2022 NBPC 13, 2022 NBPC 13

CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT Trial Dates: July 22 nd , 2022 and August 19 th , 2022 Decision Date: October 7 th , 2022 Docket No.: 159452 Neutral Citation: 2022 NBPC 13 HIS MAJESTY THE KING - and - CODEY EDWARD HAY Decision of the Honourable Judge Scott A. Brittain of the Provincial Court of New Brunswick APPEARANCES: Johanne Th é riault, on behalf of His Majesty The King Simon Wood, on behalf of the Accused DELIVERED ORALLY INTRODUCTION 1 . The accused, Codey Edward Hay, (“Mr. Hay”) was charged together with Haylee Dawn Tenass (“Ms.

Tenass”) in a two-count information sworn to before this Court on April 13 th , 2022. The two counts read as follows: Count 1 - Codey Edward Hay and Haylee Dawn Tenass on or about April 12 th , 2022 at Miramichi, New Brunswick did possess property, to wit: an ATV of a value exceeding five thousand dollars, the property of Donald and Valerie Morrison, knowing that all or part of the said property had been obtained by an offence punishable by indictment, thereby committing an indictable offence, contrary to

Section 355 (a)(

i) of the Criminal Code and amendments thereto. Count 2 - Codey Edward Hay and Haylee Dawn Tenass on or about April 12 th , 2022 at Miramichi, New Brunswick did without lawful excuse was in a dwelling-house the property of Kimberly Edwards, situated at 10820 Rte 11 Hwy, Glenwood, NB, with intent to commit an indictable offence therein, contrary to

Section 349 of the Criminal Code and amendments thereto. 2 . Mr. Hay elected to be tried before this Court and entered pleas of “not guilty” respecting both counts on June 15 th , 2022. The Crown objected to his release on these charges but Mr. Hay was released on a Release Order by Michaud, PCJ. following a bail hearing

held on April 14 th , 2022. He breached the terms of that Release Order by failing to attend Court on May 2 nd , 2022. Accordingly, a warrant of arrest was issued and subsequently executed on or about May 10 th , 2022. Mr. Hay has been in pre-trial custody since that date, having adjourned his bail hearing several times and ultimately been remanded following a bail hearing held before Landry, PCJ. on August 19 th , 2022. 3 . On June 29 th , 2022, Ms. Tenass elected to be tried before this Court and entered pleas of “not guilty” respecting both counts. Ms.

Tenass missed a Court appearance and a warrant was issued for her arrest. She was arrested pursuant to that warrant on or about June 27 th , 2022. A bail hearing was scheduled for June 29 th , 2022; however, the Crown lifted its objection to Ms. Tenass’ release and she was released pursuant to a Release Order on that date. Ms. Tenass was supposed to be back before this Court on July 8 th , 2022 for a pre-trial conference; however, she failed to attend. A warrant was issued on that date. She remains at large. 4 . Given the unknown whereabouts of Ms. Tenass and the fact that Mr.

Hay is remanded in pre-trial custody, counsel for Mr. Hay brought a motion with the consent of the Crown immediately prior to the commencement of the trial on July 22, 2022, to sever the trial of the two co-accused. That motion was granted and Mr. Hay’s trial proceeded accordingly. THE EVIDENCE 5 . The Crown called the following witnesses at trial: (

a) Corporal Lisa Gill; (

b) Constable Tyler Gray; (

c) Donald Morrison, and (

d) Kimberly Edwards. 6 . The Defence called the following witness at trial: (

a) Mr. Hay. Corporal Gill’s Evidence 7 . Corporal Lisa Gill is a 15-year veteran of the MPF and was identified at trial as the lead investigator respecting this matter. On April 11 th , 2022, she was on General Patrol and responded to a call from Donald Morrison that his Kawasaki Teryx 800cc ATV (the “ATV”), which had been parked in the driveway at his residence on Water Street in Miramichi, had been stolen at some point overnight on April 10 th /April 11 th , 2022. Mr. Morrison reported that the keys to the ATV had been left in its cupholder. 8 . Upon discovering his ATV was missing, Mr.

Morrison took to Facebook to find leads respecting its whereabouts and received a response that an ATV matching his posted photograph had been observed near Highway 11. Further leads were more particular, indicating that an ATV matching the one in Mr. Morrison’s online post was seen at 10820 Highway 11, being the residence of one Kimberly Edwards. It was known to Corporal Gill that Ms. Edwards was then serving a federal sentence at the time of this event. 9 . Corporal Gill attended at the Edwards residence further to the lead received by Mr. Morrison. Ms.

