R. v. McQuarrie Date:, 2014 BCPC 32

Citation: R. v. McQuarrie Date: 20140314 2014 BCPC 0032 File No: 79364-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BARRY JAMES McQUARRIE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: W. W. Norris Counsel for the Defendant: G. K. Gill Place of Hearing: Abbotsford , B.C.

Date of Hearing: February 28, March 10, 2014 Date of Judgment: March 14, 2014 Introduction [ 1 ] The Accused Barry James McQuarrie is charged with breaking and entering a residence in Abbotsford, BC with intent to commit theft. The offence occurred between September 1 st and 7 th of 2011. The only evidence linking the Accused to the offence comes from a piece of electrician’s tape found on the scene.

The tape had a piece of a blue latex glove stuck to it, and that piece of glove was later analysed and found to contain the Accused’s DNA profile. [ 2 ] At issue is whether the Crown has proven that the Accused committed the offence beyond a reasonable doubt, whether the circumstantial evidence is strong enough to support a conviction on that basis, and whether the Accused’s denial of the commission of the offence should be accepted, or should form the basis of a reasonable doubt.

Summary of Evidence [ 3 ] This offence involves the break-in of a beautiful home located on a rural property on the west side of Abbotsford. The homeowners left for a vacation on September 1, 2011. The house had a security system, but unfortunately that was turned off at the time of the offence. The break-in wasn’t discovered until September 6 th when one of the vehicles from the property was located by the Langley RCMP.

They contacted the homeowner, who had his brother attend to the property, where the break-in was discovered. [ 4 ] The residence was entered by means of a broken window which was almost certainly smashed with a large rock that was found inside the house. Stolen in the break-in was a large amount of personal property and vehicles having a combined worth of over $118,000. Two newer model motor vehicles were stolen, as well as an all-terrain vehicle, and a significant amount of jewellery and electronics. Every room in the home had been ransacked.

From the amount of property taken, it is reasonable to infer that multiple offenders were involved. [ 5 ] On September 6, 2011 police officers from the forensic identification

section of the Abbotsford Police Department examined the home. One of the items that they located was a piece of black electrician’s tape, found on the floor of the living room, close to the fireplace. It is surmised that the tape was removed from some of the cables which were attached to a television that had been in the living room. The television was stolen in the break-in. The tape had a piece of blue rubber or latex attached to it. Constable MacKenzie of the forensic identification

section recognized the blue latex as being from a latex glove similar to the type that he has used for many years. The tape was seized and sent to the Forensic Science and Identification Services Laboratory in Vancouver for analysis. [ 6 ] According to a report submitted into evidence at trial by consent as Exhibit 1, an analysis of the tape was conducted and DNA evidence was obtained from it.

The report concluded that the DNA profile obtained from the item “is of mixed origin consistent with having originated from two individuals.” As between the two individuals, one person is described as the “major component.” That person’s DNA matches that of the Accused to a virtual certainty. (The report suggests that the likelihood of this DNA belonging to some unrelated individual is one in eleven trillion.) The DNA profile of the second individual contains insufficient genetic information from which to make any sort of meaningful comparison. [ 7 ] The DNA report was prepared by Christine Martin, a forensic specialist who was qualified at trial to give opinion evidence in the field of forensic DNA typing,

interpretation and comparison, the application of statistical significance technology and the application of population genetics to forensic DNA analysis. In her opinion, it is not possible to conclude when the Accused’s DNA profile was left on the piece of latex attached to the tape, or which of the two individuals may have used the glove for a longer period of time, or which one was the last to wear it. [ 8 ] There was also evidence presented at trial from a witness who works as a house cleaner for the homeowners. She testified that on September 2, 2011, she attended at the home at 9:00 a.m.

At the time the home had not been broken into yet. Shortly after she arrived, a newer model white truck pulled into the driveway of this residence, stopping beside an older house on the property about 100 metres from the main house. She went outside to see who was in the truck. A woman got out of the truck and asked the house cleaner if this was such-and-such house. (The witness couldn’t remember whose house the woman was asking for.) The woman in the truck had long blond hair and was in her late 30s or early 40s. There was also a male in the passenger seat of the truck, but he did not get out of the truck.

