R. v. Bower, 2021 BCPC 305

Citation: R. v. Bower 2021 BCPC 305 Date: 20211208 File No: 40711-2 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DYLAN LINDSAY ALEXANDER BOWER AND REGINALD ERNEST DAVID REASONS FOR JUDGMENT (RE: DYLAN LINDSAY ALEXANDER BOWER) OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: B. Lansdowne Counsel for the Defendant: H. Alkema Place of Hearing: Ucluelet , B.C. Dates of Hearing: December 7 and 8, 2021 Date of Judgment: December 8, 2021 [ 1 ] THE COURT: These are the reasons for the decision in the trial matter on Information 40711-2. Mr.

Dylan Lindsay Alexander Bower is charged with trafficking cocaine on September 19, 2019. He is also charged with trafficking in cocaine on September 20, 2019. We have completed approximately a one-and-a-half-day trial to see whether the Crown has proven beyond a reasonable doubt each element of the offence. Should a transcript be required, I reserve the ability to make small changes to grammar and include full citations.

Trial Progression [ 2 ] The Crown called two witnesses. The first one is RCMP Officer Holt. He walked the court through his role, which was one of purchaser. The next officer was Officer Ewacha, E-w-a-c-h-a, who provided evidence how he took control of some exhibits and had them tested to see whether the substances seized were actually controlled substances as defined in the Controlled Drugs and Substances Act . It does not appear to be an issue that the substances that we are dealing with in this trial are cocaine.

Burden of Proof and Standard of Proof [ 3 ] The Crown has the primary or legal burden of proof throughout the trial and must prove all the elements of the actus reus and mens rea . I instruct myself that at no time does an accused person have to prove or disprove anything. On this point, the accused has not taken the stand and provided evidence for me to consider.

This is a strange concept for lay people who often pose the question, "Well, if he did not do this, why wouldn’t he just take the stand and tell us?" But a fair trial, presumption of innocence, burden of proof, and proof beyond a reasonable doubt are all concepts that are behind the decision that an accused person makes. [ 4 ] While I appreciate that he may not have taken the stand for any number of reasons, I remind myself that an innocent or guilty person bears no burden. This means that they do not have to prove anything. Again, the burden is always on the Crown.

Even if the accused provided evidence on his own behalf, I would need to undertake a W.(D.) analysis. The accused is presumed innocent until the Crown proves guilt to the standard beyond a reasonable doubt. The standard of proof applies to the evidence as a whole, but not generally to individual facts. [ 5 ] The test for reasonable doubt that I must ask myself is whether, on the basis of the evidence which I accept, am I convinced beyond a reasonable doubt by that evidence of the guilt of the accused. With all witnesses, I may accept some of their testimony while disbelieving other parts.

I must consider all the evidence in deciding whether there is any reasonable doubt and any reasonable doubt must be resolved in favour of the accused. [ 6 ] This is a particularly useful instruction when the main witnesses for the Crown are police officers. Police officers, like any witness, may be mistaken. As such, both credibility and reliability need to be assessed just as carefully with these witnesses as with any other witness. If I believe certain aspects of a person's testimony, I should ask myself why I believe them on these points.

Equally, if I, for some reason, do not believe them, I should ask myself why. As well, does the evidence make sense? Even if I believe certain aspects of a person's testimony, I still must be satisfied that the evidence is cogent and logical. There can be a reasonable doubt based on absence of evidence or a simple failure of evidence to persuade me beyond a reasonable doubt. Issue [ 7 ] I am thankful to counsel for directing me to the main issue in this case. I agree that the least contentious elements of the offence have been established. For example, jurisdiction of the court.

I note that it looks like "City of Ucluelet" on the information was amended to read "Municipality of Ucluelet." Either way, the offence is alleged to have taken place in British Columbia and, thus, this court has and is able to assert jurisdiction over the events in question. Other things such as dates are easily dealt with. I conclude that at this point in these reasons, that all elements have been proven except that of identification. Defence takes no issue with any issue other than identification.

