IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           L.A.R. (the “complainant”) is a citizen of the country of Colombia.  She came to Vancouver on September 10, 2016, to visit her daughter and her daughter’s husband.  The purpose of the trip was to celebrate her daughter’s pending delivery of a second child.

[2]           In the early morning hours of September 14, 2016, the complainant was awoken in her bedroom at her daughter’s house (the “subject residence”) when she experienced the presence of a “heavy atmosphere” in her bedroom.  She opened her eyes and saw a man in his underwear.

[3]           The complainant was terrified and prayed that she would not be killed.  She testified the intruder took out his penis and began to masturbate to ejaculation.  She managed to flee from her bedroom and ran to her daughter’s bedroom where she awoke her daughter and her daughter’s husband, screaming at them that there was a man in her bedroom.

[4]           Pandemonium broke out.  The police were called.  The intruder fled.

[5]           The Crown has alleged that the intruder was S.W.P. (the “accused”).

[6]           The accused has been charged with two offences:

[7]           The case for the Crown was based upon both direct evidence and circumstantial evidence.

[8]           The direct evidence turns largely on eyewitness testimony given by the occupants of the subject residence.  The accused lived in a residence that was located one residence to the south of the subject residence.  The accused was being supervised 24/7 by two caregivers who also testified at this trial.

[9]           The circumstantial evidence includes forensic fingerprint analysis and closed caption security camera footage (for ease of reference “CCTV”).

[10]        In relation to the fingerprint analysis there was opinion evidence that a fingerprint located on the interior aluminum window frame in the complainant’s bedroom was deposited by the accused’s left middle finger.  It was the theory of the Crown that this fingerprint was facing downward which would be consistent with the accused escaping from the subject residence by hanging outside of the complainant’s window and then dropping to the ground.  The complainant’s bedroom was on the second level of the subject residence.

[11]        The CCTV evidence was obtained from a security camera that was affixed to the exterior of a residential garage located next door and to the south of the accused’s residence.  The CCTV evidence would appear to depict an individual traveling south down the laneway adjacent to the subject residence and then going through a gate into the accused’s backyard.  Within a very short period of time the police can be observed entering the laneway.

[12]        The accused has challenged both the credibility and the reliability of the eyewitness evidence.

[13]        The accused has challenged the reliability of the circumstantial evidence.  In particular he takes issue with the reliability of the forensic fingerprint analysis and the reliability of the video footage depicted in the CCTV evidence.

[14]        The legal issues advanced by the accused must be determined.

[15]        The accused elected not to call defence evidence.  That is his right.  The accused is presumed to be innocent and the onus rests upon the Crown throughout the trial to establish proof beyond a reasonable doubt before a conviction may be registered.

[16]        The evidence tendered in this case, and Counsel submissions, ranged over several days.  I have read all the transcripts in relation to this trial.  I have reviewed all of the documentary evidence that was received and marked as exhibits.

[17]        I do not intend to describe the minutiae of all of the evidence presented in this case.  I have rather taken a more compressed and somewhat selective canvassing of the evidence where relevant and necessary in making evidentiary findings.  This approach was recently approved by Woods P.C.J. in R. v. Connell, 2017 BCPC 123 (CanLII), 2017 BCPC123, at paras. 5 and 6.

[18]        As of September 14, 2016, the occupants of the second level of the subject residence who testified at this trial included the complainant, the complainant’s daughter (“K.A.”), K.A.’s husband (“A.H.”) and A.H.’s sister (“K.R.”).

[19]        D.L., a tenant, occupied the first level of the subject residence.

[20]        The complainant testified in direct examination that in the late evening hours on September 13, 2016, she was in the kitchen having a conversation with her daughter.  She recalled that her daughter was showing her tummy as her daughter was near full-term in her pregnancy.

[21]        The complainant’s attention was drawn to a window of a residence (later identified as the residence of the accused).  She observed a young man staring at her from the window of that residence.  She was unable to recall how long this young man was staring at her.  It gave her the “creeps”.

[22]        Following that, at around 11:30 PM, she went to her bedroom, closed her bedroom door, got into bed and fell asleep.  She was awakened when she experienced the presence of a heavy atmosphere in her bedroom.  She was lying in a fetal position on her right side facing the doorway of her bedroom with her arms crossed over.  She opened her eyes and saw a young man.  She tried to see his face but he had something covering his face, though it was not a mask.

[23]        She could see his stomach.  He had white skin.  He was wearing dark small underwear, not boxers.  He was shining a small flashlight into her face and he then began to masturbate his erect penis while sniffing up and down her body, from her forehead to her feet.  At one point he touched her right forearm with his penis.  He eventually ejaculated into some sort of a container.

[24]        The complainant then heard the voices of K.R. and K.R.’s mother.  They had just arrived at the subject residence after being out for the evening.  The intruder hid behind the door to her bedroom.  The door was slightly ajar and she saw the man looking out into the hallway.

[25]        The intruder returned to the complainant’s bed.  He began to sniff up and down her body, and applied pressure with his finger to the area of her coccyx (a reference to the triangular bone located at the lower spine).  At the same time he tried to push down her pyjama bottoms.  She felt something hot on her coccyx.

[26]        The intruder then moved around to her feet which gave the complainant the opportunity to flee her bedroom.  She opened her bedroom door and fled down the hallway, closing her bedroom door behind her.  She ran into her daughter’s bedroom screaming that there was a man in her room.  Her screams awakened all of the other occupants staying on the upper level of the subject residence. 

[27]        She observed A.H. trying to get into her bedroom but he was unable to fully open the door.  She did not want A.H. to go into her bedroom as she was afraid there was going to be a massacre.

[28]        She recalled the police arriving.  A short time later the police told her that whoever was in her bedroom escaped through the open bedroom window.

