2022 NBPC 9, 2022 NBPC 9

CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT Trial Date: August 12 th and September 15 th , 2022 Decision Date: October 20 th , 2022 Docket No.: 159619 Neutral Citation: 2022NBPC09 HIS MAJESTY, THE KING - and - KEVIN JOSEPH RICHARDSON Decision of the Honourable Judge Scott A. Brittain Provincial Court of New Brunswick Note: Non-substantive editorial/grammatical changes were made to this decision following it being delivered orally on December 20 th , 2022. APPEARANCES: Melanie MacAulay, on behalf of His Majesty, The King Euclide LeBouthillier, K.C., on behalf of the Accused DELIVERED ORALLY INTRODUCTION 1 .

The accused, Kevin Richardson, (“Mr. Richardson”) was charged in a single-count Information sworn to before this Court on June 7 th , 2022. The count reads as follows: Kevin RICHARDSON, on or about the 3 rd day of March, 2022, at or near Barryville, in the County of Northumberland and Province of New Brunswick, did break and enter a certain place to wit: a residence situate at 1762 Hwy 11, Barryville, with intent to commit an indictable offence therein, contrary to and in violation of Paragraph 348(1) (

a) of the Criminal Code of Canada and amendments thereto. THE EVIDENCE 2 . The Crown called the following witnesses at trial: (

a) Tania Lynn Paul; (

b) Constable Marie-Pier Dubreuil; (

c) Constable Jerome Bergeron, and

(

d) Sergeant Louis Bedard 3 . The Defence called the following witness at trial: (

a) Mr. Richardson. 4 . The following Exhibits were entered into evidence at trial: (

a) Exhibit C-1 - 12 photographs taken by Constable Dubreuil on March 3 rd , 2022, with cover page; (

b) Exhibit C-2 - Expert Friction Ridge Evidence ACE-V Report prepared by Sergeant Bedard re: File No 2022-167669, dated July 6 th , 2022; (

c) Exhibit C-3 - 2 close-up impression analysis photographs taken by Sergeant Bedard, and (

d) Exhibit C-4 - 18 photographs taken by Sergeant Bedard on March 4 th , 2022. Tania Lynn Paul’s Evidence 5 . Ms. Paul lives at 169 Oak Point Road, Highway 11 in Oak Point, New Brunswick. She and her late husband, Leon Paul, who passed away on April 30 th , 2022, after an extended battle with complications arising from COVID-19, resided near the mobile home of the late Charles Sonier (“Mr. Sonier”). 6 . Mr. Sonier passed away on January 2 nd , 2022. He lived alone in his mobile home situated at 1762 Highway 11 in Barryville, New Brunswick (the “Sonier Residence”).

His two adult children live a considerable distance away (one in Saint John, New Brunswick and the other in Sussex, New Brunswick). Mr. Paul and Mr. Sonier were friends. They played crib together. Mr. Paul was substantially younger than Mr. Sonier and would also assist him by picking up his groceries and doing other errands. When Mr. Paul fell ill with COVID-19 prior to Mr. Sonier’s death and was hospitalized for related complications, Ms. Paul stepped into the breach and assisted Mr. Sonier with tasks that her ailing husband previously carried out for him. 7 . Ms. Paul testified that after Mr.

Sonier died, she kept an eye on the vacant Sonier Residence for his family and checked on it regularly. When Ms. Paul’s daughter was passing the Sonier Residence enroute to her mother’s home in the late afternoon/early evening of March 3 rd , 2022, she noticed something amiss with Mr. Sonier’s car, a blue Hyundai Accent, which was parked in front of the Sonier Residence. From the road, it appeared to her that someone had attempted to pry the hood open on Mr. Sonier’s car. 8 . Ms. Paul’s daughter immediately reported this observation to her mother and, in turn, Ms.

Paul attended at the Sonier Residence to examine the situation for herself. She found a shovel near the rear of the vehicle and footprints in the freshly fallen snow immediately adjacent to Mr. Sonier’s car with visible evidence that attempts had recently been made to pry open its hood. Moreover, Mr. Sonier’s car was jacked up on blocks. 9 . When she walked around to the rear of the Sonier Residence, Ms. Paul discovered it had been broken into. The rear patio door was “wide open” and the rear window above the sink in the kitchen was smashed. Ms.

Paul testified that there had been other recent break-ins at the Sonier Residence, with her having called the RCMP one time before. She also testified, and this will become notable for reasons later explained, that the patio door, which was a standard sliding door, had been inoperable to such an extent that it couldn’t be used as a means of access or egress. This was a state of affairs that had persisted for as long as Ms. Paul could remember. 10 . Ms. Paul had a key to the front door of the Sonier Residence but did not enter after observing the evidence of the break and enter.

