Provincial Court

IN THE PROVINCIAL COURT OF NOVA SCOTIA

Citation: R. v. Adams , 2009 NSPC 15

Date: 20090515

Docket: 1787634 - 1787826

1788707-1788806

Registry: Halifax

Between:

Her Majesty the Queen

v.

Peter Frederick Adams and

Marcel Shawn Murphy

Judge:                          The Honourable Judge Castor H.F. Williams

Trial Held:           August 18, 25, September 8, 22, 23, 24, 25, 29, 30, October 14, 15, 16, 20, 21, 22, 23, 24, 27, 28, 29, 30, November 3, 4, 5, 10, 12, 13, 14, December 1, 2, 3, 8, 9, 2008; January 5, 6, 7, 12, 13, 23, 27, February 3, 10, 11, 12, 13, 17, 19, 20, 24, 25, 2009

Decision:                      May 15, 2009

Charge:                        Murphy:334(a) x 8; 355(a) x 8;  334(b) x 23;

355(b) x 38; 348(1)(b) x15; 86(2) x 2; 91(1) x 2;

88 x 2; 95 x 2.

Adams: 334(a) x15; 355(a) x45; 334(b) x 46;

355(b) x 102; 348(1)(b) x 71; 380(1)(a) x 4; 380(1)(b) x 3; 145 (3) x 7

Counsel:                       Peter Craig and Glenn Hubbard, counsel  for the Crown

Warren Zimmer counsel for the Defendant Adams

Kelly Serbu, counsel for the Defendant Murphy

Introduction

[1]      The evidence presented disclosed that an integrated and combined  Halifax Regional Municipality Police and Royal Canadian Mounted Police  task force, under the code name “Operation Take Back,” conducted a series of simultaneous raids that targeted five residential search sites.  As a result, they seized at least two thousand items of alleged stolen property that they retained in  two warehouse locations pending their return to persons ostensibly entitled  to their  lawful possession.

[2]      Significantly, the police arrested,  detained  and charged, jointly and severally, fifteen persons.  Those arrested and detained included Peter Frederick Adams and Marcel Shawn Murphy.  These two individuals were   charged, also jointly and severally, with multiple counts of theft, breaks enter and theft, possession of stolen property and weapons offences in connection with the Operation.

A.      The Information ( 398 counts)

[3]      Of  importance here, however, the police charged Adams with two hundred and ninety-three counts of property related offences  and Murphy with one hundred criminal  offences.  In any event, following various successful motions and agreements to sever counts and parties, all the accused persons, with the exception of Adams and Murphy were severed from the Information tried before this Court.

B.      The Trial

[4]      The trial proper commenced with Adams and Murphy representing themselves.  Consequently, prior to the presentation of evidence, the Court advised and instructed them as follows:

Before we get too deep into the trial I wish to note on the record that the status of the accused persons are that they have waived the right to counsel and are representing themselves.  I also note that this is an unique situation in that although they are self-represented they do have the assistance of counsels that makes that wavier an informed one. I have relied upon the representations of counsels that the accused persons have been properly informed of the case against them.

The limited legal assistance afforded by counsels was particularly significant during the pre-trial conferences to address issues such as disclosure, unsealing of search warrants, and other relevant motions and the organization of the case.  However, the role of counsels at trial as I understand it, is to provide limited and specific legal services, as required.

The conduct of the trial would be carried by you, the accused persons with counsels retained as advisors when required.  I will permit such limited legal services, provided counsels advise the court, in advance of any appearance, the nature and scope of their attendance.

Once the trial gets underway I will periodically revisit the benefits of counsel with you if it becomes apparent that you cannot adequately conduct the case.  It is also my duty to see that you are not denied a fair trial because you are not familiar with court procedure.  Within reason, I will provide assistance to you to aid you in the proper defence and to guide you in such a way as to give your defence full force and effect.  But, I will not take the place of defence counsel nor give the kind of advice that defence counsel would give.

[5]      Nonetheless, mid-trial, Adams, with the assistance of counsel, pleaded guilty to several consolidated counts  and the trial continued with Murphy facing only fifty-three counts.  Even so, in the final analysis, only forty-three counts, that the Crown had to address, remained against Murphy.

C.      The Weapons Offences - counts 391,392,393,394,395,396,397,398. Property Offence - count 389

[6]      However, of those forty-three counts, on  a further nine, (all remaining weapons’ offences and a property related offence as noted above), the Crown offered either no further evidence or no evidence.  Therefore,  on motion of the Defence, these noted counts were dismissed for want of prosecution.

D.      Mid-Trial Issues and Rulings

[7]      Despite several pre-trial conferences, in the Court’s opinion, and it is compelled to say that,  the trial was plagued not only with issues of disclosure but also with evidential and procedural problems that remained endemic to the end.  As a result, the Court was obliged to make several mid-trial rulings, that contextually, it now has incorporated or referred to as forming part of its final decision.

1.       Affidavits of Ownership and Value of Property (tendered and marked but not admitted)

[8]      One of the earliest issue that arose mid-trial and which had to be resolved, on the record, was the admissibility of eighty-eight  affidavits that the Crown  tendered and marked as Exhibits C1 through C 88.  The following affidavit of Michelle Burkey, Exhibit C1  is an example of the template format of all the affidavits that the Crown presented:

I, Michelle Burkey, of 5201 Duke Street, Halifax, Nova Scotia make oath and say as follows:

1.         THAT I have personal knowledge of the matters set out in this Affidavit, except where stated to be based upon information and belief;

2.         THAT on or about 2^nd day November, 2002, an item or series of items was/were stolen from Wicker Emporium, 7071 Bayers Rd, Halifax, Nova Scotia;

3.         THAT I am either the lawful owner of the aforementioned property or lawfully entitled to possession of it or have specialized knowledge of it or property of the same type;

4.         THAT at no time was any of the above-noted Defendants given permission to be in possession of the aforementioned property; and

5.         THAT attached hereto as Exhibit “A” is/are document(s) evidencing the theft of the aforementioned property, identification characteristics of the aforementioned property, and, where applicable, the return by police investigators of the aforementioned property to an individual authorized to receive it by either the lawful owner or an individual lawfully entitled to possess it.

[9]      Apparently, the Crown  tendered all these eighty-eight  affidavits  under the provisions of the Criminal Code, s.657.1.  This provision states that:

          657.1 (1) In any proceedings, an affidavit or a solemn declaration of a person who claims to be the lawful owner of, or the person lawfully entitled to possession of, property that was the subject-matter of the offence, or any other person who has specialized knowledge of the property or of that type of property, containing the statements referred to in subsection (2), shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the affidavit or solemn declaration without proof of the signature of the person appearing to have signed the affidavit or solemn declaration.

(2) For the purposes of subsection (1), a person shall state in an affidavit or a solemn declaration

(a) that the person is the lawful owner of, or is lawfully entitled to possession of, the property, or otherwise has specialized knowledge of the property or of property of the same type as that property;

(b) the value of the property;

(c) in the case of a person who is the lawful owner of or is lawfully entitled to possession of the property, that the person has been deprived of the property by fraudulent means or otherwise without the lawful consent of the person;

(c.1) in the case of proceedings in respect of an offence under section 342, that the credit card had been revoked or cancelled, is a false document within the meaning of section 321 or that no credit card that meets the exact description of that credit card was ever issued; and

(d) any facts within the personal knowledge of the person relied on to justify the statements referred to in paragraphs (a) to (c.1).

(3) Unless the court orders otherwise, no affidavit or solemn declaration shall be received in evidence pursuant to subsection (1) unless the prosecutor has, before the trial or other proceeding, given to the accused a copy of the affidavit or solemn declaration and reasonable notice of intention to produce it in evidence.

(4) Notwithstanding subsection (1), the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the statements contained in the affidavit or solemn declaration.

[10]    The accused persons, who were still being tried before the Court, objected to the admittance into evidence of the affidavits in the format as presented.  For the most part and fundamentally, they objected on the grounds that as:

(a)     the Criminal Code, s.657.1  afforded the Crown a short cut, in that it obviated the need to call viva voce evidence to prove the ownership, value and loss of property, the Crown must therefore comply strictly with the Code provisions.  Here, the affidavits were presented in the format of  a one page template and the wording left much room for hearsay evidence; 

(b)     additionally, apart from the fact that the affiant was not being specific as to his or her status in relation to the property, all the facts to support the statements of proof of value were included as attachments. But, the attachments to the affidavits, examples of which were Crown sheet summaries and police notes that could not be in the personal knowledge of the affiant, had no indication that they did, in fact, and by the rules of evidence procedure (Civil Procedure Rule 39.09, referred to), formed integral parts of the subject affidavit;

(c)     likewise, the format, as presented, raised reasonable doubts as to whether  the affiant indeed had any knowledge of the attachments when the affidavit was sworn. Moreover, the format was internally inconsistent as it referred to knowledge “on information and belief” when no such information was ever identified.  Additionally, many of the attachments were impermissible hearsay that normally would not be admissible in a trial;

(d)     In further addition, attached to the affidavit were documents signed by other individuals.  Also, there was neither a statement of value by the affiant nor an attached property list but simply a statement of fact with attached photographs.  Besides, generic properties were neither identified by serial numbers nor other distinguishable identifiers  so that ownership could be established beyond a reasonable doubt.  As a result, the affiant, in such instances, would be required for cross-examination.

[11]    Even so, it was the Crown’s position that because of the number of property owners involved, a template was the preferred approach and  the contents of the  affidavits “virtually mirrored” the statutory provisions.  Furthermore, if it were to accept the level of details raised by the objections, the prospects of it preparing the implied template affidavits would not be feasible.  Additionally, any concerns raised  could be cured by calling the affiant, as the case may be, to be examined or be cross-examined.

[12]    All the same, after hearing submissions in which the Crown appeared to have acceded that the form and content of the template affidavits presented correctable  issues that  were surmountable, it was the Court’s opinion, relying upon R.v. MacInnis, [2007] O.J. No. 5272 (Ont. S.C.J) that, considering all the circumstances, the Crown should be given an opportunity to revise the affidavits.  In the result, the Court ordered that:

... the affidavits be revised and they shall be limited to the facts that show that the affiant is the owner or entitled to possession, that is, if he is a manager of a firm which owns the goods and that the theft occurred on a specified day and time from a specified place, the goods - the kind of goods that was stolen, for example, whether they were chairs, toys or whatever.  The value of the goods and the facts justifying that opinion of value and that the affiant was a witness to the event occurring if that is the case and that all affidavits that have any exhibit attached that is it clearly specified in the affidavit, some connection between the affidavit and the attachment to show that it is in fact an exhibit to the affiant’s affidavit.  Failing all that, if that is not done within the time frame which I have specified will be then the case will proceed with the crown proving its case, not through affidavits, but through viva voce evidence.  There has been ample time for this matter to be processed and to be brought forward.  We are in the middle of a trial.  We have already lost, what, three weeks or so and now we are going to lose another two weeks.  So that’s five weeks of the trial time which is a significant portion, Particularly when we are told how long this trial would proceed.  So having said that, I will adjourn this matter until the 22^nd of September.  The crown will have until the 18^th of September when it shall deliver, note I said shall, deliver to the defendants the revised affidavits that are here before the court.  I do not anticipate any extra affidavits being presented.  They would have to follow the usual process.  But what is before the court that the court has now ordered to be revised, that is what I expect to happen and I expect them to be delivered on the 18^th, so that the accused persons will have time to make the comparisons and we will proceed.  If not, as I’ve said, we may be in for the long haul.

[13]    However, when the trial recommenced as scheduled, the Crown informed the Court that it was proceeding by way of witnesses and viva voce testimony rather than by way of affidavits, at least for that day and for “the foreseeable few days.”  Moreover, the tendered affidavits would not be addressed by the witnesses.  Further, the affidavits would be withdrawn as the time arose.   But, in the end, the Crown presented no revised affidavits.

[14]    Thus, the Crown having been granted the opportunity to revise  the tendered affidavits that would have allowed for their probable and possible admissibility, did not do so.  Rather, it determined to present its case through the viva voce testimony of witnesses.  Therefore, as the  witnesses it presented, and who testified, neither  confirmed nor verified the affidavits nor their contents, the affidavits do not meet any  evidential standard for admissibility  into evidence.  As a result, the Court concludes and finds that all the tendered affidavits, Exhibits C 1 through C 88 are inadmissible.

