R. v. Tottenham and Hester Date:, 2011 BCPC 450

Citation: R. v. Tottenham and Hester Date: 20110107 2011 BCPC 0450 File No: 83257-3C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAWN ANTHONY TOTTENHAM and BRIAN ADAM HESTER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE de COUTO Counsel for the Crown: J.A.M. Dickie Counsel for the Accused, Mr. Tottenham : R.J. Browning Counsel for the Accused, Mr. Hester : A. Glouberman

Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: June 14 to 17; July 6 to 7; August 9 to 11; August 13; September 7 and 9; October 12 to 13; October 22; November 18, 2010 Date of Judgment: January 7, 2011 [ 1 ] The two accuseds, Shawn Anthony Tottenham and Brian Adam Hester, are jointly charged with the robbery of Terry Desroche on October 18, 2009 and with using an imitation firearm while committing or attempting to commit robbery. These offences are alleged to have taken place when the victim accepted an offer of a ride home from the two accuseds after they met at a Money Mart in Maple Ridge. Mr.

Hester’s girlfriend at the time, Ms. Shannon Tower, was in the back seat of the vehicle. Once in the vehicle the accused, Tottenham, who was in the driver’s seat, is alleged to have produced what was described as a gun, pointed it at the victim’s face and demanded Mr. Desroche turn over his money, iPod Touch, and cell phone. The co-accused, Hester, who was in the front passenger seat, told him, “You better do what he says, he’s not kidding around” or words to that effect. Tottenham then struck Mr. Desroche in the mouth with the butt of the gun, causing it to bleed. Mr.

Desroche surrendered his money and iPod but was unable to find his cell phone. As he bled he was told to get out of the car, which he did, and they drove away. [ 2 ] The accused, Shawn Tottenham, testified in his own defence. Ms. Tower also testified on his behalf. Their testimony was to the effect that Mr. Tottenham did not assault Mr. Desroche at any time, did not produce any gun, and that the injury to the victim’s mouth occurred when he grabbed Ms. Tower’s leg and she reacted by striking him in the face with her elbow. The co-accused, Mr.

Hester, elected not to call any evidence. [ 3 ] The issue accordingly is whether there was a robbery, and if so, whether both accuseds were involved as the Crown contends. [ 4 ] The Crown’s theory is based on the evidence of the complainant, Terry Desroche, a 40 years old carpenter-contractor, who lived in a basement suite in Maple Ridge. He was eventually laid off in August 2009 due to a bad back resulting from two herniated discs, and found walking difficult at times.

He did not drive and was on social assistance in October of that year. [ 5 ] He testified that on October 18 he went to cash a social assistance cheque in the amount of $792.00 and walked to the Money Mart near his residence on Lougheed Highway where he normally cashed his cheques. As it was a Sunday he knew that Money Mart did not open until 11:00 and accordingly left his residence around 10:15 a.m. although it was only a short distance away. [ 6 ] He arrived shortly before the business opened, and when he went to stand in line there were two people ahead of him.

As he waited listening to his iPod Touch he was bumped accidentally by the person in front of him, subsequently identified at trial as the accused, Tottenham, who apologized and commented on his iPod. They engaged in a brief conversation. While they stood in line a friend came in and joined Mr. Tottenham. Mr. Desroche noted that they greeted each other as if they had just met, and the friend, who turned out to be Mr. Hester, remained with Mr. Tottenham until he cashed his cheque and they left. [ 7 ] Mr. Desroche then proceeded to cash his cheque and left.

As he walked out the door a car with three occupants pulled up and the driver asked if he had any cigarettes. He told them he did not have any but was planning to buy some on his way home. He recognized the driver as the same individual who was standing in line in front of him at Money Mart, and the passenger as the friend who joined him inside. He said the third occupant was a female sitting in the back seat behind the driver whom he had not seen before. [ 8 ] He crossed Lougheed Highway and as he passed the Safeway complex he was approached by the three in the vehicle and asked if he needed a ride.

He accepted, and after purchasing gas and cigarettes at the Safeway gas bar he got in the back seat on the driver’s side followed by the female, later identified as Shannon Tower. [ 9 ] As they drove out of the strip mall and onto Dewdney Trunk Road, he told the driver which direction to go. Instead of following it Mr. Tottenham drove in the opposite direction. When told he was going the wrong way he said he would turn the car around, and did so. They ended up on a side street and stopped by a mail box in front of a residence in a residential neighbourhood. Mr. Tottenham said he was going to check the mail. Mr.

Desroche turned to look at the mail box and when he started to turn his head back he said he was hit in the mouth area by what he thought was an elbow. He testified that it was the driver who hit him as, when he turned his head back, he saw Mr. Tottenham pulling his arm back. When he checked his mouth he realized he was bleeding. [ 10 ] According to Mr. Desroche, Mr. Tottenham told him to give him his money, then pulled out a gun and pointed it at his face. At that point Mr.

