R. v. Anderson Date:, 2014 BCPC 71

Citation: R. v. Anderson Date: 20140424 2014 BCPC 0071 File No: 79780-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID SEAN ANDERSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: R. Macgowan Counsel for the Defendant: J.V. Myers Place of Hearing: Abbotsford , B.C.

Date of Hearing: April 8, 9, 2014 Date of Judgment: April 24, 2014 Introduction [ 1 ] The Accused David Sean Anderson is charged with theft of a motor vehicle (under

section 333.1 of the Criminal Code ), theft of the contents of that motor vehicle (under

section 334 of the Criminal Code ), and driving while prohibited (contrary to

section 259 of the Criminal Code ). These offences are alleged to have occurred on August 27, 2013 in Mission, B.C. [ 2 ] It is not in issue that on August 27, 2013, a 2007 white GMC Yukon Denali SUV was stolen from the parking lot of the PetroCanada gas station at the corner of 7 th Avenue and Cedar Street in Mission, BC. The owner had carelessly left the keys inside the vehicle when he went into the gas station to buy cigarettes. A video camera shows a male individual enter the vehicle when the owner was inside and drive off with it, it with the owner chasing after the vehicle.

The vehicle was later found abandoned on a residential street in Mission, and property was witnessed being taken from the vehicle. [ 3 ] The issue is whether or not the Accused was the person who stole the vehicle. The Crown alleges that the Accused was the thief, and in support of its assertion, it relies on video evidence that it says shows the Accused in the store just before the theft, and on the evidence of two eyewitnesses who say that it was the Accused who stole the vehicle.

If the Accused was the thief, then he is also guilty of driving while prohibited because at the time he is alleged to have been driving off with the stolen vehicle, he was a prohibited driver. [ 4 ] Counsel for the Accused argues that the Crown has failed to prove the identity of the Accused as the driver of the vehicle beyond a reasonable doubt.

Summary of Evidence [ 5 ] On August 27, 2013, at around 4:00 p.m. Cory Frank drove his 2007 white GMC Yukon Denali SUV to the PetroCanada gas station, located at the corner of 7 th Avenue and Cedar Street in Mission, BC. The gas station is located at the northeast corner of the intersection. Cedar Street runs north and south and 7 th Avenue runs east and west. Mr. Frank pulled his vehicle part way into a parking stall for persons with disabilities on the side of the building facing Cedar Street.

He testified that he left the keys to his vehicle in the center console, in a position where they would be visible to anyone looking in the window of the vehicle. The doors of the vehicle were left unlocked. He testified that he went inside to buy some cigarettes and use the washroom. [ 6 ] Close to the same time that Mr Frank arrived at the PetroCanada, another vehicle pulled up to the #3 gas pump at this PetroCanada, near the front of the building, on the 7 th Avenue side. There were two occupants of that vehicle, a man and a woman.

The man went inside and placed some money on the counter in order to prepay for some gas. This man entered the gas station before Mr. Frank. After he paid for his gas, he left to pump his gas, passing directly past Mr. Frank. [ 7 ] Felicia Straumfjord is an employee of the PetroCanada. At the time the two men entered the gas station, she was standing in front of the building between the main doors and pump #3, on the 7 th Avenue side of the building. She was talking to some friends of hers about a baby shower that was being planned. She saw both men enter the gas station and saw both leave. [ 8 ] Mr.

Frank testified that he noticed the man who passed him and noted a number of distinguishing characteristics that the man had, including tattoos on his neck, and “sleeve tattoos” on both of his arms. He testified that after he bought his cigarettes and was heading to the washroom, he could hear his vehicle starting up. He ran outside and saw his vehicle was backing up and driving off. He chased the vehicle, getting very close to it at one point, approximately two feet from the vehicle.

He testified that he was able to clearly see that the person who had passed him inside the store was the same person who was now stealing his vehicle. The vehicle left the PetroCanada and turned north onto Cedar Street. Mr. Frank chased the vehicle on foot for a short distance, but was unable to catch up to it. [ 9 ] Mr. Frank also testified that he does not know the Accused and he did not give the Accused or anyone permission to take his vehicle from the PetroCanada gas station on that day. He testified that inside the vehicle he had some personal property that was no longer there when the vehicle was recovered.