Has the Crown Proven the Essential Element of Identification Beyond a Reasonable Doubt? [ 8 ] Specifically, that on these two days in September 2019, that it was this person, who is on trial, who unlawfully trafficked in cocaine. If there is a reasonable alternative inference that it was someone else who committed these acts, then the benefit of the doubt must go to the accused. Of course, no alternative inference needs to exist and it is still my duty as trial judge to carefully examine the evidence with respect to identification.

Law of Identification and Definition of "Trafficking" [ 9 ] The Honourable Judge Chettiar in R. v. Baxter , 2018 BCPC 119 , covered some of these same issues coincidentally, it looks like, with some of the same officers. She, too, cautioned herself of the frailties of dock identification as I do below. However, I mention the Baxter decision because Judge Chettiar clearly sets out the law of the elements of a trafficking offence at paragraph 9. I include them in recognition of the Crown's closing that these are the appropriate sections that I have considered, as well.

I think what I am going to do is not read out all the citations and I will make reference to paragraph numbers of decisions and sections with respect to the non-contentious elements. So, in the Baxter decision, Judge Chettiar at paragraph 9 and 10 sets out exactly what "trafficking", "possession", to "sell," means, and it is the same definition that was recited by the Crown. Should a transcript be required, I will insert these sections as per my notes: [9] Sections 5(1), (2) and (3) of the CDSA provide, in part, as follows: 5(1) No person shall traffic in a substance included in

Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

(2) No person shall, for the purpose of trafficking, possess a substance included in

Schedule I, II, III or IV.

(3) Every person who contravenes subsections (1) or (2) (

a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in

Schedule I or II, is guilty of an indictable offence . . . [10]

Section 2 of the CDSA defines the terms “possession”, “sell” and “traffic” as follows:

“possession” means possession within the meaning of subsection 4(3) of the Criminal Code; “sell” includes offer for sale, expose for sale, have in possession for sale and distribute, whether or not the distribution is made forconsideration; “traffic” means, in respect of a substance included in any of Schedules I to IV, (

a) to sell, administer, give, transfer, transport, send or deliver the substance, (

b) to sell an authorization to obtain the substance, or (

c) to offer to do anything mentioned in paragraph (

a) or (b), otherwise than under the authority of the regulations. [10] The main issue in that case was identification of the accused. In other words, the court needed to conclude whether or not itcould find beyond a reasonable doubt that it was the accused who committed the hand-to-hand transactions with the police officers. Judge Chettiar discussed some of the defence arguments starting at paragraph 62 of that decision under the heading "DISCUSSION,Trafficking in cocaine." At 62, Judge Chettiar writes: [62] The main issue in this case with respect to the trafficking offence is identification.

The question is: was it the accused, Mr.Baxter, who sold cocaine to the undercover operators on July 2, 2016? [63] The defence submits that the identification evidence of the undercover operators is unreliable for two reasons: (1) due to thecircumstances under which the operators observed the suspect, and (2) because they viewed a single photograph of the accused beforegiving their evidence in court. [11] At paragraph 64, the defence arguments are listed: (

a) the suspect was a stranger to the officers, and they have never seen him before or after July 2, 2016 until the trial date; (

b) the officers had a brief, fleeting interaction with the suspect, for a maximum of four to five minutes, off and on; (

c) during the interaction with the suspect, Cst. Babala was wearing sunglasses, which would have impeded her ability to see thesuspect somewhat; (

d) the physical description provided by both officers is fairly basic and generic, and neither officer gave evidence about specificfacial descriptors or particular facial characteristics or anything particularly unique or identifiable about the suspect; (

e) the officers did not make notes of the suspect’s physical appearance at least until 15 minutes after their interaction with him, andtheir notes were made from memory; and (

f) both officers have acted as undercover officers a number of times in other cases, and have dealt with many people incircumstances similar to this case. [12] I note there are some similarities to some of the arguments in this case. For example, there were limited interactions with theaccused, the physical descriptors given are alleged to be fairly basic, notes were taken at a later point in time, and there has been delaybetween the offending behaviour and trial.

In the Baxter case, for her own reasons, the Honourable Judge Chettiar had no issues withthe identification of the accused in that case. [13] In a case called R. v. Field, I summarized some general points of law with respect to identification. I do not quote my decisionfor any other reason other than we are on circuit, time is short, and I wanted to be able to piece some reasons together today and notspend the next few weeks or months re-examining some of these important concepts that have already been clearly set out by otherjudges or myself.

