R. v. Lowes Date:, 2016 BCPC 473

Citation: R. v. Lowes Date: 20160726 2016 BCPC 473 File Nos: 50264, 50603 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JACOB DANIEL LOWES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE HEWSON Counsel for the Crown: J. Guild Counsel for the Defendant: J. O'Quinn Place of Hearing: Vernon , B.C. Date of Hearing: July 26, 2016 Date of Judgment: July 26, 2016

[ 1 ] This is a ruling at the conclusion of a Preliminary Inquiry. There are two Informations before the court. By consent, the evidence and this ruling will apply to both Informations. [ 2 ] The accused is Jacob Daniel Lowes. [ 3 ] At the commencement of these proceedings, I made an order directing that the evidence taken at this inquiry shall not be published in any document or broadcast or transmitted in any way before such time as Mr.

Lowes is discharged, or if he is ordered to stand trial, the trial is ended. [ 4 ] On August 12, 2014, a man chased Robin Rochemont, Adrian Dziedzic and Alex Reynolds from the Green Valley Motel across Highway 97 and into Polsen Park. Shots were fired, and the four men ran in separate directions. The Crown alleges that the man was Mr. Lowes, and that he fired several rounds from a 45 caliber handgun at Rochemont and Dziedzic. [ 5 ] As a result, on Information 50264, Mr.

Lowes is charged with the attempted murder of Robin Rochemont and Adrian Dziedzic, with discharging a restricted or prohibited firearm at those same two individuals with the intent to wound them or endanger their lives, with discharging a firearm while being reckless as to the lives or safety of others, and with possession of a loaded prohibited or restricted firearm without holding an authorization or licensed to possess it. On Information 50603, Mr.

Lowes is charged with possessing a handgun while prohibited, and with possessing ammunition while prohibited. [ 6 ] All of the evidence of identification is circumstantial evidence.

There is no direct evidence that Jacob Lowes was the Caucasian male who chased the other three men across Highway 97 into the park. [ 7 ] Counsel have agreed that the single issue that requires determination by me on the preliminary inquiry is whether there is any admissible evidence that could, if believed, result in a conviction by proving beyond a reasonable doubt that the man was Jacob Lowes. [ 8 ] In order to reach that determination, I will review the law with respect to preliminary inquiries, and then apply it to the evidence led, with a focus on the evidence of identification.

Law with Respect to Preliminary Inquiries [ 9 ] A judge presiding at a Preliminary Inquiry derives his or her authority from

Part XVIII of the Criminal Code . [ 10 ] The purpose of the Preliminary Inquiry is to determine whether there is sufficient evidence to set the matter down for trial before a justice of the Supreme Court. [ 11 ] The test for committal following a Preliminary Inquiry is the same as the test on a no evidence motion or a directed verdict.

The court must decide whether there is any admissible evidence upon which a reasonable jury, properly instructed, could return a guilty verdict. [ 12 ] Where the Crown’s case is based on circumstantial evidence, the judge at a Preliminary Inquiry engages in a limited weighing of all the evidence, to determine whether a reasonable jury, properly instructed, could return a guilty verdict. That involves considering the reasonableness of the inferences drawn from the evidence.

The judge is inevitably required to engage in this limited weighing of the evidence because, with circumstantial evidence, there is an inferential gap between the evidence and the fact or matter to be established. [1] [ 13 ] As Mr. Justice Watt put it in his Manual of Criminal Evidence , an inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings.

It is a conclusion that may, not must be drawn in the circumstances. [2] [ 14 ] The judge at a Preliminary Inquiry does not draw inferences from facts, and does not assess credibility. The task of limited weighing never requires consideration of the inherent reliability of the evidence itself. It is, instead, an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. [3] [ 15 ] This is consistent with the traditional separation of the tasks of the judge and the jury at a trial.

The judge’s role is to determine whether any facts have been established by evidence from which the matter in issue might be reasonably inferred. The role of the jury is to decide whether, from those facts, the matter in issue ought to be inferred. [4] [ 16 ] Reasonable inferences are not necessarily likely or probable inferences. Inferences that are difficult to draw may still nonetheless be reasonable. The judge at a Preliminary Inquiry must accept any evidence that is capable of belief.

The evidence cannot be considered piecemeal, but rather the judge must examine the evidence as a whole. [ 17 ] When all of the evidence has been taken, the judge at a Preliminary Inquiry shall order the accused to stand trial if in the opinion of the judge there is sufficient evidence to put the accused on trial for the offence charged, or for any other indictable offence in respect of the same transaction.

However, if in the opinion of the judge on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence respect to the same transaction, the judge shall discharge the accused. [5] The Evidence [ 18 ] The Crown called 20 witnesses on the Preliminary Inquiry. Most of them testified about a shooting incident at the Green Valley Motel and Polson Park. There were many different descriptions of the man who chased Rochemont and Dziedzic from the motel to the park. He might have been wearing a hat, or he might not have been.

He might have been wearing a shirt, or he might not have been. Some

witnesses described two people crossing the road, some described three and some described four. One witness thought that one of the people was a female. Most thought that they were wearing dark clothing. [ 19 ] The police presented photo lineups to most of the eyewitnesses to the shooting. A photograph of Mr. Lowes was included in the photo lineup. None of the eyewitnesses recognized the man who chased Rochemont, Dziedzic and Reynolds in the photo lineup. [ 20 ] The circumstantial evidence of identification is to be found in the evidence of four witnesses.

