R. v. Wingfield, 2013 NSSC 73

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Wingfield, 2013 NSSC 73 Date: 20130227 Docket: CRH 352375 Registry: Halifax Between: Her Majesty the Queen v. Kenneth Bertram Wingfield Judge: The Honourable Justice Arthur W. D. Pickup Heard: January 7, 8, 9, 10, 2013, in Halifax, Nova Scotia Written Decision: February 27, 2013 Counsel: Alex Keaveny, for the Crown Greg MacIsaac, for the defendant By the Court : Orally The Robbery [ 1 ] On March 7, 2010, two masked men robbed Avery ’ s Farm Market at 862 Highway #7, Cole Harbour, Halifax, Nova Scotia.

At the time there were two employees working, Supervisor Leeanna Kearsley and 16 year old cashier Emily Bradt. [ 2 ] Both employees testified. While neither could identify the robbers they were able to provide evidence as to the circumstances

of the robbery and a general description of the robbers. [ 3 ] Ms. Kearsley was working a 2-10 p.m. shift. At 8 p.m. she began her closing procedure by sweeping the floor, including the floor under the mats and displays. Just before closing, she was behind the cash counter with Ms. Bradt, when the door opened and two individuals came in. Both were males with hoods up and black masks on their faces. [ 4 ] Ms. Kearsley described one robber as taller and wearing a grey hoodie and black gloves. He had a knife.

She said he had scraggly hair, which she described as being like horsehair and like a wig that has been used too many times. She testified that he was approximately six feet tall and possibly wearing jeans. She described the second individual as shorter and dressed all in black. She estimated he was approximately 5'6" to 5'8" and did not notice any hair, but did notice that he had black gloves on. [ 5 ] According to Ms. Kearsley, the taller robber, with the grey hoodie had a knife. She testified that he said “ you ’ re not going to have a good night ” or words to like effect.

She opened the till and one of the robbers took the money out. Both of them took cigarettes from behind the counter and put them in a black garbage bag that she assumed the robbers brought with them. [ 6 ] Ms. Kearsley said she and Ms. Bradt were told to go to the back room. The shorter robber followed directly behind them, shouting commands such as “ don ’ t push any buttons ” and “ open the safe - be calm ” or words to like effect. She testified that she was told to open the safe, but it took her some time to get it open.

The taller robber in the grey hoodie, then came into the back, and both robbers took out all of the tills and the coin float from the safe. They also took a basket of lottery tickets. They dumped Emily Bradt ’ s purse and its contents on the floor. When they were finished they left through the back door. Ms. Kearsley said she shut and locked the back door after she made sure they were gone. She gave her cell phone to Emily Bradt to call 911, locked the front door and waited. Her boyfriend and Emily Bradt ’ s mother showed up, and the police arrived “ two or three seconds later ” . [ 7 ] Ms.

Kearsley testified that she did not touch a black glove which was located at the front of the store next to a garbage can, or anything else in the premises after the robbery. She also said that she had been suspicious about a grey eclipse in the parking lot several days earlier and took the license plate down and gave it to the police. She said that the passenger from this vehicle came into the store a couple days before the robbery. She identified the accused as this person. [ 8 ] On cross-examination Ms. Kearsley agreed that there were no distinguishing features on the grey hoodie worn by the taller robber.

She did not see any tattoos on this individual. On direct examination she testified that the robber had his hood up, the hoodie zipped and a bandanna around his face and there was no part of his person visible. She did not know whether the black gloves worn by the robbers were fabric or rubber. She first saw the rubber glove after the robbery. She agreed that it was possible that the glove could have fallen out of the garbage can if the till, which was in the garbage, had been thrown in. [ 9 ] Emily Bradt was 16 in March of 2010.

She confirmed that Leeanna Kearsley swept the floor and that she mopped it around 9 p.m. She was shown Exhibit 4 (photo 13) and testified that the glove appearing in that photograph was not there when she mopped the floor around 9 p.m. [ 10 ] Ms. Bradt confirmed that the robbery occurred around 9:55 p.m. on March 7, 2010, and that there were two robbers. She testified that the shorter of the two robbers had short hair or may have been bald and was wearing a hoodie, but she was not sure of the colour. He had a bandanna on his face. She testified that he may or may not have been wearing something on his hands.