Instead, she called the RCMP, estimating this occurred around 6pm or 7pm on March 3 rd , 2022. It “took them awhile to get there”, she explained. The last time Ms. Paul had driven past the Sonier Residence was on the previous evening at approximately 7pm or 8pm and the last time she had been inside the Sonier Residence was “a few days or so”/up to week prior. On neither of those occasions did she notice anything amiss with Mr. Sonier’s car or at the Sonier Residence more generally. The fresh snow which covered the ground on the evening of March 3 rd , 2022, had not yet fallen when Ms.

Paul had driven past the Sonier Residence the evening before. Between the date of Mr. Sonier’s death and the break-in on March 3 rd , 2022, Ms. Paul testified that she “pulled in [to the driveway of the Sonier Residence] almost every day to check things out” and she sometimes went inside to ensure everything was in order. 11 . After the RCMP arrived and cleared the Sonier Residence, Ms. Paul went inside and observed significant disarray, particularly in the back bedroom where Mr. Sonier had a large collection of power tools. On previous visits to the Sonier Residence, Ms.

Paul recalled that the back bedroom which contained Mr. Sonier’s tools had been much more orderly. “It wasn’t clean but it was organized”, she testified. Despite the disruption and disarray that Ms. Paul observed inside the Sonier Residence after this break and enter, she was unable to say what, if anything, was actually missing from the Sonier Residence beyond a set of keys for Mr. Sonier’s car. She explained that Mr. Sonier had a considerable collection of tools, some of which are depicted on page 9 of Exhibit C-1 . 12 . Ms.

Paul reviewed Exhibit C-1 , identifying the mobile home depicted therein as the Sonier Residence and the blue Hyundai Accent as belonging to Mr. Sonier. She went through each of the 12 photographs, confirming that the damage to the rear patio door, the rear

window above the kitchen sink and Mr. Sonier’s car was all consistent with what she observed on the evening of March 3 rd , 2022, with her own eyes. She also identified the interior of the front door to the Sonier Residence, which was missing the latch plate (found on the floor) and had busted trim along the side of the door that appeared to be caused by the recent breach. 13 . On cross-examination, Ms. Paul was asked if she ever remembered Mr. Richardson being in the Sonier Residence or whether there had ever been any mention of him playing crib with her late husband.

Her response was “no” but she qualified this statement by noting that it was not until her husband became sick and was no longer able to assist Mr. Sonier that she began making regular visits to the Sonier Residence. Prior to that, it was her husband who engaged with Mr. Sonier and assisted him as required. Constable Marie-Pier Dubreuil’s Evidence 14 . Constable Dubreuil began her career with the RCMP approximately two years ago and is stationed at the detachment in Neguac, New Brunswick. She was the RCMP officer who responded to Ms. Paul’s call on the evening of March 3 rd , 2022.

She recalls being dispatched to respond to that call at approximately 7pm and arriving at the Sonier Residence at approximately 7:25pm. Constable Dubreuil was working alone that night. 15 . Upon her arrival at the Sonier Residence, Constable Dubreuil first noticed Mr. Sonier’s car hoisted up onto a “wooden block”. The hood was forced open and a shovel was laying on the ground behind the vehicle. Constable Dubreuil then proceeded to the back of the Sonier Residence where she observed the broken window and broken patio door.

She entered the Sonier Residence, clearing it room by room to ensure no one was still inside. The RCMP was unable to determine if any property had actually been stolen from the Sonier Residence so “no charges were pursued for stolen property”. Like Ms. Paul, Constable Dubreuil observed footprints in the freshly fallen snow that evening but by the time she arrived, Ms. Paul had travelled between the car and rear entrance leaving her own footprints. Constable Dubreuil took several photographs of her observations, which were admitted as Exhibit C-1 at trial. As with Ms.

Paul, the Crown reviewed each of these photographs with Constable Dubreuil and she proceeded to explain she took all of them at the exterior and in the interior of the Sonier Residence on the evening of March 3 rd , 2022. She explained that these photographs depicted the damage to Mr. Sonier’s car and the rear window and patio door of the Sonier Residence as well as what she observed inside, including the damage to the front door, as viewed from the living room’s interior, and the general disarray inside. 16 .

Based on her observations coupled with her experience and training, Constable Dubreuil quickly concluded that she was investigating a break and enter to the Sonier Residence. Accordingly, she contacted dispatch and requested that the Identification Unit attend at the scene with a view to collecting any possible forensic evidence. No one from the Identification Unit was available that evening, so arrangements were made for someone to attend the following day. Steps were then taken to secure the home by boarding up the broken doors and window with chipboard.

This was Constable Dubreuil’s first and only visit to the Sonier Residence. Constable Jerome Bergeron’s Evidence 17 . Constable Bergeron is a three-year veteran of the RCMP. His involvement in this matter was limited. He was the officer responsible for arresting and processing Mr. Richardson, which included taking his impressions upon arrest following all established protocols and procedures. Mr. Richardson was arrested on March 20 th , 2022. This was his first and only experience ever dealing with Mr. Richardson. Impressions were collected from Mr.

