






Citation:



R. v. Bugle



Date:
20030108











2003 BCCA 17



Docket:



CA029385





Registry:  Vancouver





COURT OF APPEAL
  FOR BRITISH COLUMBIA





ORAL REASONS FOR JUDGMENT





Before:







The Honourable Mr. Justice Esson





January 8, 2003









The Honourable Madam Justice Southin













The Honourable Mr. Justice Hollinrake















Vancouver,
        B.C.













BETWEEN:





REGINA





RESPONDENT





AND:





DENNY TAYLOR ALLAN BUGLE





APPELLANT






















P. Briggs



appearing
  for the Appellant





B. Bagnall



appearing
  for the Respondent







[1]

HOLLINRAKE, J.A.
:
  This is an appeal from conviction as a party to the offences of breaking and
  entering a dwelling and commit an indictable offence being extortion (s. 348(1)(b)
  of the
Criminal Code
) and "without reasonable justification
  or excuse and with intent to obtain money, did induce Judith Hobbs to sign a
  motor vehicle transfer document, by making threats to injure Sean Hobbs"
  (s. 346(1.1)(b)).  The appellant was also charged that he "did carry or
  have in his possession a weapon, namely a baseball bat, for a purpose dangerous
  to the public peace or for the purpose of committing an offence" (s.
  188(1)).

[2]

The reasons for judgment of the convicting judge
  are short and to the point and I set them out here in their entirety:

[1]  In the early evening of February 9, 2001,
    three men attended at 3179 Oriole Drive, Westbank, British
    Columbia, a residence occupied by Mr. Sean Hobbs, his
  wife, Judith Gillian Hobbs, and their four children.  The residence is one
  of only two on a dead-end street in the Glenrosa area of Westbank.



[2]  Two of the three men were known to Mr.
  Hobbs, namely, Darryle Sedore and Robert James.  The third man was not known
  to either of the Hobbs.  The third
  man, when first seen by Mr. Hobbs outside the door of the residence, was
  holding a baseball bat.



[3]  Without invitation, the three men entered
  the residence.  Mr. Sedore was very angry and demanded money from Mr. Hobbs. 
  Over a period that may have lasted as long as thirty minutes, Mr. Sedore
  demanded money from Mr. Hobbs and demanded that Mr. Hobbs sign a transfer
  document for a vehicle as security for the money.  Matters came to a head when
  Mr. Sedore, in a loud and aggressive manner, demanded that Mr. Hobbs complete a
  transfer document or he would, "break Mr. Hobbs' fucking jaw."  Throughout
  this time, Mr. James and the third person were standing in close proximity
  to Mr. Sedore and Mr. Hobbs and Mrs. Hobbs.



[4]  Mr. Hobbs started to complete the transfer
  form as demanded by Mr. Sedore, and Mrs. Hobbs filled in the seller's address
  and signed the form.  She asked and was allowed to go to the vehicle, which was
  a van, and removed personal items from it.  On her return from the van, she
  provided the keys for the van to Mr. Sedore, and the three men walked up the
  driveway toward the van.  Mr. or Mrs. Hobbs closed and locked the door, and
  Mr. Hobbs called 9-1-1.  While Mr.
  Hobbs was on the phone with the 9-1-1 operator, Mr. James returned to the residence
  seeking jumper cables as the van would not start.



[5]  Within ten minutes of the three men first
  leaving the residence, several police cars converged at the scene and found
    Mr. James and Mr. Sedore standing beside the Hobbs' van at the bottom of
    the hill, which is Oriole
    Drive.  They noted a red truck coming slowly down the
  hill.  The red truck was ordered to stop, and its sole occupant was ordered to
  get out and lie on the ground.  The occupant of the red truck was the accused,
  who was also the registered owner of the red truck.  No other vehicles were
  found on Oriole.



[6]  When the accused was searched, after he
  had laid on the ground as required and then been arrested, the transfer
  document that Mrs. Hobbs had signed was found in his back pants' pocket.



[7]  Neither Mr. Hobbs nor Mrs. Hobbs could
  identify the accused from a photographic line up shown to them on February
  10, 2001.  Mr. Hobbs has made two
  in-court identifications, one at the preliminary hearing and one at trial.  Neither
  of those identifications, which could only be termed to be relatively weak
  identifications, would be sufficient to support a conclusion beyond a
  reasonable doubt that the accused was the third man at 3179
  Oriole Drive on February 9, 2001.



[8]  However, there is considerable
  circumstantial evidence in this case.  Within minutes of the 9-1-1 call, the
  accused was in the immediate area where the Hobbs' van was found,
  together with Sedore and James.  No one else was located in that area with
  the exception of the neighbour to the Hobbs, who was called and testified at
  this trial.



[9]  The accused was driving a truck and was
  the registered owner of a truck which Mr. Hobbs had previously seen Mr. James
  and Mr. Sedore in, and which Mr. Hobbs assumed belonged to Mr. James.  The
  accused had the transfer document in his back pocket.



[10] Three men were in the Hobbs' residence,
    and three men were arrested within minutes in the immediate vicinity of the Hobbs'
  residence.