2.       The Computer Disc - Exhibit “A” of Crown Exhibit C 89                    (tendered and marked but not admitted)

[15]    Although there was  some evidence concerning the remaining thirty-two counts of property related offences against Murphy, the establishment of proof beyond a reasonable doubt of the subsidiary facts, of necessity, depended upon the admissibility of critical pieces of evidence that would have been presented, supported and maintained by either Constables Sandra Johnson’s, Patrick Tucker’s and Andre Habib’s testimonies or their affidavits that were tendered and marked as  Exhibits C 89, C 90 and C 92  respectively.  In whatever manner presented, of critical importance were the photographic images that were on the computer generated disc, Exhibit “A” of Exhibit C 89 that Johnston created.  This disc, in the Court’s opinion, was therefore an essential solder that was required to join and to make coherent  the respective unconnected but outstanding strands of  evidence regarding the seizure, storage, ownership and continuity of property.

3.       The Affidavits of Constables Sandra Johnston, Patrick Tucker                  and Andre Habib (tendered and marked but not admitted)

[16]    The Crown tendered the affidavits of Constables Sandra Johnston, Patrick Tucker and Andre Habib pursuant to the provisions of the Criminal Code, s. 491.2.   For ease of reference, s.491.2 states:

491.2(1) Photographic evidenceBefore any property that would otherwise be required to be produced for the purposes of a preliminary inquiry, trial or other proceeding in respect of an offence under section 334, 344, 348, 354, 362 or 380 is returned or ordered to be returned, forfeited or otherwise dealt with under section 489.1 or 490 or is otherwise returned, a peace officer or any person under the direction of a peace officer may take and retain a photograph of the property.491.2(2) Certified photograph admissible in evidenceEvery photograph of property taken under subsection (1), accompanied by a certificate of a person containing the statements referred to in subsection (3), shall be admissible in evidence and, in the absence of evidence to the contrary, shall have the same probative force as the property would have had if it had been proved in the ordinary way.491.2(3) Statements made in certificateFor the purposes of subsection (2), a certificate of a person stating that

(a) the person took the photograph under the authority of subsection  (1),       

(b) the person is a peace officer or took the photograph under the direction of a peace officer, and

(c) the photograph is a true photograph

shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the certificate without proof of the signature of the person appearing to have signed the certificate.491.2(4) Secondary evidence of peace officerAn affidavit or solemn declaration of a peace officer or other person stating that the person has seized property and detained it or caused it to be detained from the time that person took possession of the property until a photograph of the property was taken under subsection (1) and that property was not altered in any manner before the photograph was taken shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the affidavit or solemn declaration without proof of the signature or official character of the person appearing to have signed the affidavit or solemn declaration.491.2(5) Notice of intention to produce certified photographUnless the court orders otherwise, no photograph, certificate affidavit or solemn declaration shall be received in evidence at a trial or other proceeding pursuant to subsection (2), (3) or (4) unless the prosecutor has, before the trial or other proceeding, given to the accused a copy thereof and reasonable notice of intention to produce it in evidence.491.2(6) Attendance for examinationNotwithstanding subsection (3) or (4), the court may require the person who appears to have signed a certificate, an affidavit or a solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the facts contained in the certificate, affidavit or solemn declaration.491.2(7) Production of property in courtA court may order any property seized and returned pursuant to section 489.1 or 490 to be produced in court or made available for examination by all parties to a proceeding at a reasonable time and place, notwithstanding that a photograph of the property has been received in evidence pursuant to subsection (2), where the court is satisfied that the interests of justice so require and that it is possible and practicable to do so in the circumstances.491.2(8) Definition of "photograph"In this section, "photograph" includes a still photograph, a photographic film or plate, a microphotographic film, a photostatic negative, an X-ray film, a motion picture and a videotape.

[17]    The contents of the affidavit of Constable Sandra Johnston tendered and marked as Exhibit C 89 read as follows:

AFFIDAVIT AND CERTIFICATE OF PHOTOGRAPHIC AND VIDEO EVIDENCE

I, Sandra Johnston, of Halifax, Nova Scotia, make oath and state as follows:        

1.         THAT I have personal knowledge of the matters set out herein, except where stated to by based upon information and belief;

2.         THA I am a peace officer;   

3.         THAT I photographed the items/property and associated individuals depicted on the disk attached to this Affidavit and Certificate and marked as Exhibit “A” for the purpose of returning said items/property pursuant to s. 491.2(1) of the Criminal Code;

4.         THAT attached hereto and marked as Exhibit “B” is a booklet containing photographs of items/property I took on the date said items/property was seized by the Halifax Regional Police;

5.         THAT each individual photograph contained on/in Exhibit “A” and “B” is a true photograph of the items/property and individuals depicted therein;           

6.         THAT attached hereto and marked as Exhibits “C” through “L” are disks containing photographs and/or video of items/property I took on the date said items/property were/was seized by the Halifax Regional police at the respective search sites; and

7.         THAT the items/property depicted on Exhibit “C” through “L” were/was maintained in a secure warehouse facility while the Halifax Regional Police maintained possession, and said items/property were/was not altered in any manner prior to photographs being taken of them/it pursuant to s. 491.2 of the Criminal Code.

[18]    Additionally, the contents of the affidavit of Constable Patrick Tucker, tendered and marked as Exhibit C 90, read as follows:

         AFFIDAVIT AND CERTIFICATE OF PHOTOGRAPHIC AND VIDEO EVIDENCE

I, Patrick Tucker, of Halifax, Nova Scotia, make oath and state as follows:           

1.         THAT I have personal knowledge of the matters set out herein, except where stated to by based upon information and belief;

2.         THAT I am a peace officer;

3.         THAT I photographed the items/property and associated individuals depicted on the disk attached to this Affidavit and Certificate and marked as Exhibit “A” for the purpose of returning said items/property pursuant to s. 491.2(1) of the Criminal Code;

4.         THAT each individual photograph contained on/in Exhibit “A”  is a true photograph of the items/property and individuals depicted therein;

[19]    Also, the contents of the affidavit of Constable Andre Habib, tendered and marked as Exhibit C 92, read as follows:

         AFFIDAVIT AND CERTIFICATE OF PHOTOGRAPHIC AND VIDEO EVIDENCE

I, Andre Habib, of Halifax, Nova Scotia, make oath and state as follows:           

1.         THAT I have personal knowledge of the matters set out herein, except where stated to by based upon information and belief;

2.         THAT I am a peace officer;

3.         THAT I photographed the items/property and associated individuals depicted on the disk attached to this Affidavit and Certificate and marked as Exhibit “A” for the purpose of returning said items/property pursuant to s. 491.2(1) of the Criminal Code;

4.         THAT each individual photograph contained on/in Exhibit “A”  is a true photograph of the items/property and individuals depicted therein;

[20]    On the issue of the  admissibility of the affidavits, counsel represented both Adams and Murphy.  Their counsel objected to the admissibility of the affidavits, for the purpose for which they were  tendered, basically on the  grounds that they did not comply with the strict requirements of  the statutory provisions.   After hearing submissions, the Court, ruled as follows:

Introduction

The accused persons have made applications to bar the admissibility of certain Crown exhibits.  In particular, the applications attack the admissibility of the affidavits of Constables Sandra Johnson, Michael Barkhouse, Andre Habib and Patrick Tucker that have been tendered in evidence, ostensibly pursuant to the provisions of the Criminal Code s. 491.2, on the grounds that they do not comply with any of the requisite stipulations set out in the statute.           

At its core, the objection is framed in the context that as certain specific items were seized and detained under strict  judicial authority, no one could deal or disposed of them without further judicial authorization or process and procedure.  Having done otherwise, the police were in violation of valid and  subsisting judicial orders and, as a result,  their conduct not only demonstrated a lack of respect of the stipulated legislative process  but it  also would erode the integrity of the court’s process, and could deny the accused their constitutionally entrenched  right of full answer and defence.  Consequently, all the affidavits do not comply with the specific statutory preconditions for admissibility and ought not to be admitted as complying with those provisions.

Additionally, Constable Johnson’s affidavit, paragraphs 4 through 7 are an attempt to include secondary evidence that under s.492.1 she is precluded from doing.  This is so as in this case as she was not the seizing officer and therefore  she was not the person, in accordance with the intent and purpose of the statute, to provide the information that she has done, purportedly to meet the statutory stipulation set out in s. 492.2(4).

Moreover, an affidavit made under the provisions of the Criminal Code s.491.2 is confined to photographs made and retained of property at the time that the property was returned and which is admissible, in evidence, only for that purpose.  If, however, photographs are taken at another point in time and purportedly for any reason other than for the return of property they do not fall within the scope and intent of the Criminal Code s. 491.2 and, such photographs ought not to be admitted as evidence under those provisions.

Consequently,  the contents of paragraphs 4 through 7 of Constable Johnson’s affidavit except with the reference to Exhibit “A” in paragraph 3 ought to be expunged.  Even so, despite this correction, the remainder of her affidavit still does not meet the test for admissibility under the Criminal Code s. 491.2 and as result it still ought not to admitted, as evidence, under this provision.

On the other hand, the Crown submitted that it does not accept the accused persons contentions that the goods were returned unlawfully.  In support of this view, the Crown posited that as the Criminal Code s.  491.2(1) acknowledges that the seized items could be photographed before they were returned and, the properties, in fact, were returned to the purported lawful owners.  Thus, the phrase, “or is otherwise returned,” on a plain reading of the statute, would be the authorization for the police to dispose of the seized properties.  Consequently, the affidavits of Constables Barkhouse, Habib and Tucker meet all the statutory requirements and therefore ought to be admitted under the authority of s. 491.2(1).

However, with respect to Constable Johnson’s affidavit the Crown’s position was somewhat conciliatory.    It appears to acknowledge that although the purpose of the taking of the photographs identified in paragraphs 4 through 6 is not stated explicitly, the Constable was, in fact,  the person who took them at the times and places that she referenced.  Therefore, she is in a position to make those statements.  Paragraph 7 was an attempt to comply with the Criminal Code s.491.2(4).  But, if it is not strictly in compliance with the statutory provision, the remedy would be to sever that paragraph from the affidavit.  The remainder of the affidavit would then be admissible under the Criminal Code s.491.2.

Discussion and Analysis

In the Court’s opinion  the provisions of the Special Procedures and Powers enacted under Part XV of the  Criminal Code provide for a comprehensive  legislative  scheme that stipulates and  governs the procedure  concerning seized items, their detention and their disposal. Against this general background, the current applications deal with items that were seized ostensibly under  these  provisions  but  apparently were disposed of without compliance with the legislative process.

In particular, the applications attack the admissibility of four affidavits  that have been tendered in evidence on the grounds that they do not comply with the requisite  provisions of the  Criminal Code.   The objection, as stated, is framed in the context that as the items were seized and detained under strict  judicial authority no one could deal or disposed of them without further judicial authorization.   According to this argument, which resonates with the Court’s viewpoint, as the police did not follow the strict legislative procedures before they returned the properties, they did not comply with the terms and conditions  of  valid and subsisting judicial orders and legislative fiats.  Consequently, in the Court’s view, their conduct not only demonstrated that they acted presumptuously and disregarded the legislative process  but it  also affected adversely the integrity of the court’s process and could effectively deny the accused persons their statutorily and constitutionally entrenched  right of full answer and defence.  As a result, the court concludes and finds that the affidavits do not comply with the strict statutory provisions and ought not to be admitted as complying with those provisions.

Simply put, in the Court’s opinion, the Criminal Code, s.491.2 covers several conceivable scenarios.  First, where property is seized and dealt with under the provisions of ss. 489 and 490,  a strict legislative protocol is imposed that must be followed.  Second, there is the scenario where property is not seized under the provisions of those sections.  By way of example only, where there is a search and seizure incidental to arrest  or a seizure collateral to a valid search warrant when the property seized was not the subject of the warrant but, the seizing officer, on reasonable grounds, believes provide evidence of the commission of an offence.

In the first type of referenced cases, before the property is returned, because the sanction of the court has been sought and received to seize and detain the property, the law requires that in order to provide the shelter and use of the legislative process, to dispose of that property,  the seizing party, as a precondition of disposal or restitution of the property, must follow the legislative stipulations.  It means,  among other things, giving notice to the party from whom the property was seized an opportunity to determine the rightful ownership of the property.  Or, if there is no dispute as to who should have lawful possession of the property seized the police may return it to the person lawfully entitled to possession, obtain a receipt for it and make a report to a justice.  If that is done, at trial, ownership or lawful possession of the property would then not be an issue as that would have been determined at a pre-trial application.

