R. v. Caldwell, 2018 BCPC 285

Citation: R. v. Caldwell 2018 BCPC 285 Date: 20180718 File No: 52480-1 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NATHAN CORY CALDWELL ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: J. Hatherley Counsel for the Defendant: B. Loewen Place of Hearing: Vernon , B.C. Date of Hearing: July 10, 2018 Date of Judgment: July 18, 2018

Introduction [ 1 ] Nathan Cory Caldwell is charged with committing theft of merchandise of a value not in excess of $5,000 from Toro’s Liquor Store on July 19, 2017. [ 2 ] On that date a number of customers were in Toro’s Liquor Store. They included a blonde woman, a man in a black leather jacket and a man in a gray camo-pattern shirt. The man in the black leather jacket walked up and down one aisle and then left the store. He is alleged to have stolen several bottles of liquor, while the woman aided and abetted him by distracting the store clerk. The Crown alleges that Mr.

Caldwell was the man in the gray camo-pattern shirt and that he also aided and abetted the alleged theft. [ 3 ] On the trial, I heard the evidence of Zoe Nolan, the store clerk, and Constable Carey, the investigating police officer. In addition, the Crown called Constable Hamilton, who had had prior dealings with Mr. Caldwell and would be asked to testify with respect to his ability to recognize Mr. Caldwell from a still photo captured from one of the store videos.

Following the close of the Crown case, the defence elected to call no evidence. [ 4 ] During the trial, there were two voir dires to determine the admissibility of certain evidence. On the first voir dire , I ruled that video taken from some of the liquor store’s security cameras would be admissible as evidence in the trial. On the second voir dire , I ruled that Constable Hamilton’s familiarity with Mr. Caldwell was sufficient for his recognition evidence to be admissible, because of the length of his prior relationship with Mr. Caldwell and the circumstances and recency of that prior relationship.

Issues [ 5 ] In his submissions, Mr. Hatherley for the Crown, said that there were three issues that require determination. I agree. Although he put them in a slightly different order, the three issues were: 1. Was Mr. Caldwell the person in the gray camo-pattern shirt? 2. If so, did the man in the black leather jacket commit theft of merchandise? 3. If so, was Mr.

Caldwell a party to the offence by aiding or abetting the theft? [ 6 ] At the outset of the trial, the defence admitted the date of the offence and that it occurred within the jurisdiction of the Court. [ 7 ] The Crown must prove every essential element of its case beyond a reasonable doubt, including the identification of the accused, the act of theft by the man in the black leather jacket, and the mens rea and actus reus of either aiding or abetting the theft. Analysis [ 8 ] I will deal with the issues in the order that I have set them out above. 1. Was Mr.

Caldwell the person in the gray camo-pattern shirt? [ 9 ] The Crown argues that I can be satisfied beyond a reasonable doubt that Mr. Caldwell is the person in the gray camo-shirt based on evidence from two sources. The first source is Constable Hamilton, who testified that he had a prior relationship with Mr. Caldwell and that he recognized the man in a still photograph taken from the store video as Mr. Caldwell. [ 10 ] Recognition evidence is a subcategory of identification evidence.

Just as it is when assessing identification evidence, it is easy to fall into the trap of mistaking certainty for accuracy when assessing the weight to be given to the testimony of a witness who says that he or she recognizes a photographic or video image of the accused. In this case, however, Constable Hamilton’s relationship with Mr. Caldwell included a number of face-to-face interactions, without any circumstances that would raise concerns about lack of visibility, distractions, or mistaken identity.

The photograph presented Constable Hamilton was not of the best quality, but it was of sufficient quality to permit the identification of someone that he would recognize from prior experience. [ 11 ] The second source of identification evidence is the videos taken inside the liquor store during the incident itself. At one point during the trial, Mr. Caldwell was seated next to the video screen. He turned his head to the left to see the screen. When he did that, the video taken on camera 13 was paused at the 2:14 minute mark. That showed a profile of the man in the gray camo-shirt from the left side.

