R. v. Sinclair, 2012 NSSC 408

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Sinclair, 2012 NSSC 408 Date: 20121127 Docket: CRH 393623 Registry: Halifax Between: Her Majesty The Queen v. Barry Edward Sinclair Editorial Notice Identifying information has been removed from this version of the judgment. Restriction on publication:

Section 486.4(1)(a)(i) - Ban on Publication of any information that could disclose the identity of the complainants. Judge: The Honourable Justice Michael J. Wood Heard: November 5, 6, 7, 8 and 9, 2012, in Halifax, Nova Scotia Decision: November 27, 2012 (Orally) Written Release of Decision: November 28, 2012 Counsel: Denise Smith, for the Crown Luke A. Craggs, for the Defence

By the Court: (Orally) [1] In the early morning hours of September 15, 2011, there were two break-ins which occurred in south end Halifax. Thelocations were slightly more than one kilometre apart. Barry Edward Sinclair was arrested a half kilometre from the site of the secondbreak-in, about thirty minutes after it had occurred. [2] On September 18, 2011, a police search was carried out at Mr. Sinclair’s apartment in Dartmouth, which resulted in theseizure of a small video cassette. This contained images of young women, who had apparently been videotaped surreptitiously in theirhomes. [3] Mr.

Sinclair has been charged with various offences arising out of these events. These are two counts of unlawful break andenter with intent, contrary to s. 348(1)(

a) of the Criminal Code and five counts of voyeurism, contrary to s. 162(1)(

a) of the CriminalCode. Two of the voyeurism charges arise out of the break and enters and the other three are the result of the images found on the videocassette. [4] The trial of these charges took place on November 5 to 9, 2012. At the conclusion of the Crown’s case, Ms. Smith made amotion to permit the use of similar fact evidence with respect to the two break and enters. The Crown argued the circumstances of thetwo incidents were sufficiently similar that the Court could infer they were committed by the same person.

If successful, the Crownwould have been able to use the evidence with respect to one break and enter to infer that Mr. Sinclair was guilty of the other. [5] I dismissed the Crown’s similar fact evidence motion and, as a result, Mr. Sinclair’s guilt or innocence will be determinedbased only on the evidence relating to each occurrence. It is obvious that some evidence will be relevant to both charges, such as thetime and location of Mr. Sinclair’s arrest.

This is not because of the similar fact rule, which has no application here, but simply becauseof the geographic and temporal relationship between the events. [6] This is a criminal trial and so the burden of proof rests on the Crown to prove the elements of each charge beyond areasonable doubt. Mr. Sinclair is presumed to be innocent of the crimes with which he has been charged. He has no obligation to provehis innocence and is not required to testify or present evidence. [7] The Supreme Court of Canada has described reasonable doubt in R. v. Lifchus, (SCC), [1997] S.C.J. 77 asfollows (at para. 39): . . .

A reasonable doubt is not an imaginary or a frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based onreason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high. . . . [8] This is also a case where the Crown’s evidence with respect to the identity of the perpetrator is primarily circumstantial. In

such case, Mr. Sinclair should only be found guilty where I am satisfied that the only reasonable conclusion to draw from all of the evidence is that he was the person who committed each offence. [ 9 ] I will discuss the events giving rise to the charges against Mr. Sinclair in the chronological sequence in which they unfolded, starting with the break-in at ... Shirley Street, Halifax, Nova Scotia. SHIRLEY STREET [ 10 ] Apartment #... at ... Shirley Street is a flat in a residential home in the south end of Halifax, which contains two other units.

On the evening of September 14 and the early morning of September 15, 2011, it was occupied by its ... female tenants and a male friend. [ 11 ] C. J. arrived home from the library at 11:30 p.m. and says that she locked the front door. She retired to her room, where she watched a movie and then fell asleep with the lights on. She awoke at 4:30 a.m. and thought that she had heard a sound in the apartment living room which was immediately outside the door to her bedroom. [ 12 ] Ms. J. heard the door to her room open and she opened her eyes. She saw a dark figure in the doorway partially in her bedroom.

That person quietly closed the door. Ms. J. heard sounds of the person moving away from her bedroom door, but could not recall if she heard the front door of the apartment being unlocked. [ 13 ] Ms. J. then locked her bedroom door and sent a text message to one of her roommates, K. C., asking if she had been in her room. She also called a friend on Skype and then went back to sleep. She arose around 10:30 a.m. [ 14 ] Her roommate, Ms. C., got up at 5:30 a.m. for her usual work shift. When she left the apartment, she noticed that the front door was unlocked which she said was unusual.

