HIS MAJESTY THE KING, – v. –, 2023 NBKB 230

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON His Majesty the King v. Jason Bryan Baker 2023 NBKB 230 MCR/23/2021 BETWEEN: HIS MAJESTY THE KING, – and – JANSON BRYAN BAKER DECISION BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATE OF HEARING: September 18, 19 and 21, 2023 DATE OF DECISION: November 7, 2023 (orally) APPEARANCES: Malika Levesque & Martine Cormier, for the Crown Charles Bryant, for the Accused

DYSART, J. (Orally) INTRODUCTION [ 1 ] Janson Bryan Baker is charged with numerous offences relating to a violent home invasion which took place on January 5, 2021, in the community of Steeves Mountain, just outside Moncton, New Brunswick. [ 2 ] Mr. Baker has entered a not guilty plea and elected trial by judge alone. [ 3 ] As will be described later in these reasons, the central issue in this matter is identity. That is, has the Crown proven beyond a reasonable doubt that Mr.

Baker was one of three individuals who broke into the complainant’s residence, seriously assaulted him, and stole various items from the residence? [ 4 ] The Defence does not dispute that a crime occurred. It is conceded that there was a violent home invasion which occurred on January 5, 2021, at the residence of the complainant, Mr. Gregory Lee Lewis, and that the evidence proves beyond a reasonable doubt that somebody committed a break and enter, an aggravated assault against Mr. Lewis, and theft of some of Mr.

Lewis’ property (specifically, his car, his wallet, and some cash). [ 5 ] Because it is not disputed that crimes were committed at Mr. Lewis’ residence and that Mr. Lewis was assaulted, the Court may refer to Mr. Lewis’ residence as the “crime scene” or may refer to Mr. Lewis as the “victim.” Such references are not intended to in any way suggest guilt with respect to the accused, Mr.

Baker, who denies having committed these offences. [ 6 ] As well, it should be noted that this trial proceeded in two stages: first, the Court heard a voir dire application last year, in September and October 2022, to determine the admissibility of certain expert evidence tendered by the Crown with respect to a fingerprint identified at the crime scene.

The Court, in determining that the evidence was admissible, gave its decision in reasons dated November 8, 2022. [ 7 ] It was expressly agreed by the parties that the voir dire would proceed as a blended voir dire and trial, such that the evidence presented at the voir dire (subject to the Court’s determination on admissibility) would also be evidence at the trial proper, with no need to re-call that same evidence. [ 8 ] A final preliminary note: this case was initially scheduled to proceed to trial in December 2022.

The accused terminated his then-counsel the week prior to the start of the trial, and he then requested an adjournment of the trial. The trial was adjourned at Mr. Baker’s request to September 2023, and Mr. Baker expressly acknowledged that the delay was attributed to the Defence and that there would be no Charter violation for delay as a result of the adjournment. THE CHARGES [ 9 ] Mr. Baker faces 6 counts on an Indictment dated November 24, 2021. It reads: 1.

JANSON BRYAN BAKER stands charged that he, on or about the 5th day of January, A.D., 2021, at or near the Community of Steeves Mountain, in the County of Westmorland and Province of New Brunswick, knew that or was reckless as to whether the dwelling- house was occupied; did break and enter a certain place to wit: a motel room, situate at 47379 Homestead Road, in the Community of Steeves Mountain aforesaid, with intent to commit an indictable offence therein, contrary to and in violation of Section 348(1) (

a) of the Criminal Code of Canada and amendments thereto; 2. AND FURTHER THAT HE, on or about the 5th day of January, A.D. 2021, at or near the Community of Steeves Mountain, in the County of Westmorland and Province of New Brunswick, did steal a sum of money from Gregory Lee LEWIS while armed with an offensive weapon, to wit: a knife, committing thereby an indictable offence, contrary to and in violation of Section 344(1) (

b) of the

Criminal Code of Canada ; 3. AND FURTHER THAT HE, on or about the 5th day of January, A.D. 2021, at or near the Community of Steeves Mountain, in the County of Westmorland and Province of New Brunswick, did wound Gregory Lee LEWIS, thereby committing an aggravated assault, contrary to and in violation of Section 268(2) of the Criminal Code of Canada and amendments thereto; 4.

AND FURTHER THAT HE, on or about the 5th day of January, A.D. 2021, at or near the Community of Steeves Mountain, in the County of Westmorland and Province of New Brunswick, did have in his possession a weapon, to wit: a knife for the purpose of committing an offence committing thereby an indictable offence, contrary to and in violation of Section 88(2) (

a) of the Criminal Code of Canada and amendments thereto; 5. AND FURTHER THAT HE, on or about the 5th day of January, A.D. 2021, at or near the Community of Steeves Mountain, in the County of Westmorland and Province of New Brunswick, did have in his possession a prohibited weapon, to wit: mace, without being the holder of a licence under which he may possess it, contrary to and in violation of Section 91(2) of the Criminal Code , committing thereby an indictable offence, contrary to and in violation of section 91(3) (

a) of the Criminal Code of Canada and amendments thereto; 6. AND FURTHER THAT HE, on or about the 5th day of January, A.D. 2021, at or near the Community of Steeves Mountain, in the Country of Westmorland, and Province of New Brunswick, did have in his possession a prohibited weapon while he was prohibited from doing so by reason of an order made pursuant to Section 109(2) of the Criminal Code of Canada by Judge Denise A. LEBLANC on the 22nd day of June, A.D., 2016 for a period of life, committing thereby an indictable offence, contrary to and in violation to

Section 117.01(1) of the Criminal Code of Canada , and amendments thereto. [ 10 ] At the close of trial, counsel for the Crown acknowledged that the Crown had failed to lead evidence which could prove guilt with respect Counts 5 and 6 of the Indictment. Counsel agreed that the Court could not, therefore, find Mr. Baker guilty of those two offences, and he is accordingly acquitted of the charges laid out in Counts #5 and #6. THE EVIDENCE Deloras Belliveau [ 11 ] Ms. Belliveau testified that she was the manager of the Country View Motel on the Homestead Road in Steeves Mountain, New Brunswick.

She lived on site. [ 12 ] She testified that at approximately 5:30 AM on January 5, 2021, she heard a banging on the door of the office, which is connected to the area where she lived. She looked in the surveillance cameras and saw that it was one of the tenants, Greg Lewis. [ 13 ] When she opened the door, she noted that Mr. Lewis was covered in blood. He asked her to call 911 because he did not have his cell phone. She immediately called 911. [ 14 ] She testified that she gave Mr. Lewis a cloth to help with his bleeding, and they sat and had a brief conversation. [ 15 ] Ms.

Belliveau testified that the motel is a single floor structure, with the office in the center. That is, there are wings on both sides of the office, with 20 separate units. She testified that Mr. Lewis had been a long-term tenant of the motel, having lived there for about a year at that time. [ 16 ] On cross-examination, she confirmed that Mr. Lewis was shaky, nervous and had blood on his hands, his face, and his clothing. He also had a cut on his face. She confirmed that Mr. Lewis told her that he did not know who it was who had attacked him.

He did not mention to her any identifying characteristics of the assailants. He told her that the individuals had masks on, she believed. [It should be noted that what Mr. Lewis purportedly told Ms. Belliveau was characterized by counsel for the accused as narrative, falling outside the rule against hearsay; the Crown agreed it was admissible narrative evidence.]

Gregory Lewis [ 17 ] Mr. Lewis testified that on the morning of January 5, 2021, he was at home, in Unit #3 at the Country View Motel on the Homestead Road in Steeves Mountain, New Brunswick. It was approximately 5:30AM, and it was still dark. He was getting ready to go to work as a tractor-trailer operator. [ 18 ] He testified that when he got out of the shower, he heard a knock at the door. He testified that due to the early hour, he was a bit hesitant to answer. He waited and there was another knock. He went to the door and opened it. There, Mr. Lewis saw three individuals, two of whom were wearing masks.

One of the individuals sprayed something at Mr. Lewis, causing his eyes to water and burn. He testified that he lost his vision for a period of time. Mr. Lewis pushed back against the door and was able to close and lock it, but the three assailants broke the door casing and entered the unit. This is confirmed by photographs contained in Exhibit #4, which shows the damage to the door. [ 19 ] Mr. Lewis testified that the assailants were looking for drugs and money. He testified that he told them he did not have any drugs or money.

