R. v. Barker, 2023 NSPC 18

PROVINCIAL COURT Nova Scotia Citation: R. v. Barker, 2023 NSPC 18 Date: 20230302 Docket: 8353063, 8353066, 8353067, 8353068, 8353069, 8353070, 8353071, 8353072, 8353075, 8353078, 8353081, 8353083, 8353084, 8353086, 8353088, 8353090, 8353092, 8353096, 8353097, 8353099,8353102, 8353104, 8353106, 8353108, 8353110, 8353112, 8353114 Registry: Halifax Between: His Majesty the King v.

Nicholas Barker Decision oN trial Judge: The Honourable Judge Elizabeth BuckleHeard: October 4, 5, 6, 7, 8, 12, 13, 14, 15, 18, 19, 21, 22, November 1, 3, 29, December 17, 2021, April 12, 13, 14, 20, 21, 22, May 6, June 1, July 26, September 20, November 2, 3, 2022Decision:March 2, 2023Charges:Sections 333.1(1) x 9; 355(

a) x 7, 355(

b) x 6, and 353.1x 4 of the Criminal CodeCounsel:Shauna MacDonald, Mark Heerema for the Crown Don Murray for the Defence By the Court: Introduction [1] Nicholas Barker had a trial on 28 charges relating to thefts of motor vehicles, removal of vehicle identification numbers (VINs), and possession of stolen property. [2] Between January and May of 2019, Mr. Barker and others were under surveillance relating to suspected thefts of motor vehicles. In early May, police observed a vehicle beingstolen, arrested two people and took statements. A few days later, they searched properties associated with Mr. Barker.

They seized property believed to be stolen, documents andparaphernalia believed to be used to steal and re-VIN vehicles. As a result, Mr. Barker and others were jointly charged with related offences. The others have all resolved their matterswithout trial and some were called as witnesses in this trial. [3] The Crown submitted that the direct and circumstantial evidence proves each offence beyond a reasonable doubt. That Mr. Barker was essentially in the business of stealingand re-vinning vehicles for his own use or for re-sale and the individual counts are related and part of that larger enterprise.

That submission has to be treated with caution given theevidentiary rules concerning discreditable conduct across counts which I will address later. [4] The Crown theory is that Mr. Barker, often with the assistance of two of the Crown witnesses, Seth Johnson and Catlin Fredericks, stole vehicles. He also acquired legitimateVINs by purchasing damaged vehicles. These were often purchased at auction using dealership information from Back to New Auto, a business owned by Scott Fraser, another Crownwitness. The theory is that Mr.

Barker re-vinned the stolen vehicles using the legitimate VINs and/or disguised the stolen vehicles using parts from legitimate vehicles. The stolen vehicleswere kept at various properties owned or accessed by Mr. Barker, including a large property owned by Kevin Green, another Crown witness. [5] The Defence argued that the Crown had not met its burden to prove each element of each offence beyond a reasonable doubt. More specifically, that the evidence did not proveMr.

Barker was involved in any thefts, illegally modified any VINs, was in possession of stolen property and/or knew that any property in his possession was stolen. [6] The Defence submitted that the alleged accomplices are untrustworthy and, to the extent that their testimony inculpates Mr. Barker, cannot amount to proof beyond a reasonabledoubt. Further, the circumstantial evidence does not rule out rational inferences other than guilt.

The evidence, including evidence relating to possible conflicting VINs or VINs attributedto vehicle computers, is not inconsistent with rebuilding vehicles from lawfully obtained parts. Finally, in many instances, the evidence does not prove that what was in Mr. Barker’spossession was stolen and, where it does, does not prove that he knew it was stolen. [7] The specific issues vary depending on the elements and circumstances for each offence.

They require me to consider the reliability and credibility of alleged accomplices, theextent to which evidence can be used across counts, the principle of ‘recent possession’, what is a VIN for purpose of a charge of VIN tampering, the weight to be given to expert testimonyconcerning VINs associated with vehicle computers and, whether possession of part of a stolen vehicle is an included offence in a charge of possession of the vehicle. General Principles [8] There are general principles that apply to every criminal trial. Mr. Barker is presumed to be innocent of these charges.

The Crown bears the burden of proving each and everyelement of the offence beyond a reasonable doubt. That requires more than a suspicion of guilt and more than a belief that he is possibly or probably guilty. The Crown does not have toprove guilt beyond any doubt or to an absolute certainty but the standard of proof beyond a reasonable doubt falls closer to absolute certainty than it does to proof on a balance ofprobabilities. (R. v. Starr, 2000 SCC 40; and R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). [9] I am entitled to accept all, some or none of the testimony of any witness.

I have to assess the testimony of each witness to determine whether it is credible and reliable. Credibility relates to a witness’ sincerity – meaning their willingness to tell the truth. Reliability relates to the accuracy of a witness’ testimony – meaning whether they accurately observedor perceived events and accurately recalled events when testifying. [10] Mr. Barker called evidence but did not testify. That is his right. The important question is always whether on the evidence I did hear, I am convinced beyond a reasonable doubtof each element of every offence.

That means that where there is evidence that is inconsistent with guilt, if I believe it or find that it raises a reasonable doubt, I must acquit. Even if I rejectthat evidence, I must examine the remaining evidence that I do accept and acquit if it leaves me with a reasonable doubt. (W.(D.), (SCC), [1991] 1 S.C.R. 742; and, R. v.Dinardo, 2008 SCC 24). [11] The offences or constituent elements can be proven through direct or circumstantial evidence or a combination.

The burden on the Crown in a circumstantial case is to provebeyond a reasonable doubt that guilt is the only reasonable inference from the evidence (R. v. Griffen, 2009 SCC 28, para. 34). There is no burden on the defence to persuade me that thereare other more reasonable or even equally reasonable inferences that can be drawn. The “mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt.”(Griffen, para. 34). Inferences consistent with innocence do not have to arise from proven facts. A reasonable doubt may be logically based on a lack of evidence (R. v.

Villaroman, 2016SCC 33, para. 36). I must consider “plausible theories” or “reasonable possibilities” that are inconsistent with guilt (Villaroman, para. 37). Speculation and conjecture are prohibited andcan be distinguished from plausible theories and reasonable possibilities because the latter are based on logic and experience applied to the evidence or absence of evidence. The question is“whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”?(Villaroman, para. 38).

If so, then the accused must be acquitted.

The Charges [12] At the close of the Crown’s case, counts 1 to 3, 22 and 23 were dismissed at the request of the Crown and many of the remaining counts were amended to conform with theevidence. [13] The following counts each allege theft of a motor vehicle, contrary to s. 333.1(1) of the Criminal Code: Count 4 – Between February 14 and February 21, 2019 – a Ford Mustang, the property of Greenwood Auto Sales Count 5 – On February 20, 2019 – Dodge Caravan #1, the property of Enterprise Rent-A-Car Count 6 – On February 21, 2019 – Dodge Caravan #2, the property of Enterprise Rent-A-Car

Count 7 – Between February 27 and March 2, 2019 – a Honda Civic, the property of Mohammed Zahid Count 8 – Between February 27 and March 2, 2019 – a Honda Civic, the property of Roxanne MacDougall Count 9 – Between February 27 and March 2, 2019 – a Honda Civic, the property of Heather Ludlow Count 10 – On March 2, 2019 - a Ford Cube Van, the property of Enterprise Rent-A-Car Count 11 – On March 15, 2019 – a Ford Mustang, the property of Carson Exports Count 12 – On April 30, 2019 – a Honda Element, the property of Mark Belanger Count 13 – On May 4, 2019 – a Honda Civic, the property of Everette Bergstrum [ 14 ] The following counts each allege possession of property obtained by crime where the subject matter is over $5,000, contrary to s. 355 (

a) of the Criminal Code : Count 14 – Between February 15 and May 8, 2019 – a Ford Mustang, the property of Greenwood Auto Sales Count 15 – Between March 14 and May 8, 2019 – a Ford Mustang, the property of Carson Exports Count 18 – Between June 30, 2018 and May 8, 2019 – a Dodge Caravan, the property of Enterprise Rent-A-Car Count 19 – Between June 26, 2018 and May 8, 2019 – a White Jeep Wrangler, the property of Enterprise Rent-A-Car Count 24 – Between February 27, 2019 and May 8, 2019 – a Honda Civic, the property of Mohammed Zahid Count 25 – Between April 30, 2019 and May 8, 2019 – a Honda Element, the property of Heather Belanger Count 26 – Between August 17, 2018 and May 8, 2019 – a Ford RV, the property of Pine Acres RV Count 27 – Between October 29, 2016 and May 8, 2019 – a Ford Mustang Shelby, the property of Michael Sack [ 15 ] The following counts each allege possession of property obtained by crime where the subject matter is under $5,000, contrary to s. 355 (

b) of the Criminal Code : Count 28 – on May 7, 2019 – a Dishwasher, the property of Leon’s Furniture Count 29 – on May 7, 2019 – Microwave #1, the property of Leon’s Furniture Count 30 – on May 7, 2019 – Microwave #2, the property of Leon’s Furniture Count 31 – on May 7, 2019 – a Dryer, the property of Leon’s Furniture Count 32 – on May 7, 2019 – a Washer, the property of Leon’s Furniture Count 33 – LED Lights, the property of Sobeys Inc. [ 16 ] The following counts each allege the removal, without lawful excuse, of a vehicle identification number from a specified vehicle, contrary to s. 353.1 of the Criminal Code : Count 16 – Between June 30, 2018 and May 8, 2019 – a Dodge Caravan Count 17 – Between June 26, 2018 and May 8, 2019 – a White Jeep Wrangler Count 20 – Between March 14 and May 8, 2019 – a Ford Mustang Count 21 – Between August 17, 2018 and May 8, 2019 – a Ford RV General Evidence [ 17 ] The evidence included: testimony from alleged accomplices, surveillance officers, property owners and Mr.