[29]        In cross-examination, the complainant confirmed that she gave two statements to the police.  The first statement was her initial statement to the police in Spanish.  There was a second more detailed audio and video taped statement in Spanish.  She agreed with the accused that she did not mention in her audio and video taped statement that her daughter was showing her tummy when the complainant saw the man staring at her from the window of his residence.  However, she insisted it happened the way she described in her direct examination.

[30]        She testified that when she went to bed she closed and locked her bedroom door.  She never heard anyone manipulating or fiddling with the door handle until she was awakened by the intruder.

[31]        The accused asked her to describe the hot sensation to her coccyx.  She had no idea what caused the hot sensation to her coccyx.  She testified that it was not like a cup of hot coffee, but rather something warm.

[32]        The accused suggested to her that there was no mention in her two statements to the police about anything hot being placed on her coccyx.  In response she testified that she did not give all of the details of what happened because she was fearful at the time and forgot some of the details of the incident.

[33]        She agreed that in her audio and video taped statement to the police that she experienced the hot sensation to her coccyx occurring before K.R. and K.R.’s mother arriving at the subject residence.

[34]        She agreed that she had a clear recollection of drops falling into a container which she did not mention in her audio and video taped statement to the police.  In response she explained that the police told her that they did not find anything consistent with something like semen so she did not include that detail in her statement.

[35]        She agreed that it was her belief that the intruder was in her room for an hour.  She described the intruder as a large male with a white complexion.  He had something that was dark covering his face, though it was not a mask.

[36]        She agreed that K.R. and K.R.’s mother arrived at the subject residence around 1:05 AM.  She managed to flee from her bedroom 5 to 7 minutes later.  She agreed that if the intruder was in her bedroom for about one hour then the intruder could have been in her bedroom roughly 10 minutes or so after 12:00 AM.

[37]        A.H. is the complainant’s son-in-law.  At the time of the incident involving the complainant and the intruder he was residing in the second level of the subject residence with his wife and their daughter.  His sister, K.R., and his mother were visiting from Colombia.

[38]        In direct examination, he testified that he left the second level door from the sundeck into the kitchen unlocked because his sister and his mother were out for the evening and did not have a door key.  He went to bed and at some point was awoken when he heard his sister and his mother coming home.  He estimated that it was around 12:00 AM.  He went back to sleep.

[39]        He was then suddenly awoken by the complainant who had come into his bedroom.  He described her as hysterical.  She was repeatedly telling him that there was somebody in her bedroom.  He got up and went to her bedroom.  He partially opened the door to the bedroom, turned on the light and peered in.  He saw a partially inflated helium balloon which he initially assumed the complainant mistook as the intruder.

[40]        A.H. pushed on the bedroom door and felt some resistance.  He managed to open the door a little wider and peered around the door.  In a split second he saw the profile of a man.  He immediately closed the door and held the door handle to prevent the intruder from opening the door.  A vigorous physical exchange took place at the bedroom door with the intruder trying to open the door while A.H. held onto the handle preventing the intruder from leaving the bedroom.  The police were called.

[41]        A.H. continued to grip the door handle to the complainant’s bedroom until the police arrived.  The police entered the bedroom.  The intruder was gone.  A.H. looked inside the bedroom and saw that the screen which had been on the bedroom window was gone.

[42]        A.H. could provide little detail of the intruder other than he appeared to have a bulky physique and he saw a flash of red and white.

[43]        A.H. viewed a series of photographs of the subject residence, including the complainant’s bedroom.  He noted there was damage to the door at the location of the door handle.  He also identified fresh marks on the wall of the bedroom adjacent to the window.

[44]        A.H. did not know who resided in the residence located on the second lot to the south of the subject residence.  He was unable to identify the accused in court.  He denied that he ever hired the accused to do any work in the subject residence.  He denied that he ever gave permission to the accused to be in the subject residence.

[45]        In cross-examination, A.H. denied that he ever hired anyone to clean the gutters or the windows of the subject residence prior to September 14, 2016.

[46]        He was unable to say whether or not the intruder was wearing a red or white T-shirt or whether or not he was simply a pale person with some red.

[47]        A.H.’s wife, K.A., testified in direct examination that in the evening of September 13, 2016, she was standing in the kitchen with her mother with her blouse pulled up so she could show her mother her tummy when she saw a man staring at her from a window of a residence located on the second lot to the south of the subject residence.  She estimated that the man stared at her for about one minute.  She described feeling “creepy.”

[48]        She identified the accused as the individual who was staring at her.  She had seen the accused on a prior occasion hanging out on the back sundeck of his residence with another male who she was unable to identify.  She estimated that the accused and the unknown male were approximately 21 years of age.

[49]        She had never given permission to the accused to be in the subject residence.

[50]        She testified that she went to bed with her husband when they were awoken around 1:00 AM by the complainant.  The complainant told them that there was someone in her bedroom.  Her husband went to the complainant’s bedroom.  K.A. saw that her husband became involved in quite a physical struggle trying to hold the handle to the door to the complainant’s bedroom.

[51]        K.A. called the police.  She recalled that the police arrived after 5 - 6 minutes.

[52]        In cross-examination, K.A. agreed that she was never presented with a photograph line-up of the person she said stared at her when she was in her kitchen with her mother.

[53]        In direct examination, K.R. testified that she had been out during the evening of September 13, 2014 with her mother.  Around 12:45 - 12:50 AM they took a cab back to the subject residence.  On arrival they gained entry through the unlocked back door located on the second level of the subject residence.

[54]        They went in and they got ready for bed.  She recalled that she then talked to her mother for approximately 15 - 30 minutes in the living room.  Following that her mother went to bed and K.R. remained in the living room using her electronic device.  She suddenly heard the running of footsteps and heard the complainant screaming that there was a man in her room.

[55]        She saw A.H. open the door to the complainant’s bedroom and turn on the light.  He tried to look behind the door when he slammed it shut, saying words to the effect that there was someone in the room.  K.R. ran to the kitchen and got a large knife.  She went back to the complainant’s bedroom and began stabbing the door and yelling, “I’m waiting for you.  You have no idea who you’re messed up with.  We’re Colombians.”

