Court File and Parties
Court: Ontario Court of Justice
Date: 2017-03-01
Court File No.: London 16-6114
Between:
Her Majesty the Queen
— and —
Robert Penninga
Before: Justice A. Thomas McKay
Heard on: January 25 and 30, 2017
Reasons for Judgment released on: March 1, 2017
Counsel
Mr. Christakos — counsel for the Crown
Ms. Prosser — counsel for the defendant Robert Penninga
MCKAY J.:
INTRODUCTION
[1] Mr. Penninga and his co-accused Mr. Farmer were charged with three offences arising out of the events of January 16, 2016 in the City of London. The offences are break and enter contrary to section 348(1)(a) of the Criminal Code, possession of a break in instruments contrary to section 351(1) of the Criminal Code, and entering upon land, the property of Canadian National Railway, on which line work is situated, contrary to section 26.1 of the Railway Safety Act. On the day set for trial, Mr. Farmer did not attend. The Crown application to sever the trials of the two accused was granted, and Mr. Penninga's trial proceeded.
[2] The London Police Service was conducting a project in the East End of London entitled Project Barbwire. The project related to an attempt to stem the high incidents of break-ins to commercial properties in the area.
[3] An officer involved in the project observed two men on bicycles at approximately 1:30 a.m. The men were in dark clothing and had backpacks or duffel bags with them. A surveillance team of officers followed the men for a period of time. At a railway crossing, officers lost sight of the men for a short time. Officers then followed the tracks in the snow of two men and two bicycles along the railway line for a short distance, arriving at a compound and observing what appeared to be a freshly cut hole in a chain-link fence surrounding a commercial property. Officers heard the sounds of things being moved around inside the commercial building on the property, and radioed to request assistance, including uniformed officers and the K-9 Unit. Officers attempted to form some type of perimeter around this large commercial property while waiting for additional assistance.
[4] When additional officers arrived on scene, the building was cleared. The tracks in the snow, which had been observed, led to a broken window at the commercial building which officers believed was the point of entry to the building. Officers, including the K-9 officer, observed the tracks of two individuals in the snow apparently running northbound from the scene. There were no other tracks in the area. The police dog led its handler and another officer on a track after the two individuals. In the meantime, other officers cruised the area near the commercial building in police vehicles looking for the suspects. While the K-9 Unit was still tracking the individuals, one of the officers who had been involved in the surveillance came upon Mr. Penninga and Mr. Farmer, who he identified as the two men that the surveillance team had been tracking. He detained the two of them, and with the assistance of other officers, completed the arrest. He noted that neither of the men had backpacks or duffel bags with them.
[5] The K-9 Unit worked its way to the arrest site searching for the missing bags. They did not locate anything prior to arriving at the arrest site, and other officers had already taken the two accused to police headquarters. The K-9 Unit then retraced its path back to the commercial property, searching for the bags. The police dog located one bag under a partial sheet of plywood near the building which police inferred had been used as a ramp to gain entry through the broken window. The second bag was located inside the commercial building an arm's-length from broken window. Both bags contained items suitable for the purpose of breaking into places, such as flashlights, bolt cutters and screwdrivers.
EVIDENCE
Steve Kingston
[6] Mr. Kingston gave evidence with respect to the commercial property involved in this case. Property is located at 2010 Oxford Street East in the City of London. It is a large property, approximately 20 acres. There is a building at the front of the property. There is a chain-link fence around the entire property, and two entrance gates to the property, both of which are locked. Behind the building is a gravel compound area approximately one acre in size. He leases that compound area from the property owner in order to store construction equipment there. He was not at the property the night of the incident. During that time of the year, he can at times go a week without being on the property. Police contacted him and he attended the property. There was no damage to any of his equipment, nor was anything belonging to him missing. In cross-examination, he confirmed that he has never walked the entire 20 acre property in order to determine whether there are any holes in the fence.