Edwards’ residence is an older mobile home with no “out buildings”. Upon attending at the Edwards’ residence, Corporal Gill observed an ATV parked immediately adjacent to it around back which matched the description of the ATV. Mr. Morrison had earlier advised Corporal Gill that the ATV had several after-market customizations, including a cellular phone mount, a rear-view mirror and roll bars. When Corporal Gill located the ATV, she called Mr. Morrison and was able to identify it as belonging to him by reference to the after-market enhancements. 10 .

On the doorstep of the Edwards’ residence, two pairs of boots were found by Corporal Gill covered in mud. When Corporal Gill knocked on the exterior door to the Edwards’ residence, she heard movement inside. Knowing that Ms. Edwards’ was incarcerated, Corporal Gill called for back-up. Those present from the MPF announced they were at the door before breaching it. 11 . On entering and clearing the premises, Ms. Tenass was found in the middle bedroom crouching against the wall and, upon further investigation, Mr. Hay was found under the bed in the same bedroom.

Both were cautioned and arrested for unlawfully being in a dwelling house. They both wanted to speak to counsel and Mr. Hay declined to provide a statement. 12 . A black back-pack was found in the bedroom where Ms. Tenass and Mr. Hay were discovered by the MPF. Ms. Tenass initially said the back-pack belonged to her. When it was found to contain twenty-one grams of marijuana, however, Ms. Tenass denied ownership of the back-pack. At no time did Mr. Hay take any ownership over anything found in the Edwards’ residence, including the back-pack. A statement was later obtained from Ms.

Edwards confirming that neither Ms. Tenass nor Mr. Hay had permission to be in her mobile home. 13 . On cross-examination, Corporal Gill was questioned about the two pairs of muddy boots found on the doorstep of the Edwards’ residence and asked why these boots were not in evidence as an exhibit before the Court. It was her testimony that they were not taken into evidence because “she didn’t think it would aid in the investigation”. Corporal Gill recalled that one pair were high women’s boots that were “dressy with a heel”. No size was noted. The other pair were black men’s boots - again, the size was not noted.

When asked what Mr. Hay was wearing at the time of his arrest, including whether he was wearing footwear, Corporal Gill was unable to recall. Similarly, Corporal Gill was unable to answer whether Mr. Hay was wearing any clothing sullied in a manner consistent with what she described as the “muddy, dirty, soaked” boots observed on the stoop of the Edwards’ residence. Constable Gray’s Evidence

14 . Constable Tyler Gray is a three-and-a-half year veteran of the MPF and became involved in this matter when a call requesting back- up was received by dispatch from Corporal Gill on the date in question. He was notified that he was required at 10820 Highway 11 in relation to a stolen ATV with the accompanying information that people might be inside the adjacent residence, which he also knew belonged to the then-incarcerated Ms. Edwards. He attended the scene and assisted with breaching the door. 15 . Constable Gray’s observations about where Ms. Tenass and Ms.

Hay were found aligned with the evidence of Corporal Gill - both were found in the same room: Ms. Tenass crouching near the wall with her hands up and Mr. Hay out of plain view under the only bed in the room. Indeed, it was Constable Gray’s recollection that the members of the MPF that were present had to physically lift the bed up to reveal Mr. Hay. 16 . Constable Gray was familiar with the Edwards’ residence owing to his involvement in past criminal surveillance at that premises.

All windows in the Edwards’ residence were blocked at the time and the ATV was found behind the residence, parked in such a way that it was not visible from the road. The MPF breached the side door of the Edwards’ residence and found Ms. Tenass and Mr. Hay in the middle bedroom as earlier described. Constable Gray could not recall what Ms. Tenass was wearing. All he was able to recall about Mr. Hay is that he was “fully dressed”. 17 . Constable Gray explained that Mr.

Hay was searched by other members of the MPF incidental to arrest, which included a search of the back-pack found on or near the bed in the bedroom where the two co-accused were together found. The back-pack was said to contain the keys to the stolen ATV amongst other things. The focus of cross-examination turned on the keys to the stolen ATV, which were neither seized nor entered as an exhibit in evidence.

