WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2013-09-03

Court File No.: Brampton 12-14401

Between:

Her Majesty the Queen

— and —

Antoney Gopaul

Before: Justice J.W. Bovard

Heard on: June 17, 2013

Reasons for Ruling released on: September 3, 2013

Counsel:

• W. Dorsey — counsel for the Crown
• S. Smith — counsel for the accused Antoney Gopaul

Reasons for Ruling

Bovard J.:

Introduction

[1] These are the Court's reasons for its Ruling with regard to committal to stand trial after the preliminary hearing of Antoney Gopaul on charges of theft over $5,000 on November 7, 2011, and robbery on December 2, 2011.

Background

[2] The Crown alleges that on November 7, 2011 Mr. Gopaul and three or four women entered a clothing store in Aurora and stole $8,948 worth of merchandise.

[3] Further, the Crown alleges that Mr. Gopaul and one woman robbed Scott Pavao-Soares on December 2, 2011 by stealing clothing from a store in which the complainant worked as a sales person. The Crown alleges that Mr. Gopaul sprayed Mr. Pavao-Soares with bear spray while the woman ran away with the merchandise.

[4] Both of these incidents were captured on video by a surveillance camera.

The Issue

[5] The issue is identity.

The Evidence

Theft over $5,000 — November 7, 2011

[6] Jessica Mutchmor, Christina Alati, and Sandra Mutchmor testified that four black persons came into the Dekade clothing store in Aurora on November 7, 2011 and stole jackets and jeans.

[7] The Crown played a surveillance video depicting these individuals in the store grabbing this merchandise and running out.

[8] Jessica Mutchmor and Ms. Alati were in the store shopping when this occurred.

[9] Jessica Mutchmor said that one of the males had red lips tattooed on his neck. She said all of these persons were between their mid-20s to their 30s.

[10] She said that they drove away in a "possibly grey car" maybe a Toyota with a license number that began with the letters B M B K.

[11] Ms. Alati confirmed that the taller male who was not wearing a jacket had lips tattooed on his neck. This male drove the getaway car.

[12] Sandra Mutchmor testified that she was working as a salesperson in the store when this occurred. She also noticed that one of the males had red lips tattooed on his neck. When they ran away she ran outside and got the license number, which she gave to the police.

[13] Melissa Montelone testified that she owns the store. She did an inventory after the theft and discovered that a total of $8,948 in merchandise was stolen.

[14] Officer McPherson testified that he got involved in this investigation on November 8, 2011, the day after the theft. He obtained a video surveillance tape of the theft.

[15] Later, on November 29, 2011, he obtained a surveillance video from Kenmark Snowshop. To the best of his knowledge an employee of that store dropped it off at the police station. Previously, he had spoken to an employee of the store and asked for the video.

[16] He could not play the video on his computer so he took it to the video services unit and asked that it be put into a viewable format and that still images from it be produced. He gave it to Erick Lauridsen for this purpose.

[17] He said that he got the video back in a form that enabled him to see it, plus he received 12 still pictures derived from the video.

[18] Officer McPherson said that he viewed a mug shot of Mr. Gopaul and compared it to the still pictures from the Kenmark surveillance video. He determined that the person in the video was Mr. Gopaul. Therefore, it appears from this evidence that Mr. Gopaul was in the Kenmark store and appears on the surveillance video from that store.

[19] Regarding the Dekade store surveillance video, he arranged to have still pictures taken from that video as well. He testified that Mr. Gopaul looked the same in both the stills and the two videos from both of the stores.

[20] The officer viewed the stills from the Dekade store and he identified one of the persons in one of the stills as being Mr. Gopaul. He compared this still picture with a still picture from the Kenmark store and testified that both of the pictures depicted Mr. Gopaul.

[21] The officer compared a mug shot of Mr. Gopaul to the bottom left corner picture in the second row of the Kenmark stills photo sheet – Exhibit 1.

[22] Exhibit 2(A) is a still from the Dekade store of Mr. Gopaul standing up with something in his hands.

[23] The officer identified Mr. Gopaul as one of the persons in the Dekade surveillance video.