Barrett Willis
[7] Constable Willis was the investigating officer in this case. He was part of the Project Barbwire team, working plain clothes in an unmarked police vehicle. He is an experienced officer whose career has included a tenure on the full-time surveillance team of London Police Service. At 1:28 a.m., in the area of Dundas Street and Edmonton Avenue, he observed two males in dark clothing, on bicycles, carrying what appeared to be backpacks. His attention was drawn to the men because of police reports of crimes in the area by individuals on bicycles. The bicycles had no lights or reflectors, which constituted the Highway Traffic Act violation. The two men appeared to be looking closely at various commercial buildings. Both men had hoodies pulled over their heads, and one of the men had a trapper's hat.
[8] Constable Willis observed the two men attend the area behind a local hardware store which was not well lit, where a shed was located. The men then started rummaging through their backpacks, which he considered suspicious. He radioed the remainder of the Project Barbwire team to attend the area. After a short time, the men got back on their bikes, then stopped and entered a coin-op carwash through the side entrance. He remained stationary in his vehicle. The men then reappeared, got on their bikes and continued eastbound on Dundas Street. His other team members had arrived and taken up surveillance positions. One officer checked the coin machine in the carwash, and found that it was undamaged. The officers then coordinated a team approach to do surveillance of the two men on bicycles. The two men were continuously observed by the team, which consisted of either six or seven officers, and the officers used a private radio channel to broadcast their observations to the entire surveillance team.
[9] Officer Willis observed the men off their bicycles, standing beside the railway crossing lights at Oxford Street. One man had taken his backpack off. Officer Willis drove past the men in order to transfer surveillance to another officer. After travelling a short distance, he returned to the railway crossing, and noted that the men were not present. Officers had lost sight of the two men. Constable Willis observed the footprints of two individuals and the tracks two bicycles in the snow going north onto the rail line. He is aware that this area is private CN Rail property. He relayed information to other officers to set up a perimeter, given that he was concerned about potential criminal activity in the nearby large commercial property. He described that property as a large compound surrounded by a chain-link fence. There is a building at the front of the property, with gated entrances at the front. The compound is used to store construction equipment. He asked officers to create a perimeter around the compound as best they could, given its size. He requested the assistance of the K-9 Unit.
[10] Constable Downes arrived at his location, and they followed the footprints and bicycle tracks along the railway line. At this point, the two men had been out of police observation for approximately five minutes. Approximately 25 to 30 feet north of the crossing, they found one bicycle in the snow. From there, they followed the tracks of two people and one bicycle a short distance until they came upon the second bicycle. They then followed the footprints, which led to a large hole which had been cut in the chain-link fence around the property. The marks on the hole cut in the fencing appeared to be freshly cut, showing no signs of any rust or discoloration, which one would expect to be present on an older cut. The footprints went through the hole into the commercial property. At this point, he and Constable Downes were approximately 20 to 30 feet away from the commercial building. He could hear things being moved around inside of the commercial building. At 1:58 a.m., he advised over police radio that he believed that a break and enter was in progress on the property, and he requested the assistance of uniformed officers.
[11] Members of his team who arrived on site set up a containment of the area as best they could. Approximately 5 to 10 minutes later, a K-9 officer and uniformed officers arrived. He essentially remained at the hole in the fence while other officers checked and cleared both the building and compound. At one point he entered the area of the compound briefly during the search, and observed that the tracks of the two individuals in the snow led to a broken window which was part of the door to the commercial building. He was advised by radio that the K-9 officer and police dog were tracking suspects northbound from the compound. He left the area in his vehicle towards the general direction of the K-9 track.
[12] Constable Willis met Constable Mahmoud in the area of Third Street and the C.P. Rail line and interacted briefly. Constable Mahmoud left the area, and then almost immediately radioed to say that the suspects were just south of his position around Third Street and Culver Drive. A map of the area showing the location of the commercial property in 2010 Oxford Street East, and the location of the arrest was filed as an exhibit in the proceedings. Constable Willis travelled towards Constable Mahmoud's position. He observed the two men walking southbound from the rail line at Third Street and Culver Drive. He observed Constable Mahmoud block the sidewalk with his police vehicle, exit his vehicle and order the men to the ground. Constable Willis exited his vehicle, and assisted with the arrest. It was the same men who had been under surveillance earlier, wearing the same clothing that they had been wearing earlier. His recollection at trial was that the clothing the men were wearing was a dark navy blue. When Mr. Farmer was handcuffed and searched, he located the trapper's hat which he had observed earlier inside Mr. Farmer's coveralls. Constable Willis identified Mr. Penninga in court as the man that he arrested that morning.