Richardson using the “LiveScan” technology at the Tracadie detachment of the RCMP. Constable Bergeron provided a detailed description of how this technology functions and the steps he took to collect Mr. Richardson’s impressions. Essentially, scans are taken of impressions and the system then verifies whether the samples taken are indeed useable. If unusable, the technology signals that outcome to its operator. In this instance, the technology verified the useability of the impressions collected from Mr. Richardson. Sergeant Louis Bedard’s Evidence 18 . Sergeant Bedard is a 19-year RCMP veteran.

In October of 2007, he started working with the RCMP’s Identification Unit in Bathurst, New Brunswick, which he now leads. Sergeant Bedard described the long and involved route to become an expert qualified to do the nuanced forensic work he does. Suffice it to say that it is a rigorous, multi-stage process that entails a combination of apprenticeships, classroom training and examinations for certification/recertification. 19 . Sergeant Bedard went on to testify that he has thrice been qualified as a forensic expert in impression examination and identification by New Brunswick courts.

Based on the extensive credentials and experience of Sergeant Bedard, the Court accepted and duly qualified him for the purposes of this proceeding as a forensic impression expert. 20 . Sergeant Bedard testified that he attended at the Sonier Residence at approximately 10:45am on March 4 th , 2022. He noticed several footprints in the snow outside but the blowing wind coupled with the granular quality of the snow rendered it impossible to obtain useable footprints for the purpose of comparison. Sergeant Bedard entered through the front door of the Sonier Residence and Ms.

Paul was present to show him what had recently been disturbed inside in order to focus his work. He first searched for latent impressions from footwear left on the interior floor; however, it was dirty and he was unable to collect any useable impressions. 21 . His focus then turned to the rear patio door, as depicted at pages 11 through 15 of Exhibit C-4 . When he arrived, that opening was secured with chipboard.

One segment of the patio door was situated in the kitchen and he was able to collect four impressions, being two fingerprints and two partial palm prints, that he considered to be “good impressions” from the patio door. Consistent with standard practice, the impressions collected by Sergeant Bedard were examined by another expert who reached the same conclusion respecting their quality/useability.

Using his knowledge and expertise, Sergeant Bedard was able to conclude that some of the impressions had been placed while the patio door was stationary while others led him to conclude they had been placed while the patio door was being moved.

He explained, with reference to Exhibit C-4 , that these impressions were lifted from both the frame and glass window of the patio door, found on what was the interior of the patio door as mounted. Sergeant Bedard marked and photographed the parts of the door from which these impressions were collected and then lifted them with tape. 22 . When examining impressions of this nature relative to those collected from a suspect, Sergeant Bedard explained that the process can lead to three potential conclusions: (1) positive identification; (2) exclusion, or (3) inconclusive.

After collecting these impressions, Sergeant Bedard used technology to increase the contrast on the impressions and then “sent them to Ottawa” where they were searched against a national data bank of collected impressions. This technology is used to generate potential matches relative to the collection of impressions that reside in the national data bank. At this time, it should be noted that there was no suspect for this break and enter. 23 . The search of the national data bank identified a potential match, being Mr. Richardson.

Once a positive identification is made, Sergeant Bedard explained that information is provided to the relevant RCMP detachment for further investigation and the process of analysis, comparison, evaluation and verification later unfolds. 24 . Through his use of digital impression comparison, Sergeant Bedard was able to find what he described as a “conclusive match” between the impressions collected at the crime scene of the Sonier Residence and those collected from Mr. Richardson by Constable Bergeron on March 20, 2022.

Upon making this positive identification, Sergeant Bedard contacted Constable Dubreuil to advise her accordingly and then prepared a report detailing his findings, dated July 6 th , 2022, which is marked as Exhibit C-2 . 25 . It is not the intention of this Court to take a granular dive into Exhibit C-2 . Suffice it to say that it describes in meticulous detail the steps taken from a technical perspective which led to a positive identification of impressions on the patio door of the Sonier Residence which conclusively matched those collected from Mr. Richardson by Constable Bergeron on March 20, 2022. 26 .

On cross-examination, Sergeant Bedard confirmed that the only impressions he collected from the Sonier Residence were from the patio door. Moreover, he testified that he was unable to verify exactly when they were left but what he observed is consistent with those impressions having been left within 14 days but it could’ve been earlier. On re-direct, Sergeant Bedard testified that he checked for impressions elsewhere in the Sonier Residence; however, he concluded that the level of dust in the home and its generally messy state precluded him from collecting useable impressions from those surfaces.

Kevin Richardson’s Evidence 27 . Mr. Richardson is 38 years-old. He resides at 1831 Highway 11 in Barryville, New Brunswick across the road from the Sonier Residence. He testified that he is able to see the Sonier Residence from his front window and that he came to know Mr. Sonier after he returned home from Winnipeg, Manitoba in 2017. 28 . Mr. Richardson testified that he had been to the Sonier Residence before but there had been no snow on the ground the last time he was there, meaning at some point earlier that winter before any snow had fallen. He was uncertain about the approximate date. Mr.