Hester said in a calm voice, “You better do what he says, he’s not kidding around” or words to that effect as he looked straight ahead and otherwise remained uninvolved. The victim turned over his iPod Touch and his money and was also told to surrender his cell phone. He looked for it but was unable to find it. He was struck in the mouth with the butt of the gun and started to bleed quite profusely. He was told not to bleed onto the carpet so he cupped his hands under his chin. He asked to be let out of the car and was allowed to do so. As the car drove away he noted the licence plate number. [ 11 ] Mr.

Desroche found his cell phone inside the lining of his jacket and dialled 911. He reported the robbery and provided the licence plate number of the vehicle. He described himself as being in shock at the time, scared and shaking. Constable Priest and an ambulance arrived and attended to him. He was taken to the hospital where he received a number of stitches to his mouth. He was still traumatized over the incident a few days later to such an extent that he was hospitalized for it. [ 12 ] He testified that the driver and the two occupants never introduced themselves to him and he did not know their names.

[ 13 ] In cross-examination he testified that he had a fair recollection of the events, and disagreed that he had put his hand on Ms. Towers’ leg, causing her to react by elbowing him in the mouth and thereby causing the injury described.

He also reiterated that the passenger did not engage him in any way except for the one comment referred to above. [ 14 ] He also told the court that in October 2009 he smoked marijuana approximately twice a week, but did not smoke any that day or the previous day and was not on any other drugs or medication at the time. [ 15 ] Constable Amanda Priest responded to the 911 call and was the first officer on the scene. She located the complainant and testified that he was very dishevelled looking, looked very frightened, and was bleeding from his mouth.

She described him as being very agitated and fearful for his safety. [ 16 ] Mr. Ryan Kinzel, the owner of the vehicle driven by Mr. Tottenham at the time of the alleged robbery, was also called by the Crown as a witness. [ 17 ] His evidence was that he woke up Saturday morning, October 17, at the house of a friend, Geoff, where he had spent the night, and was upset to find his car gone. He was concerned because he had all his work clothes and work tools in it at the time and was scheduled to begin working in Southern BC for approximately two months starting the following week.

After making some inquiries he obtained a cell phone number for Mr. Hester whom he understood to be a friend of Geoff’s and who he believed had taken his vehicle. He called the number and inquired as to the whereabouts of the car but was brushed off. [ 18 ] I note that when he was shown a photograph of the trunk of the car containing some clothes following it’s seizure by the police he identified them as his work clothes. He also identified a drywall saw that was seized from his vehicle as one of the tools he used. [ 19 ] He was subsequently introduced to Mr.

Tottenham, whom he had not known previously, and spent some days socializing with him in Peachland. He told the court that Mr. Tottenham started to get nervous when they heard that Mr. Hester had been arrested and seemed to be genuinely concerned about returning to jail, from where he had just been released. He said that Mr.

Tottenham approached him and asked him to provide an alibi by telling the authorities, should he be asked, that he had the vehicle throughout the material time and that nothing like what was alleged to have taken place occurred. [ 20 ] He testified he was upset that his vehicle had been taken but did not report it to the police because he was scared and “enjoyed life” as he described it. He never got his vehicle back but considered the matter to be “water under the bridge” and was no longer angry with either Mr. Tottenham or Mr. Hester.

He told the court the only reason he attended to testify was because he had been served with a subpoena, and there was “not a chance” he would have attended if he had not been served. [ 21 ] Mr. Tottenham testified in his own defence, denying the allegation. [ 22 ] He testified that on October 18, 2009 he was released from the Fraser Regional Correctional Centre at around 10:00 in the morning.

A few days prior to his release he had contacted his long-time and very good friend, Brian Hester, the co-accused, by telephone and arranged to be picked up at the Greyhound station in Maple Ridge. [ 23 ] When he was released from the institution he had approximately $12 in cash, a cheque from Social Services for approximately $100, and a couple of bus tickets he had been provided with to get to the Greyhound station. In cross-examination he said he was also given a Greyhound ticket to Kelowna.

He took a taxi to the local bus station, and from there took the city bus to the Greyhound station in Maple Ridge which he said he found to be closed and boarded up. Mr. Hester was not there when he arrived so he proceeded to walk some ten blocks to a location where he found a pay phone. He purchased a $5 phone card and phoned a friend in Kelowna who told him that Hester was on his way to Maple Ridge. He then walked back to the Greyhound station and waited for a few minutes. When Mr. Hester did not arrive he walked back to the pay phone and made some further calls.

