R. v. Henderson, 2016 ONSC 1070

CITATION: R. v. HENDERSON, 2016 ONSC 1070

COURT FILE NO.: 15-537

DATE: 2016/02/16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

M. Murdoch, for the Crown

• and -

ANGIE JEAN HENDERSON

J. Raftery, for the accused

HEARD: February 9 and 10, 2016

LEACH J. (ORALLY)

Overview

1By way of overview, the accused, Angie Jean Henderson, is charged with a single offence pursuant to s.354(1)(a) of the Criminal Code. In particular, the sole count of the indictment reads as follows:

On or about the 22^nd day of April, 2014, at the Municipality of Perth East, in the said Region, [i.e., the Southwest Region, as indicated elsewhere on the indictment], did have in her possession property, a 2007 GMC pick-up truck, the property of Rino MESSORE (Westmount Storefront Systems), of a value exceeding five thousand dollars, knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to s.354(1)(a) of the Criminal Code of Canada.

2The charge stems from events said to have taken place on April 21-22, 2014. Evidence in that regard is outlined in greater detail below. In broad terms, however:

• The Crown says that the accused Ms Henderson, acting alone or as a party pursuant to the provisions of s.21 of the Criminal Code, had possession of a pick-up truck which was stolen from a commuter parking lot in Waterloo County on the morning of April 21, 2014. Through use of the stolen vehicle’s GPS system, it was located by police very early the next morning, a considerable distance from where it had been taken, at a rural and remote farm location here in Perth County.
• Ms Henderson was not found in immediate possession of the stolen vehicle. However, to establish possession, the Crown relies on circumstantial evidence. That evidence includes the finding of Ms Henderson’s fingerprints on the stolen vehicle near the apparent point of forced entry, despite Ms Henderson having no previous known connection to the vehicle. It also includes evidence that, shortly after discovery of the stolen vehicle, Ms Henderson herself was found a short distance away, in highly suspicious circumstances said to be strongly indicative of unanticipated flight from the relevant farm property and the stolen vehicle when the police were approaching.
• Ms Henderson does not dispute that the relevant vehicle was stolen, or that it had a value exceeding $5,000 at the time of its theft and recovery. Nor does she dispute that her fingerprints were on the vehicle after it was recovered, despite her having no known connection with the vehicle before it was stolen. However, Ms Henderson denies having any known contact with the stolen vehicle, and says she happened to be near the location where the vehicle was found, shortly after its discovery, for entirely unrelated innocent reasons. More generally, Ms Henderson says the Crown has failed to prove all essential elements of the charged offence beyond a reasonable doubt, having particular regard to what generally is described as “the rule in Hodge’s case”; i.e., Re Hodges Case (1838), 16 E.R. 1336.

Evidence – General Comments

3At trial, in addition to tendering a number of exhibits, (including an agreed statement of facts, charts and maps depicting the Perth County locations mentioned in testimony, and a brief containing photographs of the stolen vehicle and its contents, as well as other material relating to expert fingerprint analysis), the Crown presented testimony from the following witnesses:

• Officer John Ginn, of the Ontario Provincial Police (OPP), who was the first police officer to arrive at the location of the stolen vehicle;
• Monique Louwagie, a civilian who was babysitting a grandchild at her son Daniel’s residence, near the farm where the stolen vehicle was located, when she was approached unexpectedly by Ms Henderson and a male companion;
• Daniel Louwagie, a civilian who returned home to find that his mother had been approached at his residence by Ms Henderson and her companion, and who then made his own independent observations of the two strangers;
• Officer Rudolph Hartfiel of the OPP, who also was dispatched to the farm property where the stolen vehicle was recovered, before then being called upon to investigate a concern expressed by Daniel Louwagie about the two strangers who had approached his nearby residence, and who were still in the area; and
• Sergeant Ann Louise Debrouwer of the OPP, who helped carry out an investigation concerning the stolen vehicle and the property on which it was found, and who was qualified as an expert in fingerprint investigation and analysis.

4In addition to subjecting the Crown’s witnesses to cross-examination, defence counsel called Ms Henderson as a witness to provide testimony on her own behalf.

5Although most of the evidence at trial emanated from the Crown witnesses, I have in mind throughout my entire reasons and analysis that proper determination of cases is not achieved by simply counting witnesses, as quality of evidence may very well prevail over quantity. As the trier of fact, I therefore am entitled, for example, to prefer the testimony of just one witness, rather than a number of others, depending on my assessment of the evidence.

6I also have in mind, throughout my entire reasons and analysis, the presumption of innocence and the burden of proof upon the Crown.

7In particular, according to the constitutional guarantee in s.11(d) of the Charter of Rights, Ms Henderson is presumed to be innocent, and that presumption of innocence remains with her throughout this matter, from beginning to end, unless and until the Crown establishes her guilt with respect to the alleged offence beyond a reasonable doubt.

8That is a heavy burden and, in relation to the elements of the charges against Ms Henderson that are not admitted, never shifts. In particular, Ms Henderson has no obligation whatsoever to establish her innocence.

9In that regard, although Ms Henderson chose to testify on her own behalf in this case, I am mindful of the principles underscored by R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, wherein the Supreme Court of Canada emphasized that reasonable doubt may arise in various ways; ways that are not restricted to acceptance of exculpatory testimony given by an accused. For example, in this particular case:

• It would not be appropriate to decide this case by simply determining whether I accept or reject the testimony of Ms Henderson, including her denial of any involvement vis-à-vis the stolen vehicle, and her account of how she innocently came to be in an area close to where the stolen vehicle was located, shortly after its discovery by the police.
• I instead have to consider all the evidence, and decide whether I have been satisfied beyond a reasonable doubt that all the essential elements of the crime charged have been established.
• Certainly, if I believe and accept Ms Henderson’s testimony, then I obviously must acquit her.
• However, even if I do not believe and accept Ms Henderson’s testimony, I must still acquit her of the crime charged if her testimony raises a reasonable doubt in my mind; e.g., as to whether she was ever in possession of the vehicle in question, and/or knew that it was stolen.
• Moreover, even if I do not believe Ms Henderson’s testimony, and her testimony does not leave me with a reasonable doubt, I must still ask myself whether, having regard to the evidence I do accept, and looking at the case in its totality, I am convinced that she is guilty beyond a reasonable doubt.