Richardson testified that he sometimes “got lifts from Charlie” to certain places and went to the Sonier Residence from time to time to play crib with Mr. Sonier and Mr. Paul, now both deceased as earlier noted, as well as a neighbour named Kevin Tucker and another man whom he only identified as “Rene”. Neither Mr. Tucker nor “Rene” testified at trial. Mr. Richardson estimated that the last time he had played crib at Mr. Sonier’s was in the summer of 2021. 29 . On cross examination, Mr.

Richardson acknowledged that on all previous visits to the Sonier Residence he entered through the front door and had never entered through the rear patio door. He also was aware that Mr. Sonier had died in the early winter of 2022. Mr. Richardson testified that he wasn’t sure if anyone was living at the Sonier Residence at the time of the break and enter. Moreover, it was Mr. Richardson’s evidence that he did not know about Mr. Sonier’s extensive tool collection because he had only ever been in the living room and kitchen areas of the Sonier Residence. 30 . That being said, Mr.

Richardson testified that he had once borrowed a welding helmet from Mr. Sonier and that he had asked Mr. Sonier for a drive last time he had seen him. At that time, Mr. Sonier was a little upset with him because he had never returned the welding helmet, so Mr. Richardson went to his place, retrieved it and returned it. 31 . When asked about whether there would be any reason why his impressions were found by Sergeant Bedard on the rear patio door, Mr. Richardson explained he “may have been near it” at one point or another when he was playing crib.

Asked if he had ever had occasion to grab the patio door and move it around in a manner consistent with the impressions lifted from it, he explained that he “didn’t take the door off”. The only reason he could offer as to why his impressions were found on the rear patio door of the Sonier Residence was that he was “near it at the table” when he was playing crib. He later testified that the last time he was at the Sonier Residence, he went to the patio door and that he had “been near it a bunch of times”. The Crown asked Mr. Richardson whether he recalled the testimony of Ms.

Paul that the rear patio door had been inoperable for a long time and then specifically put it to him that he had never opened that door on any past visits with Mr. Sonier, Mr. Richardson became visibly irritated and stated “I can’t say if I have or haven’t”. He then testified that he couldn’t remember whether he had previously gone in and out of the rear patio door “but he could have”. 32 . The Crown then reviewed Mr. Richardson’s criminal record with him, which included a 2003 break and enter into a hotel room at the River Inn and an assault on its occupant.

Another break and enter conviction in 2019 was reviewed by the Crown with Mr. Richardson. It involved a shop close to his place of residence. The Crown also pursued with Mr. Richardson his past and longstanding addiction issues dating back to high school, including Methamphetamine, which he acknowledged he was using in or about March of 2022. When asked by the Crown about how lucrative the theft of tools can be for addicts, Mr. Richardson stated “I have $2,500 worth of tools”. The Crown put to Mr. Richardson its theory that: (1) he knew Mr.

Sonier had died; (2) he further knew no one was living at the Sonier Residence; (3) he saw an opportunity and seized it, and (4) he could not explain why his impressions were collected from the rear patio door. Mr. Richardson responded “I touched the door one time when I was in the house”.

THE ISSUE 33. The issue arising in this matter is whether the Crown has established beyond a reasonable doubt that the accused committed theoffence of break and enter with the intent to commit an indictable offence. The answer to this question rests heavily on a credibilityassessment and the examination of the evidence of Mr. Richardson through the analytical lens described in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, and finally, a consideration of the nature of the largely circumstantial evidence before the court and whatinferences and conclusions might reasonably be drawn from it. THE ESSENTIAL ELEMENTS OF THE OFFENCE 34. For this Court to find Mr. Richardson guilty under Section 348(1)(

a) of the Criminal Code, the Crown must prove each of thefollowing essential elements beyond a reasonable doubt: a. That Mr. Richardson broke into the Sonier Residence (the actus reus); b. That Mr. Richardson did so with the intent to commit an indictable offence (the mens rea). As it pertains to this essential element,the Court must consider Section 348(2)(

a) of the Criminal Code, which provides that “evidence that an accused broke and entered aplace…is, in the absence of evidence to the contrary, proof that he broke and entered the place…with intent to commit an indictableoffence therein”. 35. If the Court is not satisfied beyond a reasonable doubt of all the essential elements of the offence, the Court must find Mr.Richardson not guilty. 36. The Crown must prove each essential element beyond a reasonable doubt. Proof of probable or likely guilt is not enough. 37. Mr. Richardson is presumed to be innocent respecting the single count before this Court.

He has no burden of proof as it relates toany of the essential elements of the offence. THE APPLICABLE LAW The Presumption of Innocence, Credibility, Reliability and R. v. W.(D.) 38. Like every other person charged with a crime, Mr. Richardson is presumed innocent until the Crown has proven his guilt beyond areasonable doubt. The Crown bears the burden of proof throughout the entire trial. Mr. Richardson need not present any evidence norprove anything (see: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). 39.