She described the other robber as taller, with scraggly black or brown hair to his chin. He was also wearing a bandanna on his face. She could not see his neck. The taller robber had a knife. She gave similar testimony to that of Ms. Kearsley, that they were required to take the robbers to the safe in the back room, and that Ms. Kearsley needed several tries to open the safe. She confirmed that the two robbers removed the contents of the safe, put them in a garbage bag and left through the back door. She testified that she did not touch anything after the robbery. [ 11 ] On cross-examination Ms.

Bradt said she was not sure if the robbers were wearing gloves and that she was scared and “ not really paying attention to anything else ” , or words to like effect. [ 12 ] Store Manager, Louise Kearsley, also testified. She is the mother of Leeanna Kearsley. She said she received a call around 10

p.m. on March 7, 2010, informing her that the store had been robbed. She arrived there within seven minutes. The RCMP were there when she arrived, as well as her daughter Leeanna Kearsley and Emily Bradt. She described both girls as being upset. When she first entered the store they were standing close to the front by a green produce stand. She did not recall seeing the glove in front of the cash at the front of the store. She testified that she did not touch anything at the scene. [ 13 ] Louise Kearsley testified that 150 packages of cigarettes or more were taken in the robbery.

She also said a substantial amount of money was taken, but could not give an exact figure. The Police Investigation [ 14 ] Detective Cst. Peter Gallant, a member of the Halifax Regional Police K9 Unit, was first on scene, closely followed by Cst. Leslie Goode. [ 15 ] Det. Cst. Gallant testified that he arrived at Avery ’ s at 10:06 p.m. and entered the store to get information from the victims. He learned that the robbers went out the back door. As a result he searched the rear of the store with his dog. Cst. Trevor Bruin, an RCMP officer, accompanied Det. Cst. Gallant. Det. Cst.

Gallant testified that he did not touch anything or pick anything up inside the store, but said he did locate rolled and loose coin and several packs of unopened cigarettes approximately 20 metres from the back of the store. He continued his search toward Broom Road and found two more unopened packs of cigarettes by a fire hydrant. [ 16 ] Cst. Leslie Goode was the second police officer on scene. She drove into the store parking lot just behind Det. Cst. Gallant. Upon arrival she went into the store and found two employees.

She noticed a mess at the front of the store and upon being taken into the back room noticed that there were several items strewn over the floor. She was advised that a Forensic Officer was on his way. She took Ms. Kearsley and Ms. Bradt outside to wait. She testified that there was no one else in the store at the time, nor did anyone else go in. She did not touch or move anything in the store, nor did any of the employees. She was given four unopened packages of cigarettes by Cst. Trevor Bruin which she gave to Cst. Martin McKenna. The coin found on the ground by Det. Cst. Gallant and Cst.

Bruin was given to her. She testified that it totalled $132.82, which she turned over to her office to be returned to the store. [ 17 ] Cst. Trevor Bruin is an RCMP officer who was posted to Cole Harbour in March 2010. He arrived on scene at 10:08 p.m. He accompanied Det. Cst. Gallant and his dog in a search of the rear of the store. He testified that they located coins and cigarettes which he seized and turned over to Cst. Goode. He made no note of seeing the glove in the store. [ 18 ] Cpl.

Martin McKenna, an RCMP Officer with the Forensic Identification Unit, testified that he was contacted at approximately 10:30 p.m. on March 7, 2010, while off-duty, to go to Avery ’ s Farm Market in Cole Harbour. He arrived at 11:50 p.m. and spoke with Cst. Goode and the two employees. He was informed two persons had robbed the store. He did a walk through alone, then with Ms. Bradt and a third time when he took pictures. He left the scene at 1:45 a.m. transported his exhibits to his office and put them in a secure locker. [ 19 ] Cpl.

Mckenna located a glove at the scene, which he cut in order to do a test for fingerprints. Upon finding no fingerprints he swabbed the gloves for DNA and delivered it and other exhibits to the property custodian at the Lower Sackville RCMP station. [ 20 ] Det. Cst. Pamela Winters with Halifax Regional Police was assigned as the lead investigator on March 8, 2010. She stated that a motor vehicle (a Mitsubishi Eclipse) was seized after a high speed chase. The vehicle was placed in the Halifax Regional Police garage on Gottingen Street. Det. Cst. Winters searched the vehicle on March 12, 2010.