Barker’s spouse; messages and photographs from electronic devices and testimony to assist in interpreting that evidence; expert witnesses from the Insurance Bureau of Canada who testified about vehicle identification numbers; documents from the Registry of Motor Vehicles and testimony to assist in interpreting those documents; and, expert witnesses who testified about VINs associated with computers in motor vehicles. [ 18 ] I will start by introducing some of the evidence, witnesses, properties and businesses.

Further details will be provided as it becomes relevant to specific counts. [ 19 ] Four electronic devices were seized and analyzed: - an Apple Iphone 6S, seized from Alesha and Nicholas Barker’s residence and associated to Alesha Barker (Ex. 54; Ex. 77, A-1); - an Apple Iphone 8, seized from Nicholas Barker and associated with 902-719-8804 which Mr.

Barker conceded was, at all material times, his cell phone number (Ex. 75; Ex. 77, A- 3); - an Apple Iphone 8, seized from Catlin Fredericks (Ex. 76; Ex. 77, 6-1); and, - a Blackberry STV, seized from Seth Johnson (Ex. 76; Ex. 77, 6-3). [ 20 ] Alesha Barker (MacIntyre) is Mr. Barker’s spouse. She resided with him at 4 Meadowlark Crescent (testimony of Alesha Barker and various police officers; Ex. 2, pp. 86-87). She testified that Mr. Barker worked with automobiles and sometimes worked in the evenings, coming home while she was asleep.

She had various vehicles registered in her name; however, they were obtained for her by Mr. Barker. [ 21 ] 4 Meadowlark Crescent was searched on May 7, 2019. Evidence found there included: a large quantity of vehicle keys; a key re-programmer; documents; a licence plate for the van often used by Mr. Barker; and the Jeep that is the subject of Counts 17 and 19 (Ex. 2, pp. 33, 44, 71, 79 – 84; Ex. 22). [ 22 ] Catlin Fredericks is an alleged accomplice of Mr. Barker. He was arrested on May 4 th , 2019, gave a statement to police and pleaded guilty to theft of four of the motor vehicles at issue in this trial.

He testified and was cross-examined by the Crown, under s. 9(2) of the Canada Evidence Act, and Defence. He was clearly a reluctant witness. He provided very little relevant evidence during his testimony and resisted confirmation of his prior statements through both the s.9(2) and Bradshaw processes. His statement to D/Cst. Nick Joseph on May 4 th was admitted under the principled exception to hearsay (Ex. 91 & 92). [ 23 ] He acknowledged that he knew Mr. Barker. He said they had met through friends and had known each other for a long time, about ten years. He acknowledged that he probably communicated with Mr.

Barker by telephone but could not recall using instant messaging with him. He was shown user account information and a phone number associated with the device that was seized from him (Ex. 77 – 6-1). He agreed that the email account listed was his email account in 2019 and that the phone number might be his old number. I am satisfied by the circumstances surrounding the seizure of the phone and the user account information that the device was his. He was shown messages between his device and Mr.

Barker’s device but maintained that he had no memory of the messages. [ 24 ] He denied knowing others who were allegedly involved with Mr. Barker and who had also pleaded guilty to offences involving some vehicles. [ 25 ] He acknowledged that, in 2019, he drove a black Chevy Silverado ¾ ton truck, but denied it had any modifications. This is relevant to observations made by surveillance officers. [ 26 ] His reliability and credibility are suspect, and I will treat his evidence with a great deal of caution. [ 27 ] In his testimony, Mr.

Fredericks professed an almost total lack of recall of what was contained in his statement, his arrest on May 4 th , the taking of the statement itself, his life circumstances at the time and his eventual guilty pleas to four charges arising out of his arrest. That lack of recall was, in my view, feigned which demonstrates his willingness to lie under oath. In addition, in some respects, his testimony contradicted things he said in his statement. For example, he testified that he did not know Seth Johnson, whereas in his statement he

spoke about being with him. [ 28 ] Further, he testified he was a regular drug user during the time leading up to his arrest which could cause concern about his ability to accurately perceive and recall events. However, he did not appear to be impaired during the police interview; he seemed tired and upset, but lucid, appeared to understand everything that was said to him and provided rational responses (Ex. 91). [ 29 ] These concerns impact his credibility and reliability in general. [ 30 ] The focus is on the credibility and reliability of the evidence contained in his statement.

There are additional specific concerns about that. He may have had various motives to lie to the police – he was under arrest, recognized the seriousness of his situation and wanted to be released from custody. However, there is no evidence of any specific motive for Mr. Fredericks to fabricate evidence against the people he named in the statement and nothing in the statement that would suggest bias or animosity against them. In his statement, he acknowledged his own involvement in various thefts of cars and was more reluctant to implicate others.

He did not appear to be exaggerating the involvement of others, did not provide last names and did not volunteer information that went beyond the officer’s questions. [ 31 ] The Crown argued that there is significant corroboration of his statement and the Defence urged me to carefully assess that evidence to determine whether it truly corroborated his statement and, if so, whether it permitted me to rely on it for proof beyond a reasonable doubt. [ 32 ] Seth Johnson was also an alleged accomplice of Mr. Barker in the theft of vehicles.

He was also arrested on May 4, 2019, gave a statement to police and pleaded guilty to theft of four vehicles that are the subject of charges against Mr. Barker. He testified and was cross-examined by the Crown under s. 9(2) of the Canada Evidence Act . The Crown did not seek to have his statement admitted under the principled exception to hearsay. He was clearly a reluctant witness. [ 33 ] He acknowledged that he’d pleaded guilty to the thefts, but denied he was guilty, saying he’d pleaded guilty because it was the easiest thing to do. He also denied that Mr. Barker had any involvement in those thefts.

He acknowledged he knew Mr. Barker, Mr. Fredericks, Scott Fraser and Kevin Green. He testified he and Mr. Barker were friends and he was paid to do work for Mr. Barker, including repairing and repainting vehicles. [ 34 ] He confirmed that when he worked for Mr. Barker, they communicated by text but he could not remember what his own telephone number was at the time. He was shown photographs from the device seized from him and testified that he thought they were from his phone and that he did sometimes take pictures at work (Ex. 77, 6-3). [ 35 ] He testified that Mr. Barker had a black van, but Mr.

Barker didn’t usually drive, so when they were travelling together, Mr. Johnson drove. He described Mr. Fredericks’ truck in a manner consistent with evidence of surveillance officers. [ 36 ] In his testimony, he was evasive, uncooperative, and lied about his involvement in the offences. I would rely on his evidence only about generic things where he would see no reason to lie or where there was corroboration. [ 37 ] Kevin Green had a large property at 367 Gatehouse Run. Vehicles that are the subject of some of the charges against Mr. Barker were found there on May 7, 2019. Mr.

Green was charged with offences arising out of this investigation, but they were withdrawn upon his successful completion of restorative justice. He testified that several people, including Mr. Barker, kept vehicles on his property. He had known Mr. Barker for years. Mr. Barker paid him to store vehicles on his property and would sometimes come there to work on vehicles. When he did, Seth Johnson normally drove him. Mr. Green testified that he was never present when the vehicles arrived.

They would just show up with the keys in case he needed to move them. [ 38 ] Scott Fraser owned Back to New Auto Sales, a used car dealership, and worked for his father at Fraser Automotives. Both businesses are located at 767 Old Sambro Road. He was charged with and pleaded guilty to possession of stolen vehicles arising out of this investigation. When he testified, he had not yet been sentenced and the Defence submitted that there is a deal between him and the Crown for a more lenient sentence. He, his counsel and the Crown deny this. There is no evidence of any agreement on sentence in return for Mr.