The  photographs under this scenario would  then act as proof of ownership or lawful possession of the property.  When this aspect of proof is combined with the affidavit of the seizing officer concerning the seizure and secured detention of the property, it obviates the need to prove, by viva voce evidence, the continuity of the seizure and detention of the property from the time of its seizure by the police to the time it was photographed, just before it was returned by the police to the person determined to be lawfully entitled to receive it.

In the second scenario where property is seized otherwise than under the strict provisions of ss.489 and 490, the law provides that they can also be photographed for evidential purposes before it is returned to the person lawfully entitled to posses it or the person from whom it was seized.  In such cases, in the Court’s opinion, the clause, “or otherwise returned” covers this contingency and affidavit evidence is permissible.  There, ownership may or may not be an issue, but, the photographic exhibits of the affidavit evidence  acts as proof of its seizure and its return.

Consequently, in the Court’s opinion, once judicial authorization has been invoked to seize and detain property that authorization is required to dispose of the same seized property.  To do otherwise, in the Court’s opinion,  would be to ignore the strict legislative process the consequences of which  could  taint the trial process as it touches on the issue of the right of lawful possession of the seized property and any evidence of continuity.  Likewise, it unwittingly could subvert  the proper administration of justice as it ignores the authority and jurisdiction of the court.  Also, it could prejudice the accused persons their right to full answer and defence at trial, as they may be unable, under the statutory provisions, to exercise their right to view and inspect the property.

Here, on the submissions of counsel, which the Court finds and accepts, the evidence is that the police authorities returned the seized properties without due court process or authorization having invoked, in the first instance, the court’s process and authority to seize and detain them.  Thus, in its reading and interpretation of the statute and on the submissions before it, the Court concludes and finds that the clause, “or otherwise returned”  in s.492.1, as argued by the Crown, does not, for the reasons stated by this Court,  cover the situation in the case at bar.

This, however, does not mean necessarily that the properties were unlawfully returned.  It simply means that the police, for whatever reasons, did not follow the legislative stipulations and as a result the Crown cannot avail itself, at trial, to the provisions of s.492.1 as there was not a strict compliance with its preconditions.

Thus, all the challenged affidavits, in this Court’s opinion, do not meet the strict precondition for admission pursuant to s.492.1.   As a result, the Court  will not admit them into evidence  under this particular section of the Criminal Code for the purposes for which they have been tendered.

Having said that, however,  it does not foreclose the Crown from leading further evidence to support and to prove any aspect of its case particularly on the issues  of the seizure, lawful ownership, secure detention and the continuity of the property exhibits that were seized and have been photographed.

[21]    Thus, the Court ruled and now confirms and finds, that the affidavits of Johnston, Tucker and Habib, for the reasons stated, were  inadmissible under  the provisions of the Criminal Code, s.491.2.   Even so, the Court left it open for the Crown to advance its theory of the case through other permissible and effective methods of evidential proof.

[22]    However, without withdrawing Exhibit C 89, the Crown sought  to sever and to renumber its Exhibit “A” as an independent and new exhibit.   Defence counsel objected. He argued that as the exhibit was an integral part of the affidavit that was tendered and marked as such, it could not be severed.  Furthermore, until and unless it was authenticated, it stood or fell with  the original  affidavit. 

[23]    It seemed, however, to the Court,  that it was open to the Crown to withdraw the entire affidavit  and utilize the exhibit in a more effective  evidential manner. But, it had a conundrum due to how it had developed its case to the point of the ruling on the affidavits, having had other witnesses testify concerning the images on Exhibit “A,” pending proof of the contents of the derivational affidavit.  Thus, it would appear  that, unwittingly, the Crown had created for  itself  a  difficult evidential and procedural situation. 

[24]    Moreover, in the Court’s view, the exhibit  was tendered as a constituent  part of an affidavit that could  not arbitrarily be severed. It was a case where either the whole affidavit  was withdrawn or it remained.  Should it remain, it then would require its author,  to which the exhibit  was an intrinsic part, to prove its contents.  In any event, the Court ruled, and now confirms and finds, that the exhibit could not be severed from the tendered affidavit.  The affidavit  was still before the Court.  Moreover, witnesses had testified and had referenced the exhibit as part of the affidavit.  In addition, its author had sworn that the subject  exhibit was an inherent part of her affidavit. 

4.       The viva voce evidence of Constable Sandra Johnston

[25]    Seemingly, to achieve  the goal of authenticating the exhibit, and, after calling other witnesses who also testified to photographic images depicted on it, the Crown  eventually called on Johnston to testify.   To the point, she was to provide viva voce testimony to authenticate  the exhibit and to further  establish, support and to maintain the Crown’s  theory of the case. 

[26]    Of relevance here, her testimony was that she became  involved in the Operation when she attended, with Barkhouse, at a break and enter into a storage facility. Following that incident, she attended several searches that she photographed and videotaped.  Additionally, she took photographs of seized items that were being returned to their owners.

[27]    In addition, she took photographs at  two locations.  In 2006  it was at 101 Isley Avenue in Dartmouth and,  in 2007 it was at 3790 MacIntosh, in Halifax.  Moreover, when she took the photographs, between 2006 and 2007, she used a digital camera, the D100 in which was a memory card that captured the subject images. Also, she entered the dates on the electronic file folders in which she saved them.   As well, the camera recorded the date and time that she took the photographs.

[28]    Upon  completing  her periodic photographic assignments, she would take  the camera to the police station and would  download all the images from the memory card, in her camera, unto the “secured hard drive of a computer. ”   Even so, other forensic officers  also had access to this “secured” computer hard drive.   Nonetheless, she saved the images that she created or captured under designated individual file folder numbers that were in a master folder named “Burnside File.”  Once she had enough images to fill a computer disc, she would “burn” the images onto computer discs and then would give these discs to the GIS.  The images, however, would still remain on the computer hard drive.

[29]    All the same, in August  2008, without either changing the file numbers in which the pictures were stored initially or accessing the stored images, she reorganized the photographs into electronic file folders to be identified by who took them.  She then “burned” them from the computer hard drive unto two computer discs.  One  disc reflected the images that she took and the other of the images that were taken by Tucker, Barkhouse and Habib. Her affidavit tendered and marked for identification as Exhibit C 89 had a computer disc attached as exhibit “A.”  She gave that disc to the Crown office.

[30]    She adopted her affidavit  and indicated that the contents of  the computer disc accurately represented  the  photographs that she took.  Further, at the time of  the downloads  she had an opportunity to review  each photograph and was satisfied as to their accuracy.   Although  she did not  look at each digital image when displayed in the camera, to make individualized comparisons to the downloaded images,  she did look at each picture that was viewed when she took it, at the scene, and was satisfied that it was the image that she actually saw.  Nonetheless, she was satisfied that the computer disc was a copy of the original photographs and that “they were both fair representations of each other.”  But, she did not know how many photographs she took.  

[31]    Notwithstanding  her assertions, the data integrity, the authenticity and  the  continuity of  the exhibit “A” became an issue.  Defence counsel objected to the introduction of the physical computer disc, as distinct to the data it contained, on the basis that its continuity and hence its authenticity had to be established beyond a reasonable doubt.  Counsel pointed to her lack of comparison between the images copied onto the computer disc from the police computer hard drive to the original images captured on the memory card.  Likewise, he submitted that as the computer disc was the product of digital technology it was not a regular photograph, therefore the Crown needed to provide evidence of the integrity and security of the computer system used before the computer disc can be admitted into evidence.  Moreover, as Johnston’s affidavit, exhibit C 89, had been ruled inadmissible for the purpose for which initially it was tendered, the Crown was put to strict proof of the exhibit’s data integrity, continuity and authenticity. 

[32]    The Crown’s approach to the problem was to treat the computer disc as if it were, in fact, an actual photograph and to ask the witness to authenticate it as such. But, the Crown continued to  encounter stiff resistance from the Defence.  As a result, it urged the Court to make a ruling on the exhibit’s admissibility.  However, before ruling on that issue, the Court alluded to the Crown a suggested course of action, that of necessity, it ought to consider in order to satisfy and to establish, beyond a reasonable doubt, evidence capable of supporting the crucial proof of the issue of the continuity and hence the data integrity and authenticity of the exhibit.

[33]    During discussions, many issues arose and Defence counsel queried:  How many photographic images, in total and in fact, did the officer capture and record on the memory card that she testified that she used to capture those images?   Given  the fact  that the memory card stamps the date and time of the images captured, did it also, given its localized memory capacity, record the number of  images that it could and did capture, contained and retained?   What became of the images that were on the subject memory card or for that matter, the physical whereabouts of the memory card itself  for  independent  verification of its contents?  Additionally, as disclosed  by her testimony, members of the forensic team had access to the secured computer with the secured hard drive.  If so, was her individual work secured or protected by an individual password to which  only she had access?   In other words, did she or could she have protected her work from any contamination?   Could, or did  any other person, who had the opportunity to do so access her work, with or without her knowledge or permission?

[34]    Additionally, in the Court’s opinion, it was important to establish, without doubt, as was also queried by the Defence, when the officer actually did download the images from the memory card to the “secure hard drive.”  Further, was the memory card continuously in her possession until the time that she did the downloading?   Besides, when she downloaded the images onto the “secure” computer hard drive did she immediately “burn” those images onto a computer disc or, as she testified, did she wait for a period of time until she had sufficient images to fill the computer disc?   If so, when did she actually do the download?  What was that period of time?  What was the source, that is, the memory card for the additional images?  Was it the same memory card?  What was the number of additional images?  How many electronic files did she, in fact, create?  Did she download other  images from other media sources to the computer files that she created and, if so, when?

[35]    Johnston, nonetheless, testified that she was satisfied with the end product. But, over time, she had rearranged the electronic files and she appeared to have made several copies of the downloaded data.  Thus,  given the processes and actions that she adopted, she was not, in the Court’s opinion, clear as to what exactly she did and when.  Moreover, she was not clear on whether or not the processes affected the disc or its data  authenticity.

[36]    In the Court’s opinion, those questions raised by the Defence on the issue of continuity and hence the authenticity of the computer disc required  some  satisfactory supportive  evidence.  The crucial issue was not Johnston’s satisfaction with the end product  but rather its authenticity.  Therefore, what was required, in the Court’s opinion, was some evidence that would have supported a finding that at all material times the police computer system was operating properly or that there were no reasonable grounds to doubt  its integrity and hence the authenticity of  the computer disc.  Thus, in its intimations to the Crown, during  discussions, the Court  alluded to these matters of concern and  not only urged the Crown  but  also granted and permitted it  time to consider and to  examine carefully  the need to provide some evidence that would tend to establish the required continuity and authenticity of the exhibit.

[37]    In any event, no matter how, the Crown presented no further evidence through Johnston to advance and to maintain,  beyond a reasonable doubt,  its theory  of the continuity and hence the authenticity of the proposed exhibit.  Instead, it persisted that the Court makes a ruling with respect to the admissibility of the exhibit “A,”  the computer disc.

[38]    Therefore, based on the evidence  then presented, and the submissions of counsel, it was the Court’s view that there  still were critical gaps in the evidence of continuity that were neither addressed nor corrected that, in the end,  affected adversely the proper admission of the exhibit into evidence.   It must be remembered that the computer disc was an exhibit  to the affidavit of Johnston, Exhibit C 89  that, although tendered, was ruled inadmissible for the purpose for which it was tendered.  Yet, the data contained  thereon still could become admissible to support and to maintain the Crown’s theory of the case, if they were proved properly by Johnston. 

[39]    True, the officer testified that she authored  the affidavit that the Court does not doubt.  However, in the Court’s opinion, as it was open to the Crown to submit proof in this manner, her viva voce evidence was adduced to be a substitute for her affidavit.  Therefore, her testimony was relevant and material to support the Crown’s theory of the case and her reference to her affidavit was a required  logical connecting step.  But, in the Court’s view, because of her viva voce testimony, the operation of her affidavit, concerning its exhibit “A” was spent, and, as a result, the Court was obliged to decide the matter of the admissibility of that exhibit, the computer disc, by reference to  her viva voce evidence, taking into account the affidavit  for what it was worth.  See: Circle Film Enterprises Inc., v. Canadian Broadcasting Corp., [1959] S.C.R. 602.