He ran out of minutes on the phone card so he purchased another one for $5. He made a few more calls and then decided to get on the city bus to get to a Greyhound station. [ 24 ] As he went to board the bus he heard his name yelled out, and on looking saw his friend, Brian Hester, with his girlfriend, Shannon Tower – who was in the back seat – driving up the road, exiting a strip mall. He went over and got into the front passenger seat. [ 25 ] They drove down a road and noted that they were very low on gas. As Mr.

Hester did not have any money but had a cheque for $90, they went “looking for a Money Mart” to cash the cheque. They found one and he went inside; he waited in line behind a customer while Mr. Hester and his girlfriend remained with the car. A short while later Mr. Hester entered the Money Mart premises with a lit marijuana cigarette, colloquially referred to as a “joint”, in his hand and started chatting with him. Waiting in line behind Mr. Tottenham were two other customers, the one immediately behind him later identified as the complainant, Terry Desroche, who was listening to his iPod. Mr.

Hester started up a conversation with him. Mr. Tottenham proceeded to cash his cheque and the two of them subsequently left and returned to the vehicle, where Mr. Tottenham went and sat in the driver’s seat while Mr. Hester sat in the front passenger seat. Just as they were about to drive away, Mr. Hester said, “Hold on. We’re going to sell this guy some pot” referring to Mr. Desroche. While they waited for Mr. Desroche to exit Money Mart, Mr. Hester rolled another joint. When the complainant exited the business premises they had a brief conversation with him and Mr.

Desroche joined them and sat in the back passenger seat next to Ms. Tower. [ 26 ] According to Mr. Tottenham, when Mr. Desroche got into the vehicle Mr. Hester was on the floor of the passenger seat, weighing up a bag. Money was exchanged for the bag of marijuana and Mr. Desroche exited the vehicle and walked away. As he crossed Lougheed Highway they decided they wanted to buy back some of the marijuana as they had sold him all they had. [ 27 ] They caught up to Mr. Desroche and asked him to sell them back a gram. By this time he was in front of Safeway, on the other side of Lougheed Highway.

He agreed to sell them what Mr. Tottenham referred to as a “ten-bag”, which I understand to be a gram, in exchange for a ride. They agreed but as they were low on gas decided to buy some at the Safeway gas bar.

[ 28 ] After purchasing some gas and cigarettes, Mr. Desroche joined them and sat in the back seat. He started to give directions to Mr. Tottenham indicating which road to take. Mr. Tottenham told the court, “We’re going to go smoke a joint before we take him where he needs to go, I guess. So I take a right on Lougheed, I believe it is, and I take the first left.

There seemed to be a little space in between the yards at this mailbox that was there so I turned around and pulled up at the mailbox, thought we could be inconspicuous there perhaps.” There was never an explanation provided as to why he would drive in the opposite direction to the one indicated by Mr. Desroche, or why he did not follow his directions and in the process look for an “inconspicuous” place if that was the true intent. In any event, Mr. Hester then lit a joint, took a few puffs and passed it to Mr. Tottenham, who also took a couple of puffs. According to Mr.

Tottenham, at this time there was a commotion in the back seat, with Shannon yelling that Mr. Desroche had grabbed her leg, and when he looked the complainant was bleeding from his mouth. [ 29 ] The accused described the complainant as bleeding into his lap, and told him, “Don’t bleed” and said, “Get this guy out of here”. Shannon then opened the door, jumped out, Mr. Desroche exited the vehicle, and they drove away, visiting a friend before driving to Kelowna. [ 30 ] The accused admitted to possessing an iPod.

He said that after they returned to Kelowna they had the car washed as it was dirty, and when they cleaned the car, he found it under the driver’s seat. He realized it belonged to Mr. Desroche but decided to keep it anyway. [ 31 ] He denied assaulting Mr. Desroche in any way or demanding any money from him. [ 32 ] Ms. Shannon Tower also testified on behalf of Mr. Tottenham. [ 33 ] She testified she was involved in a relationship with Mr. Hester which started in the summer of 2009 and lasted for about a year.

She said she was a user of crystal meth at the time, and that on October 18 she injected some before she left Kelowna with her boyfriend, was on a “high” during that day, was high on the drug at the time the complainant was injured, and again used some on the return trip later that day. It is with that perspective that I consider her testimony. [ 34 ] Her evidence was that on October 18 she accompanied her boyfriend from Kelowna to the Lower Mainland to meet Mr. Tottenham, but did not know where he was or the city they were driving to.