Constable Gray indicated that “another member” of the MPF who was present at the Edwards’ residence at the time of arrest (in addition to Corporal Gill and Constable Gray, Constables Bradley Gallant and Andrew MacFarlane were present) had checked the keys and verified them to be keys that started the stolen ATV. Constable Gray was unable to verify which officer it was who had undertaken this verification process and, ultimately, only he and Corporal Gill testified at trial from the MPF. Neither Corporal Gill nor Constable Gray testified to dealing with the back-pack or key.

I will return to this later in this decision. 18 . Constable Gray testified that “someone checked them as the correct keys” and that he was “told later that the keys found in the bag belonged to the side by side”. It was his recollection that there was no identification found in the back-pack in question and that “another member had dealt with the search of the bag”. When asked whether any reports, notes or text messages that he had prepared, recorded, sent or exchanged in relation to this arrest indicated anything about a back-pack, Constable Gray confirmed that there was no mention of same. Mr.

Morrison’s Evidence 19 . Donald Morrison resides at 4358 Water Street in Miramichi. He is the owner of the ATV, which he described as a 2021 Kawasaki Teryx 800 that is blue in colour and, at the time of its theft on April 10 th /11 th , 2022, had customized tires, a windshield an after-market roof and other unique enhancements. Mr. Morrison purchased the ATV new in February of 2021. 20 . On the morning of April 11 th , 2022, Mr. Morrison went outside his home and discovered the ATV was missing at approximately 9am. The last time he had seen the ATV was at approximately 10pm the night before.

When he went to bed on the evening of April 10 th , 2022, the ATV was parked between Mr. Morrison’s garage and home and the keys to it were left in its cupholder. At no point before or after he went to bed on the evening of April 10 th , 2022, did Mr. Morrison hear anything outside in relation to the ATV. 21 . He called the MPF just after discovering the ATV was missing on the morning of April 11 th , 2022 and Corporal Gill quickly arrived at his home. Mr.

Morrison turned to Facebook, where he posted a photograph of the ATV together with a description of same, explaining that it had been stolen from his driveway at some point between the evening of April 10 th and the morning of April 11 th , 2022. He provided a phone number for people to contact him if they had any information about the whereabouts of the ATV. 22 . In response to his Facebook post, Mr. Morrison received some leads. One such lead indicated that the ATV had recently been spotted on Highway 11 in Glenwood. Mr.

Morrison contacted Corporal Gill with this information and “she called back within an hour telling me she thought she’d found it”. In a telephone conversation with Corporal Gill, she was able to verify that the ATV belonged to Mr. Morrison based on his description and the photograph provided together with an explanation of certain items that he had left in it, including bear spray, a knife, certain tools, jumper cables, tie-wraps and a machete. All of these items were still in the ATV when it was discovered behind the Edwards’ residence except for the machete and the keys to the ATV. 23 . Mr.

Morrison explained that Burke’s Towing went to where it was found and loaded it on a truck. He explained that they had to use his spare key for the ATV and returned it to his residence. When asked about Mr. Hay, Mr. Morrison explained he does not know him and had never previously encountered him. Mr. Morrison was not cross-examined. Ms. Edwards’ Evidence 24 . As earlier noted, Kimberly Edwards is the owner of a mobile home situated at 10820 Highway 11 in Glenwood.

She purchased it on March 11 th , 2022 for $5,000 and was federally incarcerated at the end of March 2022, meaning she was behind bars at the time of the events that are the subject of this trial. She explained that after she was incarcerated, her mother went to her home, cleaned it and then locked it up. She had no tenants and no one had her permission, either expressly or impliedly, to enter the premises other than her mother and, more recently, her brother, who moved into her home as a tenant on July 21 st , 2022. She explained it is a two-bedroom mobile home. 25 . Ms.

Edwards’ acknowledged that she “knows Codey Hay a little bit, in passing” but was unequivocal when noting that neither he nor Ms. Tenass were ever tenants of hers nor were they at any time welcome inside her home while she was incarcerated. Mr. Hay’s Evidence

26. Codey Hay is 33 years-old. He grew up in Miramichi and, most recently, was living with his mother at 4 Glendale Avenue. Heexplained he was “working odd construction jobs” at the time of his arrest on these charges. Mr. Hay explained he has known Ms.Tenass for about six years. She lived with him for a year. He described the state of their relationship as “just friends” in April of 2022. 27. On the evening of April 10th, 2022, Mr. Hay testified he was at home when he received a call from Ms. Tenass that she was in acircumstance of domestic distress.