At paragraph 39 of Lifchus, Cory, J. described the standard as follows: 39 Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give thebenefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonabledoubt. 40. In R. v. Starr, [2000] S.C.C. 40, the Court described the level of proof as "much closer to absolute certainty than to ... a balance ofprobabilities." The burden remains on the Crown throughout. Proof of probable or even likely guilt, is insufficient. 41.

This case will be decided as a matter of law according to the principles set out in R. v. W.(D.), in which Cory J. provided a helpfulanalytical framework for deciding cases involving credibility. He stated: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must [still] acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 42. In another case, R. v. H. (C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), the British Columbia Court ofAppeal further supplemented the analytical framework offered by Cory, J. in R. v.

W.(D.) by offering the follow guidance: I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. 43. In Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, loose leaf (Toronto: Canada Law

Book, 2011) at 2521, the text states: It is useful to think of W.D. as a teaching on the correct process of reasoning about credibility. It forbids two distinct lines of analysesbecause they are inconsistent with the accused’s right to the presumption of innocence until guilt is proven by the Crown beyond areasonable doubt. First, it is forbidden to reason that the accused’s evidence must be believed to secure an acquittal. The accused generally bears no burdenof proof and thus need not be believed on a balance of probabilities and certainly not on the highest standard of proof beyond areasonable doubt.

The second forbidden line of reasoning is for the trier of fact to think that the task of adjudication requires the trier of fact to answer thegeneral question of “What happened?” The problem with such a focus is that it creates a tendency in the trier of fact to search through theevidence looking for the truth and deciding whose evidence to believe, rather than searching for a reasonable doubt and giving theaccused the benefit of it. (emphasis added) 44. In R. v. Jones (1992), (QC CA), 74 C.C.C. (3d) 377 (Que.

C.A.) at pp. 379-380, Proulx, J.A. explains that whilethe search for and the determination of truth remain legitimate objectives for the trial judge, his or her role is nonetheless limited by thefundamental principles which govern the burden of adducing evidence and of persuasion. Because of the presumption of innocence,when the judge is confronted with contradictory versions, he or she does not have to decide which one of these versions is true.

Rather,the task of the trial judge is more acutely focused on determining whether the evidence as a whole raises a reasonable doubt, or whetherit satisfies him or her beyond a reasonable doubt as to the guilt of the accused. 45. Commenting specifically on Proulx J.A.’s analysis in the aforementioned decision, my colleague, Cloutier, P.C.J. (as he then was) ofthis Court, observed in R. v. I.J., 2018 NBPC 4 , 2018 NBPC 04 that “I would fine tune Justice Proulx’s comments in tworespects.

First, judges are not equipped with supernatural powers or favored with special insight allowing them to assess and rankcredibility. Second, the ultimate issue is not credibility but reasonable doubt”. 46. The corollary to this is that the trial judge need not decide who was telling the truth. The question, again, returns to the fundamentalquestion of whether the Crown has proven all of the essential elements of the offence beyond a reasonable doubt. 47. In assessing the evidence of Mr. Richardson, I am entitled to consider it in the context of all of the other evidence.

In doing so, I amnot only permitted, but also encouraged, to compare the evidence of both the Defence and the Crown (see R. v. Mends, 2007 ONCA 669at para. 18 and R. v Carriere (2001), (ON CA), 159 C.C.C. (3d) 51 at par. 48 (Ont. C.A.)). 48. Making credibility findings is more art than science and cannot be reduced to a mechanical or formulaic exercise. A trial judge neednot deal with every piece of evidence in the context of reaching his or her credibility findings.

Credibility findings can be difficult toarticulate with precision, particularly when one considers the complex intermingling of impressions that emerge after the hearing of atrial: R. v. Gagnon 2006 SCC 17 , [2006] 1 S.C.R. 621 at para. 20 and R. v. Dinardo, 2008 SCC 24 , [2008] 1 S.C.R.788 at para. 26. 49. As was noted by Richard, J.A. (as he then was) in R. v. Wilson, 2013 NBCA 38, an abundance of jurisprudence has arisen from R. v.W.(D.).

Writing for our Court of Appeal, Richard J.A. provides an extremely helpful synopsis of the salient principles regarding thestandard of proof applicable in criminal cases at para. 36: A.1 Proof beyond a reasonable doubt, the standard in criminal law matters, applies equally to the issue of credibility: W.(D.), at para. 26.In other words, the issue at the end of a trial is not credibility, but reasonable doubt: Sheppard, at para. 65, and C.L.Y., at para. 6. A.2 The ideal reasoning process to determine a matter, where the accused denies guilt and credibility is in issue, is to follow the W.(D.)formula: a.

First, if the accused is believed, there must be an acquittal; b. Second, if the accused is not believed but the trier of fact is left in a reasonable doubt by it, there must also be an acquittal; c. Third, even if the evidence of the accused does not raise a reasonable doubt, a conviction is only justified if the trier of fact isconvinced of guilt beyond a reasonable doubt on the basis of the evidence that is accepted: W.(D.), at para. 28.