Fraser’s cooperation with the Crown. However, I accept that he might perceive that he has something to gain in the form of potential mitigation of sentence if he is cooperative. Mr. Fraser also has a prior criminal record including crimes of dishonesty and was in custody from April to November of 2019. [ 39 ] I will treat his testimony with caution. [ 40 ] Mr. Fraser testified that Back to New Auto primarily buys smashed cars from auction. He had known Mr. Barker for about 15 years. They were friends and they helped each other on car deals. Over the years Mr. Fraser had bought and sold cars from Mr.

Barker. [ 41 ] Part of the Crown theory relating to some counts is that Mr. Barker used Back to New to create a paper shield between himself and certain transactions. Mr. Fraser testified that he allowed Mr. Barker to use Back to New’s dealership licence to purchase vehicles from auction. However, he was unaware of some of the transactions at issue in the trial that purported to involve Back to New. Further, a temporary licence book for Back to New was found at 110 Kearney Lake Road, a property owned by Mr. Barker (Ex. 56). Mr.

Fraser said these are used by purchasers who don’t have a licence plate to allow them to operate the vehicle until they can get one. He said he had no idea how Mr. Barker came to have this book. He acknowledged he had written up temporary permits for Mr. Barker in the past but denied that he had ever given him any books. [ 42 ] He testified that Mr. Barker was also interested in smashed up cars, particularly Hondas and ‘hard hits’ (those with significant damage). He said Mr. Barker wanted parts and VIN numbers. He knew this because some of the vehicles Mr.

Barker bought would be towed to his shop (767 Old Sambro Road) for parts/scrap, without serial numbers. He did not know whether Mr. Barker removed these himself. [ 43 ] He testified that Mr. Barker knew how to program keys, taught Mr. Fraser how to reprogram keys for Honda Civics and that it was easy to program keys for Hondas and Dodges. [ 44 ] Mr. Fraser acknowledged he knew Seth Johnson and that both Mr. Johnson and Mr. Barker had been to 767 Old Sambro Road. [ 45 ] Through surveillance and other evidence, Mr.

Barker is connected to several properties in addition to his residence at 4 Meadowlark: - 110 & 112 Kearney Lake Road – a duplex owned by Mr. Barker and Alesha MacIntyre (Barker) where allegedly stolen property was found (Ex. 34; Ex. 11); - 327 Kearney Lake Road – a workshop/garage rented by Mr. Barker (Ex. 12). Ms. Barker testified that Mr.

Barker rented the space, he was frequently seen going there during the investigation and items seized during the search on May 7, 2019 also connected him to the property: a letter, dated February 7, 2016 from NS Department of Transportation and Infrastructure Renewal, addressed to Nicholas Barker at that address (Ex. 36). - 387 Kearney Lake Road – a residence, outbuildings and junk or scrap yard (Ex. 43 & 79). During the investigation, Mr. Barker was frequently seen going there (D/Cst. Joseph). - 367 Gatehouse Run – residence and property of Kevin Green (Ex. 4). During the investigation, Mr.

Barker was frequently seen going there and Mr. Green and Mr. Johnson both testified he went there. - 767 Old Sambro Road – location of Fraser Automotive and Back to New Auto Sales. During the investigation, Mr. Barker was frequently seen going there and Mr. Fraser and Mr. Johnson both testified he went there. [ 46 ] On May 7, 2019, police executed warrants at these and other locations seizing a large amount of property. [ 47 ] Other witnesses were significant in the investigation or presentation of the evidence. [ 48 ] D/Cst.

Nick Joseph was the lead investigator and was involved in various aspects of the investigation including surveillance and taking a statement from Mr. Fredericks. The Defence submits that I should have concerns about his credibility and/or reliability and this impacts the credibility and reliability of the information in Mr. Fredericks’ statement because of the risk that D/Cst. Joseph had discussions with Mr. Fredericks before that statement was taken or otherwise improperly influenced the statement. [ 49 ] The primary cause for concern identified by the Defence is D/Cst.

Joseph’s evidence relating to his observations of a Jeep that was generally driven by Ms. Barker. The Crown alleged that vehicle was stolen and was originally black but was painted white. The Defence submitted it was originally a lawfully obtained green Jeep. On April 26, 2019, D/Cst. Joseph had an opportunity to look under the vehicle while it was parked at a movie theatre. It was dark out, but he used the light from his phone. In cross-examination, it was suggested to him that the underside of the vehicle was green, not black. He said he did not recall seeing that and it was not in his notes.

He was confronted with a report that had been created by Cst. Holly Murphy which included information that the vehicle appeared to have been originally green but had been painted white. He testified he did not provide Cst. Murphy with that information and was not aware of anyone else looking under the vehicle. [ 50 ] Cst. Murphy testified. She could not specifically recall where she got the information that someone had observed green on the underside of the Jeep. She said she got most of her information from surveillance notes but had checked those notes and they did not include a reference to “green”.

She thought she had spoken with D/Cst. Joseph and that he had given her the information, but she could not say where or when. She acknowledged that the information may have been directly received from someone else who had said it came from D/Cst. Joseph.

[ 51 ] A Defence application to have the vehicle examined was granted and photographs of the underside of the vehicle show that it does have green metal. So, Cst. Murphy’s information was correct. [ 52 ] Essentially, the Defence submits that D/Cst. Joseph intentionally supressed the information about the green paint, in his notes and testimony, because it was exculpatory. I am not satisfied that he did. By the time D/Cst. Joseph testified, he knew that there was some evidence that the public VIN was associated with a green vehicle.

However, there is no evidence that he knew this at the time of his observations and when the surveillance notes were created. Assuming he ran the public VIN through RMV, those documents do not include that detail (Ex. 67). In the absence of that information, he would not have known that this detail might be exculpatory, so I see no reason for him to have purposefully kept it out of his notes. In the circumstances, I do not accept there was malfeasance in failing to record it in the surveillance notes. I do accept that the information was conveyed to Cst. Murphy, by D/Cst.

Joseph or one of the surveillance officers who were with him. I believe that it was probably D/Cst. Joseph who observed the green paint, but I can’t say whether he told Cst. Murphy or if someone else did. In any event, this would have been a relatively minor detail in a relatively long and complicated investigation involving a lot of surveillance and a lot of vehicles. Given that the information was not in the notes from that evening, I accept that D/Cst.

Joseph’s failure to recall it at trial was innocent. [ 53 ] Other officers were involved in surveillance and the execution of the search warrants on May 7, 2019. I will refer to them when I discuss the detailed evidence. [ 54 ] Other professionals were involved in the investigation and presentation of evidence. [ 55 ] Kevin MacDougal, an employee of the RCMP digital forensics unit, prepared/interpreted extraction reports for the four cell phones that were seized during the investigation. He testified that the extraction is essentially a mirror of the data on the device.

He tested the extractions using various tools and was satisfied that there was no corruption of any data during the extraction. Portions of those extractions were filed with the Court, including user information, text-based messaging, call logs and images stored on the devices (Ex. 77). [ 56 ] Mr. MacDougal explained that the times and dates included in the reports are taken from the device so are accurate if the time on the device was accurate. He was not asked whether these devices were set to automatically acquire time and date from the internet.

For the iPhone, he explained that the extractions were done using the time zone the device was set to, such that the times in the reports are the times on the phone. Therefore, the times on the iPhone extractions (Mr. Barker’s, Ms. Barker’s and Mr. Fredericks’) are adjusted for Universal Coordinated Time (UTC) which is -3 during AST and -4 during ADT. For Mr. Johnson’s device, the Blackberry, the times did not have that adjustment so need to be adjusted for UTC to obtain local time. For Mr.

Johnson’s device, there is internal corroboration that the time stamps need to be adjusted for UTC -4 and that they are accurate. There are messages that include references to times. For example, a message saying “just get dropped off at 1030”, with a response, time stamped at 2:34 a.m., with an adjusted time of 10:34 p.m., saying “here”. [ 57 ] Mr. MacDougal explained how to interpret the data on the devices. For images, he explained that each image has times and dates associated to when it was captured, created, modified and accessed.

Some of the images show that they were sent or received from the device as an attachment to a message. When creation/captured/modified/accessed times are identical or within seconds of each other, it essentially means the image was not modified and was only accessed when it was taken and sent. For various types of text-based messaging, he also explained how to identify whether a message had been sent or received by the device and whether there was an attachment. [ 58 ] There were messages found on Mr. Fredericks’ and Mr. Johnson’s devices which appear to be between those devices and Mr.

Barker’s phone number. [ 59 ] Neither Mr. Fredericks nor Mr. Johnson acknowledged they sent and received those messages. However, I am satisfied by the entire circumstances that they did. The phones were in their possession when they were seized, they acknowledged either their phone number, email or content from the devices, and there is no evidence that they let anyone else use the devices. Further, for Mr. Fredericks, the content of the messages is entirely consistent with his statement about his role in the various offences and consistent with him being the author/recipient of the messages. For Mr.