[56]        K.R. then decided it would be best if she got her niece out of the subject residence.  She grabbed her niece from her bedroom and ran down the stairs and out through the front door.  She stood in the front yard for seven to eight minutes until the police arrived.  She estimated that the police arrived between 2:20 AM and 2:30 AM.

[57]        In cross-examination, K.R. agreed that she gave a handwritten statement to the police on September 14, 2016.  She agreed that in her statement to the police she told them that she got home at 1:00 AM and she went to bed twenty minutes later.  Three minutes later she saw the complainant running down the hallway.

[58]        She testified that she was doing her best at trying to estimate times and conceded she may be wrong on some of the timing of events.

[59]        D.L. lived in the first level of the subject residence.  He testified in direct examination that in the early morning hours one of the tenants from the second level of the subject residence woke him up and asked him to call the police because there was some sort of “kerfuffle.”

[60]        He also testified that he was a landscaper by trade and that along the side of the subject residence he stored equipment for his business.

[61]        He was not cross-examined.

[62]        G.D. was one of two caregivers who were supervising the accused at his residence 24/7.  The residence where the accused resided was located on the second lot to the south of the subject residence.  The residence for the accused was established on July 25, 2016.

[63]        G.D. testified in direct examination that he was employed to provide supervision of the accused between the hours of 8 AM - 8 PM or 9 AM - 9 PM.  The accused was prohibited from being out of his sight.

[64]        In addition, he was to ensure that the accused took his prescription medication regularly and on time.  He was aware that the accused took prescription medication to deal with his depression and anxiety.  He maintained a daily log to note up daily activities, including room checks, physical activities and taking prescription medication.

[65]        G.D. went through the log entries for September 13, 2016.  At 4:00 PM, there was a log entry in which the accused asked G.D. to go with him to a local park to play basketball.  They went to the park and played one-on-one basketball for over one hour.  G.D. did not notice any injuries to the accused.  The accused appeared to have no difficulty in playing basketball.  He was not limping at any time.

[66]        When they returned to their residence the accused began to exercise on some free weights.  Following that, they had dinner.

[67]        G.D. viewed a series of photographs taken of the hands and feet of the accused following his arrest.  He did not notice any apparent injuries to the hands and feet of the accused during his supervision of the accused on September 13, 2016.  Had the accused injured himself, or had G.D. noticed any injuries, this would have been noted in the daily log.

[68]        He described the accused as “sporty”; he really liked basketball and enjoyed doing weightlifting.  The accused would work out on a stationary bicycle as a cardiovascular exercise.

[69]        Various articles of clothing were identified by G.D. as clothing worn by the accused, including a white T-shirt with red printing on it and a hoodie.

[70]        G.D. testified that the accused was the only resident of the house.  His bedroom was located at the rear of the residence on the second level.  Behind the accused’s bedroom was a set of stairs leading to the ground from the sundeck.  At the back of the yard there was a fence.  Behind the fence was a laneway.

[71]        He further testified that the accused’s supervisors had an office at the opposite end of the hallway from the accused’s bedroom.  If the accused’s bedroom door was closed then it would be difficult to monitor the accused’s activities in his bedroom.

[72]        In cross-examination, G.D. testified that he would not close the office door.  Additionally, the accused’s supervisors were not to fall asleep on site.

[73]        He also agreed that it was his normal practice to keep the house doors locked at all times.

[74]        J.V. was the second caregiver supervising the accused.

[75]        He testified in direct examination that he would normally work the night shift typically commencing at 9:00 PM and ending at either 7:00 AM or 8:00 AM.  His shift for September 13, 2016, commenced at 8:00 PM and concluded at 8:00 AM.

[76]        He also maintained the daily log.  He confirmed making entries in the daily log for September 13, 2016.  There was a note entry at 12:30 AM that the accused was in his bedroom, on his bed but awake.  Then at 3:00 AM there was a further room check.  The accused was on his bed covered by a blanket.  At 6:00 AM there was a room check.  They accused woke up; he had some cereal and went back to bed.  At 9:00 AM, the police came to the residence and arrested the accused.

[77]        J.V. testified that when he was in the office seated at the computer, he would not be able to see the accused’s bedroom door.  Similarly, unless the accused made some noise, he would not know what was taking place in the accused’s bedroom if the bedroom door was closed.

[78]        He would typically perform a room check on the accused’s bedroom every 2 hours commencing at 11:00 PM.  On occasion he would perform a room check somewhat earlier or somewhat later than every two hours.

[79]        At no time during the night time shift did the accused complain to J.V. of any injuries.  Nor did J.V. notice any injuries to the accused.

[80]        J.V. recalled that he had gone out the back door leading to the sundeck on or around September 11, 2016.  He did not notice at that time that there were any marks on the back door.  When police investigators came to the residence they pointed out the markings to J.V.  He told them that he did not make those marks.

[81]        He also testified that the accused generally wore socks when he was in the residence.

[82]        He identified the subject residence.  He denied ever visiting the subject residence with the accused.

[83]        In cross-examination, J.V. agreed that if one was to go out of the bedroom window of the accused’s bedroom, there would be a drop down to the staircase, and it would be difficult to climb from the staircase back into the accused’s bedroom.

[84]        He agreed that the timing of the room checks was occasionally varied to reduce the predictability of the room checks.

[85]        J.V. testified that when he performed the 6:00 AM room check the accused was already dressed.  The accused came into the kitchen to have his cereal.  After eating his cereal he returned to his bedroom to sleep in.

[86]        J.V. testified that the accused did not have keys to the residence and at no time during the evening of September 13, 2016, and into September 14, 2016, did he notice the accused leaving the residence.

[87]        He testified that the accused would normally leave his shoes at the front door of the residence and not at the rear door of the residence.

