thereliability of his evidence, because he was looking for something well before he saw Mr. Mackenzie. [71] The defence also argues that Mr. Mackenzie's testimony raises a reasonable doubt about whether he had the requisite intent. The defence points out that the onus is on the Crown to prove all of the elements of the offence. The onus never shifts to the accused. Even with the presumption in s. 348 of the Criminal Code, the onus does not change.

The accused does not have to prove his innocence. The defence argues the court must be cautious in how it analyzes the presumption set out in the break and enter provisions of the Code. In particular, the defence argues those provisions do not impose an onus of proof or burden of proof on the accused. [72] The defence relies on R. v.

Proudlock, (SCC), [1979] 1 S.C.R. 525, for the proposition that once a trial judgedetermines that evidence adduced by the accused is admissible and relevant to the issue of intent and the trier of fact does not reject thatevidence, there is then evidence to the contrary within the meaning of s. 348(2). [73] The defence argues that once that occurs, there is no further standard to be met. The defence also relies on R. v. Campbell,[1974] O.J. No. 351, for the proposition that the evidence of the accused's condition, due to the consumption of alcohol and the taking ofa drug, may constitute evidence to the contrary.

It is the type of evidence that can go to the question whether there was intent to commit

an indictable offence. In that case, the judge found that Mr. Campbell's taking of a drug had caused him to act in an irrational manner. On appeal the higher court ruled that constituted evidence to the contrary that should have been considered by the trial judge. The defence argues that this court ought to consider the condition of Mr. Mackenzie at the time he was on the patio, in order to determine whether he was capable of forming intent. Analysis [ 74 ] First, I will deal with the findings of fact or some of the findings of fact.

The defence submits there is an issue regarding the clarity of the evidence given by the complainants and the police, and the evidence given by Mr. Mackenzie. She argues there was some confusion. She also argues that Mr. Mackenzie, in his evidence, was not able to clarify that confusion. For example, he was not able to categorically say whether the gates were open or closed.

However, she also notes this was not clear from the testimony of other witnesses. [ 75 ] Accordingly, before commencing my analysis, I will briefly set out my findings on some of the most salient facts about the incident, although I will not set out all of them, given my detailed review of the evidence. 1. Mr. and Mrs. McEachern rent Suite 102 in an apartment building at 1175 West 11th Avenue. 2. The suite is a ground-level suite on the northwest corner of the apartment building. 3.

There is an L-shaped patio area which goes from the back, that is the north side, of Suite 102 and along the side wall of the suite and apartment building. 4. The entire patio area is fenced in. The back, that is the north portion, of the patio faces the back alley and is adjacent to a parking area. There is a two-foot high retaining wall that separates the back patio area from the parking area. In addition to the two-foot retaining wall, there is a fence that is at least five feet high on top of the retaining wall.

As I have noted, one of the officers testified it was taller than him, although he did not say how tall he was. However, he described it as a "very tall fence" and described the patio as "very private". 5. The back patio is connected to the suite by a sliding glass door on the north side of Suite 102. The sliding glass door provides access from the living room of the suite to the back portion of the outdoor patio. 6. The back portion of the outdoor patio has a gate. I accept Mrs. McEachern's description of that gate. It was not locked, but it had a latch.

In order to open the latch, a person would have to lean over the fence with his or her whole body in order to access the latch. 7. The side portion of the patio is also fenced. However, the fence is lower than the back fence. I accept Mrs. McEachern's evidence that the side fence is approximately four feet high. There is also a gate that is approximately four feet high that has a latch. One of the officers also described there were two gates, one in the back and one on the side. 8. I accept Mrs.

McEachern's evidence that there are trees on the side of the apartment building adjacent to the side portion of the patio, but there is no walkway. Moreover, she testified there were no shrubs in that area. 9. At the time of the incident, I find that Mr. Mackenzie had fallen off the wagon, so to speak, as far as drug and alcohol use was concerned. He was using drugs and alcohol routinely. On the day in question, he had taken some oxycodone in the morning and had consumed a vodka orange cooler. 10. I further find that despite the consumption of oxycodone and the vodka orange cooler, Mr.

Mackenzie was able to function. He had taken the bus to Broadway and Granville. He was able to walk towards VGH. He recognized the Diamond Centre when he saw it from a short distance away. He was able to react quickly, as he did when he was discovered by Mr. McEachern. 11. I also find that Mr. Mackenzie, although he was under the influence of alcohol and drugs, was not "out of it" and he could function. He was astute enough to recognize, when he was seen by Mr. McEachern, that he needed to leave the patio and he did so with surprising speed.

