



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Vidal,









2018 BCCA 21




Date: 20180119

Dockets: CA43503;
CA43735



Docket:
CA43503

Between:

Regina

Respondent

And

Curtis Wayne Vidal

Appellant

and

Docket:
CA43735

Between:

Regina

Respondent

And

Travis Carl
Richard Soderstrom

Appellant






Before:



The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Harris

The Honourable Madam Justice Fenlon




On appeal from:  An
order of the Supreme Court of British Columbia, dated May 26, 2015 (
R. v. Soderstrom
,
2015 BCSC 2574, Chilliwack Docket 62249-2).




Counsel for the Appellant Curtis Wayne Vidal:



W. Jessop





Counsel for the Appellant Travis Carl Richard Soderstrom:



C. Muldoon





Counsel for the Respondent:



J. Dickie





Place and Date of Hearing:



Vancouver, British
  Columbia

November 10, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 19, 2018









Written Reasons by:





The Honourable Madam Justice Fenlon





Concurred in by:





The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Harris








Summary:

The appellants appeal from
convictions arising out of a home invasion. The central issue at trial was
identification of the intruders. The trial judge relied largely on the
eyewitness identification evidence of one of the complainants, supported by
evidence of a post-offence conversation tending to connect Mr. Vidal to
the offences. The appellants allege the trial judge (1) misapprehended the
evidence of the witness who overheard Mr. Vidal discussing the incident,
(2) misapplied the law on recognition evidence, and (3) rendered an
unreasonable verdict unsupported by the evidence. Held: appeals dismissed. The
judge properly applied the law and came to a reasonable verdict supported by
the evidence.

Reasons for Judgment of the Honourable
Madam Justice Fenlon:

Introduction

[1]

The appellants, Travis Carl Richard Soderstrom and Curtis Wayne Vidal,
appeal convictions for breaking and entering, assault, robbery and use of an
imitation firearm while committing a robbery. The convictions were pronounced
May 26, 2015 following a seven-day judge alone trial. The charges arose out of
a home invasion. The principal issue at trial was identification of the
intruders.

Background

[2]

The offences occurred on the night of December 16, 2013, shortly before
9:00 p.m. Two men and a woman entered the second floor apartment of Kyle Nelmes
and Brendan Wilson on McIntosh Drive in downtown Chilliwack, British Columbia. Mr. Wilson
was home at the time with two friends, Nick Gauthier and Brittany Martens. One
of the male intruders who appeared to have a handgun asked for Kyle. Mr. Gauthier
fled the apartment by leaping from the balcony, and ran to a nearby building
where he telephoned 911.

[3]

Shortly thereafter Mr. Nelmes returned home from work and
encountered the intruders. The gunman asked if he was Kyle and when Mr. Nelmes
said he was, the gunman asked where the stuff was. Mr. Nelmes said he did
not know what the gunman was talking about, at which point the gunman struck
him in the face, causing Mr. Nelmes to fall to the floor. Ms. Martens
helped him to his feet.

[4]

Mr. Nelmes was then taken to his bedroom where he was forced to open
a safe in the closet. At some point while this was taking place, Ms. Martens
took a tea towel to Mr. Nelmes in the bedroom so he could wipe the blood
from his face. The gunman, who was at the safe in the closet, turned to look at
her and they had a brief conversation which Ms. Martens described in her
testimony as follows:

Q         What did you do?

A          I gave Kyle the tea towel, and the gunman had
looked at me, and I cant remember, quote, word for word, what he had stated,
but something about me having to keep an eye on him. And my response to that
form of statement he had made to me was, No, I just want to make sure that my
fucking friends are okay.

Q         Sorry, just trying -- what were the words you
said?

A          Im just trying to make sure that my fucking
friends are okay.

THE COURT:  Just a second. I may have -- I may have got
something wrong, the first part of that wrong, because the note I made is he
some -- he said something about you having to keep an eye on him, referring to
Kyle.

A          No. The gunman was looking -- when I had
entered the room, he had turned to look at me, as Im standing there staring at
the two guys in there. He had made a comment about, What, do you have to keep
an eye on me? Some form of statement in that -- in that aspect.

THE COURT: Referring to himself?

A          Mm-hmm.

MR. WALDOCK:

Q         Sorry, thats a yes?

A          Correct. Yes.