They eventually saw him running after a bus “or something”, caught up with him, he jumped into the car and they exchanged hugs. They then proceeded to a Money Mart, but she did not know why. Once there, she testified that Mr. Tottenham went inside while she exited the car and played hacky sack. She believed that Mr. Hester remained in the car. [ 35 ] Once everyone had returned to the car they drove to a gas station to get some gas. At the gas bar she stepped out of the car to clean the windows. When she got back in she found another male person sitting in the back seat.

As they were driving away they decided to smoke a marijuana cigarette and parked. [ 36 ] Ms. Tower testified that the male person put his hand on her leg and she reacted by striking him in the face with her elbow; he started bleeding and she got out of the car and told him to get out because he was bleeding all over.

They then drove away, returning to Kelowna later that day. [ 37 ] She testified that there never was any demand for money from the victim, that neither of the two accuseds engaged in any physical altercation with the victim, and a firearm was not produced. [ 38 ] That was her evidence. [ 39 ] In assessing Mr. Tottenham’s evidence I bear in mind the principles set out in R. v.

W.D., [1991] S.C.R. 742 (S.C.C.) in which Cory, J. writing for the majority set out the following instructions in Para. 28 of his reasons where credibility is an issue: 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 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 which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 40 ] In applying those principles I note that in the course of Mr. Tottenham’s cross-examination he testified he had taken a taxi to a bus stop, and then a bus to the Greyhound station.

When asked in cross-examination how he knew which bus to take, he replied that he had asked the bus driver, who, on his evidence gave him directions to a Greyhound bus station that was shut down. I find it difficult to accept that a bus driver familiar with the local bus routes in Maple Ridge, when asked which bus to take to the Greyhound bus station, would have given directions leading to one that was not only closed but also boarded up. It does not sound believable. [ 41 ] Mr.

Tottenham further testified that after he was picked up by Brian Hester and Shannon Tower they decided to buy some gas, and went looking for a Money Mart so that he could cash his cheque. He had agreed in cross-examination that the Greyhound bus station he had gone to was very close to the Money Mart and across the road from the Safeway complex. He said he had been to the Greyhound station twice that morning as he waited for Mr. Hester and walked around looking for a pay phone.

In those circumstances, how he would not have noticed that the Money Mart was in such close proximity to where he was and had to go “looking for one” is also difficult to believe. I further note that he was short on details in describing where he was at the time they went looking for a Money Mart, and where they looked before they came across the one located very close to the Greyhound station he had attended on two separate occasions earlier that morning. [ 42 ] In any event, he testified that on locating one and going inside he stood in line behind one person who was ahead of him. Mr.

Desroche joined the line behind him, and he in turn was followed by another customer who stood behind him. He stated that Mr. Hester came in with a lit joint in his hand and brought it up to Mr. Tottenham’s nose without making any attempt at hiding it. It would thus have been in plain view of the other people waiting in line. In fact, according to him, Mr. Desroche noticed and commented, “Hey, smells good.” [ 43 ] Why would Mr. Hester enter the enclosed premises of Money Mart while openly displaying a lit marijuana cigarette so that strangers, such as Mr. Desroche, would notice it?

It seems foolhardy in the extreme and does not sound plausible. It becomes even more so when one considers that smoking is no longer allowed in all public buildings nor tolerated in many other buildings, and there are now bylaws in place prohibiting smoking outside within a certain distance from an entrance. Mr. Tottenham’s testimony would suggest that Mr. Hester walked into the Money Mart premises in total disregard to these issues and the risks associated with it.

I find it difficult to believe his evidence given that context, and in my view it does not have the ring of truth to it. [ 44 ] As to the drug transaction that was said to have taken place between Mr. Hester and the complainant in the Money Mart parking lot, it is also difficult to believe that minutes after an arrangement was supposed to have been made between the two for the sale of all the remaining marijuana in Mr. Hester’s possession for $600, he would not have mentioned this fact to Mr. Tottenham before he started up the car to get ready to leave the parking lot.

To suggest that just as they were about to leave Mr. Hester would suddenly turn to him and say “Hold on. We’re going to sell this guy some pot” as if it were an afterthought also does not have the ring of truth to it, especially when the apparent arrangement involved a relatively large amount as indicated. It is also difficult to believe that almost immediately after rolling a joint as they waited for Mr. Desroche to exit Money Mart and selling him the remaining bag of marijuana for $600, they would ask to buy back some of it.

In my view that too does not sound credible. [ 45 ] When pressed as to when the discussion could have taken place between Mr. Hester and Mr. Desroche with respect to the sale and purchase of the marijuana, Mr. Tottenham replied that it could have happened outside, or in the line-up, then added, “I got the impression that they were talking outside”. What was that impression based on? An analysis of his own testimony indicates they did not have any opportunity to talk outside. According to him he was in the line-up ahead of Mr. Desroche waiting to cash his cheque. When Mr.