A number of items which she seized from the vehicle were entered into evidence: Exhibit #9 - two empty Players cigarette packages, also a pack of Canadian Classic with 15 cigarettes in it; Exhibit #10 - Jordan xxl Hoodie and Joe hoodie;

Exhibit#11 - Avirex xxl grey hoodie (with wing span on it); Exhibit#12 - left hand black glove (Under armour); Exhibit#13 - bag of black latex gloves which were found in a tattoo kit in the car. [21] On April 10, 2010, Det. Cst. Winters sent a request for DNA samples on the glove to the lab. She attended RCMP in Sackvilleand obtained swabs taken from the glove, placed them in a shipping package and sent these to the lab. She also took an audio statementfrom Lindsay Harrison, who lived with the accused at the time of the robbery, on February 9, 2011. [22] The accused, Mr.

Wingfield, was charged on July 20, 2011, with committing the robbery at Avery’s on March 7, 2010, andwith having his face masked contrary to s. 351(2) of the Criminal Code. He was also charged with two counts of breach of hisrecognizance dated November 26, 2009. Weighing evidence [23] R. v. W.(D.) (SCC), [1991] 1 S.C.R. 742, is relevant because the accused has testified. The principal arisingfrom W.(D.), supra., is commonly summarized as follows: 1. First, if I believe the evidence of Mr. Wingfield I must acquit. 2. Secondly, if I do not believe the testimony of Mr.

Wingfield but I am left in reasonable doubt by it, I must acquit. 3. Thirdly, even if I am not left in doubt by the evidence of Mr. Wingfield, I must ask myself whether, on the basis of the evidence whichI do accept, I am convinced beyond a reasonable doubt by that evidence of guilt of the accused. [24] Mr. Wingfield’s defence at the trial was a complete denial supported by an alibi. [25] I do not find Mr. Wingfield’s testimony credible and as a result I do not believe his evidence, nor am I left in reasonable doubt. There are several reasons why I have reached this conclusion. [26] The essence of Mr.

Wingfield’s testimony was that he denied robbing Avery’s Farm Market on March 7, 2010, and providedalibi evidence that he was staying at his uncle’s house just before midnight on March 5, 2010, until the morning of March 8, 2010. Hisuncle, by marriage, is Christian Collins. [27] Mr. Wingfield was evasive and uncooperative in his evidence. His answers were often in question form. For example, incross-examination, Mr. Wingfield was questioned as to why he did not contact Mr. Collins at the time he was charged with robbingAvery’s because Mr. Collins was his alibi.

The following exchange took place: Crown: You don’t call Mr. Collins from the police station say come down here I was at your place you can tell the police that. Wingfield: No why would I do that?

Crown: What, why would you do that because he is your alibi right? Wingfield: I had to go back and do a year and a half anyway so she wants to think she wants to think can charge me she can figure it out later that’s her job. I don’t have to tell you guys nothing when I am arrested. Crown: I know I am not asking what you told the police, I am asking why you didn’t call Mr. Collins. Wingfield: Why would I. [ 28 ] Mr. Wingfield often gave unresponsive answers of this nature. [ 29 ] Much of Mr. Wingfield ’ s testimony was not credible or believable. Mr. Collins was providing alibi evidence for Mr.

Wingfield which, if believed, would be a complete defence to the charges. Mr. Wingfield was arrested on March 12, 2010, yet he did not contact Mr. Collins from the jail after his arrest. It is simply not credible that Mr. Wingfield would not provide his alibi to the police at that time, given that it would be a complete defence to the charges. [ 30 ] I have set out earlier Mr. Wingfield ’ s response when asked why he did not tell the police about Mr. Collins and his alibi upon arrest. Mr. Wingfield was visited by Mr. Collins and his wife (Mr. Wingfield ’ s aunt) about three months later while he was incarcerated.

He did not discuss the charges with Mr. Collins or his aunt, nor did he raise the fact that he was staying at Mr. Collins residence at the time of the offence. His reason given in cross-examination is that he did not want to raise it in front of his aunt. Again, this is not credible. If Mr. Wingfield was at Mr. and Mrs. Collins ’ home, as he alleges during March 5-8, 2010, one would think he would raise this issue, especially in front of his aunt, to indicate that he did not commit the robbery on March 7, 2010. It stretches credibility to accept that Mr.