Evidence – General Facts

10With the above preliminary observations, I turn now to a more detailed review of the underlying evidence.

11While I will have more to say about certain aspects of the evidence later in my reasons, the following findings form the basic context of my further analysis:

• On Monday, April 21, 2014, at approximately 9:30am, a red GMC Sierra pickup truck, with a value exceeding $5,000, and Ontario licence plates and a Vehicle Identification Number specified at trial, (“the stolen vehicle”), was taken, without the permission of its similarly specified owner, from a commuter parking lot located at Highway 401 and Homer Watson Boulevard in the County of Waterloo. The stolen vehicle had only two doors, with only one “bench” or row of seating between them.
• Ms Henderson had no known previous connection to the stolen vehicle when it was taken.
• The stolen vehicle was equipped with a GPS system, signals from which were used by the OPP to track its location to a rural farming area in Perth County, northwest of the City of Stratford, near the tiny community of Rostock. In particular, shortly after 6am on the morning of Tuesday, April 22, 2014, the stolen vehicle appeared to be parked near the intersection of Line 49 and Road 130. The prevailing weather conditions were cold and wet.
• Officer Ginn was dispatched in his marked police cruiser to the location indicated by the GPS signals, but initially was unable to find the stolen vehicle. However, he continued to search the area, driving past and checking nearby properties, while receiving further advice from the OPP Communication Centre about the signals being received from the stolen vehicle’s GPS unit.
• At approximately 6:17 to 6:23am, Officer Ginn was driving west past a farm property later identified by its municipal address as 4621, Line 49, (a short distance to the west of its intersection with Road 130), when he saw the headlights of a vehicle on that property turn off at approximately the same time as the OPP Communication Centre was indicating that the stolen vehicle’s GPS system had just been turned off.
• To investigate that coincidence, Officer Ginn reversed his cruiser 4-5 car lengths east along Line 49, to the entrance of the drive leading south onto the relevant farm property. He noted the relevant address, and called it into the OPP Communication Centre, before proceeding approximately 15-20 meters up the drive onto the property, with his cruiser headlights on, towards an area where a number of structures were located, and the place where he had seen the other vehicle headlights being turned off. In doing so, Officer Ginn was able to see, ahead and to his right, approximately 50-60 meters away, the parked vehicle whose headlights had been turned off less than a minute earlier. The vehicle matched the general description of the stolen vehicle, in terms of make, model and colour. However, the OPP Communication Centre advised that there were “cautions” on the property, so Officer Ginn decided to stop and remain where he was, in order to call and wait for the arrival of “back-up” before proceeding further.
• While proceeding up the drive, and then while remaining in his cruiser, Officer Ginn was making observations of the relevant farm property, which included a house and travel trailer to his left, a large drive shed and silo ahead of him, and a tree line to his right that curved around the property. Until the arrival of back-up at approximately 6:33am, Officer Ginn saw no movement on the property. Nor did he see or hear any vehicle leaving the area. However, the location and position of the stolen vehicle, (which was facing north, placing its driver’s door on the far and opposite side of what Officer Ginn could see of the vehicle), and the location and position of the various nearby structures, objects and trees, were such that someone would have had the ability to move from the stolen vehicle, and in various directions on and around the farm property, without being seen by Officer Ginn from his vantage point in the parked cruiser.
• When back-up arrived at approximately 6:33am, in the form of two additional OPP officers, (including Officer Hartfiel), Officer Ginn was able to approach the stolen vehicle. He could see, without touching the vehicle, that its right passenger window had been broken, that its ignition system had been “punched” or damaged, and that its Ontario licence plates had been removed. A Michigan licence plate had been placed on the front of the vehicle, but it had no rear marker.
• Officer Ginn, Officer Hartfiel and the other officer also walked around the farm property, noting the presence of other objects and vehicles, including an ATV with an illuminated green ignition light, (reported as having been stolen the previous night), as well as a white truck and trailer, both of which also had been reported as stolen. The officers then “contained” the farm property, while waiting for a search warrant to be obtained, and for the crime unit to arrive and continue the investigation. During that further time, Officer Ginn saw no one but the other officers on the property. Nor did he see or hear any vehicle leaving the property.
• In his testimony at trial, Officer Hartfiel confirmed that the farm property where the stolen vehicle had been located was known as the Debus family farm. In particular, Officer Hartfiel had attended school with two sisters from the Debus family. He understood that they were the current owners of the farm, and that they rented it to their brother Bill Debus, who used it as a residence. I will henceforth refer to the property as the Debus farm.
• Later that same morning, (April 22, 2014), Officer Ginn was asked to leave the Debus farm, (while the other officers remained behind to contain it), and participate in an ongoing police chase of another ATV several miles to the south; a chase that had been initiated at some location other than the Debus farm. Officer Ginn responded by proceeding towards the reported chase location, and confronted the relevant ATV as it was heading north on Road 130, just south of its intersection with Line 36. In other words, when Officer Ginn confronted the ATV that was being chased, it was heading north on Road 130 towards the general area of the Debus farm, approximately 15km away. Officer Ginn could see that the chased ATV was being driven by a male, with no passenger. When Officer Ginn confronted the ATV in his cruiser, it turned south towards the village of Sebringville, with Officer Ginn in pursuit. However, Officer Ginn then lost contact with the ATV as it went into a farm field near the area between Lines 34 and 32, and Roads 130 and 125.
• At approximately 10:30am that same morning, (April 22, 2014), two individuals subsequently identified as Ms Henderson and James Warner approached the Louwagie residence, which is located on the third farm property along the north side of Line 46 to the east of its intersection with Road 135, (where one finds the small village of Rostock). In other words, the Debus farm and the Louwagie farm are both located within the same large “square” of property bordered by Line 46, Road 130, Line 49 and Road 135. In particular, the Debus farm is located close to the northeast corner of that square, and the Louwagie farm is located near to the southwest corner of that square. Despite the gap in numbering between Lines 46 and 49, and Roads 130 and 135, there are no other existing roads within that large square of property bordered by those four roads. (The numbering gaps seem designed to allow for the possible future designation of additional sub-dividing roads, within the aforesaid square, that do not yet exist.) Each “side” of the large square is approximately 1.3 miles (or 2km) in length. Therefore, if one travels from the Debus farm to the Louwagie farm by proceeding along the perimeter of the large square, one must travel approximately 4km to get from one property to the other. However, taking a direct line of travel, across the interior of the large square, the properties are actually much closer to each other than that.