[40]    Here, however, because of the very nature of the exhibit, a computer disc, it seems clear that there ought to be no impediments to the application of the principles of documentary evidence to the present and modern mode of information storage.  As was put by Amour C.J. in Fox v. Sleeman, [1897], O.J. No. 222 (1897),17 P.R. 492 (Ont. H.C.J.), at para 14:

In an earlier edition of his Digest of the Law of Evidence, Sir J.F. Stephen defined document as follows: "'Document' means any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of these means, intended to be used, or which may be used, for the purpose of recording that matter."

[41]    Consistent with this view, it is the Court’s opinion that the exhibit was a  police “electronic document” of photographs contained initially  on a digital memory card that was then stored on a computer hard drive and eventually copied onto a  computer generated  disc.  Therefore, the Court finds that the  disc stored  data information that was stored initially on a video memory card that was utilized by the police to document and to record the images of the subject properties.  Moreover, the Court further finds that, on the evidence and significantly, the data on the computer disc could only be read, displayed or perceived by a person when it is processed by a computer or other similar device.

[42]    Therefore, in the Court’s opinion and it finds that, the computer disc is comparable to an electronic storage device and that the stored photographs are  an “electronic document” that is defined in the Canada Evidence Act, s. 31.8, as:

...data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other device.  It includes a display, printout or other output of that data.

The Court  thinks so particularly when it considered the purpose for which the exhibit  was tendered. See also: Criminal Code, s. 491.2. 

[43]    In support of this view, the Court  notes  that in the modern world and its technological  advancements  and on the evidence, generally, there appears to be two main preferred media for the taking of photographs by the police.  One is by the use of a 35-mm camera using a photographic film that captures the images.  This film is then developed and the pictures are reproduced  on photographic paper in a sensual form, that is, easily perceived by the senses as a real thing.  The other method is by the use of a digital camera that uses an electronic data memory card that captures and stores the images as electronic data in an intelligible form, that is, in a form that is suitable for processing by an electronic medium, such as a computer, to transform  or to display  the data information received and stored  into a sensual form, that is, in  a format that is easily and readily identifiable by the senses, or which can be read or perceived by a person. 

[44]    Therefore, in the Court’s opinion and it finds that,  the physical  computer disc itself  is  not a photograph  and cannot  be identified as such.  One cannot accept  the computer disc as the photographs themselves and, on the other hand, say that the actual photographs are in electronic data form recorded on the computer disc that can only be perceived when processed by a computer or similar device.  There is a separation of the things that we experience.  One cannot see a photographic image merely by looking at the computer disc or even physically holding it.  Rather, it is the data information that was stored on the memory card and subsequently copied onto the computer disc, when processed by a computer, that would be transformed from an intelligible electronic form into a sensual form  representing that  which was seen by its creator and which its creator can read or perceive.  That, in the Court’s view, is the real evidence.

[45]    Thus, on that  reasoning, the Court finds that  the data on the disc was a photographic electronic document that was created by Johnston to show and to record that the subject properties were once in police custody and control but that subsequently  they were delivered to a person(s) ostensibly lawfully entitled to their possession.  Hence, as the data on the computer disc, not the computer disc, per se, is the real evidence, the computer disc can only be  offered in evidence in order  to prove its contents, and the Canada Evidence Act, ss. 31.1 and 31.2. operate to make it the best evidence available for that purpose. See for example: R.v. Morgan, [2002] N.J. No.15 (Prov. Ct.).

[46]    However, it is also the Court’s opinion and it finds that, the best evidence rule  concerning the continuity and hence the authenticity of the images on the electronic document  could have been satisfied if there were proof of the integrity of  the electronic documents system, or the computer,  in which the data from the memory card  were recorded and stored.  Although there would be a presumption of the integrity of the memory card and the police computer  on which the images taken by Johnson were recorded, downloaded and stored, that presumption, in the Court’s view and it finds,  must  be  satisfied by evidence capable of supporting a finding that at all material times the police computer system was operating properly, or if not, it did not affect the integrity of  the stored images.  Additionally, it seems to the Court that, in further support, there should be evidence in respect  to any standard procedure concerning the police practice, protocol and use in the usual and ordinary course of recording and storing photographic images taken electronically for evidential purposes.  See: Canada Evidence Act , ss. 31.3; 31.5; 31.7 and 31.8.  See also: (by way of comparison and the statutory approach toward electronically generated data) the Evidence Act, R.S.N.S., c.154 (as amended), ss. 23A - 23H.

[47]    Here, however, as  there was some evidence adduced pointing to the probable authenticity  of the  data stored on it,  the computer disc, in the Court’s opinion, then was not hopelessly inadmissible.  Rather, it needed to be authenticated.  Even so, the Court finds that it was Johnston’s testimony, on the issue of its authenticity,  that did not support, without a reasonable doubt, the proof of the integrity of the electronic documents system or computer used by the police or what, if any impact, the existing security protocols, if any, had upon the data integrity of the computer disc. 

[48]    Some form of supportive evidence  as to the continuity  and hence the authenticity  of the proposed  data evidence  from its genesis, that is, from the time  she captured and created the images on the digital memory card in a digital camera to the time the same images ostensibly were downloaded onto a “secure” computer hard drive; to the time she copied the downloaded  images onto a computer disc; to the time the computer  disc was formatted in its present form and produced as an exhibit  to the Court, would have, in the Court’s opinion,  gone  toward addressing the issues raised, by Defence counsel.

[49]    First, as the Court  has indicated, the computer disc itself was not a photograph, but rather an electronically created storage medium of  photographic images taken  in electronic data form over a period of time and which were stored in a computer and then copied onto it.  Second, in the Court’s opinion, the electronic information  transferred from the computer to the computer disc contained only intelligible electronic data that only when processed by a computer  becomes visual identifiable pictures or displays, either on the computer or in print form, that could be perceived, read and verified by Johnston as the photographs that she took and also as to their accuracy and fairness without any intention to mislead. See: R.v. Creemer and Cormier, [1968] 1 C.C.C. 14 (N.S.S.C. App. Div.).  Then, once it has been established that the processed images stored on the computer disc were fair and accurate depictions of what she photographed,  they would become  admissible as real evidence that would function to elucidate, support, and explain  her and the oral  testimonies of other witnesses and  to supply relevant details of the properties described in oral testimony.    See, for example: R.v. Wildman (1981), 60  C.C.C. (2d) 289 (Ont. C.A.), rev’d  on other  grounds [1984] 2  S.C.R.  311, Benson and Hedges(Can) Inc. v. Ross (1986), 58 Nfld & P.E.I.R. 38 (P.E.I.S.C.) .  Thus, the ordinary rule of law as it relates to the admissibility of photographs is not affected.  What, however,  is affected, in the Court’s opinion and it finds, are the rules relating to the authentication and best evidence of the electronic document, the computer disc. See: Canada Evidence Act, s. 31.7.

[50]    Therefore, on the reasoning of this Court,  and,  in its view, it concludes and finds  that before Johnston is permitted to perceive the stored data, by the use of a computer,  in order to authenticate that data, as it is still information on a computer disc in a form that must be processed by a computer in order to be displayed in any visual, intelligent or recognizable format, the  Crown  ought  to provide  some evidence capable of supporting a finding that, at all material times, not only were  there in place security protocols on the police  computer in which the electronic images were downloaded and stored but also that it was operating properly, or, if not, it did not affect the data integrity of the images that she stored in it. See: Canada Evidence Act, s.31.3(a).   This approach, in the Court’s  view, is especially the case when there is no agreement on the continuity of the exhibit and the Defence has raised its objections to the introduction, into evidence, of data recorded on a digital memory card, that is subsequently  stored in a computer and then copied onto a computer disc.

[51]    However, it should be clear that, in the Court’s opinion, Johnston’s viva voce evidence, in general,  was presumed to be creditworthy.  But, it was on the vital evidentiary issue of the integrity of the police electronic documents system or computer, the data integrity, the continuity and hence the authenticity of the exhibit, that it neither  generated nor rose to the required  level  of trustworthiness and reliableness. 

[52]    Put another way, in the Court’s opinion, her testimony did not provide sufficient evidence capable of supporting a finding that, at all material times, there were no other reasonable grounds to doubt the integrity of  the police electronic documents system or computer and its impact, if any or at all, upon the data integrity or of the continuity and hence the authenticity  of the electronic document, the computer disc, as a proposed exhibit.  Additionally, and, in the end, the Court concludes and finds that, although the Crown was urged to do so, her credit  was never  restored by belief, rehabilitation or supportive evidence. Thus, in the Court’s opinion and it finds that, the admissibility of the computer disc, on her testimony, at that point in time, remained  inchoate.  Here, however,  at the end of the day, because the Crown called no further evidence capable of supporting a finding of the integrity of the police computer system and hence, in the Court’s opinion and it finds it also did not prove, beyond a reasonable doubt,  the  authenticity and the continuity of the computer disc.

[53]    The Court  also notes and finds that Johnston’s  affidavit had an exhibit `B` that was never addressed by her oral testimony.  Likewise, it had exhibits “C” through “L” that also were not addressed by her testimony. Consequently, the Court finds that at the end of its case, the Crown had failed to present sufficient evidence to warrant the admission, into evidence, for the purpose for which it was tendered, Johnston’s affidavit and all its constituent exhibits.  Additionally, her viva voce evidence did not, without a reasonable doubt, satisfy the onus of admissibility.   As a result, the Court concludes and finds that her affidavit, Exhibit C 89  and all its attached exhibits are therefore inadmissible.

5.       The Evidence of Constable John Douglas Riggins

[54]    Constable Riggins  testified that basically he was assigned as the property exhibits overseer for the different search warrants that the police executed.  He attended some of the search site areas, and, for those that he did not, he assigned and designated  other exhibit officers.  It was he who determined the nature and style of the documentation and the marking of the seized property.  He logged and coordinated the marking of the inventory.  Likewise, it was he who oversaw where the seized property was located and stored until its return to its owner.

[55]    The Constable prepared a master log sheet that contained information from logs that he prepared personally and from other logs that he received from other officers who had completed  them.  From all this information, he generated and prepared, for purposes of legibility, a computer printout.

[56]    The Crown sought to introduce  the master log that Riggins prepared.  However, Defence counsel objected on the ground that parts of his logged information was impermissible hearsay evidence.  As a result, the original creators of the information logged, of which Riggins had no personal knowledge, would be  required to testify in order to verify and to authenticate that information. Counsels had no disagreement to the Constable addressing information on which he had a personal  knowledge and, on that basis, the Court was prepared to allow the Crown to tender and mark the master log as an exhibit, subject to further proof.

[57]    It also appeared that the Crown was prepared to adopt that mutually agreed upon approach.  However, after a lunch break and a recess,  the Crown raised some  issues concerning  whether or not it would be permitted to  introduce  the whole log or only parts of it, as some of the information on the total log did not apply to Murphy.  Defence counsel  objected to the log being truncated as it was another example of the Crown’s ad hoc preparedness and that it  had failed to edit and prepare properly the document prior to its proposed presentation  knowing full well that other cases that appeared on the log were not issues presently before the Court. 

[58]    Thus, the submission and  view of the Defence was that the document should be presented as a whole document.  However, after some further discussions, the Crown did not formally seek to enter  the document even though it could have done so with the immaterial information and subject  to further proof of  its contents.  The Crown appeared to have made a decision  concerning the document and, what is more, it neither sought a definitive ruling from the Court  nor did  the Court offer one.  Thus, in the circumstances,  the Court concludes and finds that the Crown formally neither introduced nor tendered, for admission into evidence, any exhibit through the testimony of Riggins.

6.       The Testimony of Constable Michael Barkhouse

[59]    Constable Barkhouse testified that he attended the Metro Self Storage facility concerning the Wacky Wheatley break and enters (counts 289/290).  In addition to assisting Johnston in taking photographs and the return of property in the “Operation Takeback,” he also took photographs of property.  At  the Metro Self Storage site, he not only took a set of thirty-two photographs that he authenticated (exhibit C 160) but he also checked the crime scene for fingerprints, DNA   and other forensic evidence such as a partial footprint.  However, that which was found, if at all, yielded negative forensic results.

[60]    He also addressed his photographing of a fireplace that was returned to an ostensible owner from police storage ( counts 314 and 382, alleged property of Kent Building Supplies).  These  photographs, he testified, were downloaded into a secured hard drive from which  Johnston created a computer disc Exhibit  C 91.  However, in viewing the photographs that he took of the return of the alleged Kent’s property, he did not know personally whether the person whom he photographed was a person representing Kent.  Likewise,  he could neither  state positively and without any doubt  whether  the police storage facility where he took the photograph  was a secured facility nor whether any photographs were taken of the returned property when it was seized nor whether it came from a police seize site.  Moreover, the Crown did not show him for authentication or adoption, his affidavit,  Exhibit C 91.