This included the remote opener for the underground parking at his residence, some cell phones, an iPad that was mounted to the dashboard of his vehicle, a radar detector, a voice recorder, a black container that had some of his work items, and a diamond ring that he was taking to get resized. He testified that none of these items were present when the vehicle was recovered. [ 10 ] Felicia Straumfjord testified that she was alerted that something was amiss when she heard Mr. Frank yelling “hey wait”. She testified that she was able to see Mr.

Frank’s vehicle being driven off and she was also able to see the person driving it. She identified that person as being the same person she had seen enter the store after exiting the passenger side of the vehicle that had pulled up to pump #3. She said that she could see this person clearly. As he drove off, he was laughing and extended his middle finger at Mr. Frank. [ 11 ] Cory Frank was not able to identify the Accused as the driver of the vehicle, but Felicia Straumfjord was. She testified that she had a prior acquaintance with the Accused.

She said that he had come into the gas station on at least five or six previous occasions. She also had seen him at a party that a friend of hers had held. He had been brought to her attention at that party because he was part of a group that was suspected in the theft of some alcohol. The party had taken place five months earlier, in March of 2013. She testified that she recalled that he had tattoos on both of his arms, and also recalled that he had very blue eyes. She also described him as having blond spikey hair, though she conceded that when she saw him in court, his hair was not blond, it was brown.

[12] A DVD containing videos of this incident was entered into evidence as Exhibit 3. There are actually two video clips on the exhibit. The first shows a red four door sedan pull into the gas station from 7th Avenue. The front seat passenger’s window is down and aman resembling the Accused can be seen in the front seat on the passenger side (at 4:21 on the video). He has the same style of hair asthe Accused and is roughly the same age. He is wearing sunglasses. At 4:35 of the video, this person enters the gas station and removeshis sunglasses. He is wearing a light blue t-shirt, blue jeans and running shoes.

On his t-shirt there appears to be the pattern of a largebird with its wings spread, with the wingspan running from his left shoulder, diagonally, ending in the middle of his chest. As he entersthe store, tattoos can be seen running down the full length of each of the parts of his arms that are visible in the t-shirt he is wearing, butthe video quality is not good enough to make out a pattern. Tattoos are also visible on the sides and back of the person’s neck, thoughwith varying degrees of clarity at different points in the video. The person can be seen walking in front of, and past Mr.

Frank, and alsopast where Ms. Straumfjord is standing. She is visible during parts of the video through a window adjacent to the main doors. [13] There are a number of similarities to the Accused and the person in the video that exist. Both persons appear to be in the sameage range, both have similar hairstyles and similar facial hair. The Accused, who has short hair, has a slight

part in his hair on the rightside of his face directly above the inside of his right eye. Coincidentally, the person in the video also can be seen to have a slight

part inhis hair in the identical location. [14] The Accused appeared at trial in a sweatshirt with full sleeves. At trial, on the authority of R. v. Cyr (BCSC), [1997] B.C.J. No. 177 (B.C.S.C.), the Crown applied for an order requiring the accused to reveal his arms. The Accused compliedwith this request and it was noted that he had tattoos down the length of both arms up to his hands. He also has tattoos visible on bothsides of his neck as well as on the back of his neck. [15] From the video of the outside camera, one can see Mr. Frank park his vehicle.

The red sedan pulls out of the parking lot andturns right, or north, onto Cedar Street. Shortly thereafter, a person appears from that direction, running towards where Mr. Frank’svehicle is parked. This person looks into Mr. Frank’s vehicle, and then enters it, starts the vehicle, backs it up into the northbound laneof Cedar Street closest to the sidewalk, and then drives north on Cedar Street. Mr. Frank can be seen running after the vehicle. The frontof the vehicle is visible to Mr, Frank until it backs onto Cedar Street. At one point, Mr. Frank gets very close to the vehicle.

The vehicleis on Cedar Street and Mr. Frank is right beside the vehicle, on the sidewalk. The video confirms that Mr. Frank was able to get as closea look at the person who stole his vehicle, as he said he had in his evidence. [16] The outside camera portion of the video does not allow for easy identification of the person who takes the vehicle. However theclothing, hair length and facial hair appear consistent with the person seen inside of the store. Both persons have hair of a similar length.Both are wearing a light blue t-shirt, with some sort of a pattern located in the same place (right shoulder area).

Both persons appear tobe wearing blue jeans. The video does not allow for sufficient clarity to determine whether or not the person outside has tattoos in thesame locations as the person inside. However it would be a remarkable coincidence if both Mr. Frank and Ms. Straumfjord were wrongin their evidence that this was the same person that each had seen inside the store, and if the vehicle just happened to be stolen by aperson of almost identical build, age, hair length and colour and style of clothing. [17] Police were called and arrived shortly after the vehicle was stolen. Mr.