A.3 However, this formula is but a roadmap to remind the trier of fact the ultimate goal is proof beyond reasonable doubt and not merelya credibility contest; it is not the only route: C.L.Y., at para. 8. It is the substance of the test that must be respected, not its literal tripartiteincarnation: R. v. Szczerbaniwicz, 2010 SCC 15, [2010] 1 S.C.R. 455 (S.C.C.), at para. 14. A.4 A trier of fact need not firmly believe or disbelieve any witness or set of witnesses: W.(D.), at para. 27. A reasonable doubt need notrest upon the same sort of foundation of factual findings that is required to support a conviction.

A reasonable doubt arises where aninadequate foundation has been laid: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245 (S.C.C.), at para. 26, quoting Sharpe J.A.,

dissenting, in R. v. Kendall, (ON CA), [2005] O.J. No. 2457 (Ont. C.A.). A reasonable doubt does not need to bebased on the evidence; it can arise from an absence of evidence or from a simple failure of the evidence to persuade the trier of fact to therequisite level: R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197 (S.C.C.), at para. 39. A.5 Trial judges are presumed to know the law with which they work day in and day out: R. v. B. (R.H.), (SCC),[1994] 1 S.C.R. 656, [1994] S.C.J. No. 30 (S.C.C.), at para. 18.

A.6 By stating that the accused is not believed, a trial judge is implicitly addressing the first two steps in W.(D.): Boucher, at paras. 29and 59. 50. At para. 41 of his decision in R.v. Bartibogue, 2019 (unreported), my colleague, Gunn, P.C.J. of this Court, provides an extremelyhelpful “non-exhaustive list of relevant factors in assessing credibility”, as is synthesized from the jurisprudential guidance of theSupreme Court of Canada and our Court of Appeal.

This list is as follows: a. the witness's opportunities for knowledge; b. the witness's powers of observation; c. the witness's judgment and memory; d. the witness's ability to clearly describe what has been seen and heard; e. How the testimony of the witness harmonizes "with the probabilities which a practical and informed person would readilyrecognize as reasonable in that place and in those conditions."; f. the cogency of the account; g.

Inconsistencies, and whether such inconsistencies: i. make the main points of the testimony more or less believable and reliable; ii. whether the inconsistency is about something important, or a minor detail; iii. whether the inconsistency seems like an honest mistake or a deliberate lie. h. Whether the witness has an interest in the outcome of the case, or any reason to give evidence that is more favourable to one sidethan to the other, though care should be taken not to put undue weight on this factor; i.

An absence of motive for the complainant to lie is relevant to the fact-finding process however, the trier of fact, must be careful toremember that this is but one factor, the accused has no obligation to prove a motive to fabricate and to not to let this factor turn into areversal of the onus of proof; and j. The demeanour of the witness, though this is but one of the elements that enter into the credibility of the evidence of a witness andcan be both an unreliable indicator of truth and fallible. 51. It is also important to consider the reliability of a witness.

A witness may be found to be credible; however, that does not answer thequestion of whether the evidence he or she provided at trial is reliable. It is important for the trial judge to recognize and consider thisdistinction. APPLICATION OF THE LAW TO THE FACTS 52. Counsel for Mr. Richardson submits that his client ought to be acquitted because the Crown has not proven the essential elements of

the offence of break and enter with intent to commit and indictable offence beyond a reasonable doubt. In taking this position, Mr. Richardson’s counsel emphasized that there were no eye-witnesses placing his client at the Sonier Residence between the evening of March 2 nd and March 3 rd , 2022. As for the impressions found by Sergeant Bedard on the patio door, Mr. Richardson’s counsel emphasized his client was friends with Mr. Sonier and, consequently, there were legitimate reasons why his impressions were found where they were. According to Mr. Richardson, he and Mr. Sonier played crib together.

He also provided names of those crib players still alive but the Crown ultimately declined to call them as rebuttal witnesses after reserving the opportunity to do so following the closing of the Defence’s case. Counsel for Mr. Richardson went on to point out that nothing was reportedly taken from the residence other than a set of keys and that the impressions of his client were only found on the patio door, and, notably, not on any tools, not on Mr. Sonier’s car and not on the broken front door of the Sonier Residence. Moreover, no footprint impressions were collected by Sergeant Bedard. Mr.

Richardson’s counsel submitted it would amount to a miscarriage of justice to convict his client based on what he described as the “entirely circumstantial” and “weak” case advanced by the Crown. 53 . To the contrary, the Crown submits that it has proven all of the essential elements of the offence beyond a reasonable doubt and that this is achieved by drawing reasonable and ineluctable inferences from the evidence of Sergeant Bedard, which confirms Mr.

Richardson’s impressions were indeed found on the rear patio door to the Sonier Residence and, more particularly, that the Court should take special note of where on the patio door those impressions were found which is consistent with physically picking up and moving around a door that, according to Ms. Paul’s evidence, had been entirely inoperable for as long as she could remember. The Crown placed significant emphasis on Mr.