He was also astute enough to recognize, when he was being chased by the police, that there was a possibility he might be arrested. He was concerned that, if he was arrested, they might find drugs on him. I have paraphrased his evidence in this regard, but that was his evidence in cross-examination about why he hid. 12. Mr. Mackenzie's actions after being spotted by Mr. McEachern show that he was able to take evasive action to deal with a potentially difficult situation, that is, he had the presence of mind to leave the area. He was aware he was being pursued.

He had the presence of mind to get into a waiting taxi and, when that did not work, to run to a parking area and hide under a vehicle. 13. On the evidence before me, I am satisfied the Crown has proven that a man was on the north end of Mrs. McEachern's patio. I find that the patio is a private patio enclosed by a fence that is five foot high at the back and four foot high at the side. The gate on the north side of the patio, which gives access to the patio from the back alley, was not locked. However, I accept Mrs. McEachern's evidence that the latch to open the gate was not easy to access.

In particular, I accept her evidence that the back patio area cannot be easily accessed from the parking lot and a person would need to jump up and lean over the fence with his or her whole body in order to manoeuvre the latch. [ 76 ] As to the elements of the offence, I start with identification of the man. I am satisfied, even without Mr. Mackenzie's testimony, that the man in question was Mr. Mackenzie. However, as I have already noted, the fact Mr.

Mackenzie testified and told the court he was on that patio obviously dispenses with any concern about identification. [ 77 ] The next question is was there a break and enter or an attempt to break and enter?

[ 78 ] Before turning to my analysis on this point, I will refer to the relevant sections of the Criminal Code .

Section 321 of the Criminal Code defines "break" as meaning: (

a) to break any part, internal or external, or (

b) to open anything that is used or intended to be used to close or to cover an internal or external opening; [ 79 ] Section 348(1) of the Code provides in part that, if a break and enter is committed in relation to a dwelling house, the person is guilty of an indictable offence and liable for life in prison. However, if the offence is committed in relation to a place other than a dwelling house, the person is guilty of an indictable offence and liable to imprisonment of no more than 10 years or of an offence punishable on

summary conviction. [ 80 ] Further, s. 348(2) provides that: . . . under this section, evidence that an accused . . . broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so . . . with intent to commit an indictable offence therein . . . [ 81 ] Section 348(3) provides that "place" means a dwelling house or a building or structure or any part thereof, other than a dwelling house. "Entrance" is also defined in s. 350 of the Criminal Code for the purpose of s. 348 as: (

a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and (

b) a person shall be deemed to have broken and entered if (

i) he obtained entrance by a threat or an artifice or by collusion with a person . . . or (ii) he entered without lawful justification or excuse, the proof of which lies on him, by a permanent or temporary opening. [ 82 ] Additionally there is s. 24 of the Criminal Code which deals with attempts and reads as follows: Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. [ 83 ] The essential elements of the offence of break and enter include the identity of the accused, the time and place of the offence.

In this case, the identity of the accused has been proven.

The time and place of the offence has been proven. [ 84 ] The further elements to be addressed are whether the accused broke and entered the place or attempted to do so, whether he intended to break and enter into that place, and whether he intended to commit an indictable offence. [ 85 ] As noted, s. 348 sets out a presumption that if breaking and entering is proven, it is also proof that it was done with the intent to commit an indictable offence. [ 86 ] In the case before me, there is no direct evidence from anyone, other than the accused, about how he entered the patio area. In direct examination, Mr.

McEachern said the back patio has a gate and that it was still closed when he saw it. There was no evidence that the patio doors or windows or anything pertaining to Suite 102 had been physically broken or broken into. Accordingly, there is no direct evidence from any witness, other than Mr. Mackenzie, and to some extent Mr. McEachern, of what he was doing when he was on that patio. There is no evidence that Mr. Mackenzie actually entered the suite itself. This point is not disputed. [ 87 ] I will address Mr. Mackenzie's credibility in another portion of these reasons.

So, I will deal briefly with the question of whether the patio was part of a residence. [ 88 ] The Crown asserted the patio is part of the residence. However, I am not sure it pursued that assertion as aggressively during the second argument as it did during the first argument. [ 89 ] In R. v. Wilderman , 2006 ABPC 246 , Judge Semenuk commented on that very issue. In that case, the residence in question was the second floor of a large condominium. The accused somehow climbed onto the balcony of the residence in question.