[88]        The court asked J.V. if he noticed the accused acting unusually or in any abnormal way when he interacted with him at 6:00 AM.  He did not notice anything unusual about the accused.  If he had observed the accused to be anxious then he would have made a note of that in the daily log.

[89]        D.Z. lived in a residence located immediately to the south of the accused’s residence.  He testified in direct examination that he installed a series of digital security cameras around his residence, including a camera that has a northerly view of the laneway.

[90]        The recording system operates 24 hours a day.  During daytime hours the recording is in colour while at night the recording is in black and white.  The recording system is configured to operate in real time.

[91]        Shortly after the arrest of the accused, a member of the Vancouver Police Department contacted D.Z.’s wife.  The police officer wanted to know if D.Z. had any camera footage from September 13, 2016, through September 14, 2016, that would be of interest to them in relation to activities in the laneway.

[92]        D.Z. reviewed his CCTV footage between 12:00 AM and 3:00 AM of September 14, 2016, and found something that he believed would be of interest to the police.  He burned the footage to a USB which he then handed over to the police on September 19, 2016.

[93]        The footage recorded by D.Z. was played back in court.  He identified the start time as 1:58:10.  He testified this would not necessarily be the correct real-time but rather either 10 minutes fast or 10 minutes slow.

[94]        He testified that the camera view also captured the image of a garbage can in the laneway located at the rear of the residence of the accused.  At 2:18:30 he identified a figure traveling from the north to the south in the laneway, disappearing from view in the area of the garbage can by making a right-hand turn at 2:18:42.  He identified the lights of police cars first appearing at 2:25:50 reflecting into the laneway.

[95]        In cross-examination, D.Z. agreed that it was his “best guess” that the correct real-time may be 10 or 15 minutes fast or 10 to 15 minutes slow.  He was not sure if the correct real-time could be other more or less than the suggested 10 to 15 minutes timeframe.

[96]        D.Z. was asked by the court if he had any expertise in relation to computers and security systems.  He testified that he was certified to install security systems and that he was satisfied from his experience that he correctly installed his security system and correctly inputted the real-time.  He was the only person who could access his security camera system.

[97]        Pursuant to s. 655 of the Code, the accused admitted that on September 14, 2016, at approximately 2:05 AM, Constable Kemp of the Vancouver Police Department (the “VPD”) was on duty and driving a patrol car when he received a dispatch regarding a break and enter in progress at the subject residence.

[98]        A short time later Constable Kemp, who spoke rudimentary Spanish, arrived at the subject residence.  He spoke to the complainant who described the incident to him.

[99]        During that discussion the complainant advised that she thought she felt something fall on the towel she was using as a blanket and thought that it may be the intruder’s ejaculate.

[100]     Detective Yee of the VPD received a call at approximately 7:00 AM on September 14, 2016, from the lead investigator, Detective Dufresne, to attend at the residence of the accused, who was a possible suspect in relation to the break and enter of the subject residence.

[101]     She arrived at the accused’s residence at approximately 9:10 AM.  She was met by the accused’s supervisor.  She entered the residence and proceeded to the accused’s bedroom.  The accused was sitting on his bed and was wearing a white T-shirt with a red logo across the chest.

[102]     From a series of photographs she identified various injuries on the accused.  They were located on his right arm and right hand, the left wrist area (which she described as more red than in the photograph) and a scratch on his upper right arm.

[103]     After receiving further information from another police investigator, Detective Yee arrested the accused for break and enter and sexual assault.

[104]     Detective Kask was a member of the VPD Forensic Identification Unit.  On September 14, 2016, she was tasked to follow Constable Wiens while he took photographs of various locations both inside and outside the accused’s residence.  She observed red stains on the exterior door leading to the back yard sundeck of the accused’s residence.

[105]     Another police officer performed a Hemastix test on the red stains, which is a presumptive test for blood.  The test was positive.  A positive test does not differentiate between human blood and other animal blood.  A positive test confirms the presence of iron, an element found in blood.

[106]     During Detective Kask’s search of the accused’s residence, and the perimeter of his residence, she was unaware that a flashlight or penlight may have been used by the intruder during the break and enter of the subject residence.  That information only became known while she was assisting Constable Wiens as he took photographs at the subject residence.

[107]     Detective Kask testified that no flashlight or penlight was ever located at either the residence of the accused or in the general area, including at the subject residence.

[108]     She located and seized a man’s black brief underwear located in a laundry basket in the accused’s bedroom.

[109]     In cross-examination, Detective Kask testified that as result of an error that she made in relation to a request for further lab testing of the Hemastix seized from the accused’s residence, there were no further tests performed on the Hemastix by police lab forensics.

[110]     In direct examination, Detective Dufresne testified that he seized the CCTV footage from D.Z.  He played it back as he wanted to confirm whether the footage was in real-time versus recorded time.

[111]     He confirmed that police investigators did not pursue DNA prospects in this case as forensic lab analyses of various items that were submitted suggested that no meaningful DNA comparison could be made.

[112]     In cross-examination, Detective Dufresne testified that he was able to determine that D.Z.’s CCTV footage was running fast by sixteen minutes through a time comparison using his Apple iPhone and the Internet.

[113]     A voir dire was declared as the Crown sought to qualify Constable Ramsay as an expert to give opinion evidence in the detection, development, preservation, identification and verification of friction ridge impressions, including fingerprints.

[114]     Constable Ramsay was a member of the VPD Forensic Identification Unit since March of 2013.  His Curriculum Vitae was filed as an exhibit.  He has received extensive training in relation to the detection, development, lifting and preservation of latent fingerprint evidence.

[115]     In particular, on April 9, 2015, he successfully completed the VPD Forensic Identification Understudy Program and was certified as an evidence technician.

[116]     He testified that he has attended many crime scenes and analyzed approximately two hundred and fifty fingerprints and palm impressions from those crime scenes.

[117]     He described the scientific comparison methodology for the analysis of fingerprints as a four stage system known as ACE-V, “analysis, comparison, evaluation and verification.”