The assailants then sat him in a chair, where he was repeatedly stabbed by one of them, with the other two looking through his apartment and his belongings. [ 20 ] Mr. Lewis testified that two of the individuals were wearing “COVID” masks, which I take to mean surgical masks. The third individual was not wearing a mask. He testified that the unmasked person had short dark hair, a short dark beard, and tattoos, but he did not provide any further detail at that time. [ 21 ] He testified that the unmasked man sat him in a chair at the kitchen table and stabbed him repeatedly using a knife with a faded wooden handle.

He estimated the blade was perhaps 3 inches in length. [ 22 ] Mr. Lewis testified that he was stabbed in his face, stomach/torso, and arms. Photos contained in Exhibit #7, which depict Mr. Lewis later that same day while being treated in hospital, speak to the seriousness of the injuries he sustained in this attack. [ 23 ] Mr. Lewis testified that the person who stabbed him – the unmasked assailant – remained in the kitchen, near him, while the other two assailants “ransacked” the apartment under the instructions of the unmasked man. [ 24 ] Mr.

Lewis testified that he kept a number of papers and documents – receipts, mail, etc. – on the kitchen table. Some of those papers were inside a large cookie can, while others were piled on the table next to the can. [ 25 ] He testified that the assailants took his wallet and his car keys from his pants pockets, and they stole two phones and some $80.00 in cash that was on the kitchen table. [ 26 ] Mr.

Lewis estimates that, after about the first 10 minutes of the assault, which he estimated lasted approximately 20 minutes, he started to regain his vision, though he acknowledged the events occurred quickly and it was a blur to him. [ 27 ] After the assailants left the apartment, Mr. Lewis testified he went to the bathroom to rinse out his eyes and his face. He then dressed before making his way to the motel’s office to get help. He testified he had lost a lot of blood, which is obvious from the photos of the crime scene taken by police, and which form part of Exhibit #4. [ 28 ] Mr.

Lewis testified that shortly after Ms. Belliveau called 911, ambulance personnel arrived and that is his last memory before waking in hospital. When he awoke, medical personnel were stitching his wounds, and a police officer was present, trying to obtain a statement. He testified the officer assisted in making calls to Mr. Lewis’ insurer and bank to report his stolen car and credit cards. [ 29 ] Again, Mr. Lewis was asked to identify his assailants. He testified he did not know them. He described the unmasked assailant as having short, dark facial hair, dark hair and dark eyes.

He testified that he recalled that the man had a crown-shaped tattoo in

particular. He would later identify that tattoo as being in the area of the assailant’s right eye or brow. [ 30 ] When asked to identify that assailant in the courtroom, Mr. Lewis pointed to the prisoner’s dock, but he pointed to one of the Sheriff’s deputies, and not to the accused. [ 31 ] When asked about the assailants’ hands, he testified that the unmasked man who was stabbing him was not wearing gloves. He could not say for sure whether the other two men were wearing gloves. [ 32 ] Mr. Lewis was shown a series of photographs from Exhibit #4 which depict the crime scene.

Those photos, taken by police, show blood on the floor and on the furniture in the kitchen, the bathroom, and Mr. Lewis’ bedroom. [ 33 ] Mr. Lewis identified photos of an envelope from his insurer, Wawanesa, which was found on the floor of the apartment. He testified that he believes the envelope had been on the kitchen table before the home invasion, and that the assailants threw it onto the kitchen floor along with other papers and items. He confirmed that the red staining on the envelope was blood, which was not present before the home invasion. [ 34 ] Mr.

Lewis was shown two photographs which would later be marked as Exhibit #8. Mr. Lewis testified that one of the photos showed his driver’s license which he says was in his wallet which was stolen on January 5, 2021. [ 35 ] He was also shown several photos of a cell phone, which were marked as Exhibit #9. He identified two of those photos as depicting an iPhone which was stolen during the home invasion of January 5, 2021. He recognized the photograph displayed on the screen’s background, commonly referred to as the wallpaper, depicting his two nieces.

He testified that the phone was later returned to him by police. [ 36 ] Mr. Lewis testified that police had contacted him sometime after January 5, 2021, to report that they may have found his stolen phone. He gave police the passcode needed to unlock that phone, which was the iPhone depicted in Exhibit #9. He testified that was one of two phones stolen that morning. The other was an iPhone 11, which was left charging on the kitchen table. [ 37 ] Returning to the issue of identity, counsel for the Crown asked Mr. Lewis if he recalled testifying at the preliminary inquiry in this matter.

He remembered testifying before Judge Horsman and he recalled being asked to identify the unmasked man who had stabbed him. He confirmed that he testified at that earlier hearing that it was Janson Baker, and he testified that the man was present in the courtroom at that previous hearing and was wearing orange coveralls. [ 38 ] As for naming the accused, the witness testified that he had been provided Mr. Baker’s name from the police.

He testified that he remembers that the unmasked man had tattoos on his face – notwithstanding that the Sheriff’s deputy whom he identified in the dock has no visible tattoos (at least from the Court’s vantage point, which was better than Mr. Lewis’). [ 39 ] Mr. Lewis then acknowledged that he was struggling with identification. He explained that the experience had been traumatic, and he had tried hard to put the events of January 5, 2021 out of his mind.

He confirmed that he has 20/20 vision, however, such that there is no issue that his in-dock identification of the Sheriff’s deputy was because he does not see well. [ 40 ] Then, seemingly aware that his previous in-dock identification had been flawed, and without directly pointing to the accused, Mr. Lewis testified that the unmasked man who stabbed him was present in the courtroom. He testified that the man looked different than he had on January 5, 2021, saying the man had shaved his head.

Then, when prompted by counsel for the Crown, he testified that he saw only two men in the courtroom with shaved heads – the accused, Mr. Baker and Cst. Martin, one of the police officers involved in the case. [ 41 ] On cross-examination, Mr. Lewis testified that his apartment at the Country View Motel had an exterior light, just outside the door. That light was not on at the time of the home invasion, he testified.

[ 42 ] As for the substance that was sprayed at him, he assumed it was mace or something like that because it burned his eyes and impaired his vision. He did not see which of the three intruders sprayed him but was pretty sure that the intruder who sprayed the substance was wearing gloves. He recalled seeing a small cannister in the hand of one of them. He testified that, while the substance burned his eyes, it did not affect his nose or his mouth or his breathing. [ 43 ] Mr. Lewis acknowledged that for the first 10 to 15 minutes of the home invasion, his vision was impaired.

When he started to regain his vision, he observed the knife, described previously, when the unmasked man cut his face. [ 44 ] Counsel for the accused then questioned Mr. Lewis about the identification of the unmasked man. He repeated that the man had dark facial hair, dark hair and dark eyes. He also observed facial tattoos and specifically a crown-shaped tattoo on the right side of his face, above the eye. He did not recall any other tattoos, specifically. [ 45 ] Mr. Lewis was then asked about a statement he had given to police on the morning of the home invasion.

It was suggested to the witness that he had told police that he had not observed any tattoos on the assailants. Mr. Lewis could not remember, and so the statement was shown to him. The statement, which was not signed by Mr. Lewis, was given at 8:00AM on the morning of January 5, 2021 – just a couple of hours after the home invasion. Mr. Lewis acknowledged that the statement indicates that he told police the assailants had no tattoos.

When asked why his testimony did not match his statement to police, the witness said he was in hospital on several IVs, on medications and “in a state.” [ 46 ] After confirming again that he had heard the name Janson Baker from police, Mr. Lewis testified that he had also been shown a photograph of the accused by police following his discharge from hospital about one week after the events of January 5, 2021. He testified that Cst. Martin came to his home to return his stolen cell phone and at that time Cst. Martin gave him Mr. Baker’s name and showed him the photograph. He did not know where Cst.

Martin had obtained that photo. He agreed that, when he saw the photo of the accused, he noted the tattoos and especially the crown-shaped tattoo on his face. He acknowledged that he has no recollection of telling anyone about those tattoos until he was shown a photograph of Mr. Baker by Cst. Martin. [ 47 ] With respect to the Wawanesa envelope that Mr. Lewis had described earlier, he was asked why the address on the envelope was different from where he was living. He testified that the mail was sent to his father’s home, where he had lived prior to the Country View Motel.

