R. v. MacInnis, 2014 NSPC 55

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. MacInnis , 2014 NSPC 55 Date: 2014-07-31 Docket: 2569826 Registry: Pictou Between: Her Majesty the Queen v. Robert Douglas MacInnis VERDICT Judge: The Honourable Judge Del W. Atwood Heard: 15, 17, 31 July 2014, in Pictou, Nova Scotia Charge: Para. 348(1) (

b) of the Criminal Code of Canada Counsel: William Gorman, for the Nova Scotia Public Prosecution Service Joel E. Pink, Q.C., for Robert Douglas MacInnis By the Court: [ 1 ] Robert Douglas MacInnis is charged with breaking into the home of Brent Falconer and smashing up the place. The singular issue in this trial is determining how Mr. MacInnis got inside. Mr. Falconer told the court that Mr. MacInnis kicked open the front door and burst in. Mr. MacInnis testified that Mr. Falconer let him in. Having considered all of the evidence and the governing law, I find Mr.

MacInnis not guilty of the offence of break, enter and commit, but guilty of the included offence of being unlawfully in a dwelling with intent to commit an indictable offence contrary to sub- s. 349(1) of the Criminal Code . These are my reasons. [ 2 ] The court heard evidence over the course of two days. Much of it was focussed on the activities of Mr. MacInnis and his cohorts leading up to their arrival at Mr. Falconer’s home in Trenton on the evening of 4 March 2014. This evidence leads me to conclude that Mr.

MacInnis was quite worked up over the news that his common-law partner had been involved intimately with a Mr. MacKenzie and Mr. Falconer; disinhibited and fortified by liquor, he was determined, as the prosecutor described it appositely, to send a clear and unequivocal message. Mr. MacInnis and company got driven to Mr. MacKenzie’s home where they vandalized Mr. MacKenzie’s van. They then drove to Mr. Falconer’s where Mr. MacInnis and two of his friends walked up to the front door. [ 3 ] The evidence called by the prosecution and the defence was unanimous that Mr.

MacInnis knocked and someone inside answered the door. [ 4 ] It is then that the accounts diverge somewhat. [ 5 ] Mr. MacInnis swore that Mr. Falconer let him in. Mr. Falconer was adamant that he closed the door and locked it, but that Mr. MacInnis then kicked it open, barged in and started swinging a bat. [ 6 ] The burden of proof in any criminal case is upon the prosecution. The legal standard requires proof beyond a reasonable doubt. I am aware fully of the R. v. W.(D.) formula, [1] and I apply it here. I do not believe I need say anything more on that point.

A judgment must be analytically transparent and comprehensible, to be sure. But it also ought to get to the point with a certain level of verbal economy. [ 7 ] I am inclined to believing Mr. Falconer’s account. It seems highly likely that he would have closed the door and locked it when confronted at night by a trio of drunken men, one armed with a tire iron, and another, a bat. It also seems highly improbable that Mr. MacInnis would have been dissuaded very much by a simple obstacle as a locked door from going inside and delivering his Louisville-slugger-themed message to Mr.

Falconer. [ 8 ] However, I must consider all of the evidence. As I discussed in R. v. Fanning , psychology will take the court only so far. [2] I say so because this case has been portrayed in some respects as a contest of wills: was Mr. MacInnis’ determination to get inside greater than Mr. Falconer’s resolve to keep him out?

While a person’s evanescent thinking process and emotional state might be of assistance in determining circumstantially the important element of intent—and its offshoot, motive—I must keep in mind that there is a tangible component to this trial, in that it is the theory of the prosecution that Mr. MacInnis kicked open Mr. Falconer’s door. This was, then, a forced-entry break and enter. Over the years, I have defended, prosecuted and tried scores of forced-entry cases. Almost every single one has hinged on a square-foot-by-square-foot examination of the point of entry.

Given the characteristics of a forced entry, that ought

to be regarded as a common-sense investigative and forensic-proof approach. [ 9 ] To be clear, I recognize that a break and enter can happen without anything getting broken to bits.

Walking through an open door frame of a building under construction, if done without the permission of the property owner, [3] may constitute a break and enter. [4] But that is not the theory being presented to the court in this trial. [ 10 ] Coming back to the point that the court is trying what was allegedly a forced-entry break-in, this is the sort of case that would require the court to pay close attention to the physical condition of the point of entry, that is, Mr. Falconer’s front door and the surfaces around it.

Ordinarily, the court would be shown detailed, macro-level photography of every square foot of surface in play, interpreted by the testimony of a properly qualified crime-scene analyst who had examined the point of entry carefully. That sort of work might well have been done here; however, if so, it was not presented to me. Instead, the court was given Exhibit 1, which consisted of a series of twenty-seven photos of the Falconer residence, only eleven of which were of the doorway; two of those were out of focus, and only three depicted characteristics which were meaningfully observable.