They were Darren Chapman, Alex Reynolds, Stephanie Ballantyne and Christopher Kusack. I will review the evidence of each in turn. [ 21 ] Darren Chapman testified by video because he was in custody at the Kamloops Regional Correctional Centre. He testified that, shortly after the shooting in August 2014, he ran into Mr. Lowes. He said that Mr. Lowes told him that he had been at his hotel and that somebody knocked or kicked in the door. Mr. Chapman thought that Mr. Lowes said he was in room 109. He said that he thought that Mr. Lowes said it was Robin and some young kid. Mr. Chapman said that Mr.

Lowes told him that they had fired off a shotgun, and that he had “puffed up” and chased them out of the hotel room. Mr. Chapman said that he thought that Mr. Lowes said they ran into Polson Park, “or something like that”. [ 22 ] Police witnesses confirmed that a shotgun had been discharged in room 109 at the Green Valley Motel. [ 23 ] Alex Reynolds testified that he had gone to the Green Valley Motel on the morning of August 12 with Robin and Adrian. He stood at the front of the Motel, between the bottom of the flight of stairs and the front door of unit 109.

Robin and Adrian went around the side of the building, towards the back. About two or three minutes after they went around the corner, Reynolds heard a gunshot. Adrian and Robin came running back around the corner, and Reynolds started running with them. Reynolds said there was somebody chasing behind them with a handgun. They ran through the front parking lot of the Motel, and across the intersection into Polson Park. As they ran through the intersection, a shot was fired towards them. After they crossed the intersection, the three of them split up and Robin and the man chasing them exchanged gunshots.

Reynolds heard at least four gunshots. Reynolds cannot give a description of the man chasing him, except that his skin was white. [ 24 ] Stephanie Ballantyne testified that just before 8:00 AM on August 12 she was driving a Jeep on 25 th Ave., headed east toward the movie theater. She did not have the vehicle’s hardtop on. She heard some popping sounds that sounded like shots, and looked around. She heard about five shots. She said the first few were close together, then there was a short break, then a couple more shots. She saw a male run from the park. He was of average build and height. Ms.

Ballantine estimated that he was 5’8” or 9”, and certainly under 6 feet. She said that he was wearing a black shirt with a white design on the front, khaki shorts and black socks with no shoes. She said that the white design looked like wings. [ 25 ] A store video taken at the Village Market convenience store, several blocks south of the Green Valley Motel and the scene of the shooting, was entered in evidence. The video was taken later in the morning on August 12. Witnesses identified Mr. Lowes as one of the people in the video. Mr. Lowes was wearing a black shirt, with a white design on the front of it.

The design was not of wings, but was of two cartoon hands held up with the thumbs together and the palms facing the viewer. The fingers were extended to the sides, as wings might be. [ 26 ] Christopher Kusack was Mr. Lowes’ cellmate, after Mr. Lowes was arrested on these charges and remanded in custody. He testified that Mr. Lowes told him that somebody else had tried to rob him. Mr. Kusack said that Lowes told him that he was defending himself, and grabbed a gun to teach the other personal lesson. Mr. Kusack said that, according to Mr. Lowes, this happened at a hotel in some playground or Park, in Vernon BC. Mr.

Kusack also related overhearing a conversation between Mr. Lowes and a friend of Mr. Lowes. According to Mr. Kusack, the friend asked Mr. Lowes what happened. Mr. Lowes said something about the hotel, and running through a park. The friend asked Mr. Lowes about the weapon, and according to Mr. Kusack, Mr. Lowes said that he threw it in the creek. [ 27 ] Several weeks after the incident, police conducted the search of the Vernon Creek near the Green Valley Motel, and located a 45 caliber handgun.

The handgun was located near room 109, and ballistic testing determined that it was the gun that had fired three forty-five caliber rounds that were found near the scene of the shooting and Polson Park. [ 28 ] In order for a jury to be properly instructed on facts like this, the jury instructions would include an instruction about the use of evidence of post-offence conduct, like disposing of a handgun.

Where an accused’s conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, the trial judge should instruct the jury that such evidence has no probative value with respect to any particular offence. At this point, Mr. Lowes has not admitted culpability in respect of any offence. [6] Mr. Lowes’ admission that he threw the gun in the creek is another fact from which the jury could draw an inference. Conclusion [ 29 ] I am asked whether a reasonable jury could infer that Mr.

Lowes, who said he chased Rochemont and Dziedzic out of room 109 and that he later threw the handgun in the creek, was also the person who chased them into Polson Park and fired the handgun at them. The time at which Mr. Lowes chased them out of room 109 preceded the time at which they were chased into Polson Park by seconds. The gun used to fire the shots was later found in Vernon Creek, and Mr.

Lowes said that he threw it there. [ 30 ] After considering the law, and the evidence led by the Crown, I am satisfied that there is some evidence upon which a properly instructed jury could logically and reasonably infer that Mr. Lowes was the man that chased Rochemont, Dziedzic and Reynolds from the hotel to the park, and fired shots at them. I will order that he be committed to stand trial, with respect to all counts on each of the two Informations before the court. R. Hewson, PCJ

[2] Watt, D. (2005). Watt's Manual of Criminal Evidence 2005 . Toronto: Thomson Carswell. at 108, cited in USA v. Dhanda (19 February 2009), Vancouver 24028 (BCSC), aff’d 2010 BCCA 200 .