She returned home from work at 2:00 or 3:00 p.m. [ 15 ] After some discussions amongst the roommates, the Halifax Regional Police were called in the afternoon of September 15, 2011 to report a break-in. Detective Constable Andre Habib, an identification officer from HRPS, arrived on the scene at approximately 3:30 p.m. [ 16 ] As an identification officer, Detective Constable Habib ’ s role is to assess the scene carefully and search for and preserve any evidence relevant to the investigation. He looked for fingerprints and swabbed for DNA samples at several locations around the exterior of the dwelling.

Ultimately, no useful fingerprint or DNA evidence was obtained. [ 17 ] Detective Constable Habib quickly identified a kitchen window as the likely point of entry based upon a resident of the apartment telling him that the window had been open. There was no trial evidence from any occupants of the flat confirming this. [ 18 ] Detective Constable Habib found a finger smudge on the Venetian blind inside the kitchen window, but there was otherwise no forensic evidence found by him to confirm that this was the point of entry.

The window opening was partly obstructed by an interior radiator; however, Detective Constable Habib expressed the opinion that he could have crawled through this opening and that he believed Mr. Sinclair could have as well. He did not make any attempt to physically enter that space and took no measurements of the dimensions of the opening because he did not think it was relevant to the investigation. [ 19 ] Detective Constable Habib took a number of photographs at the Shirley Street address and these were entered as exhibit 9.

Several of these photographs (such as numbers 12 and 16) show the alleged point of entry. The unobstructed portion of the window opening appears quite small and, based upon these photographs, I believe there is a serious question as to whether an adult male could have gained access to the apartment at that location.

[ 20 ] Having identified the window as the point of entry, Detective Constable Habib looked for evidence inside the apartment in that area. He dusted for footprints, but nothing usable was obtained. There was a blue bucket containing a mop just inside the window and, in cross-examination, Detective Constable Habib says he looked in that bucket but did not notice anything unusual. [ 21 ] On October 3, 2011, Ms. C. decided to use the blue bucket for compost. According to her, the bucket and mop had not been used for several weeks and possibly as long as a couple of months.

When she lifted the mop out of the bucket, Ms. C. saw a cell phone. She turned it on to see if she could identify the owner, but could not. After discussions with Ms. J., they felt that it might belong to the intruder because of its location near to the point of entry which had been identified by Detective Constable Habib. They called Halifax Police who came and seized the phone. [ 22 ] Detective Constable Sandra Johnston was the officer who attended Shirley Street on October 3, 2011. She took a number of photographs of the phone and the area in which it was found.

These show a number of changes to the area of the kitchen near the bucket. There were several cases of beer on the floor and the handle on the bucket itself had been moved. According to both Ms. C. and Ms. J., there had been a number of friends who visited the apartment for social purposes over the previous couple of weeks, but there were no large gatherings. [ 23 ] Detective Constable Johnston sent the telephone for forensic analysis, which was carried out by Mr. Blair MacLellan, a civilian employee of the RCMP. Mr. MacLellan was qualified as an expert witness in forensic analysis of electronic devices.

He was permitted to provide opinion evidence on the retrieval of data from the cellular telephone found by Ms. C. [ 24 ] Mr. MacLellan identified the make and model of the telephone, and said that it was initiated for use in February, 2011 on a pay-as-you-go plan. The telephone number associated with the phone was 902-495-9846. The last incoming telephone call was received on September 14, 2011 at 3:30 p.m. The last outgoing call was made to the same number at 8:04 p.m. on the same date.

There had been a number of calls and text messages sent to and received from that telephone number, beginning on September 2, 2011. Mr. MacLellan indicated that on July 15, 2011 a text message was sent from the phone in which the sender identified himself as “ Barry ” . [ 25 ] Exhibit number 24 was entered by agreement. It was a statement from Bell Canada Corporate Security identifying that telephone number 902-495-9846 was assigned to Barry Sinclair. [ 26 ] Mr. Sinclair was arrested approximately 1.5 kilometres away, about an hour after Ms. J. says someone came into her room.