[13] In cross-examination, he confirmed that his initial surveillance observations of Mr. Penninga and Mr. Farmer took place in artificial lighting at various locations along Dundas Street. He observed the men while conducting the surveillance at various distances of less than 100 metres, including being within 10 feet of them at the closest point. He recognized their faces at the scene of the arrest. His request for K-9 assistance took place at 1:58 a.m., and the two men were arrested at 2:39 a.m. The sounds that he heard from within the commercial building included voices and the sound of metal being dropped. The footprints off the rail line went directly to the commercial building door at the northwest corner of the building, which had a broken window.
Ian Bedore
[14] Constable Bedore was working Project Barbwire. At 1:28 a.m. he overheard a radio broadcast from Constable Willis regarding the two suspicious males on bikes he was in a marked police vehicle, so he took up a position to the east of their location. He was aware that unmarked police vehicles were conducting team surveillance. At 1:58 a.m. he became aware that Constables Willis and Downes had followed the suspects to the commercial property where they had entered through a hole in the fence. He attended at the location and attempted to assist in establishing a perimeter.
[15] At 2:38 a.m., he heard Constable Mahmoud's radio broadcast for assistance at Third Street and Culver Drive. He attended the scene, took custody of Mr. Farmer, and confirmed his identity. Mr. Farmer was sweating profusely, out of breath, wearing black one piece coveralls with multiple layers of clothing underneath, brown boots, a brown trapper's hat, a black hoodie, and blue jean overalls underneath the coveralls.
Ian Downes
[16] Constable Downes was working on Project Barbwire in the early morning hours of January 16, 2016. He was part of the surveillance team following the two men on Dundas Street. He observed the two men eastbound on Dundas Street on their bicycles, riding extremely slowly. He passed the men and parked further down the road to wait their progress. The men were dressed in what appeared to be black clothing, and had large bags draped on the front of their bikes. He got within a few meters of the men when he drove past them. After he parked, the men never reached his location. He attended the location of Constable Willis at the railroad crossing at Oxford Street, approximately 75 feet east of the fenced compound. He followed the tracks along the train line with Constable Willis and observed the bicycles to the side of the train line. He observed the hole cut in the chain-link fence around the compound. It was triangle shaped and large enough for a person to fit through. It appeared that the hole had just been cut. He could hear sounds from within the building; the sound of people rummaging around and moving things around within the building. He called for additional officers and the K-9 officer to assist.
[17] Constable Downes entered the compound area to attempt to set up a perimeter. He did not see anyone leave the compound. Officers from the Emergency Response Unit attended and cleared the building. He observed fresh footprints going from the east side of the building, northbound. He assisted the K-9 officer, who was tracking the footprints northbound. They went northbound to the rail line and then followed the rail line to Clarke Road. At 2:39 a.m., Constable Mahmoud advised them over the radio that he had located the two men, and that they did not have any bags with them.
[18] He went to the arrest site with a K-9 officer. Subsequently, he and the K-9 officer retraced their steps back to the compound. At 3:30 a.m., the police dog located the duffel bag underneath a piece of plywood at the point of entry to the building. The broken window was a few feet from the bottom of the door, and Constable Downes was of the view that the plywood had been used as a ramp to enter through the broken window. He located a second dark bag inside the building within an arm's length of the broken window. Inside both bags were items which he considered suitable to be used for break-ins, including flashlights, bolt cutters, screwdrivers and other items.
[19] In cross-examination, he indicated that during the surveillance efforts, he only saw the men once for a period of approximately 10 seconds. He described the bags which were recovered as one black "Vagabond" duffel bag, and one navy blue "Outpack" backpack. He described the backpack as a "big long one" which looked like a duffel bag when on its side.