7.       The Adjournment Request  

[61]    Nonetheless, days after Johnston’s testimony and that of Riggins, when the Court  reconvened, and after first  intimating that it would  recall  Riggins, the Crown formally  sought an adjournment of the trial.  The adjournment was  to allow it  to interview and to call other witnesses to complete and to make whole  the chain of continuity and thus the authenticity of the computer disc.  The Defence objected on the basis that essentially the Crown  was now seeking, to the prejudice of the accused, to organize its case, after seeking and receiving mid-trial rulings.  Morever, they  were in the middle of a lengthy trial and a further trial adjournment raised the  issues of trial delays, availability of counsel and the perception of the improper administration of  justice. 

[62]    Nonetheless, the Court denied the Crown’s request for a further adjournment of  the trial for the following reasons that it now incorporates as part of its final decision:

Mr. Craig, on behalf of the Crown, has made an application for an adjournment of the trial on the basis that:

(a) the Crown did not anticipate the rulings of the Court on the admissibility of certain exhibits that it tendered.  He refers in particular to the CD tendered as part of Exhibit C 89 the affidavit of Constable Sandra Johnston and an Exhibit log prepared by Constable John Riggins.

(b) the Crown would need, with respect to the CDs prepared by Constable Johnston,  to interview an additional 13 -15 witnesses who may have had access to the computer hard drive on which the photographic images were stored.  He has neither spoken to these witnesses nor has he disclosed their names to Mr. Sebu, who is acting for the accused, Mr. Shawn Murphy.  He needed time to get organized and to arrange for those witnesses.

(c) with respect to the exhibit report, in order to comply with the Court’s ruling it would probably involve 20-30 police witnesses whom the Crown did not anticipate it would have to call given that their testimony would relate to search sites and property not related to Mr. Murphy and all property from those sites.  The crown has neither spoken to these witnesses nor has disclosed their names to the accused.  Therefore, the crown is not in a position to commence.

(d) the time requirement to hear these witnesses would be an additional two months of testimony.

Mr. Sebu on behalf of the accused, objects to the adjournment.  He submitted that this matter has been before the Court since January 07 and that his client has spent time on remand and is currently on bail under house arrest.  The issues that were ruled upon by the Court should have come to no surprise to the Crown as they ought to have foreseen them.  Likewise, the Court has bent over backwards and has given the Crown time and offered assistance and the rulings were made after the court had given time to the Crown.  The crown then did not seek an adjournment and nothing then stopped the crown from addressing its concerns or to make an application.  Instead, the Crown sought and received a ruling from the Court. 

Constable Riggins spoke about log sheets that were never tendered. There were discussions as to issues that would arise should they be tendered and that was all.  After a five-minute recess that was requested by the Crown he returned ask Constable Riggins a few more questions.  He, the Crown, abandoned the witness without tendering any exhibits. 

The Crown’s proposition with respect to it proposed witnesses is too vague  and there are too many contingencies.  It is not appropriate that the adjournment should be made.   However, if the Court remotely entertained granting an adjournment, he, Mr. Sebu would not be available, due to prior commitments until December and beyond.  Further, when the co-accused Mr. Adams pled out, the crown made no adjustments in its case.  Therefore, the adjournment ought not to be granted and the trial should proceed as scheduled.

Discussion

First, we must remind ourselves that we are in the middle of a lengthy trial for which extensive pre-trial meetings and motions and rulings made during the early part of the trial that, if properly and timely addressed, conceivably the present scenario would not have developed.

Second, and with respect, it is the Court’s opinion that under all the circumstances, the Crown was given ample time and opportunities to  examine Constables Johnston and Riggins and to present, advance and maintain its theory of the case through them. 

I say that when I consider that in determining its theory and to maintaining  it throughout the trial is decided only by the crown.  Further,  the order in which it calls its witnesses to give their evidence and the preparation of the witness is also determined by the crown.  This will of course, in the Court’s opinion, in part depend upon the evidence advanced preceding and following a particular  witness.  In addition, it would be a consideration of where that witness’s evidence fits and what proposition  is being advanced through the witness.  The selection and presentation of a witness are therefore important in order to maintain the atmosphere of the theory and to ensure that it is not, for one moment, lost through the trial.

Here, in the Court’s opinion, after  encountering some  resistance to the establishment of  proof of several procedural and  evidential burdens, concerning  the presentation of its theory through Johnston’s and Higgins’s  evidence, the crown,  following several  recesses to consult and to review its current position,  made its decision to complete its examination of these witnesses and not to further advance and maintain its theory through them.  Also, crown counsel informed the Court and the accused that it had no more questions for these witness, and, as a result, the Court excused them.

Additionally, on Friday, crown counsel advised the Court and the accused that it had no further witnesses for the day.  Given the hour, the Court enquired whether there were any other witness within the Courtroom precincts.  Crown counsel responded that  there had been other potential witnesses but that he had dismissed them.  Upon the Court’s observation that there was still sufficient  time to call  more witnesses  and that they were present and excused without its approval and consent, counsel responded that its dismissed witnesses who included Constable. St Pierre would not be required and be called by the Crown to give evidence in the trial.  This, notably  was after crown counsel decision not to further advance and maintain its theory through Constable Riggins.

Moreover, the crown informed both the defence and the Court that its future course for the case would be to call witnesses to complete the motor vehicle offences and to address the weapons’ offences.

In the Court’s opinion, the reason for the adjournment is important and significant. If the reason  is  to allow the Crown to interview witnesses in compliance with the court’s ruling, the Court is not aware of nor has its attention been drawn to any ruling on the contested issues presented for the request for an adjournment, ordering the Crown to provide any witness or to  continue the examination of any witness and to continue to advance its theory by the production of undisclosed witnesses on issues that any reasonable objective and cautious litigator would have been aware would be contentious  and would, would not be presumptuous of a particular outcome and be prepared, in advance, for any contingences.

Nonetheless, in the Court’s opinion in exercising its jurisdiction to grant an adjournment it must balance a number of factors that include:

1. The availability of counsel.  Here, Mr. Sebu submitted that he would not be available until at least December and beyond.  He is the counsel of choice of the accused that has been exercised pursuant to his Charter rights.  Further, Mr. Sebu is familiar with the trial issues and has been involved with the trial.  His unavailability for the period of time could give rise to other issues such as a speedy trial.

2.  The public interests in having criminal trials disposed of in an expeditious manner.  This trial has been ongoing since August 08, with some pauses and adjournment to resolve similar issues.  Thus, it seems to me that  it is not in the public interest to prolong this trial.

3.   Age and history of the case.  The history of the case goes back to January 07. The accused was in custody but is now on bail under strict house arrest provisions.  Any further lengthy delays would give rise to Charter issues  of delays and rights to a speedy trial.  The right to trial within a reasonable time is guaranteed by the Charter.

4.  The availability of witnesses.  Here the witnesses are still unknown and therefore no subpoenas have been issued to secure their attendance.  Thus, there were too many contingencies and vagueness in identifying any proposed witnesses that would warrant a conclusion that there is a reasonable expectation that they would attend should the adjournment be granted.   Further, the crown has not demonstrated that it was not neglectful in attempting to secure these undisclosed and unidentified witnesses before the trial commenced.

Further, in the Court’s opinion, the issue raised is one of continuity.  An issue that was observed upon by the Court when it rendered a ruling on November 5, 2008  on the admissibility of C 89.  Thus, it would appear that the Crown did not adjust its approach preparing its case in a timely manner or at all.  Furthermore, in the Court’s opinion, to allow the adjournment, in the set of circumstances as presented, is not only unprecedented, but, if permitted,  also could lead to an abuse of  its  process and be contrary to the proper administration of justice as in effect it is an attempt by the Crown to regroup after hearing rulings and after it has effectively for all intent and purposes completed its examination of the foundation witnesses.

Additionally, if the calling of further witnesses, yet to be disclosed, is to advance the Crown’s theory through those witnesses, it has already given what would be construed as its undertaking to the defence, not to do so.  Normally, the crown has a discretion and the  prerogative on whom to call as its witness.  This is a prerogative with which the Court will not interfere.  However, in the Court’s opinion, an  individual crown counsel cannot attempt to create another opportunity to over-ride, during the trial process, the decision taken, made and presented  to and accepted by  the Court, on the same or similar issues  by another crown counsel, merely because he or she does not agree with that previous decision.

In the Court’s opinion  the Crown speaks with one voice and any individual crown counsel, in addressing the Court, as an officer of the Court, and representing the Crown, speaks for and binds the  Crown.  His or her submission on behalf of the Crown, in the absence of contrary proof and exceptional circumstances, binds his or her  fellow  crown  counsels to accept and to abide to his or her submission to the Court as the Crown is not the particular individual crown counsel but it embodies and encompasses all counsels who represent it.

            Put succinctly, I think and conclude that the Crown has not shown that it was not at fault in failing to secure the proposed witnesses beforehand. Thus, for the reasons stated the request for the adjournment is denied and the trial will proceed as scheduled. 

8.       The Property Offences, Counts - 181,206,207,221,222, 227,228,267,268,280,283,289,290,314,354,355,356,357,360,361362,363,366,367,373,374,375,376,382,384,390.

[63]    Although the Court finds that there was some evidence that there was a taking of property without colour of right with the intention to deprive the owner or a person with a special interest in it of the property, it also finds that there was neither credible nor any evidence of the location of the seizure of the alleged stolen property nor from whom  the police seized the alleged stolen property. Further, the Court finds that there was no evidence, direct or circumstantial, that pointed, without any doubt, that there was a nexus between the accused Murphy and any of the alleged thefts.  Additionally, the Court finds that the Crown presented no evidence to support the allegation of possession, either actual or constructive, by the accused Murphy, of any of the  alleged stolen property (e.g., 289/290).  Continuity was an issue.

[64]    Alluding to the Court’s ruling not to admit the exhibit “A” of Crown Exhibit C 89, the computer disc, and that it did not enter Riggins’ log, the Crown reconciled itself that it was not obligated  to make any closing submissions with respect to the property offences.  However, there was also an exhibit “B” to the impugned affidavit that constituted several binders of hard copy photographs that were never addressed. Likewise, the affidavit had exhibits “C” to “L” that were never addressed.   Additionally, the Crown called neither Habib nor Tucker  to testify concerning  their impugned affidavits and the attached exhibits. Nonetheless, counsel  submitted that the Crown  did present some evidence  but he was not clear on what specific counts, if at all, it did lead such evidence.

[65]    To address  this  point, however, the Court is compelled to state that, even  if  the computer disc, C 89, exhibit “A,” were to have been admitted and the Court was wrong in excluding it, in the Court’s opinion, the evidence that was presented on the property counts and the order and manner in which such evidence was presented in support of the Crown’s theory of the case was, in and by itself, highly problematic.

[66]    That is so as in the Court’s opinion, the limited evidence presented,  in and by itself, raised fundamental issues on the proof, without  doubt, of the actual ownership of or the person who lawfully was entitled to possession of  the subject property. That was the case, as the items, for the most part, were generic goods with no specific identifying marks. In instances, for example,  where there were serial numbers,  either none were recorded by the purported owner  or there was conflicting evidence of positive identification, (e.g., 267/384).  It also would appear that in some instances, no theft of property was reported to the authorities (e.g., 206/207) but the police took the initiative to contact  persons, whom they believe would have an interest in possession of the property, to come and identify the property and to receive it on minimum or no proof of actual entitlement or ownership (e.g., 221/222).  On some of the proposed photographic evidence of generic goods, there were no serial numbers for identification purposes.  These mass produced property were claimed by individuals only on belief and no other proof of ownership.

[67]    Moreover, there was insufficient or no evidence that reasonably would have established without doubt proof of the chain of continuity of possession and/or ownership.  For example, there was insufficient or no evidence,  on all those property counts that Murphy faced, of who seized the subject property; from where was the property seized; where was the property stored or detained from the time of its seizure until it was  photographed, or, that it was not altered in any manner before it was photographed or delivered to its ostensible owner.   There was no evidence that Murphy had knowledge or control of any of the places where, allegedly, the police recovered stolen property.  As a result, the  Court  would have been compelled to find, as it would be in a position to do so, that, in all the circumstances and at the end of the Crown’s case, all this essential, expected and required body of evidential  proof of facts that were independent of  the  expunged affidavit and its exhibits, respectfully, neither were presented nor materialized. 