He did not have a cell phone in his possession at that time. He was detained in custody until the early hours of September 16, 2011. He was arrested again on September 17, 2011 at 4:00 a.m. at which time he had a cell phone in his possession. It was the same make and model as the one which would subsequently be found on Shirley Street on October 3. [ 27 ] At the time of his arrest on September 17, Mr. Sinclair also had a receipt which was entered as exhibit 19. It was dated September 16 at 6:25 p.m. and was for the purchase of a prepaid cell phone with the number 902-495-9846.

The make and model matched the phone found in his possession when he was arrested. [ 28 ] All of this evidence satisfies me that the cellular phone found by Ms. C. on October 3, 2011 belonged to Mr. Sinclair. The question on which the outcome of this break and enter charge will turn is whether this and the other circumstantial evidence satisfies me that the only reasonable conclusion to be drawn is that Mr. Sinclair was in Ms. J. ’ s apartment on the morning of September 15, 2011. [ 29 ] According to Mr.

MacLellan, the phone had been in use up to 8:00 p.m. on the evening of September 14, a few hours before the break-in. The number called at that time had been the subject of prior contact starting approximately two weeks earlier. I am satisfied that the phone was still in the possession of and being used by Mr. Sinclair at 8:00 p.m. on September 14. [ 30 ] Mr. Craggs, on behalf of Mr. Sinclair, agreed that if the phone was in the mop bucket on the morning of September 15, 2011, that would support an inference that Mr. Sinclair was the person who entered the apartment that day.

He argues that it was not seen in the bucket at that time and so the proper conclusion to be reached is that it was not there.

[31] Even at the time the phone was discovered by Ms. C. on October 3, it did not appear to be visible. Ms. C. did not see it untilafter she had lifted the mop which suggests that the phone was under it. This is consistent with nobody else seeing it even though thebucket is in a high traffic area of the kitchen. It would also explain why Detective Constable Habib did not notice it while searching forevidence on September 15. [32] There was no evidence that any of the residents of the apartment or their guests placed the phone in the bucket.

It would bepure speculation to suggest that one of these people found the phone elsewhere and placed it in the bucket accidentally or on purposesometime between September 15 and October 3, 2011. [33] It is clear to me that the phone left Mr. Sinclair’s possession sometime between 8:00 p.m. on September 14 and his arrest at5:30 a.m. on September 15.

That would explain why its usage stopped and he obtained a replacement phone of the same model, with thesame phone number, within a few hours of his release from custody on September 16. [34] On all of the evidence, I am satisfied that the only reasonable conclusion to draw is that Mr. Sinclair’s phone was inadvertentlydropped into the mop bucket by him on September 15, 2011 at or before 4:30 a.m. As a result, I conclude that he was in the premises onShirley Street without permission and is therefore guilty of an offence contrary to s. 348(1)(

a) of the Criminal Code. This charge iscount three in the indictment. [35] I do not need to decide how Mr. Sinclair gained access and, in particular, whether it was through the kitchen window assuggested by Detective Constable Habib, through an unlocked front door or some other location. It is sufficient that he was presentwithout permission of the residents. [36] In her submissions, Ms. Smith, on behalf of the Crown, properly indicated that the evidence did not support the charge ofvoyeurism contrary to s. 162(1)(

a) of the Code in relation to this incident. I agree, and find Mr. Sinclair not guilty of that charge whichis count four in the indictment. SOUTH STREET [37] On September 15, 2011, a break-in occurred at ... South Street in Halifax. Unlike the break-in on Shirley Street, the evidencein relation to this incident included several witnesses who provided eye witness identification testimony. Such evidence must always beviewed with caution. The following comment from the Alberta Court of Appeal in R. v.

Atfield (1983), 1983 ABCA 44 , 42A.R. 294 provides a useful discussion of the issue (at para 3): 3 The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comesfrom witnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonethelessmistaken. Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriages ofjustice through mistaken identity.

The accuracy of this type of evidence cannot be determined by the usual tests of credibility ofwitnesses, but must be tested by a close scrutiny of other evidence. In cases where the criminal act is not contested and the identity ofthe accused as the perpetrator the only issue, identification is determinative of guilt or innocence; its accuracy becomes the focal issue attrial and must itself be put on trial, so to speak. As is said in Turnbull, supra, the jury (or the judge sitting alone) must be satisfied ofboth the honesty of the witness and the correctness of the identification.