• When Ms Henderson and Mr Warner approached the Louwagie residence, they spoke with Monique Louwagie, (who was temporarily at her son Daniel’s residence to care for one of Daniel’s children, while Daniel and his wife had taken another child to see a doctor). Ms Louwagie could see that Ms Henderson and Mr Warner were very cold, and that they were dressed strangely in a number of feed bags, (e.g., fashioned into ponchos and foot coverings), in an apparent effort to keep warm. Ms Louwagie indicated that she could not help them, (as she was babysitting and it was not her home), but directed them to a neighboring property across the way, to the south of Line 46. (There was no residence on that neighboring property, but there was a shed and the neighbor’s vehicle was parked outside, suggesting that the neighbor was present.) However, Ms Louwagie did give permission for the couple to use an external electrical outlet for the purpose of charging a cellular phone. Ms Henderson and Mr Warner were at the Louwagie property for at least 15 minutes before they then crossed south to the neighboring property.
• Daniel Louwagie returned to his home shortly after Hs Henderson and Mr Warner left it, and while the couple still was at the neighboring property immediately to the south, across Line 46. His mother told him about the couple who had come to the Louwagie home, and mother and son then watched the movements of the strangely dressed couple through their window. In particular, Ms Henderson and Mr Warner were seen entering the neighbor’s shed, apparently looking for warmth. The couple stayed on the neighbor’s property for approximately 5-10 minutes before walking east on Line 46 towards its intersection with Road 130; i.e., towards the southeast corner of the large square described above.
• Daniel Louwagie had experienced thefts from his property, (although nothing was taken that morning). He agreed with his mother’s assessment that the couple were dressed very strangely, and shared her feeling that something was “not right” about the couple. He therefore telephoned the Sebringville detachment of the OPP to make a report about the suspicious couple and their movements.
• At 10:56am, Officer Hartfiel was dispatched from the nearby Debus farm in his marked cruiser to investigate the report from Mr Louwagie.
• At 11:03am, (approximately 10 minutes after the call made by Mr Louwagie), Officer Hartfiel located Ms Henderson and Mr Warner walking eastbound along Line 46, (a gravel road), towards and near its intersection with Road 130. It was clear to Officer Hartfiel that neither individual was properly dressed to be outside in the prevailing weather conditions. In particular, both were extremely cold and dressed in very dirty feedbags, including feedbags packed with straw around their feet. The couple identified themselves to Officer Hartfiel, with Ms Henderson also indicating that she lived at a specified home address in Oakville.
• Officer Hartfiel searched the names provided, and learned that Ms Henderson and Mr Warner each had “CNI” (or “Criminal Name Index”) entries, which to him meant that both individuals had criminal records. However, it was agreed by the parties for the purposes of the trial that Ms Henderson had no criminal record, and that her CNI entry simply indicated that her fingerprints were on file.
• Officer Hartfiel did not search the couple, but did offer them a ride into Stratford, (which was approximately 10 minutes away by car). Officer Hartfiel’s purpose in making the offer was to “to get them out of the area”, and “get them to someplace warm”. The couple accepted the offer, and before entering the cruiser, discarded their feedbag coverings and footwear in a nearby ditch, (where Mr Louwagie found them the next day). Officer Hartfiel noticed that Ms Henderson was wearing tight pants or leotards, as well as running shoes. Those various items of clothing were fairly clean, despite the dirty state of the covering feedbags she had been wearing. However, the clothing worn by Mr Warner underneath the feedbags, and his pants in particular, were “covered in dirt and really filthy”.
• The results of further and later police investigation of the stolen vehicle and the Debus farm were provided by Sergeant Debrouwer. In particular, as she confirmed, with the assistance of numerous photographs, diagrams and other power point slides:
  • The Vehicle Identification Number of the red pick-up truck found at the Debus farm matched that of the stolen vehicle.
  • When discovered at the Debus farm, the stolen vehicle had been damaged and manipulated in various ways, (some of which already had been noted by Officer Ginn when he first approached the vehicle). This included someone having “punched in” the key lock mechanism of the vehicle’s driver-side door, having smashed in its right passenger door window, (resulting in broken glass inside the vehicle in areas below that window), and having tampered with the vehicle’s ignition switch on the steering column. The vehicle’s front and rear Ontario licence plates also had been removed, before a Michigan licence plate had been placed on the front of the vehicle.
  • On the seat of the vehicle were a number of objects, including multiple pairs of gloves of various kinds, (including cloth and latex gloves), as well as a ball peen hammer with a wooden handle. On the floor of the vehicle’s cabin, in the passenger side foot area, were various objects that included a partially emptied donut box and a plastic bottle of soda pop.
  • Various surfaces inside the vehicle’s cabin, including its various interior control mechanisms, were considered unsuitable for the testing and retrieval of any identifiable fingerprints. Other surfaces, (such as the aforesaid plastic bottle and driver’s door), were tested for fingerprints but yielded none that were identifiable.
  • Even without any treatment or enhancement by the police investigators, clearly visible and aligned fingerprints were found in dirt on the exterior passenger door of the vehicle, near to the exterior handle mechanism of that door, and close to the outer edge of that passenger door when opened. Expert analysis identified, individualized and confirmed, (through a described “double blind” process), that two of those adjacent fingerprints were made by the right middle finger and right ring finger of Ms Henderson. That expert opinion was not challenged at trial. To the contrary, the defence admitted and acknowledged that they were Ms Henderson’s fingerprints, (although it was emphasized that the Crown’s fingerprint expert could not say how long the fingerprints had been on the vehicle).
  • In addition to the stolen vehicle, a number of other vehicles were found at the Debus farm, including the ATV and white pick-up truck and trailer noted above, as well as a Dodge Caravan and Porsche automobile. The white pick-up truck, trailer and Dodge Caravan had also been stolen. Although there was a man’s wallet found inside the stolen white pick-up, containing identification belonging to an individual specifically named at trial, (with the initials M.W.), there was no evidence to indicate whether or not that specified individual had any known connection to the vehicle, (e.g., as its owner), or any known connection to the Debus farm.

