R. v. Gagnon, 2021 BCPC 128

Citation: R. v. Gagnon 2021 BCPC 128 Date: 20210430 File No: 64453-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Karl Gilles Gagnon REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: A. Toljanich Counsel for the Defendant: M. Lowe Place of Hearing: Richmond , B.C. Dates of Hearing: April 8, 27, 2021 Date of Judgment: April 30, 2021 [ 1 ] The Accused has been charged on information 64453-1 with the following counts:

1. On or about September 5, 2019, defraud Supersave Gas of money, contrary to Section 380(1) of the Criminal Code . 2. On or about September 5, 2019, defraud Mart 99 of money, contrary to Section 380(1) of the Criminal Code . 3. On or about September 5, 2019, defraud Kingswood Liquor Store of money, contrary to Section 380(1) of the Criminal Code . 4. On or about September 5, 2019, defraud Petro Canada of money, contrary to Section 380(1) of the Criminal Code . 5. On or about September 5, 2019, use a credit card knowing it was obtained by the commission in Canada of an offence, contrary to Section 342(1) (

c) of the Criminal Code . 6. On or about September 5, 2019, possess a credit card knowing it was obtained by the commission in Canada of an offence, contrary to Section 342(1) (

c) of the Criminal Code . Admissions of Fact [ 2 ] On September 5, 2019, a home at 6205 No. 4 Road was broken into between 8:20 a.m. and 10:20 a.m. One of the items stolen during the break-in was a credit card.

That credit card was fraudulently used to purchase items at a number of establishments: • Supersave Gas at 6000 No. 5 Road at 10:41 a.m. for items valued at $61.62. • Kingswood Liquor Store at 10-9371 No. 5 Road at 10:50 a.m. for items valued at $62.76. • Mart 99 at 2-9371 No. 5 Road at 10:53 a.m. for items valued at $92.95. • Petro-Canada at 11911 Steveston Highway at 10:58 a.m. for items valued at $26.92. [ 3 ] Video surveillance cameras captured images of the person who used the stolen credit card at each of the above business establishments.

Two still images of the suspect were extracted from the surveillance video at Supersave Gas and pasted to the bottom of Exhibit 8 which was a document sent out to other police forces by the RCMP investigator with conduct of the investigation of the above frauds, seeking assistance to identify the suspect. Exhibit 8 was described by VPD Constable Scally as an “identification bulletin” and by VPD Detective Constable Loos as an “identification poster”. Evidence of Constable Scally [ 4 ] Constable Scally of the Vancouver Police Department testified for the Crown.

Constable Scally testified that he viewed Exhibit 8 on September 8, 2019, while going through his emails at the police department annex. According to Constable Scally’s evidence, on the next day of September 9, 2019, while out on foot patrol in the unit block of East Hastings Street, he noticed a male walking towards him. Constable Scally greeted the male and asked him if he’d ever seen him before. The male answered that he didn’t think so. Constable Scally told the male that he looked familiar. The male stated that his mother may have reported him missing at one point.

After Constable Scally obtained the male’s name – Karl Gagnon – and his date of birth, his interaction with the male ended and the male continued on his way down Hastings Street. [ 5 ] Approximately 30 minutes later, back at the detachment, Constable Scally queried the name “Karl Gagnon” on the police databases and located a photograph of a “Karl Gagnon” on Prime that was filed in this proceeding as Exhibit 9. The Admissions of Fact state that Exhibit 9 is a known photograph of the Accused.

Constable Scally concluded that the male in Exhibit 9 was the same “Karl Gagnon” that he had encountered 30 minutes prior on Hastings Street. According to Constable Scally’s evidence, Exhibit 9 is a photograph that is usually taken by jail staff and entered into the police CABS or Computer Assisted Booking System. [ 6 ] The Crown conceded that Constable Scally’s evidence was not being tendered as a recognition opinion as Constable Scally was not able to state how or why he thought he recognized the male he encountered on East Hastings Street on September 9, 2019.

Counsel for the Crown stated that, for that reason, no voir dire was required. [ 7 ] At no time did Constable Scally testify that he recognized the suspect depicted in the identification bulletin or identification poster at Exhibit 8 as Karl Gagnon. Constable Scally had viewed Exhibit 8 on September 8, 2019, and encountered the male he later concluded was the Accused on September 9, 2019. In cross-examination, Constable Scally agreed that the male that he met on September 9, 2019, was a person that he had never seen before and had never had any prior dealings with.

