R. v. Cox

2019 BCSC 499 R. v. Cox IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Cox, 2019 BCSC 499 Date: 20190404 Docket: 27145 Registry: Vancouver Regina v. Harinam Cox, Shamil Ali, Gopal Figueredo, Erlan Acosta, Ellwood Bradbury and Matthew Stewart Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness, referred to in this judgment by the initials H.C., S.L., S.G., K.B, and Witness "A". This publication ban applies indefinitely unless otherwise ordered. Restriction on Publication: A publication ban has been imposed under s. 486.5 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a victim/witness/undercover officer, referred to in this judgment by the initials H.C., S.L., S.G., K.B, and Witness "A". This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Mr. Justice Silverman Reasons for Judgment Counsel for the Crown: K. Andani, Q.C. P. Hogg L. Fillingham J.M. Robinson L. Pearce Counsel for the Accused, Harinam Cox: G.M. Ng G. Docolas Counsel for the Accused, Shamil Ali: T.D. Anderson A.L. Dorin Counsel for the Accused, Gopal Figueredo: D.P. Lawrence W.E. Jessop Counsel for the Accused, Erlan Acosta: J.S. Stowe V. Aldosky Counsel for the Accused, Ellwood Bradbury: S.R. Buck C. Muldoon Counsel for the Accused, Matthew Stewart: J.D. Jevning V. Williams Place and Date of Trial: Vancouver, B.C. May 1, 2, 7, 9, 10, 14-16, 22-24, 28, June 4-7, 11-14, 18-21 25-28, July 3, 4, 9-13, 16-19, 23-26, 30, 31, August 1, 2, 7-9, September 5, 6, 11, 12, 14, 17, 18, 20, 21, 24-27, October 1-3, 10, 11, 15, 16, 22, November 13-15, 26, December 4-6, and 10-13, 2018 Place and Date of Judgment: Vancouver, B.C. April 4, 2019 EXECUTIVE SUMMARY. 4 INTRODUCTION. 10 OVERVIEW OF EVIDENCE. 12 H.C. - Vetrovec. 14 Narrative - Summary. 16 Identification. 46 POTENTIAL CONFIRMATORY EVIDENCE. 52 POTENTIAL CONFIRMATORY EVIDENCE - THE EVIDENCE APPLIED TO EACH ACCUSED. 55 DEFENCE SUBMISSIONS. 66 DECISION RE: VETROVEC CAUTION. 108 FINDINGS OF FACT. 110 LEGAL ISSUES. 132 VERDICTS. 145 EXECUTIVE SUMMARY [1] This Executive Summary of the full decision which follows, is prepared for the purpose of enabling a shorter oral reading in Court. The full written decision will be made available immediately after the reading in open Court of this summary. [2] This trial concerns a seven-count indictment in which the six accused are all charged with crimes arising out of the same set of circumstances. The charges are kidnapping, confinement, two counts of extortion, aggravated assault, and two counts of manslaughter using a firearm. [3] The circumstances all occurred from September 17 to 19, 2016. [4] I shall refer to the accused by their last names throughout this judgment. In doing so I mean no disrespect. [5] H.C. was a person who conducted an illegal drug business out of his home at an address I will call "Dieppe". He lived there with his girlfriend, a roommate, sometimes two small children, and the accused Cox, who also worked for H.C. in his drug business. [6] The only evidence that relates the narrative of events that occurred is the evidence of H.C. If I do not believe his evidence, there will be no convictions. In this case, H.C. is a Vetrovec witness. Because of his unsavoury past, I am not willing to believe his evidence in the absence of other independent evidence which confirms relevant material aspects of his evidence. [7] In the early evening of September 17, 2016, H.C. had a meeting at Dieppe with Cox and another person who sometimes worked for him, and who is also an accused, Figueredo. [8] H.C.'s girlfriend, roommate, and one child were at a birthday party and were not expected home. However, they arrived home shortly after the meeting ended. H.C. saw them on the stairway to the upper level where the living room was, and at the same time, he realized that there were three or four masked men around him in the living room. [9] H.C. was punched in the face, his glasses were broken, his arms tied behind his back, and he was thrown down the stairs from where he heard four pops that he thought were gunshots. However, he did not think that anyone had been shot because there was no reason for that to be done. In fact, both his girlfriend and roommate had been shot twice in the side of the head from close range. [10] It is not known who the shooter was and the gun was never located. Consequently, no one is charged with murder. Those believed to be involved, or present at Dieppe, are charged with manslaughter. [11] The men were wearing balaclavas. H.C. can only identify one, that is Figueredo, as being inside Dieppe. He identifies him primarily through voice. His evidence is ambiguous with respect to whether he saw Figueredo's face inside Dieppe. [12] H.C. was hurried to a car in the back of house. Two cars appeared to be driving in tandem and their passengers communicating with each other. One of the cars was eventually abandoned and a third car was involved. [13] H.C. was taken to a house in Surrey, which I will refer to as the "Surrey House" where he was confined for approximately 45 hours, except that on several occasions during that period, he and his captors drove around in the two cars making phone calls to persons they hoped could raise ransom money for H.C.'s return. [14] H.C. still cannot identify those who were at Dieppe but over the next 45 hours, they were unmasked at the Surrey House, and in the cars, and he came to see their faces and hear their voices. He subsequently identified them for the police. They are the six accused. [15] He knew two of them previously - Cox and Figueredo. He also knew a third - Stewart, with whom he had served jail time and who he considered a friend. He picked Stewart's photograph out of a photo pack line‑up. He also picked Acosta's photograph out of a photo pack line‑up. He did not remember that he had met him once previously, but was reminded of that by Acosta on the last day of his captivity. [16] He had never met Ali before. However, he did pick his photograph out of a photo pack line‑up as well. Ali was the only dark-skinned man. [17] He had also never met Bradbury before. He failed to pick his photograph out of a photo pack line‑up. However, I have concluded based on the evidence, that the photo pack was flawed because it did not have in it a contemporaneous photograph of Bradbury. Rather, the photograph was five and half years old - in other words, it was a photograph of Bradbury five and half years younger than his age when H.C. first met him, a few days before the photo pack line‑up. Counsel argued this is fatal to the Crown's case against Bradbury, but in the judgment I discuss this in detail and decline to draw any negative inference as a result. [18] H.C. also testified that he came to recognize the voices of the six from hearing them in the house and in the cars during the ransom calls. The calls were recorded as the result of quick police intervention and H.C. identified the voices as the ransom calls were played in Court. While at the Surrey House, H.C. was the subject of an ongoing cycle of beatings that, one presumes, were intended to encourage him to arrange for the ransom that they were seeking. They were initially asking for $1 million, later reduced to $500,000. [19] Greater detail of the beatings is provided in the full judgment. [20] There was a great deal of evidence presented to confirm material aspects of H.C.'s evidence, including: 1. DNA and fingerprint evidence with respect to various of the accused at various places which generally establishes: a) Their presence in the Surrey House. b) Their presence in one or both of the vehicles which were used driving away from Dieppe and during the ransom calls. c) Their relationships with each other (where the DNA or fingerprints of more than one of them appeared on the same item). d) Their proximity to H.C. (where the DNA of one or more of them appeared together with the DNA of H.C. on the same item). 2. Evidence, often with CCTV, of purchases by various of the accused and materials bought that were ultimately found in the Surrey House and were used in furtherance of the crimes including gloves, plastic sheeting, blow torch, bolt cutters, burner phones, and other things. 3. Three of the accused were arrested in one of the vehicles with H.C. bound in the back seat at the time of his rescue by the Vancouver Police Department Emergency Response Team. These three were Cox, Figueredo, and Ali. The other three escaped and were arrested at a later time. [21] Because of the confirmatory evidence, I believe that H.C. attempted to tell the truth throughout and that where he made errors, they were innocent and understandable and often the result, at least partly, of the traumatic events that he had suffered. [22] Cox raised a defence of duress arguing that he had been threatened to participate in this venture on pain of suffering severe consequences if he failed to do so. Cox argues that the Crown failed to disprove that defence beyond a reasonable doubt. I discuss the law and the evidence relating to that in my judgment and conclude that the evidence disproves that defence beyond a reasonable doubt. [23] Bradbury argued that the Crown failed to prove his identification as an involved person beyond a reasonable doubt. Once again, I discuss that evidence in great detail and conclude that Bradbury's identification has been proven by the evidence beyond a reasonable doubt. [24] The other four accused, in closing submissions, acknowledged that the evidence establishes their involvement in relevant events after September 17 (that is, after the kidnapping at Dieppe), but they deny that they had any involvement at all in what happened at Dieppe. Once again, I discuss this in great detail in the judgment and review the evidence and reject these arguments raised by these four accused. [25] I am satisfied that all six accused set out on a course of action to kidnap H.C. for ransom. Their roles were different but their goal was the same. I heard a great deal of argument concerning s. 21 of the Criminal Code and I discuss this in great detail in the full judgment. I am satisfied that s. 21(1) is the appropriate Criminal Code section to address Counts 1 through 5. On the basis of the evidence, I am satisfied beyond a reasonable doubt that with respect to the kidnapping, confinement, the two extortion counts, and the aggravated assault count, each of the accused are parties to those crimes, and are all responsible for each others actions in pursuit of that common goal of kidnapping and extortion. [26] With respect to the manslaughter counts, the correct section for consideration in my view is s. 21(2). What makes this a more difficult legal issue is twofold: 1. The evidence does not establish which of these six (other than Figueredo) were even present at Dieppe. 2. The evidence does not establish which of these six had any intention of killing or shooting anyone at all. [27] I address these issues in detail in the full judgment. [28] Unfortunately for the accused, the jurisprudence with respect to s. 21(2) concludes that neither their presence at Dieppe nor an intention to kill is necessary as a basis for a conviction in circumstances such as these. All that is necessary is that in carrying out their common purpose (kidnapping), they ought to have known that the consequences of their actions would probably result in somebody being seriously hurt. [29] The case law that discusses the section can lead to only one conclusion, and that is that these six men are all guilty of both manslaughter charges as well. [30] Having said, I am satisfied they are not guilty of the manslaughter charges as laid in the indictment because it includes "using a firearm" as an essential ingredient of the offence. In my view, that is an essential ingredient of the offence which must be proven beyond a reasonable doubt, and that means knowledge that there was a firearm present must also be proven beyond a reasonable doubt. While there can be no doubt that a firearm was used, it is unknown who used it, and consequently, it is not possible to determine which of these six knew that a firearm was present. Therefore, that essential ingredient has not been proven and the conviction for manslaughter will be for the lesser included offence of manslaughter simpliciter. [31] I find all six accused guilty of Counts 1 to 5. With respect to Counts 6 and 7, I find them not guilty of manslaughter as charged, but guilty of the included offence of manslaughter simpliciter. [32] The full text of the judgment commences in the next paragraph under the heading "Introduction". INTRODUCTION [33] Harinam Cox, Shamil Ali, Gopal Figueredo, Erlan Acosta, Ellwood Bradbury, and Matthew Stewart are accused of: The kidnapping, unlawful confinement, extortion, and aggravated assault of H.C. a) The extortion of S.L. b) The manslaughters of H.C.'s girlfriend Samantha Le ("girlfriend") and his roommate Xuan Van Vy Ba-Cao ("roommate") [34] The foregoing are charged in a seven count indictment as follows: Count 1/Chef 1: Harinam Cox, Shamil Ali, Gopal Figueredo, Erlan Acosta, Ellwood Bradbury and Matthew Stewart between September 16, 2016 and September 20, 2016, at or near Vancouver, Surrey and other locations in the Province of British Columbia, did kidnap H.C. with intent to hold him for ransom contrary to s. 279(1 )(c) of the Criminal Code. Count 2/Chef 2: Harinam Cox, Shamil Ali, Gopal Figueredo, Erlan Acosta, Ellwood Bradbury and Matthew Stewart between September 16, 2016 and September 20, 2016, at or near Vancouver, Surrey and other locations in the Province of British Columbia, did, without lawful authority, confine H.C., contrary to s. 279(2) of the Criminal Code. Count 3/Chef 3: Harinam Cox, Shamil Ali, Gopal Figueredo, Erlan Acosta, Ellwood Bradbury and Matthew Stewart between September 16, 2016 and September 20, 2016, at or near Vancouver, Surrey and other locations in the Province of British Columbia, did, without reasonable justification or excuse and with intent to obtain money, induce or attempt to induce H.C. to pay money by threatening or causing violence to him, contrary to s. 346(1) of the Criminal Code. Count 4/Chef 4: Harinam Cox, Shamil Ali, Gopal Figueredo, Erlan Acosta, Ellwood Bradbury and Matthew Stewart between September 16, 2016 and September 20, 2016, at or near Vancouver, Surrey and other locations in the Province of British Columbia, did, without reasonable justification or excuse and with intent to obtain money, induce or attempt to induce S.L. to pay money by threatening or causing violence to H.C., contrary to s. 346(1) of the Criminal Code. Count 5/Chef 5: Harinam Cox, Shamil Ali, Gopal Figueredo, Erlan Acosta, Ellwood Bradbury and Matthew Stewart between September 16, 2016 and September 20, 2016, at or near Vancouver, Surrey and other locations in the Province of British Columbia, did commit aggravated assault of H.C., contrary to s. 268(2) of the Criminal Code. Count 6/Chef 6: Harinam Cox, Shamil Ali, Gopal Figueredo, Erlan Acosta, Ellwood Bradbury and Matthew Stewart, on or about September 17, 2016, at or near Vancouver, in the Province of British Columbia, did using a firearm, commit manslaughter of Xuan Van Vy Ba-Cao, contrary to s. 236(a) of the Criminal Code. Count 7/Chef 7: Harinam Cox, Shamil Ali, Gopal Figueredo, Erlan Acosta, Ellwood Bradbury and Matthew Stewart, on or about September 17, 2016, at or near Vancouver, in the Province of British Columbia, did using a firearm, commit manslaughter of Samantha Le, contrary to s. 236(a) of the Criminal Code. [35] The Crown relies upon direct and circumstantial evidence, and the law relating to parties, to establish that the six accused were acting in concert. [36] Three of the accused acknowledge their participation in the kidnapping and/or unlawful confinement. However, they vigorously resist the notion of any responsibility for the manslaughter counts. [37] One of the accused raises the defence of duress. [38] Two of the accused argue that the evidence fails to prove their identities beyond a reasonable doubt as persons who were present or who participated in any way with respect to any of the offences. One of these two also relies on "third party suspect" evidence. [39] All of the accused argue that, what ever other findings I may make, there is insufficient evidence to convict any of them of the two manslaughter charges. [40] The case against each of the accused cannot be sustained in the absence of the evidence of H.C. The narrative of events upon which the Crown relies is contained exclusively within H.C.'s testimony. The Crown offers circumstantial evidence to corroborate the evidence of H.C. [41] None of the accused called evidence. OVERVIEW OF EVIDENCE General [42] The Crown's case consists largely of two types of evidence: 1. The evidence of H.C. The accused submit that he should be treated as a Vetrovec witness. 2. Evidence that the Crown argues is confirmatory, and corroborating, evidence which was obtained largely (although not exclusively) from: a) five different "crime scenes" as the result of police and related forensic investigations. b) Evidence of purchases made, prior to the kidnapping and sometimes during the confinement, by various of the accused, from various commercial premises, of items later found by the police at various of the five crime scenes. c) Other circumstantial evidence. [43] The five different crime scenes consist of the following: 1. The location of the kidnapping - the (then) home of H.C. at 43 Dieppe Place, Vancouver, BC ("Dieppe"). 2. The house where H.C. was confined after the kidnapping (although there were several outside excursions) until he was rescued after approximately two days - a house on 128A Street in Surrey, BC (the "Surrey House"). 3. An Acura MDX SUV, owned by H.C., which was used to drive him away from the home after the kidnapping (the "MDX"). 4. A white Acura TL, which had been stolen and was sometimes parked at the Surrey House and sometimes used, with H.C. in the vehicle, as a mobile "location" from which ransom calls were made (the "Acura TL"). 5. A grey Nissan Pathfinder, which was owned by Acosta's father and which was sometimes parked at the Surrey House and sometimes used, with H.C. in the vehicle, as a mobile "location" from which ransom calls were made (the "Pathfinder"). [44] There is a great deal of evidence which is not in serious dispute. At the outset, I am satisfied that the following flows from the evidence and I make the following findings of fact: 1. On September 17, 2016, H.C. was forcibly abducted from his residence at Dieppe by masked men. 2. During the course of his abduction, his girlfriend and roommate were shot to death by one or more of the masked men. (The gun that killed them both was never found by the police and is not part of the evidence in this case). 3. Four-year old K.B. was present at the time of the shootings. 4. H.C. was transported from his residence in Vancouver in the MDX. 5. Two other vehicles were also used. 6. H.C. was confined in the Surrey House from the evening of September 17 until September 19. 7. H.C. was tortured and maimed during his confinement. 8. On several occasions, he was taken from the Surrey House in either the Acura TL or the Pathfinder with some or all of his kidnappers (spread among both vehicles) during which ransom calls were made to people known to H.C., while both vehicles were being driven over a wide area. 9. Ransom demands were made of: H.C., S.L., S.G., and Witness "A" among others during the period of H.C.'s confinement. 10. H.C. was rescued by the police in the afternoon of September 19, 2016. 11. At the time of his rescue, H.C. was in the Acura TL with Figueredo, Ali, and Cox. Other Civilian Witnesses [45] In addition to H.C., other significant civilian witnesses included the following: 1. K.B. was a four-year-old child who lived at Dieppe with one of his parents; 2. Witness "A" was a partner of H.C. in the drug business. He was one of the persons contacted by the kidnappers. He spoke with them by telephone and discussed their ransom demands and what efforts he would make. He also was the person who called 911. 3. S.L. was a friend and former business partner of H.C. who the kidnappers contacted to raise ransom money. 4. S.G. was a close friend of H.C. who received a phone call from him advising that he had been kidnapped and asking that Witness "A" and others with the potential to raise ransom be contacted. 5. Dr. Balcar gave evidence with respect to H.C.'s injuries. He was qualified as an expert in the field of emergency room medicine. He also gave evidence with respect to the extent to which an eye injury might impair H.C.'s vision. 6. Dr. Morin was a witness qualified as an expert in the field of forensic pathology. He gave evidence with respect to the causes of death of his roommate and girlfriend. Each was shot twice in the side of the head from close range. H.C. - Vetrovec [46] The six accused argue that H.C. should be treated as a Vetrovec witness of the most serious sort. He acknowledges that he has been in the drug producing and selling business for years and does so on a large scale, operating out of his home, and with a number of associates and/or persons working for him at the street level. Dieppe was the house where he not only lived, but from where he operated his drug business, facilitated the manufacture of drugs and their sale, and maintained a large supply of drugs, together with weapons, safes, cash, and other related materials. [47] His criminal record consists of: 1. In 2007, a break-and-enter, together with assault with a weapon resulting in a conditional sentence of two years less one day and 18 months probation. 