Richardson’s seeming inability to explain how it was that his impressions ended up where they did on the patio door, which are consistent with the door being moved about after being removed from its sliding tract rather than the conventional opening and closing of a sliding door. 54 . Counsel for Mr. Richardson and the Crown did agree on one thing in their respective final submissions: that this case ultimately turns on R. v. W.(D.) considerations. 55 .

The Crown’s case is indeed a circumstantial case but the evidence is powerful insofar as it pertains to the impressions collected by Sergeant Bedard relative to where those impressions were collected. The Crown clearly established that a break and enter occurred at the Sonier Residence at sometime within a 24-hour window between the evenings of March 2 nd and 3 rd , 2022 between when Ms. Paul was last there and when her daughter observed that the hood of Mr. Sonier’s car had been pried open. Indeed, that period can be narrowed even further in view of Ms.

Paul’s evidence, which the Court accepts, regarding the timing of the snow fall that occurred at some point overnight between March 2 nd and 3 rd , 2022. 56 . Ms. Paul testified that her late husband was a friend of Mr. Sonier and assisted this elderly gentleman until he, himself, was hospitalized as a result of complications from COVID-19. Mr. Paul was hospitalized prior to Mr. Sonier’s death and, in the absence of being able continue to assist his elderly friend and neighbour, Ms. Paul stepped into that breach and assisted Mr.

Sonier while also managing the challenges associated with her husband’s medical circumstances. She explained that she had a key to the Sonier Residence and checked in on it regularly through a combination of visual inspections of the exterior and entering the interior through the front door. She testified further that the patio door at the rear of the Sonier Residence was not used for the simple and straightforward reason that it wasn’t operable. This was a state of affairs that had persisted for as long as Ms. Paul could remember. It was her evidence that no one entered or exited the rear patio door.

The Court accepts this evidence. It, too, assists in building the Crown’s circumstantial case against Mr. Richardson. 57 . Ms. Paul testified that the only thing she was aware of that was missing from the Sonier Residence was the keys to his car. At the same time, she readily acknowledged in her testimony that she didn’t have an inventory or detailed knowledge of the contents of the Sonier Residence. This stands to reason because she didn’t reside there. She did testify that Mr. Sonier’s tool room, being the back bedroom, contained a considerable collection of tools.

Though this room was short of being pristine in terms of its cleanliness, all of Mr. Sonier’s tools were somewhat neatly organized. When she entered the Sonier Residence with the RCMP immediately following the discovery of the break and enter, she noticed that many things in the home were out of place relative to how things were the last time she had been inside the residence a few days to a week before. This included the tool room. It is a logical inference to reach that there is a nexus between the state of disarray found inside the residence on March 3 rd , 2022, and the break and enter.

Throughout her testimony, Ms. Paul was straightforward, candidly acknowledging when she didn’t recall certain particulars. It should be noted that when this break and enter occurred she was managing extremely stressful circumstances involving her husband’s health. In short, I found Ms. Paul to be both a credible and reliable witness on all material points. 58 . Turning to the three RCMP officers who testified, I make similar conclusions regarding the credibility and reliability of their testimony.

Constables Dubreuil and Bergeron clearly and straightforwardly explained to the Court their respective involvement in this file and their resultant tasks and observations. Constable Dubreuil attended at the Sonier Residence on the evening of March 3 rd , 2022, in response to the report of a break and enter received from Ms. Paul. She cleared the house, documented her observations with photographs, concluded that a break and enter had indeed occurred and, in light of this conclusion, followed up with the Identification Unit to ensure that any forensic evidence that could help identify a suspect was collected.

Put another way, Constable Dubreuil carried out diligent and thorough police work. 59 . Similarly, Constable Bergeron’s involvement was discrete. It was his task to collect impressions from Mr. Richardson after the initial work carried out by Sergeant Bedard resulted in a positive match between the impressions of Mr. Richardson found in the national data bank and the useable impressions that Sergeant Bedard collected from the rear patio door of the Sonier Residence on March 4 th , 2022. 60 .

Neither the testimony of Constable Dubreuil nor Constable Bergeron were meaningfully challenged or otherwise left shaken in any way on cross-examination. 61 . The expert evidence of Sergeant Bedard as it pertained to the impressions he collected from the patio door of the Sonier Residence was comprehensive, methodical and meticulous. He very competently walked the Court through the various stages of the forensic process, from his arrival at the Sonier Residence on the morning of March 4 th , 2022, until the discovery that the impressions he collected

were a match to those of Mr. Richardson found in the national data bank. In this national data bank, he received a single match involving an individual who was an immediate neighbour of the late Mr. Sonier and testified to having been a friend/acquaintance of him. When asked on cross-examination about why he only collected impressions from the patio door rather than from other surfaces in and around the Sonier Residence, Sergeant Bedard explained that conditions present elsewhere in the Sonier Residence were a barrier to carrying out this work.