Constable Scally conceded that, at that point, he did not know who that male was. Evidence of Detective Constable Loos [ 8 ] Detective Constable Loos of the Vancouver Police Department also testified for the Crown. Detective Constable Loos testified that on January 2, 2020, in an unrelated investigation, he had interviewed a male named “Karl Gagnon” for approximately 50 minutes. Jail staff had informed Detective Constable Loos of the male’s name prior to his interview.

Detective Constable Loos made an in-dock identification of the Accused as the Karl Gagnon that he had interviewed on January 2, 2020. [ 9 ] I am satisfied that the person who Detective Constable Loos interviewed on January 2, 2020 was the Accused. [ 10 ] Detective Counsel Loos testified that Mr. Gagnon sat across the table from him, about 3 to 4 feet away, during the interview.

He estimated that each was speaking for about half of the time during the interview. [ 11 ] Detective Constable Loos was asked to provide a physical description of the person that he interviewed and replied: On that day, I would have described Mr. Gagnon as taller than I am, so approximately 6 feet, uh, dark-skinned male, uh, short black hair, uh, and slender face.

[12] Asked to describe the male’s build or body shape, Detective Constable Loos stated: Uh, slim to medium build. [13] Asked for more particulars about the male’s facial features, Detective Constable Loos said: Uh, I don’t recall… I don’t uh… he did not uh… he didn’t have any facial hair at that time, um, other than that, uh, I don’t recall muchelse about the face. [14] Detective Constable Loos testified that on January 13, 2020, he viewed an email chain sent by Richmond RCMP investigators onJanuary 12, 2020, seeking assistance in identifying a suspect.

Included in that email chain was the information poster or bulletin that isExhibit 8 containing two photographs of the suspect in the fraud committed at Supersave Gas on September 5, 2019, that had beenextracted from the surveillance video. [15] Detective Constable Loos testified that, right away, he recognized the male depicted in the photographs in Exhibit 8 as the sameKarl Gagnon he had interviewed on January 2, 2020. [16] Detective Constable Loos was then asked to look at the two photographs of the suspect in Exhibit 8 and to explain what featuresor parts of the individual depicted there led him to the conclusion that these were photographs of the Karl Gagnon he had interviewed onJanuary 2, 2020.

Detective Constable Loos replied: Uh… just the short black hair, slender face and his eyes… just the shape of his eyes. [17] Detective Constable Loos testified that he sent an email reply to the Richmond RCMP investigators advising that he had added apage to the PRIME report identifying the suspect as Karl Gagnon. Issue [18] The Admissions of Fact describe all 4 of the fraud offences occurring between 20 minutes to 2 hours and 20 minutes after thetheft of the victim’s credit card. All of the frauds occurred between 10:41 a.m. and 10:58 a.m. on September 5, 2019.

The map providedby the Crown shows the location of the offences and shows them occurring along a route leading from the location of the break andenter and theft, where the credit card was stolen. The Kingswood Liquor store and the Mart 99 store are both located in the same stripmall. That same credit card was used in all of the 4 frauds by using the “tap” feature.

The photos of the suspect extracted from thesurveillance videos at all 4 locations each show a dark-skinned male wearing the same or very similar clothing and footwear. [19] It is admitted that the suspect depicted in the photographs extracted from the surveillance videos at each location is the personwho perpetrated the frauds. [20] I am satisfied that the same suspect perpetrated each of the fraud offences. [21] Detective Constable Loos’ recognition evidence was provided in the context of a voir dire.

I ruled his evidence to be admissibleon the basis of his greater familiarity with the person identified and being in a better position than the Court to make the identification (R.v. Behre, 2012 ONCA 716 at para. 20). [22] However, there is still the issue of the weight to be given to Detective Constable Loos’ evidence. The issue is whether thatevidence has proven beyond a reasonable doubt that the suspect depicted in Exhibit 8 is the Accused. Discussion [23] In R. v. Field, 2018 BCCA 253, Hunter, J.A. described three distinct types of identification evidence that may be tendered, atparagraph 23: (

i) Eyewitness evidence by a stranger: Experience has shown that eyewitness evidence proffered by a stranger to the accused isthe least reliable identification evidence. It has been described as "inherently unreliable": R. v. M.B., 2017 ONCA 653 at para. 29. In lightof the many instances in which identification has proved erroneous, the trier of fact must be cognizant of "the inherent frailties ofidentification evidence arising from the psychological fact of the unreliability of human observation and recollection": R. v.

Burke, (SCC), [1996] 1 S.C.R. 474 at para. 52. (ii) Identification by the trier of fact through photographic evidence: On occasion, the trier of fact will have the benefit ofphotographic evidence taken at or sufficiently near the scene of the crime to have probative value in determining the identity of theperpetrator. As long as the photographic evidence is of sufficient clarity and quality to permit identification of the person shown in thephoto, the evidence can be admitted and weighed with other evidence by the trier of fact: R. v.