Q         At this -- at this time, what, if anything,
could you see of his hands?

A          I couldnt.

Q         What do -- what do you recall next?

A          I had made eye
contact with the gunman, definitely felt a pressing cold feeling take over me.
Kyle had said, Just shut up, stop, get out of here. Like, Leave it alone.
So I left and proceeded back to the kitchen.

[5]

At another point, Ms. Martens told the second male intruder that
she knew him. He responded that he did not know her. At trial Ms. Martens
testified that she recognized the second intruder as Travis Soderstrom because
she had spent some time with him when she was about 13 years old, about 10
years before trial.

[6]

The intruders took $700 to $800 in cash, Mr. Nelmes laptop, his
spare set of keys for his car and motorcycle, a watch, a ring and a cell phone.
They then left the apartment.

[7]

The police responded to the 911 call within about five minutes but the
intruders had already fled. The complainants provided the police with
descriptions of the male intruders and Ms. Martens informed the police
that she believed she recognized one of them and provided Travis Soderstroms
name. Based on this information, the police focused their investigation on Mr. Vidal
and Mr. Soderstrom.

[8]

Within hours, photo lineups were presented to the complainants. Mr. Gauthier
had fled the apartment before being able to see the intruders faces so was
unable to provide any descriptions and was not shown the photo lineups. Ms. Martens
positively identified photographs of Mr. Vidal and Mr. Soderstrom and
later identified them both at trial, specifying that she recognized Mr. Vidal
as the gunman. Mr. Wilson was unable to identify the intruders from the
photo lineup. He testified at trial that he had no memory of what the intruders
looked like as he had been trying to avoid looking at them throughout the
incident. Mr. Nelmes was unable to identify the intruders in the
photographs and he also testified at trial that he did not think either male
intruder was in the courtroom.

[9]

Ms. Koehler, an acquaintance of Mr. Vidal, provided further
circumstantial evidence. She testified that on December 20, 2013, about four
days after the offences occurred, Mr. Vidal drove her and other friends to
a building in the area where the home invasion had taken place. She testified
to overhearing a conversation between Mr. Vidal and a Mr. Schooner
concerning some guy doing a swan dive off the third floor of the building.
She said that when they arrived at the building, Mr. Vidal had a key fob
which he pressed to see if he could hear a vehicle. When they heard nothing, they
drove off.

At trial

[10]

The judge began by correctly instructing himself on the law regarding
eyewitness identification. He reviewed at length the decision in
R. v. Hay
,
2013 SCC 61, with specific reference to the well-recognized frailties of
eyewitness identification. The judge also considered the decision of this Court
in
R. v. Smith
, 2011 BCCA 362, in which Madam Justice Neilson reviewed
the need for caution in considering identification evidence:

[28]      It is well-known it may
be dangerous to convict an accused solely on evidence of visual identification,
and that a fact-finder must thoroughly and cautiously examine such evidence
before relying on it. The principles governing the assessment of such evidence
were set out by the English Court of Appeal in the seminal case of
R. v.
Turnbull
(1976), 63 Cr. App. R. 132, [1976] All. E.R. 549 at 137. The Lord
Chief Justice observed the need for caution is rooted in the fact a witness who
appears convincing may nevertheless be mistaken in his or her identification of
the accused. He listed the circumstances a fact-finder should examine in
assessing such evidence, including the duration and ease of the witness
observation, the extent of any earlier dealings between the witness and the
accused, the time elapsed between the incident and any subsequent
identification of the accused by the witness, and whether there was any
material discrepancy between the description of the assailant given by the witness
and the appearance of the accused. The Chief Justice also acknowledged that recognition
may be more reliable than identification of a stranger, but warned the
fact-finder in such cases must nevertheless be aware that mistakes in
identifying an accused may still occur. The key is the quality of the
identification evidence.

[11]

The judge considered the position of the parties, summarizing the
appellants position as follows:

[87]      Mr. Vidal submits that Ms. Martens
identification is not reliable and is not supported by other credible evidence.
He submits that the evidence of Ms. Koehler does not assist the Crown. He
submits that the photo lineup was unfair and that little weight should be given
to it. He also submits that Ms. Martens evidence is contradicted by the
evidence of Mr. Nelmes and that Mr. Wilson failed to make a positive
identification.