In short, and in an effort to be clear from the start, I agree with the defence submission that I must be careful whenexamining evidence that might come across as "sincere." In other words, even sincere evidence can be mistaken. At paragraph 42 of theField decision, as reviewed by the B.C. Court of Appeal, the court wrote that: The identification of the accused can be done in many ways. A person can see them in court and point them out. They can look . . . Sorry, the Court of Appeal is quoting my decision at paragraph 42: A person can see them in court and point them out.

They can look at what are called photo packs – which is like a line-up of photos. Orthe investigating officer might even create an in-person line-up. In other cases, circumstantial evidence can be used. For example, if myDNA was found at a crime scene, and the Crown could prove it was mine, the Crown could try and prove that I was the one thatcommitted the offence. [14] In this trial, Officer Holt had some information sheets with information on it.

These are called "target sheets." In this case, thereis an exhibit that contains a picture with some basic information that the officer familiarized himself with prior to his interaction with theaccused. It is important to understand that this is not a scenario where the officer was given a picture and then driven by a sole personand asked, "Is that the guy?" The facts as they unfolded in this trial are completely different.

To be clear, in court, Officer Holtindicated that he could recognize the accused and there was an in-dock identification. [15] On the topic of eyewitness identification as evidence of identity, I am always cautious. I indicated why I am cautious of in-dockidentification in the R. v. Field 2016 BCPC trial decision case (aff’d at R. v. Field, 2018 BCCA 253) where I reviewed some authorities,such as the R. v. Sutton (ON CA) decision of Jessup J.A. which provided this guidance:

Experience has shown that eyewitness evidence proffered by a stranger to the accused is the least reliable identification evidence. It has been described as “inherently unreliable" … In light of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of "the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection: In R. v.

Panghali 2010 BCSC 1710 aff’d 2012 BCCA 407 … Holmes J. summarized the significance of prior acquaintance in this way: [42] Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail.

But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition. [43] That said, a complete inability to respond to questions about the basis for the opinion may, even in a person long familiar with the subject identified, call into question the value of the opinion. [44] Also, many of the well-known frailties of eyewitness identification have application in this context of “recognition” evidence.

Of particular concern is that witnesses may unconsciously approach the process of comparison with an eye to similarities, and not differences. [45] But those are matters relating to the weight of the opinion, and do not usually preclude its admission into evidence. [ 16 ] The court also concludes: There is no special formula by which to assess eyewitness identification. Rather, such evidence is to be examined on a case by case basis.

And even where the witness’ identification is not based on the recognition of a distinctive characteristic of the accused this does not necessarily undercut the efficacy of the identification. Similarly, where there is a discrepancy between the description given by a witness and the person subsequently identified by that witness, this is not necessarily fatal to a positive identification.

The sufficiency of the identification evidence will depend on the circumstances surrounding the original identification, the nature of the discrepancy, and whether there is other cogent evidence in the case pointing away from the guilt of the accused. [ 17 ] Under the subheading of "LAW ON IDENTIFICATION EVIDENCE," R. v. Whitman 2005 BCSC 1574 is a B.C.

Supreme Court decision from the Honourable Justice Romilly where he writes, at paragraph 37: Due to the frailties of eyewitness identification, a judge sitting alone should address himself or herself in a manner similar to what a jury as trier of fact would be subject to. The following lines as suggested in The People v.

Casey … are indicative of a proper approach: We are of opinion that juries as a whole may not be fully aware of the dangers involved in visual identification nor of the considerable number of cases in which such identification has been proved to be erroneous; and also that they may be inclined to attribute too much probative effect to the test of an identification parade.

In our opinion it is desirable that in all cases, where the verdict depends substantially on the correctness of an identification, their attention should be called in general terms to the fact that in a number of instances such identification has proved erroneous, to the possibilities of mistake in the case before them and to the necessity of caution. [ 18 ] On this point, I do pause here to instruct myself with this caution and I am familiar with the risks associated with not fully analyzing all the circumstances concerning identification.