She explained that she had been physically assaulted by her boyfriend of 6-7 months, Leroy Savage,and was going to leave Mr. Savage’s residence on foot. Because Mr. Hay does not drive, he reached out to his friend, David Gifford, topick him up and go retrieve Ms. Tenass. The driving distance between Mr. Hay and Ms. Tenass at the time was about 25-30 minutes. Mr.Gifford was about 10 minutes away from Mr. Hay at that time. It was Mr. Hay’s testimony that he and Mr. Gifford got to Ms. Tenassabout 40 minutes or so after her original call to Mr. Hay. They located her at the end of Mr. Savage’s driveway.

According to Mr. Hay,Ms. Tenass jumped in Mr. Gifford’s van while Mr. Savage was screaming and hollering at her. 28. Mr. Hay asked her where she wanted to go and, according to his testimony, Ms. Tenass asked him to take her to Ms. Edward’sresidence. She claimed to be living there and watching Ms. Edward’s residence while she was incarcerated. Mr. Hay explained uponarrival that Ms. Tenass’ “stuff was there and the door was open” when they arrived. They smoked some marijuana together and sheexplained what had happened earlier in the evening with Mr. Savage. 29. Mr. Hay and Ms.

Tenass then “crashed” and the next thing he remembered was “waking up to the cops banging on the door”, atwhich time he claims to have “slid down behind the bed”. Asked outright whether he stole the ATV, Mr. Hay responded “no”. He saidhe noticed the ATV at Ms. Edwards’ residence, which he acknowledged was muddy, when he arrived there after picking up Ms. Tenassand she told him it belonged to her “guy friend”. He asked her if he could take it for a ride but Ms. Tenass told him she did not have thekey. Indeed, Mr. Hay testified he never saw any key to the ATV. Regarding the muddy boots, Mr.

Hay denied being the owner andexplained he had no idea to whom they belonged. The same observations applied to the back-pack. Mr. Hay explained he was somewhatfamiliar with the Edwards’ residence because he “knows her a little bit”. He described Ms. Edwards as “an acquaintance”. Prior to theevening in question, the last time Mr. Hay had been to the Edwards’ residence was approximately six months before when Ms. Edwardswas renting it. Mr. Hay testified that Ms. Tenass and Ms. Edwards are friends and that Ms. Tenass had a history of buying drugs fromMs. Edwards. 30.

Asked on cross-examination about his behaviour when the MPF came to the Edwards residence, and why he did not answer the doorwhen they announced themselves if he was welcome to be there as he claimed, Mr. Hay testified that he only knew the MPF was thereafter they breached the door of the mobile home. When asked why he was underneath the bed when the MPF entered the bedroom, Mr.Hay said he was not under the bed. He explained that he had either “slid” or “fell” behind the bed and was “laying on the floor beside thebed” when the MPF entered the bedroom.

He further explained that it would have been impossible to be under the bed because the bed inquestion consisted of a box spring which sat directly on the floor and a mattress with no raised bed frame. 31. When asked about the keys found in the bedroom of the mobile home, Mr. Hay explained that “they were 100% not the ATV keys”.Indeed, it was Mr. Hay’s testimony that the keys in question actually belonged to him and were his house and car keys (he testified heowned an inoperable 2002 Chevrolet Malibu at the time). He further explained the keys were branded by Chevrolet. THE ISSUE 32.

The central issue arising from this trial can be framed as follows: when applying the analysis mandated by the Supreme Court ofCanada in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, has the Crown successfully discharged its burden of proving theguilt of the Mr. Hay beyond a reasonable doubt on either or both counts? THE ELEMENTS OF THE OFFENCE 33. For this Court to find Mr. Hay guilty under

Section 355(a)(

i) of the Criminal Code of Canada, the Crown must prove each of theseessential elements beyond a reasonable doubt: a. that Mr. Hay was in possession of property obtained by an offence punishable by indictment, namely the ATV, and b. that the value of the ATV exceeds $5,000.00. 34. For this Court to find Mr. Hay guilty under

Section 349 of the Criminal Code of Canada, the Crown must prove each of theseessential elements beyond a reasonable doubt: c. that Mr. Hay was within a dwelling-house without lawful excuse, namely the residence of Ms. Edwards, and d. that he was in such dwelling-house with the intent to commit an indictable offence. 35. Each of these charges carries a maximum penalty of 10-years imprisonment. 36. If the Court is not satisfied beyond a reasonable doubt of all these essential elements, the Court must find Mr. Hay not guilty. 37.