2. In 2014, offences resulting in four years imprisonment for: a) Possession of a prohibited or restricted firearm with ammunition; b) Possession of a scheduled substance for the purpose of trafficking; and c) Trafficking in a scheduled substance. [48] He testified that, at the time of this kidnapping, he was in the midst of removing himself out of the drug business. [49] He testified that the 2007 offences arose from circumstances similar to what he now claims to be a victim of, although there were apparently no deaths. [50] The Crown argues that his demeanour was indicative of an intelligent, responsive, thoughtful and helpful young man, exhibiting self-control, and apparently attempting to recall and relate truthfully what he knew. [51] The defence argues that the manner of his giving evidence indicates, by itself, that he was less than truthful, minimizing his own wrongdoing, exaggerating the wrongdoing of his captors, exhibiting selective memory, and obviously being evasive. [52] I agree with the Crown about his demeanour. However, the demeanour of witnesses can be misleading. I cannot consider his demeanour without considering his criminal record and background, together with evidence of a number of prior inconsistent statements when what he said in Court was tested against what he had earlier told the police. These arose during cross-examination and some of them were with respect to extremely important aspects of the case where he had apparently forgotten to tell the police about incriminating aspects of the evidence that he was telling the Court. There may be an innocent explanation for some of these which I will discuss later. In the meantime, it causes me concern. [53] As noted previously, the evidence of H.C. is essential to the Crown's case. If I am not satisfied beyond a reasonable doubt that it is true to the extent that it satisfies the essential elements of the charges, a conviction cannot follow. [54] The Crown acknowledges the foregoing but argues that he presented as a reliable and credible witness both in demeanour and in the content of his testimony and that he need not, therefore, be considered as a Vetrovec witness. Nevertheless, if he is to be treated as such, there is ample independent confirmatory evidence to corroborate his evidence such that it should be believed even if he is considered as a Vetrovec witness. [55] The defence submits that the Court ought to self-instruct with a strong Vetrovec warning when assessing H.C.'s evidence, that is, a caution to myself that it will be dangerous to convict in the absence of confirmatory evidence, and in that regard, I should look for other independent evidence which tends to confirm material parts of H.C.'s evidence. [56] The reliability and credibility of H.C.'s evidence is vital to any conviction. In the absence of compelling confirmatory evidence, there cannot be convictions in this case. [57] I am satisfied that H.C. is a witness whose evidence requires that I self-instruct myself with a strong Vetrovec warning and I hereby do so. [58] The Crown argues that there is significant confirmatory evidence which is largely in the form of physical evidence, including forensic evidence, and is independent of the evidence of H.C. [59] The significance of the confirmatory evidence must be directed towards two topics: 1. The identities of the accused as persons involved in the alleged criminal activities. 2. The actions of the accused in committing and/or furthering the criminal activities. [60] I will review that potential confirmatory evidence later in the judgment. Narrative - Summary As Related By H.C. [61] H.C. was a high level drug dealer in September of 2016. He lived at Dieppe with his girlfriend, his roommate, and Cox. Sometimes several related small children lived there as well. [62] At Dieppe, the entrance, and the room where drug operations were conducted, was on the ground floor. The bedrooms, kitchen, living room, and general living quarters were on the second floor accessible by a flight of stairs. [63] H.C. met Figueredo when they were both in jail. They were cell mates. He met Cox through an introduction by Figueredo more than a year prior to the offences. Figueredo went by the nickname G and Cox went by Dice. [64] H.C. was close to both Cox and Figueredo and considered them his little brothers. [65] H.C. met Stewart while they were in jail together. They became friends. They had some limited contact with each other after jail. H.C. knew that Stewart was also involved in the drug business. There was no falling out between them. [66] Sometime in August 2016, H.C. met a person known to him as "Vic". He met Vic on one occasion, where H.C. had the opportunity to talk with him. He did not know his legal name but identified Acosta, in Court, as Vic. [67] H.C. had not met Ali or Bradbury prior to the offences. [68] H.C. introduced Cox to his associate Witness "A". Witness "A" was also a drug dealer, albeit not at the same level as H.C. Cox was living in H.C.'s home at the time of the kidnapping. He worked for Witness "A" running drug lines in Burnaby. [69] The hub of Cox and Witness "A"'s drug business was in the downstairs room at Dieppe. Witness "A" cooked crack in the office and Cox weighed and packaged it for sale. [70] H.C., Cox, Figueredo, and Witness "A" each had an encrypted device that they used to communicate regarding their illegal activities. They referred to these devices as 'zappers'. H.C. had recently given one of his zappers to Cox, as Cox wanted more responsibility. [71] After Figueredo was released from jail in July 2016, he, H.C., and Witness "A" embarked on a drug venture. [72] On September 15, Cox, Figueredo, and H.C. attended a party in West Vancouver. After the party, Cox and Figueredo suggested that H.C. come to a place in Surrey with them. He declined. [73] Figueredo and Cox arranged to meet H.C. the evening of September 17, 2016 at Dieppe so Figueredo could pay H.C. money that he owed for drugs that were fronted to him and so they could talk. [74] H.C. arranged the meeting with Figueredo via zapper. Cox was to be present for the meeting. [75] Cox was aware of the comings and goings of the residents of Dieppe and knew that H.C.'s girlfriend, roommate, and the small children, would be out of the home attending a birthday party on September 17, 2016. [76] Witness "A" knew that H.C., Figueredo, and Cox had planned to meet on September 17, 2016. [77] H.C. arrived at Dieppe in his MDX which he parked in the back. [78] Figueredo arrived at the house shortly after H.C. He paid H.C. the money that was owing to him. [79] H.C. visited with Figueredo and Cox in the living room. They left when H.C.'s dog started acting up. H.C. did not hear them go down the stairs or open and close the front door. He assumed the two men went to Cox's bedroom. [80] H.C. was texting with his girlfriend and S.G. The last message he sent to her was at 6:49 p.m. He did not respond to any of her messages after that time. [81] Approximately ten minutes after Cox and Figueredo left the room, H.C. heard the front door open, and footsteps coming up the stairs. He turned around and saw his girlfriend, followed by four‑year‑old K.B., and his roommate, on the stairs. At the same time, he saw three, maybe four, men wearing dark-coloured balaclavas in different areas on the floor around him. [82] All three of the masked men were facing H.C.'s direction. [83] He was immediately subdued by the masked men. He was punched in the face with enough force to knock him off balance and knock his glasses off. His vision was poor and he would not have the benefit of his glasses for the balance of his kidnapping and confinement. [84] He testified that Figueredo would later admit, when at the Surrey House, that he was the one who threw that punch. [85] The attack on H.C. continued in the living room. He was punched and kicked. He bled. He passed out. [86] When he came to, his girlfriend was urging H.C. to get up. His hands were being bound behind his back with an electrical cord. His head was being forced onto the floor as if a foot was on it. He also felt the circle of the barrel of the gun pressed against the back of his head. [87] The male holding the gun was stooped over him and said words to the effect of "try something" or "try moving". H.C. testified that he later came to recognize that voice as belonging to Ali, a person he had not previously known, but whose voice he heard again at the Surrey House and in the Acura TL and Pathfinder. [88] He was physically assaulted again and passed out. [89] After his arms were bound, the masked men put a zip up hoodie on H.C. [90] He heard the masked men speaking to each other and to his girlfriend. He also heard them rummaging around the house. [91] The last time he saw his girlfriend, roommate, and the child, K.B., the three were huddled against the wall. [92] Someone then picked H.C. up and threw him down the first flight of stairs to the landing. He was alone on the landing. None of his captors were with him. [93] Next, he heard two gun shots "pop, pop", a brief pause, followed by two more gun shots "pop, pop". These gun shots came from the area of the living room. [94] He then heard someone yell "Go! Go! Go!" and everyone rushed down the stairs. In Court, he testified that he recognized the voice of the person yelling as Figueredo's. [95] Someone picked H.C. up and threw him down the next set of stairs and he was then dragged barefoot out of the house by two men. The males put the hood of his hoodie up over his head. [96] The masked men dragged him across the yard toward and into his MDX, which had been moved and was now facing the alley. [97] H.C. ordinarily kept his key fob for the MDX on a key chain with his other keys. His key chain was later found in the garbage room of the Surrey House. The only thing missing was the key fob for the MDX. [98] H.C. saw the driver of the MDX pulling the mask off his face. It was his friend Figueredo. He could hear Figueredo talking. He saw his roommate Cox sitting in the back seat unmasked. [99] There was a front seat passenger, who he believed was unmasked but he could not recall who it was. To his right was a man who held H.C.'s head down in his lap. He was holding a pistol. He was wearing a disposable glove. H.C. saw a small patch of brown skin on the man's arm. [100] The MDX pulled out of the driveway. [101] After leaving Dieppe, the MDX stopped. H.C. heard those in the MDX talking to people outside the MDX about the route to take and where to meet up. They were male voices. Approximately 10 to 15 minutes later the MDX met up with what appeared to H.C. to be an Acura TL. H.C. was taken out of the MDX and transferred into the back seat of the Acura TL. He did not see what happened to the MDX. He never saw it again. [102] Figueredo drove quickly. H.C. attempted to keep track of the route to the extent that he was able to do so, although he lost track until he saw the arches of the Patullo Bridge. [103] H.C. estimated that the masked men had been in his house for approximately 15 to 20 minutes, no more than 30, before he was taken out to the MDX. [104] The Acura TL drove for approximately 15 minutes and stopped at a house. H.C. did not know where the house was. He had never been there before. The Acura TL pulled into a gravel driveway. There was a boat parked in the driveway. He was "hooded" when he was taken in the house, but there appeared to be no one in the rooms along the route he was taken. [105] The room that he was taken to was covered - walls, ceiling, floor and door - with clear plastic. It looked like it was secured to the surfaces with duct tape. H.C. feared he would die there. In Court, he referred to it as a kill room. There was no light in the room. The light came from the hallway. [106] The house was a small one, a single story, with three bedrooms but only one bathroom, across the hall from the kill room where he was kept. Although there was no light in the room, there was sufficient light coming in so that he could see, despite his missing glasses and his eye injury, and was able to identify the various accused when they were in the room, and made an effort to do so. [107] He could also hear from the room. When he was in there alone, he could hear some or more of the six accuseds' voices sometimes speaking, sometimes laughing, and he could frequently make out what was being said. On occasion, he also heard at least two other males voices that he did not recognize, but he was confident they were in addition to the voices of the six accused. He testified that he does not know whose voices those were. [108] On the first night at the Surrey House: 1. As soon as H.C. was put into the kill room, Figueredo came in and explained that there was a $250,000 hit on H.C.'s head, but he was giving H.C. the option of buying himself out of it through payment of $1 million in cash, drugs or jewellery. 2. Then, people "wearing masks" (except for Cox and Figueredo) came into the room. They accused him of lying and they demanded to know where he kept his money. He was assaulted, burned, punched, and kicked. He was burned on his hands, feet, back, and head with a blowtorch. His recollection is that more than one person was involved in the beating, as he could see more than two hands and feet. 3. When H.C. was not able to provide his abductors with the $1 million ransom they were demanding, they asked H.C. to reach out to his friends. They showed him the zapper that he had given to Cox. The zapper was unlocked and he recognized his contacts and the avatars. He saw Figueredo and Bradbury working to use the zapper at various times throughout his captivity. 4. Eventually, the power cord was removed and his hands were tied at the front with zap straps. 5. Originally, H.C. thought that Cox had also been kidnapped. This was partly because of his different dress but largely because Cox was his friend and he did not believe, or did not want to believe, that he was involved in the kidnapping. Cox was dressed differently from "the others", who wore dark coloured sweatsuits like a "uniform". 6. At some point, he saw Cox without a mask. Cox was on his knees. He told H.C. to tell them what they wanted to know. Someone kicked Cox in the face. To H.C., the kick seemed to be less than full force and Cox's reaction seemed exaggerated. [109] On the second day at the Surrey House: 1. The morning after the kidnapping, Figueredo woke him up. He was unmasked. He said "they" wanted him to contact S.L. He was not in the contact list in the zapper. 2. After Figueredo left the room, Ali entered the room, unmasked. He had a blowtorch. There were accusations and burning. He burned H.C. all over his body. 3. After this, Figueredo came back into the room and Ali left. 4. He and the kidnappers went in the two cars to make ransom calls. No one was wearing masks. No one wore masks after the first night. [110] On the last day at the Surrey House: 1. On September 19, when H.C. woke up in the morning, he heard "people talking" about cleaning, about this being his last day, about being killed that evening, about putting garbage in the next room and burning it. He heard what sounded like cleaning up. He saw "shadows" walking by the door. 2. (After H.C. was rescued, and police entered the Surrey House, they located a room where it appeared many things had been left as garbage. The police referred to this as the "garbage room".) 3. Figueredo brought an A&W burger to the room. 4. Ali and Bradbury came into the room. They had a blowtorch and bolt cutters. H.C. could not recall who had which. The blowtorch had a yellow canister. They attempted to cut his pinky off with the bolt cutters. The both did it. Ali first, Bradbury second. When they failed to cut off his pinky, they tried burning it off. He could not recall who did the burning. His hands were still zap strapped. 5. At the end of this episode, Bradbury threw a towel at H.C. 6. (After H.C.'s rescue, police discovered two blow torches (one yellow and one blue) at the Surrey House.) 7. He and the others went in the two cars and made further ransom calls. [111] Generally, at the Surrey House: 1. Except for the incidents already noted, H.C. was unable to say with certainty when specific events occurred during his confinement between September 17 and 19. He was subjected to a cycle of beatings and burnings. Some were group attacks and some were individual attacks. It was difficult to separate the events from each other. 2. While the events cannot all be separated in H.C.'s mind, nor the exact times that H.C. saw each accused, he testified that he did see them all in the Surrey House. None of them were masked after the first night. 3. H.C. noticed that the kidnappers wore gloves, primarily disposable gloves with the exception of Stewart who wore something more akin to leather‑style gloves. 4. He was sometimes allowed to smoke a cigarette. [112] Counsel frequently referred in their submissions to H.C.'s captivity lasting three days. The significance of this is that some of the accused argue that their involvement, if any, began on the third day. The period of "three days" is accurate if days are counted from midnight to midnight. However, if days are counted as 24 hour periods, then the length of the captivity is less than two days, in fact, approximately 45 hours. On "day one" (Saturday), H.C. was kidnapped in the early evening. "Day two" was a 24-hour day. "Day three" lasted until the early afternoon when H.C. was rescued. [113] During the approximately two days of H.C.'s captivity, a number of hours were spent in the Acura TL driving, with some of his captors in the car with him, and others in the Pathfinder. While the six accused remained with H.C. in the two vehicles, it was not always the same ones in the same vehicle. [114] The reason he was taken in the cars was for the purpose of making ransom calls. This occurred four times: 1. Sunday afternoon, September 18. These calls were not intercepted. There is no transcript. 2. Also on Sunday. It "may" have been dark. Intercepted call number one was at 11:11 p.m. Call number two at 11:15 p.m. 3. The third time was two hours later - September 19, early Monday morning. Call 3 was at 1:21 a.m.; calls 3 to 29 (at 5:24 a.m.). This is what H.C. referred to as the "long night". 4. September 19 at 2:00 p.m. - call number 30. Call number 31 at 2:05 p.m. [115] He said that Figueredo was invariably the driver. [116] H.C. was always in the vehicle where the phone was. Therefore, he was in the car overhearing whichever of his captors was speaking in real time. [117] In preparation for his testimony, he identified voices by listening to the calls with headphones, and writing down the names of the speakers. He repeated that exercise in Court. He testified that he tried to be careful. In one call, he thought the person sounded like Ali, but was less than certain, and subsequently gave evidence that it was Acosta, which he testified he believes is the correct identification. [118] All six of the accused can be heard on some of the calls. Some clearly participate more than others in terms of numbers of calls and, more importantly, in terms of active participation in the calls. Ali and Bradbury were clearly the two most active participants in the calls. In terms of numbers of calls, Ali spoke on 14, Bradbury on seven. The others participated in varying degrees. [119] He said that he was beaten while the calls were ongoing and specifically referred to Ali and Bradbury in this regard, during some of the calls. [120] H.C. was confident about most of the voice identifications, but acknowledged that he could be mistaken about some of them. He also acknowledged that he was not always certain about who was in which car at which times. [121] Of the 31 recorded ransom calls, 29 of them were with H.C.'s friend and former partner, S.L. Two of them were with his close friend, S.G. [122] Ransom calls were made from the vehicle by the use of burner phones - that is, phones designed to be quickly discarded and/or destroyed, and therefore more difficult to locate or trace. [123] H.C. says he was only in the Pathfinder one time, during the "long night", after the police chased the Acura TL. The kidnappers took steps to make sure that it would not happen again. They switched H.C. from the Acura TL to the Pathfinder. They stole licence plates for the Pathfinder. [124] He referred to the Pathfinder as "Vic's" (Acosta) vehicle because he saw him driving it. [125] On the third trip out to make calls (the "long night"), Figueredo was the driver of the Acura TL. H.C. was seated in the back with Stewart. He could not recall who else was in the Acura TL. H.C. testified that Stewart had a gun and Ali had a gun. [126] H.C.'s evidence is that the Acura TL and the Pathfinder were together constantly during the "long night". To a large extent, the recordings and transcripts of the ransom calls confirm this (it is also corroborated by police surveillance). [127] After the last two ransom calls were made on the last afternoon, the Acura TL returned to the Surrey House, where the kidnappers in the vehicle were alarmed by the presence of a woman apparently taking pictures from a neighbouring house. Acosta got out to warn the others who were still in the house. The Acura TL then left with H.C. still in it. [128] Shortly before the police chase which resulted in H.C.'s rescue, the two vehicles met at a parking lot near tennis courts. They were under police surveillance at the time. [129] The Acura TL drove away with H.C. still in it. Not long after, it was clear they were being followed. After a police chase, and a subsequent collision, the police removed and arrested Cox, Figueredo, and Ali from the vehicle. H.C. was in the back seat at the time of his rescue, still bound by the zap straps that had been tied around his wrists upon his arrival at the Surrey House approximately two days earlier (the "rescue"). [130] After H.C.'s rescue, he was seen by Dr. Balcar in the hospital. Dr. Balcar testified and was qualified as an expert in the field of emergency room medicine and procedures, including the determination of causes and patterns of injury. Amongst his findings were the following: 1. Pain to H.C.'s jaw, right face, and left forearm. 