Justice Romilly continues and says: Nor do we think that such warning should be confined to cases where the identification is that of only one witness. Experience has shown that mistakes can occur where two or more witnesses have made positive identifications.

We consider juries in cases where the correctness of an identification is challenged should be directed on the following lines, namely, that if their verdict as to the guilt of the prisoner is to depend wholly or substantially on the correctness of such identification, they should bear in mind that there have been a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate, made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous; and accordingly that they should be specially cautious before accepting such evidence of identification as correct; but that if after careful examination of such evidence in the light of all the circumstances, and with due regard to all the other evidence in the case, they feel satisfied beyond reasonable doubt of the correctness of the identification they are at liberty to act upon it. [ 19 ] It is stressed, then, at paragraph 39 that: ... tragedies have occurred as a result of mistakes made by honest, right-thinking eyewitnesses. [ 20 ] I pause here to note that I agree with the defence submission that the defence cases are not helpful on their facts, but they are very helpful with respect to the law and cautions, some of which I have just mentioned.

These cautions are also echoed in each of the cases, R. v. Arfmann , 2019 BCSC 1618 , R. v. McDonald 2014 ONSC 1254 , and R. v. Goran , 2008 ONCA 195 . Citations can be provided should a transcript be required. Other cases also support a strong caution to me as the trial judge when considering what is generally referred to as in-dock identification. [ 21 ] I would take it a step further and say that a trial judge should always be extra cautious examining all identification evidence. Wrongful convictions are not limited to situations of in-dock identification where there is no prior acquaintance.

Once more returning to the Court of Appeal decision at paragraph 18: … [In] R. v. Bulloch (1999, 104, O.T.C. 245 (SC) ), a 1999 Ontario case,…Eyewitness identification evidence can be notoriously unreliable calling for considerable caution by the triers of fact.

In that case, the judge said: I realize that I must be particularly cautious of relying on evidence where the suspect is unknown to the witness. [22] I pause here to say, albeit in fairness, there was some evidence to indicate that the officer had viewed a target sheet a number oftimes. There was a strong suggestion that the officer would have known the information on the sheet. I will discuss this later. [23] Equally, I balance the thought with the defence submission, which is a good one, there is nothing in the evidence to establish thatthe person in the picture is actually the accused.

Where did the picture come from? Who created it? How recent was it to the events? What did the accused look like at the time? There are many unknown factors around this target sheet. I note that the target sheet ismarked an exhibit in these proceedings. [24] Continuing at paragraph 19, the court discusses R. v.

Reitsma, (BCCA), which could not make the point anymore clear, at paragraphs 58, when the court states: The frailties of eye-witness identification may be most pronounced in cases where the accused was not known to the complainant beforethe offence and where the complainant's opportunity to observe the perpetrator was limited to a brief, stressful encounter. [20] I fully accept that such identifications have to be given very little weight - or perhaps even none. [25] Once more, I acknowledge that R. v. Arfmann, the defence authority, supports that there should be really no value to these sortsof identifications.

I find The Queen v. Nikolovski, at 409, where Justice Cory summarizes the duty and cautions, once more remindingme that: The ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth. In a criminal trial the search for truth isundertaken to determine whether the accused before the court is, beyond a reasonable doubt, guilty of the crime with which he ischarged. The evidence adduced must be relevant and admissible. That is to say, it must be logically probative and legally receivable. Theevidence may be that of eyewitnesses or it may be circumstantial … [26] Continuing with R. v.

Field, I set out some factors that can be considered in assessing the strengths or weaknesses ofidentification. I am mindful of the fact that the main identification evidence in this case is from a single witness and that witness is thepolice officer and instruct myself that even police officers can be wrong in their identification of accused persons. They have heavycaseloads and it takes a long time to get to trial. Memories do fade over time and defence is right, it has taken some 27 months to get totrial.

Equally, they are trained to take notes and have other investigative tools to prompt their memories or, to use the Crown's turn ofphrase, "He is trained to take a specific study of the person in front of him. These are planned investigations and he knows he may needto provide evidence at a trial." [27] At a minimum, it must be determined whether the witness was physically in a position to see the accused and, if so, whether thatwitness had sound vision, good hearing, intelligence, and ability to communicate what was seen and heard. Did the witness have theability to understand and recount what had been perceived?