Johnson, the content of the messages is consistent with his testimony about his work and life circumstances at the time and consistent with him being the author/recipient of the messages. [ 60 ] These messages were not found on Mr. Barker’s device and Mr. MacDougal testified that no deletions were detected on Mr. Barker’s device. He was not asked to elaborate on this. The Defence submitted that this should raise concerns as to whether the messages on Mr. Fredericks’ and Mr. Johnson’s devices were exchanged with Mr. Barker’s device. Mr. MacDougal did say that the extraction method for Mr.

Barker’s device was different than the method used for the other devices. He was not asked so I have no evidence of whether that might impact the detection of deleted messages. [ 61 ] As the Defence noted, even if I am satisfied that these messages were exchanged with Mr. Barker’s phone number/device, that does not prove that Mr. Barker was using his device and received/authored those messages. [ 62 ] Having reviewed all the circumstances, I am satisfied that the messages retained on Mr. Fredericks’ and Mr. Johnson’s phones were exchanged with Mr. Barker’s phone number/device.

I accept that there is no explanation for why they were not found on Mr. Barker’s device, but I also have no explanation for how Mr. Barker’s phone number could be associated with those messages in the other two devices if they were not exchanged with that number. The messages were clearly generated and were responded to, so they were received by a device associated to Mr. Barker’s phone number. [ 63 ] I am also persuaded that Mr. Barker was the author/recipient of these messages. Mr.

Barker had the device associated with that number in his possession when he was arrested, and I have no evidence that he had any other device/phone number or that he let others use his device. Further, the content of some messages when read together with Mr. Fredericks’ statement supports that Mr. Barker was the recipient/author of the messages. Finally, the content of some messages corroborates that Mr. Barker was the person receiving and authoring messages: reference to meeting at the “duplex” – Mr. Barker owned a duplex; reference to the “van” – Mr.

Barker operated a van; reference to “lights” – lights were found at properties owned by Mr. Barker; and, a reference to “soon as Alesha get home” – Mr. Barker’s wife is Alesha. [ 64 ] I am permitted to consider rational inferences from the evidence or from gaps in the evidence, but I am not permitted to speculate about facts. Despite that, I have considered whether it is reasonable or rational that Mr. Barker would permit someone else to use his phone to send messages.

I have considered, even though there is no evidence to support this, that he might lend his phone to his spouse or ask someone to send messages if he was driving or otherwise unable to text. In the circumstances, I have concluded that these are either not reasonable inferences, would not be consistent with the content of the messages, or would not be exculpatory for Mr. Barker. [ 65 ] John MacKinnon, an investigator with the Insurance Bureau of Canada, was qualified as an expert able to give opinion evidence in the following areas: - The

interpretation of primary and secondary VINs - The identification of motor vehicles and motor vehicle parts - The techniques used by motor vehicle thieves in motor vehicle theft, and, - The renumbering of stolen motor vehicles and motor vehicle parts [ 66 ] He examined and provided opinion evidence about vehicles. He also identified various tools and items seized from locations associated with Mr.

Barker that, in his opinion, could be used to steal and re-VIN vehicles, including: door opening kits (Ex. 12, p. 66 – 327 Kearney Lake Road); lock pick sets; key re-programmers (Ex. 11, pp. 139 – 110 Kearney Lake Road; Ex. 2, p. 71 – 4 Meadowlark Crescent); a large quantity of vehicle keys (Ex. 11, p. 141 – 110 Kearney Lake Rd.; Ex. 2, p. 44 – 4 Meadowlark Cresc.); blank programmable keys; metal stamping sets; photographs of VIN stickers (Ex. 77, A-3 – Mr.

Barker’s phone); and, cutout VIN plates/stickers and corresponding vehicle permit (Ex. 12, pp. 71, 109, 112; Ex. 63 - 327 Kearney Lake Road). [ 67 ] William Smith, also an auto-theft investigator with the Insurance Bureau of Canada, was qualified as an expert to give opinion evidence in the following areas: - identification of motor vehicles and their parts - the

interpretation of primary and secondary VINs; and - techniques and/or mechanisms used to conceal the true identity of vehicles [ 68 ] He examined and provided opinion evidence about one vehicle. [ 69 ] Carla Parker, an employee with Impact Auto, testified that the company works for insurance companies to sell their vehicles that have been declared a total loss. They sell to licensed dealers and registered auto companies. These vehicles include vehicles that are recovered stolen, salvaged (have been in an accident but are repairable) and parts-only (not repairable but parts may be used on other vehicles).

Salvaged vehicles are repairable but can’t be put on the road until there is a Certificate of Mechanical Fitness. Once they are repaired and certified, they can be registered with the Registry of Motor Vehicles (RMV) as ‘re-built’ and then go back on the road. Previously stolen vehicles are given a clean title in the insurance company’s name and then sold. Some vehicles come in without a proper VIN plate. A VIN is obtained from the RMV and placed on the door pillar.

She testified that Impact Auto does not remove VINs from vehicles and does not compare VINs in different places on the vehicle. [ 70 ] Pamela Bunker-Dyke is the police services representative with public works and transportation which includes the Registry of Motor Vehicles. She obtained and interpreted documents from RMV relating to the investigation. She described how rebuilt vehicles (vehicles that include parts from different vehicles) are managed in the RMV documents. She was questioned about what VIN would be used to register a rebuilt vehicle that had parts with different VINs.

She testified that it depends on how much of the vehicle is rebuilt. A special

section of the RMV, ‘Operations Support’, deals with rebuilt vehicles. It clarifies what is required, reviews all documents and has engineers who can decide if the vehicle is road worthy. Not all rebuilt vehicles have to go through that process and if a vehicle doesn’t go through that process, RMV doesn’t choose which VIN from the vehicle is used. I understood her

testimony to be that to a certain extent the person registering a rebuilt vehicle decides whether to engage that process and, if not, which VIN to register the vehicle under. However, shetestified that if someone were replacing things like the frame, more approval would be required and, presumably, would be expected to engage Operations Support. [71] Sections 47-48 of the Motor Vehicle Act, RSNS,

Part II describes some of the rules surrounding rebuilt vehicles.

These provisions prohibit anyone from operating a vehicle witha replaced chassis, body or motor without application, an Applicant for registration must mention if a part of the body or chassis bearing the manufacturers serial number has been replacedand if a rebuilt/altered vehicle results in the removal of a serial number, RMV may authorize a new special number. [72] Two witnesses were qualified as expert witnesses able to provide opinion evidence related to the relationship between a vehicles’ computer and its VIN: David Giles, for theCrown; and, Emil Reiss, for the Defence.

Understanding their evidence requires some basic understanding of a motor vehicle’s computer. Modern vehicles have a VIN that is physicallystamped on the vehicle and associated with the vehicle’s computer system. The VIN associated with the computer can be read using an onboard diagnostic (OBD) scanner. The computersystem is made up of several smaller computer modules that control different functions of the car. [73] The evidence of Mr. Giles and Mr.

Reis is relevant to those Counts where the Crown relies on VINs obtained through an OBD scanner to identify a vehicle and support a findingthat the vehicle or some part of it is stolen and/or that the VIN has been tampered with. [74] The primary effect of Mr. Reiss’ testimony would be to render unreliable an electronic VIN associated with a vehicle’s computer, recorded through an OBD scanner. He testifiedthat the VIN associated with a module would be changed if software associated with a different VIN were installed.

The result would be that a VIN obtained using an OBD scanner wouldcapture the VIN associated with the software, not the physical part or vehicle. [75] Mr. Giles testified that if only one module was reprogrammed, that module would not interact with other modules because the modules communicate with each other using theVIN.

He acknowledged that it was theoretically possible to completely reprogram a car to remove the VIN from the entire electrical system and replace it with another, but it would behighly challenging, time-consuming and most vehicles have security modules that would, in his opinion, render the vehicle inoperable unless they were also reprogrammed.

These securitymodules could not be re-programmed without a licensed lock smith or assistance from the manufacturer. [76] He did confirm that if you simply had the chassis of car A, and put all the components of car B into it; the VIN obtained from the vehicle’s computer would show the VIN forCar B. [77] If necessary, I will address their opinions in detail when I deal with those Counts. [78] Finally, vehicle owners testified about their ownership of specific vehicles and the circumstances under which their vehicles were stolen. Again, I will refer to their evidencewhen I address specific counts.

The Law [79] At this stage, I will summarize the applicable law in a general way and identify where there are legal issues. I will address the specific arguments later in my reasons. Theft of a Motor Vehicle, s. 333.1 [80] To prove theft of a motor vehicle under s. 333.1, the Crown must prove: a theft; and, that the “property stolen is a motor vehicle” (s. 333.1).