Brad Lobsinger
[20] Constable Lobsinger is a K-9 Unit officer with London Police Service. He works with police dog Teo. At 1:59 a.m. he was called to the break and enter in progress at the commercial compound. He was only a few minutes from that location when he received the call. He travelled up the railway line and through the hole in the fence to the building. The building is abandoned. When he looked inside, he saw broken glass and other hazards which made it too dangerous for Teo to search the building. Tactical officers attended and cleared the building. He did a perimeter search of the building and noted two sets of fresh footprints in the snow running northbound from the building. He initiated a track for the two individuals, with Constable Downes assisting him. The set of two tracks were the only tracks in the snow in the area.
[21] The tracks led directly from the building. He cast Teo into the track approximately 5 to 10 feet from the building. The dog went consistently into the track and followed it northbound. He reached the other rail line and tracked southbound to an open space, then westbound towards Clarke Road. Teo never lost the track, but they received information over the radio indicating that the suspects had been arrested walking on Third Street. They were also advised that the two men arrested did not have bags with them. He switched commands with Teo to commence an evidence search for the bags. They continued on to the arrest site without locating anything. They then worked their way back to the commercial building. At the location of the building, Teo went to a sheet of plywood and pulled a bag out from underneath the plywood. During an evidence search, Teo will react to any item which has human scent. Constable Downes retrieved the bag and then looked in the window of the building. Constable Downes then retrieved a second bag from inside the building.
Husnian Mahmoud
[22] Constable Mahmoud was part of the surveillance team with Project Barbwire. He assisted with surveillance, attending the scene and observing both suspects, and Constable Willis's vehicle. He indicated that both men were in what appeared to be black clothing; one man was larger than the other and had a goatee. He observed the males eastbound on Dundas Street and took part in the moving surveillance effort, switching on and off. Eventually he parked in a parking lot in order to take up the position of the "long eye" as the suspects approached his position. In total, he had eyes on the suspects for approximately one half hour, with a few gaps in that timeframe as he switched off. There was no other pedestrian traffic around the men. Other officers observed the men go eastbound on Oxford Street and then the radio reports indicated that the two men went down the railway line. He drove to the area to assist.
[23] He was updated regarding Constable Willis's activities, and the suspected break and enter. He took a perimeter position northeast of the building. When uniformed officers arrived he returned to his vehicle to patrol the surrounding area. During a radio conversation, he arranged to meet Constable Willis in the area of Third Street and Culver Drive. On his way to that location, he saw the two men, so he advised other officers over the radio that he had located the suspects. He blocked the suspects' path by pulling his police vehicle onto the sidewalk. He exited his vehicle and ordered the men to go to their knees. He took control of Mr. Penninga, identified him, and arrested him. Other officers arrived, and took custody of Mr. Penninga. He described both Mr. Penninga and Mr. Farmer as sweating, with their clothes extremely wet. The second man, who had a goatee, was identified as Mr. Farmer.
[24] In cross-examination, he indicated that during surveillance, he had the opportunity to view both men from behind and from the front. He confirmed that there was no other pedestrian traffic in the area during the surveillance, and very little the vehicular traffic. When he came upon the two men at Third Street and Culver Drive, they were walking at a fast pace, looking around. When he was parked as the "long eye" on surveillance, the men walked past him on the opposite side of the road. While conducting surveillance in his vehicle, he drove past them slowly a number of times.
Amie Birch
[25] Ms. Birch is a Sergeant with the London Police Service. January 16, 2016, she was working uniform patrol is a Constable. She was one of the officers who took up a perimeter point at the building on Oxford Avenue. When the building was cleared, she left her position and was westbound on Culver Drive travelling in the direction of Third Street. She overheard a radio call indicating that Constable Mahmoud had two males in custody on Culver Drive. She attended that location and assisted in cuffing Mr. Penninga. She took custody of him to transport him to headquarters. She provided Mr. Penninga with his right to counsel and the primary caution. While transporting Mr. Penninga to police headquarters, he indicated to her that he had been following two males on bicycles, believing that one of the bikes might be his because it was recently stolen. He entered the compound at 2010 Oxford Street East, but only to follow the two men in. After a voir dire, that statement was ruled admissible.