[118]     He described the unique nature of human fingerprints.  He testified that “no two individuals have been found to have the same fingerprints.”

[119]     Constable Ramsay’s qualifications were not challenged by the accused.  Constable Ramsay was qualified as an expert to give opinion evidence in the field of detection, development, preservation, identification and verification of friction ridge impressions, including fingerprints.

[120]     In direct examination in the trial proper, Constable Ramsay testified that he was dispatched to the subject residence at approximately 3:50 AM on September 14, 2016.

[121]     The complainant’s bedroom was an area of forensic interest to Constable Ramsay.  He made observations of footwear impressions on the floor of the bedroom but those impressions lacked sufficient detail to make any proper analysis.

[122]     He used an ultraviolet light to highlight possible areas for the deposit of biological samples within the bedroom.  He deployed the ultraviolet light throughout the room and located areas of possible interest at the bedroom window.  It was his understanding that the intruder likely escaped through the bedroom window.

[123]     Constable Ramsay applied fingerprint powder to the window interior and to the interior window’s metal track.  A cluster of fingerprint impressions was located on the interior glass of the window and also on the interior of the metal track.  Each of the fingerprints was digitally photographed as close as possible.  Forensic tape was also used to lift each of the fingerprints.  The purpose of this process was to document and preserve the fingerprint impressions.

[124]     He submitted the fingerprint impressions to the Automated Fingerprint Identification System (“AFIS”).  In addition, on September 14, 2016, he commenced the preparation of his Friction Ridge Analysis Report (“FRAR”), Exhibit 14, utilizing the ACE-V methodology.  Constable Ramsay also had the known fingerprints for the accused as he prepared his FRAR.  The standard that he employed to make a fingerprint comparison was whether or not there were sufficient unique details to make the comparison reliable.

[125]     AFIS had identified that three of the submitted fingerprint impressions related to two family members of the complainant and were, therefore, eliminated as potential evidence.

[126]     From the remainder of the impressions Constable Ramsay concluded through the ACE-V methodology that R5, a fingerprint impression located on the interior window metal track, was deposited by the left middle finger of the accused.  He explained how the accused’s fingerprint came to be deposited as follows:

[127]     During the course of his investigation into the alleged break and enter of the subject residence Constable Ramsay measured the distance from the bottom of the complainant’s bedroom window to the ground at one hundred and seventy six inches.  He measured the width of the window at forty-six and a half inches and the height of the window at thirty four inches.  He estimated that the accused in September 2016 was approximately six-foot in height and weighed approximately two hundred pounds.

[128]     In cross-examination, Constable Ramsay was not sure of the process in which young offender fingerprints were inputted into AFIS.

[129]     He agreed that fingerprint analysis can identify the individual who deposited the fingerprint but not the date or time of the fingerprint deposit.

[130]     When questioned on what he meant by “sufficient unique details”, he testified that he was looking for two things.  First, he would be looking to ensure that “everything is sequentially, spatially and configurationally in agreement with one another”, when performing the comparison and, second, he would be “looking for sufficient uniqueness”: Transcript, ibid. p. 40, ll. 38 - 46.

[131]     Constable Ramsay was also questioned on the reliability of using digital photography in fingerprint comparison versus the more traditional lifting and then comparing fingerprints.  He responded:

[132]     He agreed that he did not perform any tests on the accused’s underwear to investigate the possibility of biological deposits.  He testified that any such testing would be up to the Sex Crimes investigators.

[133]     Constable Ramsay testified that he took into account fingerprint distortions in his FRAR because in situations where there is distortion he has to assign a high tolerance for discrepancy.  It all came down to his training and his subjective beliefs.

[134]     He agreed with the accused that he did not measure the dimensions of the window in the complainant’s bedroom when it was fully opened.

[135]     Constable Martin testified in direct examination that he has verified results in over two hundred and eighty investigations using the ACE-V methodology.  In this particular case, he used the ACE-V methodology and the same materials used by Constable Ramsay to verify the same individualization of the accused’s fingerprint, thus, verifying the identification.

[136]     In cross-examination, he testified that he never disagreed with the lead investigator in any of his two hundred and eighty verification investigations.

[137]     The Crown’s position can be summarized as follows:

[138]     The accused’s position can be summarized as follows:

[139]     The accused relied principally on the decision of the Supreme Court of Canada (the “SCC”) in R. v. Villaroman, 2016 SCR 1000, for the proposition that there are other possible or reasonable inferences that could be drawn from the circumstantial evidence that would establish a reasonable doubt that the intruder was the accused.

[140]     It is established law that the Crown may prove the essential elements of an offence through direct or circumstantial evidence, or a combination of both: R. v. Ngo, 2009 BCCA 301, at para. 53.

[141]     In R. v. Villaroman, supra, at para. 33, the SCC confirmed that where the Crown relies on circumstantial evidence to fulfil its onus of proof beyond a reasonable doubt, it must establish not only that the inculpatory inference it seeks to draw from the evidence is reasonable, but that no alternative exculpatory inference can reasonably be drawn.  Conversely, by extension, the defence may rely on exculpatory inferences drawn from gaps in the evidence, so long as those inferences are reasonable in light of human experience and common sense.  A trier of fact may not, however, draw any inculpatory inference from a gap in the evidence.

[142]     When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities that are inconsistent with guilt.  The Crown is not required to negative every possible conjecture no matter how irrational or fanciful.  Other plausible theories or other reasonable possibilities must be based on logic and experience applied to or in the absence of evidence, and not on speculation: [Ibid at para. 37].

[143]     Madame Justice D. Smith of the British Columbia Court of Appeal in R. v. Wiwchar, 2017 BCCA 9, at para. 37, summarized the approach to the assessment of circumstantial evidence: 

[144]     There are cases in which a single fingerprint found on an object within a premise can support a conviction: R. v. Chudley, 2015 BCCA 315, at para. 18.  Inferences adverse to an accused can be drawn in cases where there is an absence of a credible explanation for how an accused’s fingerprint came to be deposited upon an object within a premise: R. v. Hoppe, 2017 BCCA 25, at paras. 12 and 14.