Did the witness have a sound memory? What was the effect of fear orexcitement on the ability of the witness to perceive clearly and to later recount the events accurately? Did the witness have a bias or atleast a biased perception of the event or the parties involved? Other judicial formulated checklists provide similar factors for analysis,Mezzo v. The Queen, (SCC) at 129- 132 per Wilson, J. Assessment of ID Evidence within the Context of the Above Factors [28] I start the assessment by indicating that this is not really a case where there is a discrepancy with respect to a description given bya witness.

For example, this is not a case where the evidence gives rise to the notion that it was actually somebody else who committedthe crime of trafficking on the two days in question or that it was somebody that has different descriptors than the accused, nor is this acase where the main identification evidence shifted in some manner during the course of the trial.

Again, to echo the Crown'ssubmission, the officer "was not shaken on identity." [29] There has been a submission that perhaps a day after these events somebody in a black truck may have been involved in somesort of interaction with the police, perhaps or perhaps not, the police thought that person was going to deliver a substance. To concludethat this is a case of mistaken identity with respect to Mr.

Bower for the allegations two days prior would be highly speculative and I amnot willing to make that inferential leap based on the evidence. [30] However, I am of the view I am still obliged to undertake a detailed look at the evidence of identification as it is found in theevidence. I also pause here to note that was not the submission of defence for me to make that inferential leap, but I wanted to make anote that there were some submissions in the trial and that I have heard what those submissions were. [31] The accused was not known to Officer Holt, prior to these interactions.

By this, I mean to say he had never met the accused inperson. He did, however, have access to the investigative tool, the target sheet, which had some information on it. I think it in its bestlight this is what can be said about the target sheet. It contained information and I think it is useful to examine this information. In doingso, I am mindful that the document is really a hearsay document, that it has not been tendered for the truth of its contents.

So justbecause it says something in its print, that does not make it true. [32] Information contained: name, date of birth, and address; confirmation that the person depicted in the photograph had noconvictions; a warrant in Alberta; and that he was of an approximate height and weight with brown hair and eyes; associated vehicleswere a black Cadillac Escalade; associated individuals was a female which it think there was the name, a male; and he has some sort ofconnection to Howler's Restaurant. [33] There is also a photograph. The Crown has invited me to look at the photograph and compare it to the accused.

I note that thephoto is a fairly clear picture, but I again emphasize we know nothing about it. I would say this with respect to the photograph. It bears

a striking similarity to the accused person in court. Even with a protective mask, to me, it looks like the same person, but I will not give my observations any weight as I did not know the accused back in 2019 and have no idea how he might have looked during that time period. I am also terrible at guessing people's ages and weights or age. So I must instead rely on the quality of the evidence given by the officer. General Introduction as to What the Officer Testified to [ 34 ] He described how he was tasked with making contact with some local folks to try and organize a drug buy.

He located a person, ended up going to a local beach, and contacted someone by the name of Reg. Was Officer Holt Physically in a Position to See the Accused? [ 35 ] After organizing a delivery, this is what happened. Reg told him that he knew someone who could deliver the drugs. This person would get a lift from his girlfriend because he did not drive. I note, for what it is worth, the target sheet also indicates that the person depicted in the picture did not have a driver's licence.

I suppose in its best light this information and other similarities might have helped inform the officer's subjective belief of who he is dealing with. [ 36 ] At some point in time, the officer was waiting for a delivery, chatting with Reg. The officer was so close to the vehicle that drove up he could identify the driver as being a female. He was introduced to someone he says is the accused.

He described him as wearing a white fedora hat, in his 30s, fairly short hair, 160 to 170 pounds in weight, pale, thin, I think it was chin strap beard, and lots of jewellery, some gold chains and rings. [ 37 ] Again, for what it is worth, the target sheet seems to accord with a number of these things, but for the fedora hat, I suppose. As well, it seems to be alleged by defence that there may have been some sort of earring, but no notes of it. This may or may not be the case, but I think it would require me to speculate what that person had in their ears as there is no other evidentiary foundation.