[26] In cross-examination, she agreed that there was no reference to Mr. Penninga's utterance in her duty book notes. She explained that by indicating that she made her duty book notes after she arrived at police headquarters. When she arrived there, she simply typed her Will Say on one of the many available terminals, and included a reference to the utterance in the Will Say. She did not duplicate it by also writing it into her duty book notes. Her description of what Mr. Penninga said is accurately paraphrased in terms of content, but she could not recall the exact words. She did not accept the suggestion that Mr. Penninga simply indicated that he was at the compound. While she could not say with 100 percent certainty that he did not say that, it would be very difficult to believe that she would confuse an indication that he was at the compound with one that he was in the compound. She confirmed her recollection that Mr. Penninga admitted being in the compound, following the other men in.
Alanna Hollywood
[27] Constable Hollywood was working in uniform with Sergeant Birch on January 16, 2016. She was with Sergeant Birch when Sergeant Birch took custody of Mr. Penninga, and provided Mr. Penninga with the right to counsel and primary caution. Mr. Penninga's clothing was quite wet. On route to police headquarters, she overheard Mr. Penninga's indication that he had been following other people on bikes into the compound where the break and enter occurred. That was essentially a summary of the content of what he said, not the precise words.
[28] She agreed that her duty book notes made no reference to the utterance. On January 22, 2017, she prepared a Will Say statement at the request of the Crown. It did not refer to Mr. Penninga's utterance. Typically, when two officers are involved in transporting an accused, only one of them prepares a Will Say. When asked to prepare the Will Say on January 22, 2017, no one said anything to turn her mind to the utterance made by Mr. Penninga. Her Will Say simply mirrored her duty book notes.
POSITIONS OF THE PARTIES
The Crown
[29] The issue in this case is whether the evidence establishes beyond a reasonable doubt that Mr. Penninga was the individual followed by the police to the building where the break and enter was committed. When looking at identification evidence, the court must look at the totality of the evidence rather than examine it in a piecemeal fashion. The slight variations between witnesses in terms of clothing of the two suspects can be explained by the fact that it was early morning hours and the police were relying upon artificial lighting.
[30] Two officers who were part of the surveillance team identified Mr. Penninga at the site of the arrest. He was followed to the railway crossing and then subsequently his tracks were followed to the fresh cut hole in the fence of the compound. He escaped the compound, but the dog track went northbound along the railway line, and then southbound along the CP railway line. A short distance from the location of the dog track to Clarke Road, on Third Avenue just south of the CP Rail line, Mr. Penninga and Mr. Farmer were arrested. Mr. Farmer had a goatee and the distinctive trappers' hat, as observed by the officers earlier in the surveillance. Bags matching the description of the bags that they had been carrying during surveillance were recovered at the scene of the break and enter. Those bags contained break in instruments.
[31] When the evidence as a whole is examined, the Crown has proven the charges beyond a reasonable doubt.
The Defence
[32] With respect to the break and enter, the defence position is that the police observed nothing but suspicious behaviour. The Crown must prove entry to the building with the intent to commit an indictable offence. There is no clear evidence that a break and enter occurred, given that nothing was damaged or missing. During the period of surveillance, the police did not observe criminal activity.
[33] With respect to identification, the defence position is that breaks in the surveillance by the police leads to a gap in the evidence between the individuals seen at the railway tracks, and the individuals arrested. The surveillance was conducted in the dark and comprised of brief observations. The description of the suspects was generic. The K-9 track from the break and enter site ended at Clarke Road. The incomplete containment of the property by police raises the possibility that others were on site. The clothing of Mr. Penninga and Mr. Farmer may have been wet because the police officers forced them to the ground for handcuffing.
[34] With respect to Mr. Penninga's utterance to the police, if it is believed it is neutral evidence. The reliability of the police officers' recollection of the utterance should be suspect.
[35] With respect to the possession of break and enter tools charge, the Crown must show knowledge and control of the items under circumstances that give rise to a reasonable inference. The defence points out discrepancies in the descriptions of the bags, with some officers referring to them as backpacks, and others referring to them as duffel bags.