They looked like the same person to me. [ 12 ] On the basis of the evidence of Constable Hamilton and what I could see myself in the courtroom, I am satisfied beyond a reasonable doubt that the man in the gray camo-shirt was Mr. Caldwell. 2. Did the man in the black leather jacket commit theft of merchandise? [ 13 ] Zoe Nolan testified that she was concerned that some of the customers in the liquor store were trying to distract her and that a theft was occurring. She did not see the theft take place, but did review the videotape afterwards.

When she reviewed the videotape, she alerted her manager. [ 14 ] The videotape was in colour, with good definition. The video taken from above the clerk’s till showed a man in a black leather jacket enter from the left. Given the summer weather in the Okanagan, it is unusual to see leather clothing worn in July. All of the other customers on the video are dressed in sundresses, short skirts or pants, and short-sleeve shirts. [ 15 ] As he walked, the man’s arms swung freely.

He walked past a bicycle presented as part of a promotion for Kronenberg beer, and turned left up an aisle of shelves about 15 or 20 feet long. On each side of this aisle there was a top, middle and bottom shelf. The shelves on the left closest to the camera contained whiskey. Nothing other than bottles of liquor, wine or other merchandise are visible on any of the shelves.

[16] The man in the leather jacket walked about five feet up the aisle and then paused. At the 0:58 minute mark of the video takenfrom camera nine, he leaned forward and twisted to his left. Within a second, he straightened up and continued to walk. He momentarilyheld his left arm away from his body in a manner that was consistent with concealing an object under the left side of his leather jacket. He continued to walk to the end of the aisle, but his left arm no longer swung freely. It was held close to his side.

At the end of theaisle, he shrugged to adjust the fit of the jacket. [17] At the end of the aisle the man turned and walked back down the aisle to where he had paused before. As he was nowapproaching the camera, the manner in which he carried his left arm was more obvious. He stopped next to the same shelf that he hadstopped at before, but turned around completely so that his left side was facing toward the camera. His right arm can be seen reachingacross his body toward the shelf and then he straightened up and walked up the aisle again.

This time, he makes an awkward movementwith his right arm, consistent with putting an object into a pocket on the right side of his leather coat. [18] After a momentary pause at the top of the aisle, the man in leather jacket turned to his left and came down the next aisle over. This time, neither of his arms swung freely. Both of them were held unnaturally, so that his hands were in front of him on either side ofhis belt buckle. [19] On a second camera, the man in the black leather jacket could be seen leaving the store. On a third camera, he could be seenleaving the parking lot.

After leaving the parking lot, he could be seen stopping, turning, and raising his hands above his head. Hisgesture appeared to be a celebration of some sort, although I can give very little weight to conduct occurring after the fact. [20] So, to conclude on this issue, the taking of a bottle was not visible on the video. Ms. Nolan did not testify that she saw a bottlebeing taken and there was no inventory conducted to determine whether anything was missing.

However, the other evidence includingthe choice of clothing, changes in the manner of walking, the momentary pauses at the same shelf, movements consistent with placing anobject into the pockets of the jacket and gestures consistent with adjusting the weight in the jacket must also be considered. When I doso, I am satisfied that the only reasonable conclusion to be drawn from the whole of the evidence is that the man in the black leatherjacket took two bottles of liquor and left the store without paying for them. 3. Was Mr. Caldwell a party to the offence by aiding or abetting the theft? [21]

Section 21 of the Criminal Code provides that an accused can be a party to an offence in any of three ways. They can actuallycommit the offence, or else they can do or omit to do anything for the purpose of aiding another person to actually commit the offence,or finally, they can abet another person to commit the offence. Abetting simply means encouraging. [22] As the Supreme Court of Canada held in R. v. Dunlop, (SCC), [1979] 2 SCR 881: “Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principaloffender;

an act which facilitates the commission of the offence, such as keeping watch on (sic) enticing the victim away, or

an act whichtends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping orbeing ready to assist the prime culprit…” [23] The theory of the Crown in the case at bar is that Mr. Caldwell aided the man committing the theft by preventing the store clerkfrom seeing him, either by distracting her or by obstructing her view of the aisle in which the theft was being committed. [24] In order to meet the burden of proof, the Crown must prove beyond a reasonable doubt that Mr.