[145]     There are cases involving movable objects, such as bottles or motor vehicles, where a latent fingerprint has been located but that circumstance lacks the necessary temporal connection to connect the fingerprint with the commission of a crime: R. v. Teperto, [2006] B.C.J. No. 3512 and R. v. Yonkman, 2005 BCCA 561.

[146]     In that kind of case, fingerprint evidence may be sufficient to support a conviction, so long as the court is satisfied on the whole of the evidence that the fingerprint was not left by the accused at some time other than when the crime was committed: R. v. M.R.I. (1992), 14 BCCA 65, at para. 29.

[147]     The accused elected to call no evidence in his defence.  An accused is not required to call evidence in his defence.  No inferences adverse to an accused can be drawn if there was no case to answer.  However, where the totality of the evidence against an accused mounts, the failure of an accused to testify may result in an adverse finding against the accused.  This is particularly so when the Crown has established a prima facie case: R. v. Lepage 1995 CanLII 123 (SCC), [1995] 1 S.C.R. 654, at para. 29.

[148]     The accused has challenged both the credibility and the reliability of the eyewitness evidence.  Credibility and reliability are not the same thing.  Credibility concerns the veracity of a witness.  Reliability involves the accuracy of the witness’s testimony.  Accuracy engages the ability of a witness to observe, recall and recount: R. v. Khan, 2015 BCCA 320, at para. 44.

[149]     The occupants of the second level of the subject residence were all born and raised in Colombia.  A.H. and his wife K.A. came to Canada to pursue careers.  The birth of their second child was to be an exciting event.  The complainant and K.R. came to Vancouver to celebrate this event.

[150]     What took place on the second level of the subject residence in the early morning hours of September 14, 2016, was not something they would soon forget.

[151]     The complainant, A.H., K.A., and K.R. were very animated witnesses.  At times, their evidence was both colourful and melodramatic.  That being said, I did not get any sense that they were trying to deceive the court in any way.  They wanted to get their story out and they did so.

[152]     There were some inconsistencies in their evidence, and in particular in relation to timing, but I did not find that there were any consequential inconsistencies that would undermine the ultimate reliability of their testimony.  I find K.A. and the complainant to be credible and reliable in their evidence that in the evening of September 13, 2016, they saw a man staring at them from a window of his residence that was located one house removed to the south.  That residence was that of the accused.

[153]     I find the complainant, A.H., K.A., and K.R. to be both credible and reliable in establishing that there was an uninvited male intruder in the complainant’s bedroom.  A.H. and the intruder had a physical struggle with the door handle of the complainant’s bedroom.  While initially it may well have been the intruder’s intention to escape through the bedroom door, I expect he reconsidered his escape route when K.R. began stabbing the door of the bedroom with the blade of a large knife and yelling, “I’m waiting for you.  You have no idea who you’re messed up with.  We’re Colombians.”

[154]     The only logical and available means of escape was through the bedroom window, as depicted in the photographs.  I accept A.H.’s testimony that the window screen was no longer attached to the bedroom window.  An object consistent with a screen can be seen in photograph 12 of Exhibit 1 on top of the fence located below the complainant’s bedroom window.

[155]     The complainant testified that she believed the intruder was in her bedroom for approximately one hour during the course of which she was sexually assaulted on several occasions when the intruder touched her with his erect penis, sniffed up and down her body and touched her coccyx.  She believed that at one point the intruder ejaculated into some sort of a container.

[156]     I accept the testimony of the complainant that she was terrified during this ordeal.  It is likely that her encounter with the intruder took much less time than she recalled.  Her encounter with the intruder ended shortly after K.R. and her mother returned home after their evening out.  That would be consistent with the testimony of K.R. who recalled taking a taxi back to the subject residence at or around 12:45 AM.

[157]     While I am unable to find that the intruder in fact did masturbate to the point of ejaculation, I accept the testimony of the complainant in finding the Crown has established beyond a reasonable doubt that the intruder applied force intentionally to the complainant without her consent for a sexual purpose.

[158]     The testimony of the accused’s two supervisors was significant in establishing that they were to supervise the accused 24/7, seven days per week.  The accused was prohibited from being out of their sight.  Unless the accused was able to surreptitiously avoid detection by his supervisors, he would otherwise have no reason to be at the subject residence at any time.

[159]     Both of the accused’s supervisors maintained a daily log.  G.D. was the daytime supervisor on September 13, 2016.  He noted up in the daily log that he played basketball with the accused at a local park from 4:00 PM until 5:20 PM.  The accused had no difficulty in playing basketball and was described in the log as “enjoying the game.”

[160]     I accept G.D.’s testimony that he did not note any injuries to the hands and feet of the accused during his shift.  Had he noted any injuries they would have been noted up in the daily log.

[161]     He identified clothing worn by the accused, including a white T-shirt with a red logo on it.

[162]     J.V. was the night-time supervisor on September 13, 2016.

[163]     I accept his notations in the daily log to be reliable in establishing that he checked the accused at 12:30 AM.  The accused was lying on his bed but was awake.  He next checked the accused at 3:00 AM.  The accused was lying on the bed underneath a blanket.

[164]     I accept his testimony as reliable that:

[165]     I found the CCTV evidence to be circumstantially significant.  Questions were raised by the accused over the reliability of the CCTV evidence, in particular, the conflict between correct real-time versus recorded time.

[166]     I do not find any conflict between correct real-time versus recorded time that diminishes the reliability of the CCTV footage.  I found the footage to be reliable in establishing the depiction of a human figure traveling from the north to the south in the laneway behind the subject residence and then turning right into the backyard of the accused’s residence.

[167]     Within six to seven minutes the lights of arriving police cars were reflected into the laneway.

[168]     D.Z. was not able to say whether the real-time of the CCTV footage was 10 or 15 minutes fast or 10 to 15 minutes slow.