Wingfield would not have at any time discussed his alibi with Mr. Collins. It was Mr. Collins ’ testimony that it was not until he attended a bail review hearing in November 2011 that he learned of the date of the offence. [ 31 ] In other words, Mr. Wingfield ’ s evidence is that for a period of 20 months from his arrest in March 2010, until his bail hearing in November 2011, he never discussed with Mr. Collins the date of the robbery or the fact that Mr. Collins would provide his alibi. [ 32 ] A further troubling aspect of Mr.

Wingfield ’ s evidence is his testimony that he discussed Crown disclosure with Lindsay Harrison. He stated that he repeatedly discussed this evidence with her, on the phone and face-to-face. And yet, he never mentioned the alibi evidence. The following exchange took place on cross-examination: Crown: So just to be clear, you discussed the disclosure evidence with Lindsay repeatedly, on the phone and in visits your showing her disclosure, she’s not your alibi. Wingfield: No. Crown: But you never mention even the date of the robbery to Mr.

Collins, you certainly don’t mention the fact that he is your alibi despite to speaking with him, or at least having contact with him 10 times prior to him coming to testify. Wingfield: No. [ 33 ] In March 2010 Mr. Wingfield, by his own admission, was a heavy drug user and, in his own words, “ out of control ” . This certainly calls into question his recollection of events during that month. I find Mr. Wingfield ’ s evidence not credible and as a result do not believe it, nor am I left with a reasonable doubt by it. That being the case I must ask myself, on the basis of the evidence I do accept,

whether I am convinced beyond a reasonable doubt on the whole of the evidence that Mr. Wingfield committed the robbery at Avery’son March 7, 2010, as well as the other offences with which he is charged. This will necessarily involve a review of the alibi evidencetendered, as well as the circumstantial evidence relied on by the Crown. [34] The accused’s uncle, Mr. Collins, testified that Mr. Wingfield came to his house shortly before midnight on March 5, 2010, andstayed until the morning of Monday, March 8. He gave two main reasons for remembering specifically that it was the weekend ofMarch 5, 2010.

The first reason is that he indicated that he had seen Mr. Wingfield earlier in the week at Dartmouth General Hospital,where Mr. Wingfield was receiving treatment for sores caused by drug injection. Secondly, he indicated that he was having somemarital difficulties with his wife and she left suddenly on March 5, 2010, for a week at their cottage. He said Mr. Wingfield came to hishouse between 11:30 and 11:45 p.m. He testified that Mr. Wingfield slept and watched movies on Saturday and Sunday, March 6 and 7,2010, and left on Monday, March 8. Mr. Collins testified that Mr.

Wingfield never left the house that weekend, nor did anyone visitthem or call. [35] Mr. Collins gave an audio/video statement to police on January 3, 2012. He told Det. Cst. Winters, who conducted theinterview, that one of the reasons why he remembered March 5, 2010, is that he saw Mr. Wingfield at the hospital earlier that week. Hedid mention in his video statement the issue with his wife, but at trial he emphasized that the main reason that he remembered wasbecause of the marital issues. [36] The Crown submits that Mr. Collins is wrong when he suggests that Mr.

Wingfield would have been with him between March5 to 8, 2010. The Crown points to Exhibit 7, a record from Capital Health showing that Mr. Wingfield attended Dartmouth GeneralHospital on February 16 and 17, 2010. As a result, the Crown suggests that if Mr. Wingfield stayed with Mr. Collins at all, it wouldhave been the weekend following February 16 and 17, which would have been February 19 to 21, 2010. [37] In R. v. J.B.J, 2011 NSCA 16, [2011] N.S.J. No. 66, at paras. 40-44, Farrar J. A. summarized the important aspects of thedefence of alibi, stating that (and I paraphrase): 1.

An accused does not need to prove his or her alibi - it need only raise reasonable doubt that he or she committed the crime; 2. An alibi defence does not need to be corroborated by independent evidence to raise a defence; 3. Alibi evidence will frequently be given by relatives and friends of the accused; and 4. Alibi evidence by its very nature is self-serving. [38] Further at para. 45 of R. v. J.B.J. supra., Farrar J. A. set out advice as to how alibi evidence should be considered by a trier offact: 45. In R. v. Parrington (1985), (ON CA), 20 C.C.C. (3d) 184 (Ont.