Caldwell did something toassist or help the man committing the theft and that he intended to do so. In order to intend to assist in the commission of an offence, theaider (in this case, Mr. Caldwell) must know that the perpetrator intends to commit the crime, although the aider need not know preciselyhow the crime is to be committed. See R. v. Briscoe 2010 SCC 13 , [2010] 1 SCR 411 at para 17. [25] In light of that review of the law, I turn again to the video that was marked as Exhibit 1 on the trial.

On that video, Mr.Caldwell is seen entering the liquor store through the normal customer entrance, immediately behind the man in the black leather jacket. Mr. Caldwell paid no attention to any of the merchandise in the store. Instead, he walked past the bicycle on display at the end of theaisle as part of the Kronenberg promotion. As the man in the black leather jacket turned to walk up the aisle, Mr. Caldwell stopped at apoint that would have been directly between the store clerk and the spot where the man in the black leather jacket paused to conceal abottle in his jacket. Mr.

Caldwell glanced quickly at the man in the black leather jacket as he straightened up and walked up the aisle. Mr. Caldwell continued to examine the bicycle, removing his sunglasses, cocking his head and shifting his weight from side to side, butremaining in the position between the store clerk and the shelf from which the other man had taken the bottle. [26] The man in the black leather jacket returned down the aisle and took the second bottle while Mr.

Caldwell continued hisinspection of the bicycle in the Kronenberg promotion. [27] After the other man walked back up the aisle and then down the next aisle over, Mr. Caldwell glanced at him once. The otherman left the liquor store with his arms held awkwardly close in front of him and Mr. Caldwell left the store right behind him. [28] In total, Mr. Caldwell spent about 50 seconds examining a bicycle in a liquor store, while standing in a position that obstructedthe store clerk’s view of a theft and then left very shortly after the thief.

At no time did he ever look at, let alone purchase, any of themerchandise on sale. I would be surprised if a liquor store bicycle had ever been so closely inspected before. [29] Given the position in which Mr. Caldwell stood, there is no question that his conduct had the effect of assisting in thecommission of the offence because he obstructed the clerk’s ability to observe the offence being committed. The real question iswhether or not the Crown has proven beyond a reasonable doubt that he knew that the man in the black leather jacket intended to commitan offence and that by standing where he did, Mr.

Caldwell intended to assist him. [30] When the man in the black leather jacket reached the parking lot, he turned around to face Mr. Caldwell, who was stillfollowing him. The man in the black leather jacket raised his arms above his head, in what appeared to be some sort of celebration. This

conduct, however, tells me nothing about Mr. Caldwell’s intentions or knowledge while inside the liquor store. [ 31 ] The Crown’s case is entirely circumstantial. In order to find Mr. Caldwell guilty, I must be satisfied that his guilt is the only reasonable conclusion to be drawn on all of the admissible evidence. After a careful consideration of the evidence, including a close review of the video taken through camera 9, I have decided that it is. I reach this conclusion because Mr.

Caldwell must have been aware that the theft was occurring, because he was standing about five feet from where it was happening and because he glanced several times at the thief while the thief moved about the store. The position of the store clerk would have been obvious to him, and he must have known that standing in the position he selected would obstruct her view of the theft. It is easy to infer that he intended that outcome.

I conclude that he knew that the man in the black leather jacket intended to commit an offence for three reasons: first, because they entered and exited together; second, because he maintained his position and continued to obstruct the clerk’s view while the second bottle was taken off the shelf; and third, because knowledge of what was about to occur is the only reasonable explanation for choosing to stand on one spot in a liquor store for so long in the first place. [ 32 ] Accordingly, I find Mr. Caldwell guilty as charged.