The offence of ‘theft’ is described ins. 322 and there is no real dispute in this case that the vehicles that are the subject of the theft counts were stolen vehicles, meaning that they were motor vehicles, were taken without colourof right, and with intent to deprive the lawful possessor. The main issue for the theft charges is whether the Crown has proven that Mr. Barker was a party to the offence. [81] For some counts, the Crown also alleges that Mr. Barker subsequently possessed the vehicles that were stolen. I will address the legal principles that apply to possession in amoment. However, if I find that Mr.

Barker was in possession of a stolen vehicle, the principle of ‘recent possession’ may be engaged to assist the Crown in proving that he knew the itemwas stolen and/or was involved in the theft of that vehicle. That principle is not a doctrine, presumption or mandatory inference. It says simply that a trier of fact may (not must) drawinference(

s) from the unexplained recent possession of stolen property that the person in possession of the property knew it was stolen and/or was a participant in its theft (R. v. Kowlyk, (SCC), [1988] 2 S.C.R. 59). Where that inference is drawn, it can be sufficient, even in the absence of other evidence, to establish guilt. [82] It requires proof that the accused was in possession of the property, there is no innocent explanation for the possession, the property was stolen and the theft was recent (Kowlyk;R. v.

Saieva, (SCC), [1982] 1 S.C.R. 897). [83] I will discuss the specific arguments and cases that address how recent is ‘recent’ later in my decision. Possession of Stolen Property, ss. 354 and 355(a) & (b) [84] The offence colloquially referred to as ‘possession of stolen property’ is described in s. 354(1)(a).

It requires proof that the person had in his possession any property or thing,knowing that all or part of the property or thing was obtained, directly or indirectly, from the commission of an indictable offence. [85] Possession is defined in s. 4(3) of the Criminal Code to include personal, constructive and joint possession. Possession requires knowledge and some measure of control over theitem (R. v. Wallace, |2016 NSCA 79, at para. 56; R. v. Pham (2005), (ON CA), 77 O.R. (3d) 401, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 363; R. v.Caldwell (1972), 1972 ALTASCAD 33 , 7 C.C.C. (2d) 285 (Alta.

S.C. (A.D.)); and, R. v. Grey (1996), (ON CA), 28 O.R. (3d) 417). [86] Joint possession under s. 4(3)(

b) has the added requirement of consent (Pham and R. v. Terrence (1983), (SCC), 4 C.C.C. (3d) 193 (SCC) at pp. 197-198). Consent, in the joint possession context, has been interpreted to mean “active concurrence of the accused in the possession by another … not merely passive acquiescence…” (Caldwell, atp. 300). A relevant consideration is whether the facts establish that the accused had the power to decline to consent in an effective way (R. v.

Miller (1984), (BC CA), 12C.C.C. (3d) 54 (B.C.C.A.) at p. 86). [87] Knowledge, both for proof of possession and for proof that the thing possessed was obtained by crime, includes willful blindness which is often described as ‘deliberateignorance’. Willful blindness imputes knowledge to an accused where the evidence establishes that he became aware of the need for some inquiry but did not make any inquiry because hedidn’t want to know the truth.

Mere negligence (the failure to take reasonable care) is not enough and it is not enough for the Crown to show that the accused should have known (R. v.Briscoe, 2010 SCC 13). In R. v. Murphy (2020 NSSC 35, para. 114, affirmed on appeal, 2022 NSCA 26), the Court described willful blindness in the context of knowledge that propertywas stolen: The person must themselves have been suspicious about whether the property was stolen and made the decision not to inquire, to avoid being encumbered with the knowledge that would begained from such an inquiry. Willful blindness is a conscious choice not to make an inquiry.

A person may be so naïve and trusting that they believe almost anything. [88] Absent an admission, proof of knowledge will generally not be established through direct evidence. However, guilty knowledge, like any other element of an offence, can beproven through direct evidence or by inferences from other circumstances. [89] The charges under s. 355(

a) that allege possession of property with a value over $5,000 all relate to motor vehicles and each count is particularized to refer to a specific motorvehicle. For example, “a Ford Mustang … the property of Enterprise Rent-A-Car”. An issue that potentially arises in this case is whether Mr. Barker could be convicted of one of thosecounts if the Crown proved that he possessed only part of that vehicle but knew that part was stolen.

I will address that argument when it arises. [90] In a prosecution under s. 354(1), to prove that a motor vehicle was obtained by crime, the Crown has the benefit of the statutory presumption in s. 354(2) which provides thatwhere a person is in possession of a vehicle with a wholly or partially removed or obliterated VIN, there is a rebuttable presumption that the vehicle is stolen. Of course, that does notestablish knowledge that the vehicle is stolen. VIN Tampering – s. 353.1 [91] The offence colloquially referred to as ‘VIN tampering’ is contained in s. 353.1 of the Criminal Code: 353.1

(1) Every person commits an offence who, without lawful excuse, wholly or partially alters, removes or obliterates a vehicle identification number on a motor vehicle. [92] This provision provides for different modes of committing the offence. In this case, the charges under this provision particularize the mode of commission as “removal” of theVIN. Having particularized the offence in this way, the Crown is required to prove that particular (See: R. v. Saunders, (SCC), [1990] 1 S.C.R. 1020, para. 5; R. v.Wong, 2012 ONCA 432, para. 56; R. v. Sadeghi-Jebelli, 2013 ONCA 747, paras. 23-24). [93]

Section 353.1(2) defines “vehicle identification number” as: (2) … any number or other mark placed on a motor vehicle for the purpose of distinguishing it from other similar motor vehicles. [94] A potential issue in this case is whether the VIN associated with a vehicle’s computer and certain other numbers assigned to various parts in the vehicle fall within the definition

of VIN in s. 353.1(2) such that their removal would be an offence. Again, I will specifically address that argument when it arises. [95]

Section 353.1 allows for the defence of “lawful excuse”. [96] Finally, s. 353.1(3) also sets out circumstances in which removal of a VIN will not be an offence. I will address this issue when it arises. Consideration of Evidence Across Counts [97] Generally, evidence of discreditable conduct of the accused is not admissible in a trial unless that conduct is the subject of the charge in question.

In a multi-count Information,this means that discreditable conduct evidence which is admitted on the count to which it relates cannot be used to prove guilt on another count unless it fits within an exception. [98] Here, the Crown argues that for some counts, the test for one of those exceptions - ‘similar act’ evidence - is met. However, the Crown also submits that in circumstancesinvolving alleged possession of a large amount of stolen property, it may be open to the Court to consider the evidence globally without strictly adhering to the analysis governing admissionof similar act evidence.

In support of that position, the Crown has provided cases where courts have looked at the entire circumstance of a case to infer the knowledge requirement forpossession of stolen property without specific reliance on ‘similar act’ and without going through a ‘similar act’ analysis. In R. v.

Boyle, (1983) (ON CA), 41 O.R. (2d)713 (CA), the Court of Appeal said that: Guilty knowledge…may, of course, be proved by inferences from other circumstances…For example, the possession of several motor vehicles the vehicle identification numbers of whichwere obliterated might very well support an inference of guilty knowledge on the basis of the improbability of a person innocently acquiring a number of motor vehicles, the vehicleidentification numbers of which had been obliterated. [99] In Boyle, the Appellant had been tried on a single count of possession of a motorcycle so neither the trial court nor the appeal court was required to consider the permissible useof evidence across counts.

The issue on appeal was the constitutionality of a statutory presumption of guilty knowledge upon proof that the accused possessed a vehicle with an obliteratedVIN. After concluding that the presumption was invalid, the Court discussed other ways that knowledge could be proven, including the paragraph cited above. No context was providedfor that statement, so it is not clear whether the Court was considering a situation where an accused is charged with multiple individual counts of possession of stolen property as opposed tothe situation where there is one global count encompassing more than one item.

In the latter scenario, no similar act application would be required. [100] However, the Crown argues that similar comments were made in R. v. Murphy, 2020 NSSC 35, aff’d by 2022 NSCA 26: [70] The large quantity of retail merchandise is a significant factor in determining whether it is reasonable to infer that somehow the items made their way to this store legitimately.Coincidences happen. A person might sell their Canadian Tire trolling motor to the pawn shop. Someone else might sell another one. Someone else might sell their tires. All those itemsmight be just like items that were stolen.

Someone might sell a large quantity of new undergarments that they somehow obtained. Someone else might sell jeans with security tags still onthem. Each of those events is possible but it is just not reasonable to suggest that all those things could happen. There may be an explanation that can be advanced for each item but togetherthey do not allow for an explanation other than that they were stolen property. . . . [109] The volume of retail goods was substantial. The presence of multiple items from each retailer is significant. The fact that each was found in original packaging is significant.

In somecase, as with jeans and at least one sheet set, there were security tags still attached. While each individual item might be explainable as an

article brought in by a customer who bought itfrom a retailer, the presence of so many items packaged in that way sets up an overwhelming inference that the items were stolen. There is nothing to suggest by their packaging orotherwise that they were acquired through a bulk resale arrangement. Those retailers do not dispose of inventory in that way.