He moved after his father passed away, but he continued to have his mail delivered to that other address. He testified that it was an older piece of mail, but he could not say exactly how long it had been in his apartment at the Country View Motel. He thought the envelope was on the kitchen table before the home invasion, but he could not be sure. Cst. Dwayne Woodman and Cpl. Kevin Glode [ 48 ] Cst. Woodman and Cpl. Glode were on duty with the Caledonia RCMP detachment on January 5, 2021, and they responded to the call at the Country View Motel, both arriving at around 6:00 a.m. [ 49 ] Cst.

Woodman, who arrived first, noted that the victim had already been transported to hospital, and so he interviewed Ms. Belliveau, the manager. [ 50 ] The officers noted what appeared to be fresh footprints in the snow, and they observed a Jeep located in that same vicinity outside Mr. Lewis’ unit. Cpl. Glode also testified that the frame around the door of Unit #3 was visibly broken, and blood could be seen on the floor. [ 51 ] As a result, the officers arranged their police vehicles to block the area around Mr. Lewis’ unit.

Eventually, once the owner was confirmed, the Jeep was allowed to leave the area. [ 52 ] They testified that they preserved the crime scene, not allowing anyone to enter Unit #3 until the Forensic Identification member arrived at around 7:00 a.m. Cpl. Glode also put out a call to be on the lookout for Mr. Lewis’ stolen car, and he tasked another officer, Cst. Condo, to go to the hospital in order to obtain a statement from Mr. Lewis.

Cst. Guy Forcier [ 53 ] Cst. Forcier testified at the voir dire. [ 54 ] He testified that on February 24, 2021, he attended the Dorchester Penitentiary in order to obtain fingerprints from the accused and to photograph his tattoos. [ 55 ] With respect to obtaining the accused's fingerprint, he testified that he used the “old style”, i.e. ink and paper. He testified that, in accordance with his training, he inked the fingers and obtained two impressions of each finger on two separate forms. That is, he obtained two original sets of fingerprints.

These were placed on a standard C-216 form, which is a specific document used by the RCMP for the collection of fingerprints. In addition, he obtained one set of handprints, which includes the palm of each hand. [ 56 ] After he obtained the fingerprints, Cst. Forcier testified that he placed them in a sealed envelope and delivered them to the lead investigator related to a separate investigation – Cpl. Lemay. [ 57 ] The two sets of fingerprints obtained by Cst. Forcier were marked as Trial Exhibits #1 and #2. Corporal Jean-Guy Lemay [ 58 ] Cpl.

Lemay testified at the voir dire in 2022 and also at the trial proper. [ 59 ] Cpl. Lemay works in the Forensic Identification Services unit (“FIS”). [ 60 ] He testified that, as the lead investigator relating to another separate investigation, he received the fingerprints, identified as Exhibits #1 and #2 at trial, in a sealed envelope which had been left on his desk at his office. [ 61 ] Upon receipt, he testified that he applied a number of stickers to both Forms C-216, i.e. Exhibits #1 and #2, which he testified are scales.

These are used to allow the user to measure or calibrate the fingerprints when photographed. [ 62 ] He testified that, once he received the sealed envelope containing the fingerprints, they remained in his custody except during the time they were provided to Sgt. Mitchell Perry, who conducted the fingerprint comparison in this matter. He could not recall specifically when he provided the fingerprints to Sgt. Perry, nor for how long Sgt. Perry had the fingerprints. [ 63 ] At trial, Cpl.

Lemay testified that as lead investigator on that other matter, he was called in to assist with the execution of a search warrant at a residential apartment building located at 20, Eddy Street in Amherst, Nova Scotia on January 7, 2021 – two days after the home invasion in this case. His role was to photograph that scene. [ 64 ] He identified two photos that he took that day showing items seized from that apartment in Amherst. The photos were marked Exhibit #8, and they include a photograph of Mr. Lewis’ driver’s license, which Mr. Lewis identified during his testimony. Sgt. Mitchell Perry [ 65 ] Sgt.

Perry testified at the blended voir dire and trial. He was made available at trial by the Crown for additional cross- examination, but the Defence did not have further questions for the witness. [ 66 ] In oral reasons delivered during the hearing of the blended voir dire and trial, the Court determined that Sgt. Perry is qualified in the field of forensic identification, and specifically in the area of detecting, collecting and comparing fingerprints for analysis. The Court is satisfied that Sgt. Perry has specialized training and experience which would be of assistance to the trier of fact, where the proposed

evidence was of such a technical nature that the Court cannot be reasonably expected to conduct the trial without such expert testimony. Sgt. Perry was declared an expert and was authorized to give opinion evidence within his field of expertise. [ 67 ] Sgt. Perry testified that fingerprints are unique to each person, and do not change.

He testified that the skin on one's finger can leave an impression on various surfaces, i.e. substrates, sometimes due to oil and sweat; but an impression can also be left in another medium or substance, such as blood. [ 68 ] With respect to this investigation, he testified that on January 5, 2021, at approximately 6:30 AM, he was tasked with attending at the Country View Motel on the Homestead Road just outside Moncton. He was advised that there had been a stabbing at that location. He arrived at approximately 7:30 AM and was met by Cpl. Glode and Cst.

Woodman in the motel's parking lot. [ 69 ] It was dark when he arrived. He testified that the area had fresh snow, and so he decided to process the exterior first in order to collect as much evidence as possible, and to photograph the scene. After his assessment of the exterior of the building, he moved into Unit #3, where Mr. Lewis lived, and he photographed the scene. He testified that the apartment was messy, with papers and materials scattered. He also identified what appeared to be blood stains on the floor and on various objects within the apartment. [ 70 ] Sgt.

Perry prepared a booklet which contains 150 photographs, marked Exhibit #4. These include both photographs of the exterior and the interior of the crime scene, and also photographs of various items that were seized and which were the subject of further investigation. [ 71 ] Sgt. Perry testified that he then went about his work on the interior of the unit, searching for “friction ridges” which is the technical term for fingerprint or palm print impressions.

He testified that he was able to identify friction ridges in two locations within the unit: on the door of the refrigerator freezer, and on a Wawanesa Insurance envelope which he found on the floor amongst other papers. The friction ridge identified on the envelope appeared to have been made on red staining which he felt was consistent with blood. Sgt. Perry therefore seized the envelope. While wearing gloves, he removed the contents of the envelope and secured the envelope in a paper bag. He then secured it in an exhibit locker at the FIS office. [ 72 ] The following day, being January 6, 2021, Sgt.

Perry brought the envelope into the laboratory of the FIS offices and took photographs of the friction ridges he observed. He testified that he used forensic lighting to try to maximize the images of the friction ridges, but that it was not particularly helpful. As a result, he decided to use a chemical solution called DFO which enhances friction ridges on porous materials. It leaves the paper with a pinkish colour and reacts with sweat that might have been left from contact with the finger.

When he treated the envelope, it enhanced the print that had been previously observed on the envelope (identified as P1), but it also showed another friction ridge on the opposite side of the envelope (identified as R2) which he had not previously observed. Following this enhancement, he then photographed both sets of friction ridges. [ 73 ] Sgt. Perry testified that he then used Photoshop to enhance the images. He testified this makes it easier for the images to be processed by the fingerprint database software by creating black ridges on a white background.

He then uploaded the images into the national fingerprint database. He received a response that same day of a possible source print which matched R2, being the print that was identified on the backside of the envelope. The source was identified by FPS number, which is a number assigned to an individual whose fingerprints have been registered on the database. That FPS number stays with the person for the remainder of their life. There was no match for the fingerprint identified as P1 (i.e. the print originally identified on the front of the envelope). [ 74 ] Sgt.

Perry then downloaded a set of fingerprints from the database from that individual, who turned out to be the accused, Janson Baker. Sgt. Perry then conducted a comparison, and he concluded that the print identified as R2 was a match with a fingerprint taken from the database and identified as the right index finger of the source, i.e. Janson Baker. [ 75 ] That was Sgt. Perry’s preliminary opinion with respect to the fingerprint found on the rear side of the envelope. He testified that, when the charges against Mr.