[68]    True, the Court does not doubt and it  finds that items  were stolen. But, the question remains:  Who committed the alleged crimes of theft?   Respectfully, in the Court’s opinion, on the evidence presented, at the end of the Crown’s case, it would have been compelled to find that the Crown  presented  not one  iota of  evidential proof that could have supported a finding, beyond a reasonable doubt, that the accused,  Murphy, actually or inferentially, committed the noted alleged  crimes of theft.  Furthermore, in the Court’s opinion, at the end of the Crown’s case, on the evidence presented, it would have been compelled to find and, it would be in a position to do so,  that the Crown presented no evidence that could have supported a finding, beyond a reasonable doubt, that the accused, Murphy,  was  in unlawful possession, either actual or constructive, of the noted property and that he knew that it was obtained, directly or indirectly, from the commission of  the alleged offences of theft.

[69]    Hence, the Court reiterates that even if it were wrong in excluding the computer disc, there existed, independent of the computer disc, other  major and essential  evidential issues that the Crown  never addressed and which,  at the end of the day, reasonably and irreparably would have  eroded  its case  against Murphy. Therefore, the Crown’s alluded inferences on those noted counts, in the Court’s opinion and it finds,  amounted to no rational or material submission.  In the result, the Court concludes and finds that there was insufficient  evidence to support any conclusions or findings, beyond a reasonable doubt, that the accused,  Murphy,  on the Information tried before this Court,  committed  the noted alleged offences of the unlawful  theft of property and the noted  alleged offences of the unlawful possession of stolen property.

9.       The Wacky Wheatley Storage Facility - Break, Enter and Theft - counts 289 and 290.

[70]    Here, the Crown alleged that the accused, in cahoots with Peter Adams and Mark Day, executed a break and enter of a storage facility utilized by Wacky Wheatley, a local electronic retail business.  The allegation was that Adams and the accused were the individual operators of the two vehicles used by the perpetrators to convey the stolen items.  Day, who was acting as the lookout person, testified as to whom he believed to be the vehicles’ operators that were present at the crime scene.

[71]    Day testified that he saw a person whom he believed to be one Marcel Murphy.  However, he had only met this named person on one previous occasion and it was for a brief moment.  Further, at the crime scene, the subject person was wearing clothing that practically concealed his face.  But, in any event, Day did not see the person’s face so that he could provide any facial characteristic or any distinguishing features of the person whom he said was present.  He, however, did say that the person was the operator of a white cube van.  Nonetheless, he did not provide the licence plate of that vehicle and neither was he asked to do so.    Significantly, the Crown did not ask him to point out, in court, whether the person whom he saw that night and whom he believed was Marcel Murphy, was present in the court.

[72]    The Crown submitted that on the basis of that evidence and documents  purportedly  taken from a white cube van,  he could prove circumstantially that the person at the crime scene was indeed the accused.  Significantly, however, the Court notes and finds that the Crown never established, in evidence, its assertion that the tendered documents did, in fact, come from a white cube van  that allegedly was owned by one Paulette Cuza, the mother of the accused.

[73]    Even so, the Crown called  Cuza who testified that at some point in time she believed that she did own a white cube van. But, although the Crown showed her documents, C165, C166, C167, C168, that  averred  ownership  and  insurance particulars and, for  her essentially to prove the truth of their contents, she, however,  did not adopt the documentary  information and indicated that she was neither  fully informed  of the vehicle’s identifying details such as its Vehicle Identification Number nor its insurance particulars.

[74]    On the other hand, Defence counsel submitted that the documents that  the  Crown showed to Cuza  were  purported original documents that she neither  created nor testified as to their source.  Further, the Crown did not prove from where it got  the documents as they certainly were not created by Cuza.  Thus, as original documents their admissibility were in doubt.  Even if they were admitted, they did not provide any circumstantial nexus between the accused and the crime.  Importantly, the Crown’s eyewitness as to identity did not positively identify the accused.  The eyewitness’  identification testimony was weak and vague and it  amounted to no proper  identification.  Consequently, from the Defence’s point  of  view, the accused was not identified, either direct or circumstantially and beyond a reasonable doubt, as the person who was at the crime scene and participated in the crime.

[75]    In the Court’s opinion, identity was the paramount issue.  The jurisprudence is replete with cases concerning the frailties of identification evidence. See for example: R.v. Sophonow( No.2) (1986), 25  C.C.C. (3d)  415 (Man. C.A.). Leave to appeal to the S.C.C. refused [1986] 1 S.C.R. xiii. , R.v. Burke (1996), 105 C.C.C. (3d) 205 (S.C.C.), R.v. Holden (2001), 159 C.C.C. (3d) 180 (Ont. C.A.), leave to appeal to the S.C.C. refused 161 C.C.C. (3d) vi, sub nom R. v. H. (R. T.).

[76]    Here, there existed fundamental issues of visual identification.  It was at night and Day’s opportunity to observe the subject  person  was  limited. He was assisting Adams, whom no doubt he knew, and the other person  load the available trucks for fifteen minutes during which time he paid no attention to recognizing anyone present.  The person whom he believed to be Murphy was wearing a hat and a big coat and his face was partly concealed.  Significantly, he was clear that he did not look at the person’s face.  Absent from his testimony was how far he was from that person but he stated that it was very dark.   Also  absent from his testimony was a physical description of the person whom he saw or the presence or absence of any distinctive features of the person. He, however,  believed that he met a person known to him as Murphy only once on a prior occasion and it was at night and it was for a brief period of time.  Absent as well from his testimony was how long a period of time had elapsed from this first encounter to the night in question. In the end, he was uncertain whether  the person known to him as  Murphy was at the crime scene as he, Day, that night was intoxicated from his consumption of alcohol and drugs and he was not there to identify anyone.

[77]    In the Court’s opinion when reduced to its realities,  the inability of the witness to give any details concerning  whom  he saw and his self  acknowledged state of intoxication and  uncertainty  gave his testimony little or no value or weight with respect  to correctness of the  identification.  R. v. Brown and Angus (1951), 99 C.C.C. 141 (B.C.C.A.). R.v. Harrison (1951), 100 C.C.C. 143, (B.C.C.A.).  Additionally, and significantly, the Crown  never  asked him  whether the person whom he knew as Murphy and whom he saw on the night in question was presently in the court.  Moreover, the police found no physical  traces of the accused at the crime  scene  and, in the Court’s view, the anticipated circumstantial evidence, alluded to by the Crown, neither gained traction nor materialized.  Thus, what the Court is left with was Day’s evidence of identification.

[78]    Therefore, in the Court’s opinion and with deference, the kind of evidence of identification presented in this case is valueless in the sense that it is dangerous for the Court to act upon it in any respect.  The Court finds that there was the inherent tendency on the part of the witness toward an honest mistake.  Further, his apparent perversive self-deception destroyed any value that otherwise could have attached to it even a recognition of “some evidence.”  Additionally, the strange failure of the Crown either to hold a line-up or to ask the witness whether the person whom he knew as Murphy and whom he saw on the night in question was presently in the court, in the circumstances of this case, invites unfavourable judgment.

[79]    Nonetheless, having instructed itself on the guidelines cited in R.v. Sophonow (No.2), supra .,  the Court is not satisfied that it can rely upon the correctness of the Crown’s evidence of identification.  In short, the Court finds that important pieces of evidence were missing and that Day’s evidence was not only weak because of his uncertainty, but it was also untrustworthy and unreliable. In addition, his testimony  was never rehabilitated by belief nor supportive evidence.  Therefore, on the evidence before it, the Court concludes and finds that the Crown has not proved  beyond a reasonable doubt that the accused, Murphy, was the person whom Day saw at the Wacky Wheatley’s storage facility on the night in question and the person whom he claimed participated in the crime.

[80]    Even so, in expanding on its theory that the accused, Murphy, was circumstantially involved in the  Wacky Wheatley offence, the Court finds that the Crown tendered motor vehicle registration and insurance documents, exhibits C 165, C 166, C 167 and C 168, concerning a van allegedly registered to Cuza, and a vehicle allegedly registered to Murphy, as original documents and therefore for the truth of their contents. However, in the Court’s opinion, the Crown’s approach to this proof of facts was problematic.  By tendering the  documents as original documents and as direct evidence of the truth of their contents, the general rule would be that they were subject to the hearsay rule unless the maker of the document produced them and testified to the truth of their contents. R.v. Khelawon, [2006] 2 S.C.R. 787 at para.38.  Furthermore, when a witness who did not create the document testifies as to its contents, the hearsay rule is triggered.  See for example: R.v. Wilcox (2001), 152 C.C.C. (3d) 157 (N.S.C.A.), R. v. Germanis, [2001] O.J. No.3225 (C.J.).

[81]    However, in recent  times, the hearsay rule has evolved and, for example, in cases of public documents, the Canada Evidence Act, ss. 24 -26, and the Motor Vehicles Act, s. 264, allow for the admissibility and proof of such documents.  Furthermore, where original direct evidence is not available, hearsay evidence is admissible when it is necessary and reliable. R.v. Khan, (1990), 59  C.C.C. (3d)  92 (S.C.C.), [1990] S.C.J. No. 81. However, the tendered evidence must meet a certain threshold of necessity and reliability before it can be admitted. R.v. R.(D.) (1996), 107 C.C.C. (3d) 289 (S.C.C.).

[82]    Here, however, Cuza neither produced nor created the documents presented to her.  The Crown showed her the documents and, in essence, asked her to confirm the truth of their contents. They were not used to refresh her memory and she did not adopt  them as hers. See: R.v. Shergill  (1997), 13 C.R. (5^th) 160. (Ont. Court. (Gen. Div.)).  The Court  therefore finds that her testimony neither conformed to any of the common law exceptions to the hearsay rule - admissions and confessions, statements by deceased person, reputation or statements admitted as part of the res gestae - nor did it meet the modern day principled approach of the exception to the hearsay rule of necessity and reliability.

[83]    Furthermore, in the same way that it obtained motor vehicle documents pursuant to the Motor Vehicles Act , s.264,  the Crown could have obtained, under the Act, similar proved documents that it showed to Cuza. Additionally, the  purported  insurance documents  required  authentication by its issuer either by certification or direct  evidence. But, interestedly, Cuza testified and had no doubt  that her insurance company was different to the one named on the document.

[84]    Therefore, with respect, the Court finds and it does not doubt that  Cuza’s testimony, pertaining  to the truth of the contents of the documents that the Crown showed her, was inadmissible hearsay and thus the evidence adduced therefrom is also  inadmissible hearsay.   Likewise, the Court concludes and finds that those  documents, having been  tendered as original documents to prove the truth of their contents, are also  inadmissible as their admissibility, as original documents  and for the reasons stated, offend the hearsay rule.

[85]    In addition to having Cuza authenticate the documents, in the Court’s view, the Crown  also attempted to show that, by inference, the same documents were in Murphy’s possession and therefore were also tendered  to prove circumstantially their authenticity.  This, in the Court’s view,  was an attempt by the Crown to apply “the document in possession” doctrine.   However, as was put by our Appeal Court, (Roscoe, Hallett and Cromwell, JJA.), in R.v. Wood (2001), 157 C.C.C. (3d)  389 (N.S.C.A.), at paras 113- 114:

 113 A frequently cited description of this doctrine is from M.N. Howard et al. (eds.) Phipson on Evidence (15th, 2000) at [paragraph] 30-10:

Documents which are, or have been, in the possession of a party will, as we have seen, generally be admissible against him as original (circumstantial) evidence to show his knowledge of their contents, his connection with, or complicity in, the transactions to which they relate, or his state of mind with reference thereto. They will further be receivable against him as admissions (i.e. exceptions to the hearsay rule) to prove the truth of their contents if he has in any way recognised, adopted or acted upon them. So, as we have seen, documents which a party has caused to be made or knowingly used as true in a judicial proceeding to prove a particular fact, are admissible against him in subsequent proceedings to prove the same fact, even on behalf of strangers. Documents furnished by persons specifically referred to for information are evidence against the referrer; though a mere general reference will not have this effect. (citations omitted)

114 There are three elements of the doctrine. First, it must be shown that the document was actually or constructively in the possession of the accused. Second, if such possession is established, the document will be admissible to show the accused's knowledge of its contents, his connection with and state of mind with respect to the transaction to which it relates. Third, if it is established that the accused has recognized, adopted or acted on the document, it becomes admissible for the truth of its contents under the admissions exception to the hearsay rule.