2. Pain on his scalp and ears where he had been burned. 3. Pain to his right pinky. 4. Second degree burns on his left and right temples, ear, left and right side of his neck, middle of his back, back and side of left ankle, right lower flank, back of both hands, and pinky. 5. He noted a linear area of no burning on his hand/wrists which is suggestive of something lying on the skin when the burn was being applied. The Crown suggests this is a reference to the zap straps that he was wearing. 6. There was also a bruising on his right lower flank consistent with blunt force trauma to that area. 7. In his mouth area, he had "mucosal ulcerations", likely as a result of trauma to the lip area, basically caused by the inside of H.C.'s mouth forcibly smashing up against his teeth. This is the result of a significant blow or blows to the face. 8. An orbital fracture, that is, a fracture of the bone surrounding the eye. H.C. had bruising, swelling, and a laceration on the upper eyelid. 9. Dr. Balcar testified that he observed no problems with H.C.'s vision or injuries of the eye itself. 10. Extensive laceration to his right pinky, akin to a partial amputation. The bone was broken and bent on an angle. Dr. Balcar referred H.C. to a surgeon for amputation which was completed. 11. Elevated creatine kinese levels indicating muscle inflammation and muscle damage, probably the result of an individual who has been dehydrated for awhile. This was the most concerning of the injuries as it can result in kidney damage and potential kidney failure. H.C. was treated in the hospital for this and closely observed. [131] Dr. Balcar also noted the following: 1. H.C. did not report any difficulties with his vision or his hearing. 2. He had no concerns about H.C.'s ability to understand or answer questions. He was alert with no signs of impairment. He did not display any signs of a concussion, nor did he seem dazed. 3. His vision, hearing, and mental abilities were all completely normal and intact. [132] Subsequently, H.C. listened to tape recordings of the ransom calls, which had been made by police, and identified a number of voices as belonging to various of the accused. In direct examination, the calls were played, and H.C. identified voices of various of the accused. Derived From Evidence Other than H.C. [133] With respect to the MDX: 1. Shortly after the kidnapping at Dieppe, CCTV footage from residences along the route showed two vehicles, a grey SUV (the MDX) followed by a white car similar in style to the Acura TL being driven quickly. The timestamp on the videos is a few minutes after 7:00 p.m. 2. Just before 8:00 p.m., the MDX was set on fire in Surrey. CCTV footage taken across the street from the burn site shows two vehicles: a dark SUV and a white sedan, similar in shape and size to the Acura TL, drive up. At least two men can be seen outside the vehicles. At approximately 7:58 p.m. the dark SUV ignites in flames. The men jump inside the sedan and it drives away. 3. By 8:15 p.m. the fire department was dispatched to the scene of the burning MDX. H.C.'s blood was on the burnt clothing found in on the middle back seat of the burnt-out MDX; the same spot where H.C. had been sitting. 4. According to an officer, the driving time between the MDX burn site and the Surrey House is approximately four minutes. [134] With respect to initial contact from the kidnappers: 1. Between 7:00 and 8:00 p.m. on September 17, Figueredo began sending encrypted messages to Witness "A" from his zapper. He was attempting to convince Witness "A" to travel to Surrey to meet with him, Cox, and H.C. at a safe house. Figueredo would not explain why, only that it was an emergency. Witness "A" thought the messages were strange and resisted. Witness "A" wanted to go to Dieppe to check on H.C.'s girlfriend, the children, and the dogs, but Figueredo tried to dissuade him from going there because shots had been fired near the residence. 2. Eventually Figueredo told Witness "A" either that "I" or "We have been kidnapped" and that there was a ransom of $1 million. 3. Witness "A" asked for and received proof of life photographs. 4. Witness "A" offered his gold Rolex watch and a kilogram of cocaine towards the ransom as a way to buy time. He reached out to S.L., a mutual friend and former partner of H.C.'s, for advice. The two met and then drove past Dieppe where they saw that all the lights were on and all the vehicles were in the driveway. They believed that the entire household, including the two children, were being held captive inside the house. They decided to call 911. [135] With respect to the involvement of the police: 1. Witness "A" used a burner phone to call 911 at 9:55 p.m. to alert the police to the kidnapping. He then gave his zapper to S.L. to turn in to the police. 2. At 12:24 a.m. members of the VPD Emergency Response Team breached the front door of Dieppe and entered the residence. They located 4 year-old K.B. lying on the couch of the living room. 3. The bodies of the two victims named in Counts 6 and 7 were on the floor of the living room nearby. They had each been shot twice in the head from close range. [136] With respect to K.B.: 1. When four-year-old K.B. was interviewed about the events at Dieppe, he told a police officer that he saw three people and Cox in the living room at the time that H.C.'s girlfriend and roommate were shot (K.B.'s videotaped statement was received in evidence with the consent of all parties). 2. K.B. told one of the first police officers who attempted to comfort him that the police had shot the two people at Dieppe. [137] With respect to the Acura TL and the Pathfinder: 1. Both the Acura TL and its licence plates were stolen. The licence plates were reported stolen two days before the kidnapping. 2. The owner of the Pathfinder was Acosta's father. 3. The Pathfinder is seen later on CCTV footage from Dieppe Place on September 17, 2016 at approximately 5:42 p.m., shortly before the kidnapping, driving in the direction towards H.C.'s residence. This vehicle is the same Pathfinder seen by the surveillance members and captured on the CCTV from Shoppers Drug Mart on September 19 and the Pathfinder abandoned later that day. The fact that the Pathfinder has a missing rear passenger side rim makes it an accidental characteristic unique to that particular vehicle. 4. While the Acura TL was the primary vehicle used to transport H.C., the Pathfinder was used for all other business such as picking up food, phones etc. Because the Pathfinder was not stolen, the kidnappers could be free to move about in it without fear of police detection. The use of the Pathfinder on a number of occasions throughout the offences is corroborated by CCTV and physical surveillance. 5. Association between the accused and the Pathfinder during the kidnapping is confirmed by forensic and surveillance evidence. 6. At the outset of the "long night", the Acura TL and the Pathfinder were captured by cameras crossing the Port Mann Bridge in tandem (same lane and one second apart) from Surrey into Coquitlam. [138] With respect to the ransom calls: 1. The recordings of the ransom calls speak for themselves. H.C. purported to identify the voices in his evidence. The accuracy of those identifications is in dispute. The Crown argues that the ransom calls are independent evidence of the joint participation of the six accused in the joint venture. The contents of the calls confirms H.C.'s evidence about why he was kidnapped and how he was treated throughout the offences. Moreover, the Crown argues that they are a window into the group dynamic including aspects of the roles that each accused played and their interactions with each other in furtherance of their common goal. 2. A recorded ransom call referred to a "high speed" chase at 2:54 a.m. on September 19. Within minutes of that call, at approximately 3:00 a.m., front and rear licence plates were stolen from a different grey Pathfinder. That theft was captured on video. The culprits were not masked but are not identifiable in the video. 3. During the same night, between 3:55 a.m. and 5:09 a.m. the Pathfinder and the Acura TL were observed driving in tandem by the early morning surveillance officers in the area being discussed during the ransom calls attempting to set up a meeting. [139] On September 19, police surveillance identified the location of the Surrey House. The RCMP Special O Surveillance team set up three observation posts around the house during the day. Observations of persons the police believe to be Ali, Bradbury, and Acosta were made during the afternoon coming and going from the Surrey House in the Pathfinder and the Acura TL. Some of the observations were captured on videotape. [140] On September 17, 2016, just after 1:30 p.m. a purchase of four balaclavas was made at Gorilla Surplus. The purchaser is not known. Three balaclavas and three tags were located during this investigation. A balaclava with Stewart's and Bradbury's DNA inside it was located at the Surrey House. Balaclavas with Stewart's and Ali's DNA inside them were found in the Acura TL. The owner of Gorilla Surplus testified that those three are of the same make and style that Gorilla Surplus sold at that time. [141] The subsequent police investigation of the Surrey House reveals, among other things, including forensic evidence, the following: 1. Scene photographs taken after the kidnapping show it was not being used as a home. There are three bedrooms, none were furnished. The kitchen had little in the way of utensils, dishes, or cutlery. There was no toaster. There were no clothes in the closets, nor hangers. None of the rooms were furnished. 2. Instead of dishes and pots and pans, the kitchen cupboards had guns, masks, gloves, bolt cutters in the sink, duct tape on the stove, a blow torch cylinder on the stove, Army & Navy shoes strewn about on various shelves and on the floor. 3. The kitchen was a "job site" for the kidnappers. [142] There is evidence that a number of non-accused third parties had connections to some of the accused and/or the Surrey House. Their names will appear in this judgment from time to time and are: Robert "Bobby" Grattan ("Grattan"). Justin Pichler ("Pichler"), Mike Ross ("Ross"), Brittany Papineaux ("Papineaux"), Jennifer Stephens ("Stephens") and Cassandra Reeve ("Reeve"). [143] There is evidence (admitted by the parties to be true) that Bradbury, Stewart, and Figueredo had access to the Surrey House prior to September 2016, likely in July and August (the "Surrey House in July and August"): 1. In the Summer of 2016, Reeve, and her son and boyfriend (Grattan) lived at the Surrey House. 2. Papineaux, a friend of Reeve, does not know who Grattan rented the Surrey House from. 3. When she visited the Surrey House, it was furnished, including a t.v. and a stereo in the living room. One bedroom had a bed and the other bedroom had a double size mattress. 4. She had been to the Surrey House four or five times during the Summer of 2016. 5. Papineaux met Bradbury at the Surrey House after he was released from jail on July 4, 2016. 6. Bradbury did not live at the Surrey House. Papineaux does not know where he lived. Papineaux and Bradbury dated briefly. They broke up towards the end of August 2016. 7. Papineaux met Stewart at the Surrey House. She saw him there a few times. He had neck tattoos. 8. She recalls seeing Bradbury and Stewart at the Surrey House on at least one occasion. 9. She believes that Bradbury and Stewart were friends with Grattan. 10. Reeve and Grattan moved from the Surrey House to Vancouver in August 2016. 11. A photograph was taken sometime in July 2016 inside the Surrey House. It is entered in evidence at this trial. In addition to several unknown persons, the people in the photograph are Grattan, Reeve, Figueredo, Bradbury, and Papineaux. Participation of Each Accused Cox [144] The Crown points to the following evidence: 1. H.C. identified Cox in Court as one of his kidnappers. 2. Of the six kidnappers, only Cox would have known who was or who was not going to be home that evening. According to H.C.'s evidence, the birthday party that the others were going to be attending, had been a topic of discussion in the house for some days. 3. After Cox and Figueredo left the living room, H.C. did not hear any footsteps on the stairs going up or down except for his girlfriend and roommate and the child coming up the stairs. He heard no further footsteps prior to seeing the masked men in the living room around him. The Crown argues that they must have been hidden somewhere on the second floor. Only one person there had the knowledge and the ability to hide people on the second floor prior to H.C. arriving home from work. That is the same floor on which Cox's bedroom was. 4. H.C. next saw Cox in the MDX immediately upon H.C. being rushed out of the house. Cox was not masked. He was seated in the back seat behind the driver, in other words, directly to H.C.'s left. 5. When H.C. was transferred from the Acura TL to the MDX, Cox also transferred to the Acura TL. 6. In August of 2016, H.C. had given Cox his old encrypted zapper. A password was required to unlock it. It contained H.C.'s networking contacts including drug associates. In other words, H.C. trusted Cox with this information. At the Surrey House, H.C. recognized his zapper in the hands of Bradbury who was asking H.C. numerous questions about his contacts. H.C. recognized his contact list. It was already unlocked. Only one person had the ability to unlock it. That person was Cox. The names provided a ready-made list of persons from whom a ransom could be extorted in a secure manner. The police recovered the zapper after it was thrown out of Acosta's Pathfinder on the last day. The Crown argues that Bradbury was in the Pathfinder at that time. 7. On the first night in the Surrey House, Cox came into the room and asked H.C. to provide the information that was being sought. H.C. thought that Cox had also been kidnapped. He asked the kidnappers to let Cox go. The kidnappers, including Cox, used this sentiment to play on H.C.'s sympathies. 8. H.C. saw one of the masked kidnappers kick Cox in the face area. (A pair of shoes with Stewart's DNA on the inside has the blood of Cox on the outside.) The Crown argues that this is evidence that Stewart is the person who kicked him. Stewart argues otherwise. H.C. himself said that the kick did not seem very hard. He also said that he thought Cox's response to the kick was deliberately exaggerated. On one occasion, the kidnappers asked Cox to hit H.C. He did so, but H.C. thought that he did not hit as hard as he could have. The other kidnappers then attacked H.C. more violently. 9. On another occasion, H.C. overheard Cox say that he "didn't want to be involved in this" in what appeared to be unnecessary and over zealous violence. H.C. noted that none of the other kidnappers were around and that Cox seemed to be saying it to himself or for the benefit of H.C. 10. From the room where he was required to stay, H.C. overheard Cox interacting with the other kidnappers. He was engaged in light-hearted banter about smoking weed. At one point, one of the kidnappers told Cox that they could trust him and Cox thanked the person. 11. On the afternoon of September 19, at the time of the rescue, Cox was in the back seat with H.C. who was bound with zap straps. The Crown argues that Cox was there to guard H.C. Cox argues that the evidence is consistent with his having been ordered to get into the back seat by one of the other five. 12. Cox's DNA and fingerprints are located in several places that are discussed later in this judgment and that, the Crown argues, lead to the following conclusions: a) That Cox had free access to items of perishable food found in the fridge and on the kitchen counter at the Surrey House; b) That Cox had shared a drink with Bradbury in the house. c) That Cox was involved in at least some of the beatings of H.C. and had kicked him while wearing a shoe. d) That Cox had been, on various occasions, in both of the vehicles used by the kidnappers, that is, the Acura TL and the Pathfinder. Figueredo [145] The Crown points to the following evidence: 1. On August 20, 2016, Figueredo's Mastercard was used to purchase 58 items from the Army & Navy in New Westminster. Some of these can be linked by Army & Navy documents to items found in the Surrey House and in the Acura TL. Among the items purchased were: a) Four packages of plastic disposable gloves; b) Six hoodies; c) Six pairs of black basic fleece pants. Tags for these were found in the family room of the Surrey House; d) A container of Nibo lighter fluid was also purchased. This was found in the pocket of the front passenger door of the Acura TL.; e) Seven pairs of Rosin shoes in navy blue and black in various sizes were purchased. Five out of the seven pairs can be linked to the kidnapping, including one pair worn by H.C. when rescued by the police. The Crown argues that the shoes were used by the accused during the kidnapping. H.C. did not have shoes on when he was taken from Dieppe. He was given a pair of black shoes by the kidnappers. He was still wearing them when he was rescued. Some of the pairs at the Surrey House appeared to have been worn by various of the accused, as evidenced by DNA as itemized later in this judgment, and several appear to have had various portions of their exterior come in contact with H.C.'s DNA, also itemized later in this judgment 2. He was the driver of the MDX when H.C. was taken from Dieppe. He was the driver of the Acura TL when H.C. was moved from the MDX. He was the driver of the Acura TL during most, possibly all, of the ransom calls. He was the driver of the Pathfinder after the Acura TL had been involved in a police chase. He was the driver of the Acura TL at the time of H.C.'s rescue. 3. He and H.C. knew each other. They had been in prison together. They had kept in contact. Figueredo worked with H.C. in the drug business. 4. Figueredo is photographed in a group photo, which includes Bradbury, taken at the Surrey House sometime in July 2016. 5. On September 15, H.C. was giving him and Cox a ride home from a party to Surrey. Figueredo asked H.C. to drop him off in Surrey, just across the Patullo Bridge. H.C. refused and instead dropped him off at the Skytrain station. 6. During his captivity, H.C. said to the kidnappers that the punch he had received at Dieppe was a "good punch". Figueredo admitted that it was he who had delivered it. The Crown argues that this proves that G was one of the masked men at Dieppe. 7. H.C. says he saw Figueredo removing his balaclava either when Figueredo was already in the MDX or when he was getting in. Figueredo's DNA was not found on or in any of the three balaclavas located by investigators. The Crown notes that four balaclavas had been bought on September 17 at Gorilla Surplus, but only three were recovered. Could this be the fourth one? 8. H.C. notes that Figueredo was the one who told him why he had been kidnapped and the required ransom. 9. Witness "A" said that the first message he received was from a zapper that he believed belonged to Figueredo because of the user name. He told him that the ransom was $1 million. 10. H.C. also recalls seeing Figueredo with a zapper on the first night. He saw Bradbury with a zapper at a different time when he recognized it as his own. 11. In several ransom calls, it is clear that Figueredo is at least one of the persons who had decision making capability with the group. In some calls, he is heard giving orders in the background. In others, he can be heard giving directions as to where to drive. In one call, he is heard saying "This is the last time". This was heard in the last conversation that they had with S.L. during the "long night", and that phone number was never used again. 