Honesty is determined by the jury (or judge sitting alone) byobserving and hearing the witness, but correctness of identification must be found from evidence of circumstances in which it has beenmade or in other supporting evidence. If the accuracy of the identification is left in doubt because the circumstances surrounding theidentification are unfavourable, or supporting evidence is lacking or weak, honesty of the witness will not suffice to raise the case to therequisite standard of proof and a conviction so founded is unsatisfactory and unsafe and will be set aside.

It should always beremembered that in the famous Adoph Beck case, 20 seemingly honest witnesses mistakenly identified Beck as the wrongdoer. [38] In this case, there is identification evidence provided by Ms. P., Mr. Stone and Constable Tortola which will need to beconsidered with these principles in mind.

[ 39 ] On September 14, 2011 at 9:30 p.m., L. P. returned to her apartment at ... South Street in Halifax. She shared this flat with ... other young women. She went to her room and fell asleep between 1:30 and 2:00 a.m. Several hours later she was awakened by the hall light shining in her eyes and the sound of a fan sliding across the floor as her bedroom door was opened. [ 40 ] Ms. P. opened her eyes and saw a male figure staring into her face from a foot away. She said, “ what the fuck ” twice and the man did not verbally respond. After five to ten seconds, he slowly backed out of her room and closed the door.

She locked her bedroom door and called one of her roommates to advise her to do the same and then called 911. It was shortly after 5:00 a.m. according to Ms. P. ’ s cell phone. Ms. P. told the 911 operator that the man she had seen in her room was in his mid-twenties and was wearing an orange hoodie. [ 41 ] At trial, Ms. P. said that the man in her room was skinny, had a drawn face, sunken eyes, prominent cheek bones, light coloured hair and scruffy facial hair. [ 42 ] At noon on September 15, Ms. P. viewed a photo lineup prepared by Halifax Regional Police.

She testified that she read and understood the instructions, which included a statement that the offender may or may not be in the series of photographs and that she was not obligated to make an identification. She reviewed twelve photographs and chose number twelve as being the man in her room. She advised the police that she was ninety percent certain it was him. The photograph she chose was not Mr. Sinclair, although his photograph was included in the lineup. [ 43 ] Several months later, Ms. P. saw a media report indicating that Mr.

Sinclair had been arrested and charged with some of the so- called “ night watcher ” offences. These reports included a photograph of Mr. Sinclair, which she recognized as the one used in the photo lineup. She testified that when she saw this media photograph, she recognized him as the man who was in her room on September 15, 2011. She also identified Mr. Sinclair in court. In cross-examination, Ms. P. acknowledged that it was possible that the media

article may have influenced her identification of Mr. Sinclair as the man in her room. [ 44 ] On the morning of September 15, 2011, Bernard Stone was parked in his truck on Robie Street beside Gorsebrook baseball field. As was his usual practice, he was drinking coffee, listening to the radio and waiting to go to work. He would typically arrive at that location shortly before 5:00 a.m. [ 45 ] Mr. Stone saw a man come from the area of Fraser Street and walk across Robie Street, stopping directly in front of his truck for a few seconds. He was looking around as if he did not know where he was going.

The individual was directly under a streetlight. Mr. Stone said he had a good opportunity to observe him. He was sweating profusely although he was not running. He was wearing a black hoodie and baggy pants with a sagging crotch. He had short blonde or white hair. [ 46 ] Mr. Stone said that the person was “ dressed young ” and looked out of place for that area and time of day. He was suspicious that he was up to something and would have called the police if he had a cell phone. The individual then crossed the sidewalk and went down a small slope onto Gorsebrook field where he stood and looked around again.

He then saw the individual go around the east side of Gorsebrook School and disappear. [ 47 ] Shortly after the individual disappeared, Mr. Stone saw a police car with flashing lights turn from South Street onto Robie Street travelling south. He waved the car down and spoke to the female officer. He asked if she was looking for a man and received an affirmative response. Mr. Stone told her that he believed the person she was looking for had just gone behind Gorsebrook School. According to Mr. Stone, the officer then turned around and drove right onto South Street. [ 48 ] A short time later Mr.

Stone walked to South Street and proceeded east. He came upon two police officers with a person in custody in a vehicle in front of the “ Cancer Lodge ” . Mr. Stone identified himself to one of the officers and gave a written statement. He testified that he believed the man he saw in the police car was the suspicious person he had seen on Robie Street earlier that morning. [ 49 ] Constable Karen Misner was the officer that dealt with Mr. Stone that morning. She recalls hearing a radio call about a break and enter on South Street while she was in the area of Police Headquarters on Gottingen Street.