Frank told Constable Sidhu of the Mission RCMP thatthere was an iPhone inside the vehicle, and the police were able to use a type of “find my iPhone” application to obtain a possiblelocation for the vehicle. This process suggested that the vehicle was on Cox Drive in Mission. This is in fact where the vehicle waslocated. A witness who lived on the street, Patty Bowerman, observed a red four door automobile with a female driver and a malepassenger. She watched the two of them open the hatch of Mr. Frank’s vehicle and remove a blue Rubbermaid container and place it intheir car.

This looked suspicious to her and so she recorded the license plate number of the red vehicle. [18] In the course of its evidence, the Crown attempted to call another police officer to identify the male seen in the video inside thestore. It became apparent however that this officer’s evidence was likely tainted by something that he had been told by another officerand therefore the Crown abandoned its application to have this officer’s evidence admitted into evidence at the trial. [19] Both Crown and the Accused admit as a fact, pursuant to

section 655 of the Criminal Code, that on the alleged offence date, theAccused was a prohibited driver by virtue of an order made under section 259(1) of the Criminal Code. A known photograph of theAccused was entered into evidence by consent, showing how he appeared on September 3, 2013. [20] The Accused did not testify at trial, and no evidence was called on his behalf. His counsel takes the position that the identity ofthe Accused as being person who stole the vehicle has not been proven beyond a reasonable doubt.

Position of the Parties [21] Both counsel agree that the issue before this court is whether or not the Crown has proven, beyond a reasonable doubt, that theAccused was the person who stole Mr. Frank’s vehicle. Counsel for the Accused argues that it is also in issue whether or not the personseen on the video inside the store was the same person who stole the vehicle. [22] On behalf of the Crown, Mr.

Macgowan argues that the evidence of the two eyewitnesses, coupled with the videos, makes itclear that the person who exited the red vehicle and is seen on the video inside the store is the same person who stole the vehicle. Hesubmits that this is clear from the eyewitnesses Mr. Frank and Ms. Straumfjord, both of whom had more than a brief opportunity to makeobservations of the male in the store and of the male inside the stolen vehicle. He notes that their evidence is largely corroborated by thevideo evidence, even though neither witness had seen the video previously.

He also notes that there are a number of distinctive featureswhich make the evidence of these witnesses reliable. These include the fact that the clothing worn by the person inside the store and bythe thief of the vehicle are consistent, and that the person was of the same build, hair colour and style and had tattoos in the same places. [23] Crown counsel also argues that Ms. Straumfjord is able to identify the Accused as the person on the video. She was in closeproximity to observe the events as they transpired, and he was a person with whom she had a previous acquaintance.

Her evidence wasalso consistent with and corroborated by the video, which she also had not seen prior to the trial.

[24] Crown counsel notes the numerous similarities between the Accused and the person in the video. These include: (

a) the same age group (

b) the same shape of nose (

c) the same style of facial hair (

d) the same style of hair including length, colour and hairline; (

e) the same build (

f) the same height (

g) the presence of tattoos on both arms (

h) the presence of tattoos on the neck [25] The Crown argues that the likelihood of Ms. Straumfjord being mistaken about the identity of the Accused and the vehiclebeing stolen by a person with exactly all of these same characteristics is so remote that it tortures the definition of reasonable doubt tosuggest that she is mistaken and the person she observed steal the vehicle was not the Accused. [26] On behalf of the Accused, Mr. Myers argues that the video itself is not of sufficient clarity as to be able to identify the Accusedas the person who stole the vehicle.

He further argues that the descriptions given by the witnesses are too general upon which to rest afinding of guilt. He also notes that there are significant details on which the witnesses were clearly mistaken, which in turn casts doubt onthe rest of their evidence. For example, Mr. Frank testified that the thief was wearing a white hat, when the video shows that he is clearlymistaken about this. Ms. Straumfjord described the Accused as having blond spikey hair, when this is not so. [27] Mr. Myers also argues that the evidence of Mr.