12. Figueredo's DNA and fingerprints, which will be itemized later in this judgment, were located in and/or on a number of items which the Crown argues lead to the conclusions that: a) He was in the Surrey House. b) He shared a drink with Ali. c) He wore and otherwise handled disposable gloves within the house and in the Pathfinder. d) He used the bathroom in the house. Ali [146] The Crown points to the following evidence: 1. At Dieppe: a) One of the footprint impressions from Dieppe was consistent with the sole of the shoes which had Ali's DNA in them. This is not conclusive proof that Ali was at Dieppe. However, it means that it is not possible to exclude those shoes of having been at Dieppe and having been worn by Ali while there. b) In the MDX, H.C.'s head was in Ali's lap, inches away from a gun. He could see dark brown skin on Ali's arm and that he was wearing disposable gloves (Ali does not concede that this was him). c) In the MDX, he could not recall if "Ali" was masked or not. His head was in Ali's lap. 2. With respect to voice identification: a) H.C. testified that he first heard Ali's voice at Dieppe with the words "try something" or "try moving". Over the next 45 hours he had ample time to re‑hear that voice. After being inside Dieppe, H.C. heard Ali speaking in the MDX. He testified that by the end of the ordeal, he was able to distinguish between the six voices and the voices of others who were occasionally in the Surrey House. He also heard Ali's voice during ransom calls. During most of this, Ali had removed his mask, so that H.C. had ample time and opportunity to connect the voice to the mask and to Ali's face. 3. At the Surrey House: a) On the second day, Ali came into the kill room, unmasked, carrying a yellow blow torch. Only H.C. and Ali were in the room. Ali spoke to him about complying with the demands. H.C. said he could not meet the demands. Ali used the yellow blow torch to burn H.C. There were other occasions during his confinement that Ali used the blow torch. He testified that Ali was the person who always burnt him. Ali wore a dark ball cap and sweats. He was wearing disposable gloves. b) Ali remained unmasked for the duration of the kidnapping. c) On the last day, before going into the car for ransom calls, Ali and Bradbury came into the kill room. They lacerated his pinky, almost cutting it off. They took turns in maiming him. He had ample opportunity to see and hear them both up close. 4. The ransom calls: a) During the car rides for ransom calls, H.C. testified that Ali had a gun. He testified that during the "long night", the kidnappers were armed. He described Ali's gun as a semi-automatic pistol and as a ".45". After the rescue, a loaded and chambered .45 calibre semi-automatic pistol was found on the front passenger seat where Ali had been seated at the time of the arrest. b) Ali's words on some of the ransom calls confirmed the presence of weapons. In call number 6 he threatened to shoot S.L. if he did not comply with the caller's demands. He also told S.L. that, if he was going to walk over and he put his hands down, "I'm gonna fuckin' snipe you". In call number 5 he said to S.L. "We are fully loaded and have a fucking army here." c) H.C. identified Ali as a speaker in 14 of the 31 intercepted calls. Ali and Bradbury were the two primary speakers in communication with S.L. H.C. testified that during the phone calls, he was sometimes struck by Bradbury and/or Ali. In many of the calls, he can be heard groaning in pain. d) H.C. testified that on the second day, he overheard the kidnappers talking about burner phones. He heard them talking about buying these from 7‑11 or London Drugs or somewhere similar. e) On that same date, Ali purchased three cell phones from London Drugs. This is captured on the CCTV. 5. With respect to identification: a) Ali remained unmasked after the morning of the second day. b) Surveillance saw Ali getting into the Acura TL at approximately 1:40 p.m. on the last day He was wearing a white Adidas ball cap and carrying a man purse. Both items were located in the vehicle, the purse in the front passenger footwell, where Ali had been sitting at the time of H.C.'s rescue. c) H.C. identified Ali in Court and in a photo pack line‑up. The defence argues that the photo pack line‑up was unfair. This is discussed later in this judgment under the Ali Defence Submission. 6. With respect to forensics, discussed in greater detail later in this judgment: a) Ali's DNA was found on a number of items in the Surrey House. These include: i. gum stuck to a mask found in the garbage room, a black balaclava found in the Acura TL where Ali was seated at the time of his arrest, the interior and exterior of a pair of disposable gloves. ii. H.C.'s blood was found on a number of items including a pair of Ali's shoes and clothing that he was wearing at the time of his arrest. iii. On the handle of a spoon found in the console of the Pathfinder. b) His DNA was also located inside a black balaclava found in the Acura TL. c) Unlike his five co-accused, no Ali fingerprints were located on any items at any location. H.C. testified that Ali wore gloves all the time. Surveillance observed Ali wearing white disposable gloves on the last day. Acosta [147] The Crown points to the following evidence: 1. Acosta's Pathfinder was abandoned at 3:47 p.m., that is, two minutes after the police take down of the Acura TL and the rescue of H.C. 2. H.C. knew Acosta as "Vic". He did not know his real name, but pointed him out in Court. 3. H.C. had met "Vic" about a month prior but had not realized it until Vic reminded him on the last day. 4. Confirmation of H.C.'s reference to Acosta as "Vic" is found in one of the phone calls where Figueredo makes a reference to an area they were driving in as being where "Vic" used to live. 5. Inside the Surrey House, H.C. heard Vic speaking with other kidnappers. He heard him answer to the name "Vic". He described Vic's interactions with the others as being friendly. 6. With respect to forensics, discussed in greater detail later in this judgment: a) Acosta's fingerprints were found in the Surrey House on a number of items including a food container, a Benzomatic gas cylinder, a stapler, and a Blackberry cell phone. b) In the Pathfinder, on the rear view mirror and a number of documents in the glove compartment. c) His DNA was found on a number of items in the Surrey House including several cigarette butts, one of which was in the kill room, on a glove, on an A&W straw, and on the swab from a trigger of a semi-automatic rifle found in the kitchen (the same rifle which H.C. had seen in the possession of Stewart in the Acura TL during the "long night"). d) In the Pathfinder on black Nike shoes in a backpack in the rear hatch, on the mouth of a can, on an inhaler, on a cigarette butt, on a water bottle (mixed profile with Bradbury), and a Tim Horton's cup. 7. H.C. also recalls Vic being in the kill room and being involved in at least one of the group beatings. 8. When A&W food was brought into the Surrey House on the last day, surveillance evidence, including photographs, shows Acosta carrying drinks into the Surrey House. 9. H.C. believed that the Pathfinder was Acosta's because he was the one that was always driving it. He told the police that he did not know who owned either vehicle. 10. In addition to seeing Acosta in the Surrey House and in the Pathfinder, he saw him in the Acura TL on the afternoon of the last day. 11. It was on this occasion that Acosta jogged H.C.'s memory about having met him and spoken with him once previously. 12. Acosta testified that on this occasion, he threatened to put H.C.'s daughter "next to him". 13. On that afternoon, Vic was seen by surveillance putting H.C. into the rear driver's seat in the driveway of the Surrey House. He then walked around the car and got into the rear passenger seat. 14. During the last call on the last day, Acosta is identified by H.C. as a speaker to S.G. There is controversy between the parties as to whether H.C. had previously, when speaking to the police, attributed that call to Ali. The Crown acknowledges that he initially said to the police that it sounded like Ali, but that he was unsure. In Court, he was sure it was Acosta. 15. When the Acura TL returned to the Surrey House, they were alarmed by someone apparently taking pictures. Acosta went into the house to warn the others. Within minutes, four men rushed out of the Surrey House and fled in the Pathfinder. Surveillance confirms all of the foregoing. 16. H.C. had no difficulty picking out Acosta during the photo pack line‑up. He looked at the photograph for approximately 51 seconds before doing so and said "should be one of them". On the back of the photograph he wrote that "Vic" was "one of the grabbers". 17. Acosta made purchases on August 27, September 14 and 19, all captured on CCTV. Among the purchases were clear plastic sheeting, bolt cutters, zap straps, blow torches, latex gloves, and four burner phones. Stewart [148] The Crown points to the following evidence: 1. H.C. knew Stewart from jail. He was in jail from 2011 to 2015. He thinks he met Stewart in his second year. They also met once after they were both released from jail. They had not had a falling out. H.C. considered him his friend. 2. When H.C. first recognized Stewart: a) H.C. is certain that he saw Stewart before the last day. He had seen his face in the kill room and in the Acura TL during the "long night". He had also recognized his voice. b) He could not say when he first recognized his voice but when it was suggested that he had not heard it at the Surrey House, he said "I knew it for certain". c) H.C. could not recall the first time he saw Stewart without a mask, but recalled that he came into the kill room and stood over him. He was not wearing a mask at that time. H.C. testified that they wore balaclavas and masks the first night only but did not wear them after that. Before being taken out of the house the next day to make phone calls, they had stopped covering their faces. d) H.C. said that Stewart was in the Acura TL with him on the "long night". He believed this was the first time he had been in a car with him. He was seated beside Stewart in the back seat. Stewart was holding an assault rifle. They were in close proximity in the back seat over a number of hours. He could see him and hear him. 3. H.C. did not see the face of the person who kicked Cox in the head or face on the first night. That person was wearing a balaclava. However, DNA evidence indicates that a shoe with Stewart's DNA inside also has Cox's DNA and blood on the sole. 4. H.C. said that the other kidnappers wore disposable gloves. However, Stewart wore dark leather‑type gloves. Gloves of that description were found at the Surrey House with Stewart's DNA inside, and H.C.'s DNA (blood) on the outside. 5. H.C. never described Stewart as burning him or beating him but he was never certain about who was involved in the group attacks. The Crown argues that Stewart's gloves provide an answer to that. 6. With respect to weapons: a) H.C. recalled that prior to the "long night", the group discussed weapons. They were talking about being prepared in case they met with S.L. with whom they were discussing a ransom payment. b) When they were in the Acura TL on the "long night", they were armed. Stewart was in the back seat with him. He had a "big one". H.C. described it as an assault rifle. Ali had a .45 handgun. c) H.C.'s evidence concerning the weapons is corroborated by the weapons that the police found at the Surrey House and the Acura TL. They found a loaded semi-automatic rifle in a kitchen cupboard and a second rifle. A loaded .45 calibre handgun was found in the Acura TL on the seat where Ali had been sitting at the time of the rescue. 7. Of the 31 intercepted calls, H.C. identified Stewart's voice on 13 of them, but many of them were brief comments. 8. During the "long night", there was discussion amongst the kidnappers as to what to do. H.C. described Stewart as wanting to stick to the plan. He resisted suggestions being discussed by some of the others about the plan being side-tracked. By call number 28, Stewart spoke on the phone to S.L. and indicated that if he did not meet them this time, "I'm going to kill your friend right now". 9. On the last day, H.C. awoke to hear the kidnappers discussing the right time to kill H.C. In particular, this was Stewart and Figueredo. Figueredo wanted to kill H.C. at midnight. Stewart wanted to kill him at 6:00 p.m. H.C. described the reason both of them were willing to wait for some period of time was the continuing, but dwindling, hope that a ransom could be collected. 10. H.C. identified Stewart in Court without hesitation. He described him accurately. He referred to the tattoos on his neck in the plural, one on each side. He described one side as having praying hands and he could not recall what was on the other side. 11. When H.C. described Stewart to the police, he did not mention the tattoos. 12. In cross-examination, H.C.'s vision difficulties were tested. Counsel moved slowly with a photograph from a far end of the courtroom towards the witness stand asking every few feet if H.C. could see the picture. He could not see that it was the face of a man until the photograph was approximately four feet away from H.C. At three feet, he could see a face but no tattoo and at approximately two feet away, he could see a face and a tattoo. Also from that two foot distance, H.C. could say that the photograph of the man with the tattoo was not Stewart. He was correct. 13. In fact, it was a photograph of a man named Mike Ross. He has one tattoo on his neck. It is not a tattoo of praying hands and there is no tattoo on the other side of the neck. 14. The photo pack line‑up was fairly constructed. 15. The photo pack line-up process was video recorded. H.C. was shown the photograph of Stewart after approximately a minute. Stewart's tattoos had been removed from the photograph by the person who constructed the photo pack line‑up. Eleven seconds after being shown that photograph, H.C. identified Stewart. He said "It's one of the guys. I used to call him a friend". 16. This occurred on September 20, that is, one day after H.C.'s rescue. His vision difficulties, which resulted from his injuries, would have been the same as during his captivity. 17. Stewart had a prior connection to the Surrey House in July and August, previously referred to in this judgment. 18. Stewart's Mastercard documents were found in the kitchen. 19. Stewart's DNA was found on a number of items and are itemized more fully later in this judgment. These include his DNA on two balaclavas, black leather gloves with H.C.'s blood on the outside of the gloves, a straw in a drink cup, and a straw in the garbage room. 20. With respect to the balaclavas: a) Stewart's DNA is found inside two separate balaclavas at two crime scenes - in the Surrey House and in the Acura TL. b) Stewart's DNA on the balaclava in the front passenger footwell of the Acura TL suggests that Stewart put it there after leaving Dieppe. This was the only time that anyone wore balaclavas. c) When H.C. saw a masked kidnapper kick Cox in the face/head area, that person was wearing a balaclava. d) The fact that Stewart and Bradbury both have their DNA in a single balaclava (the one found at the Surrey House) suggests that they were active participants in a joint venture from the beginning. 21. His fingerprints, which will be itemized more fully later in this judgment, were found on a Vaseline container in the bathroom, and a disposable glove in the garbage room. Bradbury [149] The Crown points to the following evidence: 1. He was arrested on January 28, 2017. He was likely in the Pathfinder which was abandoned on September 19, 2016. 2. The evidence of identification of Bradbury: a) H.C. had never met Bradbury before. b) He said that one of the kidnappers was "Ellwood". He learned his name as he heard others referring to him by that name and he responded to it. c) His face was in close proximity to Bradbury's (together with Ali) when they came into the kill room on the third day with bolt cutters, a blow torch, and proceeded to attempt to cut/burn H.C.'s pinky off. d) The evidence of the uniqueness of the name "Ellwood". e) H.C. had significant opportunities to observe. f) He saw and interacted with Bradbury on a number of occasions, especially in the kill room, and in the vehicles during the ransom calls. g) H.C. testified that, on the first night, he overheard Bradbury say to some of the others that, while at Dieppe, he had almost decided to shoot H.C.'s dog. h) He also heard Bradbury talking to and interacting with the other five kidnappers. i) During the interactions, he could see his face clearly and hear his voice. j) H.C. described his voice as "rather unique" and "gravelly". k) Bradbury's gravelly voice can be heard on the ransom calls. l) He could not recall when he first saw him without a mask. m) One of his first recollections is when he saw Bradbury using H.C.'s zapper and asking him questions about it. At this time, Bradbury was wearing a baseball cap but no mask. Bradbury was showing him the names in the zapper and was right in front of H.C. n) The possession of the zapper by Bradbury is corroborated by surveillance who saw it thrown out of the Pathfinder shortly before it was abandoned. The zapper was later recovered and confirmed as H.C.'s. o) H.C. last saw Bradbury when the vehicles were side-by-side near the tennis courts, shortly before they separated for good. H.C. described Bradbury getting out of the Pathfinder and then getting back in. Cox got into the Acura TL. This is contrary to the evidence of one of the surveillance officers who saw Bradbury get into the Acura TL. That surveillance officer was some distance away. That he was mistaken and H.C. was correct is confirmed by the fact that Cox was in the car, and Bradbury was not, shortly afterwards when the Acura TL was stopped by police at the time of H.C.'s rescue. 3. With respect to in‑court identification: a) H.C. identified Bradbury in Court. b) He testified that he looked different in Court then when he saw him during the events. He was bigger and his hair was longer. c) He described him as Caucasian, blond-ish and beefed up. The video of Bradbury by surveillance matches this description. d) He agreed there is a possibility for mistakes in identification. Here he said it was not a mistake. The person in Court had the face of Bradbury that he remembers. 4. H.C. failed to pick out the photograph of Bradbury in a photo pack line‑up. However, as will be discussed later in this judgment, the photo pack line‑up was faulty and should simply be ignored, the Crown argues. 5. There is evidence indicating that H.C. was instrumental in arranging the rental of the Surrey House for the kidnapping: a) H.C. overheard the kidnappers talking about the rental arrangements of the house. He heard one of them saying that they had the house for a month or two and would have it for another month. b) The owner of the house testified that it was rented out on a short term basis. He believed it had been rented out for two or three months in the Summer of 2016 to a woman. He had directed that those occupants be evicted. c) There is evidence that Bradbury had been to the Surrey House earlier than September. This refers to the evidence of the Surrey House in July and August, previously referred to in this judgment. d) A document between Bradbury and his counsel, dated August 12, 2016, was found in the garbage room. e) There is a photograph, referred to earlier in the evidence, of Bradbury and Figueredo sitting next to each other in the Surrey House, taken sometime in July. 6. With respect to the ransom calls: a) In one of those calls, H.C. tells S.L. that the kidnappers were threatening to cut off his fingers. The attempt to do this occurred the next day when Ali and Bradbury came into the room. b) In one of the calls, S.L. asks if ransom has to be paid in cash. On the recording, Bradbury can be heard answering and H.C. repeating the answer to S.L. c) In one of the calls, Bradbury tells S.L. directly that they want $500,000. Ali says they will not settle for anything less. He says they are not interested in $50,000 when there is $250,000 on this "fucking goof's head". d) H.C. testified that from time to time either Ali or Bradbury struck him during various of the calls. His reactions can be heard on the recordings. 7. Evidence of assaults against H.C.: a) H.C. was hit by Ali and Bradbury during various ransom calls. b) On the last day, after Figueredo gave H.C. A&W food, Bradbury and Ali came into the room and the incident previously described involving the bolt cutters, the blow torch, and H.C.'s pinky, occurred. 