She knew other officers were on their way to the scene and she does not know how quickly she responded. She heard a description of the suspect over the police radio, which described him as twenty-five to thirty, wearing an orange hoodie and looking like the “ creeper ” .

[ 50 ] Constable Misner drove west along South Street with her lights on and turned left onto Robie Street at which time she saw a truck flash its lights. She stopped and spoke to the driver who asked if the police were looking for a male. She indicated that they were and the driver said that a thin man, with a crew cut and wearing a black hoodie had just gone behind Gorsebrook School. Constable Misner immediately drove to South Street and proceeded in an easterly direction. She drove in various driveways looking for the man in the black hoodie.

She eventually saw a man walking east in front of the Cancer Lodge on South Street matching the description given to her by the driver. She spoke to this individual who identified himself as Barry Sinclair. He seemed to be slightly sweaty, but was not running. Mr. Sinclair indicated that he was coming from a friend ’ s house and going to buy cigarettes at a Needs store. [ 51 ] According to Constable Misner, at about this time, Constable Jeff Pulsifer arrived on the scene and joined her. The officers found Mr. Sinclair ’ s answers concerning what he was doing and where he was going to be vague and contradictory.

They decided to detain him for investigative purposes and he was taken into custody and placed in the back of Constable Misner ’ s vehicle. The time of his detention was noted as 5:35 a.m. [ 52 ] Constable Jeff Pulsifer heard a radio broadcast about a break and enter on South Street on the morning of September 15, 2011 and responded. He was aware that officers were on their way to the residence and so he stayed in the area looking for the suspect. He heard a radio broadcast from Constable Misner indicating she had found a man on South Street who matched the description of the person being sought.

Constable Pulsifer went to South Street and pulled up behind Constable Misner ’ s vehicle. They both left their vehicles at about the same time. He recalls Mr. Sinclair saying he was coming from the Dome and going to a friend ’ s house. Mr. Sinclair gave conflicting information concerning the name of the friend. He detained Mr. Sinclair for investigation purposes and put him in Constable Misner ’ s vehicle. [ 53 ] Constable Pulsifer said that Mr.

Stone approached him, identified himself and gave a statement while seated in Constable Pulsifer ’ s vehicle. [ 54 ] Neither Constable Misner nor Constable Pulsifer recalls seeing any other pedestrians on the street that morning. [ 55 ] Constable Robert Tortola heard the radio call about the break and enter when he was on Gottingen Street, in the area of Uniacke Square. He responded at 5:20 a.m. on September 15, 2011 and proceeded to the South Street area. He was the second car to reach the residence where the break-in was reported and arrived shortly after the first vehicle.

While driving west on South Street towards the scene, Constable Tortola saw a man walking east in front of Gorsebrook School. The man stopped and watched his vehicle as it crossed Robie Street. That behaviour seemed unusual to Constable Tortola at the time. [ 56 ] When he arrived at ... South Street, Constable Tortola walked through the residence and took a written statement from Ms. P.. He estimated that he was on-site for approximately thirty minutes. After leaving, he proceeded east on South Street and came upon Constable Misner and Constable Pulsifer dealing with a man in the driveway of Gorsebrook School.

He pulled over his vehicle for a few seconds and watched them take the man into custody. He then departed. Constable Tortola could not describe any distinguishing features of the individual but was certain it was the same man he had seen walking in front of the school thirty to forty minutes earlier. [ 57 ] Constable Roger Spriggs and his service dog, Zola, were called to the scene of the break and enter on South Street, and arrived at 5:41 a.m. Constable Spriggs was qualified as an expert dog handler and permitted to give opinion evidence with respect to the

interpretation of the actions of police service dog, Zola. Zola was qualified as an expert service dog, trained in tracking. [ 58 ] Constable Spriggs described the process followed with Zola that morning. In his opinion, she identified a human track which ran from the rear entrance to ... South Street apartment, through several back yards to a location on ... Street. The track was lost at that point. [ 59 ] I am satisfied that the Crown has proven that a break and enter occurred at ... South Street at around 5:00 a.m. on September 15, 2011. They have also proven that the perpetrator entered Ms.