If the Court is satisfied beyond a reasonable doubt of all these essential elements, the Court must find Mr. Hay guilty. 38. The Crown must prove each essential element of each count beyond a reasonable doubt. Proof of probable or likely guilt is notenough. 39. Mr. Hay is presumed to be innocent respecting the two counts before this Court. He has no burden of proof. THE APPLICABLE LAW

40. Like every other person charged with a crime, Mr. Hay is presumed innocent until the Crown has proven his guilt beyond areasonable doubt. The Crown bears the burden of proof throughout the entire trial. Mr. Hay need not present any evidence nor proveanything (see: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). 41. At paragraph 39 of Lifchus, Cory, J. described the standard as follows: 39 Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances, you must give thebenefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonabledoubt. 42. In R. v. Starr, [2000] S.C.C. 40, the Court described the level of proof as "much closer to absolute certainty than to ... a balance ofprobabilities." The burden remains on the Crown throughout. Proof of probable or even likely guilt, is insufficient. 43. This case will be decided as a matter of law according to the principles set out in R. v.

W.(D.), in which Cory J. provided a helpfulanalytical framework for deciding cases involving credibility. He stated: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must [still] acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 44. In another case, R. v.

H. (C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), the British Columbia Court ofAppeal further supplemented the analytical framework offered by Cory, J. in R. v. W.(D.) by offering the follow guidance: I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. 45. In Casey Hill, David M. Tanovich & Louis P.

Strezos, McWilliams’ Canadian Criminal Evidence, loose leaf (Toronto: Canada LawBook, 2011) at 2521, the text states: It is useful to think of W.D. as a teaching on the correct process of reasoning about credibility. It forbids two distinct lines of analysesbecause they are inconsistent with the accused’s right to the presumption of innocence until guilt is proven by the Crown beyond areasonable doubt. First, it is forbidden to reason that the accused’s evidence must be believed to secure an acquittal.

The accused generally bears no burdenof proof and thus need not be believed on a balance of probabilities and certainly not on the highest standard of proof beyond areasonable doubt.

The second forbidden line of reasoning is for the trier of fact to think that the task of adjudication requires the trier of fact to answer thegeneral question of “What happened?” The problem with such a focus is that it creates a tendency in the trier of fact to search through theevidence looking for the truth and deciding whose evidence to believe, rather than searching for a reasonable doubt and giving theaccused the benefit of it. (emphasis added) 46. In R. v. Jones (1992), (QC CA), 74 C.C.C. (3d) 377 (Que.

C.A.) at pp. 379-380, Proulx, J.A. explains that whilethe search for and the determination of truth remain legitimate objectives for the trial judge, his or her role is nonetheless limited by thefundamental principles which govern the burden of adducing evidence and of persuasion. Because of the presumption of innocence,when the judge is confronted with contradictory versions, he or she does not have to decide which one of these versions is true.

Rather,the task of the trial judge is more acutely focused on determining whether the evidence as a whole raises a reasonable doubt, or whetherit satisfies him or her beyond a reasonable doubt as to the guilt of the accused. 47. Commenting specifically on Proulx J.A.’s analysis in the aforementioned decision, Cloutier, P.C.J. (as he then was) of this Courtobserved in R. v. I.J., 2018 NBPC 4 that “I would fine tune Justice Proulx’s comments in two respects. First, judges are not equippedwith supernatural powers or favored with special insight allowing them to assess and rank credibility.

Second, the ultimate issue is notcredibility but reasonable doubt”. 48. The corollary to this is that the trial judge need not decide who was telling the truth. The question, again, returns to the fundamentalquestion of whether the Crown has proven all of the essential elements of the offence beyond a reasonable doubt. 49. In assessing the evidence of Mr. Hay, I am entitled to consider it in the context of all of the other evidence. In doing so, I am notonly permitted, but also encouraged, to compare the evidence of both the Defence and the Crown (see R. v.