[86]    Here, however, the Crown  never established, in evidence, from where the documents that it showed to Cuza were found so as to prove Murphy’s possession, as defined in the Criminal Code, s.4(3).  Thus, on the evidence, Murphy’s possession was not established and, therefore, on the basis of the document in possession doctrine, the tendered documents also cannot be admitted for their truth and to show that Murphy had knowledge of their contents and his connection with any alleged  offence.  Also, there was no evidence that he adopted, recognized and acted on the documents.   Therefore, on the document in possession doctrine, the tendered documents are impermissible hearsay and, as such, are inadmissible.

10.     The Motor Vehicle Offences - counts 15, 16, 99, 100, 121,122, 165, 166, 214,215, 279

(a)     The Relevant Legislation

[87]    For  ease  of  reference the following are the relevant legislative provisions:

(i)      The  Motor Vehicle Act, R.S.N.S. 1989, c.293 (as amended) s. 264 (1) and (2), state:

264 (1) In any proceedings in any court it shall not be necessary to produce the original of any book, document, regulation or register kept in the possession of the Department, but a copy or an extract, certified by the Registrar, under the seal of the Department or a certificate signed by the Registrar as to certain facts appearing on the records of the Department, shall be received in evidence as sufficient proof of the contents of the original without proof of such seal or of such signature or of the official character of the person appearing to have signed the same.

(2) A certificate under the signature of the Registrar and the seal of the Department that a certificate, a permit or a license has or has not been issued to a certain person, that a certain person is or is not the owner or the registered owner of a certain motor vehicle or that number plates have been issued to and are owned by an individual shall be sufficient proof of the matters contained therein, and such certificate shall be received in evidence without proof of such seal or of such signature or of the official character of the person appearing to have signed the same.

(ii)      The Canada Evidence Act, s,24 states:

24. In every case in which the original record could be admitted in evidence,

       (a) copy of any official or public document of Canada or of any province, purporting to be certified under the hand of the proper officer or person in whose custody the official or public document is placed, or

      (b) a copy of a document, by‑law, rule, regulation or proceeding, or a copy of any entry in any register or other book of any municipal or other corporation, created by charter or Act of Parliament or the legislature of any province, purporting to be certified under the seal of the corporation, and the hand of the presiding officer, clerk or secretary thereof, s admissible in evidence without proof of the seal of the corporation, or of the signature or official character of the person or persons appearing to have signed it, and without further proof thereof

(iii)     The Canada Evidence Act, s.40  states:

40. In all proceedings over which Parliament has legislative authority, the laws of evidence in force in the province in which those proceedings are taken, including the laws of proof of service of any warrant, summons, subpoena or other document, subject to this Act and other Acts of Parliament, apply to those proceedings.

(iv)     The Criminal Code, s.4 (3) states:

(3) For the purposes of this Act,

          (a) a person has anything in possession when he has it in his personal possession or knowingly

                 (i) has it in the actual possession or custody of another person, or

               (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

         (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

(b)     The Expert  opinion evidence concerning vehicle identification numbers

[88]    The Crown presented Parker Rodd and Richard Robertson who  essentially  were  qualified  to give expert opinion evidence on secondary vehicle identification numbers, their location and significance.  They were both special agents  of the Insurance Bureau of Canada Investigative Services and members of the International Auto Theft Association.  Likewise, they both have  years of relevant extensive police investigative experience and have been qualified as expert witness in cases relating to auto theft.

[89]    These experts testified that all motor vehicles have an unique  identical Vehicle Identification Number located on the dash, the door frame and in the glove box. These are publicly displayed Vehicle Identification Numbers.  In addition, there is a unique secondary Vehicle Identification Number that is the true Vehicle Identification Number  of the vehicle  which is located on other parts of the vehicle and which are confidential and known only to specially trained persons.  These secondary Vehicle Identification Numbers are critical and confidential information that are used in combating organized crime and auto theft.

[90]    However, both experts testified that they relied upon confidential information that is in a manufacturer’s data base and to which several agencies had input.  However, from experience, sometimes the information is neither  accurate nor reliable.  Moreover, the composition, locations and information of these secondary identifying  Vehicle Identification Numbers,  for security and confidential reasons,  are not photographed and the ordinary  public person can neither  confirm  nor  verify this confidential information but must accept, on faith, the experts’ statements as to their existence and  accuracy. 

[91]    Of  importance here, however, on the request  of a Constable  Sean Gaunce, Rodd, on March 2, 2006  examined a black truck of which he took photographs that were tendered  as exhibit C 152.  He confirmed that the vehicle bore NS licence plate number  EBN 262  with a public Vehicle Identification Number 1GCHK2443Z157228  properly  attached to the dash.  The Federal label attached to the driver’s door had the same Vehicle Identification Number as did the “camper label” and the “service part label” in the glove box.  These were all publicly  displayed Vehicle Identification Numbers  that he opined belonged to a 2003 Chev Silverado.

[92]    However, when he examined the vehicle for its secondary Vehicle Identification Number, the “secret,” true, non-publicly displayed identifiers, he discovered that the vehicle had on its engine, transmission, chassis and cab the manufacturer’s identifying Vehicle Identification Number 1GCHK2435E142776  that he opined belonged to a 2005 Chev Silverado.

[93]    On January 12, 2006, Rodd also examined a 2004 red truck that had a publicly displayed Vehicle Identification Number 1GTHK29234E262942  that was on its Federal  label  and dash board.  He opined that this Vehicle Identification Number  belonged to a 2004 GMC Sierra.  However, when he examined the vehicle for its secondary Vehicle Identification Number he discovered that it had a manufacture’s Vehicle Identification Number 1GTHK291X3E155389 on the engine, transmission, chassis and glove box, that he opined belonged to a 2003 GMC Sierra.

[94]    Robinson also examined two vehicles.  On July 24, 2006, on the request of D/Constable Greg Robinson he examined a black GMC Extended Cab 4x4 pickup truck with a publicly displayed  valid  Vehicle Identification Number 2GCEK19TX1138821 that he opined belonged to a 2001 Chev Extended Cab 1500 4x4 vehicle.  This Vehicle Identification Number was attached to the driver’s door, dash and the parts label and camper label in the glove box.

[95]    However, when Robinson examined the truck for the manufacturer’s secondary Vehicle Identification Number he discovered that the cab had a Vehicle Identification Number 2GCEK19T5X1100466 that he opined was associated with a 1999 Chev Extended Cab 1500 4x4 and that a vehicle of the same Vehicle Identification Number was shipped to the dealership of O’Regan Chevrolet Cadillac in Halifax, in June 1998.  Further, the engine bore a manufacturer’s Vehicle Identification Number 2GTEK19T631340667 that he opined belonged to a 2003 GMC 1500 Extended Cab 1500 that was shipped to the dealership of MacPhee Pontiac Buick, GMC in Dartmouth, in April 2003.  Additionally, he discovered that the transmission and chassis had the manufacturer’s secondary  Vehicle Identification Number 1GCEK19V051385902 that he opined was associated with a 2005 Chevrolet 1500 Extended Cab 4x4 and which was shipped to the dealership of Carroll South Shore Motors, in Bridgewater, in June 2005.

[96]    The other vehicle that Robinson examined was  between the 25^th and the 27^th July 2006, and, it  was a black  2000  Chev 2 door 4x4 truck. This vehicle had a publicly displayed valid Vehicle Identification Number 1GCEK14T2YZ251622 on the driver’s door, the Camper Label and Parts Label inside the glove box and also on the engine.  He opined that the vehicle received collision damage in August 2002 and was exported from the USA and sold as salvage to a dealership in Quebec. However, when Robinson examined the vehicle’s frame he discovered a manufacturer’s secondary identification Vehicle Identification Number 1GCEK14V7YZ239905 that he opined belonged to a 2000 Chevrolet 1500 two door Cab 4x4 that was shipped to the dealership of Forbes Chevrolet Oldsmobile Ltd., in Dartmouth, January 2000.

[97]    The Crown took the view that the location of the secondary Vehicle Identification Number fell within the ambit of “public interest privilege” as such information related directly to police investigative techniques and therefore was essential to the public interest in  effective police investigation relating to the identification of motor vehicles through highly confidential manufacturers’ secondary Vehicle Identification Numbers.  On the other hand, the Defence interest was not the actual location of the secondary Vehicle Identification Numbers but rather the experts’ testimonial  accuracy, reliableness and credibleness  and whether independently  their evidence could ever be verified.

[98]    Nonetheless, although attacked collaterally under the principle of full answer and defence, the demand for the disclosure of the location of the secondary Vehicle Identification Numbers never became an issue.  Even so, in  the Court’s opinion, as was put by Goodfellow J., in R.v. Boomer, 2000 CarswellNS 9, 182  N.S.R. (2d) 49, 563  A.P.R.  49  (N.S.S.C.), at para. 49:

49 It should be noted that the primary purpose of the secondary VIN numbers is not to prove that the motor vehicle was stolen or that it was stolen by the accused or that it is a stolen vehicle in the possession of the accused. The primary purpose is to determine the true registered owner and in so doing, this does not inhibit an accused from asserting the Crown's onus of proof beyond a reasonable doubt and maintaining the establishment of the true registered owner does not establish a lack of colour, right or interest of the accused's consent, etcetera, in the possession of the motor vehicle, nor does it establish the motor vehicle itself has been stolen, etcetera.

[99]    Here, the evidence was and the Court finds that the vehicles seized by the police and examined by the experts for their secondary Vehicle Identification Numbers were not the vehicles that were reported stolen.  Rather, it was that the seized vehicles had incorporated in them various components that the secondary Vehicle Identification Number indicated were associated with the stolen ones.  Nonetheless, there was no evidence of who actually stole the vehicles.  But, the Crown’s theory, in brief and as the Court apprehends it, was that as Murphy was found in possession of a vehicle with the incorporated parts or, as he was, at a certain point in time,  the alleged registered owner of the seized vehicles, he was vested with knowledge that the parts either were stolen or had participated  in or was connected to  the thefts  through the doctrine of recent possession.

[100]  In support of this theory, the Crown tendered several documents from Service Nova Scotia and Municipal Relations, Registry of  Motor Vehicles.  Some were under the seal and hand of the Registrar of Motor Vehicles pursuant to the Motor Vehicles Act, (supra.), s.264(1) and others were presented as original documents without the required seal and hand of the Registrar.  The difficulty here, however, in the Court’s opinion, was that the Crown was attempting, through witnesses  who did not originate the documents, to comment on  and to confirm the truth of the contents of those documents.  But, as the Court has earlier opined and found, the adduced  testimonial  information  would be inadmissible  hearsay.  Additionally, the Crown also asserted, without any supportive evidence, that details  on certain of the documents such as the Master Number and signatures were that of Murphy. 

[101]  However, in the Court’s opinion the mere fact that there are certain information on  the documents tendered under the Motor Vehicles Act, s.264(1) means only that the documents with the stated information, without further proof of that information, are kept in the Registrar’s possession.   That, however, in the Court’s opinion, does not prove that the particular document was sent  or issued  to a particular person.  In the Court’s opinion and it finds that, in order  to prove  that a particular document, permit, license  or registration was issued or not issued to a particular person, it requires a certificate  under  the seal of the Department and the signature of the Registrar stating those particular  facts. Motor Vehicles Act, s. 264(2), Canada Evidence Act, s. 40. 

[102]  Thus, even  if the documents  met the requirements of the Motor Vehicles Act, s.264(1),  in the Court’s opinion, they certainly did not meet the requirements of subsection (2).   Therefore, the Court  concludes and finds that, as the Crown tendered no such certificate, under subsection (2), as was statutorily required to prove that the documents were, in fact and law, issued and sent by the Registrar to Murphy, and, as the testimonies of witnesses  ostensibly confirming the truth of the documents’ contents is inadmissible hearsay,  the documents, as presented,  do not establish any nexus between the accused, Murphy, and their contents.

[103]  In further support of this view, the Court  concludes and finds that there was no supporting proof  by way of a certificate from the Registrar showing, for example, that a photo driver’s license of the person named Marcel Shawn Murphy, with a particular master Number was issued and sent to a person of that name at a particular address.  This kind of documentary proof, in the Court’s  opinion, prima facie, would have made more credibly the assumed  nexus between the accused and the various documents presented.   All that they prove, in the Court’s opinion,  is that the Department  has the documents with the contained information. But, in fact and in law, to whom do the documents relate?   Did the Department  issue and send the documents to Murphy?   The Crown provided no admissible answers.