There were only two fairly clear images of the striker-plate component of the lockset, but taken only from the interior. There were no images of the interior surface of the door except for a couple of close-up shots of the handle. There were no clear images of the door stop, and only partial images of the lock-side jamb. There were partial images of the exterior of the door, but no close-up imaging of transfer or scuff markings on the exterior surface, but for one that was badly out of focus. [ 11 ] The police who attended the scene did not testify.

There was no evidence that anyone checked the door during the investigation to see whether it was locked or whether the lock was operating properly. [ 12 ] From what I observed in Exhibit 1, photos 12, 15, 16, 17 and 22, the front door of Mr. Falconer’s residence appears to be inward opening; it is equipped with a standard cylindrical entry lockset as will be found in almost every home in this country.

Photo 12 depicts a turn-button lock on the interior handle, and photo 22 shows a key channel on the exterior handle. [ 13 ] Photo 9 depicts a lockset that appears to be a standard latch assembly model, with a spring-loaded bolt having an angled edge. As is well known, when a door of this construction is shut, the angled end of the latch bolt comes into contact with the rounded interior end of the striker plate.

As the door is closed further, the bolt slides along the striker and retracts fully into the latching mechanism inside the door. [ 14 ] Also seen in photo 9 is an anti-shim plunger that is flush with the bolt; this is an additional security feature common in entry locksets.

When aligned properly, the plunger will remain depressed against the striker plate when the door is shut; this locks the bolt mechanically, preventing it from being shimmed from the outside by an intruder. [ 15 ] Once the door is closed fully—assuming it is aligned properly—the bolt gets thrown by the latch spring; it then projects into the striker plate opening and door jamb channel. At that point, the bolt catches and holds the door shut. [ 16 ] These few photographs do not provide the court with very much useful information regarding the nature of the damage to the door.

Still, common sense would inform me that, if this door had been kicked in by someone standing on the outside step, there would be evidence of material deformation projecting, indeed, inward. [5] And, yet, the very opposite is depicted in Exhibit 1. Here is what I am able to see. [ 17 ] The striker plate as depicted from the perspective of the interior of the Falconer home in photos 7 and 10 appears to be bent outward, indicative to me of an applied force exerted against the interior of the door.

There is extensive fissuring of the door jamb shown in those same photos, but the fissuring is seen on the interior surface of the jamb, indicative, again, of an outward force being applied to the door. [ 18 ] When I examine photos 7 and 10 more closely, I am able to see that the interior of the door frame is unfinished. I can see the edge of the drywall; projecting beyond that is some sort of membrane—likely a vapour barrier—and then there is the jamb.

As will be seen from photo 10, it appears that the jamb has separated from the stud, so that one can see the corner of the jamb and the jamb surface that would ordinarily be flush with the stud. Again, the jamb appears to have been deformed or twisted in an outward direction, not inward. [ 19 ] Photo 10 appears to show a tang of metal on the interior aspect of the striker plate; the tang seems to bend into the striker opening. The photo does not allow me to see the side of the tang that would have come into contact with the latch bolt.

As a result, I am unable to see whether the tang was bent or deformed in any way; one would expect to see some sort of damage caused by the substantial amount of transferred force exerted by the square-face surface of the bolt upon the tang, had the door been kicked in from the outside. [ 20 ] In photo 9, it appears that the rim of the bolt seat is not inserted flushly into the side of the door.

There is no evidence that it was checked to determine whether this was an installation defect or a deformation due to applied force. [ 21 ] In photo 17, I observe that the bottom of the exterior door trim on the lock side of the frame appears to have separated from the siding. This is evident in the fissuring of the caulking.

There is no evidence that this was checked to attempt to ascertain the cause. [ 22 ] There were no photos taken of the interior flooring near the door where one might have expected fragmented or pulverised dry- wall material or other projected debris to have been deposited due to the damaging force of a door being kicked in. There were no photos of the door hinges; hinge deformation might have afforded some evidence of the source of the force applied to the door. [ 23 ] I have not ignored the scuff markings and tread impressions identified by Mr. Falconer on the exterior of the door.

They simply don’t tell me very much. [ 24 ] The fact is that the very limited evidence before me on the physical condition of the point of entry leads me to believe that the door was kicked from the interior of the residence. How might this have happened? Might someone in the raiding party have booted the door as a coup de grâce on the way out? Had the door been damaged previously as was brought out in defence evidence? It could be

none of the above, and my inferences might be off the mark. Had the court been presented with more detailed point-of-entry photography, as would be appropriate in a charge of this level of seriousness, along with the interpretive testimony of a properly qualified expect, my conclusions might have been different. Or not. It just seems that a great deal of trial time was consumed proving points that were not in dispute, while much less time was spent drilling down into the tangible and physical evidence that really mattered. [ 25 ] I do not find very credible Mr. MacInnis’ description of how he got inside Mr.