12Again, the above findings of fact form the basic context of my further analysis. They emanate almost entirely from the evidence led by the Crown, which in my view went largely unchallenged.

13However, following an unsuccessful defence motion for a directed verdict, Ms Henderson then entered the witness box on her own behalf, and provided testimony that included the following:

• She is a 38-year-old grandmother, with no criminal record, and resides in the Town of Oakville.
• She collects disability insurance from Ontario Works, owing to a “disintegration disorder” affecting her L4 and L5 discs. That disorder affects her ability to walk and run, and also limits her ability to sit or stand for long periods of time. She does not drive, and does not have a driver’s licence.
• On Monday, April 21, 2014, she spent most of the day at her home in Oakville. However, a specifically named female friend, (whom I will describe herein by her initials “J.B.”), then invited Ms Henderson and her then cohabiting male friend, (James or “Jimmy” Warner), to a party J.B. was hosting that evening at J.B.’s home in Guelph, for no particular occasion. Indeed, J.B. not only invited Ms Henderson and Mr Warner to the party in Guelph, but drove from Guelph to Oakville to pick the couple up and bring them back to her party.
• Approximately 20 people were at the party at J.B.’s home in Guelph, and apart from Ms Henderson, all of them (including J.B.) were drinking alcohol. When the party ended, at approximately 3am or 4am on Tuesday, April 22, 2014, Ms Henderson and Mr Warner, along with 2-3 other passengers whom she could not name, then entered a black pick-up truck, with two rows of seating, for a ride that eventually would take the couple back to their home in Oakville with a “designated driver” who had not been drinking.
• Ms Henderson was unable to name or otherwise specifically identify the designated driver of the black pick-up truck. She says she had not previously known him, and that he was simply someone who had been “brought to the party” by one of J.B.’s friends. Ms Henderson could describe the driver only as a “rather tall” and heavyset black man.
• When Ms Henderson and Mr Walker entered that designated driver’s vehicle, she sat in the front seat, while Mr Walker sat in the backseat. Over the course of the next 30 minutes, the driver progressively dropped off the other passengers, leaving Ms Henderson alone with the driver in the front seat, and Mr Warner alone in the back seat, where Mr Warner had removed his shoes, and allowed his wallet to fall out onto the back seat, before assuming a position where he was “kind of lying there”, asleep “with his head back”.
• As the journey continued, the designated driver then tried to touch Ms Henderson inappropriately by reaching for her genital area, at which point she woke Mr Warner and let him know what had happened. Ms Henderson says that Mr Warner and the driver then had a confrontation and quarreled verbally for the next 30 minutes, as the journey continued, at which point the driver stopped and “kicked them out” of his vehicle, leaving them on the side of the road before driving away.
• According to Ms Henderson, she and Mr Warner then found themselves stranded in an unknown location, surrounded by “lots of fields”. Having dressed for an indoor party, they accordingly were not prepared for an extended walk in the prevailing cold weather. Moreover, Mr Warner now had no shoes, (because they had been left behind in the designated driver’s black truck, along with Mr Warner’s wallet). However, they had no choice but to start walking, so they set off and proceeded on foot in the same direction for approximately five hours, before stopping at the Louwagie residence, to speak with “the lady there” and ask her for directions. Ms Henderson said that, approximately five minutes before speaking with Ms Louwagie, she and Mr Warner had stopped into a shed to retrieve feed bags, which they then fashioned into clothing; i.e., wearing them like ponchos and wrapping them around their feet, in an effort to keep warm.
• Ms Henderson confirmed that Ms Louwagie declined to let the couple inside, and suggested that they instead approach a neighbor in a “shop” across the road to obtain directions, after being permitted to use an external electrical outlet at the Louwagie residence in an unsuccessful attempt to charge Ms Henderson’s cellular telephone. (Ms Henderson says she discovered later that her phone actually was broken, and would not have charged or worked in any event that morning, as it had a “death light” on it.)
• When Ms Henderson and Mr Warner crossed the road as suggested, and spoke to the neighbor in the “shed” across from the Louwagie residence, that man provided the couple with “directions to town”, after which Ms Henderson and Mr Warner resumed their walk.
• Ms Henderson says that, when approached by Officer Hartfiel shortly thereafter, the couple “begged” the officer to give them a ride, which he did, taking them into Stratford.
• Ms Henderson was emphatic that, to the best of her memory, she had no dealings whatsoever with the stolen red pick-up truck. She admittedly could not explain how her fingerprints came to be on that stolen vehicle, apart from a suggestion that she had perhaps touched the relevant truck in passing, in a parking lot. However, as far as she was aware, the only pick-up truck she got into or otherwise touched, on April 21 or 22, 2014, was the black pick-up truck driven from the party by the unknown designated driver.

14During the course of my analysis which follows, I will comment further on the extent to which I accept or reject that additional evidence from Ms Henderson, and the extent to which it does or does not give rise to reasonable doubt.

Analysis

15For now, with the above findings, circumstances and evidence in mind, I turn to consideration of the sole charge set forth in the indictment.

ESSENTIAL ELEMENTS

16Again, that charge is laid pursuant to s.354(1)(a) of the Criminal Code, (“the Code”), which deals with possession of property obtained by crime; in particular, “possession of any property or thing”, (in this case a pick-up truck with a value exceeding $5,000), “knowing that all or part of the property … was obtained by or derived directly from … the commission in Canada of an offence punishable by indictment”.

17For me to find Ms Henderson guilty of the offence, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:

i. that Ms Henderson was in possession of the relevant property, (i.e., the vehicle);

ii. that the property (the vehicle) was obtained by a crime;

iii. that Ms Henderson knew the property had been obtained by crime; and

iv. that the value of the property exceeded $5,000.

18In this case, it was not disputed, and indeed was confirmed by an agreed statement of facts filed on consent as Exhibit 1, that the relevant motor vehicle had a value exceeding $5,000, and was stolen, (i.e., taken without the permission of its owner),. from a commuter parking lot in the County of Waterloo, Ontario. The vehicle therefore was taken pursuant to a crime, (motor vehicle theft contrary to s.333.1 of the Code), committed in Canada.

19The Crown therefore clearly has established, beyond a reasonable doubt, the second and fourth of the essential elements of the offence charged against Ms Henderson, set forth above.