Nikolovski, (SCC),[1996] 3 S.C.R. 1197 at para. 23. (iii) Recognition evidence: The Crown may also choose to tender opinion evidence from a person or persons who can identify theindividual shown in a photo or video. This evidence is admissible if the witness had a prior acquaintance with the accused and istherefore in a better position than the trier of fact to conclude whether the individual in the photo is the accused: R. v. Leaney, (SCC), [1989] 2 S.C.R. 393; R. v. Brown (2006), (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.). [24] In the case at bar, the first category does not apply.

With respect to the second category, I have been asked to look at the photosin Exhibit 8 and find that it is Mr. Gagnon. However, after looking at the photographs in Exhibit 8, after looking at Mr. Gagnon in Courtwith his mask removed and after looking at the known photograph of Mr. Gagnon in Exhibit 9, I find I am unable to say beyond areasonable doubt that the photographs in Exhibit 8 are of Mr. Gagnon. [25] The photographs in Exhibit 8 are very dark. I could not discern with any confidence whether the suspect has any facial hair or

not. The right side of the suspect’s face, in particular, appears to be hidden in a dark shadow. The suspect’s face in the Exhibit 8 photosis approximately 15mm long x 10mm wide, or 5/8” x 3/8”. [26] I would not be able to state with any confidence that the suspect in Exhibit 8 is the same person as is depicted in Exhibit 9 – theknown photograph of the Accused. The suspect in Exhibit 8 appears to be much more dark-skinned. [27] Had I not been informed that Exhibit 9 was a known photograph of the Accused, I would not be able to say with any certaintythat it was the Accused depicted in that photograph.

The Accused’s hair is now much longer in an Afro-like style, and he has facial hairin the way of a moustache. In the Exhibit 9 photograph, his hair is extremely close-cropped – it appears to have been shaved to less than¼ inches long. In my view, the Accused now looks much different than his Exhibit 9 photograph. [28] During submissions, the Crown provided the court with an image depicting the lower part of a face with the various physicalfeatures of a face labelled.

The Crown made submissions about physical features such as philtrum columns, mentolabial creases andother physical features, noting similarities between those features found on the Accused’s known photograph in Exhibit 9 with thefeatures that he was able to discern on the photographs of the suspect that were extracted from the various surveillance videos. In myview, without expert evidence regarding how common or uncommon such features are in the general population, the Court cannot drawthe inferences the Crown seeks.

Analysis of Detective Constable Loos’ Recognition Evidence [29] The question therefore is with respect to the third category of identification evidence referred to by Hunter, J.A., i.e. what weightshould the Court place on Detective Constable Loos’ recognition evidence? [30] I have reviewed the trial decision of Judge Wolfe in Field, 2016 BCPC 423. At paragraph 22, Judge Wolf cites an Ontario caseauthority which I find quite helpful. [31] Another case that has been tendered, which I find useful is the R. v.

Miaponoose (On CA) case – while out ofOntario succinctly provides trial judges with a starting point as to factors involved in evaluating eyewitness identification evidence. Onpage 6 of that decision: The weight of eyewitness identification will obviously vary greatly depending on the circumstances. In an often quoted passage from thedecision of R. v. Smierciak (1946), (ON CA), 87 C.C.C. 175, 2 C.R. 434, Laidlaw J.A., in writing for the Ontario Courtof Appeal, succinctly set out a number of relevant factors to be considered in the assessment of identification evidence.

His words areparticularly useful to the review of this case (at p. 177): The weight of evidence of identification of an accused person varies according to many circumstances. A witness called upon to identifyanother person may have been so well acquainted with him or her as to make the identification certain and safe. The person to beidentified may possess such outstanding features or characteristics as to make an identification comparatively free from doubt. Theconditions under which an observation is made, the care with which it is made, and the ability of the observer, affect the weight of theevidence.

In addition to such matters, and of the utmost importance, is the method used to recall or refresh the recollections of a witnesswho is to be relied upon to identify a person suspected of wrongdoing or who is under arrest. If a witness has no previous knowledge ofthe accused person so as to make him familiar with that person's appearance, the greatest care ought to be used to ensure the absoluteindependence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias createddirectly or indirectly.

Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonablyprejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that aperson is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. Submitting a prisoner alonefor scrutiny after arrest is unfair and unjust.