Hester joined him it was the first time he met Mr. Desroche. When Mr. Tottenham cashed his cheque he left with Mr. Hester while Mr. Desroche remained inside. The two of them then waited outside for Mr. Desroche to exit the business. By that time the agreement had already been apparently discussed and made, and it was for that reason they were waiting for him to come out. Thus the only time such a discussion could have taken place would have been while they were inside the Money Mart premises. There was no other opportunity and it could not have happened outside as he testified.

Given that conclusion, why would he even suggest it? It is not believable and leaves the impression Mr. Tottenham was making up the evidence as he went along. [ 46 ] If the arrangement was made while Mr. Desroche was still in the line-up, it could only have been discussed in the presence of other strangers waiting in line. In my view it is inconceivable that a transaction involving trafficking in a drug of a relatively substantial amount would be discussed so openly, without any attempt at exercising care, caution or any discretion. That too does not make sense. [ 47 ] According to Mr. Tottenham Mr.

Hester rolled another cigarette as they waited outside, and weighed what was left in the bag. It registered exactly 3 ounces and was sold to Mr. Desroche for $600. To believe that after taking a random amount of marijuana to roll two cigarettes or joints in the manner described by the accused, the amount left in the bag would turn out to be exactly three ounces when weighed borders on the implausible in my view. [ 48 ] He also stated that as they were leaving the Safeway gas bar they decided to smoke a “joint”, and looked for an “inconspicuous” location. When the contradiction between the openness with which Mr.

Hester approached him in the line-up at the Money Mart with a joint in his hand and the apparent caution expressed as they drove around looking for an inconspicuous spot to park and share a joint, was put to him Mr. Tottenham replied, “There’s a difference of showing me a bud to my nose in his hand and parking on a busy street, noticeably smoking a joint, you know.

I guess – I guess some things you try to hide more than others, I suppose.” In my view this is a puzzling response as he shrugs off an openly lit marijuana cigarette brought up to his nose in open view of the public while expressing concern over smoking a joint in the discrete privacy of a private motor vehicle. In my opinion it makes little sense. It seems that much more incongruous when considering Mr. Tottenham’s evidence suggesting Mr. Hester would openly discuss what would constitute a trafficking offence with Mr. Desroche in the presence of strangers in a line-up.

Why would he so openly discuss a criminal transaction, and in the next breath be so discreet about smoking a joint? It does not make any sense. [ 49 ] Further, when asked in cross-examination about the open display of the lit marijuana cigarette, Mr. Tottenham’s response suggested it was not of any significance, replying, “It’s just a joint, right?” If that was his attitude over a lit joint brought into the premises of Money Mart with strangers present, why would he be suddenly so concerned over smoking “just a joint” in the privacy of their vehicle such that they had to look for an inconspicuous location?

In my view the rationale of that explanation defies logic. [ 50 ] As to the vehicle in which they drove back to Kelowna, he said he had just met the owner, Ryan Kinzel, that day, and although they kept the vehicle for some time, he said Mr. Kinzel was not concerned about it. He further stated that Mr. Kinzel was going to be away on a job for three months and as a result it did not really matter to him whether they kept the car. He disagreed with the suggestion that Mr. Kinzel was quite concerned about his vehicle and wanted it back. [ 51 ] This evidence is in direct contradiction with Mr.

Kinzel’s evidence, who testified he was upset and concerned over his missing vehicle. Why would Mr. Kinzel express such concern if he was not? Especially as he did not know the victim, had no vested interest in these proceedings, and in fact knew Mr. Tottenham as someone with whom he had spent some days socializing with? What motive would he have in testifying against Mr. Tottenham in those circumstances? Especially when his inquiries directed him to conclude that it was not him but Mr. Hester who had taken the vehicle. What did he have to gain? In my view, nothing.

In fact, he was a very reluctant witness and would have much preferred to be elsewhere but were it not for the fact that he had been served with a subpoena requiring his attendance in court. [ 52 ] It seems to me that his concern over the loss of his vehicle and the use of his work clothes and tools for the reason he specified in his testimony as outlined above is also supported by his identification of some of those clothes and the drywall saw found by the police in the trunk of his vehicle following its seizure.

[ 53 ] In addition he knew Tottenham and did not know the victim. There would be no reason for him to concoct a story; there was no advantage for him in doing so. It seems to me for that same reason he would not have any motive to make up evidence that Mr. Tottenham started to get nervous when they heard that Mr. Hester had been arrested and seemed to be genuinely concerned about returning to jail, or that Mr.

Tottenham approached him and asked him to provide an alibi by telling the authorities, should he be asked, that he had the vehicle throughout the material time and that nothing like what was alleged to have taken place occurred. Upon a careful consideration of his evidence I am satisfied that Mr. Kinzel was telling the truth when he testified to these occurrences. [ 54 ] As for the evidence of Ms. Shannon Tower, in my opinion it must be considered with great caution.