APPLICABLE LEGAL PRINCIPLES
[36] It is an offence under section 348 of the Criminal Code to break and enter a place with intent to commit an indictable offence therein. Evidence that an accused broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein. This presumption of intent can be rebutted if the accused raises a reasonable doubt, which he may do so by adducing evidence of an explanation that may reasonably be true. An explanation that is disbelieved does not constitute any evidence to the contrary, as it is no evidence.
[37] The term "break" is defined in section 321 of the Criminal Code and includes the act of opening anything that is used or intended to be used to close or cover an internal or external opening. The term "enter" is defined in section 350 of the Criminal Code. That section provides that a person shall be deemed to have broken and entered if "he entered without lawful justification or excuse, the proof of which lies upon him, by a permanent or temporary opening". The Ontario Court of Appeal held in R. v. K. (T.B.), 49 C.R.R. (2d) 328 that while section 350(b)(ii) infringes the presumption of innocence, it constitutes a reasonable limit and is therefore valid.
[38] With respect to the issue of identification evidence, the following principles apply. The potential frailty of eyewitness identification evidence is well-known. The danger associated with eyewitness in-court identification is that it is deceptively credible, mainly because it is honest, sincere and has the potential to have a dramatic impact on the trier of fact. History has shown a very weak link between the confidence level of a witness and the accuracy of the witness' identification.
[39] Visual or sensory identification evidence is lay opinion evidence. Essentially, such testimony amounts to a statement of recognition. The dangers of such evidence are well known. The law is full of examples of the erroneous convictions based upon honest and convincing, but mistaken eyewitness identification. The concern is heightened in situations where the opportunity of the witness to observe was under poor conditions, improper identification procedures were employed, or suggestive influences have occurred. If there is a notable dissimilarity between the initial description furnished by the witness and the suspect who is later identified, and there is no other evidential support for that identification, the purported identification must be viewed with caution. The assessment of the probative force of eyewitness evidence generally does not turn upon credibility assessments, but rather on considerations of the totality of the circumstance pertinent to that identification.
[40] 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, the in-court identification is entitled to virtually no weight. However, where the in-court identification is supported by distinctive details, prior familiarity, or previous forms of identification such as properly conducted lineups, the value of the in-court identification can be significantly strengthened.
[41] Out-of-court identifications made by a witness may be admitted for their truth and for credibility purposes in certain situations. Generally speaking, for identity opinion to be admissible the witness must have a prior opportunity to observe the person being identified, must identify that person out-of-court, often by physical descriptors and in most cases by identification procedures such as a photo array. Finally, the witness must communicate the opinion regarding identity as part of an in court identification. The strength of an eyewitness' identification depends, to a great extent, on the facts supporting that opinion.
[42] In R. v. Tat, 117 C.C.C. (3d) 481, Doherty, J.A., speaking for the Ontario Court of Appeal, in paragraphs 35 to 37, described the admissibility of eyewitness identifications as follows:
"My review of Canadian case law reveals two situations in which out-of-court statements of identification may be admitted. Firstly, prior statements identifying or describing the accused are admissible where the identifying witness identifies the person at trial. The identifying witness can testify to prior descriptions given and prior identifications made. Others who heard the description and saw the identification may also be allowed to testify to the descriptions given and the identifications made by the identifying witness… The probative force of identification evidence is best measured by a consideration of the entire identification process which culminates with an in-court identification. … Where a witness identifies the accused at trial, evidence of prior identifications made and prior descriptions given by that witness did not have a hearsay purpose. … When such evidence is tendered, the trier of fact is not asked to accept the out-of-court statements as independent evidence of identification, but is told to look to the entirety of the identification process before deciding what weight should be given to the identifying witness' testimony. …
The second situation in which out-of-court statements of identification have been admitted arises where the identifying witness is unable to identify the accused at trial, but can testify that he or she previously gave an accurate description or made an accurate identification. In these circumstances, the identifying witness may testify to what he or she said or did on those earlier occasions and those who heard the description given by the witness or witness the identification made by the witness may give evidence of what the witness said or did."