Falconer’s home. Nevertheless, that evidence, coupled with the limited evidence presented to me as to the condition of the point of entry, leaves me in a state of reasonable doubt whether Mr. MacInnis forced his way inside, and I cannot exclude the possibility that he got let in by Mr. Falconer. Accordingly, being left in a state of reasonable doubt about the essential element of there having been a break, I find Mr. MacInnis not guilty of the offence of break, enter and commit mischief.

This would apply as well to the offence of break and enter with intent, which is an included offence pursuant to sub-s. 662(6) of the Code . [ 26 ] Mr. MacInnis has pleaded guilty to the included offence of mischief in case number 2569826; accordingly, that count does not require a decision of the court other than the imposition of a sentence. [ 27 ] This does not end the court’s inquiry, as I am obligated to consider all included offences, [6] and sought submissions from counsel on that point.

I have reviewed in particular the well reasoned judgment of the Welsh J.A. of the Newfoundland and Labrador Court of Appeal in R. v. House [7] and I am satisfied that the offence of being unlawfully in a dwelling under sub-s. 349(1) of the Code is included in a para. 348(1) (

b) offence. The logic is unassailable: if an offender breaks into and enters a dwelling, later committing an indictable offence with the requisite criminal intent, then that person inevitably will have been inside the dwelling with the intent of committing an indictable offence, those being the essential elements of a crime under

section 349. I am reinforced in that view by the judgment of the Supreme Court of Canada in R. v. Johnson , in which Dickson J. (as he then was) analysed comparatively ss. 306 and 307 of the Code— now ss. 348 and 349—at the end of his opinion. [8] [ 28 ] I do not believe that Mr. MacInnis entered or was inside Mr. Falconer’s home to talk. Rather, he let his bat do the talking, straightaway. Indeed, Mr. MacInnis did not testify that he did any talking before he started swinging. I am satisfied beyond a reasonable doubt that Mr. MacInnis was inside Mr.

Falconer’s home with intent to commit the indictable offence of mischief. The entirety of the evidence does not leave me in any doubt on that point. I am certainly mindful that I must not engage in propensity reasoning that would have me conclude Mr. MacInnis is more likely guilty of a s. 349 offence because he has pleaded guilty to the two

section 430 offences involving the damage to the MacKenzie vehicle and the interior of Mr. Falconer’s home. However, the evidence that I heard about how that damage occurred provides strong circumstantial support of Mr. MacInnis’s felonious intent when he walked up to Mr. Falconer’s door and then went inside. [ 29 ] I wish to note that the defence of intoxication was not raised in this case. Properly so, as there would have been no air of reality to it. Mr.

MacInnis’s actions might have been disinhibited, but they were planned, deliberate, and calculated to achieve an intended effect. [ 30 ] Accordingly, I find Mr. MacInnis not guilty of break, enter and commit mischief, not guilty of break and enter with intent, but guilty of the included offence of being in a dwelling house with intent to commit an indictable offence, contrary to sub-s. 349(1) of the Code .

Although s. 349 describes a hybrid offence, as the principle charge was indictable, the included offence is governed by an indictable process also. [9] [ 31 ] I wish to make one final comment, one that pertains not to the verdict, but to process. This is one in a series of several break- and-enter cases to have been tried in this judicial centre over the past four years in which separate informations have been laid and separate trials conducted for accused involved in what were alleged to have been common enterprises. The purpose for doing so seems to have been to allow the calling of accomplice evidence.

From what I have seen, this practise does not seem to have produced many identifiable benefits for either the prosecution or defence. [ 32 ] The conventional wisdom of years gone by was that, if a case hinged on the testimony of an accomplice, serious questions needed to be asked about its vitality. I acknowledge that a more flexible approach is generally taken nowadays. [ 33 ] And, yet, I know for a fact that joint informations can be laid and tried.

I know this because I have seen it done in every other judicial centre where I have been called upon to conduct the business of the court. [ 34 ] Certainly, trials must be heard fairly and thoroughly—but also reasonably economically, as justice is administered in this province with a finite amount of resources. [ 35 ] This past Monday, I had an accused before me for arraignment charged in four separate informations, each one laid by the same officer, each charging a

section 430 offence, each alleged to have occurred on the same date, and finally, each sworn to one right after the other. I am certain that the policing service responsible for these charges does not wish to see its investigator head off to court four different times in order to repeat the same evidence over and over and over and over. I know that the court certainly does not want that to happen. But the fact is that, should those charges go to trial, that is precisely what would happen, given the presumption in R. v.

Clunas that separate informations call for separate trials. [10] [ 36 ] The court does not lay charges, and the court is not to interfere with prosecutorial discretion. What I can do is invite policing services and the prosecution to avoid the unnecessary multiplication of informations and trials whenever possible. JPC