[24] Regarding the getaway car, on November 28, 2011, Officer McPherson went to Bristol car rentals and spoke to the manager, Ms. Tiffin, with regard to a car with license number B M B K 451. He obtained the rental information from her and determined that in all, three vehicles were rented that had B M B K as the first four letters of the license plate.

[25] The last one was abandoned and had to be picked up by the rental agency. Officer McPherson seized this car and turned it over to officer Senechal and asked him to examine it for fingerprints. The rental agreement indicates that this car was rented by a person named, Adrian Daley. Officer Senechal testified that he took the car to the identification officers for it to be examined for fingerprints.

[26] Photocopies of all of the rental agreements were made exhibits on consent.

[27] Ms. Tiffin told him that Adrian Daley was a male black, 5' 7", average build, right handed, and he had on a baseball cap. He had on baggy clothes, long sleeves, and pants. He asked her about distinguishing features, but since he did not write any down, he concludes that she did not mention any.

[28] Miguel De Castro, testified that he has worked at Bristol for 10 years and he is quite familiar with the company's rental agreements. He examined the rental agreements in this case and concluded that two out of the three cars mentioned in the agreements were rented by a person named Adrian Daley: BMBK 448 – returned on November 16, 2011, and BMBK 057 – returned November 26, 2011.

[29] Shannon Tiffin, the manager of the rental agency testified that in November 2011 she rented a car to a person named, Adrian Daley. A young female had come in wanting to rent a car, but she was too young so she came back with Mr. Daley who rented the car.

[30] Ms. Tiffin identified Mr. Gopaul as the person who told her that he was Adrian Daley. She said that he came to the car dealership twice. She had not seen him since November 2011. However, she stated that she recognized his facial expression and the tattoo on his arm and on his neck because they stand out. She remembered the location of the tattoos, but not what they were of.

[31] She testified that she gave a vague description of the man and of the woman to police. She did not remember if she mentioned the tattoos, but she thought that she must have because they stuck out in her mind.

[32] The evidence indicated that the first car was rented and then returned. Another one was rented and returned. Then a third one was rented.

[33] Erick Lauridsen testified that he is a civilian member of the York regional police. He is an editor/analyst in the video support unit.

[34] On December 1, 2011 he received a request from Officer McPherson regarding surveillance video images from a store called Kenmark Snowsports. Constable McPherson asked him to make the video viewable and provide still images of what was on the video.

[35] He created still images from the video and sent them to Constable McPherson. He also provided a viewable and playable version of the surveillance video.

[36] Officer Pinherio testified that he interviewed Mr. Gopaul at 11 Division and saw a tattoo of lips on his neck. Exhibit 6 is a picture of the tattoo.

[37] Officer Pflug gave expert evidence with regard to fingerprint analysis. She testified that on November 28, 2011 she found Mr. Gopaul's fingerprint on the driver-side visor mirror of the car that was seized from the rental agency. She said that she could not tell how long the print had been on the mirror.

[38] There was no timestamp on the video; however, two JPEG images were dated November 7, 2011.

[39] This was all of the evidence on the theft charge.

Robbery — December 2, 2011

[40] Scott Pavao-Soares testified that he was working as a sales clerk in a store in Streetsville called Joe Ladd on the day in question.

[41] He said that a female came in and looked around and left. Then she returned with another female and "the gentleman". In total, there were four black persons looking at Canada Goose jackets and trying them on. When he went behind the counter to tally up the cost of the jackets, one of the females walked out of the store with some merchandise. He jumped over the counter to go after her and one of the males sprayed him with bear spray. He said that "it's this gentleman here." No one asked him what he meant by this but it's a reasonable assumption that he meant Mr. Gopaul. He said that he wore a Roots grey track suit and white Nike high top shoes. The man was a bit taller than him. Mr. Soares estimates that he is 5' 6" tall.

[42] He kept running after the woman after the man sprayed him. The man ran after him and kept spraying him. The spray got onto the store window. He caught the woman and she threw the merchandise on the floor and ran away. The man also ran away.

