R. v. Williams Date:, 2015 BCPC 177

Citation: R. v. Williams Date: 20150612 2015 BCPC 0177 File No: 38022-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. BENJAMIN TAFFY LLYWELYN WILLIAMS EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: C.P. Malfair Counsel for the Defendant: P.J. Wilson, Q.C. Place of Hearing: Prince George, B.C. , B.C. Date of Hearing: June 12, 2015

Date of Judgment: June 12, 2015 Introduction [ 1 ] THE COURT: Ben Williams is charged with possessing a boat and trailer of a value in excess of $5,000, knowing that the property was obtained by the commission of an indictable offence, contrary to s. 355 (

a) of the Criminal Code . [ 2 ] The issue to be determined is, does the evidence prove beyond a reasonable doubt that Ben Williams knew or wilfully blinded himself as to the knowledge that the boat and trailer in issue were stolen? Background [ 3 ] In September 2011, Mr. Lane had his boat and trailer stolen. At the time the boat was stolen, it was in pristine condition. [ 4 ] In the spring of 2013, the RCMP received a tip about a stolen boat that was on Mr. Williams' property. The police investigated and determined that Mr. Lane's boat was on Mr. Williams's property.

Rather than immediately seizing the boat, the RCMP placed Mr. Williams' property under surveillance. They then phoned Mr. Williams and explained that they believed that the boat might be stolen and that they wanted to come by and look at the boat. [ 5 ] Mr. Williams agreed to allow the RCMP onto his property. Shortly after hanging up the phone and several hours before the police were scheduled to attend Mr. Williams' property, Mr. Williams attached the stolen boat and trailer to his truck and he drove off.

He was then stopped by the police surveillance team, arrested, and ultimately charged with the offence before the court. [ 6 ] During the trial, numerous police witnesses testified, as did the owner of the boat, Mr. Lane. Mr. Williams testified, as did his mother Brenda Williams, and several character witnesses.

Legal principles [ 7 ] Two fundamental principles of the Canadian justice system are: 1. the accused person is presumed to be innocent; and 2. that the presumption of innocence remains until the Crown proves the accused's guilt to the very high standard of proof beyond a reasonable doubt. [ 8 ] Proof beyond a reasonable doubt is not proof to the level of certainty. Rather, it is proof to a high level that is well beyond proof to a balance of probabilities, and it is proof that is free from any reasonable or reasoned doubt.

Moreover, proof beyond a reasonable doubt requires a higher degree of proof than just evidence that establishes the accused is likely guilty or that his guilt is strongly suspected. Rather, a conviction can only occur if the trier of fact is satisfied that all of the evidence proves the accused's guilt beyond a reasonable doubt. [ 9 ] As the accused testified, I remind myself of the following. If I believe the accused, I must acquit. Even if I reject some of the accused's evidence, I must acquit him if the evidence of the accused that I accept raises a reasonable doubt.

Even if I reject all of the accused's evidence, I must ask myself, on the basis of the evidence adduced, am I satisfied that the offence has been proved beyond a reasonable doubt? [ 10 ] It must be pointed out that the Crown's case is based on circumstantial evidence. Accordingly, I must not examine individual pieces of evidence. Rather, I must look at all of the evidence collectively, and I may only convict if, after looking at all the evidence, the only rational conclusion is that the evidence establishes the accused's guilt beyond a reasonable doubt.

Police evidence [ 11 ] On April 16, 2013, Constable MacDonald received an anonymous tip that Ben Williams may have a stolen boat on his property. Constable MacDonald began investigating, and he confirmed that there was a boat on Mr. Williams' property and the boat had been stolen from Fort St. John. [ 12 ] On May 1, 2013, at approximately 10:15 a.m., Constable MacDonald called Mr. Williams' home and stated that they, the RCMP, had a tip that he, Mr. Williams, may be in possession of a stolen boat, and they were looking to do further investigation. Constable MacDonald asked Mr.