P. ’ s bedroom and was staring at her. That person ’ s conduct is contrary to the provisions of s. 162(1) (

a) and s. 348(1) (

a) of the Criminal Code . The issue for my determination is whether the Crown has proven beyond a reasonable doubt that the perpetrator was Mr. Sinclair.

[ 60 ] The Crown relies on Ms. P. ’ s in court identification of Mr. Sinclair as the person who entered her bedroom. This identification was made after Ms. P. had seen a photograph of Mr. Sinclair following his arrest. She testified that she believed his arrest related to the break-in at her home. Initially, Ms. P. was unable to identify Mr. Sinclair in a police photo lineup conducted a few hours after the break- in. Despite the fact that his photograph was included in the lineup, she chose another person whom she indicated she was ninety percent certain was the one. [ 61 ] Ms.

P. ’ s initial report to the police was that the perpetrator wore an orange hoodie and was twenty-five to thirty years old. At the time of his arrest, a half hour later, Mr. Sinclair was wearing a black hoodie and was forty-nine years old. At trial, Ms. P. described a number of facial features which could apply to Mr. Sinclair. She also said that the perpetrator had scruffy facial hair and it looked like he had not shaved for two to three days. Photographs of Mr.

Sinclair taken by police eighteen hours after he was taken into custody show a relatively clean shaven individual, with virtually no facial hair. [ 62 ] After listening carefully to Ms. P. ’ s evidence, I believe that her identification of Mr. Sinclair at trial is based upon a combination of what she observed on the morning of September 15, 2011, as well as the knowledge that he was arrested and charged by police. While she may have an honest belief that he is the perpetrator, her identification evidence must be treated with great caution.

I believe more weight should be given to her initial report to police and the fact that she was unable to identify Mr. Sinclair in the police photo lineup. [ 63 ] Mr. Stone also provided identification evidence. At trial, he said that the person in court (i.e. Mr. Sinclair) might be the same person he saw cross Robie Street on the morning of September 15, 2011. He also said that the person he saw on Robie Street was the same individual he saw in police custody a short while later. [ 64 ] Mr. Stone ’ s description of the person he saw on Robie Street was relatively vague.

He was skinny, with blonde or white hair, wearing a black hoodie with baggy pants and was sweating. The pants were similar to those he saw young people wearing and the waist line was so low that the person could not run. Mr. Stone did not provide an estimate of the age of the person he saw, but did say he “ dressed young ” . [ 65 ] When Mr. Stone subsequently identified the man in custody as the person he had seen, that individual was seated in the back of Constable Misner ’ s patrol car. It seems that the closest Mr.

Stone got to him was when he was seated in the back of Constable Pulsifer ’ s vehicle giving his statement. From that vantage point, he would only have seen the shoulders and head of the individual from behind. Constable Misner said that there was no light on in the rear of her vehicle when Mr. Sinclair was seated there. [ 66 ] Although Mr. Stone obviously believed that the person in custody was the same individual he had seen on Robie Street, I am not satisfied that this is because he had an opportunity to examine the person ’ s build, clothing and features.

Some aspects of his description of the man on Robie Street did not match the photographs taken by the police of Mr. Sinclair. In these he does not appear to have blond or white hair and is wearing jeans that would not be described as baggy with a saggy crotch. I believe that Mr. Stone was likely influenced by the fact that the man had been taken into custody by the police on South Street in the general area where the suspicious individual had been heading. [ 67 ] Constable Tortola ’ s identification evidence is also problematic.

When he testified that the individual he initially saw on South Street was the same one he saw in custody, he was unable to describe any distinguishing features. He simply stated the conclusion that it was the same person. The bigger issue is that his description of seeing Constable Pulsifer and Constable Misner taking the individual into custody in the Gorsebrook School driveway does not match the other evidence. The testimony of the two officers, as well as Mr. Stone, makes it clear that Mr.

Sinclair was in the back of Constable Misner ’ s vehicle in front of the Cancer Lodge long before Constable Tortola returned. He had spent some time at the scene of the break-in and taken a statement from Ms. P. Assuming that the low end of his time estimate was correct, he would have been driving east on South Street at around 6:00 a.m. For these reasons, I put no weight on Constable Tortola ’ s identification of Mr.

Sinclair as the person he saw walking in front of Gorsebrook School. [ 68 ] Despite the issues concerning Constable Tortola ’ s identification testimony, there are other aspects of his evidence which appear relevant. He was one of the initial responders to the break and enter call, and the second vehicle to arrive at ... South Street. Subsequent vehicles, which would have included Constable Misner and Constable Pulsifer, spread through the area and set up containment points. Constable Misner ’ s evidence was that she was unsure how quickly she responded to the call.