At the end of the day, Sergeant Bedard used his knowledge and experience to conclude that impressions of a usable quality could not be collected from other surfaces in the Sonier Residence owing to the level of dust in the home and its generally messy state. The Court accepts this explanation as a reasonable one. Sergeant Bernier’s expert evidence was credible and reliable in all material respects and was most helpful to this Court. 62 . Turning to the testimony of Mr.

Richardson, the Court must consider it and, indeed, the totality of the evidence before it through the analytical framework established by the Supreme Court of Canada in R. v. W.(D.) - all with a view to determining whether it believes the testimony of Mr. Richardson outright, whether his testimony leaves the Court with a reasonable doubt as to his guilt or, failing those two circumstances, whether the totality of the evidence leaves the Court with a reasonable doubt regarding the guilt of Mr. Richardson. 63 . It was Mr. Richardson’s evidence that he was an acquaintance, if not a friend, of Mr. Sonier.

According to his testimony, he played crib with Mr. Sonier and Mr. Paul at the Sonier Residence from time to time and sometimes Mr. Sonier drove him here or there. This connection began when he returned from Winnipeg, Manitoba in 2017. Mr. Richardson testified that he had been in the Sonier Residence before, always entering through the front door and only ever being within the living room area or seated at the nearby kitchen table when playing crib. 64 . It was his evidence that he had no knowledge whatsoever of Mr.

Sonier having a large collection of tools in one breath, only to acknowledge that he had borrowed a welding helmet from him in the past. He lives across the road from the Sonier Residence with an immediate and direct line of sight to same. At the time the break and enter occurred, Mr. Richardson testified he was aware that Mr. Sonier had died a few months before. It was his testimony that he wasn’t sure whether someone was living there or not on or about March 3 rd , 2022. 65 . Mr.

Richardson’s evidence about why his impressions were found on the rear patio door of the Sonier Residence by Sergeant Bedard was all over the place and, as time went on in his testimony, increasingly cemented in the view of the Court the absence of any air of reality. As a starting point, Ms. Paul testified that the patio door had been inoperable for a long time and was not used as a means of access or egress to the Sonier Residence. 66 . At first, Mr. Richardson noted that he had been near the patio door “a bunch of times” when playing crib.

When pressed about whether he had touched the patio door or used that door in the past, he became visibly irritated and noted “I can’t say if I have or I haven’t”. He then mentioned that he “could have” used the patio door in the past to enter or exit the Sonier Residence despite his earlier testimony that he had always entered through the front door and against the backdrop of Ms. Paul’s earlier evidence respecting the patio door’s longstanding inoperability. He later testified when being pressed on cross-examination that he “touched the door one time when I was in the house”. 67 . Mr.

Richardson was then pressed on whether, if he indeed used the patio door in the past, if his use of that door - a sliding door - would have aligned with the impression pattern left on the door found shoved into the kitchen after the break and enter, which was consistent with picking it up and moving it. He had no intelligible or believable explanation for this complete absence of incongruity either. 68 . When asked about the valuable tools that were in the Sonier Residence, Mr.

Richardson responded “I have $2,500.00 worth of tools” with the presumed implication being that he would have no reason to take tools belonging to someone else because he had his own. 69 . At the end of the day, Mr. Richardson was aware Mr. Sonier had passed away and I find that he knew or ought to have known no one was residing in the Sonier Residence at the time of the break and enter. His explanation about how his impressions found their way onto the patio door was entirely lacking for several reasons.

First, he went from saying he wasn’t sure he had ever touched the patio door to saying he definitely had done so once when he was in the house. More baffling still was his testimony that being “close to the patio door” could have somehow accounted for how his impressions found their way onto the door. This admits of the same illogic as saying “I was sitting near Mr. Sonier’s refrigerator, which explains why my fingerprints were found on a yogurt container inside that refrigerator”. 70 . Finally, even if the Court were to accept that Mr. Richardson and Mr.

Sonier were friends and that he had indeed touched the patio door on a previous visit to the Sonier Residence, which the Court rejects outright, it doesn’t account for where his impressions were found on the patio door. The Court concludes that the only time Mr. Richardson touched the patio door is when he broke into the Sonier Residence at some time between the evening of March 2 nd and 3 rd , 2022. In other words, the Court does not believe the evidence of Mr. Richardson nor does that evidence present the Court with a reasonable doubt as to his guilt.

Moreover, there is nothing in the balance of the evidence before the Court, when considered as a whole, that leaves the Court with any reasonable doubt as to Mr. Richardson’s guilt. 71 . For the foregoing reasons, the Court is not left with any reasonable doubt respecting any of the essential elements of the offence. In the Court’s eyes, and notwithstanding the circumstantial nature of the Crown’s case. The Crown has proven that Mr. Richardson committed the break and enter to the Sonier Residence on or about March 3 rd , 2022, with the clearly corresponding intent to commit an indictable offence. CONCLUSION 72 .

In conclusion, this Court finds that the Crown has proven all of the essential elements of the offence beyond a reasonable doubt. Accordingly, this Court finds Mr. Richardson guilty of contravening Section 348(1) (

a) of the Criminal Code .