The witness did not believe that the male was the Accused. After being told that this was not the house she was looking for, the woman got back inside the truck, backed up and left. [ 9 ] The Accused gave evidence on his own behalf. He denied commission of the offence. He testified that at the time in question, he was active in his own drug addiction problem. He was living with his mother and was working for a criminal organization that sold hard drugs. He testified that every night he would work at a rented house in Aldergrove from which he sold drugs as part of a “dial-a- dope” operation.

He would package drugs as part of his duties, and in doing so, he would wear latex gloves so that he would not absorb methamphetamine on his hands and so that he would not contaminate each of the different drugs that he packaged. He testified that he would change gloves for each different drug that he packaged. The gloves were supplied for him. He testified that after he removed the gloves he would leave them on the table that he was working at.

He testified “I’d never think of throwing them in the garbage.” He later said “I possibly gave them to someone.” [ 10 ] The Accused was asked by his own counsel about his criminal record, which included convictions for a number of crimes of dishonesty, such as theft, possession of stolen property and breaking and entering. The record was reviewed in more detail by Crown Counsel in cross-examination. The Accused said that when he was charged for a criminal offence that he committed, he would plead

guilty, but that since he did not commit this offence, he has pled not guilty. [11] It is agreed as a fact, pursuant to

section 655 of the Criminal Code, that the home owners do not know the Accused and that henever had any permission to enter their home or take any of their property. Position of the Parties [12] Counsel for the Accused argues that the Crown has failed to prove this offence beyond a reasonable doubt. She argues that,while there is no doubt that a break enter and theft occurred, there is doubt that the Accused was involved. Firstly, the circumstantialevidence is capable of conclusions other than the guilt of the Accused.

The presence of a second DNA profile on the piece of glovesuggests that the glove was worn by different persons at different times. It is reasonably possible that the glove was worn by the otherperson at the time that the glove was used in the break-in and that the Accused was nowhere near the offence. So long as this is areasonable possibility, counsel argues that it cannot be said that the offence has been proven beyond a reasonable doubt. [13] The Accused’s counsel also points out that the Accused has denied the offence and that according to the test in R. v.

D.(W.) (SCC), [1991] 1 S.C.R. 742, the Accused is entitled to an acquittal unless the court is satisfied that his evidence shouldnot be believed, is incapable of raising a reasonable doubt and unless the Crown otherwise proves the offence beyond a reasonable doubt.Counsel argues that the Accused’s evidence should be treated as credible because it goes against his interest to admit to being a drugdealer, and that if he was going to invent a story, it would be one which cast him in a better light. [14] The Crown argues that the Accused’s evidence is not capable of belief because it is unsupported by any independent evidence,it is too convenient and it is speculative as to how his DNA ended up at the crime scene.

The Crown further argues that on aconsideration of the evidence as a whole, the offence is proven beyond a reasonable doubt. The defence theory that a second person worethe glove to commit the offence after the Accused had worn it is speculative and unfounded on the evidence. Analysis [15] The case against the Accused is based on circumstantial evidence. There is no direct evidence of who committed this offenceand when exactly it occurred.

We can reasonably conclude that the home was broken into sometime after the housecleaner was present on the morning of September 2nd and sometime before the stolen vehicles were discovered on September 6th of 2011. It is a reasonableconclusion that the home was entered by means of the breaking of the window with the large rock found inside.

Aside from theseconclusions that follow from proven facts, there are no eyewitnesses to the break-in, nor any video evidence of the crime. [16] From the circumstances in which the remnant of the latex glove was found on the tape, it is reasonable to conclude that theglove was worn by one of the persons who committed the break-in.

The appearance of this piece of evidence after the house wascleaned, the removal of electrical tape from the cables beside where the stolen television had been, and the presence of the discardedpiece of tape with the piece of glove make it a reasonable inference that the latex is from a piece of a glove worn by one of the personsinvolved in the break-in. The presence of the Accused’s DNA profile on the latex makes it a reasonable conclusion that the Accused hadworn the glove at some point in time.