Baker progressed, and a trial date was set, he conducted a separate fingerprint comparison analysis and prepared a report for use at trial. That report, which was marked as Exhibit #6, was prepared in May 2022. [ 76 ] Sgt. Perry testified that, for the purposes of his report, he conducted a comparison of the fingerprint found on the rear of the envelope, being R2, with the original fingerprints which had been obtained by Cst. Forcier on February 24, 2021, i.e. Exhibits #1 and #2.

[ 77 ] When describing his observations of the print identified as R2, Sgt. Perry described what he thought was as a possible “loop pattern” which is consistent with the digit from a subject’s right hand. He also noted what he described as several areas of pressure distortion, which is where there was movement of the digit during contact with the substrate, which results in smudging or smearing of the image. He described those areas on Appendix C his report. [ 78 ] When asked about the reference to “tolerance” in his report, Sgt. Perry testified that this relates to the clarity of the prints he is examining.

If the clarity (due to distortion and smearing) is low, then he may have a correspondingly higher tolerance for imperfect matches of various areas of the print. Where the clarity is better, he has a lower tolerance for imperfect matches. Effectively, if the prints are of high quality, i.e. high clarity, there either is or is not an exact match. The tolerance for differences is diminished. If the quality is less good, then areas that do not perfectly match can be tolerated by the examiner.

In this case, he considered that the friction ridge identified as R2 was of moderate clarity generally, but that parts of it were of high quality and therefore those parts would have expected a low tolerance for variability from the known prints. [ 79 ] Sgt. Perry then testified with respect to his analysis of the fingerprints. He testified that he first reviews the anatomical factors relating to the friction ridge identified at the scene, which is R2, and he noted a loop pattern with a right inclination, which he identified at Appendix A to his report.

He concluded that it came from a single impression, likely from the subject’s right hand (because of the right loop pattern). [ 80 ] He also testified that, in his opinion, the impression R2, found on the envelope, was left by a traditional matrix, being sweat and oils from the subject’s skin as opposed to another substance like blood or grease. [ 81 ] He then compared R2 to the prints on Exhibit #2, which are the prints obtained from Mr. Baker by Cst. Forcier. He testified the comparison involves examining a known impression with an unknown impression.

In this case, the known impression was the print obtained from Mr. Baker, Exhibit #2; whereas the unknown impression is the friction ridge identified on the envelope, being R2. He then described how he conducted a ridge-by-ridge analysis, starting with the unknown impression. That is, he specifically looks at every ridge and follows it to its end point. [ 82 ] Sgt. Perry attached an appendix to his report showing some of that comparison, though he indicated that that was merely a sample to show the process by which he conducts the comparison.

He testified that he compared all available ridges on both sets of prints. [ 83 ] Having conducted the comparison between the two sets, Sgt. Perry testified as to his conclusion that the ridges matched, allowing him to identify R2 as being Janson Baker's fingerprint. [ 84 ] When asked how long the print might have been present on the Wawanesa envelope, Sgt. Perry could not say. [ 85 ] With respect to the friction ridges found on the front of the envelope, identified as P1 (which appeared to be in blood), Sgt.

Perry testified that there was no identification for that friction ridge. [ 86 ] On cross-examination, Sgt. Perry agreed that the door to Unit #3, where Mr. Lewis resided, was open when he arrived at the scene on the morning of January 5, 2021. He testified that, as a forensic specialist, it is his expectation that the responding general duty police officers will protect the crime scene and ensure that nobody disturbs it. He acknowledged that there was no way to be sure that someone had not entered the unit between the time when Mr. Lewis left to walk to the office and when police first arrived.

He agreed that he did not personally review any surveillance, nor was it expressly stated whether such surveillance exists. [ 87 ] Sgt. Perry admitted that he did not conduct an analysis of any of the other papers found on the floor in the kitchen of Unit #3, only the envelope. He testified that he observed a friction ridge which appeared to be in blood on that envelope, which is why he selected it for testing.

He testified that a number of items inside the apartment were also covered in blood, but there was no evidence that those items had been manipulated by the suspects in this case. [ 88 ] As for the contents of the Wawanesa envelope, Sgt. Perry testified that he removed those contents and did not test them for fingerprints.

[ 89 ] As for the “tolerance” described in his report with respect to the clarity of the prints and how closely they need to match, he acknowledged that there is an element of subjectivity in that analysis, which is based upon his training and his experience. [ 90 ] As for his objectivity, counsel for the Defence suggested to Sgt. Perry that his opinion might have been influenced by the fact that the friction ridge identified as R2 had already been identified by the database as a match to Mr. Baker. Sgt.

Perry testified that he never assumes that there is a match, and he conducts his own analysis, regardless of what the database suggests. He testified that in this case, he conducted a ridge-by-ridge analysis and is satisfied that the “new” prints obtained by Cst. Forcier from Mr. Baker are a match with the fingerprint identified as R2 on the Wawanesa envelope. [ 91 ] Sgt. Perry acknowledged that it is possible for fingerprints to transfer from one surface or document to another. That said, he testified that it would be quite unlikely.

He admitted that he had not done any testing to rule out the possibility that R2 was transferred onto the envelope from another item. It was his opinion that the fingerprint was likely caused by sweat and oil from the finger of the individual who touched the envelope. Cst. Rory Martin [ 92 ] Cst. Martin testified that he was the lead investigator with respect to this home invasion. [ 93 ] On January 5, 2021, he was informed that there had been a break and enter at the Country View Motel in Steeves Mountain, and that Gregory Lewis was the victim. [ 94 ] He testified that he spoke to Mr.

Lewis a week after the events in question, on January 12, 2021. He obtained an audio statement from Mr. Lewis at that time. [ 95 ] When they spoke on January 12, he asked Mr. Lewis for some additional information in relation to some cell phones which were believed to have been stolen from Mr. Lewis' apartment. Mr. Lewis provided passcodes for the two cell phones that had been stolen. He testified that police believed they had recovered Mr. Lewis’ cell phones from an apartment at 20, Eddy St. in Amherst, Nova Scotia. Upon receipt, Cst. Martin sent those passcodes to another officer, Cst. Max Lavoie. [ 96 ] Cst.

Martin testified that he met with Mr. Lewis again on January 18, 2021, at which time he returned one of the stolen cell phones to Mr. Lewis, an iPhone 6. He identified the cell phone which was returned to Mr. Lewis as the phone that is shown in photo #5 of Exhibit #8, which was police Exhibit PE036 from that other investigation. [ 97 ] The Crown then elicited some narrative evidence from Cst. Martin relating to the circumstances under which he had apparently shown Mr. Lewis a photograph of the accused, Janson Baker. Cst. Martin’s testimony was that he had not shown any photo of the accused to Mr. Lewis.

It was his understanding that Mr. Lewis had seen a photograph on social media and had identified that person as the unmasked assailant. He confirmed that the police had issued a media alert, a so-called “Alert Ready,” which included a photograph of Mr. Baker, but it is not clear whether that was the same photo as the one referred to by Mr. Lewis. Cst. Martin was not able to identify the accused as the man shown in that Alert Ready, saying it was a long time ago. [ 98 ] Cst. Martin confirmed that he provided Mr. Lewis with Mr.

Baker’s name, as being the individual police had arrested in relation to the home invasion. [ 99 ] Cst. Martin confirmed that the police had also arrested another man in relation to the home invasion of January 5, 2021, someone named Ross Norris. [ 100 ] On cross-examination, Cst. Martin confirmed that the Alert Ready was issued with respect to another separate investigation. He confirmed that he tried to locate that Alert Ready on his phone when he met with Mr. Lewis on January 18, 2021, but that he was unable to find it. He confirmed that he did not show any photo of the accused to Mr. Lewis.

[ 101 ] Cst. Martin confirmed that Ross Norris, the other individual identified as a suspect, was arrested in relation to this case. They did not identify a third suspect. Cst. Marc LeBreton [ 102 ] Cst. LeBreton testified that he was called out to assist with an investigation on January 7th, 2021, unrelated to this matter. He was asked to assist with respect to the execution of a search warrant at 20 Eddy St. in Amherst, Nova Scotia. He acted as the exhibit officer with respect to that search warrant and seized several items from an apartment at that address. This included seven cell phones.