She did not say that she proceeded directly to the area as soon as the broadcast was heard. Neither Constable Pulsifer nor Constable Misner saw Constable Tortola that morning, and he did not see them as he went to the site of the break in. I am satisfied that Constable Tortola drove west on South Street prior to the

arrival of Constable Misner. [ 69 ] Mr. Craggs, on behalf of Mr. Sinclair, argued that the man who attracted Constable Tortola ’ s attention was not the same one seen by Mr. Stone crossing Gorsebrook field and going behind the school. I agree that this is a possible

interpretation of the evidence. First of all, Constable Tortola ’ s observation took place prior to the arrival of Constable Misner. Mr. Stone says that his individual went behind the school just before the arrival of Constable Misner. If the two were the same person, this would not be possible. [ 70 ] The other important discrepancy is the location of the man seen by Constable Tortola. He was in front of Gorsebrook School, close to the intersection of South and Robie, travelling east. For this to have been the man seen by Mr.

Stone, he would have to have come around the school, travelled west on South Street to an area near the intersection with Robie, turned and then started walking east in a nonchalant manner. This makes no sense, particularly if that person had anything to do with the break-in which had just occurred ... blocks west on South Street. [ 71 ] There is other circumstantial evidence relied upon by the Crown. This includes the location of the track identified by Zola, the timing and location of Mr. Sinclair ’ s detention, the lack of other pedestrians observed in the vicinity and Mr.

Sinclair ’ s inability to be consistent in his explanation for what he was doing that morning. [ 72 ] The canine track which ended on ... Street is approximately ... from the location where Mr. Sinclair was detained. The perpetrator could have travelled that route, walked along ... Street and then down ... Street, across Robie, behind Gorsebrook School and down South Street, but he also could have gone in many other directions. [ 73 ] None of the three police officers recalled seeing any other pedestrians, with the exception of the man observed by Constable Tortola.

Their activities were essentially on Robie and South Streets that morning. As the map entered as exhibit 8 shows, there are a number of other routes the perpetrator could have followed to flee the scene, and I have no evidence with respect to the presence or absence of pedestrians on those streets. The fact that Mr. Sinclair may have been the only pedestrian on that particular block of South Street at the time of his detention is relevant, but not determinative. [ 74 ] The final piece of circumstantial evidence is Mr. Sinclair ’ s confusing answers to Constables Misner and Pulsifer.

I would note that the two officers are not consistent in what they say Mr. Sinclair told them. Constable Misner said he was coming from a friend ’ s place and going to a Needs store. Constable Pulsifer testified that he was coming from the Dome and going to a friend ’ s home. Mr. Sinclair did give accurate identifying information, such as his address and name, and there is a Needs store where he could have purchased cigarettes in the general direction he was travelling.

Constable Misner described him as co-operative throughout their interaction. [ 75 ] When I consider all of the evidence and exercise caution with respect to the identification evidence as discussed above, I am left with some doubt as to whether Mr. Sinclair was the person who committed the crimes at ... South Street on September 15, 2011. The Crown has not proven his involvement beyond a reasonable doubt and I will, therefore, acquit him of the charges related to that incident, which are counts one and two in the indictment.

THE VIDEO CASSETTE [ 76 ] The remaining three counts of the indictment relate to offences contrary to s. 162(1) (

a) of the Criminal Code , which prohibits the surreptitious observation or recording of a person who is in circumstances that give rise to a reasonable expectation of privacy if that person is in a place where they can be expected to be nude or engaged in sexual activity. The primary evidence in support of these charges is the contents of a small video cassette tape found in Mr. Sinclair ’ s apartment during a police search on September 18, 2011. [ 77 ] We have the viva voce evidence of two women that they are the ones depicted on the recording, and that they were in their apartments at the time.

They also identified the windows through which the recording was made. Admissions were made on behalf of Mr. Sinclair pursuant to s. 655 of the Criminal Code confirming similar details with respect to a third woman depicted on the video with the exception of the location of the window through which the recording was made.