[43] Officer Machin also testified as an expert in fingerprint analysis. She examined the scene at the Joe Ladd store on the day that the robbery occurred. She found a can of bear spray, but there were no finger prints on it. She noticed that bear spray had been discharged near the cash register and on the windows at the front of the store. She could not tell when it had been sprayed.

[44] She found Mr. Gopaul's finger print on the interior of the front door just above the handrail. She could not say how long it had been there.

[45] Officer Vonkalckreut testified that he took Mr. Gopaul's fingerprints on November 10, 2010 at 23 Division in Peel Region.

[46] That was all of the evidence on the robbery charge.

Analysis

Test for Committal to Stand Trial

[47] In deciding whether or not there is sufficient evidence to commit Mr. Gopaul to stand trial I have to apply the test set out in United States of America v. Sheppard (1976), 30 C.C.C. (2d) 424 at 427:

…the duty imposed upon a "justice" under s. 475(1) is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

[48] Monteleone v. The Queen, 35 C.C.C. (3d) 193 at 198 (S.C.C.) explained that, where there is before the Court any admissible evidence, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact…

[49] With regard to weighing the evidence, in R. v. McIlwain (1998), 67 C.R. 39, Campbell, J. (H.C.J.), [1988] O.J. No. 2022 at 4, Mr. Justice Campbell held that:

"A good deal turns on the meaning of the word "weigh", which is another way of saying to balance in the scales, to measure, to ponder and examine the force of".

"'Weigh' in the context of Dubois must mean to ponder and examine the force of evidence; to see if it registers in the scales as any evidence at all to meet the Sheppard test. Having weighed the evidence to determine whether it registers in the scales as any evidence at all within the Sheppard test, the task of weighing at the preliminary inquiry is complete. That is the task set by Sheppard; to weigh or balance in the scales or to measure or to ponder and examine the force of evidence to determine whether or not it is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. That is the sole and very limited purpose for which one weighs or scrutinizes the evidence at a preliminary inquiry. It is not weighed for competing inferences or for frailties or contradictions, but solely to see if it meets the Sheppard test."

[50] In Accuri v. The Queen 2001 SCC 54, 157 C.C.C. (3d) 21(S.C.C.) at paras. 24, 25 the Court affirmed the Sheppard test and at para. 22 held that the test is the same whether the evidence is direct or circumstantial.

[51] The Court held that in cases of circumstantial evidence:

The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established…(Accuri supra at para. 23).

[52] In cases such as these:

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt (Accuri, supra, para. 23).

[53] The Court referred to Mezzo, [1986] 1 S.C.R. 802, 27 C.C.C. (3d) 97, and at paragraph 25 endorsed McIntyre J.'s rejection of "the argument that the judge must determine whether guilt is the only reasonable inference" (Emphasis Added).

[54] This implies that when assessing a circumstantial case at a preliminary hearing to determine if the accused should be committed to stand trial the evidence does not have to yield only one reasonable inference: guilt. There can be other reasonable inferences.

[55] R. v. Gollogly [1989] O.J. No. 3127 reminds us that it is the total and cumulative effect of the circumstances disclosed in the evidence that must be considered in applying the Sheppard test. When considering circumstantial evidence:

In the case at bar the evidence of the prosecution is wholly circumstantial. The standard of s-s. 548(1), as interpreted in Sheppard, supra, nonetheless remains that which must be applied to the whole of the evidence adduced. It is the total and cumulative effect of the circumstantial evidence which must be measured against the standard of s-s. 548(1). A compartmentalized and isolated analysis of each strand or item of circumstantial evidence is not to be undertaken by the provincial court judge presiding at a preliminary inquiry. Provided the total and cumulative effect of the circumstantial evidence could found an inference of guilt, an accused must be ordered to stand trial. See, R. v. Monteleone (1982), 67 C.C.C. (2d) 489, 496-7 (O.C.A.), affd. sub. nom Monteleone v. The Queen (1987), 35 C.C.C. (3d) 193 (S.C.C.) (para. 3).

[56] The Supreme Court of Canada agrees that the mandate of the preliminary inquiry justice as expressed in s. 548(1) requires the justice to consider the whole of the evidence (Accuri, supra, at para 32).