He secured those seized exhibits and took them into his custody for continuity and transported them to the Codiac RCMP detachment in Moncton, where they were placed in a secure locker. [ 103 ] Cst. LeBreton identified the cell phone shown in Exhibit #8 as one of the cell phones seized from the apartment in Amherst on January 7, 2021. [ 104 ] On cross-examination, Cst. LeBreton confirmed that when he attended for the execution of that search warrant, there was nobody present in the apartment.

He agreed that the apartment was messy, and he agreed that, given that there were clothes everywhere in the apartment, he felt there were likely a number of people residing there. Cst. Maxime Lavoie [ 105 ] Cst. Lavoie, a member of the Major Crime Unit, testified that he was acting as the file coordinator with respect to the other investigation referred to by the witnesses, which resulted in the search warrant at 20 Eddy St. in Amherst, Nova Scotia. [ 106 ] He testified that he received a call from Cst.

Martin, lead investigator in the present case, who reported that one of the cell phones seized in Amherst was believed to be related to the home invasion at the Country View Motel. [ 107 ] He testified that on January 12, 2021, he was advised that the victim, Greg Lewis, had provided his passcode for the cell phones which had been stolen. As a result, Cst. Lavoie engaged Cst. Chris Fader, who has specialized training and experience in handling technology such as cell phones, to retrieve that cell phone and to enter the passcode provided by Mr. Lewis. [ 108 ] Cst. Lavoie testified that he observed while Cst.

Fader performed this on the cell, and he observed the cell phone unlock. Cst. Chris Fader [ 109 ] Cst. Fader is with the general investigation unit with the Codiac RCMP. He is a digital field technician, with specialized training and experience in the handling of electronic exhibits such as cell phones. [ 110 ] Cst.

Fader testified that he was tasked on January 12, 2021 with trying to open two cell phones which had been seized as part of an investigation, which were identified as police exhibits PE036 and PE041. [ 111 ] He testified that each cell phone was plugged in to ensure it had power, and he then entered the passcode provided by Cst. Lavoie. That passcode unlocked one of the two cell phones. [ 112 ] Cst. Fader testified that on January 14, 2021, he removed the cell phone, identified as police exhibit PE036, from the evidence locker, and then took a series of photographs of the phone, both the front and the back.

He looked for identifiers of the phone, such as serial number, make, model. Cst. Fader reviewed the photographs contained in Exhibit #9, confirming that he took those photographs of that phone. Sgt. Jason Charles Galloway [ 113 ] Sgt. Galloway testified that he has been with the Amherst Police Department, in Amherst, Nova Scotia, for 17 years.

[ 114 ] He testified that on January 6th, 2021, he was on regular patrol in the Town of Amherst. He testified that a complaint had been received with respect to a vehicle. He ran the vehicle identification number and noted that there was a “Be On The Lookout” notice issued for Janson Baker. That was related to an incident from the previous day, which is not related to the home invasion at the Country View Motel. The notice included an image of Mr. Baker's face. [ 115 ] Sgt. Galloway testified that he then proceeded to an address at 20 Eddy St. in Amherst.

He testified that he placed that apartment building under “containment” due to the likelihood that Mr. Baker was present at that address. The house was contained during the morning of January 6 th , 2021. [ 116 ] Sgt. Galloway testified that at approximately 11:45AM, while he had the house under observation, he saw two people emerge from the front door of the building, fighting. He immediately went to that address in his police vehicle and there, he identified Janson Baker as one of the two people involved in the fight. He recognized his facial tattoos, which matched the photo he had seen. He placed Mr.

Baker under arrest, as well as the other individual. Mr. Baker was handcuffed and placed in the rear of his police vehicle. [ 117 ] Sgt. Galloway identified Janson Baker in the dock as the man he arrested. [ 118 ] On cross-examination, Sgt. Galloway testified that the other man arrested that day was Matthew Hunsley, who was known to Sgt. Galloway. [ 119 ] He testified that 20 Eddy Street was an address known to police with a history of domestic disturbances and drug activity, which he clarified as drug use. That is, it was frequented by known drug users.

He testified it is an old house with several apartment units. [ 120 ] That was the evidence heard at trial. POSITIONS OF THE PARTIES Crown [ 121 ] The Crown maintains that three individuals broke into Gregory Lewis’ apartment on the morning of January 5, 2021, stabbed him and stole his wallet, his car keys, two cell phones and some cash, though the Indictment alleges only the theft of cash. Two of the intruders wore masks while the third did not.

Two of the intruders wore gloves, while the unmasked man did not. [ 122 ] The Crown’s key piece of evidence is the fingerprint identified on the Wawanesa envelope, recovered from the kitchen floor in Mr. Lewis’ apartment. That fingerprint, which Sgt. Perry matched to Mr. Baker, puts Mr. Baker inside Mr. Lewis’ apartment during the home invasion, the Crown argues. While conceding that the identification of the accused by Mr.

Lewis was flawed, both immediately following the events of January 5, 2021, and the in-dock identification at trial, the Crown maintains that the only reasonable inference to be drawn from the presence of Mr. Baker’s fingerprint on that envelope is that he was one of the three assailants. [ 123 ] The Crown argues that, since only one of the assailants was not wearing gloves, it is reasonable to conclude that it was Mr. Baker who was unmasked. And the evidence is that the unmasked assailant was the person who stabbed Mr.

Lewis repeatedly. [ 124 ] The Crown also points to the other circumstantial evidence, which is that Mr. Baker was arrested the following day outside a building in Amherst, Nova Scotia where Mr. Lewis’ stolen cell phone and driver’s license were seized by police. [ 125 ] This, the Crown argues, proves Mr. Baker’s guilt beyond a reasonable doubt. Defence [ 126 ] For its part, the Defence agrees that the identification of Mr. Baker by the victim, Mr. Lewis, is flawed and unreliable. He was

given Mr. Baker’s name by police and at the preliminary inquiry, he identified the accused as the man wearing orange coveralls. He initially told police that his assailant did not have tattoos, but then reported that the man who stabbed him had facial tattoos, including a tattoo of a crown near his right temple or brow. [ 127 ] At trial, the Defence notes that Mr. Lewis identified a Sheriff’s deputy as his assailant and only later seemed to indicate the accused, and then only vaguely. [ 128 ] As for the fingerprint, counsel for the accused argues that it proves only that Mr.

Baker touched that envelope at some time and place. It does not prove when, and it does not prove where. As a result, it does not prove that Mr. Baker was inside the victim’s apartment, let alone at the time of this home invasion on January 5, 2021. [ 129 ] Finally, counsel argues that the fact that Mr. Baker was arrested the day after in some proximity to some of the stolen goods is likewise vague in terms of what inferences can be drawn from it.

The evidence establishes that one other person was arrested in relation to the home invasion, and that another person was arrested on January 6, 2021, outside that apartment in Amherst. The Defence notes that there is no forensic evidence linking Mr. Baker to the stolen items. [ 130 ] The Defence argues that, while the evidence may suggest a connection between these crimes and Mr. Baker, that connection is tenuous and insufficient to meet the Crown’s burden of proving beyond a reasonable doubt that Mr. Baker was one of the assailants.

THE LAW Essential Elements [ 131 ] While both parties agree that the only live issue in this case is identity of the accused, the Court will nonetheless review the essential elements for these offences. [ 132 ] Mr. Baker is charged with four counts, given that the Crown acknowledges that it has not proven counts 5 and 6 on the Indictment. Count 1 - Break and Enter with Intent [ 133 ] The essential elements which the Crown must prove beyond a reasonable doubt are that the accused, Mr. Baker: (

i) broke into a place; (ii) entered that place; and (iii) that he intended to commit an indictable offence in the place. [ 134 ] Again, while identity is in issue in this trial, there is no reasonable doubt based on the evidence that three men broke into Mr. Lewis’ apartment, entered the apartment and they did so intending to commit an indictable offence. Count 2 - Robbery with a weapon [ 135 ] The essential elements of this offence, which must be proven by the Crown, are that Mr. Baker stole something, in this case money, and secondly that Mr. Baker was armed with an offensive weapon at the time of the theft. There is no issue that a knife is an

offensive weapon, and that a knife was used in this case. [ 136 ] Again, the evidence establishes beyond a reasonable doubt that a robbery occurred. The only question is whether Mr. Baker was one of the perpetrators. Count 3 - Aggravated assault [ 137 ] In order to establish this offence, the Crown must prove that Mr. Baker: (

i) applied force to Mr. Lewis; (ii) that he intentionally applied the force; (iii) that Mr. Lewis, the victim, did not consent to the force that was applied; (iv) that Mr. Baker knew that Mr. Lewis did not consent to the force that was being applied; and (

v) that the force that was applied to Mr. Lewis wounded him. [ 138 ] The evidence in this case establishes beyond a reasonable doubt that Mr. Lewis was the victim of an aggravated assault. His description of the events establishes that he was subjected to multiple stabbings by his assailant and that he indeed suffered wounds, as that term is defined in the jurisprudence. He lost a lot of blood, and he required medical care. [ 139 ] This was an aggravated assault. The only issue is whether the Crown has proven beyond a reasonable doubt that Mr. Baker participated.