What is at issue is whether or not it is reasonable to conclude that the Accused was wearing theglove at the time of the break-in. [17] The opinion of the Forensic Specialist is that the latex found on the tape contains the DNA profiles of at least two persons.Obviously both persons were not wearing the glove at the same time. If the Accused’s DNA profile had been found on somethingimmovable inside of the house, it would not matter how many DNA profiles were found on the object, it would be clear that he had beeninside the house, when he had no right to be.

But since a latex glove is a portable object, the same conclusion can’t be reached. [18] Circumstantial evidence is evidence which tends to prove a fact by proving other facts or circumstances from which theexistence of that fact can be reasonably inferred.

At one time, the acceptance of circumstantial evidence by a court was governed by whatwas known as “the rule in Hodge’s Case.” That rule provided that before an accused person could be convicted on circumstantialevidence, the trier of fact must be satisfied that the circumstances are not only consistent with the guilt of the accused, but alsoinconsistent with any other rational conclusion. [19] For a time, the Rule in Hodge’s Case was the law in Canada. But in 1977, in the decision of R. v.

Cooper (1977) (SCC), 34 C.C.C. (2d) 18 (S.C.C.), the Supreme Court of Canada replaced the test, and held (at page 32): “[B]efore basing a verdict of guilty on circumstantial evidence, [the trier of fact] must be satisfied beyond a reasonable doubt that theguilt of the accused is the only reasonable inference to be drawn from the proven facts.” [20] If there are other reasonable inferences which can be drawn from the proven facts and those reasonable inferences areinconsistent with the guilt of an accused, then that accused is entitled to an acquittal. [21] Counsel for the Crown submits that a distinction must be drawn between what is a reasonable inference and what is speculation.Justice David Watt states, in his textbook “Watt’s Manual of Criminal Evidence” at paragraph 12.01, wrote that “the boundary thatseparates permissible inferences from impermissible speculation in relation to circumstantial evidence is often a very difficult one tolocate.” For example, in R. v.

Wild (SCC), [1971] S.C.R. 101, the trial judge acquitted an accused charged withcriminal negligence causing death, where the accused was found trapped next to the steering wheel of a vehicle following a collision,because the steering wheel had been smashed but there were no injuries to the accused’s head, face or chest. On appeal, in a splitdecision, the majority of the Supreme Court of Canada held that the conclusion that the accused had not been driving was not a rationalconclusion, but rather a conjectural one.

[22] In this case, Counsel for the Accused argues that there is another reasonable conclusion to be drawn from the evidence, onewhich is consistent with the innocence of the Accused. It is one which is drawn not from speculation, but from facts proven in theCrown’s case. It is the possibility that the Accused was not last person to wear the glove, and that it was worn by him at a time when itwas not in the house. Counsel argues that as long as this is a reasonable possibility, the Crown has not proven, beyond a reasonabledoubt, that the Accused participated in the break-in.

The evidentiary support for this being a reasonable possibility comes from thetestimony of the Crown’s expert witness and from the forensic report. [23] The forensic report shows the presence of the DNA of two persons on the inside of the glove: the Accused and someone else.The expert witness, Mrs.

Martin, gave the following answers to questions from Crown Counsel: Q: Now having concluded that, as it says in this report that more than one individual deposited DNA on that piece of latex glove, andhaving concluded that a major component of the DNA found on that glove was a match with Barry McQuarrie, are you able to sayanything about the order in which the DNA was deposited on that piece of latex, in other words, are you able to say whether BarryMcQuarrie was the first or the second contributor, or even the tenth? A: No Your Honour, I’m not able to say that at all.

This probability is only the probability of an exact match. I can’t determine how andwhen the DNA profile got there. Q: But the major component, as you’ve already indicated, and the only one that was able to be compared, analysed and for which amatch was found, was the DNA that was matched to Barry McQuarrie? A: That is correct. Q: Now does the fact that the sample you found and you designated as a major contributor, does that have any significance at all when itcomes to the issue of the order in which it was deposited on the glove?