[57] It does not take much to pass the Sheppard test; a "scintilla" of evidence is enough to justify a committal to trial at a preliminary hearing (Re Skogman and the Queen, 13 C.C.C. 161 at p. 173).

[58] Moreover, at the preliminary hearing stage, any doubt concerning whether or not there is sufficient evidence to commit an accused to trial should be resolved in favour of the Crown. Ex Parte Hill 1970 Vol., 2 C.C.C. 264 at 272, Pennell J. (Ont. Sup. Ct.); R. v. Robinson 19 C.C.C. 175 at 177, (B.C.S.C.); R. v. Cowden (1947), 5 C.R. 18 (Ont. H.C.); Re Martin, Simard and Desjardins and the Queen (1977), 41 C.C.C. (2d) 308, (Ont. H.C.J.), at 321; rev'd on other grounds (1977), 41 C.C.C. (2d) 336 (Ont. C.A.); aff'd (1978), 41 C.C.C. (2d) 342 (S.C.C.); Regina v Verasky, [1979] O.J. No. 1298 (H.C.J.); aff'd [1980] O.J. No. 2036 (C.A.).

[59] The defence submitted two cases which I will discuss now.

[60] In R. v. Vigneswaran [2011] O.J. No. 1546 (OCJ) the Court discharged the accused after a preliminary hearing because there was no positive identification of the accused as the culprit. The Court described the complainant's evidence as follows in paragraph 28:

In the case at bar, Mr. Crane at no point stated that the person in photograph number four was the person who robbed him. At its highest, he said the person "might" be the man who robbed him and that, his eyes and shape of face looked like the man who robbed him. In my view, this is the same as saying that the person in photograph four "looks like him a lot" and as such does not amount to a positive identification.

[61] The Court found that the complainant's evidence was a "qualified identification" and that "there was no other evidence to bolster the qualified identification into an actual identification" (para. 36).

[62] The Crown adduced a still photograph taken from a surveillance camera. But the officers could not state where the surveillance video from which the still was extracted came from without relying on hearsay. Green J. stated that "the video was dropped off by someone (there was no evidence as to who dropped it off) at the division and then reviewed by Detective McIntyre who then passed it on to Detective Crawford."

[63] Interestingly, Green J. observed that "The Crown did not ask to admit the hearsay evidence and did not rely on the still photograph to bolster the identification evidence. Had there been evidence that Mr. Vigneswaran was in a nearby store around the same time of the robbery, this additional evidence when considered with Mr. Crane's qualified identification would likely have been sufficient to meet the test for committal to stand trial." (para. 37).

[64] R. v. Herrera [2008] O.J. No. 3040 (Ont. Sup. Ct.) was a case in which the Crown brought certiorari to review the preliminary hearing judge's decision to discharge the accused after a preliminary hearing. One of the issues was whether there was sufficient evidence to pass the Shepard test regarding the identity of the accused as the culprit. Justice McCombs upheld the preliminary hearing judge.

[65] As in the case at bar, there was an in-dock identification. However, that is where the similarity stops.

[66] McCombs J. characterized the evidence as "so confusing and contradictory that it was open to the judge to conclude that it did not amount to identification evidence at all." (para. 22).

[67] He summarized the flaws in the complainant's evidence in paragraph 29:

The complainant's evidence began with an in-dock identification, provided seven years after the offence. Viewed fairly, the totality of her evidence on the issue of identity went no higher than that the respondent looked familiar. She said that the respondent had two or three teardrop tattoos. The respondent has one. Several times, she said that the tattoos were the only thing she remembered about her attacker. She volunteered that she did not recognize the respondent when she first saw him at court about a year earlier; at other times in her evidence, she suggested that she did recognize him. She volunteered that she thought the respondent was her attacker because he was the person arrested by the police. In re-examination, she stated "the police told me they got him so how will I know, I don't remember the guy." She stated that her memory of the events was poor. On this evidence, it was open to the preliminary inquiry judge to conclude that her purported identification was based on assumption rather than recollection.