20The focus of the proceeding before me therefore was on whether the Crown had proven, beyond a reasonable doubt, that Ms Henderson was in possession of the stolen vehicle and knew that it had been obtained by crime.

GENERAL PRINCIPLES

21Before proceeding with my analysis of whether the Crown has proven the remaining essential elements of the offence beyond a reasonable doubt, I think it helpful to note and remind myself of some of the general principles applicable to the determination of such issues.

22I begin with principles applicable to the various possible modes of participation in an offence, relied upon by the Crown in this case. Those principles include the following:

• Pursuant to s.21(1) of the Code, a person may be party to an offence:
  • as a principal or joint principal by actually committing it;
  • by doing or omitting to do anything for the purpose of aiding any person to commit it; or
  • by abetting any person in committing it.
• As the wording of s.21(1) makes clear, the above methods of participating in an offence are not cumulative requirements but alternatives. Proof of participation in any such way will suffice. Proof of participation in every way, or even more than one way, is not required.
• As a principal or joint principal, a person may commit an offence alone or together with others, whether those other persons are charged and on trial or not. Where a criminal offence is committed by two or more persons, each may play a different part. But despite the fact they are acting together, as part of a joint plan or agreement to commit the offence, each may be found guilty of it.
• As for aiding another to commit an offence:
  • It is not enough that what the aider does or fails to do has the effect of helping the other person commit the offence. The aider must intend to help the other person commit the offence, and actual assistance is necessary.
  • To establish “aiding” in the commission of an offence, it is not enough that a person was simply there when a crime was being committed by someone else, as people are capable of simply being in the wrong place at the wrong time. However, if a person knows that someone intends to commit an offence, and goes to or is present at a place when the offence is committed to help the other person commit the offence, that person is an aider of the other’s offence and equally guilty of it.
  • Aiding relates to a specific offence, in the sense that an aider must intend that the offence be committed, or know that the other person intends to commit it and intends to help that other person accomplish his or her goal. Again, it does not matter, as far as the aider is concerned, whether the person or persons aided is or are also on trial or not.
• As for abetting another to commit an offence:
  • The concept refers to those who encourage others to commit an offence.
  • Abetting requires actual encouragement by words and/or conduct, as well as an intention to encourage the other person to commit the offence.
  • Mere presence when a crime is being committed by someone else will not suffice to constitute abetting. However, if a person knows that someone intends to commit a crime, and goes to or is present at a place to encourage that other person to commit the crime, that will suffice.
  • Abetting also relates to a specific offence, in that the abettor must intend that the other person commit the offence or know that the other person intends to commit it and intends to encourage that other person to do so. Again, it does not matter, as far as the abettor is concerned, whether the person or persons he or she encouraged is or are also on trial or not.

23I turn next to various principles relating to proof of possession, which include the following:

• As emphasized by s.4(3) of the Criminal Code, a person may have property in his or her possession in a number of different ways, including:
  • having it in his or her personal possession;
  • knowingly having it in the actual possession or custody of another person;
  • knowingly having it in any place, whether or not that place belongs to or is occupied by him or her, for the use or benefit of himself/herself or another person; and
  • pursuant to s.4(3)(b) of the Criminal Code, where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, in which case the property is deemed to be in the custody and possession of each and all of them.
• To have personal possession, one must also have control over the property. See, for example, R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531.
• Similarly, possession pursuant to s.4(3)(b) of the Criminal Code imports some measure of control as an essential element. See R. v. Terrence, 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357.
• Control may be established even where the accused handles the illicit property only briefly. See R. v. Fisher, 2005 BCCA 444, [2005] B.C.J. No. 1955 (C.A.). However, the concept of control sufficient to establish possession inherently is wider than manual handling of an object. Indeed, proof of manual handling of an object is not required to establish control sufficient to warrant a finding of possession. See R. v. Mulligan-Brum, [2011] B.C.J. No. 1972 (C.A.).
• Having regard to the above principles, (including the Code’s provisions relating to joint and constructive possession, and alternate modes of participation in an offence), proof of possession of a motor vehicle need not include proof that the accused was driving the vehicle. See R. v. Barnhardt (2001), 2001 BCCA 191, 152 C.C.C. (3d) 480; and R. v. Terrence, supra.

24To the extent the Crown is relying on circumstantial evidence to establish the requisite possession and knowledge of Ms Henderson:

• As noted above, the defence relies on the so-called “rule in Hodge’s case”, which essentially emphasized that a trier should convict on the basis of circumstantial evidence only where the evidence is not simply consistent with guilt, but also inconsistent with any other rational conclusion. There is no question that the “rule” forms part of Canada’s inherited common law. See R. v. Comba, 1938 CanLII 7 (SCC), [1938] S.C.R. 396.
• However, for at least 50 years now, the Supreme Court of Canada also has been emphasizing that the so-called “rule” or direction in Hodge’s case did not add or subtract from the basic requirement that proof of guilt in a criminal case must be established beyond a reasonable doubt. It provided a useful illustration or formula to assist in applying that accepted standard of proof. However, it was nothing more than an elaboration or alternative expression of the reasonable doubt standard, as applied to cases based entirely on circumstantial evidence. In order to base a conviction on circumstantial evidence, the trier must be satisfied beyond a reasonable doubt that the defendant’s guilt is the only reasonable inference to be drawn from the proven facts. If the trier is left in doubt as to whether or not the circumstances are equally consistent with some rational conclusion other than guilt, it is the trier’s duty to give the accused the benefit of the doubt and not convict him or her on the circumstantial evidence standing alone. In other words, if the circumstantial evidence is consistent with a rational conclusion that points to something other than guilt, then reasonable doubt, by definition, must exist. See, for example: R. v. Mitchell, 1964 CanLII 42 (SCC), [1964] S.C.R. 471; R. v. John, 1970 CanLII 199 (SCC), [1971] S.C.R. 781; R. v. Cooper, 1977 CanLII 11 (SCC), [1978] 1 S.C.R. 860; and R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802. For more recent applications of the rule in this province, see, for example: R. v. Hong, [2015] O.J. No. 6376; and R. v. Bobb, [2015] O.J. No. 5334.
• The “rule” in Hodge’s case nevertheless also makes it clear that the case is to be decided on the evidence, and a conclusion alternative to the guilt of the accused must be a “rational” conclusion in the sense that it is based on an inference or inferences drawn from the evidence. No conclusion can be a rational conclusion that is not founded on evidence. Such a conclusion would be a speculative and/or imaginative conclusion, not a rational one. Although the Crown must establish the guilt of the accused beyond a reasonable doubt, that does not mean the Crown must negative every possible conjecture or explanation, not based on evidence before the court, which might be consistent with the innocence of the accused. See, for example: R. v. McIver, 1964 CanLII 248 (ON SC), [1965] 1 O.R. 306 (H.C.), affirmed 1965 CanLII 26 (ON CA), [1965] 2 O.R. 475, affirmed 1966 CanLII 6 (SCC), [1966] S.C.R. 254; and R. v. Torrie, 1967 CanLII 285 (ON CA), [1967] 2 O.R. 8 (C.A.).
• The assessment contemplated by the rule in Hodge’s case must be carried out by examining “the totality of the evidence adduced at trial”. In that regard, although individual items of circumstantial evidence may be explicable on bases other than guilt, it is essential to keep in mind that it is the cumulative effect of all the evidence that must be considered, and which must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof. They are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for conviction. See Cote v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.); R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345; R. v. Uhrig, 2012 ONCA 470, [2012] O.J. No. 3011 (C.A.); and R. v. Bui, [2014] O.J. No. 4003 (C.A.).