Frank is suspect because he has a criminal record for a crime of dishonesty,because he was not cooperative with police in making his vehicle available for forensic testing, and because his description of the itemsthat were stolen from the vehicle is very suspicious. He also argues that Ms. Straumfjord’s evidence is suspect. Since she believes thatthe Accused was involved in the theft of liquor, he argues that she is also prone to cast suspicion on the Accused for this theft as well. [28] Mr Myers notes the lack of any other independent evidence such as fingerprints, DNA, or a photo line-up.

He argues thattattoos are common fare for young people nowadays, and says that this is especially so in Mission B.C. He argues that it would bedangerous to convict the Accused on this evidence. Applicable Law [29] Counsel for of the Accused challenges the credibility and accuracy of the evidence of the Crown witnesses. He relies on theapplication of the presumption of innocence to support his position that the Crown has failed to prove these offences beyond a reasonabledoubt. The presumption of innocence is enshrined in s. 11(

d) of the Canadian Charter of Rights and Freedoms. It requires that anaccused cannot be convicted of a criminal offence unless each essential element of the offence that he has been charged with has beenproven beyond a reasonable doubt. It also requires that where a defence is raised and where there is an evidential foundation for thatdefence, the defence must also be disproved beyond a reasonable doubt in order to sustain a conviction. [49] The test in a criminal trial is not which side is believed, but whether the Crown has proven the offence beyond a reasonabledoubt.

I keep in mind that I must not examine the facts separately and in isolation with reference to the criminal standard. Rather, I mustconsider whether, on the total body of evidence, viewed as a whole, the Crown has proven each essential element of the offence beyond areasonable doubt.

(1) Identification [30] In this case the Accused has been identified as the person who stole Mr. Frank’s vehicle and drove it away by the directevidence of the witness Felicia Straumfjord. She has identified him in court, and has also testified that she recognized him at the time ofthe offence and was able to identify him from prior contact with him. [31] In assessing the strength and reliability of eyewitness identification evidence, the trier of fact must consider the totality of thecircumstances surrounding that identification. The Supreme Court of Canada, in R. v.

Hibbert 2002 SCC 39 , [2002] 2 S.C.R.445, cautioned against “the danger of wrongful conviction arising from faulty but apparently persuasive eyewitness identification.” In theInquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001) (knownas the “Sophonow Inquiry”) ,the commission made recommendations regarding the conduct of live and photo line-ups, and called forstronger warnings to the jury on the dangers of eyewitness identification. [32] In McWilliams Canadian Criminal Evidence, 5th edition, at paragraph 32:40:10, the authors have compiled a list of factors forconsideration by the trier of fact in considering the reliability of eyewitness identification: “Accordingly, assessment by the trier of fact must primarily focus on reliability having regard to a number of non-exhaustive factors: • Time lapse between the event and identification; • Prior knowledge;

• Opportunity, capacity to observe and conditions surrounding the observation; • The presence of distinctive features; • Duration of observation; • Emotional state, including stress or the presence of violence; • Collusion, intentional or not; • Contamination by improper identification procedures such as a show-up or suggestive photo arrays; • Cross-racial identification; • The amount of detail, including physical descriptors which may increase reliability as opposed to generic descriptions; • Cross-witness comparison of identification and descriptors; • The absence or existence of corroborative evidence.” [33] Counsel have provided a number of authorities on the subject of “recognition evidence.” This is an issue that I will addressseparately.

In those authorities, including R. v. P.T.C. 2000 BCSC 342, and R. v. Muncey 2013 BCSC 689, the court noted thateyewitnesses are not held to a standard of perfection, and need not be correct in every single detail of their evidence. However theelement of identification, like every other element of the offence, must be proven beyond a reasonable doubt. 2. Video Evidence [34] In this case the offence was captured on video. There is also a video recording of the person believed to have committed theoffences inside the store.

Video evidence is admissible if authenticated as to the time and circumstances of the recording, much like aphotograph or audio recording. No objection was taken to the admissibility of the video recordings in this case. [35] In R. v. Nikolovski (SCC), [1996] 3 S.C.R. 1197, the Supreme Court of Canada held that a video that has notbeen altered or changed, and that it depicts the scene of a crime, is admissible and relevant evidence which may be used by a trier of factin determining whether an offence has been committed and whether the accused before the court committed that offence.

The degree ofclarity and quality of the video, and the length of time during which the accused appears on the videotape, will all contribute toestablishing the weight which a trier of fact may properly place upon the evidence. Even if there are only a few frames which clearlyshow the offender, this may be sufficient to identify the accused. But although the trier of fact is entitled to reach a conclusion as toidentification based solely on videotape evidence, care must be exercised in doing so.