[68] Herrera is clearly distinguishable from the case at bar.

[69] The Law of Evidence, sixth edition, David M. Paciocco (now Justice Paciocco (O.C.J.) and Lee Stuesser, defines "in dock identification" as "where a witness points the accused out to the Court" (footnote on page 528).

[70] On the same page, they point out that:

In some cases where the first identification of the accused is made in court and there are problems with the quality of the initial observation of the suspect, juries may have to be told that the dock identification is entitled to virtually no weight. (Emphasis added)

[71] The authors' statement implies that in the situation they described there would still be sufficient evidence of identification to send the case to the jury as long as they are properly instructed.

[72] They go on to say that "This kind of direction will not be appropriate, however, where the dock identification is supported by distinctive details, prior familiarity, or previous forms of identification such as properly conducted line-ups or dock identifications. (Emphasis added)

[73] In R. v. Hibbert 2002 SCC 39, [2002]2 S.C.R. 445, the Court dealt with the issue of in-dock identification in a jury trial. Arbour J. summarized the evidence in paragraph 7:

The Crown's case was largely based on circumstantial evidence. No motive was ever advanced for this unprovoked and sudden attack. In essence, the strength of the Crown's case rested on the victim's knowledge of the personal details of the appellant's life; on the in-court identification of the appellant by Mrs. McLeod and a neighbour who saw the assailant leaving the residence; on DNA evidence that linked both the appellant and the victim to a cap found hanging in a tree on the assailant's escape route; and on various other pieces of circumstantial evidence that cumulatively point to the appellant as the assailant. However, Mr. Hibbert put forward explanations, some stronger than others, for each piece of evidence presented by the Crown.

[74] It is evident that, as in the case at bar, the in-dock identification was not the only evidence. The defence in Hibbert submitted that "the identification evidence had very little probative value because it had been contaminated by [a] news broadcast, but also because of the unreliability of this kind of evidence in general" (para. 21).

[75] For the purpose of the analysis in the case at bar it is important to note that the defence did not make a motion for a directed verdict in Hibbert; nor did the Court suggest that the jury should not have had the opportunity to consider the in-dock identification. Rather, the Court held:

What will be required to displace the danger that the jury will give an eyewitness identification weight that it does not deserve will vary with the facts of individual cases. Here, at a second trial, and in light of the identification history, I think a stronger warning would have been appropriate.

[76] In R. v. Tebo, [2003] O.J. No. 1853(C.A.) the Court pointed out that in Hibbert, the Supreme Court of Canada:

re-emphasized that in-dock identification has an "almost total absence of value as reliable positive identification." The only purpose in allowing the evidence to be led is to give the victims or other relevant witnesses an opportunity to say whether or not in their opinion, the accused is the same person they saw at the offence, in order to dispel any adverse inference the jury might draw if the question were not asked, and because there is probative value in the inability of a victim or witness to identify an accused person (para. 49) (Emphasis added).

[77] In Tebo, the defence submitted that "the trial judge erred by not withdrawing the taxi driver's in-dock identification of the appellant from the jury's consideration as having no probative value, or by not giving the jury a stronger and more pointed instruction that the in-dock identification should be given little weight" (para.16).

[78] The Court did not say that the in-dock identification did not constitute any evidence, such that it should have been taken away from the jury. Instead, they found that:

Even assuming the jury was entitled to consider the in-dock identification at all, this was a case where the jury should have been forcefully told that they could give virtually no weight to it. The trial judge's charge relating to the in-dock aspect of the identification was inadequate (para. 19) (emphasis added).

[79] This reinforces Justice Paciocco and Mr. Lee Stuesser's conclusion cited above.

[80] In R. v. Izzard, [1990] O.J. No. 189 (C.A.), the Court commented that:

Identification always has certain inherent frailties. Identification evidence may be strengthened if the identifying witness is able to pick out the person whom he claims to have seen on the occasion in question from among a number of other persons of similar age and size and general physical appearance in a line-up. On the other hand, an identification of an accused as the offender made for the first time when the prisoner is in the dock possesses particular frailties over and, above the normal frailties attaching to identification evidence.