[11] The accused gave the police an address on
  the Lower Mainland, which was the same address shown on a notice of claim filed
  approximately six weeks later, naming Mr. Sedore as claimant and Mr. Hobbs
  as defendant.



[12] The residence, as I have said, is on a
  dead-end street occupied by only two houses.



[13] The van had not started and it was found
  with its hood up and with jumper cables lying on the ground in front of it.



[14] The only other resident of Oriole Drive,
    the neighbour of the Hobbs, who I have indicated was called,
  did not suggest in her evidence that she knew the occupant of the red truck.



[15] I have carefully considered the evidence
  before me.  I have given particular consideration to the evidence of Mr. and
  Mrs. Hobbs, including their inability to identify the accused, within
  twenty-four hours of the events in question, as the third man who was at, and
  then in, their residence.  I am satisfied that both Mr. and Mrs. Hobbs were
  credible witnesses and that their inability to recount all of the details of
  the night of February 9, 2001, is understandable, given the circumstances they
  found themselves in.  Having carefully considered all of the evidence, I am
  satisfied that the Crown has proven beyond a reasonable doubt that Mr. Bugle,
  the accused in this case, was the third man who initially stood outside the
  Hobbs' home holding a baseball bat and then entered their home on February
  9, 2001.



[16] Mr. Bugle, would you stand up, please?  Consequently,
    on the evidence before me, I find you, Mr. Bugle, guilty as charged on Counts
    1 and 3, as a party to the offence pursuant to s. 21(1)(b) of
  the
Criminal Code
.  I also find you guilty of Count 5 on the
  Indictment.





[3]

Both James and Sedore had been convicted prior
  to the trial of the appellant.

[4]

At the appellant's trial no evidence was called
  on his behalf.

[5]

The errors asserted by the appellant are:

That the learned trial judge erred in finding
  that there was 'some' evidence of identification in finding the appellant was a
  party to the offences at bar.



That the learned trial judge erred in finding
  that both the direct and circumstantial evidence of identification that the
  appellant was a party to the offence of extortion, break and enter with intent,
  and possession of a weapon was sufficient for conviction;



That the learned trial judge erred in finding
  that each of the requisite elements of each of the offences had been proved
  beyond a reasonable doubt.

[6]

The position of the Crown with respect to these
  asserted errors is that on the evidence it cannot be said the trial judge fell
  into any error whatever.

[7]

The appellant asserts the verdict is an
  unreasonable one and not supported by the evidence.  In my opinion, on the
  evidence before the judge, it was open to her to conclude as she did.

[8]

The appellant says the trial judge was in error
  in concluding that the line-up evidence and the in-court identification by
  Mr. Hobbs was "relatively weak" and insufficient to reach a conclusion of proof
  beyond a reasonable doubt and then turning to the circumstantial evidence to
  conclude the Crown had proved its case on this issue.  The appellant says the
  judge ought to have concluded that the identification evidence was not capable
"of any evidential weight whatever."  Counsel says the only evidence
  the judge should have considered was the circumstantial evidence.

[9]

With respect I cannot agree.  I think the judge
  was entitled to consider on the issue of identification the evidence of Mr.
  Hobbs, as weak as it was standing alone.  The judge was obliged to consider all
  the evidence in coming to her decision.  In my opinion, it would have been
  in error for her to have concluded that one area of evidence did not meet the
  requirement of proof beyond a reasonable doubt and thus reject it out of hand
  without further consideration in reaching her conclusion as to whether or not
  the Crown had proved its case.

[10]

I am satisfied it was open to the judge to conclude as she did on
  this identification issue.

[11]

A
    further issued raised by the appellant is that the judge erred in concluding
    that each of the requisite elements of each offence had been proved
  beyond a reasonable doubt.  In particular, the appellant asserts that "the
  Crown must prove that the appellant had knowledge of what his associates (in
  this case Sedore and James) were intending to do" citing
R. v. Low
[1984]
  B.C.J. No. 511 (Q.L.) (B.C.C.A.).  The appellant says "the evidence
  is unreliable and contradictory as to whether or not [the appellant] had any
  meaningful participation in the extorting of the Hobbs's property when he entered
  their house."

[12]

The trial judge did not deal with this submission in her reasons no
  doubt because at trial counsel for the appellant conceded that if the judge
  found that he was one of the three individuals at the house he was guilty of
  all offences.

[13]

I
    think that concession was properly made by defence counsel at trial.  What this trial was all about was identification.  The Crown responds
  to this argument by saying that the only reasonable inference to be drawn from
  the evidence is that the appellant along with James was "present in order
  to reinforce Sedore's threats to do Hobbs harm if he did not satisfy Sedore's
  demands."

[14]

I
    agree.  I have no hesitation in concluding that on the evidence it
  was open to the judge to infer that as the Crown puts it, the appellant
"was either acting in aid of Sedore or had formed an intention in common
  with Sedore (and James) to carry out an unlawful purpose, which purpose was
  carried."

[15]

I would dismiss the appeal.

[16]

ESSON, J.A.
: I agree.

[17]

SOUTHIN, J.A.
: I agree.

[18]

ESSON, J.A.
: The appeal is dismissed.





The Honourable Mr. Justice Hollinrake