C.A.), Cory, J.A. (as he then was) offeredhelpful advice as to how alibi evidence should be considered by a trier of fact: 1. if they believe the alibi testimony given, then they must acquit; 2. if they did not believe such testimony, but were left in reasonable doubt by it, again they must acquit the accused; 3. even if they were not left in reasonable doubt by his testimony, then, on the basis of all the evidence, they must determine whetherthey are convinced beyond reasonable doubt of the guilt of the accused (para.7).

[ 39 ] I am concerned about the alibi evidence of Mr. Collins for several reasons. [ 40 ] In his video statement given on January 3, 2013, to Det. Cst. Winters, when asked whether it was possible that he could have the wrong date, Mr. Collins responded as follows: Winters: That's true, I guess another thing is, is it possible you could have the wrong date? Collins: Very unlikely. Winters: Is it possible you could have the wrong date?

Collins: The only reason I know that it is that month and I know it was the Friday is because I seen him during the week at the hospital. ... [ 41 ] Later he does acknowledge that he also remembers the day because his wife left for a week at their cottage. [ 42 ] Given Mr. Collins ’ statement to Det. Cst. Winters, it is quite possible that he was confused as to the date of the weekend that Mr. Wingfield stayed with him. [ 43 ] After the weekend of March 5 to 8, 2010, Mr. Collins testified he lost track of Mr. Wingfield. Three months later he and his wife visited Mr. Wingfield at the Correctional Centre.

He verified that Mr. Wingfield did not talk to him about the robbery during that visit. The first time that he became aware of the date of the robbery was when he was called to testify on Mr. Wingfield ’ s behalf as a surety at his bail hearing in November 2011. At the bail hearing, despite putting together the date of the offence as being the time Mr. Wingfield was at his home, Mr. Collins did not testify that Mr. Wingfield was with him on that date. It stretches credibility that Mr.

Collins would hear the details of the robbery, including the date, yet say nothing at the bail hearing. [ 44 ] It is made more so surprising because Mr. Collins testified that “ I fight for anything that is wrong. I adopted a son who was challenged and that ’ s what I do ” , or words to like effect. He testified: “ when there is something wrong, I fix it. ” [ 45 ] Given this self described desire for justice, it is most surprising that Mr. Collins would not have alerted the court that Mr. Wingfield was with him the date of the robbery. The first time he told authorities of Mr.

Wingfield ’ s alibi was on December 10, 2012, at the request of Mr. Wingfield ’ s present defence counsel. He gave a sworn statement to police on January 3, 2013. When confronted with the date of Mr. Wingfield ’ s visits to Dartmouth General, Mr. Collins said at trial that he primarily remembered the date of March 5th because it was when his wife first left him. He did acknowledge that his wife went several times to their cottage on short notice. He also acknowledged that the events he was recalling happened 20 months earlier and that he had made no notes or any other efforts to verify the date.

The Crown submits that the reason Mr. Collins tied the date to his wife leaving was because he was caught flat-footed with the evidence of the dates that Mr. Wingfield was at the Dartmouth General, suggesting that the weekend that Mr. Wingfield was with him was actually in February. [ 46 ] Having considered the evidence of Mr. Wingfield and Mr. Collins, I do not believe the alibi testimony given, nor am I left in a reasonable doubt by it.

As a result, the alibi evidence will be considered with the other circumstantial evidence to determine whether I am convinced beyond a reasonable doubt of the guilt of the accused. Circumstantial Evidence

[ 47 ] There is no direct evidence of the identity of the persons who robbed Avery ’ s Farm Market on March 7, 2010. The Crown theory is that Mr. Wingfield was the taller of the two robbers described by the employees. The Crown relies on the circumstantial evidence of Lindsay Harrison, the DNA evidence and various items seized from the Mitsubishi Eclipse. The evidence of Lindsay Harrison [ 48 ] Lindsay Harrison was living with Mr. Wingfield in March 2010 at 14 Trinah Court in Cole Harbour, Nova Scotia. They had lived together since June 2007.