[88]      Mr. Soderstrom submits that Ms. Martens
identification of Mr. Soderstrom is not reliable. He submits that Ms. Martens
attention throughout the incident was focused on the gunman, and that she had
little opportunity to observe the other male intruder and was unable to provide
much of a physical description of him to the police. Mr. Soderstrom argues
that Ms. Martens apparent growing certainty as to the identity of Mr. Soderstrom
ought to be of concern and cause doubt as to her reliability.

[89]      Mr. Soderstrom argues that initially Ms. Martens
thought she recognized the other intruder as one of the Soderstrom brothers
whom she had known, but was uncertain which one. When presented with a photo
pack containing the photograph of Travis Soderstrom but no photograph of the
brother Dillon Soderstrom, she had in her mind that the subject resembled the
Soderstroms and all she had to do was find a Soderstrom amongst the photographs
and her job was done.

[90]      Mr. Soderstrom
also argues that the other photos in the pack lacked the only distinguishing
characteristic that Ms. Martens mentioned to the police, large ears, and
that the photo pack was therefore not fairly representative. Mr. Soderstrom
submits that Ms. Martens eyewitness identification is not sufficient
evidence upon which to found a conviction and there is no corroborating
evidence regarding Mr. Soderstrom.

[12]

The judge concluded the photo packs were fairly prepared and presented.
He then turned to his assessment of the weight to be given to the
identification evidence. The judge found Mr. Wilsons evidence to be neutral
because he did not want to become involved and deliberately looked away from
the intruders, only noticing the gunmans tattoo. As for Mr. Nelmes, the
judge noted he had been struck in the face within a minute of entering the
apartment, was bleeding, had a swollen face, and was in shock. He said:

[103]    At trial, Mr. Nelmes
testified that he did not get a particularly good look at the gunmans face. In
cross-examination, Mr. Nelmes did agree that at the preliminary inquiry he
testified that he got a clear look at the gunmans face. Mr. Nelmes was
unable to make any identification during the photo lineup procedure. By the
time of trial, his inability to identify anyone had grown and he was certain
that the two accused in the prisoners dock were not the two intruders.
However, the trial was 16 months after the incident. This is unlike the
evidence of Ms. Martens who made a positive identification of both
suspects within hours of the incident.

[13]

The judge was evidently impressed by Ms. Martens ability to
identify the intruders:

[104]    Based on her demeanour in the witness box, Ms. Martens
struck me as a woman who is not easily shaken by traumatic events. Rather, she
is able to maintain her composure under stressful situations. My impression is
reinforced by the fact that she was able to go to the aid of Mr. Nelmes by
taking him a cloth for his bleeding face when he was in the bedroom, rather
than remain in the other room away from the male intruders.

[105]    While Ms. Martens
may only have had a couple of minutes or so to observe the gunman, the lighting
was good and she was unimpaired by any drugs or alcohol. In the bedroom
particularly, she had the opportunity to look the gunman directly in the face
when he turned and asked her whether she was keeping an eye on him, to which
she replied that she was making sure her friends were okay.

[14]

The judge addressed inconsistencies and discrepancies in Ms. Martens
evidence:

[110]    There are some aspects of Ms. Martens
testimony where there are inconsistencies or discrepancies. For example, she
testified that Mr. Nelmes owned a champagne-coloured BMW, whereas from the
photograph of it in evidence, it appears white. In her evidence in trial, she
testified that after the incident and before the occupants gave their statements
to the police, there was no discussion among them. In her statement to the
police, at one point she said, Im worried that if they know who I am or
whatever, because everybody is saying like we are talking back and forth to our
friends right now. She maintained her evidence that there was no discussion,
but could not explain that discrepancy.

[111]    There is some uncertainty, as I have indicated, when
the two male intruders went to the bedroom and whether Ms. Martens went to
the bedroom once or twice. However, Ms. Martens is certain that she saw
both of the male intruders in the bedroom at some point.

[112]    Ms. Martens evidence about how the four people
got from where they had eaten dinner to the apartment differs from that of some
of the other witnesses.

[113]    It is my view, however,
that the foregoing differences in evidence and apparent discrepancies are
understandable in the circumstances, are not particularly material, and do not
go to the heart of the reliability of her evidence concerning the identification
of the accused.