8. Forensic evidence, which will be discussed in greater detail later in this judgment, indicates the following: a) Bradbury's fingerprints were found on the inside of the front door, an A&W food wrapper in the garbage room, and the toilet flush handle. b) H.C.'s and Bradbury's DNA is found on a pair of Nike Shox shoes left in the kitchen. Bradbury's DNA was on the inside and H.C.'s blood was on the outside. c) H.C. had never been to the Surrey House before September 17. Therefore, his DNA on any item at the Surrey house can be dated. d) A Bradbury fingerprint was on an A&W wrapper found in the garbage room. e) Among other items in the garbage room with forensic evidence connected to other accused, Bradbury's DNA was found on a charred sweatshirt, and his fingerprints on a clear plastic bag. f) Bradbury's and Cox's DNA are found on the same straw. There was still liquid in the glass. It was located on the kitchen counter. g) Bradbury's DNA is found on one side of a towel, where H.C.'s blood is on the other. H.C.'s evidence is that the towel had been thrown to H.C. by Bradbury after the attempt by Bradbury and Ali to cut off H.C.'s pinky. h) Bradbury's and Acosta's DNA were found on the mouth of a water bottle in the Pathfinder. [150] H.C. has no motive to lie about Bradbury. He had never met him before or had any indirect dealings with him or about him. Identification As Related By H.C. General [151] H.C.'s evidence, if accurate, establishes the participation of each of the six accused as being members of the joint venture of kidnapping. [152] The Crown argues that the identification of the kidnappers is proven beyond a reasonable doubt by a combination of: 1. The direct evidence of identification by H.C. which includes the following: a) The in-court identification of all six accused by H.C. together with his evidence of how he came to recognize them. b) The voice identification of all six accused as a result of a combination of H.C. being in the vehicle while the ransom calls were occurring, hearing subsequent recordings of those ransom calls together with transcripts, hearing their voices within the Surrey House and matching them to faces. c) The accurate photo pack line-up identification of three of four of the accused. d) His significant prior relationship with three of the kidnappers and a prior meeting with a fourth. e) H.C.'s evidence of learning the names of two of the kidnappers who he had never met before. 2. Circumstantial evidence which includes: a) Forensic evidence (DNA and fingerprints) of all of the accused which is found at various of the crime scenes. b) The arrest of three of the accused in a vehicle where H.C. was a captive at the time of his rescue. c) Evidence of purchases by various of the accused of items which were used during the commission of the crimes. d) Surveillance evidence of police officers. [153] With respect to voice identification based on H.C.'s "participation" in the ransom calls, the accused argue that this aspect of the evidence should be considered worthless by the Court. Prior to giving this evidence in Court, H.C. had heard the ransom calls played several times and had the benefit of a transcript to assist him. Further, he was asked by the police, while going through that process, to identify, to the extent that he was able, the voices of the persons speaking. He did attempt to do so. He provided that information to the police, and it is that information which "names" the speakers on the transcripts. H.C. had those transcripts in front of him during the giving of his oral evidence. The accused argue that, surely, he cannot be said to have identified the voices in Court, because the foregoing circumstances suggest he was aided in the process. [154] The defence complaint would be better founded if the names on the transcripts had been provided by the police to H.C. However, the names on the transcripts were names provided by H.C. He was the only one who could provide them. Therefore, they are the equivalent of "notes" made by H.C. and I was, and am, satisfied that it was appropriate in the circumstances that he be entitled to have the transcripts in front of him, just as the Court and the accused did, while recorded conversations were being played in Court. [155] The pre-trial identification of the speakers on the recorded calls is not admissible for its truth. However, it does assist in assessing the weight to be attributed to in-court identification and in knowing whether H.C. was (or was not) able to identify the accused at an early stage of the investigation, without any assistance beyond his own prior observations. [156] Some of the accused argue that H.C.'s verbal descriptions of them are lacking in detail and particularity and therefore the Court should be reluctant to accept his identification of them as accurate. [157] In response to that, the Crown notes that H.C. spent over 40 hours with the six men, interacting with all of them in close proximity. He knew three of them as friends. One of them lived in his home. He had met a fourth one on one prior occasion. Two of them he had not met before, however, because of his interactions with them, he spent more time with them, in close proximity, than he did with any of the others. [158] The Crown concedes that H.C.'s verbalization of identifying features of the accused was less than is sometimes heard in courtrooms. Having said that, the Crown refers me to the following: 1. Concerning the amount of detail that a witness is able to provide in describing a perpetrator, it is important that the Court have realistic expectations: R. v. Downey, 2018 NSCA 33. 2. "Human capacity for recognition, while imperfect, outstrips the human ability to describe what has been observed": R. v. Ambrose, 2015 ONCJ 813. 3. Identification evidence should be assessed in its totality rather than as a piecemeal analysis. [159] H.C. was shown four photo pack line‑ups at the hospital on September 20, 2016. He was not shown a photo pack line‑up of the two accused with whom he was friends - Cox and Figueredo. [160] H.C. had problems with his vision throughout the ordeal: 1. He is near-sighted and requires eyeglasses. 2. He was not wearing his glasses after the first few minutes of the incident at Dieppe. They were knocked off his face as a result of the original assault at Dieppe. 3. His right eye was virtually swollen shut during the incident. He testified that he was still able to see out of it. While he agreed that he could not see well, he rejected the notion that he could not see anything out of his right eye. 4. He had a periorbital fracture of his eye, described by Dr. Balcar as a fracture of the area surrounding the eye. Dr. Balcar testified that there was no damage to the eye itself and there was no problem with H.C.'s vision, nor did he complain of any. 5. He did not have his eyeglasses with him at the time of the photo pack line-up presentation. 6. In Court, he was not able to identify a picture of a man, as a man, or to comment on what it was a picture of, until it was within a few feet of his face. [161] The Crown points out that despite the foregoing, H.C. was with them for 45 hours, much of it in close proximity - within the kill room, when they were beating him, and when they were in the vehicles. [162] Despite the foregoing difficulties with his vision, he identified three of the four accused persons who he observed in the photo pack line-up presentations. All three have been forensically linked to various of the crime scenes. Bradbury was not identified by H.C. in a photo pack line-up presentation but has been forensically linked to various of the crime scenes. The Bradbury photo pack line-up issue is discussed in greater detail under the heading Bradbury - Defence Submission. [163] H.C. testified that of the six kidnappers, he knew three of them immediately: Cox, Figueredo, and Stewart. He had known them for years and considered them to be friends. He recognized them as soon as he heard their voices, and when he saw them. He immediately knew their names. [164] H.C. had not met two of the six accused (Ali and Bradbury) prior to September 17. However, after the kidnapping, he spent more time in their company than with the others. He had the most intense contact with Ali and Bradbury. By September 19, he knew them. [165] H.C. identified them by the names he heard them answer to, Shamil/Shmerda and Ellwood. Shamil is Ali's first name. Ellwood is Bradbury's first name. The names Shamil and Ellwood are distinctive. [166] H.C. testified that he also identified the men through their voices which he came to know well during the period of his captivity. He testified that he was focused on their voices and was able to put the voices to the faces. He was able to distinguish between the six voices themselves, and also the voices of several others, non-accused persons, who were present on occasion. [167] He recognized his "little brother" Figueredo's voice when he heard it at Dieppe. At the Surrey House he recognized his close friend and roommate Cox's voice and his friend Stewart's voice. He heard the voice that answered to Shamil/Shmerda, first at Dieppe, and then at the Surrey House. He identified the voices of "Vic" and "Ellwood" when he heard them and when they answered to those names at the Surrey House. In addition, each of these people spoke directly to him at various times when they were unmasked. In this way, he matched the voice to the name and to the face. [168] When ransom demands were being made, H.C. was in whichever vehicle the phone was in. He could not recall which vehicle he was in at any precise moment. He was present when people were talking to S.L. and to each other in the vehicles. His recollection of the speaker's identities is based on the fact that he was present and it is assisted by the content of the communications. It is not surprising that he was not able to recall the exact date and place of each of the ransom calls. [169] Voice identification is one aspect of the overall evidence of identification. It cannot be assessed in isolation. Derived from Evidence Other Than H.C. [170] Surveillance officers were involved in a number of respects in this investigation, including: 1. Officers in stationary positions observing the Surrey House, and the comings and goings from it, since early in the morning on September 19 (the third day). 2. Officers following the Acura TL and the Pathfinder from time to time, on a number of occasions, confirming such things as the fact that the two vehicles were driving in tandem, that they were in certain areas from which it was later confirmed some of the ransom calls were being made. 3. Officers in vehicles following the occupants of the house in either the Acura TL or the Pathfinder to various stores where purchases were made and CCTV images created. 4. Officers taking surreptitious photographs and video footage of persons coming and going from the Surrey House to and from various stores and other locations. [171] As the surveillance officers were surveilling the comings and goings in the above-noted locations, and taking photographs, they were making tentative identifications of those persons. Some of the photographs enable something close to positive identifications to be made, partly on the basis of clothing that they were wearing which was later recovered by the police. [172] Counsel raised a number of criticisms about the surveillance officers including that the tentative identifications were less than perfect and that the standard manner of keeping notes as a group, rather than individually, denies proper disclosure to the defence and hampers a fair cross-examination. [173] On the afternoon of the last day, surveillance watched as the Acura TL returned to the Surrey House and then left immediately after. Just after the Acura TL turned onto the Surrey House at the front of the Surrey House, a car door was heard opening and closing. A male was observed at the top of the stairs near the front door of the Surrey House. Minutes later, four males left the Surrey House in the Pathfinder at approximately 2:42 p.m. H.C.'s evidence is that after the Acura TL left the Surrey House, they met up with the Pathfinder. The two cars drove around in tandem [174] The surveillance evidence corroborates the movement of the two vehicles. The evidence of ERT members similarly corroborates the movement of the vehicles, the final stopping of the Acura TL and arrest of Figueredo, Ali, and Cox, and the rescue of H.C. at approximately 3:45 p.m. on September 19. [175] The Pathfinder, driven by Acosta fled police and was found abandoned at 3:47 p.m. in Burnaby. Bradbury, Stewart, and Acosta were arrested at later times. POTENTIAL CONFIRMATORY EVIDENCE General [176] The Crown argues that the potential confirmatory evidence is confirmatory with respect to two distinct issues: 1. Identification of the accused as the persons who committed these crimes. 2. As evidence of the acts committed by the individuals and/or as evidence of their involvement together in a joint venture. [177] The Crown also argues that the potential confirmatory evidence has not only confirmatory value, but also value as evidence that, independent of H.C.'s evidence, assists in establishing various aspects of the case that the Crown relies on. [178] The potential confirmatory evidence falls generally into the following categories: 1. Three arrested in the presence of H.C. 2. Seized on arrest. 3. Fingerprints. 4. DNA. 5. Footwear impressions. 6. Surveillance. 7. Phone calls. 8. Purchases of items by accused. 9. Voice identification [179] Some or all of the accused are connected to some or all of the crime scenes by some or all of the above. [180] While the expert witnesses in DNA matters gave evidence and provided reports noting an "estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile", the numbers were of such magnitude that I am left in no doubt that the samples that result in those opinions were indeed samples of the DNA from the person with whom the comparison had been made. Consequently, I do not intend to set out that profiles are similar or alike or in what degrees. I do intend to refer to the comparisons made by the DNA experts which resulted in those comparisons of magnitude as the DNA of the person matched to the known sample. [181] The charts that follow list potential confirmatory evidence attributable to H.C., the six accused, and various non-accused parties. The locations referred to are those locations where police found the exhibits associated with the confirmatory evidence. H.C.'s DNA Connecting Him to Accused and/or Various Crime Scenes [182] The Crown argues that the location of this DNA is confirmatory evidence corroborating: 1. The presence of H.C. at those crime scenes. 2. The physical proximity of H.C. to that of those accused with whom his DNA is mixed. 3. In some situations, the actions of those accused with whom his DNA is mixed. DNA Dieppe 1. On eyeglasses; on the floor in the living room - H.C. is the major component of a partial profile (A "number of other contributors" unknown). The Surrey House 1. Two black Wilson XL gloves - above the fridge in the kitchen - interior right palm (mixed profile - major component Stewart); H.C.'s DNA exterior back left thumb (positive for H.C. blood). 2. Nike Shox shoes - on floor near stove in kitchen - Bradbury major component on interior top of heel; H.C.'s DNA - blood on outstep and sole of left shoe. 3. H.C.'s DNA - Belmont brand cigarette butt - in the kitchen sink. 4. H.C.'s DNA on swab of Benzomatic propane torch handle found on the fireplace hearth. 5. H.C.'s DNA major component on cigarette butt (mixed profile from another) found on living room floor near fireplace. 6. Swab of black electrical cord - on ground in kill room - mixed profile - H.C.'s DNA major component. 7. Bath towel with bleach and blood stains - on mattress in kill room - H.C.'s DNA on one side centre and other side corner; Bradbury major component on other side near one end. 8. Three Belmont cigarette butts - inside plastic sheeting in doorway of garbage room - H.C.'s DNA on filter on one of the butts. Seized on arrest of Cox, Figueredo, and Ali 1. Cox Nike shoe - on Cox at arrest; H.C.'s DNA minor component bottom of left sole. 2. Ali black sweater - on Ali at arrest; H.C.'s DNA on two locations on upper back. 3. Ali white t-shirt; on Ali at arrest - H.C.'s DNA at two locations on upper exterior of back. 4. Ali Nike Air Max shoes - on Ali at arrest - H.C.'s DNA on right shoe, exterior top front toe and exterior outstep - on left shoe, exterior instep upper and exterior instep near heel. 5. Figueredo Nike Shox shoes - on Figueredo at arrest - H.C.'s DNA on left shoe bottom middle sole. 6. Burned clothing in MDX - back seat of burned out MDX - H.C.'s DNA on one pocket opening and above another pocket. POTENTIAL CONFIRMATORY EVIDENCE - THE EVIDENCE APPLIED TO EACH ACCUSED Cox Three arrested in the presence of H.C. [183] Cox was arrested in the Acura TL after being followed while that vehicle was being driven in tandem with the Pathfinder. When there was an attempt by the police to force the vehicles to stop, they attempted to escape in different directions. Anticipating that H.C. was in the Acura TL, the police followed that vehicle. It was subsequently apprehended after it crashed. In the vehicle was Cox, Ali, Figueredo, and H.C. Cox was seated in the back seat with H.C., who was bound, injured, and rescued that time. Seized on arrest 1. Cox's Nike Shox shoe - Cox at arrest; H.C.'s DNA on left shoe bottom of sole. Fingerprints Dieppe 1. Two palm prints on the window of the bedroom in which he resided. 2. One fingerprint on the inside door to the office. The Surrey House 1. Fingerprint on a plastic cheesecake lid in the fridge in the kitchen. 2. Fingerprint on a potato salad container in the fridge in the kitchen. 3. Fingerprint on an open potato chip bag with chips inside on the kitchen counter. 4. Fingerprint on a bread bag with bread inside on the kitchen counter. The Pathfinder 1. Palm print on the interior passenger side rear door. DNA Dieppe 1. On black gloves - on the sink in the downstairs office bathroom (a possible contributor with Figueredo to a mixed profile). The Surrey House 1. On a swab of an A&W straw - in an A&W cup on the kitchen counter ­- Cox's DNA contributor to minor component; Bradbury's DNA matches major component. 2. Dark blue Rosin shoes (Army & Navy purchase): (a) Cox's DNA - blooded right shoe sole at back of heel - mixed profile (major matches Cox); (b) left shoe sole at heel: (i) major component Cox; (ii) minor component Grattan; (c) right shoe interior back of heel tab and - mixed profile - major Stewart. 3. Swab of blood stain - living room couch cushion - Cox's DNA Figueredo Three arrested in the presence of H.C. [184] Figueredo was arrested in the Acura TL with Cox and Ali, at the time of H.C.'s rescue. Seized on arrest 1. Figueredo Nike Shox shoes - on Figueredo at arrest - H.C.'s DNA on left shoe bottom middle sole. Fingerprints The Surrey House 1. On a Dove deodorant stick; in the bathroom - left palm print. DNA Dieppe 1. Black gloves - on the sink in the downstairs office bathroom - Cox and Figueredo are possible contributors to the mixed profile. The Surrey House 1. Hoodie - living room couch in a pile - Figueredo's DNA on the exterior back centre waistband. 2. Swab of A&W straw - mouth end - mantle of fireplace in living room - Figueredo and Ali's DNA on swab of mouth end of straw. 3. Three white latex gloves - under pieces of plastic sheeting in garbage room - Ali's DNA on interior of glove two; Figueredo's DNA on interior of glove one; Grattan on exterior of glove two. The Pathfinder 1. Blue latex gloves - rear hatch of Pathfinder - Figueredo's DNA on interior of glove and major component of exterior of glove. Footwear impressions [185] The expert opinion of the officer who gave this evidence was that Figueredo (and Ali and Bradbury) wore footwear that had the same class characteristics as footwear impressions found next to the body of H.C.'s girlfriend at Dieppe. He cannot be excluded as a possible donor. [186] The evidence is not conclusive respecting the match of the footwear impressions to the footwear seized. There are no accidental characteristics and the expert opinion is that, while they are consistent with the tread on the floor near his H.C.'s girlfriend's body, it is impossible to distinguish them from (perhaps thousands or more) similar pairs which also have no accidental characteristics. [187] These shoes were seized from Figueredo on arrest. Purchases of items by accused [188] On August 20, 2016, Figueredo's credit card was used to purchase a number of items that were used in the kidnapping of H.C. These items included seven pairs of identical shoes, six sweat suits (hoodies and sweat pants), and disposable gloves. Five of these pairs of shoes were later recovered and were linked back to the Surrey House, the kidnapping and several of the accused through DNA. Ali Three arrested in the presence of H.C. [189] Ali was in the Acura TL with Cox and Figueredo at the time of H.C.'s rescue. Seized on arrest 1. Ali black sweater - on Ali at arrest; H.C.'s DNA on two locations on upper back. 2. Ali white t-shirt - on Ali at arrest; H.C.'s DNA at two locations on upper exterior of back. 3. Ali Nike Air Max shoes - on Ali at arrest; H.C.'s DNA on right shoe - exterior top front toe and exterior outstep - on left shoe, exterior instep upper and exterior instep near heel. DNA The Surrey House 1. Black Army & Navy shoes - in front of the stove in the kitchen - right shoe interior back heel and tab (mixed profile - major component Ali). 2. Dark blue hoodie with white lined hood - living room couch - Ali's DNA - exterior left sleeve of cuff. 3. Air Jordan black hoodie - partially under loveseat cushion in living room - Ali's DNA - front middle left side and exterior left side of the hood. 4. Swab of A&W straw - mouth end - mantle of fireplace in living room - Ali's DNA; (and Figueredo's DNA - major component). 5. Pair of white latex gloves; under cushion on couch in living room - Ali major contributor of mixed profiles on exterior of both gloves and interior of one glove. 