[169]     Whether the correct real-time was fast or slow, the reflection from the arriving police cars into the laneway was consistent with the admissions of fact and consistent with the testimony of K.R.

[170]     If the human figure traveling in the laneway was the intruder then that would put him in the laneway between 12:30 AM and 3:00 AM.

[171]     I find the admissions of fact in relation to Constable Kemp’s involvement in the investigation of the alleged sexual assault of the complainant to be reliable.

[172]     When Detective Yee arrested the accused he was wearing a white T-shirt with a red logo.  She identified the accused wearing that T-shirt from photographs contained in Exhibit 6.

[173]     She also identified various injuries on the accused from photographs contained in Exhibit 6.  She testified that the injuries were “brighter” when she was face to face with the accused.

[174]     I accept the testimony of Detective Yee as reliable in relation to her observations of the clothing worn by the accused and in relation to her observations of various injuries sustained by the accused.

[175]     I have carefully reviewed the photographs taken of the accused on September 14, 2016.  The photographs corroborate the evidence of Detective Yee.

[176]     I find the photographs depict bruising to the feet of the accused.  They also reveal what appear to be fresh injuries to both sides of the accused’s hands.  There is also a clear abrasion that broke the skin noted on the left wrist of the accused in photograph 12 of Exhibit 6.

[177]     Detective Kask observed some red stains on the exterior door leading to the backyard sundeck of the accused’s residence.  She observed another police officer perform a Hemastix test on the red stain.  The test was positive.  The test would establish the presence of iron, an element found in human or animal blood.

[178]     J.V. testified that he had last gone out the back door leading to the sundeck on or around September 11, 2016.  At that time, he did not notice any red marks on the door.

[179]     I find that the red stains that tested positive for the presence of iron were deposited on the door at some point after September 11, 2016, and prior to the arrest of the accused on September 14, 2016.

[180]     Detective Kask seized a man’s black brief underwear located in a laundry basket in the accused’s bedroom.  While I do not find as a fact that the underwear seized by Detective Kask was the same underwear worn by the intruder at the subject residence, it was the style of underwear observed by the complainant.

[181]     I agree with the accused’s submission that no flashlight or penlight was ever seized during various police searches.  That would not establish as a fact that a flashlight or penlight was not used by the intruder.  It would be a circumstance to be considered in the assessment of all of the evidence tendered at this trial.

[182]     Constable Ramsay was qualified as an expert to give opinion evidence in the field of the detection, development, preservation, identification, and verification of friction ridge impressions, including fingerprints.

[183]     The method he utilized for the analysis of fingerprints was a 4 stage system known as “analysis, comparison, evaluation and verification” or ACE-V.  This was the same analytical methodology that was utilized by the police expert in R. v. Chudley, supra, at para. 8.

[184]     Constable Ramsay carefully detailed the steps he utilized to forensically examine the complainant’s bedroom.  Through the use of an ultraviolet light he located areas of possible interest, in particular, at the bedroom window.

[185]     He located fingerprint impressions on the interior of the window’s metal track.  The fingerprint impressions were digitally photographed as close as possible and submitted to AFIS.

[186]     Constable Ramsay had the known fingerprints for the accused at the time he prepared his FRAR.  Constable Ramsay’s FRAR detailed the identification process, addressed case-specific details, utilized a comparative and evaluation analysis and reached a conclusion.  He found fingerprint impression R5 to sufficiently spatially, sequentially and configurationally in agreement to individualize the fingerprint impression.

[187]     He concluded that fingerprint impression R5 was deposited by the left middle finger of the accused.  This conclusion was verified by Constable Martin.

[188]     I do not find that Constable Ramsay’s methodology in fingerprint analysis in this case or his conclusions were undermined in cross-examination.  Constable Ramsay was a forthright, careful and knowledgeable witness.

[189]     I accept his opinion evidence as credible, and ultimately reliable, in establishing beyond a reasonable doubt that R5 was at some point prior to 3:00 AM on September 14, 2016, deposited by the left middle finger of the accused.  The configuration of R5 was a downward orientation.

[190]     K.A. testified that it was the accused who was staring at her and the complainant from a window of his residence on the evening of September 13, 2016.  She testified that she saw the accused with an unknown male on the back sundeck of his residence on an earlier date.  She described the accused as being approximately 21 years old.

[191]     The accused would have been essentially a stranger to K.A. when she identified him in court as the man who was staring at her and the complainant on September 13, 2016.  The inherent unreliability of eyewitness testimony, especially relating to stranger identification, is notorious: Bardales v. The Queen, 1996 CanLII 213 (SCC), [1996] 2 S.C.R. 461, at p. 461.

[192]     The primary danger is the phenomenon of an honest but mistaken identification: R. v. Hibbert, 2002 SCC 39, at para 50.

[193]     I agree with the submission of the accused that little, if any, weight should be given to K.A.’s eyewitness identification.

[194]     I have found that the Crown has established beyond a reasonable doubt that it was the left middle finger of the accused that deposited his fingerprint in a downward orientation on the inside of the metal window track in the complainant’s bedroom.  The metal window track is a fixture attached to the subject residence.

[195]     The fingerprint evidence is powerful circumstantial evidence in identifying the accused as the intruder.  However, there is other circumstantial evidence which would support the identification of the accused as the intruder.

[196]     A.H. had left the rear back door unlocked so K.R. and her mother could access the subject residence.

[197]     After the complainant raised the alarm that there was an intruder in her bedroom, A.H. was involved in a struggle with the intruder to control the handle of the bedroom door to prevent the intruder from leaving the complainant’s bedroom.  This struggle involving the handle of the bedroom door resulted in observable damage around the area of the door handle.

[198]     When K.R. began to stab the door with a large kitchen knife, and verbally threaten the intruder, he then elected to leave the complainant’s bedroom by the only other viable means, being the bedroom window.  This finding would be consistent with the evidence of A.H. who testified that the window screen was no longer attached to the window when he entered the bedroom.  What appears to be a window screen can be seen on top of the neighbour’s fence adjacent to the complainant’s bedroom window.