She described her residence as being “ twenty seconds from Avery ’ s by car ” . Ms. Harrison owned two cars in March 2010, a 2008 Honda Civic and a 2007 Mitsubishi Eclipse. [ 49 ] Ms. Harrison testified that she was at home on March 7, 2010, watching television. Mr. Wingfield came back with two men around 9:15p.m. She had seen the two men before, but did not know who they were. Mr. Wingfield was driving the Mitsubishi Eclipse. She testified that Mr. Wingfield changed into jeans, a hoodie (grey zip up) with black wing spans on it, a brown wig with his hoodie up and a bandanna on his neck.

She also said he was wearing black latex gloves that she purchased for him for tattooing. One of the other men was dressed all in black and he also had a bandanna and gloves on. There was a third older gentleman who drove the car. All three men left in the Honda Civic owned by Ms. Harrison, around 9:45 p.m. Ms. Harrison testified they took black garbage bags from under the sink. Mr. Wingfield also had a chef ’ s knife which he took from the kitchen. Ms. Harrison testified that she still has that knife. She testified that Mr. Wingfield “ told me he was going to rob Avery ’ s ” . [ 50 ] According to Ms.

Harrison, Mr. Wingfield and the other two men returned at 10:10 or 10:15p.m. She saw the Honda drive quickly into the driveway with no headlights on. They were still wearing the same clothes. They had garbage bags full of cigarettes and money and dumped the cigarettes on the kitchen floor. She estimated that there were between 100 to 200 packages of cigarettes. [ 51 ] Ms. Harrison said Mr. Wingfield and the other men obtained new garbage bags and re-bagged the cigarettes.

She also testified that they had rolled coins, loonies and toonies, and stacks of paper money secured with rubber bands with pieces of paper on them. She said Mr. Wingfield took this money into the bedroom while the other two men re-bagged the cigarettes. She testified that Mr. Wingfield tore up the small papers which were under the rubber bands securing the money and flushed them down the toilet. He also dumped the contents of a purse on the bed. She noticed a pair of socks, a library card, chapstick and facial powder.

He showed her an identification card from the purse and asked her if she recognized the person shown on the identification card. Ms. Harrison recognized the person as an employee of Avery ’ s. He put the wig and purse in a white hamper in the closet and later disposed of these items. He put the clothes he was wearing in a garbage bag containing cigarettes. [ 52 ] Ms. Harrison testified that Mr. Wingfield was home for between five to seven minutes and then left with the other two men. She later left home to drive by Avery ’ s and saw the police. A few days later (she thought it might have been March 10, 2010), Mr.

Wingfield called her and said he thought he was being followed. He then called back and said he had been in a high speed chase and crashed, and asked her to pick him up. She did so and drove him to a residence in Woodlawn. She also testified that sometime after March 7 th she was in bed with Mr. Wingfield and asked him about the robbery, as she was curious. He told her that he and the other two men parked on the street, and that the older man was driving. He and the shorter man who was dressed all in black got out of the car, went in the front door and tried to lock it.

He said the other man went around the counter, where Mr. Wingfield had told him the cigarettes were. They went into the back room, saw a VCR and stomped it. He made the employee open the safe. He told Ms. Harrison that she was hesitating, and he told her to “ open the safe or I ’ ll cut your fucking arm off ” . [ 53 ] Ms. Harrison described an “ on again off again ” relationship with Mr. Wingfield. She ceased contact December 20, 2010. She admitted she sent him a Christmas card in December 2010 because she “ wanted to get under his skin ” .

Among other things, she wrote “ Merry Christmas to you and your girlfriend ” . [ 54 ] She testified that in January 2011 Mr. Wingfield threatened to burn down her home with her in it, and to burn her cars. He also threatened to send someone to her house who was getting out of prison shortly. She testified that she was not going to back down and this triggered her call to the police. She said she called the police the same day that Mr. Wingfield threatened her. She was reluctant to give a statement to the investigating officer, Det. Cst.

Winters, but eventually did so in February 2011. [ 55 ] In cross-examination Ms. Harrison said she had originally dated Mr. Wingfield when she was 17. She later learned from his

sister that he was in prison, and wrote to him in June 2007 when he was in Port Cartier, Quebec. He was later transferred to Dorchester, where she met with him seeing him every week or two until August 2008. [ 56 ] He was found with drugs on him during one of her visits and transferred to the prison in Renous, New Brunswick. Ms. Harrison was charged with drug possession, but this was apparently dismissed sometime later in court. She continued her relationship with him while he was in Renous by phone or mail, as it was too far to drive.