[81] The Court agreed with the statement that "It is generally agreed that dock identification is undesirable and unsatisfactory" (Ref: Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (1976) at p. 150).

[82] Later, in R. v. F.A., [2004] O.J. No. 1119, (C. A.), they referred to Izzard stating "As this court confirmed in [Izzard], in-dock identification is unsatisfactory and attracts little weight" (para. 47) (Emphasis added).

[83] With regard to the in-dock identification in F.A., the Court stated:

J.M.'s in-dock identification of the appellant suffered from no positive pre-trial identification of the appellant by J.M. It was analogous to a police "show up" in which the only person shown to the identifying witness is the very person suspected by the police to be guilty of the offence charged. This type of identification has little probative value: R. v. Nguyen, [2000] O.J. No. 2129 at para. 41 (C.A.); R. v. Reitsma (1998), 125 C.C.C. (3d) 1 at paras. 56-59 (S.C.C.); R. v. Williams (1982), 66 C.C.C. (2d) 234 at 235 (Ont. C.A.). It is not contested that when J.M. identified the appellant at trial, the appellant was the only black teenaged male in the courtroom (para. 47) (Emphasis added).

[84] Finally, I would like to refer to The Law of Evidence in Canada, (3d), Sopinka, Lederman & Bryant, Fuerst. On page 791, s.12.25, it states that:

Although earlier Canadian authorities held that poor identification evidence could amount to "no evidence" justifying a directed verdict of acquittal, it is now settled that a trial judge cannot withdraw a case from the jury on the ground of weak identification evidence.

[85] Based on the above authorities, I conclude that unless identification evidence is so flawed as to not constitute evidence at all, a trial or preliminary hearing judge is not entitled to conclude that there is no evidence for the trier of fact to consider simply because there is an in-dock identification of the accused as the culprit. This is especially so if there is other supporting evidence to identify the accused as the perpetrator of the offence before the Court.

Application of the Jurisprudence and Other Authorities to the Case at Bar

[86] I will begin with a summary of the identification evidence in the case before the Court.

The Theft at Dekade Clothing Store on November 7, 2011

[87] Jessica Mutchmor, Christina Alati, and Sandra Mutchmor testified that they were in Dekade clothing store in Aurora on November 7, 2011 when four black persons came into the store and stole jackets and jeans.

[88] The Crown played a surveillance video depicting these individuals in the store grabbing the merchandise and running out.

[89] Jessica Mutchmor, Sandra Mutchmor and Ms. Alati testified that one of the males had red lips tattooed on his neck. All of the thieves were between their mid-20s to their 30s.

[90] Officer Pinherio interviewed Mr. Gopaul at 11 Division. He saw a tattoo of lips on his neck. Exhibit 6 is a picture of the tattoo.

[91] Officer McPherson obtained the video surveillance tape from Dekade for the day in question.

[92] He also obtained a video surveillance tape of November 29, 2011 from another store named Kenmark Snowsports. He requested the tape from an employee of the store. He said that as far as he knew an employee of the store dropped off the tape at the police station.

[93] The police video services unit produced still pictures from the Kenmark surveillance tape. Officer McPherson compared a mug shot of Mr. Gopaul to the still pictures and determined that Mr. Gopaul was depicted on the tape as having been in the Kenmark store on November 29, 2011.

[94] The police video services unit also produced still pictures from the Dekade surveillance video tape.

[95] Officer McPherson testified that Mr. Gopaul appeared in both sets of still pictures from both of the surveillance video tapes. He specifically identified Mr. Gopaul as one of the persons in the Dekade surveillance video tape.

[96] Jessica Mutchmor said that the thieves drove away in a "possibly grey car", maybe a Toyota with a license number that began with the letters B M B K. The male with the tattoo drove the get-a-way car.

[97] There is evidence that three cars with a licence plate beginning with BMBK were rented from the Bristol car rental agency. Shannon Tiffin, the manager of the agency, testified that in November 2011 she rented one of these cars to a person named Adrian Daley. She identified Mr. Gopaul as this person. She said that he went to the dealership twice. The rental contracts are exhibits.