Given her self-admitted state of mind for most, if not all, of that day, the significant paucity of details in her evidence, the vagueness of her recollection of the events of that day, and outright lapses in her memory, the reliability and accuracy of her testimony cannot but be severely affected. In those circumstances it seems to me that her testimony as to her reaction of elbowing the victim in the face because he grabbed her leg must be assessed with great care.

She not only failed to provide any details of what happened but she also failed to provide any credible explanation as to why she reacted in the manner that she did in circumstances which cried out for an explanation. Where was her leg grabbed? How was it grabbed? What were the circumstances that led to it, considering that it took place very shortly after the victim joined her in the back seat, someone he did not know, was never introduced to, whose name he did not know, and whom he had just met? What was it that she found so objectionable that she reacted in such a violent way?

There were no details given; just a blanket statement to the effect that “he grabbed my leg and I reacted by striking him with my elbow”. It lacks depth and rings hollow. It seems to me it was a statement lacking in any detail and conveniently made to explain away the injuries sustained by Mr. Desroche. [ 55 ] Is it possible that her testimony as to what occurred in the vehicle was made up and rehearsed? Was it possible that Mr. Tottenham got together with her and made up this version of events? Given that I found that Mr. Kinzel was telling the truth and that thus it was not beyond Mr.

Tottenham to approach him and ask that he provide him with an alibi for the reasons mentioned, it seems to me not unreasonable in the circumstances that he would come up with an explanation with Ms. Tower’s assistance that would deflect blame away from him. Considered together with the other observations I have made about her testimony as indicated above I have concluded that little confidence can be placed in her testimony and as a result I do not find it reliable. [ 56 ] In rejecting her evidence I also do not accept Mr. Tottenham’s explanation that the injury to Mr. Desroche’s lips was caused by Ms. Tower.

His evidence to that effect is entirely self-serving, among other things. I further do not accept his evidence as being credible for the many reasons I have outlined above in the course of analyzing his evidence. It did not stand up to careful scrutiny. It was short on details where it mattered, made little or no sense in many areas, was convenient when it suited his purposes, was internally inconsistent in parts, and was contradictory in other areas to the testimony of other witnesses where he had no reason to contradict them. In view of his expressed concern to Mr.

Kinzel of returning to jail, he clearly had the strongest of motives to testify in the way that he did. [ 57 ] On the other hand I found that Mr. Desroche gave his evidence in a forthright, sincere manner and was not evasive, given the traumatic impact the incident had on him. [ 58 ] He testified that almost immediately after he was let out of the vehicle, and on finding his cell phone, he called 911. He reported what had just happened to him. He had little time, in the circumstances, to think up a story involving people he had just met and did not know. If he had been elbowed by Ms.

Tower as a direct result of his own actions, why would he have dialled 911? He also described himself at the time as being scared and shaking. Constable Priest, who was the first officer on the scene, came upon him in an emotionally distraught condition. She described him as being very agitated, very frightened, and fearful for his safety. It seems to me that such emotional distress and calling 911, an emergency line, is inconsistent with being accidentally or unintentionally being struck in the mouth in a reaction by grabbing a woman’s leg.

On the other hand, it is consistent with someone who had just gone through the trauma of being robbed and being struck in the mouth with a weapon and causing injury which required stitches. [ 59 ] If Mr. Desroche had concocted his evidence, why would he not have exaggerated Mr. Hester’s involvement and participation in the robbery when he had the opportunity and could have easily done so? That he did not is, in my view, very telling as to the veracity of his testimony. He maintained both in his direct and cross-examination that Mr.

Hester’s only involvement was to utter the words attributed to him in a calm voice as he stared straight ahead. Why? In my view it was because that was the way it happened. He did not exaggerate Mr. Hester’s involvement because he was telling the truth. [ 60 ] For these reasons I accept the veracity of Mr. Desroche’s evidence, and accept his evidence over that of Mr. Tottenham and Ms. Tower where it conflicts with their evidence. In arriving at that conclusion I am satisfied that the Crown has proved the case against him on both counts and find him guilty. [ 61 ] Having concluded that Mr.

Tottenham committed the robbery, is Mr. Hester also guilty on the basis that he was an aider and abettor by virtue of his utterances which the Crown has argued were intended to intimidate the victim into complying with Mr. Tottenham’s demands? Or do those comments fall short of establishing the offence as Ms. Glouberman, on behalf of the accused, Brian Hester, has argued? [ 62 ]

Section 21 of the Criminal Code is the relevant

section which defines who is a party to an offence. That

section provides: 21.