In order to convict on the basis of the video alone,the trier of fact must be satisfied beyond a reasonable doubt that it identifies the accused. [36] In this case, the portion of the video showing the commission of the offence is not quite of sufficient clarity to identify theAccused as the person who stole Mr. Frank’s vehicle.

The person shown on the portion recorded inside the store bears a very strongresemblance to the Accused, but I am of the view that if this was the only evidence linking the Accused to the commission of thisoffence, it would not be a sufficient basis by itself on which to rest a conviction. The videos have significant probative value however inthat they assist in the assessment of the evidence of the eyewitnesses, and in the assessment of whether or not the case against theAccused is proven beyond a reasonable doubt. 3. Recognition Evidence [37] The evidence of Ms. Straumfjord was heard within a voir dire.

Specifically, in issue was whether she should be allowed to giverecognition evidence in which she testified that the person seen on the video is the Accused.

A person who has a prior acquaintance orfamiliarity with an accused will often be in a better position to identify that accused from a video or still photograph than the trier of fact.Before the witness is permitted to give that opinion, a voir dire is held to ensure that the witness has sufficient prior familiarity with theaccused, is able to view the video or photo in a manner that is helpful to the trier of fact, and is not prejudiced against the accused byvirtue of their prior association. [38] In a number of cases, including R. v. Leaney (1989) (SCC), 50 C.C.C. (3d) 289 (S.C.C.); R. v.

Brown (2006) (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.); R. v. Anderson 2005 BCSC 1346, it has been held that the threshold foradmissibility of such evidence is, as was stated by D. M. Smith J. in Anderson at paragraph 20, “that of a helpful witness, who is in abetter position than that of the trier of fact to identify the accused.” Justice Smith went on to conclude, at paragraph 25, that the thresholdfor admissibility of the recognition evidence depends on three factors: 1. The length of the prior relationship between the witness and the accused; 2.

The circumstances of the prior relationship between the witness and the accused; and 3. The recency of the contact between the witness and the accused prior to the event where the witness recognized the accused. [39] Justice Smith went on to conclude at paragraph 39 that in most cases recognition evidence will meet the threshold foradmissibility, with any concerns regarding the reliability of the evidence going to the weight it is given.

[40] In the case at bar, I concluded that the nature of the prior relationship between Ms. Straumfjord and the Accused met the testfor admissibility of her recognition evidence, with any concerns for its reliability becoming a matter of the weight to be afforded to it. 4. Reasonable Doubt [41] In R. v. Lifchus (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada discussed the meaning of thephrase “reasonable doubt.” The court said that a reasonable doubt is a doubt based upon reason and common sense. It is not based uponsympathy or prejudice. It must be logically connected to the evidence.

It does not require proof to an absolute certainty, nor is it animaginary or frivolous doubt. It requires more than the belief that an accused is probably guilty. Analysis [42] The first issue to confront in the evidence before the court is whether or not the individual who was a passenger in the red sedanthat pulled up to pump #3 at the PetroCanada station and who entered the gas station and is captured on the inside video, is the sameperson as the person shown stealing Mr. Frank’s vehicle. I find that there is ample evidence on which to conclude, beyond a reasonabledoubt, that this is the same person.

In coming to this conclusion, I rely on the direct evidence of the witnesses Cory Frank and FeliciaStraumfjord that this was the same person. Both of these persons had plenty of time and opportunity to observe this in daylightconditions from close proximity. I also note the video evidence which shows that the person who stole the truck was wearing the samecolour of light blue shirt, with a very similar pattern, and was also wearing blue jeans. Both persons were similar in build, age, and facialhair. I also note that the person who stole Mr.

Frank’s truck came from an area outside of the video where the red sedan has just travelledto. The outside video also shows that Mr. Frank was very close to his truck after it was stolen, and would have had a very goodopportunity to get a look at the person who stole the truck. [43] It would be a most remarkable coincidence indeed if the person who stole Mr. Frank’s truck was not the same person showninside the store, the person who had been a passenger in the red car. Not only would Mr. Frank and Ms.

Straumfjord have to be mistakenin their evidence, but it would also mean that at the same time, a person of similar build and age, wearing similar clothing, somehowbecame aware that Mr. Frank’s vehicle was vulnerable for theft and decided to steal it. It would also mean that this person was alsoconnected to a woman in a red car, because the evidence of Ms. Bowerman proves that it was a man and woman in a red car who tookitems from Mr. Frank’s vehicle after it was left on Cox Drive.