[15]

At trial, Mr. Soderstrom emphasized the discrepancy between Ms. Martens
testimony in chief and her prior statements to the police and at the
preliminary inquiry as to how she knew Mr. Soderstrom. He also emphasized
that when she gave her statement to the police she was not certain that he was
the intruder, but was rather 100% certain the intruder was 
a
Soderstrom.

[16]

The judge acknowledged the discrepancy in Ms. Martens evidence
over time as to how she had met Mr. Soderstrom. He concluded, however,
that the fact that she undoubtedly knew him was more significant than
how
she knew him. As for Ms. Martens initial uncertainty about whether it was
Travis Soderstrom or his brother in the apartment, he said:

[120]    When Ms. Martens recognized Mr. Soderstrom
in the apartment, she may have been less than certain which Soderstrom brother
it was, because they look very much alike, but she was sure it was one or the
other of them. The evidence concerning Dillon Soderstroms whereabouts at the
time of the offences excludes him as a suspect.

[121]    I am satisfied that the
man Ms. Martens recognized on the night of the offences was Travis
Soderstrom.

[17]

The judge also considered the circumstantial evidence of Ms. Koehler
that tended to connect Mr. Vidal to the offences, concluding:

[125]    While this
circumstantial evidence on its own does not provide a terribly strong basis to
draw an inference connecting Mr. Vidal to the crimes, it is nonetheless
some additional evidence that contributes to the weight of the eyewitness
identification.

[18]

Ultimately, the judge concluded that taken as a whole, the evidence
satisfied him that the Crown had proved beyond a reasonable doubt that Mr. Vidal
was the gunman and Mr. Soderstrom was the other male intruder. The judge specifically
noted that he did not have a reasonable doubt as a result of Mr. Wilsons
inability to identify the intruders and Mr. Nelmes evidence at trial that
he did not believe the accused were the intruders.

On appeal

[19]

Mr. Vidal and Mr. Soderstrom each raise two grounds of appeal
particular to them and one ground of appeal in common. Those grounds can be
stated as follows:

1.       Mr. Vidal
contends the judge erred by misapprehending the evidence of Ms. Koehler,
specifically whether it was Mr. Vidal or Mr. Schooner who commented
on the swan dive;

2.       Mr. Soderstrom
contends the judge misapplied the law on recognition evidence; and

3.       Both
appellants contend the judge erred in assessing the eyewitnesses respective
abilities to identify the intruders, rendering the verdict unreasonable and
unsupported by the evidence.

I will address each ground of appeal in turn.

1.       Did the judge misapprehend Ms. Koehlers evidence?

[20]

Ms. Koehlers testimony provided some circumstantial evidence
corroborating Mr. Vidal as one of the perpetrators. She said that four
days after the robbery, during a car ride, Mr. Vidal and Mr. Schooner
described what seemed to be Mr. Gauthiers swan dive from a building on
McIntosh Drive.

[21]

Mr. Vidal submits that while Ms. Koehler gave evidence that Mr. Vidal
and Mr. Schooner had a conversation concerning someone doing a swan dive
off the third floor of the building, she did not specify that
Mr. Vidal
talked about that event. He contends therefore that the judge erred when he
concluded the conversation amounted to circumstantial evidence against Mr. Vidal.
I would not accede to this ground of appeal.

[22]

Ms. Koehler testified that Mr. Vidal and Mr. Schooner
both
described the swan dive. The full extract of Ms. Koehlers testimony
about the conversation she overheard reads as follows:

Q         Who was in the vehicle?

A          Curtis [Vidal] and Ashley [Mercier] were in
the front seats, and me and Ben [Schooner] were in the back seat.

Q         During that drive, do you recall the
conversation?

A          Yeah, a little bit of it.

Q         Well, what was the conversation?

A          Just about a guy doing a swan dive out of a
building on McIntosh Drive.

Q
Who was talking about this
?

A
Curtis and Ben
.

THE COURT: Just give me a moment. A guy doing a swan
dive?

A          Off the third floor balcony.

THE COURT: Of the third floor of?

A          McIntosh Manor.

MR. WALDOCK:

Q
Who -- who described that
?

A
Curtis and Ben.

Q         Did either of them say who was present?

A          No.

[Emphasis added.]

A joint discussion of this kind is admissible against
its participants even if the witness does not specify precisely who said what:
R.
v. Nornberg
(1994), 41 B.C.A.C. 208.