Williams if it would be all right if they came by and took a look. According to Constable MacDonald, Mr. Williams kept saying okay, and he sounded surprised. [ 13 ] Constable MacDonald then asked if 2 p.m. would be okay for him, and Mr. Williams replied okay. [ 14 ] Unknown to Mr. Williams was the fact that when the 10:15 call was placed, his home was under surveillance. [ 15 ] At about 10:40 a.m., the surveillance team saw Mr. Williams drive off his property towing the boat that was later determined to be stolen. [ 16 ] Mr. Williams was stopped and arrested.

Exhibit 3 is the book of photographs showing, amongst other things, the boat and trailer behind Mr. Williams' truck. What is noteworthy is the trailer has no licence plate, and although the trailer is attached to the truck, the locking device for the trailer was not properly secured as the tongue latch is noted to be up. [ 17 ] With respect to the boat, the paint is mostly scraped off. The hull registration numbers are gone. The manufacturer emblem is

present on the back. The manufacturer's name on the side of the boat is missing. The factory seats have been removed, and the hull identification plate has been removed. [ 18 ] The police at the time do not recall and made no note of the ignition having been removed or present. Donald Brent Lane [ 19 ] Mr. Lane was the owner of the boat and trailer that was recovered from Mr. Williams. Mr. Lane testified he received the boat in or around July or August 2011 as a $30,000 to $35,000 work bonus. When he received the boat, it was in mint condition. In this regard, the paint was not scratched nor was it peeling.

There was a top on the boat and a fish finder. He testified that his boat was stolen in September of 2011. [ 20 ] Mr. Lane was shown pictures in Exhibit 3 and confirmed the boat photographed therein, the one seized from Mr. Williams, was his boat that had been stolen. Ultimately, Mr. Lane received his boat from the RCMP. When it was returned, he noted that the paint was scratched and mostly removed, the seats were missing, the top was missing, his fishing gear was missing, as well as the fish finder.

He testified that the motor had not been drained, and from this I infer the engine block suffered damage from freezing during the winter. [ 21 ] With respect to the ignition, Mr. Lane testified that it had been pulled with the result that there was a small hole to the right and slightly below the steering wheel. He testified that the hole was not very noticeable and that the ignition was required to start the boat. [ 22 ] As for the value of the boat when he received it back from the RCMP, Mr. Lane testified he sold the boat to a friend for parts for $18,000. Evidence of the accused [ 23 ] Mr.

Ben Williams is 39 years old and a Prince George firefighter. He has held this position for 11 years. He is married with two young children. Prior to becoming a firefighter, Mr. Williams played professional hockey, worked for a securities firm, performed volunteer work, and he was employed in the oilfields. [ 24 ] As a firefighter, and likely because of his hockey background, Mr. Williams played a substantial amount of hockey with the local RCMP and with police officers across Canada. [ 25 ] With respect to the boat, Mr. Williams testified he purchased it in April 2012 from a fellow firefighter, Mr. Kostyshyn.

When the boat was purchased, Mr. Williams trusted Mr. Kostyshyn. In this regard, they worked around each other. Mr. Williams knew that Mr. Kostyshyn would not have been a firefighter if he had a criminal record or if he was of questionable integrity. In Mr. Williams' words, they had each other's back. [ 26 ] As for the purchase of the boat, Mr. Williams purchased it for around $9,500. Mr. Williams recalls Mr. Kostyshyn saying he had a boat for sale. There was no poster, and he did not tell Mr. Williams at that time the year of the boat. Mr. Williams does not recall telling Mr.

Kostyshyn that he was looking for a boat. He does not know what might have prompted Mr. Kostyshyn to say that he had a boat for sale. [ 27 ] Mr. Williams went to Mr. Kostyshyn's property to look at the boat. While looking at the boat, Mr. Williams recalled that they talked about if the boat ran and the price of it. He said they took it for a test drive, and at that time it started with a key. Mr. Williams does not believe that he asked Mr. Kostyshyn why he was selling the boat as it was not important to him, nor did he ask where the boat came from, how old it was, or how many hours it had on it. Mr.