In December 2009, after his release, he moved in with her at Trinah Court. [ 57 ] Although Mr. Wingfield was not licensed to drive, Ms. Harrison allowed him to drive her cars and he had the keys. She did not tell the police she knew anything about the robbery until January 2011. She also admitted that she continued her relationship with him despite his activities, and said “ he has a strong presence in my life ” . [ 58 ] I found Ms. Harrison to be credible. She testified in direct and cross-examination in a cooperative, forthright and thoughtful manner.

She acknowledged conduct of her own that was questionable, without evasion. [ 59 ] Ms. Harrison ’ s evidence is consistent with Ms. Kearsley and Ms. Bradt ’ s description of one of the robbers in that she described Mr. Wingfield wearing a grey hoodie, a wig, a bandanna and black gloves, and being armed with a kitchen knife. [ 60 ] Mr. Wingfield testified that Ms. Harrison would have details of the robbery because he spoke with her on several occasions after he received the Crown disclosure. I do not find his evidence credible. He indicated that he reviewed details with her two to five times in some detail.

It stretches credibility to accept that he would have discussed Crown disclosure with her in such detail and not even mention it to Mr. Collins, who was his main alibi witness. Moreover, it is not clear from Mr. Wingfield ’ s testimony why he would repeatedly go over Crown disclosure with Ms. Harrison. When pressed on this issue by Crown counsel, his answer was “ don ’ t you speak like this to your woman ” , or words to like effect. [ 61 ] Ms. Harrison testified that Mr. Wingfield dumped out a purse on the bed, which Ms. Kearsley ’ s evidence suggested belonged to her. In it were a pair of socks. Ms.

Harrison testified that she found this odd or funny because a woman would not normally carry a pair of socks. Ms. Kearsley had indicated that she carried the socks in her purse because her feet sometimes get damp or cold. The fact of the presence of the socks in the purse was not in the disclosure; this was confirmed by Mr. Wingfield. The fact that Ms. Harrison would know this is an important corroborating fact between the evidence of Ms. Kearsley and that of Ms. Harrison, as there is no way Ms. Harrison could have learned this from Mr. Wingfield. [ 62 ] As I have said, overall I found Ms.

Harrison to be a very credible witness and I accept her evidence. Her evidence is consistent with that of Leeanna Kearsley and Emily Bradt. DNA [ 63 ] In Exhibit 1, picture 13 and 14, a glove is depicted next to a garbage can. As a result of the police investigation, this glove was sent for DNA testing.

As noted earlier, the glove was swabbed by Corporal Martin McKenna and these swabs were sent for DNA testing. [ 64 ] Thomas William Suzanski gave evidence as an expert in the area of forensic application of DNA typing, DNA typing procedures and the significance of the results of DNA typing, including the calculation of the frequency of a particular DNA profile in the population generally. Exhibits 15 and 16 are his reports. Mr. Suzanski described a match between the DNA obtained from the interior and exterior of the glove found at the scene of the robbery and that of Mr. Wingfield.

In particular the conclusion reached by Mr. Suzanski and set out in his report (Exhibit 16) is as follows: The DNA typing profiles (previously designated male 1) obtained from exhibit A6 (biological material, swabbed from interior of glove, scene) and exhibit A7 (biological material, swabbed from exterior of glove, scene) match that of the known sample, exhibit F1 (Kenneth Wingfield). The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 300 billion.

[ 65 ] Continuity was not in issue. The glove found near the front of the store on March 7, 2010, was seized by the police, swabbed by Corporal McKenna, and eventually tested by Mr. Suzanski. The glove is the same colour as the gloves described by Ms. Kearsley and by Ms. Harrison, who testified that Mr. Wingfield was wearing black latex gloves when he left her home, shortly before the robbery. It is similar to the latex gloves purchased by Ms. Harrison for Mr. Wingfield which, as acknowledged by Mr.

Wingfield, were located in his tattooing kit found in the Eclipse. [ 66 ] Both employees of Avery ’ s, and all of the police officers who attended at the scene, testified that they did not touch anything in the premises, including the glove. The glove was found at the scene shortly after the police arrived. We know from the evidence of Ms. Bradt that the glove was not there when she mopped the floor at 9 p.m., nor was it there when the floor was swept at approximately 8 p.m. by Ms. Kearsley. The evidence of police officers Gallant, Goode, Bruin, and Cpl.