In other words, would a larger sample of DNA last longer than asmaller sample, does that tell you anything about the order? A: It doesn’t tell me anything about the order. But it does tell me that the majority of the DNA in this case, within the mixture, we have amajor profile here, and that major profile for DNA matches that to Barry McQuarrie. [24] Mrs. Martin testified that she was unable to reach any conclusion about the age of the DNA samples.

In cross-examination, shestated that the difference in the component size of the DNA profile samples did not permit her to reach any conclusion about the lengthof time the glove had been worn by either individual, or the order. She reiterated that as between the two persons who left their DNAprofile on the inside of the latex glove, she is unable to conclude who wore the glove first and who wore it second. She is unable to offeran opinion as to the age of either DNA profile. [25] The issue is whether or not this gives rise to a reasonable doubt of the guilt of the Accused. In R. v.

Lifchus (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada discussed the meaning of the phrase “reasonable doubt.” The court said that areasonable doubt is a doubt based upon reason and common sense. It is not based upon sympathy or prejudice. It must be logicallyconnected to the evidence. It does not require proof to an absolute certainty, nor is it an imaginary or frivolous doubt.

It requires morethan the belief that an accused is probably guilty. [26] The evidence in this case supports a reasonable inference that the last person who was wearing the blue latex glove in questionwas involved in the commission of this offence and that a portion of the glove tore off after it stuck to the electrician’s tape on the cablesattached to one of the televisions that was stolen. The evidence also supports the inference that the person wearing the glove at the timeof the break and enter was either the Accused or was another person whose identity is unknown.

According to the evidence of the expertwitness, either scenario is a distinct possibility. [27] The Accused testified and he denied being involved in the break-in. There is considerable reason to doubt his evidence. At thetime of the offence, he was active in his drug addiction and as is usually the case, honesty tends to be an early casualty for such persons.The Accused admits to working for a criminal organization involved in drug trafficking and to committing other offences that wouldattract a significant sentence if he was called to account for them.

His assertion that he would plead guilty if he had committed thisoffence is not credible because, unlike many of the offences that he did plead guilty to, a conviction for this offence would likely attract alengthy penitentiary sentence. This, along with the strength of the Crown’s case would provide incentive for a not guilty plea whether ornot the Accused actually committed this offence. [28] I am unable to rely on the Accused’s testimony as the basis for an acquittal.

However the evidence presented allows for thepossibility that it was the person who provided the unknown DNA profile who was wearing the blue latex glove when the offence tookplace. Aside from the DNA evidence, there is no other evidence which connects the Accused to this offence.

There is also someevidence suggesting the possible involvement of other persons, those being the individuals that the housekeeper saw, who may havebeen scouting the property for the break-in at the time that the housekeeper approached them. [29] The DNA evidence is capable of two conclusions, only one of which supports the guilt of the Accused.

There is an alternatereasonable inference which can be drawn from the evidence, one which supports a conclusion other than the guilt of the Accused andtherefore raises a reasonable doubt as to the guilt of the Accused, and the law prohibits his conviction so long as that possibility exists. [30] The evidence raises many suspicions about the involvement of the Accused in this offence. One might even go so far as tosuspect that the Accused is probably guilty of this offence. Proof of probable guilt falls short of proof beyond a reasonable doubt andmay not form the basis of conviction of a criminal offence.

In this case it is understandable to feel sympathy for the homeowners and tofeel contempt for a self-confessed drug dealer. A reasonable doubt must not be arrived at or ignored for reasons of sympathy or prejudice. [31] For these reasons, I find that the Crown has not proven the guilt of the Accused beyond a reasonable doubt. He is therefore

acquitted of the single count on information 79364-1. Dated at the City of Abbotsford, in the Province of British Columbia, this 14 th day of March, 2014. _______________________________________________ (The Honourable Judge K. D. Skilnick)