6. Chewed gum stuck to fabric mask made from t-shirt sleeve; on top of pieces of plastic sheeting in garbage room - Ali's DNA on interior centre of gum. 7. Three white latex gloves; underneath pieces of plastic sheeting in garbage room - Ali's DNA on interior of glove two; Figueredo's DNA on interior of glove one; Grattan's DNA on exterior of glove two. Acura TL 1. Black balaclava - on front passenger seat - Ali's DNA on the interior top/back of head and on the interior around the mouth/nose. The Pathfinder 1. Found on the swab of handle of spoon - in the centre console - Ali major component of mixed sample. Footwear impressions [190] The expert opinion of the officer who gave this evidence was that Ali wore footwear that had the same class characteristics as footwear impressions found next to the body of the H.C.'s deceased girlfriend at Dieppe. He cannot be excluded as a possible donor. [191] Cst. Southworth does not know the statistical probability that the impression was created by Ali's shoes. [192] He testified that he cannot say with any certainty that the impression was left by the shoes connected to Ali; only that it was consistent. Surveillance [193] On September 19, 2016, police surveilled the Surrey House. Officers noted three males left the Surrey House in the Pathfinder and travelled to the Surrey Central Mall. [194] One of the males was wearing a white baseball cap and a dark hoodie. There is no further description of this male. [195] The Pathfinder returned to the Surrey House and three men entered the house. The driver of the Pathfinder was wearing clothing similar to that which Ali was wearing upon his arrest. He had dark skin and was wearing a dark sweatshirt and a white Adidas hat. Surveillance believed him to be one of the men who had left the Surrey House earlier in the day. Purchases of items by accused [196] On September 18, 2016 at 11:39 a.m., CCTV captures Ali purchasing three flip phone from London Drugs. The cell phones were used to make ransom demands. Acosta Fingerprints The Surrey House 1. Clear plastic food container - inside refrigerator in kitchen. 2. On blue Benzomatic gas cylinder - on stovetop in kitchen. 3. On stapler; in bag with staples found in kitchen cupboard. 4. On Blackberry cell phone - on the mantle on the fireplace in the living room. The Pathfinder 1. On rear view mirror and documents inside glove compartment (immigration documents, dog license documents, and vehicle insurance documents). DNA The Surrey House 1. Export A cigarette butt - rear of house near side door. 2. Swab of trigger of Kel-Tec 9 mm Luger - in cupboard in kitchen; mixed profile - major component Acosta. 3. Single black glove - under cushion on couch in living room - exterior - Acosta major contributor of mixed profile on exterior. 4. Belmont brand cigarette butt - on floor in kill room behind door - Acosta's DNA on filter end. 5. Swab of A&W straw - mouth end - on top of pieces of plastic sheeting in garbage room - Acosta's DNA on mouth end of straw. The Pathfinder 1. Black Nike shoes - in backpack in rear hatch - on right shoe interior tongue and back of heel, and left shoe interior tongue and back of heel. 2. Swab from mouth of can - in in rear hatch. 3. Swab from inhaler - front cup holder. 4. Cigarette butt - ashtray - DNA on filter end. 5. Swab from mouth area of water bottle - front passenger footwell - Acosta minor profile; Bradbury major profile. 6. Swab from brim from Tim Horton's cup - front passenger footwell. Purchases of items by accused [197] On August 27, 2016, CCTV captures Acosta purchasing 15 items from Home Depot including clear plastic sheeting, bolt cutters, zap straps, two blow torches, utility knives, gloves, and staple guns. [198] On September 14, 2016, CCTV captures Acosta purchasing four items from Canadian Tire including a box of latex gloves, a staple gun, and staples. A Canadian Tire customer receipt dated September 14, 2016 was found in the entrance of the garbage room at the Surrey House and is an exhibit in this trial. [199] On September 19, 2016, CCTV and surveillance see Acosta purchase four burner phones from WOW! mobile. These phones were used to make ransom demands of S.L. and S.G. The burner phones purchased by Ali and Acosta were used to make ransom demands. Some of these ransom calls were intercepted by the police pursuant to their utilization of the emergency wiretap provisions of the Criminal Code and were admitted into evidence at trial. Stewart Fingerprints The Surrey House 1. Three fingerprints on pre-paid Mastercard Titanium papers - on top of dryer in laundry area of kitchen (one of these papers corresponded by matching number to the activation of a Titanium Mastercard on July 25, 2016). 2. Fingerprints on Vaseline jar - in bathroom on counter beside sink. 3. Fingerprints on clear latex glove - in green garbage bag in garbage room (bulk exhibit). DNA The Surrey House 1. Two black Wilson XL gloves - above fridge in kitchen - interior right palm (mixed profile - major component Stewart); H.C.'s DNA exterior back left thumb (positive for H.C. blood). 2. Black balaclava - in cupboard in kitchen: (a) interior top of head - mixed profile - major matches Bradbury; minor matches Stewart; (b) interior around mouth hole; mixed profile - major matches Stewart; minor - at least two others - no meaningful comparison. 3. Dark blue Rosin shoes (Army & Navy purchase) from laundry area/kitchen on shelf above washing machine: (a) Cox's DNA - blooded right shoe sole at back of heel - mixed profile - major matches Cox; (b) left shoe sole at heel - mixed profile - major component Cox - minor component Grattan; (c) Stewart's DNA - right shoe interior back of heel tab and - mixed profile - major Stewart. 4. Swab of A&W straw mouth end - on living room floor - Stewart's DNA on mouth end. 5. Swab of A&W straw mouth end - Samsung t.v. box in garbage room (bulk exhibit) - Stewart's DNA on mouth end. Acura TL 1. Black balaclava; in front passenger footwell - Stewart's DNA at interior around mouth/nose and interior at top. Bradbury Fingerprints The Surrey House 1. On the front door; entrance/exit into living room. 2. On chrome handle of toilet flush. 3. On A&W food wrapper in garbage room. 4. A plastic bag in the garbage room. DNA The Surrey House 1. Belmont cigarette butt - at rear of house near side door. 2. Belmont cigarette butt - at rear of house near pickup truck passenger door. 3. Nike Shox shoes - on floor near stove in kitchen - Bradbury major component on interior top of heel; H.C.'s DNA - blood on outstep and sole of left shoe. 4. Swab of A&W straw - from A&W cup on kitchen counter - Bradbury major component - Cox minor component. 5. Black balaclava in cupboard in kitchen: (a) interior top of head - mixed profile - major matches Bradbury; minor matches Stewart; 6. Bath towel with bleach and blood stains - on mattress in kill room - H.C.'s DNA on one side centre and other side corner; Bradbury major component on other side near one end. 7. Gray Under Armour XL hoodie with burn holes on back - inside bulk exhibit (contents of charcoal bag and white box in garbage room); Bradbury left sleeve under arm and interior back neckline (major component) and interior right cuff (major component). Pathfinder 1. Swab from mouth area of water bottle - front passenger footwell - Acosta minor profile; Bradbury major profile. Footwear Impressions 1. The pair of shoes seized from the Surrey House which had inside it Bradbury's DNA, had the same class characteristics as footwear impressions found near the bodies of the two deceased at Dieppe, according to the expert evidence. It had no accidental characteristics, and consequently the most that can be said is that the shoes are consistent with having left that impression. It is also accurate to say that Bradbury's DNA on the inside does not make it a certainty that he ever wore the shoes. Non-Accused Parties Fingerprints - Witness "A" Dieppe 1. In basement room (where the drugs were processed) - three prints - one on safe drawer, one on door, and one on wall - one print in each of those locations. Fingerprints - Grattan The Surrey House 1. Three individual plastic bags - in garbage room - two of them a single Grattan print - one of them with two Grattan prints. 2. Uline air pillow - in garbage room - two Grattan prints. 3. Plastic tray - in garbage room - single Grattan print. DNA - Grattan The Surrey House 1. Belmont and non-Belmont cigarette butts - rear of house near side door - Grattan DNA. 2. Dark blue Rosin (Army and Navy purchase) shoes: a) Cox DNA - blood at right show sole at back of heal - mixed profile - major matches Cox. b) Left shoe sole at heel - mixed with major component Cox and minor component Grattan. c) Stewart DNA - right show interior back of heel - mixed profile - major is Stewart. 3. Three white latex gloves - in garbage room: a) Ali's DNA - interior of glove two. b) Figueredo's DNA - interior of glove one. c) Grattan's DNA - exterior of glove two. Fingerprints - Pichler The Surrey House 1. On plastic Walmart bag - inside washing machine in kitchen - two Pichler prints. Fingerprints - Cassandra Reeve The Surrey House 1. One fingerprint on slushy cups inside freezer. Fingerprints - Stephens The Surrey House 1. One fingerprint on slushy cups inside freezer - also on Tim Horton's wrapper inside black garbage bag in garbage room. DNA - Ross The Surrey House 1. Non-Belmont brand cigarette - rear of house near side door. H.C. attempt to identify any of the non-accused [200] In cross-examination, H.C. was shown a photograph of Ross during when the "eye test" was conducted by one of the counsel moving gradually closer to the witness before he could even identify that it was a picture of a man's face. Ultimately he did so and, while holding the picture close to his face, did not identify the man as someone he knew. That picture is an exhibit at the trial. [201] In cross-examination, H.C. was shown a copy of a picture of Pichler and was asked if he could identify the photo. He testified that he was not able to do so. That picture was also an exhibit on the trial. DEFENCE SUBMISSIONS [202] I now turn to the individual defence submissions. Cox - Defence Submission [203] Cox makes two primary arguments (which are separate and independent from each other): 1. The evidence falls short of proving that he was a co-perpetrator on all the counts. 2. The defence of duress. [204] The crucial issue is: has the Crown proven beyond a reasonable doubt: 1. That Cox was present at Dieppe at the time of the killing?; and 2. What "requisite intention" of Cox has the Crown proven? [205] Counsel argues that I should reject the evidence of H.C. concerning Cox with respect to two significant issues: 1. H.C. testified in direct examination, that Cox was in the MDX at Dieppe when H.C. got into the vehicle. The first time he said this was at trial. He did not say this when interviewed by the police on September 19, 20 and 21, 2016. The statement of September 21 was under oath. (H.C. acknowledged, in cross-examination, that he did not mention the foregoing in his statements to the police; he only made reference to the "masked men" in the MDX.) 2. H.C. testified that Cox "thanked" the other people in the Surrey House. In cross-examination, he confirmed that he had never disclosed that in any of his interviews with the police or the Crown. [206] Counsel argues that the evidence falls short of proving that Cox was a co‑perpetrator. There is a complete absence of evidence when it comes to: 1. Any planning or preparatory steps prior to September 17. 2. Any plan to use firearms or use knowledge that firearms will be used. 3. Any act tending to show participation in or aiding and abetting in the killings. [207] There is insufficient evidence to establish his knowledge of the kidnappers' intentions with regard to unlawfully confining H.C. [208] With respect to the manslaughter counts, the evidence fails to prove that he was in Dieppe at the time of the killings or that he participated in the events that led to their deaths. [209] To the extent that there is some evidence to support the theory that he was a party to the kidnapping and unlawful confinement, the defence of duress is available such that his conduct was morally involuntary. [210] Counsel summarizes the evidence (and the absence of evidence) that establishes there is insufficient evidence of any requisite intention or reasonable foreseeability of the risk of non-trivial bodily harm to unknown third parties: 1. H.C. recalls Cox being home when H.C. got home. H.C.'s dog was not barking or acting strangely when he got home. His dog knows Cox. 2. Figueredo came over. The dog started barking. 3. The t.v. was off and Cox and Figueredo left the room. 4. H.C. is waiting for his girlfriend to get home. He was not paying attention to Cox and did not know where in the house he was. 5. The next time he saw Cox was in the back seat of the MDX as it was leaving Dieppe. 6. At no point did he say Cox was ever masked or that he believed he was masked. 7. There is no evidence to suggest that Cox was ever masked. 8. Cox was wearing different clothing from the others which H.C. described to be like a "uniform". He described Cox's hoodie as a "loud hoodie". Cox's arrest photographs show him to be wearing a block hoodie with large white printing/design on it. 9. There is no evidence to show Cox took any preparatory steps for the commission of any of the offences prior to September 17. 10. Cox's wallet, identification is all left behind at Dieppe in his bedroom. 11. Cox's voice is not identified by H.C. as speaking on any of the ransom calls. 12. There is no forensic evidence linking Cox to any of the balaclavas or firearms recovered in this case. 13. The evidence indicates that Cox had access to the safe. Both H.C. and Witness "A" said that the persons with access to the safe were Witness "A" and Cox. Nevertheless, Cox's fingerprint was not in or on the safe. The only fingerprint linked to the safe was Witness "A"'s. [211] The case law is clear that "mere presence" is not enough to establish party liability under ss. 21(1)(b) or 22(1)(c). Even if the Court finds that Cox was present at Dieppe and witnessed H.C. being kidnapped and the killing of the other two, there is an absence of evidence to establish Cox had the requisite mental state to establish he was an aider and abetter: R. v. Mercer, 2005 BCCA 144 at para. 55. [212] Four-year-old K.B. was at Dieppe and told police that Cox was present at the relevant time. [213] Counsel argues that K.B.'s evidence should be given little or no weight not only because of his age but because of the observations and transcript of his interview by a police officer. If K.B. is correct in saying that he saw Cox at Dieppe at the relevant time, then the defence argues that it means Cox was not masked. Why would Cox deliberately be not masked when he knew that K.B. could recognize him? If K.B. saw Cox unmasked, doesn't it support the defence theory that Cox was not part of the plan or joint venture as a co-perpetrator at all? [214] The Crown argues that Cox had to be involved because he was the only one who would have known when H.C.'s girlfriend and roommate were going to be away for a birthday party. Further, he was the only one who would have known what key was the correct key for H.C.'s MDX. [215] Counsel answers that there is no evidence suggesting that Cox was the only one who would have known when the others would have been away for a birthday party. Further, the evidence with respect to the key fob is that it was a typical key fob. [216] Finally, if Cox was in on it from the beginning, why does H.C. say that he initially thought Cox was a kidnap victim as well and that he saw Cox get kicked by one of the kidnappers. In addition, Cox was the only one not dressed in an all black "uniform". The foregoing gives rise to the defence of duress. Duress [217] The evidence meets the air of reality test for the defence of duress. [218] H.C. testified that he saw Cox being kicked, reluctantly following orders, and expressing that he did not want to be part of the unfolding events. [219] Cox would have known the fate of his two other roommates and the fact that H.C. was being harmed at the Surrey House. A reasonable person in Cox's position would consider his life to be in danger if he did not go along with the kidnappers. [220] It is a logical inference that Cox would have known, even if he was not at Dieppe, of the two shootings and would have observed H.C. being harmed at the Surrey House. [221] Therefore, Cox was faced with the real and practical fear that serious bodily harm and/or death would occur if he did not follow the kidnappers' directions and orders. [222] The framework for analysis when the defence of duress is raised is set out in R. v. Ketch, 2017 BCSC 1953. [223] It is clear that the six factors in the analysis are the following: 1. An explicit or implicit threat; 2. A reasonable belief the threat will be carried out; 3. No safe avenue or escape; 4. A close temporal connection between the threat and the harm threatened; 5. Proportionality between the harm threatened and the harm inflicted by the person relying on the defence; 6. The defence is not available to someone who voluntarily has participated in a conspiracy or association. [224] Counsel argues that the following evidence satisfies the six factors referred to above: 1. Cox lived in the same home as H.C., H.C.'s girlfriend and roommate, and had a prior relationship with all of them as roommates and with H.C. as employer. 2. There is no evidence to suggest Cox had any prior knowledge of the kidnapping or the killing. If he was present for the killing of H.C.'s girlfriend and roommate, then he would understand the threat of present or future death or bodily harm and that the threat would be carried out. This would be a reasonable belief. 3. There is a close temporal connection between the harm that was caused to H.C.'s girlfriend and roommate and to H.C., and the potential for harm to Cox himself. 4. It was reasonable for Cox to believe that there was no safe means of escape. 5. H.C. testified to seeing Cox following instructions reluctantly. 6. H.C. testified that, even on the last day, when he was rescued, Cox was directed to sit in the back of the Acura TL with him. 7. The Crown suggests in its submission that this was so Cox could keep guard of H.C., but there is no evidence of this. 8. Cox was aware of what was happening to H.C. at the Surrey House, and would not reasonably have thought that escape was possible. 9. H.C. spoke of how Cox was kicked in the face (by a kidnapper wearing a balaclava) but he denied that Cox was kicked hard enough to be bleeding. 10. On one occasion, H.C. overheard Cox say that he "didn't want to be involved in this". He noted that none of the other kidnappers were around and that Cox seemed to be saying this either to himself or for the benefit of H.C. 11. H.C. spoke of how his kidnappers had firearms but he had no idea what weapons might have been present at the Surrey House outside of the room where he was being held and where Cox was interacting with the kidnappers. 12. The evidence of a DNA expert and photographs of red staining on a couch cushion at the Surrey House testing positive for hemochromogen (blood) was a match to Cox. 13. The evidence of the expert that the DNA on the sweatpants Cox was wearing at the time of his arrest tested positive for hemochromogen (blood) in three areas which were all matches to Cox. 14. The Crown argues that the blood on his sweatpants likely came from a bite from a police dog at the time of Cox's arrest. Cox argues this is unlikely. Sgt. Lee testified that Vader did bite Cox, and he examined the wound. It was "very minor in nature" with only a "small bit of blood". 15. The evidence of Dr. Balcar is that a brown mark on Cox's back (on arrest) is consistent with that of a burn. Dr. Balcar saw a photograph of the mark. 16. There is no evidence to suggest that Cox chose to participate in the kidnappers' activities and to further their objectives. He took no steps of his own free will to do any of that. [225] The harm, if any, caused by Cox to H.C. was proportionate to the threat of death against Cox if he did not cooperate with the kidnappers and pass that harm along to H.C. H.C. also said in evidence the following that supports the theory that Cox's conduct was morally involuntary: 1. Cox half-heartedly smacked him, that it was "obvious" that he was hitting him half-heartedly, that his impression was that Cox did not want to hit him, did not want to be there, and was hesitant to follow instructions. 2. H.C. drew certain conclusions based on his familiarity with Cox. Cox was reluctant, did not want to be there, and he said something like he "didn't want to be a part of this" (H.C. said that it seemed like Cox was talking to himself). 3. That the fact that he was talking to himself leads to the inference that there was a present and real fear on Cox's part to share his thoughts with the kidnappers. [226] Cox argues that the Crown fails to negate beyond a reasonable doubt any of the essential elements of the defence: 1. The Court should be skeptical about believing H.C. when he says that Cox was in the MDX at the time of the kidnapping and that when at the Surrey House, he thanked the kidnappers for trusting him. (In cross-examination, he acknowledged that he had never disclosed this to the police or to the Crown). 