Count 4 - Possession of a Weapon for the purpose of committing an indictable offence [ 140 ] The essential elements for this count are that Mr. Baker: (

i) possessed a weapon; (ii) that he knew that what he possessed was a weapon; and (iii) that he had the weapon for the purpose of committing an indictable offence. [ 141 ] Again, the evidence clearly proves beyond a reasonable doubt that one of the three perpetrators had a knife and that the knife was used in the commission of these indictable offences. The only question is whether the evidence proves Mr. Baker had such possession. [ 142 ] Of course, possession can mean more than one thing, as will be explained.

Mode of Participation [ 143 ] At law, an accused may be found guilty of an offence either as a principal or as a party to the offence.

As succinctly stated in the most recent iteration of Justice Watt’s Manual of Criminal Jury Instructions , 2023 Edition, at page 476: [1] Under our law, a person may participate in an offence and be guilty of it in different ways. [2] A person may commit an offence by personally doing everything necessary to commit the offence, either alone or along with somebody else who participates in the same way. [3] A person may commit an offence by helping another person to commit that offence. [4] A person may commit an offence by encouraging another person to commit that offence.

[5] A person may also commit an offence by being involved with others in a common unlawful purpose. If anyone of the group commits an offence (different than what they agreed on in the first place) in carrying out their original common unlawful purpose, any other member of the group who knew or should have known that the offence would likely be committed by somebody in the group carrying out their original purpose is guilty of the offence the other person actually commits. [ 144 ] Here, I am satisfied beyond a reasonable doubt by the evidence that the three assailants who broke into Mr.

Lewis’ apartment on January 5, 2021 were acting in a common unlawful purpose. I am satisfied beyond a reasonable doubt that each person knew or should have known that in carrying out that common purpose, it was likely that someone would be assaulted with the knife. Recall that prior to the break and enter, one of the three sprayed a substance into Mr. Lewis’ eyes, which itself was an assault. It is beyond reasonable doubt that any one of the three was unaware of the likelihood that the occupant of the apartment would be assaulted and wounded.

Likewise, it is unreasonable in my view to conclude that they were unaware that a knife would be used in the commission of the offence. [ 145 ] With respect to Count #4, the Crown must prove beyond a reasonable doubt that Mr. Baker was in possession of the knife. Unlike other modes of participation, possession requires something more than being part of a common unlawful purpose. [ 146 ] As stated by Justice Watt in his Manual of Criminal Jury Instructions at page 531, Sometimes, several persons may have possession of a weapon at the same time.

Where any one of two or more persons, with the knowledge and agreement of the others, has a weapon in their possession or custody, all of them are in possession of the weapon, provided each has some control over it. Knowledge and agreement by the others who are not in actual possession of the weapon is essential. Mere indifference, or doing nothing, is not enough. [ 147 ] As a result based on the evidence before the Court, I am satisfied that, if the Crown has established beyond a reasonable doubt that Mr.

Baker was one of the assailants in this case, the law will render him guilty of Counts 1, 2, 3 and 4 of the Indictment, notwithstanding that the evidence may not have proven beyond a reasonable doubt that he was the one “unmasked” assailant who stabbed the victim. IDENTIFICATION [ 148 ] As stated earlier in these reasons, the only live issue in this case is identification. [ 149 ] I will begin with the identification of the accused by the victim in this matter, Mr. Lewis. [ 150 ] I agree with both counsel for the Crown and for the Defence that any identification by Mr.

Lewis is so fraught with inconsistency as to be meaningless. [ 151 ] While Mr. Lewis named Mr.

Baker at the preliminary inquiry and at trial, he admits that the police gave him the accused’s name. [ 152 ] He initially told police the unmasked assailant had no tattoos, but understandably that was only a couple of hours after the robbery and assault and while the victim was in hospital, receiving care. [ 153 ] He later identified the unmasked man as having tattoos on his face, including a crown tattoo in the area of his right brow, but this was only after he had a seen a photo of the accused, likely the public notice issued by police. [ 154 ] Most significantly, when Mr.

Lewis was asked to identify the unmasked man during the trial, he pointed not to Mr. Baker but to the Sherriff’s deputy seated beside him in the dock. The man identified by the witness had no discernible tattoos anywhere on his body.

[155] Also, the Court did not receive any evidence related to any tattoos on Mr. Baker’s face, though some tattoos could be observedfrom my vantage point on the dais. But there is no evidence as to what tattoos Mr. Baker had on January 5, 2021, nor at the time of hisarrest on January 6, 2021. Likewise, there was no evidence presented as to Mr. Baker’s appearance in January 2021 – either in terms ofhis hair length or whether he had facial hair. [156] As a result, taking into consideration all of the evidence with respect to Mr. Lewis’ identification of Mr.

Baker as being one of theassailants involved in this case, I find that it is of no real value. It is, as the parties have argued, a neutral factor, neither tending to proveguilt nor, on the whole, tending to prove Mr. Baker’s innocence. [157] As a result, I will now turn to the circumstantial evidence in this case – the fingerprint and Mr. Baker’s proximity to stolen goodsat the time of his arrest. [158] In the 2016 decision of R. v. Villaroman, 2016 SCC 33 , the Supreme Court of Canada instructed trial judges on how toconsider circumstantial evidence.

The case involved a situation where the accused brought his laptop computer in for servicing. Thetechnician who was working on the computer discovered child pornography on the computer, leading to charges against the accused. [159] The Defence argued that the presence of the pornography on Mr. Villaroman’s laptop was not definitive proof that he put it thereor even that he knew it was there.

The trial judge held that the only reasonable inference was that the accused downloaded thepornography or, if he did not, that he had to have known of its presence. [160] The Alberta Court of Appeal overturned the trial judge, finding that there were alternative inferences that could be drawn fromthe evidence that were inconsistent with the accused’s guilt.

Specifically, the Court of Appeal engaged in hypothetical alternatives, suchas that someone else had used the accused’s laptop to access the pornography. [161] Writing for the Supreme Court, Justice Cromwell noted that circumstantial evidence requires the trier of fact to avoid “filling ingaps” or jumping to conclusions. He wrote as follows: [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt: R. v.

Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff’d (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v.Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonablepossibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might beconsistent with the innocence of the accused”: R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Other plausibletheories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence,not on speculation. [38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question is whetherthe circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference otherthan that the accused is guilty. [162] Justice Cromwell noted that reasonable doubt may come from a gap in the Crown’s evidence and that such a gap may lead toreasonable inferences other than guilt, writing at paragraph 35: In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC4, [2009] 1 S.C.R. 104, at para. 58; see also R. v.

Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614,14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accusedto prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issuewith respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonable inferencesother than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. [163] As for the distinction between plausible alternatives and pure speculation, the Supreme Court held that the Court of Appeal had infact engaged in speculation, which is improper. Justice Cromwell wrote: [50] When dealing with the defence position, the [trial] judge correctly stated the law, in my opinion. The judge properly noted that“the accused cannot ask this Court to rely on supposition or conjecture, that flows from a purely hypothetical narrative to conclude that

the Crown has not proven he is guilty of the offences with which the Crown has charged him”: para. 47. The judge’s citation of McIverwas intended to make the same point, i.e. that a reasonable doubt cannot arise from speculation or conjecture. This is perfectly correct.As the Court said in Lifchus, “a reasonable doubt must not be imaginary or frivolous”; need not be proof to an absolute certainty; andmust be based on “reason and common sense”: paras. 31 and 36. The burden on the Crown does not extend to “negativing everyconjecture”: R. v.