He was seen by the tenant of the suite, as he was standing on the balcony outside the sliding glass door. She approached him and asked him where he was going. He said he was there to see Rob and simply entered the suite. At trial, the judge found the accused had entered the suite by artifice and there was constructive break and enter. [ 90 ] In that case, the court noted at paragraph 42: It may be, on the facts in this case, that the accused Chad Wilderman committed a constructive break-in and entry by somehow simply climbing onto the apartment balcony.

There is no evidence that he had any permission from the apartment occupants to do so. Indeed, one of the occupants, Wheeler, was surprised to see him there. However, in the circumstances of this case, I leave that issue for another day. [ 91 ] If the patio is not found to be part of the residence, the question is whether entry onto the patio can be taken into consideration at all, because the offence charged by the Crown against Mr. Mackenzie is attempted break and enter of a residence.

Like Judge Semenuk, I have concluded, in the circumstances, that it is best left to another day and another case to decide whether entering an enclosed private patio can, without more, be a constructive break and enter. However, the place the accused entered and the manner of his entry are appropriate factors to take into account on the charge of attempted break and enter into the residence itself.

[92] I now turn very briefly to the legal principles regarding attempts. The law governing attempts has been summarized by Mr.Justice Watt in R. v. Root (2008), 2008 ONCA 869 , 62 C.R. (6th) 247. In that case, it was noted that an attempt to commit anoffence consists of two elements: the intent to commit the offence and conduct which is more than merely preparatory acts or omissionsfor the purpose of carrying out the intention to commit the offence. In that case, it was noted that: Attempts are preliminary or inchoate crimes.

That it is not possible to commit the substantive offence attempted is of no legal moment. [93] The case also noted that: Under s. 24(2) of the Criminal Code, whether conduct by a person who intends to commit a crime is mere preparation or has progressedbeyond it to constitute the actus reus of an attempt is a question of law . . . . . .

The actus reus may be but does not have to be a crime, tort or even a moral wrong. [94] It was also noted that: The authorities have yet to develop a satisfactory general criterion to assist trial judges in making the crucial distinction between merepreparation, on the one hand, and an attempt on the other. [95] Where on the continuum particular conduct lies was left to the common-sense judgment of trial judges. [96] In that case, it was also noted that: To constitute the actus reus of an attempt, the act of an accused need not be the last act before the completion of the substantive offence.

To constitute the actus reus of an attempt,

an act must be sufficiently proximate to the intended crime to amount to more than merepreparation to commit it. [97] Did the accused break and enter onto the patio? I will consider whether a break and enter can be deemed to have occurredpursuant to s. 350(b)(ii). That

section provides that: For the purposes of sections 348 . . . . . . a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered . . . Moreover, the person may: . . . be deemed to have broken and entered if . . . (ii) he entered without lawful justification or excuse, the proof of which lies on him, by a permanent or temporary opening. [98] As noted, in this case there is no direct evidence from anyone, other than Mr. Mackenzie, about how or why he got onto thepatio.

He maintains he was only on the patio to take drugs, and says he did not assume the position at the sliding glass door described byMr. McEachern. [99] On the evidence, I am satisfied that Mr. Mackenzie was not given permission or authorization to be in a space that I find to be aprivate patio. The testimony of Mrs. McEachern, her son Mr. McEachern, and the police officers is crystal clear: the patio was enclosed,it was very private, and there was a fence all the way around it. Mr. Mackenzie himself used the word "enclosed" in his evidence at leasttwice.

He went there because it was enclosed, it was perfect because it was enclosed. [100] I find that on the day in question, the gate that lead onto the patio, the tall, five-foot gate at the north side, the back of the patio,was latched but unlocked. I also find the side gate was closed. Mr. Mackenzie himself described going through that gate and the factthere was a little thing on top. I think he was asked by his counsel whether it was a latch, and he said it was a latch. It is clear on theevidence that no one invited him in. [101] It is clear on the evidence that this outdoor space was not a public space.

I do not accept his evidence that there was a walkwaydown the side of the building where the side fence and the side patio are located. In that regard, I have accepted the evidence ofMrs. McEachern, which was: there was no walkway, and there was a fence and trees on the other side of the fence between the twobuildings. So between the side patio area and the building next door there was a fence and trees, but there were no shrubs. [102] I next have to consider whether there was a lawful justification or excuse for Mr. Mackenzie to be on the patio. In this case,certain suggestions were put to Mr.

McEachern by the defence in cross-examination. Those suggestions were designed to establish theremay have been a valid reason for Mr. Mackenzie to be on the patio and to be holding onto the patio door. However, the mere making ofthose suggestions does not constitute evidence of lawful justification or excuse. Moreover, it is important to note, and I will comment onthis further, that what was said by Mr. Mackenzie about his reason for being on the patio and what he did on the patio was never put toMr.

