R. v. Romanowski, 2019 BCPC 320

Citation: R. v. Romanowski 2019 BCPC 320 Date: 20191105 File No: 81671-1 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CURTIS GEORGE ROMANOWSKI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for the Crown: C. Godlewska Counsel for the Accused: K. Neurauter Place of Hearing: New Westminster , B.C. Dates of Hearing: October 22, 2019 Date of Judgment: November 5, 2019 INTRODUCTION [ 1 ] Mr. Romanowski is charged with 3 offences:

(1) Break and Enter,

(2) Theft over $5,000,

(3) Mischief over $5,000, all between March 6 - 8, 2018 in New Westminster, B.C. [ 2 ] He pled not guilty to all three counts and the matter proceeded to trial on October 22, 2019. [ 3 ] The Crown presented their evidence, which for the most part, is not disputed. There was a theft at the Sapperton Skytrain substation, in which the otherwise secure roof area was accessed and coils containing copper were removed. Certain items were located on that roof which contained Mr. Romanowski’s DNA.

That is circumstantial evidence. [ 4 ] The issue is whether the presence of that DNA, having regard to the totality of the evidence, raises the only reasonable inference that he was involved in the break in and theft. FACTS [ 5 ] Admissions of fact were filed, which included pictures of the substation and the roof, as well as items located on the roof after the theft. In addition, the Crown called two witnesses, Allan Petrie, a Skytrain Maintenance person, and Sgt. Trevor Robinson, a forensic identification officer. There was also a letter put in from a Skytrain official.

From all of that evidence, the relevant facts are as follows: 1. There is a substation located beneath the Sapperton Rapid Transit “Skytrain” Station that contained, as part of a heating, ventilation and air conditioning system (“HVAC”), three large metal boxes on its roof. Within those metal boxes were condensers containing copper wire, with a salvage value (admissions); 2. The substation was secured and fortified, to the extent that there were locks with limited access to authorized persons only, as well as fencing and barbed wire located around the roof edge to try to deny access to the roof.

It would be difficult, but possible, for someone to access the roof by climbing the pole of the fencing and going over the barbed wire. The substation is located below the Skytrain station and only a small corner of the roof can be seen from a public overhead walkway (admissions and Petrie testimony); 3. The last inspection of the HVAC system had been on March 1, 2018, with no problems. That inspection may or may not have involved going onto the roof (admissions and Petrie testimony); 4.

The HVAC system connects to a fault alarm, which was triggered at 4:51 p.m. on March 6, 2018 when one of the power wires to the fan unit was removed. A Skytrain maintenance employee attended to that alarm at the Sapperton substation that night and noted that there was still air blowing, but did not go onto the roof (admissions and letter); 5.

Allan Petrie was dispatched to attend to that alarm on March 7, 2018, and when he went onto the roof through an inside hatch, he discovered that the side panels of the HVAC metal boxes had been opened and the evaporator coils and condenser coils were missing from each of the 3 boxes. The weight of each of the evaporator coils was 100 lbs and each of the condenser coils was 125 lbs (admissions); 6.

Allan Petrie also found the screws from the panels either on the ground or on the top of the boxes, as well as recalled seeing a number of other items, including pliers, a bag, a glove, a holder of bits for a screwdriver, and a hacksaw all spread around the rooftop area (admissions and Petrie testimony); 7. The police attended the next day, March 8, 2018. The police took pictures of the area around the substation, including the fencing and barbed wire, with a location of stretched and bent barbed wire near a pole and compression to a metal pipe cover (admissions); 8.

The police also attended the roof and HVAC area and took pictures of the various items located there, including a small bag which contained clothing items and a used needle inside, located immediately in front of a HVAC unit, as well as a work glove (admissions); 9.

The police also took pictures of the items they seized and returned to the police station, including the work glove, several drill bits and a drill bit holder, pliers, a tool used to loosen condensers, a rubber casing, a hacksaw, a boxed “Furnas” controller electrical device, fire starter, a screw driver, a transit receipt, razor blades, a sheathed knife, the panels from the HVAC, and a “Housing List” (admissions and Petrie testimony); 10.

There may have been other Skytrain employees or contractors who briefly accessed the roof immediately prior to or during the time that the police attended (Petrie testimony); 11. The police performed a DNA analysis and determined that Mr. Romanowski’s DNA was exclusively located inside the needle containing blood, as well as on the outside of the needle, along with an unidentifiable DNA. His DNA was also located on the inside of all five fingertips and the inside cuff of the glove (admissions); 12. No fingerprints were located on the HVAC panels (Sgt. Robinson testimony); 13.

The Housing List produced fingerprints belonging to someone other than Mr. Romanowski (admissions and Sgt. Robinson testimony); 14. The replacement cost of the coils was $48,700 (admissions).

LAW Circumstantial or indirect evidence [6] In R. v. Villaroman, 2016 SCC 33 , [2016] 1 S.C.R. 1000, the Supreme Court of Canada (“SCC”) addressed the issueof circumstantial evidence and reasonable doubt. Specifically, the SCC emphasized that an inference of guilt drawn from circumstantialevidence should be the only reasonable inference that can be drawn. If another reasonable inference inconsistent with guilt can also bedrawn, then that should raise a reasonable doubt. Moreover, the SCC confirmed that inferences of innocence do not need to be based onproven facts.