So I make no findings with respect to whether the person that day was wearing a noticeable earring or not. [ 38 ] He was so physically close that he was able to shake the hand with the person he met and this person was introduced to him as D.J. The Crown asked him, "Were you familiar with D.J.?" The officer said this, "At the start of every day, I reviewed the target book. I recognized D.J.'s picture in the target book and D.J. in the target book was Dylan Bowers".

Once more, for what it is worth, I note that the name associated to the picture in the target sheet is also Dylan Bower and, of course, in this case the person being tried is Dylan Bower. Did He Have Sound Vision? [ 39 ] He told the court in chief and confirmed in cross that he saw that person for about five minutes. He agreed that it would have been dark, but the officer was not shaken in his identification of the accused as being the person he met that night.

It did not appear that the darkness inhibited or impaired the officer's ability to establish an ID and, on top of all that, he apparently made notes of these identifiers. Did He Have Good Hearing? [ 40 ] There is nothing to indicate that this was a problem. There were only three people present. There is no evidence to indicate that the conversation between the three of them was not easily heard by each of them. He clearly recounted the words that were spoken by all the people there that evening. He also was the only person there the second evening.

Is the Officer Able to Communicate to the Court What He Saw and Heard? [ 41 ] He was clear in his recollection. He was not shaken on cross-examination, although I will comment further on this with respect to memory later in these reasons. His ability to recollect the conversations and principal actions was very specific. He used simple words and body language to communicate to the court what he saw and heard.

Was the Officer Able to Recount What He Thought He Saw? [ 42 ] In cross-examination, it was suggested to him that he was unsure as to whether, on both occasions, the vehicle that the delivered the accused was a Tahoe or Escalade. He admitted that it was dark and it was hard to see. Apparent on the face of the evidence is that, at one point in time, he was somewhat reluctant as he walked up to a black truck. He had reason to believe it was the right vehicle as it was in the right place at the right time; however, he could not confirm that it was the right vehicle because it was a dark night.

Then he interacted with the occupant. [ 43 ] With respect to this concept of Tahoe versus Escalade, I do not think much comes from it. He was able to explain that he sometimes could not tell them apart depending on years and models. I note once more, for what it is worth, the vehicle in the target sheet said the accused was associated to an Escalade. On this point, I actually find the officer's careful approach in his testimony to be consistent with trying to be credible.

It might have been easy for him to say, "Well, it was an Escalade," as that was backed up by the paper information, but the vehicle description is consistent enough that I do not believe anything flows from whether it was a Tahoe or Escalade. He was honest and told the court he could not remember the name of an officer that assisted him, as well. Was there Any Fear or Excitement that May Have Impeded His Ability to Observe, Recollect, and Recount These Memories? [ 44 ] On this topic, I think clearly the answer is no.

There was no suggestion in chief or cross-examination that his recollections were somehow tainted by a stressor as we might see in cases of civilian witnesses in a bank robbery or a carjack, for example. In those cases involving civilian witnesses under high stress, a court needs to be aware that they might not have the training to be calm and make mental or physical notes. On the other side of the spectrum, we have an officer of nearly 20 years. He was trained in investigative techniques. This investigation and the scheme of investigations must have been on the very low end of stress.

Safety protocols were followed and,

while the possibility of danger is always high when dealing with drug operations, nothing particularly noteworthy in this case was mentioned by any of the witnesses. How Was His Memory? [ 45 ] His recollection was clear and at most points unequivocal. While he agreed that as time goes by memories fade, there were a limited amount of times that he needed to refresh his memory from his notes. He was able to recall that, on the first occasion, it was in the early morning hours. I think he had to double check the exact time by referring to his notes, but that is what notes are for.

He could not recall the name of the officer he was working with, but I understood that he had a note of that, too, and if offered the chance, probably would have let us know. [ 46 ] He was able to recall some of the exact words such as when he was handed a baggie from Reg who got it from the accused, when Reg said, "This is the big G.

This is the deal I get." He recalled Reg asking D.J. if he could give him his number to which the accused allegedly said, "Yes, no problem." He remembered the protocol he followed next was to show his partner the product, that they sat near the fire and they left. [ 47 ] He was very specific about the next interaction. He said that he contacted D.J. to see if he could get another gram.