Williams testified he was just concerned if the boat ran. [ 28 ] At the time Mr. Williams purchased the boat, he was not actively looking for one. He had not looked at how much boats cost, and the only research he had done was to ask a few fellow firefighters what to look for when buying a boat. He was told it is all about the engine and if it floats. He testified he knew that $9,500 was a decent price because he knew Sport Jet motors were worth a certain price and OptiMax were worth more. [ 29 ] He also was not really sure what the price of a Sport Jet motor was. He testified he paid less than what Mr.

Kostyshyn was asking for the boat. To Mr. Williams, $9,500 was a lot of money, and money that he was not allowed to simply flit away. [ 30 ] When he talked about boats with people from work, there was no discussion about numbers; rather, it was about what to look for. He testified he had very little idea as to what the market value of a boat was. [ 31 ] Prior to purchasing the boat, Mr. Williams did not look at boats at dealerships, on Craigslist, Kijiji, or Auto Trader. It was Mr. Williams' evidence that the important thing was that the motor was good and that it floated. Mr.

Williams testified that he was not surprised when he learned the boat was worth $30,000. He felt he paid $9,500 because the paint was stripped off. He did not ask why the paint was stripped off. [ 32 ] When he purchased the boat, Mr. Williams did not get a bill of sale, he did not pay taxes, he did not see if there was a lien on it, he did not insure it, and he did not register it. [ 33 ] Mr. Williams was examined about the call he received from the police. He testified on cross-examination that all he had heard was "stolen boat" and he freaked out.

Interestingly, on direct, he testified at page 8: Q Okay, I want to ask you some questions now about May the 1st, 2013. We heard evidence in the first couple of days of this trial from a number of officers, but specifically Constable MacDonald, who testified that he made a phone call to you at about 10:15 on the morning of May the 1st and he told you that -- words to the effect the police had information you might have a stolen boat on your property. Do you remember that?

A Yes, I do. Q Is that true? A Yes, it is. [ 34 ] On cross-examination, the following was stated: Q So I'm going to suggest to you, Mr. Williams, that what the police said to you -- I'm not asking for your response, I'm -- I'm going to suggest to you what the police actually said to you was that they had a tip and they wanted to check it out. A Again, I took that phone call as, "There's a stolen boat on your property and we're coming by." And like I said, I -- from my past experience with the cops, I took it upon myself that I didn't want that boat to be there.

I was concerned that I was going to get arrested . . . [ 35 ] He continues on, at line 37: Q Okay. So what I'm going to suggest to you, and you can agree or disagree, is that what the -- the police -- the -- what the police told you was that they weren't sure -- they weren't -- they had a tip, they weren't sure, that's why they wanted to come look. A Again, I just -- I remember them saying "stolen boat" and "We're coming by". I don't remember if it was "tip" or "We have" -- I don't remember . . . [ 36 ] In my view, that is somewhat in contrast to what was stated on direct. [ 37 ] Later in cross-examination, Mr.

Williams confirmed that his view, when he got the telephone call, was that immediately upon receiving the phone call, he believed he had a stolen boat. He explained he wanted to move the boat so he would not get arrested in front of his family. Mr. Williams never explained how moving the boat would prevent this from happening. He also elaborated on the call in that he thought the police were doing him a professional courtesy by phoning him and that this was because he was a firefighter. [ 38 ] Mr. Williams denied knowing the boat was stolen.

He denied suspecting it was stolen and maintained he moved the boat to avoid being arrested in front of his family. On re-examination, Mr. Williams maintains he recalls the ignition because his son Ryder would turn the key and cause the boat to beep. Evidence of Brenda Williams [ 39 ] Ms. Williams is the mother of Mr. Williams. She testified to being at Mr. Williams' home in and around May 2012. She testified the family was looking at the boat, and the son Ryder was in the boat turning the steering wheel and that he was turning the key and it was making a clicking sound. Apparently, Mr.

Williams observed this and stated, "Take the key away. It is not good for the boat." [ 40 ] Cross-examination confirmed Ms. Williams never actually saw a key. [ 41 ] Ms. Williams also testified that Mr. Williams had offered her husband, that is, the accused's father, the use of the boat when he came to Prince George. Character witnesses [ 42 ] Three witnesses testified as to Mr. Williams' reputation for honesty and integrity. These witnesses were all firefighters, and they all testified to Mr. Williams' reputation for honesty, integrity, and truthfulness.