That inference of innocence need only arise from the circumstantial evidence. ANALYSIS Inference [7] The theft, including the likely method, is not at issue in this case. The evidence that the substation is secured and fortified,together with the bent portion of the barbed wire and dented metal on the pipe, supports the likely method of accessing the roof byclimbing the pole and stepping on and over the barbed wire.

Even if that specific location and method is uncertain, the roof remains ahighly difficult to access location and obviously secured. [8] The removal of the metal panels and the various items suitable for that removal certainly supports the method of the theft itself,even if some items located on the roof were not directly related to the theft, including personal items that could have been carried ontothe roof, such as the small bag, or items that may have been left by Skytrain maintenance, such as the controller electrical device or evensome tools. [9] The relevant circumstantial evidence is Mr.

Romanowski’s DNA on the items located on the roof. I turn to that:

(1) The Needle The exclusive presence of Mr. Romanowski’s DNA in the blood found inside the needle, together with the presence of his DNA outsidethat needle, is evidence that Mr. Romanowski’s was in possession of, and indeed used, that needle. The presence of that needle in thissecure and very difficult-to-access location, located in a bag of clothing near an HVAC, is circumstantial evidence of his presence on thatroof.

(2) The Glove The presence of the DNA on the glove goes somewhat further than Mr. Romanowski’s simple presence on that roof. The exclusivepresence of his DNA inside each finger and on the cuff of the glove, is circumstantial evidence that Mr. Romanowski wore that glove.The picture of that work glove with rubber gripping surface, also supports its utilitarian purpose for both accessing the roof over thebarbed wire and removing the metal panels and the coils without leaving fingerprints. Therefore the glove is also circumstantialevidence of Mr.

Romanowski’s involvement in the break in and theft. [10] That circumstantial evidence, taken together with all of the evidence, including the likely timing and method of break in andtheft in this very difficult-to-access roof location, raises the reasonable inference that Mr. Romanowski was on the roof and took

part inthe offences. Other inferences A place of shelter where items would be left [11] In addition to this being a secured and highly difficult to access rooftop location, it is no more suitable for shelter than any otherlocation under the Skytrain, or any other similar structure. That makes it extremely unlikely to be a place of shelter, where personal itemsmight otherwise be present for that purpose.

A place to discard items [12] It is also highly unlikely to having been a location where items are simply discarded, since the evidence was that it was verydifficult to access for that purpose, requiring a drop from a public overhanging walkway to a very small corner of the roof of thesubstation, which was not where the bag with the needle or the glove were located. Otherwise, it would require a significant toss up agreat height distance over the barbed wire fence. Someone else brought the items [13] The possibility that someone other than Mr.

Romanowski, perhaps a person committing the theft, brought these itemscontaining Mr. Romanowski’s DNA to that location would, in my view, be pure speculation. Even accepting that parties may at timesshare needles, that does not explain why someone would also be carrying a glove that must have been worn by Mr. Romanowski. [14] The presence of someone else’s fingerprints on a document, the Housing List, also located on that roof, does little to supportthat speculation, except to suggest, along with the weight of the items stolen, that this may have been at least a two person job.

It isevidence that there may have been someone other than Mr. Romanowski on that roof. It does nothing, in my view, to support thesupposition that Mr. Romanowski was not on that roof. DNA transference [15] It is also pure speculation to suggest that there could have been a transference of Mr. Romanowski’s DNA onto items carried bysome other person accessing this location, or that some DNA could have been innocently transferred from one location to another by

other workers or contractors who attended prior to the police. In my view, those suggestions are effectively nullified by the isolated andprotected location of that DNA—inside a needle and on the inside of each finger and on the cuff of the glove. It would be nearlyimpossible for that to be an innocent transfer to those locations. The items containing DNA may have been placed there at some other time, including by Mr.

Romanowski [16] The defence submits this argument, focussing on the fact that the last inspection was on March 1, 2018 and that the inspectionmay not have included going on the roof, thereby placing some uncertainty as to the date of the break in, as well as to when those itemscontaining DNA came to be on the roof. Aside from the high likelihood that the theft occurred on the date of the alarm, that being March6, 2018, the defence argument fails to address the same issues of how and why these items containing Mr.

Romanowski’s DNA wouldarrive on this very difficult to access roof, except in the possession of someone not with an innocent purpose. [17] As for the timing, the triggering of the alarm on March 6, 2018 suggests that the theft occurred on that day. The failure of theheating and cooling would have likely been discovered if the theft of the coils was much earlier than that, and certainly would have beendiscovered if it had occurred before the March 1, 2018 inspection, even without accessing the roof.

However, I also conclude that the timing of the theft between March 6th and 8th, 2018, is not an essential element of the offence, nor was Mr. Romanowski prejudiced bythe dates in the information (see R. v. B.G., (SCC), [1990] 2 S.C.R. 30) CONCLUSION [18] The only reasonable inference to be drawn from the whole of the evidence, including the circumstantial DNA evidence, is thatMr. Romanowski was a party to the offences of Break and Enter, Theft over $5,000, and Mischief. [19] However, I was unable to conclude that the value of the damage was over $5,000.

The admissions confirm a “replacement costof $48,700”, which supports that the value of the coils exceeding $5,000, since the damage to the HVAC appears to be relativelysuperficial. In the end, the Crown entered a stay of proceedings on the Mischief over $5,000 charge. [20] Therefore, I find him guilty of Break and Enter and Theft over $5,000 between March 1st and 7th, 2018. _____________________________ The Honourable Judge D. Sudeyko Provincial Court of British Columbia