(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. [ 63 ] Was Mr. Hester, in the circumstances described, a “party to an offence” under s. 21(1)? Is his mere utterance of the words,

“You better do what he says, he’s not kidding around”, said in a calm voice as he stared straight ahead and without any otherinvolvement sufficient to find him guilty as a party to an offence? [64] The issue as to when is a person considered a party to an offence was discussed in R. v. Dunlop and Sylvester, (SCC), [1979] S.C.J. No. 75, [1979] 2 S.C.R. 881, a case in which the two accused were charged with participating in a gang rape of thefemale victim. The issue for the jury was whether the two accused had intercourse with the complainant. She said that they had, andthey denied it.

Among other things the trial judge instructed the jury on parties to an offence under s. 21 of the Code, and it was in thisrespect that the convictions were challenged. The two accused appealed their convictions to the Supreme Court of Canada. Inoverturning the convictions Dickson J. writing for the majority stated at p. 891: Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principaloffender;

an act which facilitates the commission of the offence, such as keeping watch on enticing the victim away, or

an act whichtends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping orbeing ready to assist the prime culprit. [65] He further wrote at p. 896: Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as priorknowledge of the principal offender's intention to commit the offence or attendance for the purpose of encouragement.

There was no evi​-dence that while the crime was being committed either of the accused rendered aid, assistance, or encouragement to the rape of BrendaRoss. There was no evidence of any positive act or omission to facilitate the unlawful purpose. One can infer that the two accused knewthat a party was to be held, and that their presence at the dump was not accidental or in the nature of casual passers-by, but that is notsufficient. A person cannot properly be convicted of aiding or abetting in the commis​sion of acts which he does not know may be or areintended: per Viscount Dilhorne in D. P. P. v.

Maxwell[14], at p. 1144. One must be able to infer that the accused had prior knowledgethat an offence of the type committed was planned, i.e. that their presence was with knowledge of the intended rape. On this issue, theCrown elicited no evidence. [66] In R. v. Dooley, [2009] ONCA 910 at paras. 117-118, Doherty J. of the Ontario Court of Appeal provided a useful descriptionof the manner in which culpability is determined for aiding and abetting in the commission of an offence. He stated, [117] Liability as an aider or abettor has both a conduct component and a culpable mental state component.

Both components tie theaccessory’s liability for the substantive crime to the actual commission of that crime by another… [118] The Crown must prove that the alleged aider or abettor acted “for the purpose” of aiding or abetting – meaning that they actedwith the intention of aiding or abetting the perpetrator in the commission of the crime. This requirement can only be met if the aider orabettor has knowledge of the crime that the perpetrator intends to commit.

Without that knowledge, the alleged aider or abettor cannotact “for the purpose” of aiding or abetting the perpetrator in the commission of the crime: Criminal Code, ss. 21(1)(b), (c); Dunlop andSylvester v. The Queen, (SCC), [1979] 2 S.C.R. 881, at p. 896; R. v. Hibbert, (SCC), [1995] 2 S.C.R.973, at paras. 36-37; R. v. Maciel, at paras. 86-87. [67] Silverman, J. of our Supreme Court in R. v. Hernandez, [2008] B.C.J. No. 19, 2008 BCSC 1376 summarized the applicableprinciples when considering s. 21 (1) of the Criminal Code.

He set out the following in para. 12 of his decision: [12] The following principles are applicable when considering s. 21(1), and the question of whether any of the accused havecommitted a crime as a party: 1. The standard of proof remains “beyond a reasonable doubt”. 2. It is a matter of “legal indifference” whether someone was the principal or a party: R. v. Thatcher, (S.C.C.),[1987] 1 S.C.R. 652 at 694 and 697, 39 D.L.R. (4th) 275. 3. If it is proven beyond a reasonable doubt that the offence has been committed, there is no need to specify the role of eachaccused.

It is sufficient if the evidence establishes that the offence was committed in concert: R. v. D. (J.F.), 2005 BCCA 202 ,2005 BCCA 202, 196 C.C.C. (3d) 316 at para. 14. 4. Aiding “means to assist or help the actor” while abetting “includes encouraging, instigating, promoting or procuring the crime tobe committed”: R. v. Greyeyes, (S.C.C.), [1997] 2 S.C.R. 825 at para. 26, 148 D.L.R. (4th) 634. 5. Mere presence at the scene of a crime is not sufficient to establish guilt.