Paul, (SCC), [1977] 1 S.C.R. 181, at p. 191. […] [66] The judge did not ignore hypothetical alternative explanations advanced by the respondent’s counsel. He found that they werespeculative, noting that the Crown does not have the burden “of negativing every conjecture to which circumstantial evidence might giverise and which might be consistent with the innocence of the accused”: para. 81; citing Paul, at p. 191. [164] So, there are two questions that arise from the fingerprint evidence: 1) is it reasonable, in the totality of the evidence, to infer thatthe fingerprint was left by Mr.

Baker during the home invasion on January 5, 2021? and 2) is there another reasonable inference to bedrawn from the evidence that is inconsistent with his guilt? [165] The Crown has cited two cases that are strikingly similar to the present case. The first is Martin v. R, 2021 NBCA 53 , adecision written by Justice Drapeau of our Court of Appeal. He introduced the case as follows: [2] On July 21, 2020, someone broke and entered into a dwelling-house while the owner and his spouse were absent. The neighboursrealized a burglary was in progress and alerted the police.

In the meantime, the thieves ransacked the house in search of valuable objectsand fled before the police arrived. When they reached the premises, the police observed various items of personal property, including aplastic pouch that had been given to the owner’s spouse several years earlier, were scattered on the floor in the bedroom. The policeinvestigation subsequently confirmed a theft had indeed been committed and the appellant’s fingerprints were on the plastic pouch.

Theappellant is not known to the owner or his spouse, and they never received him into their home. [3] The question at trial was whether that evidence was sufficient to prove beyond a reasonable doubt the appellant had participated inthe breaking and entering and the theft. The trial judge answered in the affirmative and found the appellant guilty. The appellant submitsthe circumstantial evidence in the record does not exclude the possibility he had taken possession of the pouch in innocent circumstancesbefore it was given to the owner’s spouse.

The appellant did not testify. [166] Justice Drapeau cited the Supreme Court’s guidance in Villaroman, supra, and the framework to be applied to cases involving thesufficiency of circumstantial evidence such as fingerprints, as well as his earlier decision in Russell v. R., 2021 NBCA 19, where hewrote at paragraph 43: Where the outcome turns on circumstantial evidence, an inference alternative to guilt may be drawn from a lack of evidence or gaps inthe evidence. There is no burden on the defence to prove facts capable of opening the door to a finding that guilt is not the onlyreasonable inference.

In determining whether such an inference is appropriate, the judge must be satisfied it arises from a plausibletheory or a reasonably possible scenario that are rooted in common sense, logic and everyday experience applied to the evidence orabsence of evidence. Inferences alternative to guilt must be reasonable; they may not flow from speculation. [167] Justice Drapeau, in dismissing the appeal, concluded that the Defence’s alternate theory was nothing more than speculation,which was not open to the trial judge to accept.

He wrote: Like the trial judge, I am of the view the hypothesis that the appellant might have obtained possession of the plastic pouch before it wasacquired by the owner’s spouse is speculation and cannot be accepted. There is only one reasonable inference to be drawn from therecord as a whole: the appellant participated in the breaking and entering and the theft with which he was charged. [168] The second case which appears to be on-point is R. v. Miller, 2016 BCCA 263 , a decision of the British ColumbianCourt of Appeal written by Justice Lowry.

The facts of that case are set out in the opening paragraphs: [1] The appellant was tried in the Provincial Court and convicted of breaking into and entering a private, remotely located, residencebelonging to a man and his wife who were away at the time. He appeals, contending the verdict is unreasonable and not supported by theevidence, which was entirely circumstantial. [2] The focus of the evidence is the appellant’s fingerprints having been found on a thick plastic sleeve or shielding bag containing amedical device that had been moved from one room in the residence to another during the break-in.

The medical device was to be used to

assess the working of a pacemaker with which the man was fitted. It had been shipped by mail from a hospital in Kelowna, aconsiderable distance away, sometime earlier. When received, it had been in a box which the man used for other purposes. The man hadtaken the sleeve containing the device out of the box but, at the time of the break-in, he had not used the device which remained in thesleeve. The appellant’s fingerprints on the sleeve were the only prints of the appellant found in the residence. He lived in Kelowna andwas there a few days before the break-in.

He did not testify. [169] The Court of Appeal considered the Defence arguments that the accused may have handled the device or the sleeve at some timeprior to the break-in, presumably before it was shipped to the homeowner from the hospital. The trial judge dismissed such a suggestionas mere speculation. The Court of Appeal of British Columbia agreed, writing as follows: [5] Here, it is contended now, as it was at trial, that the appellant may have handled the device, or at least the sleeve in which itwas contained, sometime before the device was shipped to the residence – presumably at the hospital.

The judge dismissed thesuggestion as being mere speculation in the absence of any evidentiary basis. It is difficult to see how it could be otherwise. There wasno evidence adduced at trial that would suggest the appellant was ever at the hospital, much less given the opportunity to handle adevice used to assess the working of a pacemaker, or the sleeve and perhaps the box in which it was contained. Indeed, this would appearto be a case in which significance could properly be attached to the appellant giving no evidence that would serve to explain hisfingerprints being on the sleeve where they were found.

The Crown made out a strong prima facie case supporting a finding of guiltbeyond a reasonable doubt such that the appellant’s silence was indicative of there being no evidence to support speculative explanationssuch as were, and are now, offered: R. v. Noble, (SCC), [1997] 1 S.C.R. 874 at para. 89. If, as here, the Crown’s casecries out for an explanation, an appellant must accept the adverse consequences of his decision to remain silent: R. v. Lepage, (SCC), [1995] 1 S.C.R. 654 at para. 29, quoting R. v.

Johnson (1993), (ON CA), 12 O.R. (3d) 340 (C.A.)at 347-48. [170] Numerous cases involving fingerprint and DNA evidence were brought to the Court’s attention to demonstrate the dangers andthe limits associated with circumstantial evidence. And, in many of those cases, the courts properly held that the circumstantial evidencewas not sufficiently robust to support a finding of guilt. [171] One example is R. v. Mars, (ON CA), the facts of which are similar to the present case. The accused wascharged with being one of three assailants who broke into the victim’s home, robbed and assaulted him.

Two of the assailants weremasked while one was not. [172] In order to gain entry, one of the assailants posed as a pizza delivery man, holding a pizza box up to the peephole of the frontdoor. Believing the pizza was being delivered to the wrong address, the homeowner opened the front door, and the three men rushedinto the apartment. [173] After the events in question, the police found the discarded pizza box near the crime scene. The police identified three sets offingerprints on the pizza box, one of which was the accused’s. That amounted to the strongest evidence against the accused in that case.

There was other evidence, which was inconsistent with guilt, however, including a neighbour who identified the assailants as three backmen, while the accused was white. [174] As for the reasonable inferences to be drawn from the fingerprint, the Ontario Court of Appeal stated as follows: [19] The probative value of fingerprint evidence depends on the totality of the evidence. Fingerprint evidence will almost alwaysafford cogent evidence that the person whose fingerprint is left on the object touched that object.

However, the ability of the fingerprintevidence to connect an accused to the crime charged will depend on whether there is other evidence capable of establishing that theaccused touched the object at the relevant time and place so as to connect the accused to the crime. [20] In this case, the fingerprint evidence clearly established that the appellant had touched the pizza box at some point in time.

However, the probative value of the fingerprint evidence on the charges depended upon whether the entirety of the evidence reasonablypermitted the inference that the appellant touched the pizza box in connection with the robbery and not at some other time and place. The fingerprint evidence standing alone did not permit any inference as to when the appellant’s fingerprint was placed on the pizza box.

The reasonableness of the verdicts, therefore, turns on whether the inference that the appellant touched the pizza box in connection withthe robbery could reasonably be drawn from the evidence other than the fingerprint evidence itself. [21] The evidence does not reasonably permit the conclusion that the appellant placed his fingerprint on the pizza box at the time ofthe robbery. Quite simply, there is no evidence that assists as to when the fingerprint was placed on the pizza box.

Put somewhatdifferently, the Crown cannot point to any evidence that makes the inference that the appellant touched the pizza box in connection withthe robbery a more likely inference than the inference that he touched the pizza box at some other time.