Mends, 2007 ONCA 669 atpara. 18 and R. v Carriere (2001), (ON CA), 159 C.C.C. (3d) 51 at par. 48 (Ont. C.A.)). 50. Making credibility findings is more art than science and cannot be reduced to a mechanical or formulaic exercise. A trial judge neednot deal with every piece of evidence in the context of reaching his or her credibility findings. Credibility findings can be difficult toarticulate with precision, particularly when one considers the complex intermingling of impressions that emerge after the hearing of atrial: R. v. Gagnon 2006 SCC 17 , [2006] 1 S.C.R. 621 at para. 20 and R. v.

Dinardo, 2008 SCC 24 , [2008] 1 S.C.R.

788 at para. 26. 51. As was noted by Richard, J.A. (as he then was) in R. v. Wilson, 2013 NBCA 38, an abundance of jurisprudence has arisen from R. v.W.(D.). Writing for our Court of Appeal, Richard J.A. provides an extremely helpful synopsis of the salient principles regarding thestandard of proof applicable in criminal cases at para. 36: A.1 Proof beyond a reasonable doubt, the standard in criminal law matters, applies equally to the issue of credibility: W.(D.), at para. 26.In other words, the issue at the end of a trial is not credibility, but reasonable doubt: Sheppard, at para. 65, and C.L.Y., at para. 6.

A.2 The ideal reasoning process to determine a matter, where the accused denies guilt and credibility is in issue, is to follow the W.(D.)formula: a. First, if the accused is believed, there must be an acquittal; b. Second, if the accused is not believed but the trier of fact is left in a reasonable doubt by it, there must also be an acquittal; c. Third, even if the evidence of the accused does not raise a reasonable doubt, a conviction is only justified if the trier of fact isconvinced of guilt beyond a reasonable doubt on the basis of the evidence that is accepted: W.(D.), at para. 28.

A.3 However, this formula is but a roadmap to remind the trier of fact the ultimate goal is proof beyond reasonable doubt and not merelya credibility contest; it is not the only route: C.L.Y., at para. 8. It is the substance of the test that must be respected, not its literal tripartiteincarnation: R. v. Szczerbaniwicz, 2010 SCC 15, [2010] 1 S.C.R. 455 (S.C.C.), at para. 14. A.4 A trier of fact need not firmly believe or disbelieve any witness or set of witnesses: W.(D.), at para. 27. A reasonable doubt need notrest upon the same sort of foundation of factual findings that is required to support a conviction.

A reasonable doubt arises where aninadequate foundation has been laid: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245 (S.C.C.), at para. 26, quoting Sharpe J.A.,dissenting, in R. v. Kendall, (ON CA), [2005] O.J. No. 2457 (Ont. C.A.). A reasonable doubt does not need to bebased on the evidence; it can arise from an absence of evidence or from a simple failure of the evidence to persuade the trier of fact to therequisite level: R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197 (S.C.C.), at para. 39. A.5 Trial judges are presumed to know the law with which they work day in and day out: R. v.

B. (R.H.), (SCC),[1994] 1 S.C.R. 656, [1994] S.C.J. No. 30 (S.C.C.), at para. 18. A.6 By stating that the accused is not believed, a trial judge is implicitly addressing the first two steps in W.(D.): Boucher, at paras. 29and 59. 52. At para. 41 of his decision in R.v. Bartibogue, 2019 (unreported), Gunn, P.C.J. of this Court provides an extremely helpful “non-exhaustive list of relevant factors in assessing credibility”, as is synthesized from the jurisprudential guidance of the Supreme Court ofCanada and our Court of Appeal.

This list is as follows: a. the witness's opportunities for knowledge; b. the witness's powers of observation; c. the witness's judgment and memory; d. the witness's ability to clearly describe what has been seen and heard; e. How the testimony of the witness harmonizes "with the probabilities which a practical and informed person would readilyrecognize as reasonable in that place and in those conditions.";

f. the cogency of the account; g. Inconsistencies, and whether such inconsistencies: i. make the main points of the testimony more or less believable and reliable; ii. whether the inconsistency is about something important, or a minor detail; iii. whether the inconsistency seems like an honest mistake or a deliberate lie. h. Whether the witness has an interest in the outcome of the case, or any reason to give evidence that is more favourable to one side than to the other, though care should be taken not to put undue weight on this factor; i.