It is not reasonable to infer that they came into the pawn shopindividually. [101] In Murphy, the Court was dealing with multiple counts of possession of stolen goods and the Court did not engage in a similar act analysis to determine if evidence relating todifferent counts could be used to support others. The trial judge apparently used evidence across counts to support inferences that the property was stolen and that the accused knew it wasstolen. Mr.

Murphy appealed but this issue was not raised or addressed on appeal. [102] The Ontario Court of Appeal has specifically addressed this issue in a similar context to the one before me. In R. v. Tsigirlash, 2019 ONCA 650, the accused had been tried on amulti-count Information relating to possession of stolen property. The Crown did not apply to use evidence across counts as similar act evidence.

However, in his reasons, the judgeconducted his own similar act analysis and then used the evidence in much the same way as was suggested in Boyle – to infer that possession of a large quantity of stolen property supportedan inference of knowledge. The Court of Appeal concluded that it was an error for the judge to embark on his own similar act assessment without a request from the Crown. The Courtdeclined to apply the curative proviso and sent the matter back for re-trial.

Implicit in the Court’s conclusion is that the evidence could not, otherwise, have been used across counts. [103] In my view it is possible to rationalize these cases with each other and with the existing law prohibiting cross-count use of discreditable conduct by going back to first principles. [104] The prohibition on use of evidence across counts relates only to evidence of discreditable conduct (also referred to as bad character evidence or extrinsic misconduct evidence).

The purpose of the general prohibition is to prevent discreditable conduct that is extrinsic to a specific count from being improperly used to convict an accused of that count. That kind ofevidence is presumptively inadmissible because of the risk that a person will be convicted based on prejudice and propensity rather than proof. [105] However, in any trial on a multi-count Information, there will be evidence collected that is relevant to more than one count. If the evidence the Crown seeks to use on multiplecounts is not discreditable conduct, it is not presumptively inadmissible.

If it is relevant and not otherwise inadmissible, it can be used as circumstantial evidence in support of multiplecounts without a similar act analysis. If the evidence is of discreditable conduct of the accused, it is presumptively inadmissible and could only be admitted across counts if it satisfied therequirements of an exception, such as the ‘similar act’ exception. [106] The label ‘discreditable conduct’ relates to the type of evidence, not the purpose for which the Crown seeks to use it.

It “… may be understood as being virtually anything thattends to put someone’s character in a negative light” (R v G (S.G.), (SCC), [1997] 2 SCR 716). It is not restricted to criminal conduct and can include any conduct orinformation about the accused that others are likely to find morally objectionable or apt to demonstrate that the accused has a contemptable or reprehensible character (R. v.

Robertson, (SCC), [1987] 1 SCR 918 at para 46). [107] Arguably, in Murphy, the Court relied on evidence that was not discreditable conduct evidence – e.g. possession of a large quantity of retail goods – and used it as circumstantialevidence from which he drew inferences. Interpreted in that way, no ‘similar act’ analysis was undertaken because none was required. [108] Other evidence might be discreditable but is relevant circumstantial evidence for more than one of the charges. If so, it is admissible on the counts to which it relates.

This mightinclude possession of items that are potentially the ‘instruments’ or tools of the crimes. For example, evidence that Mr. Barker possessed lock picking equipment, a key re-programmer andmultiple key fobs might be viewed as inadmissible ‘bad character’ evidence on a charge of assault. However, for charges of theft of motor vehicles it is direct circumstantial evidence thatcan be used for those counts. [109] Other evidence is also discreditable but is admissible across counts by virtue of exceptions other than the ‘similar act’ exception. For example, the principle of ‘recent possession’.

On a charge of theft of a motor vehicle, evidence that Mr. Barker later possessed that vehicle is capable of grounding an inference that he was involved in the theft. If I am persuaded thathe possessed the stolen vehicle, that is admissible on the theft charge for the purpose of determining whether I would draw the permissive inference even though it is also evidence of theoffence alleged in the ‘possession of stolen property’ count. [110] That does leave some evidence that, in my view, could not be used across counts unless it fit within the ‘similar act’ exception.

This would include evidence relating to theft of onemotor vehicle to assist in proving that he was involved in stealing another. The Crown also seeks to use the fact that Mr. Barker allegedly possessed more than one stolen item or vehiclewith improper VINs to help infer that he knew other items were stolen. I have considered whether evidence that a person possessed a large number of stolen things is discreditableconduct. Possession of stolen property, absent proof of knowledge, is not criminal. However, the cases are clear that discreditable conduct is not limited to criminal conduct.

Arguably,possessing a lot of stolen property could put a person’s character in a negative light or be viewed as morally suspect. As such, it could be considered ‘discreditable’ and would require a‘similar act’ analysis to use it across counts. Similarly, evidence that Mr. Barker used Back to New to create a fake paper trail for one count would not be admissible on another countunless the Crown met the test for the ‘similar act’ exception. The Similar Act Exception – Legal Principles [111] Similar act evidence is bad character evidence and is presumptively inadmissible (Arp, para. 40; and R. v.

Handy, 2002 SCC 56). The burden to admit the evidence is on theCrown to establish on a balance of probabilities to show that the probative value to an issue in the case outweighs its prejudicial effect (Handy, paras. 49 - 55; and, Arp, para. 41). [112] The basis of this narrow exception is that in some cases the evidence of extrinsic misconduct "may be so highly relevant and cogent that its probative value in the search for truthoutweighs any potential for misuse" (Handy, at para. 41).

Its “[p]robative value exceeds prejudice, because the force of similar circumstances defies coincidence or other innocentexplanation” (Handy, at para. 47). Specific principles and factors are helpful in determining its probative value, however, the overarching principle is that its value is derived from theobjective “improbability of coincidence” (R. v. Shearing, 2002 SCC 58, at para. 40; Arp, paras. 43 & 45; and, R. v.

Trochym, 2007 SCC 6, para. 78). [113] Courts have identified a methodology to help guide trial judges in their assessment of admissibility of this kind of evidence: (1) identify and define the issues in the case to whichthe evidence relates; (2) identify and assess the probative value of the evidence; (3) identify and assess the prejudicial effects of the evidence; and, (4) weigh the probative value against the

prejudicial effects (Handy. para. 70; R. v. J.W., 2022 ONCA 306, paras. 20 – 36).

(1) The Issue(s) [114] In this case the Crown broadly identifies two categories of evidence and two different issues. [115] For the vehicle thefts, this issue is identity. For the possession of stolen property counts, the issue is guilty knowledge.

(2) Identifying and Assessing the Probative Value [116] The probative value of similar act evidence will vary depending on the issue it potentially relates to. However, the basis of the exception is that in some cases the evidence of othermisconduct is sufficiently similar to the charged conduct that it “defies coincidence or other innocent explanation” (Handy, para. 47). [117] In general, probative value will depend on the level of connectedness between the evidence and the issue and the similarity between the evidence (J.W., para. 23). [118] In R. v.

Tsigirlash, 2019 ONCA 650, para. 29, the Court said that there must be a: … logical "nexus established between the evidence of similar acts and the offence that the evidence is offered to prove": MacCormack, at para. 49. Where the logical nexus depends on thesimilarity of the similar acts to the act charged, the probative value of the evidence will increase with the degree of similarity, because the probability that the similarity is a result ofcoincidence will decrease. The court must be satisfied that the "objective improbability of coincidence" has been established: R. v.

Arp, (SCC), [1998] 3 S.C.R. 339, atpara. 48. This analysis cannot be done in the abstract, but only on the basis of specifically-identified similar acts. [119] In Handy, the Court proposed factors that might be relevant in assessing the similarity of proposed similar act evidence (para. 82). [120] However, it is clear that while these specific principles and factors are helpful in determining the probative value of evidence, the overarching principle is that its value is derivedfrom the objective “improbability of coincidence” (R. v. Shearing, 2002 SCC 58, at para. 40; Arp, paras. 43 & 45; and, R. v.

Trochym, 2007 SCC 6, para. 78). [121] Further, it is recognized that the degree of similarity required to justify admission of similar act evidence and/or the relative importance of specific similarities or dissimilaritieswill vary depending on the purpose for which the evidence is tendered (Handy, para. 78; and, R. v. Carpenter, (1982) (ON CA), 1 C.C.C. (3d) 149 (ONCA)). [122] In Shearing, the Court said, at para. 60: [t]he judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance.

At microscopic levels of detail, dissimilarities can always be exaggeratedand multiplied. This may result in distortion. At an excessively macroscopic level of generality, on the other hand, the drawing of similarities may be too facile.