McEachern. [103] In dealing with the question of whether he had lawful justification or excuse, I appreciate the phrase that "the proof of which liesupon him" has been ruled to be unconstitutional and in violation of s. 11(

d) of the Charter. However, the rest of the subsection wasfound to be valid once that phrase is eliminated. [104] Mr. Mackenzie gave evidence and claimed he went onto the patio in order to smoke heroin. First, I do not accept his evidence in

this regard. My analysis on his credibility follows in a separate section, but it applies to this

section of my reasons as well. [105] Second, even if I were to accept Mr. Mackenzie's evidence that he went onto the patio to smoke heroin, I do not find thatexplanation amounts to lawful justification or excuse. Mr. Mackenzie had no permission to be on the property, which includes the patio,the McEacherns rented. Mr. Mackenzie's desire to get high and use heroin, an illicit drug, is not, in my view, lawful justification for hisactions.

In this regard, I take judicial notice of the fact that possession and consumption of heroin is still an offence under the ControlledDrugs and Substances Act and was an offence on the date this situation arose. [106] Accordingly, although I accept Mr. Mackenzie's evidence that he is a drug addict and that he was in the throes of his addiction atthe time, this does not give him any rights to legally use heroin or to enter private property to do so. If Mr.

Mackenzie was unwell, by hisown admission, he was on his way to and was very close to VGH, therefore, he could have gone to the emergency department if heneeded medical attention. [107] I next turn to the question whether, if the patio is not a residence, it falls under the definition of "place". I am satisfied that thepatio falls within the definition of "place" set out in s. 348(3)(b), namely "a building or structure or any part thereof, other than adwelling-house". The case law indicates the definition of "place" contemplates the type of structure within which human beingsfunction. [108] In R. v.

Fajtl, , the British Columbia Court of Appeal addressed the issue of what constitutes a place. In thatcase, the police found the accused in the yard of a commercial premise. The main premises consisted of a bricked, walled officebuilding. Behind the building was a yard surrounded by a 10-foot-high wooden fence topped by barbed wire on three sides. Counsel inthat case argued the fence was not a structure and, moreover, that gaining entry by climbing over the fence did not constitute entrythrough a permanent or temporary opening. [109] Our Court of Appeal rejected both of those arguments.

The court reviewed a number of cases about the meaning of the word"structure". In particular it reviewed the case of R. v. Thibault (1982), (NS CA), 66 C.C.C. (2d) 422, where theaccused had climbed into an area enclosed by a seven-foot-high wire mesh fence.

In that case, the Nova Scotia Supreme Courtconcluded the fence enclosing the area constituted a structure and the accused had gained access to the area through a permanent ortemporary opening. [110] In Fajtl, our Court of Appeal was satisfied that the building was a structure and that the accused had gained access by means of atemporary or permanent opening. [111] In the circumstances of the case before me, I am satisfied that the private patio enclosed by a four-foot fence on one side and afive-foot fence at the back is a structure other than a dwelling house. Further, I am satisfied that Mr.

Mackenzie entered by a temporaryopening, namely the side gate. As such, the patio falls under the definition of "place" in s. 348 of the Criminal Code. [112] The next issue is whether the accused, Mr. Mackenzie, had the intent to commit an indictable offence. Section 348(2)(a)provides that: . . . evidence that an accused [person] (

a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he brokeand entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein . . . [113] Mr. Mackenzie testified in his defence. He denied that he made any attempt to break into the residence, namely, the suite. Further, he denied he ever assumed a stance, as alleged by Mr. McEachern, of holding the sliding glass doors with both hands with hisknees bent.

His explanation is he only went onto the patio because he thought it was a perfect place to sit and smoke some heroin. Hesaid he had tin foil, a straw, and a flap of heroin. He maintained he was sitting there when Mr. McEachern saw him on the patio. In fact,Mr. Mackenzie suggested that Mr. McEachern saw him holding the tin foil and the lighter and getting high. Further, Mr. Mackenzie saidthose items were on his person when he was arrested. [114] Mr. Mackenzie's evidence on this point is crucial. Accordingly, I pause here to address credibility.

As I noted, I consideredthese same factors when I dealt with credibility in the earlier part of this decision. [115] In a 2012 civil case, Madam Justice Ballance of the B.C. Supreme Court neatly summarized the factors to be considered inassessing credibility and the task that faces a trial judge in respect of this issue. The case is Erickson v. Sibble, 2012 BCSC 1880. I citeparagraphs 6 through to 8, paraphrasing somewhat: [6] Determining the credibility and reliability of a witness is fundamental to the judicial task, and yet [it] is notoriously difficult.