2. It is not reasonable to conclude that Cox would have been involved in a joint venture when it would have been known to investigators that he was known to H.C. and was known to be a person who lived in the home and that there was a great deal of physical evidence to prove that he lived in the home. [227] The Crown argues that the evidence and the facts, as noted earlier in this judgment, do not support the defence raised. Figueredo - Defence Submission [228] Figueredo acknowledges evidence will prove his guilt with respect to Counts 2 to 5. Therefore, he is only disputing the kidnapping and the two manslaughters. [229] While not conceding Count 1, the only submission relates to Counts 6 and 7. [230] The overarching argument is that the Crown has not met its burden in establishing the requisite "knowledge" element in s. 21(2). [231] The most plausible view of the evidence is that Figueredo was not inside Dieppe at the time of the shooting (although he was possibly outside). [232] The evidence is that he had been at Dieppe on prior occasions. He was in the drug business with H.C. [233] It is conceded that his DNA was found on numerous items at the Surrey House. This is consistent with the concessions he has made concerning Counts 2 to 5. [234] His DNA was also found inside Dieppe. It was found in the ground floor area where the evidence indicates drugs were sometimes processed and is consistent with the reasons why had had attended there on a number of occasions previously. The evidence indicates that Cox is a contributor to the mixed DNA profile. [235] In other words, his DNA at Dieppe was deposited before September 17 and is insufficient to establish that he was in Dieppe at the time of the kidnapping and the two manslaughters. In that regard, he argues three related issues: 1. "Go, go, go". 2. The admission by Figueredo that he punched H.C.. 3. Figueredo was wearing a balaclava in the MDX. "Go, go, go" [236] In direct examination, H.C. said that "I heard four pops. And then someone yelling 'Go, go, go'". Whoever said these words was clearly inside Dieppe at the time. [237] The Crown asked H.C. if he recognized the voice that was yelling "go, go, go". He said "it was G's" (Figueredo). [238] Figueredo argues that the veracity of this should be called into question for a number of reasons. In direct examination, H.C. did not mention Figueredo as the speaker of these words. In statements to the police after he was rescued (September 19 and 21), he did not identify Figueredo (or "G") as the person who spoke these words. He acknowledged this in cross-examination. He had just been severely beaten, he was fading in and out of consciousness. He acknowledged he had lost consciousness twice. He had just heard four gun shots. This was a highly stressful and dynamic situation. [239] The statement is one word repeated three times. There is nothing unique about it nor did he describe anything unique about the manner in which it was said except it was uttered in an excited tone. He did not attribute that tone to being specific to Figueredo. The "admission" by Figueredo that he punched H.C. [240] H.C. testified that when he jumped up, he was punched in the face. Upon being asked who punched him, he answered "supposedly it was G.". [241] When asked how he knew it was "supposedly" G., he answered that during his captivity he made a comment about the punch and G "took responsibility for it". When asked "Do you recall what he said?", the answer was "Not exactly, no". [242] However, in his statement to the police of September 19, he said this: "Who hit me, I don't know." [243] H.C. also testified that the events over the three days was a "constant cycle of beatings or burnings...so it's a little difficult to separate them." He was not wearing a balaclava in the MDX [244] H.C. testified that he saw Figueredo "pull off the mask, and I could hear him talking" when he was in the driver's seat of the MDX. [245] Figueredo says this evidence should be rejected for a number of reasons: 1. The ability to observe was poor: a) H.C.'s head was down on the knee of one of the persons in the back seat; b) He had one swollen eye and his vision was poor; 2. In a previous statement to the police, he said both that G. was in the house with a mask on, and also that he "don't recall" if G. was wearing a mask in the house. 3. When questioned in Court about his statements to the police, he answered that "at the time of these interviews, I was still a bit overwhelmed". 4. Why would Figueredo be wearing a balaclava inside Dieppe, and then take it off at the car? This makes no sense. Further, none of the three balaclavas recovered in the investigation had Figueredo's DNA on them. [246] The Crown argues that Figueredo was wearing a balaclava to hide his identity from H.C.'s girlfriend and roommate. However, this is inconsistent with their submission that the abduction was planned when nobody was supposed to be home. [247] Three balaclavas were recovered during this investigation. Figueredo's DNA is not on any of them. [248] The defence argues that Figueredo was not one of the masked men. Nor was he inside Dieppe at the time of the incident. [249] Figueredo concedes in his closing submission that the most common sense inference to draw is that Figueredo was already in the MDX and that he was never wearing a mask because he was never in the house. Therefore there was no need to wear a mask. H.C. knew Figueredo and wearing a mask would not have been of much use. [250] Figueredo likely turned the MDX around and was waiting in the MDX for H.C. to be brought down at which time Figueredo would be the driver. This was his role throughout. Ali - Defence Submission [251] Ali concedes that the Crown has proven Counts 1 to 4. [252] Ali submits that the Court should find him not guilty of aggravated assault (Count 5). There is a reasonable doubt that Ali was a person who inflicted injury to H.C. [253] H.C. identified Ali in Court and in a photo pack line‑up. The defence argues that the photo pack line‑up was unfair because only the photo of Ali had the hairstyle that he wore. All of the filler pictures had a different hairstyle. Further, Ali was the only South Asian in the photographs. All the others had brown skin but were apparently of different ethnic origin. [254] The officer who constructed the photo pack line-up based his comparison upon the skin tone (dark), face, shape, age, and hair colour. The Crown argues that while the photo pack line‑up may not be perfect, it is still fair. All ten photographs show very dark skinned men with black coloured hair. [255] Lastly, Ali submits that the Crown has not led credible or reliable evidence to ground a conviction for manslaughter of H.C.'s girlfriend and roommate. As such, he should be found not guilty of Counts 6 and 7. [256] While in the MDX, during the kidnapping, H.C. claimed Figueredo was driving and an unknown person was in the front passenger seat. He further claimed he was seated in the middle back seat between Cox and a person who he could only describe as having a strip of brown skin showing between his sleeve and a glove. While inside Dieppe, he did not notice if a kidnapper had brown skin. [257] The only real evidence which has a possible connection between Ali and Dieppe is the footwear opinion evidence. It is of limited probative value. [258] During police questioning, and the identification process, H.C. used the name "Shamil" and "Shmerda". He testified that he had heard others at the Surrey House refer to him as "Shamil" and that Ali had answered to that name. He claimed to learn of the full name "Shamil Ali" when he received his subpoena. He also claimed that Ali answered to the name "Shmerda". On the back of the photo pack line-up, he made no note of the name "Shamil". Instead, he wrote the name "Shmerda" and "Koda". He claimed not to recall if he heard anyone refer to the person as "Koda". He claimed that he did not write "Shamil" because "I just didn't think of it". All of the foregoing should raise serious credibility concerns. [259] With respect to H.C.'s identification of Ali as a person involved in any of the assaults against H.C., the issues of voice identification, H.C.'s eye sight, the trauma of having been kidnapped and beaten, should all cause serious concern for the Court. [260] H.C.'s identification of Ali's voice from the two words "try something" or "try moving" should be suspect in view of these circumstances. [261] The Court must be concerned about the frailties of voice identification evidence: 1. With respect to at least one ransom call, H.C. identifies two different accused, (Ali and Acosta) as being the speaker on that call. Clearly, this should be enough to raise a concern about his ability to identify the voice of either. 2. The Court must be concerned about his ability to identify the speaker of the words "try something". [262] There are no fingerprints of Ali at Dieppe, or the Surrey House, or any of the three vehicles. [263] The Crown argues that the absence of Ali's fingerprints at any of those crime scenes can only be attributed to his use of gloves. There is another obvious inference which is equally tenable - that he was not there for any significant period of time. [264] Ali argues as follows with respect to his DNA found at the Surrey House on certain exhibits: 1. Army & Navy shoes found in kitchen - interior back heel and tab - mixed profile - major component Ali. He argues that the evidence is unimportant because the expert footwear impression evidence can go no farther than to say that the impression of the sole cannot be excluded as the cause of an impression at Dieppe. 2. The dark blue hoodie seized from the living room couch. Ali's DNA is on the exterior left sleeve. Figueredo's DNA was on the exterior back centre waistband. Ali notes that since the DNA is found on the outside of the hoodie, it is impossible to determine who owns it or who was wearing it, for how long, in what circumstances and where. 3. Air Jordan black hoodie found partially under a loveseat cushion - Ali DNA found at two locations on the exterior of the garment. Once again, it is not possible to determine who, where, and in what circumstances the hoodie is owned and/or worn by. The DNA could have resulted from incidental contact. The Crown advances this garment is evidence that Ali is the man who was likely purchasing "burner phones" at London Drugs while under surveillance. This ignores the fact that an identical hoodie was seized by the investigators. Further, the hoodie was seized from the couch in the living room, which contained many items, presenting a concern for cross-contamination from one exhibit to another. 4. A pair of white latex gloves were located under a cushion on a couch in the living room. Ali was the major contributor of mixed profiles on the exterior of both gloves, and on the interior of one glove. He argues that his DNA could have been deposited as the result of a contamination from any other items on the couch, or from the couch itself. 5. Chewed gum stuck to a fabric mask cut from a t-shirt sleeve - Ali DNA on the interior centre of the gum - located in the garbage room - potential for cross-contamination in two ways: because all the exhibits in the garbage room were thrown into a big pile and because police then piled them together into "bulk exhibits" for seizure and transportation. 6. A black balaclava seized from the front passenger seat of the Acura TL. Ali notes that it was seized from the seat on which he was sitting. In other words, he was sitting on it. The DNA profile showed a mixed origin from at least three individuals, including Ali's. There could have been contamination from the seat itself or from the clothes he was wearing. [265] Amongst the Ali conclusions are the following: 1. There is no evidence that: a) He was involved in the planning and kidnapping on September 17. b) He was involved in purchasing any of the materials prior to September 18. c) He was involved in arranging the rental of the Surrey House. d) He was in contact with any of the other co-accused prior to September 17. e) He had been at the Surrey House prior to police observing him on September 19. 2. It is unknown when his DNA was deposited at the Surrey House. [266] It is conceded that Ali had become a party to the kidnapping and extortion on September 19, but there is no evidence to suggest that he was part of a joint venture to kidnap H.C. on September 17 or 18. [267] There is no evidence to suggest that the six accused, known at the end of the kidnapping, are necessarily the same group who formed as a joint venture and carried out the kidnapping at Dieppe. [268] Therefore, he cannot be considered a party to the two manslaughter charges of September 17. Acosta - Defence Submission [269] Acosta concedes the evidence establishes his guilt for a kidnapping, confinement, extortion, and aggravated assault. [270] The only counts in dispute are the two manslaughter counts and the kidnapping charge (subject to the proviso discussed below). [271] The proviso with respect to the kidnapping charge is this. Acosta concedes that he joined the kidnapping, after it was in progress, on September 19, 2016, and that therefore the Crown has proven that he is guilty of that charge. However, he denies that he was aware of or involved in that kidnapping at the outset. The importance of this is clear: if he was involved at the outset, then his jeopardy for the manslaughter charges is increased. [272] He argues that the Crown has failed to prove that he was part of, or aware of the plan to kidnap H.C. before September 19. [273] The evidence is consistent with the following theory: that the original plan was not to kidnap H.C. on September 17, but to lure him to Surrey (after a party on September 15) in order to confine him and extort money from him. The September 15 party was referred to in the testimony of H.C., who also testified that Cox and Figueredo asked him for a ride home to Surrey after the party. He declined, and dropped them at the Skytrain station. [274] Once it is accepted that the foregoing is consistent with the evidence, then, it order to be satisfied of the involvement of the six accused in the kidnapping of September 17, the Crown must disprove: 1. That the six accused who were eventually arrested were the only persons involved in the events leading up to September 17 through to the 19; and 2. That when the plan to lure H.C. to Surrey after the September 15 party failed, the six accused had knowledge of a changed and new plan to kidnap H.C. on September 17, and in fact did so. [275] The Crown has failed to disprove the foregoing. It is a theory which arises from the evidence which is as consistent as that of the Crown, and consistent with the notion that Acosta is guilty of confinement, extortion, and aggravated assault, but not of the kidnapping of September 17, or anything else that happened at Dieppe, including the two manslaughters. [276] It is clear that the plan evolved and changed. The two killings establish, the Crown concedes, that the events of September 17 did not go according to plan. The two shootings were not part of the plan. The evidence as a whole undermines the existence of a single, unchanging plan at any point in the series of events. [277] There is evidence which supports the foregoing: 1. Forensic evidence and H.C.'s evidence that there were more than six persons involved from the outset and at various times throughout. 2. H.C.'s testimony reveals a plan to persuade him to go to Surrey after the party on September 15. 3. As noted earlier in the judgment, the balaclavas used at Dieppe were likely not purchased until the afternoon of September 17. These were the only items that were actually necessary to go out and kidnap H.C. rather than to simply confine him once he was at the Surrey House (after the party). 4. Acosta is not linked to Dieppe through any forensic evidence. 5. The Pathfinder at Dieppe on September 17 is not enough to prove Acosta's involvement at that point. The vehicle was used by all of them and driven by others even when Acosta was present. 6. Prior to September 17, Acosta's role was confined to three purchases: a) August 27 - Home Depot - bolt cutters and blow torch, zap straps, plastic sheeting, utility knives, gloves, and staple guns. b) September 14 - Canadian Tire - staples, a staple gun, and disposable gloves. c) September 19 - WOW! mobile boutique - four burner phones. 7. These purchases are consistent with the notion that the original plan was to gain access to the Surrey House and use it to confine and extort H.C. [278] Counsel refers to four examples of problems with H.C.'s credibility as they concern Acosta: 1. He testified that it was Acosta who made a threat concerning H.C.'s daughter. He had previously been asked by police "do you remember who said that?". He answered "no". 2. He testified that Acosta was the speaker in ransom call no. 31 when he had previously told police (under oath) that it was "the brown guy" (Ali). In addition, it is noteworthy that the very same phrase that he now attributes to Acosta is used by (the person he identified as) Ali in the previous call. 3. With respect to ransom calls 30 and 31, H.C. originally indicated to the police that he thought the speaker on both calls was Ali, although he was not certain with respect to call 31. It was not until his testimony in Court that he identified the speaker in call 31 as Acosta. [279] The Crown argues that even if Acosta is not at Dieppe, he must be found guilty as a party. [280] The defence disagrees for a number of reasons. [281] The evidence does not prove that Acosta participated in, aided, or had a common intention to commit the kidnapping at Dieppe: 1. Acosta points out the concerns with H.C.'s evidence that have already been noted by me in my earlier discussion about Vetrovec. 2. H.C.'s vision and alertness problems and inability to focus also must be considered as having a negative impact on his evidence. 3. H.C.'s numerous contradictions when his evidence in Court is compared to previous statements to police officers, some of them under oath. 4. Difficulties with voice identification evidence, which are often recognized by our courts and which causes specific concern here because of his identifying two different accused, as being the voice on ransom call number 31. 5. H.C. testified that Acosta's primary role appeared to be running errands for the rest of the group. 6. Forensic evidence. While there is fingerprint and DNA evidence consistent with Acosta being involved in the confinement at the Surrey House (which he has already conceded), there is no forensic evidence which connects him to Dieppe, either in action or knowledge. [282] The defence argues that Acosta's earlier involvement (as evidenced by his various purchases in August and September) is not inconsistent with this submission that he was never involved in the kidnapping of September 17. Rather, these are consistent with his involvement in the earlier planned scheme to lure Acosta to the Surrey House for confinement, rather than kidnapping. Stewart - Defence Submission [283] Stewart argues that the evidence does not connect him to the planning or to the execution. [284] He argues that the evidence fails to establish any of the following: 1. That he was at Dieppe; 2. That he was ever in any of the three vehicles; 3. That he was at the Surrey House at any time prior to the third and last day of H.C.'s confinement. [285] The Crown argues that on September 19 the Pathfinder "carrying Acosta, Bradbury and Stewart was found abandoned" in Burnaby, BC. Stewart disagrees. No witness or other evidence linked Stewart to the Pathfinder on that date. [286] Stewart was arrested several months later. [287] The case against Stewart rests on the evidence of H.C., and on inferences sought to be drawn from circumstantial evidence which are said to corroborate them. When H.C. first identified Stewart [288] H.C.'s evidence concerning when he first identifies Stewart: 1. H.C. did not identify Stewart at any time as being present during the first night, nor did he provide evidence as to how many persons were there during the first night. 2. On one occasion, when H.C. was taken out of the Surrey House to make telephone calls in the Acura TL, he believed that Ali was in the front passenger seat. He was unable to say who was in the rear seat, but later said it was Bradbury. None of them were masked. 3. H.C. was asked if during the course of the second day, he saw Stewart. He answered he did not "recall exactly" when he first saw him unmasked, but he eventually came into the room and "stood over me". He was unmasked at the time. 4. He was unable to say when he first came to recognize Stewart's voice. "No, I don't recall". 5. He was taken from the house a second time that night. Again in the Acura TL. Figueredo was driving and "if I recall correctly it would be Shamil and Elwood". He changed that to "G. would be driving, Shamil and, sorry no, it wasn't Elwood, I think it was Matty". 