[104]  The Court reiterates that there was no certificate pursuant to the Motor Vehicles Act, s.264(2)  to prove that those documents tendered were sent to or issued to the accused, Murphy.  Additionally,  as further proof of the identity of the person named in the documents there was no evidence of a driver’s  licence bearing the photograph, name, address, master number and signature of the named person certified by the Registrar as sent and issued to the accused, Murphy.  Moreover, there was no expert opinion evidence  of the author of the signature on the presented documents, as original documents,  to confirm or to verify the Crown’s assertion that the signature on the documents was, beyond a reasonable doubt, that of the accused, Murphy.  These essential elements of proof, rather than bold unsupported  assertions,  which were absent and never presented, in the Court’s opinion, could have satisfied the onus on the Crown to prove  the identity of  the person  named on the documents and their contents.

[105]  Moreover, of all the vehicles that the experts examined, only one, the red GMC  2004  Sierra  4x4, bearing publicly displayed Vehicle Identification Number 1GTHK29234E262942, when stopped by Constable  Gaunce on January 12, 2006  was in Murphy’s actual possession.  He was its operator.  However, after this vehicle was seized, examined  and secured by the police, it was stolen from their locked facility.

[106]  In any event, upon Rodd’s examination of its secondary Vehicle Identification Number on January 12, 2006, he discovered that on its engine, transmission, chassis and glove box was the  manufacturer’s Vehicle Identification Number 1GTHK291X3E155389 that he opined was associated with a 2003 GMC Sierra 4x4.  Carroll’s South Shore GM Car Dealership reported that on November 18, 2005, someone stole from its premises, a client’s pick up truck bearing Vehicle Identification Number 1GTHK291X3E155389.

[107]  The police have charged Murphy with the theft of the subject vehicle and possession of its engine. (Counts 214/215).  However, the evidence was that the vehicle that Murphy was driving had a valid publicly displayed Vehicle Identification Number on its door but which, according to Gaunce, appeared to have been tampered.   Rodd, however, on his careful examination, did not comment on this observation. Nonetheless, he confirmed that a matching publicly  displayed  Vehicle Identification Number was also displayed on the dash board. Thus, in Rodd’s opinion, it was only the engine, transmission, chassis and glove box that were identified as belonging to the stolen vehicle.

[108]  Relying on the doctrine of recent possession or the unexplained possession of recently stolen goods as pronounced in R.v. Wiseman (1989), 93 N.S.R. (2d) 306 (C.A.),  the Crown asserted that Murphy stole the subject vehicle.  Inferentially, it  also  asserted that Murphy stripped and transferred from the stolen  vehicle the components that were found in his vehicle. 

[109]  However, the Court, upon a  review of the “doctrine” and the  jurisprudence of recent possession as approved  in R.v Kowlyk, [1988] 2 S.C.R. 59 and commented upon in Wiseman, supra. , concludes and finds that the “doctrine” only would apply if Murphy had unexplained possession of recently stolen property.  If so, and he cannot explain his recent possession, there is the presumption that the goods were obtained illegally. Additionally, the Court can draw no adverse inference from the fact of his  possession alone unless it was recent.   Furthermore, in the absence of a contemporaneous explanation that could be true, the doctrine and  the jurisprudence hold, and, the Court could find, that his possession of recently stolen goods is capable of inferring the crime of theft and other acts associated with the theft. See. R.v. Graham, [1974] S.C.R. 59.

[110]  Here, the operating word is “recently.”  In the Court’s opinion and it finds that, the word  “recently”  connotes the recognition of an event  that occurred  not long ago, an event that has freshly occurred or happened only a moment ago.  See: The Concise Oxford Dictionary, 1960, 4^th Edition.  Therefore, on that reasoning, can it find that the theft  of the vehicle that occurred on November 18, 2005 be characterized, for the purpose of the  possession of some of its component parts in another vehicle on January  12, 2006, nearly two months later, as having  recently occurred?  

[111]  The Crown, although commenting, tendered no evidence or any authority to show, if at all, the period of time that it would take to remove and transfer the identified components.  This, in the Court’s view, would have lent some credence to the Crown’s inference of  the time required  to chop up a vehicle and dispose of its parts that reasonably would have bridged the gap between  the theft  and the possession.  Thus, neither  objectively  nor reasonably was any evidence presented to bridge the gap between the alleged theft  and the alleged possession.  As a result, on the evidence presented and on the cited jurisprudence, this Court  concludes and finds that the period of time, in the set of circumstances, cannot be characterized as “recent” and hence it finds that the accused cannot be said to be  in recent  possession of stolen property.

[112]  Even if it could be said that the accused was in recent possession of stolen property, which the Court finds that he was not, when Gaunce stopped him, he, the accused, reportedly stated contemporaneously that he had “purchased the vehicle early in the Winter from Lawrence Salvage Yard in Beaverbank.”   It should be noted that Exhibit C148, a vehicle registration certificate, tendered by the Crown pursuant  to the Motor Vehicles Registration Act (supra.,) s.264(1) and  issued  on January 26, 2005  shows, without further proof, that  the Registrar  of  Motor Vehicles had in his possession a document  that  indicated that a 2004 Pickup  with Vehicle Identification  Number 1GTHK29234E262942 was registered in the name of H.D. Lawrence Auto Salvage Ltd.  Thus, the Court  finds that Murphy  did  give a contemporaneous  explanation that reasonably could be true  and therefore, on the cited  jurisprudence, it cannot draw any inference of guilt based on the doctrine of recent  possession alone.   Moreover, the Court finds, as it has earlier opined, that there was no other  credible  admissible  evidence that, beyond a reasonable doubt, established the guilt of the accused of recent possession.

[113]  Additionally, the Court finds that just because an alleged  stolen engine was found incorporated in a vehicle that he possessed does not mean that Murphy stole the vehicle that originally had that engine or indeed the engine itself.  The fact that the expert  could  identify the original owner or vehicle  of the engine does not relieve the Crown from its onus to prove beyond a reasonable doubt that Murphy stole the engine or knew that the engine was stolen or, that he did not, under the circumstances, properly obtained a colour of right or interest in the engine as it was incorporated in the vehicle that he reportedly owned.  That would still be the case even if the Crown maintained the association of the engine as belonging to another vehicle as the fact that Murphy had possession of the vehicle with the engine  affixed does not mean that he knew that  the engine itself  was stolen, or that he had  not obtained a colour of right to the engine as he owned the vehicle that contained it.  See:( colour of right) R.v. DeMarco (1973), 13 C.C.C. (2d) 369 (Ont.C.A.), also: Boomer, supra.

[114]  Furthermore, in the Court’s opinion, on the evidence, it has been established  that the locations of  secondary  Vehicle Identification  Numbers  are confidential information that is not available to the public.  Thus,  Murphy, as an ordinary member of the public without  any access to the established  specialized and confidential information concerning Vehicle Identification Numbers, would know neither  of their existence nor locations.  Therefore, unless the Crown could have established, beyond a reasonable doubt, that he, in fact, stole the original vehicle and removed its engine and placed it into his operating vehicle,  his mere possession of the identified engine is insufficient evidence to draw the conclusion that he had consent, control  or  knowledge  that the engine was obtained by the commission of the offence of theft.  See: Criminal Code s.4(3), also: R.v. Marshall, [1969] 3.C.C.C. 149 (Alta. S. C.(A.D.)), also: Boomer, supra.

[115]  Consequently, the Court concludes and finds that, in order to establish theft and hence Murphy’s unlawful possession of the engine  the Crown had to establish,  beyond a reasonable doubt, how the  engine became incorporated in his vehicle  and  by whom and when.  Here, the Court finds that the Crown has not done so and, as a result, it concludes and finds that the Crown has not proved beyond a reasonable doubt that the accused, Murphy, was unlawfully in possession of a truck engine bearing Vehicle Identification Number 1GTHK291X3E155389.   Neither has the Crown established  that he unlawfully stole  a vehicle bearing the same identical Vehicle Identification Number.

[116]  On the evidence, the Court concludes that the police did not find Murphy in actual possession of any of  the other  vehicles that were examined by the experts.  There was no direct evidence that any documents were taken  from these vehicles that were associated with Murphy  or that he had in his possession any documents that  were associated with  these vehicles.  Moreover, there was no direct evidence that Murphy stole any vehicle or was in possession of any vehicle other than the one that was seized by Gaunce. 

[117]  The  Crown, however, attempted to show that he had a circumstantial connection with these other seized vehicles through tendered documents and by witnesses’ testimonies to prove the truth of the documents’ contents.  In any event, some of the witnesses did not recognize the documents or were vague and inconsistent   about their recollection of events  or  had difficulties in accepting  or adopting the documentary information.  Nonetheless, the Court has already commented on this approach  to the proof of the truth of the contents of documents  and has found and now restates that such testimony and the evidence adduced are inadmissible hearsay. 

[118]  Likewise,  concerning the documents, C 182  to C 189  inclusive, the Court finds that they were tendered pursuant to the Motor Vehicles Act, s.264(1) instead of subsection (2) and therefore it  makes  the same earlier conclusions and findings.  In short, this Court concludes and finds that there was insufficient or no admissible evidence to determine, beyond   a reasonable doubt, that Murphy did unlawfully steal any motor vehicles as alleged or was in the unlawful possession of any components from those stolen vehicles.

Conclusion

[119]  The Court does not doubt that property was stolen. Neither does it doubt that the accused, Murphy, had in his possession property, a truck engine, that was identified as belonging to another.  Even so, it was not established, beyond a reasonable doubt, that Murphy’s possession of the subject property was unlawful.  Likewise, there is no doubt that a break enter and theft occurred at the Wacky Wheatley’s storage facility. There, the identity of one of the perpetrators  was the paramount issue.  But, on the evidence, it was not established beyond a reasonable doubt, that the accused, Murphy, participated in the theft or had in his possession property obtained as a result of that theft.

[120]  Although there was some evidence of theft of  other property, in the Court’s opinion and it finds that there was neither credible nor any evidence of the location of the seizure of the stolen property to establish in Murphy the elements of control, knowledge and consent as to the alleged unlawful  possession  of  the subject properties.  Additionally, there was no evidence of the chain of continuity.  Moreover, there was no evidence,  direct  or circumstantial that pointed, without a doubt, to Murphy’s guilt in the allegations of the unlawful theft and the unlawful possession of  those properties.

[121]  Similarly, although the Court does not doubt that motor vehicles were stolen, it finds that there was no evidence, direct or circumstantial, that proved beyond a reasonable doubt, that Murphy stole any motor vehicles. The attempts by the Crown to connect Murphy to different vehicles, with alleged stolen components, through documentary evidence that was commented upon by witnesses who did not create them, for the truth of their contents, was inadmissible hearsay evidence.  What is more, the Court finds that the documentary evidence tendered pursuant to the provisions of the Motor Vehicles Act, s.264(1) proved  only that the Registrar had those documents presenting the noted information in his possession, not that those documents were issued or sent to the accused, Murphy as could have been statutorily proven by a certificate issued under the provisions of subsection (2).

[122]  Additionally, the Court concludes and finds that the physical computer disc itself, that was presented  by Johnston as an exhibit was not,  in fact,  a photograph. Rather, it was an electronic document that stored as electronic data,  the photographs that she took with a digital camera.  The computer disc therefore  contained the electronic data, the real evidence, that could only be read, displayed or perceived by a person when it is processed by a computer or other similar device.  It therefore needed authentication.   However, the Court was not satisfied that the Crown presented evidence capable of supporting a finding that at all material times the police computer system that stored the data before it was copied onto the computer disc, was operating properly, or if not, it did not affect the integrity of the stored images and hence the authenticity and the continuity of the stored data.

[123]  Put succinctly, on the evidence presented, and on the authorities cited and on the analyses that it has made, this Court is not satisfied, for the reasons stated, that on all the allegations on the Information tried before it, the Crown has proved beyond a reasonable doubt the guilt of the accused, Murphy.  As a result, this Court finds him not guilty on all the counts that the police have charged him and that which he had to answer and to defend  on the Information  tried before it.  Therefore, the decision  of this Court  is that the accused, Shawn Marcel Murphy, is not guilty on all counts, as charged.

J.