25Insofar as part of the circumstantial evidence relied upon by the Crown includes the presence of identifiable fingerprints, I am mindful of the principles emphasized by the Supreme Court of Canada in R. v. Lepage, 1995 CanLII 123 (SCC), [1995] 1 S.C.R. 654, which include the following:

• Whether or not the inference of possession can be drawn from the presence of fingerprints is not subject to any hard and fast rule. Rather, it is a question of fact which depends on all of the particular circumstances of the case and all of the evidence adduced.
• However, an inference of possession may be permissible in the absence of an explanation; e.g., evidence that an accused innocently handled a stolen item. It is not so much that the failure to offer an explanation justifies an inference of guilt. Rather, such a failure may entail the absence of any basis to conclude otherwise.

26With those general considerations in mind, I turn to the specifics of this case, and a consideration of whether the Crown has proven all remaining elements of the s.354(1)(b) charge beyond a reasonable doubt.

APPLICATION

27As noted above, while the key lock of the stolen vehicle’s driver door had been “punched in”, its passenger window also was smashed from the outside, (as evidenced by the glass inside the vehicle).

28I agree with and accept Crown counsel’s argument that the only sensible conclusion is that whoever stole and initially took possession of the vehicle did so by unsuccessfully trying to gain access via the driver’s door, (by punching its lock), before then resorting to entering the vehicle by smashing its passenger door window; e.g., to unlock the vehicle, immediately tamper with its ignition as an urgent priority, before the vehicle could then be driven a considerable distance without the driver having to sit on broken glass and/or being immediately adjacent to an absent door window during prevailing cold and wet weather, (as he or she would have had to do if entry had been achieved by smashing of the driver’s door window).

29I pause to note that, in my view, the reality of the vehicle having been obtained by crime therefore clearly would have been apparent, right after its theft, to anyone standing at or near its passenger door and window. In particular, anyone in that position, after those initial theft measures had been taken, realistically could not have avoided seeing that the vehicle’s passenger window obviously had been smashed in, noting that its ignition system clearly had been tampered with, and drawing the obvious conclusion. (Seeing that the vehicle’s licence plates had been removed might have reinforced that conclusion, but in my view the smashed window and damaged ignition switch on the steering column would have been sufficient to bring the stolen nature of the vehicle home to anyone standing at or near the vehicle’s passenger door window.)

30In my view, the fingerprint evidence clearly places Ms Henderson at the open door of the stolen vehicle between the time it was taken and the time it was recovered. In particular:

• Those fingerprints were found on the exterior of the stolen vehicle’s passenger door, close to its handle mechanism.
• In my opinion, the location and alignment of the fingerprints clearly indicates that they were applied by Ms Henderson raising her hand and gripping or holding the edge of the open passenger door. It seems to me that applying those particular fingerprints, to that particular area of the exterior passenger door surface, in that particular configuration, would have been anatomically impossible and/or unnatural had the door been closed.
• Although the Crown’s fingerprint evidence was unable to say as a matter of physics how long the relevant fingerprints had been on the vehicle, Ms Henderson had no known connection to the vehicle prior to it being stolen, and the fingerprints were located within inherently transitory dirt on the outside of the vehicle. I think the only sensible conclusion is that her fingerprints were applied to the vehicle’s passenger door during the narrow window of time between the taking of the vehicle and its recovery by police. Moreover, in my view, the fact that Ms Henderson happened to be found a short distance away from the stolen vehicle and those fingerprints, (which she must personally have applied to the vehicle), and in a remote rural location far from where the vehicle was taken, provides substantial corroboration for the conclusion that Ms Henderson applied her fingerprints to the open door of the stolen vehicle during the period in which it was stolen. Although defence counsel argued a different view, I think the circumstantial evidence and corroboration in this case is actually stronger than that which justified a conviction in R. v. Wills, 2014 ONCA 178 (C.A.).

31In my opinion, Ms Henderson therefore clearly was standing at the open passenger door of the vehicle during the period in which it was stolen, and as noted above, her observations of the broken window and damaged ignition system would have sufficed to make it clear to her that the vehicle was stolen, if she was not already aware of that.

32Moreover, in my view, she would have had that awareness at a time when she was either in possession of the stolen vehicle as a principal, (e.g., as the person who initially entered and took possession of the vehicle, and/or possessed the vehicle during the period in which efforts were being made to manipulate and hide it), or as someone who was aiding and/or abetting such a principal, (e.g., by opening or holding the vehicle’s passenger door while it was being entered and/or manipulated and concealed).

33Although I have mentioned the possibility of Ms Henderson aiding and abetting another party in possession of the stolen vehicle, I think it worth emphasizing that the only person tied directly to the stolen vehicle by the available evidence is Ms Henderson.

34In particular, it seems to me that suggestions by defence counsel that some other unknown party possessed the stolen vehicle by breaking into it, taking to the Debus farm, and manipulating and concealing it there, along with other stolen vehicles, perhaps while wearing one of the many pair of gloves found in the stolen vehicle, are largely if not entirely based on speculation rather than evidence.