The witnesses were Michael Holliday, Greg Wilkinson, and Greg Houston. Position of the parties [ 43 ] Crown and defence are ad idem in that the only issues to be determined are the issues of knowledge or wilful blindness. The defence argues Mr. Williams' evidence is credible and it is critical on the issue of knowledge and wilful blindness. In support, defence counsel points out the boat was purchased from a trusted firefighter, one whom there is a special relationship; an enhanced relationship of trust which is brought about by the nature of their profession.

He also points out the fact that the boat was not concealed when stored on Mr. Williams' property and that it could be seen from the roadway as evidence of lack of knowledge. [ 44 ] Defence counsel also argued that the price, $9,500, was because of the condition of the boat. [ 45 ] It was argued that fleeing with the boat was reasonable given that Mr. Williams had never been in the system and thought that it was a heads-up. He points to the fact that he was obviously scared when pulled over.

He sounded surprised, and that he pulled out knocking down trees as evidence in support of his fear. [ 46 ] He further stated that Mr. Williams' relationship with the police was plausible and that it supported that there was some sort of message as to a heads-up. [ 47 ] Lastly, he pointed out that Mr. Williams had told his father to come and use the boat. One would not reasonably do that knowing the boat was stolen. [ 48 ] Defence concludes by saying the evidence falls short of proving beyond a reasonable doubt wilful blindness or actual knowledge and therefore the accused must be acquitted.

[ 49 ] Crown argues the evidence proves the accused's guilt beyond a reasonable doubt. The Crown directs the court's attention to the circumstantial evidence, that is, the hull identification number removed, the hull registration number removed, the price paid for was slightly more than half the salvage value of the boat, and the fact of the missing ignition. [ 50 ] Crown points out Mr. Williams' evidence does not make sense, specifically about moving the boat to avoid being arrested. Crown points out the boat was never insured or registered, nor was the trailer.

Crown points to the fact that the boat being visible from the road is not really an issue. That is because the boat has been changed in its appearance, specifically the hull number gone, the paint being removed, and that it was tarped for a portion of the winter. [ 51 ] Crown says explanations by Mr. Williams as to his valuation of the boat did not make sense in that it was a large ticket item and he obtained no information as to the value of that specific item. Analysis [ 52 ] After carefully considering all the evidence, I find, for the reasons that follow, that I do not believe Mr. Williams' evidence.

I arrive at this conclusion even after considering the character evidence. Mr. Williams' evidence was simply vague at times, and at other times it made no sense. The primary reasons why I do not believe Mr. Williams' evidence are as follows: 1. The entire transaction lacks detail and it makes no sense given $9,500, a lot of money to Mr. Williams, was involved. Specifically, in this regard, he did no research to determine fair market value for the boat. I accept he trusted Mr. Kostyshyn.

However, common sense tells me when one is spending a substantial amount of money, then one would expect a quick search, be it online, Craigslist, Kijiji, Auto Trader, or a boat dealer. Further, Mr. Williams did not ask the year of the boat, where the boat was from, or the history of the boat. One would expect, at a minimum, he would have asked, "Have you had any problems with the boat?" Again, these are common questions to be asked for a large purchase, even common questions between trusted persons.

These questions are typically asked so one can be informed about the needs, durability, and dependability of such a large purchase. None of these questions were asked. It is also noted Mr. Williams paid in cash. He obtained no receipt. He obtained no transfer papers for the trailer or boat. He did not register the boat or trailer. He did not insure the boat or trailer. In fact, he never even put licence plates on the trailer. 2. The evidence about the ignition makes no sense. According to Mr. Williams, there was a key in the ignition, and yet when Mr. Lane received the boat, the ignition was gone.

It makes no sense that someone would steal the ignition while the boat was in Mr. Williams' yard or in the police yard. It is extremely unlikely that the ignition was stolen while the boat was in the police custody. This is because it was stored in a locked compound, and we know this because of Mr. Williams' evidence wherein he testified he drove by it every day for nine months. If someone were to remove the ignition, it would have been to steal the boat, and that is what happened when it was taken from Mr. Lane. I arrive at this conclusion even after considering Ms.