[43] With respect to the offense of possession of break-in instruments, section 351 of the Criminal Code provides that one commits an offence in circumstances as follows:
"Everyone who, without lawful excuse, the proof of which lies on them, has in their possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for such a purpose…"
[44] The phrase "reasonable inference" requires proof beyond a reasonable doubt. Therefore, the Crown must prove possession of the instruments; the suitability of the instruments for the prohibited purpose; and an intention to use the instruments for the prohibited purpose. The provision does not offend the presumption of innocence (see R. v. Holmes, [1998] 1 S.C.R. 914).
ANALYSIS
[44] A team of officers located two suspects on Dundas Street, and, using the team approach, kept them under close, continuous surveillance for approximately one half hour until a lost visual contact with two men for approximately five minutes after the men entered the railway line property. Officers had a general description of the clothing worn by the men, and the bags being carried by the men. More importantly, multiple officers had an opportunity to observe the men in artificial lighting at relatively close quarters. The tracks of two men and their bicycles were followed a short distance to the commercial compound where officers observed the tracks leading through what appeared to be a freshly cut hole in the chain-link fence to the building. Officers could hear sounds coming from within the building.
[45] The two suspects left the building running northbound prior to the officers arranging containment of the property, and prior to the arrival of officers to search the interior of the building. The tracks in the snow left by the two men led from the railway line, through the hole in the fence, to a broken window in a door to the building. The officers heard the men inside the building, including sounds of metal being dropped. I am satisfied that the Crown has proven beyond a reasonable doubt that the two men entered the property through the hole in the fence and subsequently entered the building using the broken window of the door. I am satisfied that the Crown has proven that the two men being followed by police committed a break and enter to the building on site, with the intention of committing an indictable offence on the premises.
[46] I am satisfied that the two bags subsequently located by police, one inside the building and one just outside of the building, were the bags carried by the two men who were under surveillance by the police. I am satisfied beyond a reasonable doubt that the two men possessed the contents of those bags, and that the instruments in the bag were suitable for the purpose of breaking into a place. Given the actions of the men observed by the police, their entry to the property through the hole in the fence at approximately 2 a.m., and the entry into the building using a broken window in the door, I am satisfied that the two men possessed the instruments for the purpose of breaking into a place.
[47] I am satisfied that the two men followed by the police entered onto land which was the property of Canadian National Railway, on which line work was situated.
[48] The question remains whether the Crown has proven beyond a reasonable doubt that Mr. Penninga and Mr. Farmer were the two men who were the subjects of the surveillance, and who entered the property and subsequently entered the building.
[49] This is not a case where there is simply an in dock identification of an accused. As indicated, police had the two suspects under surveillance for a significant period of time. Officers got close enough to the two suspects to observe facial features. Officers Willis and Mahmoud identified Mr. Penninga and Mr. Farmer as the individuals who were the subjects of their earlier surveillance at the time of arrest. The clothing description, while fairly generic, matched. The fact that Mr. Farmer possessed the distinctive trappers at is significant. The location of the arrest supports the identification. The map filed as Exhibit 1 shows the location of the rail lines in the area. The K-9 unit tracked the two suspects north from the compound along the rail line, and then south along the other rail line to Clarke Road. If one were to continue along that rail line past Clarke Road, in a relatively short while one would arrive at Third Street, a very short distance from the arrest.
[50] At the time of the arrest, both men were described as out of breath and soaking wet. They were also walking quickly down the street and looking around. All of that is consistent with the two men fleeing both the area and the pursuit of police. Mr. Penninga's utterance that he was in the compound not only places him at the scene; the fact that he felt it necessary to explain his presence at the scene is telling. His explanation for his presence is not believable, given the other evidence, particularly the evidence related to footprints. All of these factors strengthen the in dock identification of Mr. Penninga as one of the two men who were the subjects of the surveillance by the police. I am satisfied beyond a reasonable doubt the Crown has proven that Mr. Penninga was one of the two men who committed the break and enter at 2010 Oxford Street East.
CONCLUSIONS
There will be findings of guilt with respect to all three offences.
Released: March 1, 2017
Signed: Justice A. Thomas McKay