[ 78 ] It is clear that the maker of the recording has committed an offence under s. 162(1) (

a) of the Criminal Code . As with the other charges, the issue is whether the circumstantial evidence called by the Crown has established that the only reasonable conclusion to be drawn is that Mr. Sinclair is that person. [ 79 ] We have some information with respect to when the recordings were made because we know the periods when the women resided at the locations in question. For one of the women, it was September, 2007 to May, 2008. For another, it was September, 2007 to August, 2008.

And for the third, it was August 31, 2008 to June 1, 2011. [ 80 ] The recordings on the cassette appear to be somewhat chopped up as if portions of the tape have been recorded over. For example, there were two clips of approximately one second showing a street scene and an interior of a dwelling which appear in the midst of the sequence of recordings of the young women. Of more relevance, is a clip lasting several seconds showing a cat playing with a ball of yarn, which appears between the footage of the first and second woman.

I do not believe that anyone would have recorded the very short sequences as they appear on the tape. It is more likely that there was recording over existing footage. This would leave small remnants that appear as very short sequences between other recordings. [ 81 ] Sergeant Don Stienberg supervised the search of the apartment at 87A Portland Street, in Dartmouth, which took place on September 18, 2011. Photographs were taken during the search. He described a small one bedroom apartment that was extremely unkempt.

As the photographs show, there was furniture, clothing, papers, recreational equipment and general debris everywhere. That was the condition in which the apartment was found. It contained mail addressed to Mr. Sinclair, and was the address that he gave to Constable Misner upon his detention. I am satisfied that this was Mr. Sinclair ’ s residence at the time of his arrest. [ 82 ] Sergeant Stienberg said that there did not appear to be evidence of anyone else residing in the apartment, although there was some women ’ s clothing present.

In cross-examination, Sergeant Stienberg testified that he had seen some police records which identified the apartment as Mr. Sinclair ’ s residence as far back as 2006. [ 83 ] The search disclosed two small video cassettes in the drawer of one of the dressers in the apartment. There was no equipment on which the cassettes could be played, nor any camera which would have recorded them found in the search. One of those cassettes contained the images of the young women which give rise to these charges. [ 84 ] The video of the cat appears to have been taken in the apartment at 87A Portland Street.

To the extent that it can be discerned from the short clip, the trim around the bedroom window and the location of the electrical outlet appear identical, as does the flooring and the general layout. There was an upholstered chair and small cabinet which appear to be the same. There also appear to be differences. The bed is not the same one shown in the photographs of Mr. Sinclair ’ s apartment, and there is a television which was not present at the time of the search. The most dramatic difference is the relative degree of cleanliness and the presence of the cat.

The video clip shows an apartment that appears to be meticulously maintained. There was essentially no debris or clothing of any type on the floor. Aside from the presence of the chair and cabinet, it is difficult to imagine that the apartment shown in the video was occupied by the same person as the one depicted in the photographs taken at the time of the search on September 18, 2011. [ 85 ] I have no evidence as to when the video of the cat was taken, although it is found between the clips of two of the women who were surreptitiously video taped. [ 86 ] The charges against Mr.

Sinclair require that I be satisfied that he was the person who made the recording. Possession of this material is not sufficient, although that is one fact which can form part of the circumstantial evidence that I must consider. The other important piece of evidence, according to the Crown, is the cat video clip which appears to have been made in Mr. Sinclair ’ s apartment, although we do not know when or by whom. [ 87 ] I am not satisfied that the contents of the video cassette and its location in a dresser drawer in Mr. Sinclair ’ s apartment leads to the conclusion that he made the recordings.

There was no equipment on which the tape could be played or recorded in his apartment, nor any evidence that Mr. Sinclair ever had this. There is no evidence to tie him to any of the locations where the filming occurred or to any of the women who were recorded. [ 88 ] Given the very limited evidence available, there remain a number of possible explanations for how the tapes may have come into Mr. Sinclair ’ s possession. It could be that an acquaintance or former occupant of the premises left them there. There are simply too

many questions left unanswered to conclude that the Crown has met its obligation of proving Mr. Sinclair ’ s guilt beyond a reasonable doubt. I will, therefore, acquit him of these charges, which are counts five, six and seven in the indictment.

SUMMARY [ 89 ] After considering all of the evidence and applying the applicable principles, I am satisfied beyond a reasonable doubt that Mr. Sinclair is guilty of the third count set out in the indictment alleging an offence contrary to s. 348(1) (

a) of the Criminal Code . On all other counts, I find him not guilty. ____________________________ Wood, J.