2.       Did the judge misapply
the law on recognition evidence?

[23]

Mr. Soderstrom contends the judge misapplied the law on recognition
evidence as stated by Justice Laskin in
R. v. Spatola
, [1970] 3 O.R. 74 at
82 (C.A.):

Bare recognition unsupported by
reference to distinguishing marks, and standing alone, is a risky foundation
for conviction even when made by a witness who has seen or met the accused
before. Of course, the extent of their previous acquaintanceship must have a
very important bearing on the cogency of the identification evidence, as will
the circumstances in which the alleged recognition occurred. Where some
distinguishing marks are noticed and later verified, there is a strengthening
of credibility according to the nature of such marks. But the initial issue of
the caution with which identification evidence must be received, particularly
where it is the unsupported evidence of one witness, remains;

[24]

Mr. Soderstrom submits the judge in the present case focused on
resolving the discrepancies in Ms. Martens evidence as to how she knew
him and failed to consider the strength of their association, how long ago that
association had occurred, and Ms. Martens inability to recall specific
details about Mr. Soderstroms appearance.

[25]

Mr. Soderstrom submits further that Ms. Martens was doing
nothing more than identifying a photograph of someone she knew from her past  an
error that could have been avoided if a photo of Mr. Soderstroms brother
Dillon had also been included in the photo pack.

[26]

In my view, the
judge was aware of and considered all of these aspects of Ms. Martens
evidence. First, he expressly referred to Ms. Martens knowing one of the
intruders was a Soderstrom but not being sure if it was Travis or Dillon. The
judge responded to the suggestion that Dillons picture should have been
included by asking counsel whether this would have mattered, because the
brothers faces were remarkably similar. Mr. Soderstrom was before the
judge in person and the judge had a photograph of Dillon Soderstrom. There was
no suggestion at trial that Dillon was the intruder and the evidence of his
whereabouts on the night of the offences excluded him as a suspect.

[27]

Second, the judge referred to Ms. Martens evidence from the
preliminary inquiry that she had known Mr. Soderstrom 10 years ago (at para. 116)
and that she had a brief teen crush on him (at para. 118). Further, Ms. Martens
was never challenged on her evidence that she had seen and recognized Mr. Soderstrom
in the community once or twice and that he had not changed in appearance since
she had known him.

[28]

Finally, I note that prior acquaintance is simply one factor in
assessing the weight to be given to identification evidence. The judge
addressed the prior acquaintance of the appellant and the witness, but also
considered the lighting, Ms. Martens level-headedness, and the fact that
she was not impaired by drugs or alcohol.

[29]

In summary on this ground of appeal, I am of the view that the judge did
not misapply the law on identification evidence.

3.

Did the judge
err in assessing the eyewitnesses identification evidence, rendering the verdict
unreasonable or unsupported by the evidence?

[30]

The appellants both challenge the reasonableness of the verdict on the
basis that the judge failed to give proper effect to Mr. Nelmes evidence
in court that the appellants were not the intruders. Mr. Soderstrom
further challenges the reasonableness of the verdict on the basis that the
judge gave too much weight to Ms. Martens evidence.

[31]

Under s. 686(1)(a)(i) of the
Criminal Code
, this Court may
set aside a verdict on the ground that it is unreasonable or cannot be supported
by the evidence. The test to determine whether a verdict is unreasonable or
unsupported by the evidence is set out in
Corbett v. The Queen
, [1975] 2
S.C.R. 275 and
R. v. Yebes
, [1987] 2 S.C.R. 168, which provides at 186:

The Court must determine on the
whole of the evidence whether the verdict is one that a properly instructed
jury, acting judicially, could reasonably have rendered. While the Court of Appeal
must not merely substitute its view for that of the jury, in order to apply the
test the Court must re
‑
examine
and to some extent reweigh and consider the effect of the evidence.

[32]

I turn first to the assessment of Mr. Nelmes evidence. The judge
squarely addressed Mr. Nelmes inability to identify either of the
appellants in the photo lineup procedure, as well as his certainty at trial
that the two accused in the prisoners dock were not the two intruders (at para. 103).
The appellants challenge the judges finding that Mr. Nelmes evidence was
explained by the fact that he had not clearly seen the intruders faces. They
argue to the contrary that Mr. Nelmes spent the most time with the
suspects and had the best opportunity to view them in close quarters.