However, mere presence may be evidence of aiding andabetting if accompanied by other factors, such as prior knowledge of the principle offender’s intentions, attendance for the purpose ofencouragement, providing encouragement by words, or in some circumstances by watching, laughing, and yelling. In all cases, morethan, “mere presence” is required to sustain a conviction: R. v. Dunlop, (S.C.C.), [1979] 2 S.C.R. 881 at 891-897, 99D.L.R. (3d) 301; R. v. Black, (BC CA), [1970] 4 C.C.C. 261 at 258, 10 C.R.N.S. 17 (B.C.C.A.); R. v. Jackson, 2007SCC 52 , 2007 SCC 52, [2007] 3 S.C.R. 514. 6.

To be convicted as an aider, a defendant must assist the principal in committing the offence, must intend to do so, and must beaware of the type of crime to be committed and of the circumstances necessary to constitute the crime. It is not necessary that the aiderknow all of the details of the crime committed, however, recklessness as to the effect of his actions is not sufficient to sustain a

conviction: R. v. Roach (ON C.A.), (2004), 192 C.C.C. (3d) 557 at para. 44 (Ont. C.A.). [68] It is apparent from the above, but an important principle to keep in mind, that there is no burden on a person accused of beinga party to an offence to explain the circumstances surrounding the alleged offence. The Crown has the burden of proving beyond areasonable doubt that the accused was a party to an offence. [69] Based on the application of the above principles, in order for the Court to find Mr.

Hester guilty of the charges as a party tothem, the Crown would need to establish beyond a reasonable doubt that he made the statement referred to above with the intention ofaiding or abetting Mr. Tottenham in committing the offence. In other words, to be convicted as an aider, Mr. Hester must be found tohave assisted Mr. Tottenham in committing the offence, must have intended to do so, and must have been aware of the type of crime tobe committed and of the circumstances necessary to constitute the crime.

It is not necessary that the aider know all of the details of thecrime committed, however, recklessness as to the effect of his actions is not sufficient to sustain a conviction: R. v. Hernandez, supra. Thus, in order for the Crown to establish that Mr. Hester had this intention it must be demonstrated that he knew that Mr. Tottenhamintended to commit the offence. The Crown did not elicit any evidence to show that Mr. Hester had any prior knowledge of that, albeitat the time the impugned statement was made Mr. Tottenham was in the process of committing the offence.

In this respect the utteredstatement could not be said to have been made “with the intention of aiding or abetting the perpetrator in the commission of the crime”:R. v. Dooley, supra. [70] It was put another way by Shabbits, J. of our Supreme Court in R. v. Abu-Sharife, [2006] B.C.J. No 3184, 2006 BCSC 1367,in which the accused was charged in aiding and abetting another to commit murder. He stated in para. 121 as follows: “In order toestablish that the accused is guilty of murder under s.21(1)(

c) of the Criminal Code, the Crown must show that the accused encouragedMr. B. to commit the murder with acts or words, and that he intended to encourage him to commit the murder. The Crown must showthat the acts or words were done for the purpose of abetting. See R. v. Curran, (1977) 1977 ALTASCAD 284 , 38 C.C.C. (2d)151 (Alta. C.A.).” [71] In arriving at his decision of finding the accused not guilty, he referred to the facts in R. v.

Curran in the following way atpara. 133: In Curran a person charged with abetting a murder denied that what he had said at the scene of a murder should be taken literally andfound to be encouragement of the principal offender to kill. The principal offender had gouged the eyes out of a victim. The allegedabetter said that the victim could still talk. The principal offender then killed the victim. The accused said that he had said that thevictim could still talk out of disgust, and not by way of encouragement to kill.

The Alberta Court of Appeal held that in order to be guiltyof abetting, the accused must be found to have intended his words to be words of encouragement. [72] As previously noted above, in making the impugned statement it is clear that Mr. Hester was quite aware of what washappening at the time. However, in my view, it is not necessarily indicative of his intention to aid or abet Mr. Tottenham in committingthe offence. That intent has to be proven beyond a reasonable doubt.

That is, the Crown must prove beyond a reasonable doubt that theaccused must have intended his words to be words of encouragement. [73] The remarks were made in a calm voice and I conclude from that, that it was made in a non-threatening, non-intimidatingmanner while Mr. Hester stared straight ahead. It seems to me that in those circumstances it is also reasonably open to interpret thoseremarks as a statement made merely to warn the victim of Mr.

Tottenham’s ability to back up his words with action, and in so doing, towarn him not to take unnecessary risks, and were not necessarily intended to be words of encouragement to Mr. Tottenham. As a result Iam unable to conclude beyond a reasonable doubt that Mr. Hester made the comments with the necessary intention of encouraging Mr.Tottenham to commit the offence, or otherwise aiding or abetting him in any way. Given that conclusion I must resolve that doubt infavour of the accused, and accordingly find Mr.

Hester not guilty of both counts. ________________________________ The Honourable Judge P. de Couto Provincial Court of British Columbia