His unchallenged recollection of the words texted were, "Can you help me out?" Response, "Yeah, what do you need?" "Another G." "At the beach parking lot." "I'll be there." He was able to clearly recollect where he was, where the accused was, what words were spoken, and on the second occasion that he received a small plastic container placed in a cigarette container and given to him. He was so specific in his recollection on the second occasion that he recalls counting out a hundred dollars in twenties.

He confirmed in cross-examination that he saw the accused the second time for about six minutes. [ 48 ] His memory has been assisted by taking notes. Although I must say I would have been happy to receive his notes in evidence, but that was not done. There has been some reference to his methodology of taking notes. I would have liked to have seen this "SHAREDCHOW" [phonetic] or had it spelled on the record or know what each of the letters stood for.

However, it is not my place to invite counsel to share portions of the evidence that they do not wish to share as an exhibit. [ 49 ] I am of the view that the memory of the Officer Holt was excellent. On top of that, it was fortified with decades of experience, note-taking, preparation of narratives, and investigative protocols.

Was the officer biased or is the identification somehow tainted or, to put it another way, am I satisfied beyond a reasonable doubt with the quality of the identification evidence that I am certain that the only inference to be drawn is that it is the accused that trafficked cocaine to this officer on these two occasions? [ 50 ] I have considered whether the use of target sheets in this case have somehow tainted the identification of the accused. I conclude with confidence that they have not. Again, there are no discrepancies in the police witness identification of the accused.

There are certainly no frailties that lead me to believe it may have been someone else involved in these transactions, not that, again, this concept is required, but I have paused to think about this point. [ 51 ] However, I still think it is useful to examine the way the identification unfolded just to see whether it is cogent and logical and makes sense. First, the officer had access to target sheets that he had information on. [ 52 ] He said that he did recognize the accused as the person on the target sheet.

He confirmed in court that he would recognize him again and, in fact, did point out the accused as the person he interacted with on these occasions. I pause here to note, as I did in the trial, that the actual in-dock identification must be considered in the context that only court staff were in the court with the accused basically sitting in the middle of the room a bit like a sore thumb, obviously, an accused in their trial. [ 53 ] It is important to note that this officer did not just have one interaction where hands were shook and words were spoken. He had two.

They were both in close proximity, words were spoken, body language was used. There was an extremely close proximity and the officer's recollection was clear that the same person interacted with him on these two occasions. [ 54 ] This concept has some similarity to the concept examined by the B.C. Court of Appeal in R. v. Cheema 2007 BCCA 476 . The decision of the court considered the issue of identification and the reasons were given by the Honourable Justice Mr. Frankel.

In examining the quality of the identification evidence provided by the local court judge, Justice Frankel noted the trial judge's comments at paragraph 37: [37] But there is a further identification of the accused at the second scene on the second evening with the same vehicle involved. The officer has an opportunity to, in his own mind, confirm it was the same person that he dealt with the previous evening. It was the same person he saw in the photograph [an] hour later, and it was the same person with respect to his second involvement, face to face with the accused.

It is the reverse of knowing somebody before hand and then identifying them in court. It is seeing them again after and in the similar situation of, not on the street, but in the same transaction of a drug matter. … [39] As I say, if it had not been the second occurrence face-to-face I would not be satisfied as to identification. But with the follow-up identification 24 hours later, I am satisfied beyond a reasonable doubt as to identification.

It is almost a doctrine of subsequent confirmation. [40] Confirming identification with the identification in person of the accused offsets any frailties initiated by the drive-by viewing, by the single photograph provided, and by the viewing of that photograph prior to giving of evidence in court that day. [ 55 ] Of course, our case is a bit different. There is no tainted drive-by viewing that needs to be examined and considered as there was in that case, and our situation is very different than the scenario posed in R. v.

Goran where there were significant steps in trying to identify the accused where the witness essentially went out looking for someone by name. As well, his recollection in that case of the person would have been frail due to the type of interaction they had together.