It hasbeen recognized that the determination is more an art than a science, and is not a purely intellectual exercise. The factors involved canbe challenging to verbalize . . . By the way, I am omitting all case citations. [7] A clarifying passage summarizing the factors to be considered in the art of the assessment is found in Bradshaw v. Stenner, 2010BCSC 1398 . . . Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and theaccuracy of the evidence that the witness provides . . .

The art of assessment involves examination of various factors such as the abilityand opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection,whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimonyduring direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has amotive to lie, and the demeanour of a witness generally . . .

Ultimately, the validity of the evidence depends on whether the evidence is

consistent with the probabilities affecting the case as a whole and shown to be in existence at the time . . . [ 116 ] I appreciate that in the context of a criminal case, I ought not to apply a balance of probabilities standard, but rather the higher standard of beyond a reasonable doubt. I am aware of the factors and steps set out in R. v. W.(D.) and have applied them in this case. However, I have referred to the excerpt from Erickson v.

Sibble , a civil case, because it is a useful and concise articulation of the factors to consider when assessing a witness's credibility. [ 117 ] I have serious concerns and reservations about accepting the accused's version of what he was doing on the patio and why he was on the patio for the following reasons. 1. He had been using, heavily using, illicit drugs such as morphine, cocaine, and heroin for about a month prior to the incident. He had taken cocaine and morphine the day before this incident. Further, he had consumed three to four litres of a vodka cooler earlier that day.

He was deep into addiction at that point in time. I therefore have no doubt that the cocktail of drugs and alcohol he consumed affected his ability to recall events. 2. He agreed his memory would not be very good and that his recollection of events might not be accurate. However, a short while later, he disagreed and said his memory of the March 18 events was accurate. 3. He agreed he was drunk and high, but maintained he was not guessing. 4. He agreed he was not thinking clearly. 5. He resiled from his earlier testimony that Mr. McEachern had seen him get high. 6.

The assertion of what he was doing on the patio was never put to Mr. McEachern. On the same vein, the assertion that he had drug paraphernalia and maybe some residue drugs in a cigarette package was never put to the police officers. This obviously was because the defence rethought its strategy. Nevertheless, the rule in Browne v. Dunn has to be considered. That rule says that a failure to put certain pieces of relevant evidence to witnesses and to give them an opportunity to comment on them can go to the weight to be placed on that evidence. In my view, the failure to put that evidence to Mr.

McEachern and to the police officers considerably lessens the weight to be given to Mr. Mackenzie's evidence. [ 118 ] Accordingly, after considering and applying the court's directions and the test set out in R. v. W.(D.) , I conclude I do not believe the accused's evidence regarding how and why he was on the back patio of Suite 102. I also do not believe his evidence that while there he smoked heroin and that he did not touch the sliding glass doors. Instead, I accept the testimony of Mr. McEachern that, when he first observed him, Mr.

Mackenzie was standing at the sliding glass door with both hands on the sliding glass door and his legs apart. I accept Mr. McEachern's evidence that Mr. Mackenzie's knees were bent in a posture that suggested he was pulling on the door. [ 119 ] I have reached this conclusion on the basis that Mr. Mackenzie is not a reliable witness. Given the combination of drugs and alcohol he had taken that morning and the night before, his recollection cannot be trusted. Moreover, the weight to be given to Mr.

Mackenzie's evidence is diminished by the fact that significant parts of his evidence were not put to the McEacherns or to the police officers. [ 120 ] On the second step of W.(D.) , I find that Mr. Mackenzie's evidence does not raise a reasonable doubt because he was not a reliable witness and his evidence was not credible. [ 121 ] I now go to Step 3, has the Crown proved its case beyond a reasonable doubt? As I said earlier in these reasons, I am satisfied the identification of Mr. Mackenzie has been proven. The time and place of the offence were proven. I am satisfied by the totality of the evidence that: Mr.

Mackenzie entered onto the patio without permission, he did not have a lawful reason for being there, and he intended to commit a break and enter into the residence adjacent to the patio, that is, into the suite. The steps he had taken, namely, standing at the sliding glass doors with his knees bent and pulling on the doors, were more than preparatory. [ 122 ] Accordingly, I find that the Crown has proven the charge of attempt break and enter. (REASONS FOR JUDGMENT CONCLUDED)