Where to draw the balanceis a matter of judgment”. [123] In Handy, the Court proposed seven connecting factors that might be relevant in assessing the similarity of proposed similar act evidence (para. 82): 1. proximity in time of the similar acts; 2. extent to which the other acts are similar in detail to the charged conduct; 3. number of occurrences of the similar acts; 4. circumstances surrounding or relating to the similar acts; 5. any distinctive feature(

s) unifying the incidents; 6. intervening events; and 7. any other factor which would tend to support or rebut the underlying unity of the similar acts. [124] The Court noted that not all factors would be useful in every case and cogency of individual factors would depend on the issues in the case.

(3) Prejudice [125] The potential for prejudice is significantly reduced, but not eliminated, in a cross-count similar fact application in a judge-alone trial (R. B(RT,) 2009 ONCA 177], at para 27; andR. v. J.H. 2018 ONCA 245, paras. 23 – 24).

(4) Balancing [126] I will assess and balance the prejudice and probative value of the specific evidence when it arises. Specific Allegations Counts 4 and 14 – Theft and Possession of Ford Mustang from Greenwood Auto [127] The ‘Greenwood Mustang’ was a 2018 Ford Mustang GT, 5.0L, 8 cylinder, black exterior with VIN …0403 (Ex. 13). It was purchased by Greenwood Auto, a dealership, onFebruary 12, 2019, from Adesa Auction (testimony of Wayne Fowler, Ex.13 & 14). The ‘cutsheet’ from Adesa showed that the vehicle had two keys, however, the vehicle was deliveredwith only one (testimony of Wayne Fowler, Ex. 13).

The Bill of Sale for the vehicle shows Greenwood paid $36, 355 plus HST for it (Ex. 14). The dealership received the vehicle, but itwasn’t on the premises on February 21, 2019, when they went to look for it. It was found on May 7, 2019, on the property of Kevin Green at 367 Gatehouse Run (Ex.4, photos 58, 159,160, 161, and 163; testimony of John MacKinnon). [128] In Mr. Fredericks’ statement (Ex. 91 & 92), Mr.

Fredericks provides the following information that is potentially relevant to this vehicle: - admitted being involved in a theft of a Mustang from “Greenfield”, which he said was in “the Valley” (p. 27); - “Nick” and “Seth” had taken him there (p. 27); - he was given a key, dropped off, jumped in it and left (pp. 27 & 29); - he thought the location was possibly a dealership (p.33); - he could not recall the colour of the Mustang, but thought it was maybe black or gray (p. 33); and, - he recalled that he dropped it off on the side of the road somewhere “up by Kingswood” and “they” took it to a house (p. 34). [129] Mr.

Fredericks described the location as “Greenfield”, not “Greenwood”. The only mention of ‘Greenwood’ came from D/Cst. Joseph when he returned to the subject, asking “…this Mustang, down in Greenwood, do you remember anything about it?” (Ex. 91 & 92, p. 33). Mr. Fredericks then provided further information. I accept that the location described byMr. Fredericks was Greenwood, not Greenfield. He said it was in “the Valley”. I can take judicial notice of the fact that the Annapolis Valley in Nova Scotia is often referred to as ‘theValley’ and that Greenwood is in the Annapolis Valley.

There is also a ‘Greenfield’ in Nova Scotia, but it is not in the Annapolis Valley. D/Cst. Joseph’s ‘correction’ in the follow-upquestion was leading but not about any of the details that Mr. Fredericks provided after the question. As such, it had no negative impact on that testimony. My review of the messagesexchanged between Mr. Fredericks and Mr. Barker, which I will address in a moment, supports the conclusion that Mr. Fredericks meant Greenwood. [130] In his statement, Mr. Fredericks did not provide a last name for ‘Nick’. However, I am satisfied he was speaking about Nicholas Barker. When arrested, Mr.

Fredericks had acellular telephone with him. While he was with D/Cst. Joseph, someone identified in his phone contacts as ‘Nickloas’ called him repeatedly (Call Logs for Mr. Fredericks’ phone, Ex. 77,6-1). In his statement, Mr. Fredericks confirmed that this was the ‘Nick’ he was referring to in the interview (Ex. 92, pp. 13 – 14). The phone number associated with that name is Mr.Barker’s phone number. [131] The Crown submits Mr. Fredericks’ statement is corroborated by messages and images on Mr. Fredericks’ phone, messages on Mr. Johnson’s phone and objective evidence. [132] The extraction from Mr.

Fredericks’ phone includes instant messages between him and Mr. Barker on February 15, 2019 (Ex. 77, 6-1):

Date/Time Barker Fredericks Feb. 15 12:11 a.m. Yo Journey? 12:19 a.m. Yeah 12:19 a.m. Bout hour and a half Away 12:19 a.m. Yeah I’m down just gotta drop groceries off 12:19 a.m. Ok I gotta go pick up a key. I’ll be a while anyway 12:21 a.m. Nice one let me know when good to go 1:36 a.m. It’s gunna be to late probly 1:37 a.m. If parts will still be there tmr can start early 1:38 a.m. I’m just gettin back now. We can go right now. Upt to u 1:40 a.m. Will it be good tmr 1:41 a.m. I just gotta be in eastern passage for 930 in the morn 1:43 a.m. I don’t kno 1:44 a.m.

It’s greenwood How far is that? 3 We’d get there by 4 1:45 a.m. It past Middleton 1:46 a.m. It’s hour an a half 1:47 a.m. 130 – 300 Yes Should I dress warm 1:48 a.m. Should be pretty easy. But it’s up to u. if u gotta get up early n shit I have key. Hop in n go 4:39 p.m. Can you get out early 4:45 p.m. Gonna try for like 8 - 9 9:42 p.m. What up 9:42 p.m. Just gotta check on something then I can turn that engine light out for u 9:43 p.m. Bout30-60 mins? Sounds good I’m just eatin supper so that’s good 11:02 p.m. Yo 11:03 p.m. Just gotta shit then I’ll head out 11:10 p.m. Ok meet me in Sackville Coo 11:37 p.m.

On way where abouts 11:43 p.m. Behind old ponderosa Bedford 11:51 p.m. Yes. Building behind Doolys 11:53 p.m. U close [ 133 ] Also found on Mr. Fredericks’ device were photographs created on February 16, 2019, at 2:03 a.m., 2:05 a.m. and 2:58 a.m. (Ex. 77, 6-1, Image #1, #2, and #5). These photographs are of the dash and/or instrument cluster of a vehicle. Images #1 and #2 appear to be taken by the driver of a vehicle, showing the steering wheel and part of the instrument panel. Mr.

MacDougal could not say whether these photographs were taken by this device but testified that they were taken by the same type of device (an iPhone 8). He testified that the images created at 2:03 a.m. and 2:05 a.m. (#1 & #2) were either sent or received by this device, within a second of their creation, as an attachment to an SMS (simple messaging system) message. Image #5 is a closeup of an instrument cluster, created at 2:58 a.m.. There is no evidence that this image was sent or received.

Photographs #1 and #5 show the speedometer of the vehicle registering 107 kph and 114 kph, respectively, so appear to have been taken while driving. [ 134 ] Mr. Fowler testified that the dash, instrument cluster and panel depicted in these photos are of a Ford Mustang that was “identically equipped” to the one taken from his lot (Ex. 16, 17, 18 and 77, 6-1, #1, #2 & #5). One of the photographs shows a paper floor mat which Mr. Fowler testified was the same kind as used in his dealership (Ex. 17). The mileage for the Mustang owned by Greenwood Auto, at the time of purchase, was 25,900 km (Ex. 13). Mr.

Fowler testified that the vehicle would have been driven from Adesa to his location after purchase so the mileage of his vehicle when it was taken would have been higher. The odometer in the photographs of the Mustang on Mr. Frederick’s device shows 26,157.2 km (Ex. 18, Ex. 77 , 6-1). [ 135 ] On February 16, 2019, the following messages were exchanged between Mr. Fredericks and Mr. Barker (Ex. 77, 6-1): Time Barker’s phone Fredericks’ phone 2:06 a.m. Hit 200 there 2:09 a.m. Faaaaack crazy 3:08 p.m. Just gonna grab minvan Coo [ 136 ] Mr. Johnson pleaded guilty to being a party to the theft of this vehicle.

In his testimony, he denied being involved. However, I accept that his guilty plea corroborates Mr. Fredericks’ statement that Mr. Johnson was involved. [ 137 ] Messages on Mr. Johnson’s phone (Ex. 77, 6-3) show communication between him and Mr. Barker (identified as “Nick” in the contacts) on February 14, 2019. In the following messages I have adjusted the timestamp to local time by subtracting four hours: Date/Time Barker Johnson Feb. 14 , 7:23 p.m. Those things came 7:34 p.m. Nice! 8: 25 p.m. What’s the plan 8:27 p.m. Prob be an hour 8:28 p.m. Ok cool should I get dropped off or wait for you 8:28 p.m.