An absence of motive for the complainant to lie is relevant to the fact-finding process however, the trier of fact, must be careful to remember that this is but one factor, the accused has no obligation to prove a motive to fabricate and to not to let this factor turn into a reversal of the onus of proof; and j. The demeanour of the witness, though this is but one of the elements that enter into the credibility of the evidence of a witness and can be both an unreliable indicator of truth and fallible. 53 . It is also important to consider the reliability of a witness.

A witness may be found to be credible; however, that does not answer the question of whether the evidence he or she provided at trial is reliable. It is important for the trial judge to recognize and consider this distinction. APPLICATION OF THE LAW TO THE FACTS 54 . Having regard to the principles of law canvassed above, the Court now turns to the application of the analytical framework outlined in R. v. W.(D.) . 55 . As it pertains to the first count, the Court finds that the second step of the R. v. W.(D.) . analysis is engaged.

It provides as follows: Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must [still] acquit. 56 . Considering the first count, the Crown alleges that Mr. Hay was in possession of property exceeding the value of $5,000.00, namely the ATV belonging to Mr. Morrison, knowing that it had been obtained by an offence punishable by indictment. 57 .

There is no dispute that the value of the ATV in question exceeded $5,000.00; however, in the opinion of the Court, the Crown’s largely circumstantial case on this count languishes under some evidentiary challenges which, taken together, presents to this Court a reasonable doubt on the first count. 58 .

As was noted in the testimony of Constable Gray, a total of four MPF officers attended at the Edwards’ residence on or about April 12 th , 2022 following Corporal Gill’s initial discovery of the stolen ATV behind that dwelling and her subsequent request for back-up owing to hearing activity inside the home; however, only Corporal Gill and Constable Gray testified at trial. 59 . In addition to the two officers that testified, Constables Gallant and MacFarlane were also present when the door to the Edwards’ residence was breached and Mr. Hay and Ms. Tenass were found in the middle bedroom.

It is evident from the testimony of Corporal Gill and Constable Gray that investigative tasks were divided between the four officers present and that neither of them were charged with the task of searching the back-pack found on or near the bed in the bedroom where Mr. Hay and Ms. Tenass were discovered. Moreover, neither Corporal Gill nor Constable Gray personally found the key to the ATV or tested that key in the ignition of the ATV to verify that it started the ATV. They were attending to other tasks. 60 .

Indeed, Constable Gray testified that “someone checked them as the correct keys” and that he was “told later that the keys found in the bag belonged to the side by side”. It was his recollection that there was no identification found in the back-pack in question but that “another member had dealt with the search of the bag”. In other words, the testimony about the discovery of the key to the ATV and the subsequent testing of that key in the ignition of the stolen ATV by another officer to verify that it started the ATV amounts to a classic example of inadmissible hearsay.

Had the MPF officer who discharged these tasks been called by the Crown to testify at trial, a lingering and material deficiency in the Crown’s evidence would have been swiftly and easily addressed. 61 . Had the key been collected in evidence and tendered as an exhibit at trial by the Crown, if it were indeed the key to the stolen ATV, it would have responded to the testimony of Mr. Hay, namely that the key found in the middle bedroom of the mobile home belonged to his inoperable 2002 Chevrolet Malibu, which was on a key ring that also contained his house key, rather than the stolen ATV.

The same observation applies to even a photograph of the key. 62 . Similarly, much was made by the Crown of the muddy boots found outside the door of the Edwards’ residence. Again, these boots were not in evidence as an exhibit nor were there any photographs of these boots or the muddy ATV. If any steps had been taken to verify the ownership of the muddy boots or to even confirm whether the size of those boots - one pair of men’s and one pair of women’s - actually matched the feet sizes of Mr. Hay and Ms. Tenass, the Crown’s circumstantial case would have been stronger. Regarding the

boots, it was Corporal Gill’s evidence that they were not taken into evidence because “she didn’t think it would aid in the investigation”. It is also important to note that there were no observations made about the attire of Mr. Hay that may have linked him to the boots or the ATV. The Court heard evidence that the ATV found behind the Edwards’ residence was muddy, that there were muddy boots of unknown sizes found on the doorstep to the Edwards residence but there was no evidence indicating, for example, that Mr. Hay’s clothing was also muddy or whether muddy clothes were found. 63 .