[ 56 ] I do pause to mention that each case is different and I am not certain that all identifications need to be confirmed by a second transaction as in the case that was just mentioned. It is still the quality of the evidence of the identification that needs to be examined. [ 57 ] Arguments that looking at booking sheet photos or, in this case, target sheet information can create a bias or somehow create an unreliable foundation upon which to infer identity are not new. This was considered in R. v. D.(A.) , 2003, BCCA 106 is a B.C. Court of Appeal, by Chief Justice Finch.

It really, again, comes down to this, the quality of the evidence. [ 58 ] I understand why the officer would think that the officer had very little reason to doubt his conclusion. He was introduced to a person, did a drug transaction with this person, got that person's phone number, texted that phone, and met at the same place as they did the first time. The same person interacted with him and another drug transaction took place. The same style of car, same person, same place, same drug, same style of conversation are all common features that actually could have been different.

Maybe a different person could have answered the texts, a different place might have been found, somebody not meeting the descriptors of the accused could be in evidence, but that is just not the case. [ 59 ] The court is told that there is confident identification of the accused.

We know this because the officer was asked the second time around, "Were you familiar with the person," and he said, "Yes, he was the same person who I dealt with in the early morning of the 19th." He again confirmed that he had recognized him today, but the elements of identification are not only clearly expressed but logical and cogent and consistently explained. There are no gaps in the identifiers, no hesitation as far as his opinion, and they are supported by his notes.

There was, essentially, a pretrial acquaintance, he met him twice, and I have examined the quality of those interactions above. [ 60 ] As far as being outside the court awaiting trial, it is true that we are in a small town and that while this trial was waiting to be heard that there were limited places to sit. It would be apparent to anyone that many of us are here for court, but not all of us. This is a community centre where we are and people come in and go all the time. It is fair to point out that the officer may have seen the accused wandering around.

It is fair to even question the veracity of his identification by saying, "You could be mistaken about your identification of him. After all, he might just seem familiar to you because you have seen him around the courthouse today." The answer might have been, "You know, you're right. I am not sure I can identify him or could identify him until I saw him today," but that was not the line of questioning and I know why, because the officer seemed steadfast, clear, and unshaken in his belief who he did these transactions with.

He even further supported his position when he confirmed, "I haven't really been involved in that many other cases since this time because of COVID." [ 61 ] Once more, I know that I can reject his evidence, but when I consider the R. v. Parent analysis set out by the Honourable Judge Rounthwaite, there are no internal or external inconsistencies. He was able to recollect and recount his memories. There were no glaring inconsistencies or shifts between chief and cross. I had no concerns over his demeanour or the manner in which he provided his evidence.

I only mention these few observations even though I have considered his testimony in light of both credibility and reliability. I find him to be both believable and reliable. Conclusions [ 62 ] As expressly stated by counsel, the only real issue in this trial was identification. My notes indicate that, in short order, the date, jurisdiction, other details such as the substance, what the substance was, around the allegations were established and unchallenged. On September 19, 2019, and September 20, 2019, the officer received cocaine from a person in the Municipality of Ucluelet.

There is no issue that the substances were not cocaine. That has also been proven. It does not matter whether there was two grams given for $200. There does not need to be an actual charge for drugs. Delivery can be enough. It is clear that the officer requested and received by way of delivery the drugs. On the first occasion, there was a middle man, that was Reg, who took the drugs from one person and handed them to the officer. That act from that person to Reg is also captured within the definition of "trafficking." It was also witnessed by the officer.

Certainly, the second transaction was more direct from hand to hand. [ 63 ] I am satisfied beyond a reasonable doubt that the accused, Dylan Lindsay Alexander Bower, was the one who gave the small baggies of drugs to Reg who then gave them to the officer. I am also satisfied that on the second occasion the accused, Dylan Lindsay Alexander Bower, was the one who secreted the plastic container of cocaine into an empty cigarette package and gave them to the officer. The officer was able to clearly explain how that took place.

I am able to easily conclude that the Crown has proven beyond a reasonable doubt that it was this accused who, on these occasions, trafficked cocaine on these occasions on September 19 and 20, 2019. [ 64 ] I conclude the Crown has proven each element of the offence beyond a reasonable doubt and I find the accused guilty of the crimes of trafficking in cocaine. That concludes these reasons. (REASONS FOR JUDGMENT CONCLUDED)