Likewise, permitting a witness to see a single photograph of a suspected person or of aprisoner, after arrest and before scrutiny, can have no other effect, in my opinion, than one of prejudice to such a person. [32] Constable Scally was not able, when he encountered Mr. Gagnon on September 9, 2019, to identify him as the person depicted inthe photographs in Exhibit 8 that he had viewed the day before. [33] Detective Constable Loos had the opportunity to sit face to face with Mr. Gagnon for approximately 50 minutes, 10 to 11 daysprior to viewing Exhibit 8. His evidence was that he recognized him right away.

His memory of Mr. Gagnon was as a suspect in anotherinvestigation. The photograph that he recognized as being Mr. Gagnon was on an Information Poster or Information Bulletin whereanother officer was seeking assistance in identifying the suspect in the offences now before the Court. [34] In the Field trial decision, Judge Wolf accepted the recognition evidence of 2 probation officers – Ms. Nash and Ms. Fuess – whohad dealt with Mr. Field a number of times over a period of time while supervising his probation. [35] Between August 2009 and July 2010, Ms. Nash had met Mr.

Field anywhere from 11 to 44 times over a period of a year. Eachtime she and Mr. Field sat in an interview room 2 to 3 feet apart during face to face meetings lasting anywhere from 30 minutes to anhour. She took over his probation supervision again between August and October of 2014, meeting with him another 4 or 5 times ininterview rooms for periods of 30 to 40 minutes. Ms. Nash testified that she recognized Mr. Field as the suspect depicted in photographsshown to her by police. She testified that she recognized him immediately and was extremely certain. When asked why she was socertain, Ms.

Nash testified that she recognized Mr. Field’s “overall face shape, cheekbones, shape of his nose, shape and size of hiseyebrows”. In cross-examination, Ms. Nash was adamant with respect to the quality of her identification and said that his “face, nose andcheekbones were fairly distinctive to me.” [36] Ms. Fuess had supervised Mr. Field’s probation between June and October of 2014. Her supervision ended approximately onemonth before the offence date. Ms. Fuess also testified that she recognized Mr. Field immediately as one of the suspects in thephotographs provided by police.

She stated of her identification, “I was very certain”. Asked to explain why she was so certain, Ms.Fuess testified, “Nathan has a slender, long and narrow face and the way his eyes were set was very telling for me.”

[ 37 ] Both Ms. Nash and Ms. Fuess were shown photographs of a number of individuals and asked if they recognized any of them before identifying Mr. Field. [ 38 ] In the case at bar, Detective Constable Loos had met Mr. Gagnon only one time, 10 to 11 days prior to receiving the photographs in Exhibit 8. He had never met him before that interview and had no further involvement with him afterwards.

Detective Constable Loos admitted that interviewing people who have been arrested is a fairly regular duty that he performs and that he has interviewed dozens of people. [ 39 ] Detective Constable Loos never stated how certain he was that the person depicted in Exhibit 8 was Mr. Gagnon. Actually, Detective Constable Loos never stated that he was certain that the person in Exhibit 8 was Mr. Gagnon. He merely said that he “recognized him right away” as Mr. Gagnon after viewing Exhibit 8. Asked to explain why he recognized the suspect in Exhibit 8 as Mr.

Gagnon, Detective Constable Loos replied: “Uh… just the short black hair, slender face and his eyes… just the shape of his eyes”. [ 40 ] Detective Constable Loos did not explain what it was about the shape of Mr. Gagnon’s eyes that stood out to him. When he was initially asked to describe Mr. Gagnon’s facial features, Detective Constable Loos said nothing about his eyes. He only said: “Uh, I don’t recall… I don’t uh… he did not uh… he didn’t have any facial hair at that time, um, other than that, uh, I don’t recall much else about the face”. [ 41 ] I have looked at Exhibit 8 a number of times now.

I am unable to discern anything distinctive about the eyes of the person depicted there. [ 42 ] The evidence of Detective Constable Loos, in my view, falls far short of the certainty and the detail provided by Ms. Nash and Ms. Fuess in the Field decision. Conclusion [ 43 ] I am not able to determine how certain Detective Constable Loos was with respect to his recognition evidence. Recognizing someone “right away” could reflect a range of certainty – anywhere from 60% to 100%. It could indicate that, of all the arrested suspects Detective Constable Loos has interviewed, Mr.

Gagnon looks most similar to the person in Exhibit 8. It could indicate that Mr. Gagnon looks very similar to the person depicted in Exhibit 8. [ 44 ] I accept that Detective Constable Loos did believe “right away” that the person depicted in Exhibit 8 was Mr. Gagnon. However, in my view, that does not prove beyond a reasonable doubt that the suspect depicted in Exhibit 8 is in fact Mr. Gagnon. [ 45 ] Accordingly I find Mr. Gagnon not guilty. ______________________________ The Honourable Judge P. Chen Provincial Court of British Columbia