35In that regard, it seems to me that evidence of the ATV chase elsewhere that morning does not provide any evidence to substantiate such theories, as there was absolutely nothing to indicate that the chase commenced on or near the Debus farm, and the testimony of Officer Ginn clearly seems to rule out any such suggestion.

36No individuals were seen or found by the police at the Debus farm that morning, (although someone clearly was manipulating the stolen vehicle by turning off its lights off just as Officer Ginn was approaching), no vehicles were seen or heard leaving the property, and the only suspicious persons found near the property with any connection to the particular stolen vehicle were Ms Henderson, (whose fingerprints were on the vehicle), and Mr Warner, (whose conduct and movements that morning obviously connected him to Ms Henderson in some kind of shared enterprise).

37To the extent the presence of Mr Warner provides an evidentiary basis for suggesting he was a party in possession of the stolen vehicle, Ms Henderson’s acknowledged and demonstrated connection to Mr Warner would reinforce a conclusion that, at the least, she was aiding and abetting him in his possession of the stolen vehicle by opening or holding its passenger door.

38In my opinion, although the above evidence and inferences would be sufficient to establish Ms Henderson’s possession of the stolen vehicle, (as a principal, aider or abettor), as well as her simultaneous knowledge that it had been obtained by crime, those conclusions are reinforced by Ms Henderson’s subsequent conduct on the morning of April 22, 2014.

39In particular, having regard to the evidence as a whole, it seems to me the only sensible conclusion is that Ms Henderson and/or Mr Warner were manipulating the stolen vehicle early that morning, and that both quickly fled the Debus farm, without time to dress appropriately for the prevailing weather conditions, when they saw Officer Ginn’s cruiser approaching the property unexpectedly. Unable to return to the Debus farm because of the subsequent ongoing police presence, the couple then struggled to cope as best they could, (e.g., by covering themselves in feedbags and straw), until they felt sufficiently safe or compelled by circumstances to approach the nearby Louwagie residence for assistance; assistance that would allow them to leave the area, and put as much distance as possible between themselves and the vehicle they knew to be stolen.

40In my view, that is the only rational and sensible explanation for the presence and somewhat bizarre conduct and actions of Ms Henderson and Mr Warner in that relatively remote and rural area on the morning of April 22, 2014.

41In that regard, I should make it clear that I did not believe Ms Henderson’s testimony, and it did not leave me with any reasonable doubt about her guilt, for reasons which include the following:

• There were numerous inconsistencies in the telling of Ms Henderson’s story. In particular, it seemed to me that corrections and revisions frequently were introduced in an attempt to address and remedy logical flaws that otherwise would exist in Ms Henderson’s story. To cite but a few examples:
  • Ms Henderson initially indicated that she had been unable to reach Mr Warner to ask for his assistance with this proceeding, but when pressed in cross-examination about her efforts or lack of efforts in that regard, she claimed to have spoken with him about the matter before then losing contact.
  • Ms Henderson initially said that J.B. would have known who was at the party, but later qualified her statement by indicating that some of the attendees, including the designated driver, were simply friends of J.B.’s friends and unknown to her.
  • During her examination-in-chief, Ms Henderson failed to mention anything about the designated driver having any passengers other than her and Mr Warner. The existence of such passengers, and additional drop-off destinations, was added to Ms Henderson’s narrative only when she was being pressed in cross-examination to explain why she did not realize that she and Mr Warner were not being taken towards their home in Oakville.
  • Ms Henderson initially emphasized in cross-examination that she and Mr Warner had not stopped anywhere at all between being dropped off by the designated driver and arriving at the Louwagie residence. However, when asked to then explain how the couple had come by the feedbags they obviously were wearing, Ms Henderson added that they had stopped into a shed minutes before approaching the Louwagie residence.
• Beyond such troubling inconsistencies, I think Ms Henderson’s account is inherently implausible, especially when one considers the cumulative effect of suggestions that, to me, seem unlikely if not entirely incredible.
• For example, while not impossible, it seems unlikely to me that 20 people would have gathered without any particular reason for a drinking party on a Monday evening, extending well into the early hours of the next morning.
• Similarly, while not impossible, it seems unlikely that, if such an event occurred, the person hosting the gathering at her home in Guelph would have left that home to drive to Oakville and back, (a round-trip journey of approximately 140 km), just to pick up two of her many expected guests.
• For similar reasons, it seems even more unlikely to me that a guest at the party in Guelph, who was not a friend of J.B. but merely a friend of one of J.B.’s friends, and someone who had no prior acquaintance or relationship whatsoever with Ms Henderson or Mr Warner, would have agreed to drive the two complete strangers back to Oakville from Guelph at 4am in the morning, after having dropped off numerous other passengers.
• I also think it completely implausible that, during the first half hour of the alleged journey spent with the designated driver, (when Ms Henderson admittedly was sober and awake in the front seat), and during the second half hour of the journey, (when Mr Warner also apparently was awake), neither member of the couple seemed to notice or complain, (despite numerous passing road signs and markers, let alone familiarity with their home and how to get there), that they clearly were not being driven east from Guelph into the large and developed community of Oakville, but were instead being driven approximately one hour in the entirely opposite direction, heading west into the rural, dark and sparsely populated farm areas of Perth County.
• I similarly find it difficult to believe that a confrontation about an alleged sexual assault would have continued for half an hour before the designated driver, Ms Henderson and Mr Warner came to a parting of the ways.
• Nor do I understand how the designated driver realistically would have been able to force Mr Warner from the rear seat of the vehicle, and out onto a cold and wet country road, without Mr Warner immediately realizing that he was not wearing his shoes and taking just a few moments to take hold of them.
• Similarly, if Mr Warner also left his wallet in the back seat of the designated driver’s vehicle, I find it amazing that Mr Warner and Ms Henderson apparently then made absolutely no efforts to locate and identify the designated driver in the immediate wake of the alleged events of April 22, 2014. (Ms Henderson’s testimony suggested that unsuccessful efforts to identify the driver through J.B. began only after the present charge was laid.)
• In any event, I find it impossible to accept that, after supposedly being abandoned by the designated driver, Ms Henderson and Mr Warner then chose to walk intermittently in the same direction for approximately five hours, along wet and dirty gravel roads, without inadequate clothing to protect them from the prevailing cold and wet weather, with Mr Warner shoeless, and with Ms Henderson suffering from her disability, without their naturally and understandably stopping to seek assistance long before they approached the Louwagie residence at approximately 10:30am. If Ms Henderson is to be believed, she and Mr Warner were entirely innocent victims that night and morning, with Ms Henderson having been the subject of an attempted sexual assault, with Mr Warner having had his wallet taken, and with both Ms Henderson and Mr Warner having been unjustly abandoned in the countryside without appropriate clothing and shelter. And yet, for supposedly five hours, they stopped nowhere to ask local residents for help, or to ask local residents to call for police or other emergency assistance. In that regard:
  • The suggestion that Ms Henderson walked along dirty and wet roads for five hours, before retrieving and donning feedbags for protection five minutes before arriving at the Louwagie residence, is belied by Officer Hartfiel’s observation that Ms Henderson’s shoes and pants were relatively clean when the feedbags were removed prior to the couple being driven into Stratford.
  • Ms Henderson’s claim that the couple passed few if any other residences before coming to the Louwagie farm seems incredible, given the length of their supposed walk, the nature of the area, a number of villages within walking distance, (including Rostock, Gad’s Hill, and Wartburg), and Mr Louwagie’s testimony about numerous other farms in the immediate vicinity of his property.
  • Ms Henderson’s alternative assertion that the couple did not wish to wake and disturb local residents while they were sleeping does not explain why the couple waited until well past dawn, and until 10:30am, before approaching the Louwagie home.
  • Moreover, any explanation for the delay in approaching anyone for assistance does not explain why the requests for help were then limited to asking for directions, and the ability to charge a cellular phone, instead of a request for police or other assistance while the couple waited.
  • In my view, all of the couple’s actions that morning are far more consistent with those of persons who did not want to draw attention to themselves, over the course of many hours, and despite their obvious privations, because they were not innocent and instead had something to hide.
  • On a related note, I was struck in particular by Ms Henderson’s passing comments, highlighted and pursued by Crown counsel in further cross-examination, and which Ms Henderson then was unable to explain, that Jimmy had gotten Ms Henderson into trouble “with all of this” and “everything that’s going on”, and that is was her “fault” that her fingerprints were on the stolen vehicle. If matters transpired as Ms Henderson would have me believe, Mr Warner had done nothing on the evening in question but go to a party with Ms Henderson, and stick up for her in the wake of an attempted sexual assault, before then being subjected to the same blameless abandonment as Ms Henderson by the offending designated driver. Similarly, if Ms Henderson’s account is to be believed, she too did nothing wrong that evening. Her passing comments to the contrary were, I think, an unintended revelation that the actual events of the night in question included some form of non-innocent activity that she wanted to conceal.
  • Finally, on this point, I think it preposterous for Ms Henderson to suggest, as she implicitly does, that her supposed uninterrupted five hour trek with Mr Warner, from an unknown point of abandonment, and pursuing an arbitrarily chosen direction through the dark and remote countryside of Perth County, just happened, by a miraculous coincidence, to bring the couple to a location within a mile or two of a stolen vehicle bearing Ms Henderson’s fingerprints at or near the point of entry.
• When all is said and done, nothing in Ms Henderson’s testimony detracts from the reality that her fingerprints were found on that stolen vehicle, and she herself claimed to have no idea how they came to be there. The most she offered in that regard was a suggestion that she might innocently have touched the vehicle in a parking lot, coupled with a repeated and emphatic denial that she ever shut or opened the vehicle’s door. However:
  • There was no evidence that she had ever touched any such pick-up truck in a parking lot, (let alone during the time in which the vehicle was stolen), which inherently relegates the suggestion to one of pure speculation.
  • Moreover, in my view, and as already suggested by my earlier comments, the location and configuration of Ms Henderson’s fingerprints on the stolen vehicle’s passenger door are clearly inconsistent with a glancing touch by a passing pedestrian. To the contrary, Ms Henderson’s hand would have to have been raised to the area of the vehicle’s door handle. Moreover, the fingers of her right hand would have had to been pressed flat against the outside of the passenger door near its edge, and it seems to me that realistically and naturally could have been done only while holding the edge of the passenger door while it was opened.
  • Finally, even if one were to accept that the fingerprints were innocently applied to the stolen vehicle by Ms Henderson in some distant parking lot, how does one then explain the extraordinary coincidence of that same randomly touched vehicle, taken from Waterloo County, finding its way to the same remote area of Perth County as Ms Henderson, within 24 hours of the vehicle being stolen? In my view, the simple answer is that there is no rational explanation for such a coincidence, apart from Ms Henderson actively participating in possession of the stolen vehicle.

42On the whole, I therefore found Ms Henderson to be a terrible witness. Her account seemed unlikely and far-fetched, her manner of delivering it was flawed and unconvincing, and the account she provided failed to provide any rational innocent explanation for how her fingerprints came to be on the stolen vehicle, or for how she came to be found within a short distance of the stolen vehicle in that relatively rural and remote location, thereby entailing the absence of any basis to reach inferences and conclusions other than those set forth above.

43Of course, pursuant to the considerations emphasized in R. v. W.(D.), supra, my rejection of Ms Henderson’s testimony, and its failure to create any reasonable doubt in my mind, does not mean that she should be found guilty of the crime charged.

44In particular, I must still consider whether the evidence I do accept leaves me with any reasonable doubt as to whether the Crown has proven the essential elements of the offence charged.

45In this case, however, it does not.

46For the reasons outlined above, applying common sense and having regard to all the evidence, I think it clear that Ms Henderson was in possession of the stolen vehicle, or at least aided and/or abetted a person or persons in possession of the stolen vehicle, when Ms Henderson must have known that the vehicle had been obtained by crime.

47Given that the other essential elements of the offence effectively were admitted through the agreed statement of facts, I therefore am satisfied that the Crown has proven, beyond a reasonable doubt, all elements of the s.354(1)(a) offence alleged in the indictment.

Conclusion

48Stand up please Ms Henderson.

49For the reasons set out above, I find you guilty of the single count set forth on the indictment.

50The verdict should be noted and documented accordingly.