[199]     This would also be consistent with the downward orientation of the fingerprint that was located on the interior metal window track in the complainant’s bedroom.

[200]     The accused was a resident one house removed to the south of the subject residence.  From the north view window in the kitchen of his residence, he would have a view of the south view kitchen window of the subject residence.  I have found the evidence of the complainant and K.A. credible and reliable in establishing that a male was staring at them from a window of the accused’s residence.  G.D. and J.V. did not strike me as the sort of individuals who would have been staring out of the window.  Logically, that would leave the accused as the most likely person to be staring at the complainant and K.A.

[201]     The accused was being supervised 24/7 by G.D. and J.V.  The accused was prohibited from going anywhere outside of his residence on his own.  He was to be escorted by one of his supervisors when he was outside of his residence.  As noted earlier in this decision, unless the accused was able to surreptitiously avoid detection by his supervisors, he would otherwise have no reason to be at the subject residence at any time.

[202]     There was no evidence that would legitimately link the accused to the subject residence.  None of the witnesses who were either living or staying at the subject residence knew the accused as of September 14, 2016.

[203]     There was no evidence that the accused was ever employed to do some work at the subject residence between July 25, 2016, and September 14, 2016.  Such a circumstance was specifically denied by A.H.

[204]     A daily log was maintained by the accused’s supervisors.  Day and nighttime activities were all monitored and noted up in the daily log.  The injuries observed by Detective Yee were not observed by either G.D. or J.V.  G.D. testified that if he had observed any injuries they would have been noted up in the daily log.  The photographs of the accused taken after his arrest clearly depict what appear to be fresh injuries.

[205]     There is no evidence that the accused sustained any injuries during G.D.’s supervision.  During G.D.’s supervision the accused played basketball, worked out on the stationary bicycle and exercised with his weights.  He was, in the words of G.D., a “sporty” individual who was focused on staying fit.

[206]     D.L. stored equipment along the side of the subject residence below the complainant’s bedroom window.  If the accused was the intruder then it was logical that he would sustain injuries if he came into contact with the equipment when he dropped to the ground from the complainant’s window.

[207]     J.V. commenced the night shift at 8:00 PM on September 13, 2016.  He performed hourly room checks until 11:00 PM.  Subsequently, there was a 12:30 AM room check.  J.V. noted in the daily log that the accused was on his bed “but still awake.”  The next room check was at 3:00 AM.  J.V. noted in the daily log that the accused was on his bed “with his blanket on.”

[208]     The CCTV footage depicted a human figure traveling southbound in the laneway behind the subject residence and the residence of the accused.  D.Z. testified when he viewed the CCTV footage in court that the human figure turned into the backyard of the accused’s residence.  Shortly afterwards lights from the police vehicles arriving on scene were reflected into the laneway well before 3:00 AM.

[209]     The CCTV footage, in combination with the arrival time of the police at the subject residence and the daily log entry at 3:00 AM putting the accused on his bed under a blanket constitute significant pieces of circumstantial evidence identifying the accused as the intruder.

[210]     Detective Kask seized underwear from the laundry basket in the accused’s bedroom.  The style was male briefs.  That was the style of underwear the complainant observed on the male intruder.

[211]     When the accused was arrested he was wearing a white T-shirt with a red logo.  A.H. testified that after he was awoken by the complainant he looked into her bedroom and saw a flash of red and white on the intruder.

[212]     The red stains on the door of the accused’s residence tested positive for iron, an element found in blood.  The blood was deposited at some point between September 11, 2016, and 9:10 AM on September 14, 2016.  The accused had fresh injuries on his hands at the time of his arrest.  Circumstantially, I find it logical that the blood on the door was deposited by the accused on his return from the subject residence. 

[213]     It was Constable Ramsay’s opinion that anatomically the orientation and location of the fingerprint located on the inner metal track of the complainant’s window was “consistent with an individual grasping the interior surface of the substrate (in this case the interior side of a window frame/track) from an exterior location (consistent with someone hanging from a window sill)”: FRAR, Exhibit 4, p. 2-3.

[214]     I find the fingerprint opinion evidence was cogent evidence that it was the accused who deposited his fingerprint on the metal track of the complainant’s window.

[215]     The accused has submitted that the Crown has failed to establish beyond a reasonable doubt that the accused deposited his fingerprint at the relevant time and place so as to connect him to the offences.

[216]     I find that there is no evidence that would establish that the accused was ever given any permission, by anyone, to be in the subject residence.  Other than speculation, no plausible explanation has been advanced to otherwise explain how the accused’s fingerprint came to be deposited on the metal track of the complainant’s window.

[217]     The accused elected not to testify or to call any evidence on his behalf.  That is his right.  The onus of proof rests with the Crown throughout a criminal trial to establish all essential elements of an offence beyond a reasonable doubt.

[218]     No adverse inference can be drawn against the accused if there is no case to answer.  In this case, the circumstantial evidence does envelop the accused in a strong and cogent network of inculpatory facts.

[219]     This strong and cogent network of inculpatory facts cries out for an explanation on the accused’s part.  In this case, the accused must accept the adverse consequences of his decision to remain silent.

[220]     I find that the accused deposited his fingerprint on the metal window track on the complainant’s bedroom on one occasion.  That occasion was between 12:30 AM and 3:00 AM of September 14, 2016.

[221]     After weighing the evidence adduced and considering the totality of the surrounding circumstances of this case, I find that the Crown has established beyond a reasonable doubt that the intruder was the accused.

[222]     As all other elements of the offences have been established, the accused is found guilty of breaking and entering a dwelling house on September 14, 2016, for the purpose of committing a sexual assault contrary to s. 348(1)(d) of the Code, and the sexual assault of the complainant contrary to s. 271 of the Code.