[33]

However, Mr. Nelmes testified that he never stood face-to-face with
the intruders and never really looked at either of their faces. In
cross-examination when it was suggested to him that he got a good look at the
gunmans face, Mr. Nelmes replied not particularly. When it was put to
him that he looked at both the intruders, Mr. Nelmes replied that he glanced
at them.

[34]

The judge found that Mr. Nelmes was struck in the face within a
minute or less of entering the apartment, and that the blow knocked him over
and caused his face to swell and bleed around one eye. He found that, as a
result of the blow, Mr. Nelmes was in shock, unable to see well, and under
a lot of stress. He found it understandable in such circumstances that Mr. Nelmes
main concern was complying with the demands of the intruders as quickly and
obediently as possible, so that he would not suffer more serious injuries or
worse, rather than trying to observe and make a mental note of what the
intruders looked like (at paras. 101-102).

[35]

The judge observed Mr. Nelmes testify. His findings of fact were
supported by the evidence and are entitled to appellate deference.

[36]

I turn next to Mr. Soderstroms challenge to the weight the judge
gave to Ms. Martens evidence. He argues she was an unreliable eyewitness
and that her evidence was not sufficient to ground a conviction.

[37]

Mr. Soderstrom points out that Ms. Martens was unable to
testify as to any distinguishing features of the other intruder, describing him
as very tall, lean and having a thinner build  a description so vague
and generic that it could not be relied on to identify him. He further submits
that Ms. Martens only had a brief and limited opportunity to look at the
intruders, given she was in their presence for a total of two minutes.
Moreover, during that time he points out that she agreed she was not focused on
the second intruder.

[38]

Mr. Soderstrom submits that Ms. Martens view of the intruders
amounted to nothing more than a momentary glance. He submits this was an
emotionally charged situation with a brief opportunity to view the intruders  exactly
the set of circumstances the bulk of judicial authority warns triers of fact to
be cognizant of given the inherent frailties of identification evidence
arising from the psychological fact of the unreliability of human observation
and recollection:
R. v. Sutton
, [1970] 2 O.R. 358 at 368 (C.A.).

[39]

In my view, the judges reliance on Ms. Martens evidence did not
result in an unreasonable verdict. He assessed her evidence carefully. After
observing that she was a woman who [was] not easily shaken by traumatic
events and maintained her composure in stressful situations, he rejected the
suggestion that she did not have a good opportunity to look at the gunman,
saying:

[105]    While Ms. Martens
may only have had a couple of minutes or so to observe the gunman, the lighting
was good and she was unimpaired by any drugs or alcohol. In the bedroom
particularly, she had the opportunity to look the gunman directly in the face
when he turned and asked her whether she was keeping an eye on him, to which
she replied that she was making sure her friends were okay.

[40]

The judge stated that Ms. Martens attention was less focused on
the other intruder, but concluded she had sufficient time to observe the other
male in order to recognize him from a past association (at para. 109).
Again, there was evidence to support these findings. Ms. Martens
description of engaging in conversation with the gunman in the bedroom, and directly
looking at him, has been set out earlier in these reasons. When the gunman and
the second intruder first entered the apartment, Ms. Martens said that the
gunman was staring directly at her and she backed away from the door. After
the gunman and Mr. Nelmes went to Mr. Nelmes bedroom, Ms. Martens
remained in the dining area facing toward the kitchen where the second intruder
stood and she spoke directly to him, asking him why he was doing this. The
second intruder responded by denying that he knew her. Ms. Martens
testified that she was looking at the second intruder during this exchange. Mr. Soderstroms
assertion that Ms. Martens had a mere glance of the intruders is not
consistent with the evidence at trial.

[41]

In my view, the appellants have not demonstrated that the trial judge
erred in his reasoning or that his verdict was unsupported by the evidence. His
conclusion that the appellants identification was proven beyond a reasonable
doubt was a verdict that a properly instructed trier of fact, acting
judicially, could reasonably have reached. Accordingly, I would not accede to
this ground of appeal.

[42]

In the result, I would dismiss both appeals from conviction.

The
Honourable Madam Justice Fenlon

I AGREE:

The Honourable
Madam Justice Kirkpatrick

I AGREE:

The Honourable
Mr. Justice Harris