Williams' evidence, and I note from her evidence she never saw a key. 3. Mr. Williams' evidence was at times vague and documented with "I don't remember." This is particularly so when questioned how he knew $9,500 was a good value for the boat and about how he came to know Mr. Kostyshyn was selling a boat. He was also vague about what was said between himself and Mr. Kostyshyn about the boat. He was vague about what specific information he received regarding boats prior to the purchase. 4. Mr. Williams' evidence about receiving the phone call from the RCMP makes no sense, and it changed, as I noted earlier.

First, on direct, he agreed what was said over the telephone was that the police had information that the boat might be stolen, and yet on cross- examination it became "all I heard was a stolen boat." Second, Mr. Williams' response and behaviour was inconsistent with his testimony regarding his belief as to the boat being legitimately possessed when he purchased it. Specifically, one would expect, on such a phone call, there to be immediate commentary along the lines of "Hold on a second. I bought it from Mr. Kostyshyn. There's no way it can be stolen. I paid for the boat"; yet there was nothing of the sort.

In fact, what happened, and I accept what the police said, is "the boat might be stolen." Thereafter Mr. Williams hung up and immediately fled the home with the boat. Again, if it was completely legitimate in Mr. Williams' mind and knowing he had four hours before the police came, why did he not at least try and contact Mr. Kostyshyn to seek some sort of explanation? [ 53 ] I do not accept that Mr. Williams was so panicked and stressed that he was devoid of any thought. He is an emergency responder who works in high-stress situations all the time.

Granted, the situation was different, but it was not one with immediate risk. Rather, here, there was perhaps some risk, and if the risk did come along, it was not for four hours before the police arrived. [ 54 ] Mr. Williams' evidence of moving the boat so he did not get arrested also makes no sense. As cross-examination established, moving the boat would not have changed that fact at all. [ 55 ] Further, Mr. Williams' belief that the phone call was a form of professional courtesy is unsupported. There was nothing in the telephone call from which Mr. Williams could draw this conclusion.

Nothing was stated by the caller, that is, Constable MacDonald, to indicate that the police knew that Mr. Williams was a firefighter. Moreover, there was nothing in Mr. Williams' background to indicate to him such a call was unusual. He testified to the effect that he did not know how police investigated these things or how police things happened. [ 56 ] The fact the boat sat in somewhat of an open area of Mr. Williams' yard or that he was prepared to lend the boat to his father does not, in the circumstances wherein there have been major changes to the appearance of the boat, provide much evidence.

I say this for the following reasons. [ 57 ] The boat looked substantially different when it was recovered from Mr. Williams' property. When Mr. Lane received the boat, the seats were gone, the fish finder was gone, the canopy was gone, practically all the paint was gone, all the numbers were gone, and all the writing on the hull was gone, and the VIN identification plate was gone. With all these changes, it is conceivable that a person

would not feel it necessary to conceal the boat as the boat had been concealed by its identity being changed. [ 58 ] On all the evidence I do accept, I find in around April 2012, Mr. Williams purchased Mr. Lane's boat in circumstances where he knew that the boat was stolen. He knew the boat was well under value when he got the boat. He did not ask any of the typical questions, nor did he register or insure the boat and trailer. He did not do these things because he knew they were stolen. He did not obtain transfer papers for the trailer or the boat. He paid with cash, and he did not obtain a bill of sale.

Again, these all occurred because he knew they were stolen. [ 59 ] Mr. Williams fled his yard with his boat because he knew the boat and trailer were stolen. In all the circumstances, and after considering all of the evidence that I do accept, the only reasonable and rational inference is that the Crown has proven beyond a reasonable doubt that Mr. Williams possessed the boat and trailer with a value in excess of $5,000 knowing that these items were obtained by the commission of an indictable offence. [ 60 ] Accordingly, on Information 38022, I find Mr. Williams guilty. (REASONS CONCLUDED)