MacKenzie is that they arrived shortly after the robbery and secured the scene and the glove was found where it was depicted in the photos in Exhibit 1, next to the garbage can. [ 67 ] The DNA recovered from the glove constitute strong circumstantial evidence that Mr. Wingfield was the taller robber on March 7, 2010. The DNA evidence is also consistent with Ms. Harrison ’ s testimony that she was told by Mr. Wingfield that he was leaving her house on March 7, 2010, to rob Avery ’ s.

Various items seized from Mitsubishi Eclipse [ 68 ] The defence agreed to several admissions concerning the Mitsubishi Eclipse and its involvement in a high speed chase. These admissions are as follows:

(1) That on March 10, 2010, Mr. Wingfield was driving the Eclipse, there was a high speed chase, a motor vehicle was damaged, and Mr. Wingfield left the Eclipse in the parking lot of 15 Kennedy Drive and fled the scene;

(2) Mr. Wingfield entered a plea to charges arising out of the car chase; and

(3) The search was done as a result of the car accident. The car was impounded at the Halifax Regional Police Garage on Gottingen Street. [ 69 ] As noted earlier, Det. Cst. Pamela Winters, attended at the Halifax Regional Police Garage on Gottigen Street on March 12, 2010, and seized several items from the Mitsubishi Eclipse. [ 70 ] Of some interest is Exhibit 11 which is the Avirex xxl grey hoodie which was described by Ms. Harrison as having been worn by Mr. Wingfield to the robbery. Ms.

Kearsley described a grey hoodie being worn by the taller robber with the knife. [ 71 ] In Exhibit 13 are several latex gloves which Mr. Wingfield acknowledged were in the tattoo kit in his car and which are similar to the latex glove found at the scene. Disposition [ 72 ] The circumstantial evidence is substantial and leads me to the conclusion that Mr. Wingfield was the taller of the two robbers on March 7, 2010. I am satisfied on the whole of the evidence that the Crown has proved beyond a reasonable doubt all four counts of the Indictment. Count 1

[ 73 ] Mr. Wingfield is charged that he on or about the 7 th day March 2010, at or near Dartmouth, did unlawfully use violence in robbing Leeanna Kearsley and Emily Bradt while they were employed at Avery ’ s Farm Market situated at Westphal, Nova Scotia. [ 74 ] The real issue is identity. [ 75 ] There is ample circumstantial evidence, including the evidence of Ms. Harrison and the DNA evidence, that Mr. Wingfield was the taller of the two robbers. The taller robber had a knife with him, according to Ms. Bradt and Ms. Kearsely. Ms. Harrison confirmed that Mr.

Wingfield took a knife with him when he left the house to rob Avery's. The evidence of Ms. Harrison as to what Mr. Wingfield wore when he left to rob Avery ’ s is consistent with the description provided by Ms. Kearsley and Ms. Bradt. [ 76 ] On the whole of the evidence I am satisfied that the Crown has met its burden of proving the elements of this offence beyond a reasonable doubt and I find Mr. Wingfield guilty on Count 1 of the Indictment. Count 2 [ 77 ] Mr.

Wingfield is charged that at the same time and place that he did with intent to commit an indictable offence have his face masked contrary to s. 351(2) of the Criminal Code . [ 78 ] I am satisfied that the Crown has met its burden. I accept the evidence of Lindsay Harrison that when Mr. Wingfield left her residence to go to Avery ’ s to commit the robbery he was wearing a bandana. Leeanna Kearsley confirmed that the taller of the two robbers was wearing a bandanna over his face. The Crown having met its burden, I find Mr. Wingfield guilty under Count 2 of the indictment.

Counts 3 and 4 [ 79 ] The Crown entered in to evidence Exhibit 3 which was a recognizance dated November 28, 2009. [ 80 ] Mr. Wingfield ’ s defence counsel did not raise any argument on Counts 3 and 4 of the indictment which allege non-compliance with conditions therein. I am satisfied that the Crown has met its burden and I find Mr. Wingfield guilty under Counts 3 and 4 of the indictment of an offence contrary to s. 145(3) of the Criminal Code . Pickup, J.