In short, on the first count, the Crown’s case is circumstantial and grounded in constructive possession. Moreover, it is dependent upon the inadmissible and, therefore, excluded hearsay evidence already dealt with. In effect, the Crown’s case is that Mr. Hay was illegally at Ms. Edwards’ residence as was the stolen ATV, so he must have stolen the ATV. Is there a chance that Mr. Hay might’ve had something to do with this in the broader circumstances, particularly when also considering that neither he nor Ms.

Tenass presented at the door at first instance when Corporal Gill knocked and given the evidence that the Court accepts that Mr. Hay was found hiding under the bed in the middle bedroom when the MPF breached the door and cleared the Edwards residence? Of course. Is there a significant chance? Indeed. Quite simply, however, the Crown has failed to convince the Court that all of the essential elements of this count have been proven beyond a reasonable doubt. Put bluntly, there are far too many loose shingles in the Crown’s case that the Crown failed to nail down. Accordingly, Mr.

Hay is acquitted on the first count. 64 . Turning to the second count before this Court, it was Mr. Hay’s evidence that he was labouring throughout under an honest but mistaken belief created by Ms. Tenass that she was either living in or checking on the Edwards’ residence with the permission of the owner while the owner was behind bars and, by extension, he was an invited and welcome guest in that dwelling house. The evidence of Kim Edwards established that that simply was not the case from a factual perspective; however, that does not dispose of the issue entirely. Ms.

Edwards was unequivocal in noting that neither Ms. Tenass nor Mr. Hay had her permission to be in her dwelling house while she was incarcerated. Indeed, it was her evidence that her mother had thoroughly cleaned the mobile home and locked it up after she was incarcerated and her brother has been living there since mid-July. 65 . It was Corporal Gill’s evidence that she heard movement inside the Edwards’ residence after locating the stolen ATV behind it and, later, finding the muddy boots on the doorstep. Her initial knock went unanswered.

In the circumstances, back up was called in and, ultimately, a total of four officers including Corporal Gill breached the door after announcing first that it was the MPF. 66 . When the MPF entered the Edwards residence, they found Mr. Hay under the bed. This was confirmed in the testimony of both Corporal Gill and Constable Gray. It was their observation that Mr. Hay was hiding in the middle bedroom after the door was breached. 67 . Mr.

Hay testified that he did not hear the knock at the door and the next thing he remembered after “crashing” the night before at the Edwards’ residence following the consumption of marijuana with Ms. Tenass was “waking up to the cops banging on the door”, at which time he claims to have “slid down behind the bed”. In closing submissions, it was submitted that what was observed by the MPF when they entered the bedroom was perhaps commensurate or in keeping with with the fact that Mr. Hay and Ms. Tenass were inside the dwelling house of a “known drug dealer”. This does not, however, accord with Mr.

Hay’s own evidence that he was aware it was the MPF at the door, not a potentially more dubious caller. On the second count, the Court does not believe the evidence of the accused. More specifically, and under the first step of R. v. W.(D.) , the Court does not accept the position of Mr. Hay that he was labouring under an honest but mistaken belief that Ms. Tenass had a right to be there and extend a similar invitation to him. Accepting this would be entirely incongruous with what both Corporal Gill and Constable Gray observed upon entry to the Edwards’ residence, namely that they located Mr.

Hay only after flipping the bed over. The Court is also not in a position under the second step of R. W.(D.) that there is reasonable doubt notwithstanding the fact that it declines to accept as truthful or believable the testimony of Mr. Hay. This takes us to the third step under R. v. W.(D.) and the finding of this Court on the second count that all of the essential elements of that count have been met and that Mr. Hay is guilty beyond and reasonable doubt under count two. 68 . Mr. Hay was aware Ms.

Edwards was incarcerated at the time and, this Court concludes, he hid under the bed in the middle bedroom after he realized that it was the MPF at the door. The notion that he somehow “slid down behind the bed” at the very instant that the MPF announced an imminent breach of the door to Ms. Edwards’ dwelling house speaks volumes. This Court finds that Mr. Hay had no lawful reason for being in the Edwards’ residence, that he knew fully that he had no business being in the Edwards’ residence and he was in the Edwards’ residence with the intent to commit an indictable offence. CONCLUSION 69 .

In conclusion, the Court acquits Mr. Hay on the first count at the second step of R. v. W.(D.) but enters a finding of guilt on the second count under R. v. W.(D.) ’s third step given that the Crown has proven all of the essential elements of that offence beyond a reasonable doubt.