[175] The Court of Appeal held that there was insufficient evidence connecting the fingerprint to the crime since. Of course, in thatcase the pizza box was introduced into the crime scene by the assailants, such that there was no way to know when or under whatcircumstances the accused had touched the pizza box. As a result, the Court of Appeal held that guilt was not the only reasonableinference to be drawn from the circumstantial evidence. [176] This was also the case in R. v. Metzger, 2023 SCC 5 , where Justice Rowe wrote for the majority of the Supreme Courtof Canada.

In that case, the accused was charged with participating in a home invasion and robbery. The victims could not identify theassailants. Some 11 hours after the crime, police found the victim’s stolen car. In it, they found a cigarette containing the accused’sDNA. The Supreme Court held that the DNA evidence, on its own, could not support a finding of guilt because there was no evidenceas to when the cigarette came to be in the car. Justice Rowe wrote at paragraph 3 as follows: The trial judge acknowledged that the DNA evidence, standing alone, would not be sufficient to establish guilt beyond a reasonabledoubt.

I agree with that conclusion. The DNA evidence at best permitted an inference that the appellant was in the vehicle at some pointin time prior to its recovery by the police. There was no evidence indicating when and why the appellant may have been in the vehicle,which was unaccounted for during the 11 hours between the robbery and its recovery. [177] Another case is R. v. Janeiro, 2022 ONCA 118 , a decision written by Justice Paciocco. That case involved a robbery ofa donut shop by a masked robber. The store clerk could not identify the robber, nor could the identity be determined by videosurveillance.

The police investigation turned up two key pieces of evidence: (1) a plastic kitchen garbage bag left by the robber at thescene which contained five fingerprints, one of which matched the accused. The police could not identify the other fingerprints found onthe bag; and

(2) DNA from saliva found approximately two hours after the robbery on a sidewalk approximately 60 meters from thedonut shop. More than 5 years after the robbery, the accused was convicted with a different offence. Police obtained a DNA samplewhich was consistent with the saliva found on the sidewalk. That led to the accused being charged with the robbery. [178] At trial, the accused was found guilty. On appeal, Justice Paciocco held that the verdict was unreasonable, citing the challengesparticular to fingerprint evidence.

He provided the following analysis: [84] The Mars case illustrates the challenges the fingerprint evidence poses. The fingerprint on the plastic bag used by the robberproved that Mr. Janeiro touched the bag, but it is incapable, on its own, of proving that he touched the bag in connection with therobbery. This is not a case where there is circumstantial evidence showing that this forensic evidence was deposited during the event,such as in R. v.

Samuels, 2009 ONCA 719, where a fingerprint on a motor vehicle was in the same location the perpetrator was seen totouch it, and bore indications of direction and movement consistent with the manner in which the perpetrator was seen to touch thevehicle. To the contrary, there is evidence creating doubt about whether the print was deposited on the bag during the robbery. [85] First, although the trial judge only referred to the one matching fingerprint in his Reasons for Judgment, there were in fact fivefingerprints on the bag that were suitable for comparison. Only one fingerprint was linked by evidence to Mr.

Janeiro. As the Crownfairly conceded during oral argument on appeal, the evidence does not eliminate the possibility that those other prints on the bag couldbelong to one or more other individuals who also touched the bag. […] [87] The Crown seeks to overcome the Mars problem – the absence of evidence that the fingerprint is linked to the robbery – byarguing that there is an additional piece of evidence linking Mr. Janeiro to the offence – namely, the DNA evidence obtained from thesaliva. [88] I do not dispute that additional evidence can overcome the Mars problem. In Youssef, for example, Mr.

Youssef’s DNA found ona knife left behind by the perpetrator could not alone link Mr. Youssef to the crime, but that deficit was overcome when additional DNAfrom Mr. Youssef was found on a t-shirt in the getaway car. Similarly, in R. v. Wills, 2014 ONCA 178, 308 C.C.C. (3d) 109, aff’d 2014SCC 73, [2014] 3 S.C.R. 612, Mr.

Wills’ DNA was found on a bandana left at the scene, another bandana on the ground on the flightpath the perpetrators took, and he was later found in possession of a weapon similar in appearance to the description of the weapon usedin the crime – a police baton. [89] The problem with the Crown’s attempt to use the DNA saliva evidence to accomplish a similar outcome in this case is that,unlike in Youssef and Wills, there is no evidence linking the additional evidence – the saliva on the sidewalk – to the robbery.

This is nota case where the DNA was extracted from the crime scene or a known flight path, nor was it on an object or vehicle linked to the crimescene. The saliva was found approximately two hours after the robbery approximately 60 metres away from the donut shop on a public

sidewalk where Mr. Janeiro could reasonably be expected to have been. Nobody observed the robber in that location either before orafter the robbery. Put simply, the DNA put Mr. Janeiro on a public sidewalk in front of a business within metres of his home and hisplace of employment at some point in time on the evening or night of the robbery.

It did not put him at the robbery or otherwise connecthim to the robbery. [179] In Janeiro, the accused testified at trial and explained that he lived and worked in very close proximity to the crime scene, suchthat the presence of his saliva on a sidewalk was not unusual, and nor would it be unusual to find his fingerprint on a kitchen garbage bagthat could easily have been discarded. [180] This was also the case in R. v Frost, 2019 BCSC 1919 , where the accused was charged with break, enter and theft froma dwelling house.

The evidence against her was primarily a fingerprint lifted from the exterior pane of a window. At trial, the Crownconceded that there was no conclusive evidence to support the police theory that the burglars had gained access through that particularwindow, nor was there evidence of any temporal connection between when the fingerprint was deposited and the offence. Again, thefingerprint was found on the outside pane of the window. [181] The trial judge, in finding the accused not guilty, wrote as follows: [20] In this case, the gaps in the evidence adduced by the Crown leave me unsure as to when Ms.

Frost's fingerprint was depositedon Mr. Foidart's window. Further, I would characterize it as a rather sloppy or messy looking fingerprint which is inconsistent with nofingerprints having been left inside the home. There is no other evidence linking Ms. Frost to the crime. [21] No case was cited to me where a conviction for a break and enter was founded exclusively on an unexplained fingerprintdeposited on the exterior of an accessible window at an unknown time. In these circumstances, I need not speculate on how Ms. Frost'sfingerprint got there.

The whole of the evidence simply falls short of satisfying me beyond a reasonable doubt that Ms. Frost broke intoMr. Foidart's home on July 30, 2017, or had anything else to do with the crime. [22] In these circumstances, I must find Ms. Frost not guilty. ANALYSIS [182] I will now return to the two questions that the Court must consider. First, is it reasonable, in the totality of the evidence, to infer that the fingerprint was left by Mr. Baker during the home invasion onJanuary 5, 2021? [183] The answer to this question is yes. [184] The fingerprint was identified on an envelope which Mr.

Lewis testified was on his kitchen table before the home invasion, andwhich Sgt. Perry testified was found on the floor of the kitchen following the home invasion. That is, it is both temporally and spatiallyconsistent with Mr. Baker touching that envelope during the home invasion. It was not introduced into the crime scene as in Mars; and itwas not found at another location after the crime, as in Metzger. [185] That inference is made stronger when we also consider that Mr. Baker was arrested outside the building where Mr. Lewis’ stolencell phone and driver’s license were recovered by police.

As held by the Ontario Court of Appeal in R. v. Youssef, 2018 ONCA 16, circumstantial evidence which, standing alone, may be insufficient to prove guilt, can be considered in combination with otherpieces of circumstantial evidence and together they may prove guilt beyond a reasonable doubt. [186] I have no hesitation in concluding that the circumstantial evidence in this case, taken together, allows the Court to reasonablyinfer that Mr. Baker was one of the assailants on January 5, 2021, but I must consider the second question.

Secondly, is there another reasonable inference to be drawn from the evidence that is inconsistent with Mr. Baker’s guilt?

[ 187 ] Mr. Baker’s counsel argues that the Crown’s evidence has gaps. During argument, the only alleged gap identified was the timeframe before Mr. Lewis brought the envelope to his apartment. Recall that the envelope was delivered to the former home he shared with his father, and not to the apartment at the Country View Motel. Further, Mr. Lewis could not say exactly when that envelope was brought to his apartment. [ 188 ] But is that a gap in the evidence that gives rise to an alternative inference that is inconsistent with Mr. Baker’s guilt? [ 189 ] One can

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