I agree with Crown Counsel that such a string of coincidences defiescommon sense and is so speculative and so unlikely as to be incapable of forming the basis of a reasonable doubt. [44] Having concluded that the person who emerged from the red car and who is seen on the video inside the gas station is the sameperson who stole Mr. Frank’s vehicle, the next question is whether or not the Crown has proven, beyond a reasonable doubt, that thisperson is the Accused.

The person shown on the video bears a very strong likeness to the Accused in age, build, hairstyle, facial hair, andin the presence of tattoos on the neck and arms. I have concluded however that the video is not quite of sufficient clarity as to enable meto be satisfied beyond a reasonable doubt that the person in the video is the Accused.

It is probably the Accused, but the video is not ofsufficient quality to match the patterns on the tattoos on the Accused with the person on the video, nor to eliminate the Accused as amatch. [45] The best evidence of the identification of the person in the video comes from the evidence of Ms. Straumfjord, who had a prioracquaintance with the Accused. She testified that she had observed him as a customer at her workplace on five to six previous occasionsin the past, and had also attended the same party as him earlier in the year, when he had been drawn to her attention.

Her description ofthe Accused’s hair as “blond and spikey” does not correctly describe the Accused. However there are a number of factors which supporther identification of the Accused.

These include her prior acquaintance with him, the fact that on those prior occasions she had reason tofocus on him, the opportunity she had to observe the person who committed the offence (the video shows that the person walked past herwhen entering and leaving the gas station, in daylight conditions), and the fact that the person shown on the video is very similar to theAccused, which tends to corroborate her evidence. [46] The Accused and the person in the video have a great number of physical similarities.

They appear to be of the same age, theyhave similar facial features in the nose, they have similar facial hair, the hair on both men’s heads are of similar length both on top and onthe sides with a small

part in the same location, they are of the same build, they both have tattoos down the full length of their arms andon the sides and back of the neck. [47] Taken alone, Ms. Straumfjord’s identification of the Accused may be sufficient on which to rest a conviction, especially withher prior acquaintance with the Accused. The video evidence also may not quite be of sufficient quality to conclude, beyond a reasonabledoubt, that the man in the video is the Accused. It is the combined effect of these two pieces of evidence which lead me to conclude thatthe person in the video is the Accused.

I agree with the Crown that the probability of Ms. Straumfjord being mistaken in heridentification, while another individual with the same build, of the same age, the same type of facial hair, the same hair style includingthe same unique part, with elaborate tattoos down the length of both arms, and on the back and sides of the neck, happened along andcommitted these offences, takes the concept of reasonable doubt to ridiculous lengths. The video provides a reason to trust theidentification evidence of Ms. Straumfjord.

The combination of this evidence operates to prove identity beyond a reasonable doubt. [48] For the foregoing reasons I am satisfied beyond a reasonable doubt that the Crown has proven that the same person shown onthe video taken inside of the PetroCanada station is the same person who stole Ms. Frank’s truck, and I am satisfied beyond a reasonabledoubt that this person is the Accused. I am satisfied beyond a reasonable doubt that the Accused is guilty of the offence of theft of amotor vehicle, as set out in count one on the information, contrary to

section 333.1(1)(

a) of the Criminal Code. I am also satisfied thatthe Accused is the person who drove off with Mr. Frank’s vehicle from the PetroCanada station on August 27, 2013, as seen in theoutside video. It is admitted that, at the time, the Accused was a prohibited driver and I find him guilty of the offence of driving whileprohibited, as alleged in count three of the information, contrary to section 259(4) of the Criminal Code. [49] Count two of the information alleges the offence of theft of contents from a motor vehicle contrary to

section 334 of theCriminal Code. The absence of supporting documents as to the existence of the diamond ring and the reasonableness of someone leavingsuch a valuable ring in an unlocked vehicle raises serious questions about precisely what property was stolen from the vehicle. The

evidence of Ms. Bowerman does establish that some contents were stolen from the vehicle by the Accused and I find that count two has been proven beyond a reasonable doubt, in that the evidence establishes that some of the contents of the vehicle were stolen, though not necessarily everything alleged. Accordingly I also find the Accused guilty of the offence set out in count two. Dated at the City of Abbotsford, in the Province of British Columbia, this 24 th day of April, 2014. _________________________________________________ The Honourable Judge K. D. Skilnick