[98] The last car that was rented was abandoned. The rental agreement shows that Adrian Daley rented this car. The police checked the car for finger prints and discovered that Mr. Gopaul's finger print was on the mirror of the passenger side visor. There is no way of knowing how long the print had been on the mirror.

Ruling on the Theft Charge

[99] Three witnesses to the theft identified a black man with red lips tattooed on his neck as one of the culprits. An officer who interviewed Mr. Gopaul saw red lips tattooed on his neck. There was no evidence as to how common such a tattoo is, but it is certainly a distinctive feature.

[100] Officer McPherson looked at the surveillance video from the theft and specifically identified Mr. Gopaul as one of the persons in the Dekade surveillance video tape. He had a mug shot of Mr. Gopaul that assisted him in making this identification.

[101] The defence argued that Officer McPherson examined the surveillance video from the Kenmark store and used the mug shot to identify Mr. Gopaul as having been in that store, but the officer did not know who dropped off the surveillance video at the police station. Perhaps this is an argument that the Crown did not establish an unbroken chain of continuity of the tape from the store to Officer McPherson.

[102] Officer McPherson testified that he requested the surveillance video from an employee of the store and that as far as he knew an employee of the store dropped it off at the police station.

[103] However, even if it cannot be said that the Crown established an unbroken chain of continuity, Officer McPherson's identification of Mr. Gopaul as appearing in the Dekade surveillance video does not depend on his identification of him in the Kenmark store. Officer McPherson had a mug shot of Mr. Gopaul which served him in identifying Mr. Gopaul in the Dekade surveillance video tape.

[104] The evidence regarding the rental car is not a strong factor, standing alone, that links Mr. Gopaul to the theft. However, it gains some strength when looked at in light of the other evidence. According to Ms. Tiffin she rented a car with the letters BMBK on the licence plate to Mr. Gopaul on November 7, 2011. His finger print was found in the car.

[105] Based on all of the evidence, I find that one of the reasonable inferences that can be drawn is that Mr. Gopaul was one of the thieves that stole the merchandise from the Dekade store on November 7, 2011. When looked at all together, this evidence is sufficient to pass the Sheppard test. Any concern regarding the in-dock identification of Ms. Tiffin is mitigated by the rest of the evidence in the case.

[106] Therefore, Mr. Gopaul is committed to stand trial on the charge of theft over $5,000 on November 7, 2011.

Ruling on the Robbery of Scott Pavao-Soares on December 2, 2011

[107] Mr. Pavao-Soares testified that a man sprayed him with bear spray when he tried to go after a woman who was stealing merchandise out of the store where he was working. When he testified he said that "it's this gentleman here." It is reasonable to conclude that he was referring to Mr. Gopaul.

[108] Officer Machin testified as an expert in fingerprint analysis. She examined the scene at the Joe Ladd store on the day that the robbery occurred. She found a can of bear spray, but there were no finger prints on it. She noticed that bear spray had been discharged near the cash register and on the windows at the front of the store. She could not tell when it had been sprayed.

[109] She found Mr. Gopaul's finger print on the interior of the front door just above the handrail. She could not say how long it had been there.

[110] The defence argued that the in-dock identification by Mr. Pavao-Soares is unreliable and should not be counted on to incriminate Mr. Gopaul. However, that is not the only evidence that tends to incriminate him. Officer Machin's evidence that she found Mr. Gopaul's finger print on the front door of the store on the day of the robbery must be taken into consideration despite the fact that she could not say when the print was put there.

[111] In addition, the authorities cited above do not support the proposition that an in-dock identification is "no evidence" of identity.

[112] Based on all of the evidence, I find that one of the reasonable inferences that can be drawn from the evidence is that Mr. Gopaul deposited his finger print on the door on his way out of the store after he sprayed Mr. Pavao-Soares with the bear spray.

[113] I find that considering all of the circumstances and the jurisprudence cited above, there is sufficient evidence to pass the Sheppard test.

[114] Therefore, Mr. Gopaul is committed to stand trial on the robbery charge.

Released: September 3, 2013

Justice J.W. Bovard