Just get dropped at 1030 8:29 p.m. Ok cool 10:34 p.m. Here [ 138 ] The Crown submits that these messages confirm that Mr. Johnson and Mr. Barker met the night of the theft. I don’t agree. These messages confirm that they were together on the evening of February 14 th . However, the messages and images from Mr. Fredericks’ phone suggest that he met Mr. Barker around midnight on the 15 th and that the theft occurred in the

early morning hours of the 16 th . [ 139 ] The only potentially relevant messages between Mr. Johnson and Mr. Barker overnight on February 15/16, 2019, adjusted for UTC-4, are as follows (Ex. 77, 6-3): Date/Time Barker Johnson Feb. 15 , 12:47 p.m. U ready? Ya 6:29 p.m. Nice. We will get the plug soon as Alesha get home 6:30 p.m. Ok cool Jole was just here now he’s over banging Monica 9:00 p.m. What about the wheels [ 140 ] These messages are not inconsistent with Mr. Fredericks’ statement but also do not provide clear corroboration of it. [ 141 ] Aspects of Mr.

Fredericks’ statement are corroborated by other evidence. The cutsheet for the Mustang showed that it had two keys, however, when Mr. Fowler received it, it only had one (Ex. 13). This suggests a key went missing between when the vehicle was listed by Adesa and when delivered. This is consistent with Mr. Fredericks statement and the messages which establish that he was provided with a key for the Mustang. Further, the Greenwood Mustang was found on Kevin Green’s property which corroborates Mr.

Fredricks’ statement that he left the Mustang on the side of the road in ‘Kingswood’ and understood ‘they’ took it to a house. Mr. Green’s address is Hammonds Plains, but Cst. Jonathan Beer and D/Cst. Joseph described this location as in or near ‘Kingswood’. [ 142 ] This corroboration supports the reliability and credibility of Mr. Fredericks’ statement concerning this vehicle. The real issue though is whether the assertion in his statement that Nick was involved and drove him to Greenwood is credible and reliable and capable, in combination with other evidence, of proving beyond a reasonable doubt that Mr.

Barker was a party to that theft. [ 143 ] There is some evidence that is capable of corroborating this specific part of his statement. As I said, I am persuaded that Mr. Barker was the person communicating with Mr. Fredericks and Mr. Johnson. The messages suggest that Mr. Barker had the key, knew about the vehicle, asked Mr. Fredricks to be involved, met with Mr. Fredricks and, I infer, drove him to the location of the vehicle. [ 144 ] Further potential corroboration that Mr. Barker was involved, can be found in the message sent at 3:08 a.m. on the 16 th from Mr.

Barker saying “gonna grab minivan”, suggesting that the user had access to a minivan. Surveillance over the four-month investigation consistently reported that Mr. Barker drove a minivan. However, there is also evidence that Mr. Johnson drove Mr. Barker’s van. [ 145 ] Finally, Mr. Green’s evidence is capable of corroborating Mr. Fredericks’ statement that Nick was involved in the theft and providing evidence that Mr. Barker was in constructive or joint possession of the stolen Mustang. [ 146 ] Mr.

Green identified the Greenwood Mustang as one of the vehicles that he was paid to keep on his property (Ex. 4, p. 158). He testified that he believed that it was Nick Barker who paid him to keep that vehicle on his property but couldn’t recall how much. He recalled being paid a couple of hundred dollars in total but could not remember how many cars that was for. He testified that a lot of people asked to put cars on his property, he did not see that vehicle being dropped off, could not say when it arrived on his property and never saw Mr. Barker driving it or working on it. [ 147 ] The Defence notes that Mr.

Green’s evidence about the financial arrangement with Mr. Barker was vague and that his attribution of ownership or ‘control’ of any of the vehicles to Mr. Barker was not clearly based on personal knowledge. Further, the Defence submits that even assuming that Mr. Fredericks was involved in stealing the vehicle, he was familiar with Mr. Green’s services so could have taken the vehicle there without any input or involvement from Mr. Barker. The evidence does not support the submission that Mr. Fredericks was independently familiar with Mr. Green or his property. In his testimony, he denied knowing Mr. Green.

In his statement, he mentioned dropping the vehicle in Kingswood but does not mention Mr. Green or say he’d been to the property and Mr. Green did not testify that Mr. Fredericks was ever there. However, Mr. Johnson was familiar with Mr. Green’s property. Mr. Green and Mr. Johnson both acknowledged that he'd been there. So, I accept that if I find that Mr. Fredericks and Mr. Johnson were involved in the theft together, they could have known they could take the vehicle to Mr. Green’s property without any involvement of Mr.

Barker. [ 148 ] The Defence also notes that there is no objective evidence, such as fingerprints, that Mr. Barker ever had actual possession of the vehicle. [ 149 ] The Crown does not seek to rely on ‘recent possession’ to support conviction for theft of this vehicle. Count 5 – Theft, Dodge Caravan #1, Enterprise Rent-A-Car [ 150 ] On May 7, 2019, a red Dodge Caravan was found at 387 Kearney Lake Road. [ 151 ] The vehicle was examined by Mr. Mackinnon.

He testified that he observed things consistent with it having been ‘re-vinned’: - the Public VIN stickers with VIN …9052 showed signs of tampering and, in his opinion, were not original; - that VIN coded for a 2012 Dodge Caravan; and, - a hidden, secondary VIN …9580 was found engraved in steel, it did not match the public VIN and coded for a 2018 Dodge Caravan. [ 152 ] In his opinion, the true identity of the vehicle was a 2018 Dodge Caravan associated with VIN … 9580. [ 153 ] The vehicle bearing VIN …9580 was stolen from Enterprise Rent-A-Car overnight on February 20-21, 2019.

Brianne Hampson, the branch manager of the Enterprise location on Windmill Road, testified she received this van back from a customer at 4:30pm on February 20, 2019. Enterprise had both keys for the van.

The next morning at 7:30 a.m. she returned to the branch and noticed that the van was gone, at which time she notified the risk manager and the police. [ 154 ] Scot Leblanc, risk manager for Enterprise, testified that this vehicle had belonged to Enterprise, was missing from their inventory, and was valued at approximately $25,000 to $30,000 (Ex. 89, Vehicle Permit). [ 155 ] The Crown argues the theft of this vehicle is connected to the theft alleged in Court 6 and that Mr. Barker’s involvement in both is supported by messages found on Mr. Frederick’s phone.

Count 6 – Theft of Dodge Caravan #2, Enterprise Rent-A-Car [ 156 ] Overnight on February 20/21, 2019, a 2018 Dodge Grand Caravan (VIN … 2783) was stolen from Enterprise on Kempt Road in Halifax. Dan Comeau, the branch manager for that location, testified that this van was stolen from that location between 6:30pm on February 20 and 6:30am on February 21, 2019. [ 157 ] Mr. Leblanc testified that this vehicle had belonged to Enterprise, was missing from their inventory, and was valued at approximately $25,000 to $30,000.

He also provided a Quebec Certification for the vehicle (Ex. 85). [ 158 ] This vehicle was not found. However, a copy of the registration for the vehicle (VIN … 2783) was found on a shelf in the shop at 327 Kearney Lake Road on May 7, 2019 (Ex. 12, p. 119; Ex. 85 [ 159 ] Messages on Mr. Fredericks phone show communication between him and Mr. Barker between February 20 and 21, 2019 (Ex. 77, 6-1): Date/Time Barker Fredericks Feb. 20 11:43 a.m. U want to fix it tonight? It’s not the mustang it’s a couple other things 11:45 a.m. Yeah I’m down 100 percent 7:38 p.m. When you thinkin you wanna fix that 8:18 p.m.

Sooner the better When cause I’m good to go

8:51 p.m. Now 8:54 p.m. Shutting an on my wavy 9:14 p.m. Meet me Burger King kept rd 9:22 p.m. Coo 9:38 p.m.. I’m here 9:43 p.m. Come to the Tim Horton’s across the street. Better parking 9:43 p.m. Park in front of his little garage door Feb. 21 12:40 a.m. Coo [ 160 ] The Crown submits that references in this and other messages to things like fixing vehicles and obtaining parts are coded language for vehicles and thefts. The Defence submits that when the Crown seeks to rely on coded language, it should have an expert. I don’t disagree that

interpretation of coded language can be supported by an expert ( R. v. Cater, 2012 NSPC 18 ; R. v. Shields, 2014 NSPC 21 ; R. v. Opang, 2021 ONCA 352 ) . However, I am not aware of any case that says it is necessary. In Cater , Judge Derrick (as she then was) had the benefit of an expert, however, she also noted that “ logic, common sense and context assisted me in my

interpretation of the intercepts and this is all that was necessary to understand some of the conversations.” (para. 95). [ 161 ] In my view, the absence of an expert to assist me in interpreting and drawing inferences does not preclude me from using “logic, common sense and context” to do the same. As with any piece of circumstantial evidence, I have to be careful to draw only rational or reasonable inferences and when considering that evidence in the context of all the evidence, have to consider all avail

[…]