6. H.C. spoke of a second vehicle, a Pathfinder. He said that the Pathfinder travelled at the same time as the Acura TL with others in it. He did not see who was in it when he was in the Acura TL. 7. He said that he "believed" that when Stewart was in the Acura with him, this was the first time Stewart had been in a car with him. 8. He was taken out of the residence again to make more calls. This was the "long night": a) Figueredo was again driving the Acura TL. H.C. identified Bradbury (when reviewing the transcripts) as being present in the vehicle. b) Later, he was asked again who was in the Acura TL and he said "Again, G. was driving, sorry, I can't recall at this moment". c) When asked about guns in the car, he recalled "A big one" with Stewart. "Like an assault rifle, long barrel. It was definitely not a handgun". d) He said that Stewart was in the back seat with him, holding the rifle. e) He was shown a photo of a rifle that had been located in the residence and said it looked similar, but he could not recall a distinctive circular drum-style magazine. 9. He agreed that it was "fair to say", that it could have been the third day when he first saw him. [289] He agrees that Stewart did not harm him directly. Fingerprint Evidence [290] With respect to the fingerprint evidence: 1. There are no Stewart fingerprints found at Dieppe, or in any of the vehicles. 2. There were three Stewart fingerprints found at the Surrey House; a) On a Mastercard document on the clothes dryer; b) On the side of a Vaseline lotion container on the bathroom sink; and c) On the ring finger of a clear disposable glove found in the "garbage room". [291] With respect to all three of the foregoing fingerprints, there is no evidence: 1. With respect to when the fingerprint was placed on the item; or 2. Suggesting that it has any connection to any activity related to the offences at bar. [292] There is credible evidence that any, or all three, of the fingerprints could have been placed on the items at a much earlier time than September 17. This refers to the evidence detailed earlier in this judgment that Papineaux had met Stewart at the house earlier than September 2016. DNA [293] Stewart's DNA is found on six items found at the Surrey House: 1. The heel tab of a pair of dark blue shoes. 2. An A&W straw. 3. A second A&W straw. 4. A balaclava. 5. A second balaclava. 6. A pair of black gloves. Dark Blue Shoes [294] With respect to the DNA found on a pair of dark blue shoes: 1. The shoes were located on shelf in the laundry room portion of the kitchen; 2. The Crown submits that Cox's blood on the heel of the sole of the right shoe confirms that Stewart is the person H.C. testified was the masked man who kicked Cox in the face/head on the first night. [295] Stewart argues that the evidence does not lead to the conclusion that Stewart kicked Cox: 1. The difficulty with this is that H.C. testified that the kick inflicted on Cox was not hard enough to cause bleeding and that he did not recall any bleeding from the kick. 2. The Crown also ignores the evidence of the DNA expert. She agreed in cross-examination that a sock would prevent DNA on the ankle of a person wearing the shoe from being deposited on the inside of the shoe. She also agreed that DNA could be deposited from the hand of a person carrying the shoe. 3. All that can be taken from this evidence is that both Stewart's DNA and the blood of Cox came into contact with the item at some point, not the same point. It is equally plausible that either profile could have been deposited by way of a secondary contact. A&W Straws [296] With respect to the DNA on the straws, Stewart's DNA was located on two straws. [297] One of the straws was gathered in, and later retrieved for testing, from a bulk exhibit containing numerous items in contact with each other. The DNA expert evidence notes that transfer of DNA between bulk exhibits "thrown together" was at least possible, and arguably somewhat more than that. [298] Stewart's DNA was also located on a second straw, inserted into another A&W cup, which was located on the floor of the living room at the Surrey House. [299] The defence responds as follows: 1. At least 11 straws were located from the Surrey House, however, only five were analyzed. 2. Six A&W straws were swabbed, but not chosen by investigators for laboratory examination. This leaves open that the possibility that A&W drinks were consumed within the residence by some of the six accused, and/or by others, outside the relevant time frame of the indictment. 3. If the remaining straws had been analyzed for DNA, they may have revealed the presence of others including Ross, Grattan, and/or Justin Pichler. First Balaclava [300] Two balaclavas with Stewart's DNA on them were recovered and seized - one from the Surrey House and one from the Acura TL after its take down and seizure. [301] The first balaclava was located in a kitchen cupboard at the Surrey House. Two areas were selected for DNA investigation: 1. Interior around the mouth. 2. Interior top of head. [302] In the interior around the mouth hole, DNA was of mixed origin consistent with having originated from at least three individuals. The major component matched the DNA of Stewart. No meaningful comparison could be made of the balance. [303] The interior top of head revealed DNA that was of mixed origin consistent with having originated from two individuals. The major component matched that of Bradbury and the minor component Stewart. [304] The defence argues as follows: 1. It is clear that, although they cannot be identified, at least two other individuals, other than Stewart, had their DNA detected around the mouth hole. The only possible inference is that at least two others wore it at some point. 2. The DNA expert testified that, when there is more than one contributor, it is impossible to say how the mixed profile was deposited, when it was deposited and in what order the various donors deposited their DNA on an item. 3. Stewart's DNA on this balaclava is not indicative of his being there on the first night because the evidence strongly suggests that Cox's blood was not deposited on the shoes by way of a kick. 4. The evidence of the man from Gorilla Surplus does not advance the Crown's theory. He could not say that these precise balaclavas were sold by his store. He also testified that his stores sell large quantities of this product. 5. This balaclava could have been purchased days, weeks, months or even years earlier, from any number of outlets and Stewart's DNA deposited at any point within that time frame. 6. The unidentified other contributors to the DNA located on this balaclava could have been deposited by any of Ross, Grattan or Pichler. Each of these possible suspects were at the Surrey House at times proximate to the relevant time period. Their DNA could have been deposited on the balaclava, just not in amounts required to positively attribute to them. 7. Absent H.C.'s unreliable evidence relating to the identification of Stewart, it is just as likely that these other three, or any of them, wore the balaclava as it is Stewart did so. [305] The Crown argues as follows: 1. That Stewart's DNA on this balaclava confirms that he was present at the Surrey House on the first night. Together with the shoe that has Cox's blood on it (and Stewart's DNA inside), his DNA on the balaclava confirms his presence in the residence, and the evidence is clear that Cox was kicked on the first night. 2. That Stewart's DNA on the balaclava shows that he was an active participant in the joint venture from the beginning. This is so because the balaclavas were only actually used at Dieppe. The Crown argues, on the basis of this, that Stewart was present at Dieppe at the time of the kidnapping. Second Balaclava [306] The second balaclava was located on the floor of the Acura TL after its take down and seizure. [307] The Crown argues that this establishes Stewart as an active participant at the outset, it puts him in the Acura TL, and it confirms his identity as one of the masked men at Dieppe. [308] DNA was obtained from two areas: 1. The interior mouth/nose area. 2. The interior top/back of head. [309] With respect to the interior mouth/nose area, the DNA was of mixed origin consistent with having originated from at least two individuals, the major component of which was Stewart. No meaningful comparison could be made to the balance of the mixed profile. [310] With respect to the interior top/back of head, it was of mixed origin consistent having originated from at least three individuals, the major component of which was Stewart. No meaningful comparison could be made to the balance of the mixed profile. [311] The defence responds to the Crown's theory as follows: 1. The Crown theory ignores the expert evidence that it is impossible, from the presence of DNA alone, to determine when, how and in what order the DNA was deposited. There is no evidence to establish whether the balaclava had been at Dieppe or the Surrey House, when it was worn, in what circumstances and by whom. 2. The evidence is consistent with the balaclava having been purchased days, weeks, months, or even years earlier. This is consistent of the evidence of the manager of Gorilla Surplus. 3. Officers who searched the vehicle found evidence consistent with it having been used in the commission of other offences. This includes various kinds of spent ammunition and unfired shotgun shells. There is no evidence of shots being fired during the commission of any of the offences at bar other than those at Dieppe. The shell casings related to those shots were recovered at the scene. Equally possible, the balaclava was being used in those circumstances by another person - one whose DNA is a minor component on the balaclava. 4. It is a plausible theory that Stewart's DNA was placed on the balaclava at an earlier date when the Acura TL was being used for some unrelated offence. The DNA could have been deposited by any of Ross, Grattan or Pichler. Each of these possible suspects was at the Surrey House in what was the approximately relevant time period. Any of them could have been in the Acura TL. Any of them could have been at Dieppe. Any of them could have been wearing the balaclava. 5. There is no evidence of Stewart actually being in the Acura TL, at any proximate time, other than the unreliable assertion of H.C. 6. With respect to the Crown's theory that Stewart was at Dieppe, even the unreliable H.C. does not assert this. He testified there were four males there and did not identify Stewart as being one of them. It follows that Stewart's DNA must have been deposited on the balaclava at some other time. Black Gloves [312] With respect to the black gloves: 1. This pair was located on top of the refrigerator in the kitchen at the Surrey House. 2. DNA was located in several areas: a) Interior right palm - mixed profile, major component Stewart - no meaningful comparison could be made to the balance of the mixed profile. b) Exterior back left thumb - H.C. positive for blood. c) Interior left palm - mixed profile - consistent with three individuals - no meaningful comparison d) Exterior left palm - DNA on the middle finger - mixed profile from at least three persons. [313] The defence argues as follows: 1. The number of contributors of the deposits of DNA, together with the expert evidence as to the inability to determine how, when, and what order the deposits were made in, erodes the significance of the finding of Stewart's DNA. It cannot be inferred that Mr. Stewart wore the gloves at the relevant times, if at all. 2. It is conceded that H.C. bled from his wounds. He was beaten throughout his captivity and moved throughout the house. His blood or DNA was located on numerous items of clothing worn by Ali, Figueredo, and Cox seized from them at the time of their arrest. There is also a pair of shoes seized from the Surrey House with H.C.'s blood on the sole and outside step and Bradbury's DNA. The other shoe contained H.C.'s DNA on its sole. 3. Equally likely inferences are that, however H.C.'s blood got on the gloves, it was through secondary or tertiary transfer or at a time when worn by one of the other unknown contributors. 4. With respect to the exterior left back thumb: The expert evidence could not determine how or when H.C.'s DNA was deposited on the glove. It was equally probable or plausible that it was deposited through secondary or tertiary transfer as through primary transfer. The Crown argues that, although H.C. did not identify Stewart as assaulting him directly, his blood on the gloves with Stewart's DNA establishes his participation in the group beatings. 5. The expert evidence indicates there was no way to determine how the DNA was deposited there and also that the other contributors to the components may have worn the glove. It could not be determined how many persons had worn the glove, the timing of when the deposits occurred or the order in which the components were placed on the glove. 6. With respect to the interior left palm, the expert evidence was to the effect that it could be inferred that all three of the contributors had worn the glove. Physical Evidence [314] There is no physical evidence connecting Stewart to either vehicle. [315] While it is true there is a balaclava located in the Acura TL with his DNA on it, the evidence establishes: 1. That the Acura had been stolen several months earlier. 2. The numerous unrelated cartridge casings of various calibers were located within the Acura, indicative of prior related criminal activity. 3. No fingerprints or DNA of Stewart were located in either vehicle (except DNA in a balaclava in the Acura TL). Surveillance [316] Stewart was the only one of the accused who was not surveilled or observed at the Surrey House. Neither was he surveilled by the mobile surveillance which followed vehicles as they left the residence and attended at various locations on the third day. No surveillance cameras in various shopping centres or stores captured Stewart prior to the abduction of H.C. Purchases of Items by Accused [317] There is no evidence that Stewart participated in the purchase of items or the planning of H.C.'s kidnapping. Voice Identification [318] H.C. was played 31 intercepted communications in Court, and prior to Court, as part of the investigation: 1. H.C. said Stewart spoke on portions of 13 of them, ranging from call no. 5 to call no. 29. 2. The foregoing 13 calls seem to relate only to the "long night". 3. On call no. 5, Stewart is alleged to have only spoken seven words and he was apparently speaking to Bradbury who was standing outside of an open window. 4. In the next call he was alleged to have spoken four words, and there were apparently five persons in the vehicle. 5. When he was switched to the Pathfinder, H.C. described Ali as taking a dominant role in the calls. 6. He also described that Ali and Bradbury were hitting him during the calls when they were in the Pathfinder. 7. Following the switch, H.C. said that Stewart also took part in calls in the Pathfinder. This would mean there were six persons in the vehicle. 8. In the 21 intercepts after the switch to the Pathfinder, H.C. identified Stewart's voice in ten calls, speaking 64 words, in fragments. [319] Summary: 1. There should be a doubt about voice identification of Stewart. 2. There should be a doubt about whether Stewart was in either of the vehicles at any time. 3. More likely is that H.C. identified Stewart on the third day and then worked backward to attribute an identified voice on the intercepts to him. [320] If he was only involved on the third day, then he is not a party to what happened to Dieppe, including the original kidnapping or the manslaughters. He is also not a party to anything that occurred before he joined, including the assaults and the extortions. Bradbury - Defence Submission [321] Bradbury argues that there are three primary defences, any or all of which is a complete defence: 1. Identification. 2. Viable third party suspect. 3. The Crown's confirmatory and/or corroborating evidence fails to satisfy the burden of proof. Identification [322] H.C.'s identification evidence of Bradbury as a kidnapper is unreliable for the following reasons: 1. Limited opportunity to observe. 2. Impaired vision. 3. Only a vague description given to the police. 4. Inaccurate on the height. 5. The photo pack line-up. 6. In‑court identification. 7. The name "Ellwood" adds nothing of value. 8. Voice identification [323] The only route to conviction is for the Court to find confirmatory evidence on the issue of identification. 1. Limited Opportunity to Observe [324] The Crown has argued that "H.C." spent 45 hours with the six men. During that time, he interacted with each accused in close proximity. [325] Bradbury strongly disagrees with the position the Crown has stated. What is important is how much time he spent with each person, not with an amorphous group. [326] On a careful examination of the evidence, it will become apparent that he spent "barely minutes" with Bradbury. [327] The room was dark. It was difficult to see. The comfort level must have been extremely low. There were numerous assaults and a "constant cycle" of beatings and burnings. His emotional state must have compromised his ability to make accurate observations. [328] There is no evidence as to how often Bradbury came to his room. H.C. did not say. The only time he mentioned was during the bolt cutter/blow torch incident. [329] There is no evidence about how close he was to Bradbury on that occasion or on any occasion. This is important because of his impaired vision. H.C. was never asked how close he got to Bradbury's face. [330] It is also not clear precisely how many calls Bradbury was in the car for while H.C. was there. Sometimes it was dark. [331] At the tennis courts, the surveillance evidence does not confirm H.C.'s version of events. According to one of the surveillance officers, Bradbury got into the Acura and stayed there until take down. [332] H.C. has alleged that he saw Bradbury on only these occasions: in the room (the bolt cutter/blowtorch incident), in or around a vehicle during the ransom calls, and at the tennis courts. There is not enough evidence to adequately assess the reliability of H.C.'s observations on these occasions. 2. Impaired Vision [333] H.C. indicated that his right eye was injured so badly that it was "not available" to him. His left eye was compromised because his glasses were knocked off at Dieppe and he could only see the details of the face if that face was within one foot of his vision. [334] Even without the injury, his vision was poor, and the loss of his glasses was profound in that regard. [335] Dr. Balcar opined that the orbital fracture in the right eye would result in double vision, but H.C. would have "no problem" with vision in that eye other than the double vision. [336] Dr. Balcar's opinion has almost no probative value given the inadequacy of the examination. 3. Only a Vague Description Given to Police [337] On the day of the take down, the police asked H.C. about the incident. In cross-examination, he said that the "full extent" of the description of Bradbury that he gave the police was "Caucasian", "pretty sure he was blondish" and "pretty beefed-up". [338] The description is so devoid of detail or distinguishing features as to make it functionally worthless. 4. Inaccurate on the Height [339] H.C. estimated Bradbury's height as 5'6" or 5"7". A photograph in evidence of Bradbury standing beside a wall measuring tape indicates that he is closer to approximately 5'10". [340] The inaccuracy of the height indicates that either H.C. didn't see him sufficiently, or the man that H.C. saw was not Bradbury. 5. Photo Pack Line-Up [341] H.C. failed to pick Bradbury's photograph from the relevant photo pack line-up. [342] Photo pack line-up evidence is of "central importance" to the question of how much weight will be given to an "in‑court identification". [343] H.C. viewed the photo pack line-up three times. He put each photo close to his face. The only photo he was interested in was the one that he selected. [344] H.C. said that the photo he picked "matched my memory the best". [345] Bradbury argues that the likely conclusion is that H.C. did not have a sufficient opportunity to see Bradbury at the house and therefore was unable to pick his photo from the photo pack line-up. [346] The defence argues that the failure to pick out Bradbury from the photo pack line‑up is fatal. H.C.'s in‑court identification of Bradbury should, as a result, be given no weight at all. [347] The Crown responds that the defence position appears reasonable at first blush, but that on further analysis, the reasoning is flawed. There are two broad reasons for this: 1. The photo pack line-up itself was flawed because there was not a contemporaneous picture of Bradbury in the photo pack line-up. 2. H.C. chose a picture of an unknown filler in the photo pack line-up (and wrote that he was "60-70% sure only") on the back of the photograph. [348] The officer who constructed the photo pack line-up testified that he did not have, or have access to, a contemporaneous picture of Bradbury. He used a five year old photograph taken on January 21, 2011. He compensated for that by using pictures of similarly aged persons for the filler photographs. In other words, H.C. was looking at a photograph of Bradbury taken in 2011. H.C. had never seen him before September 17, 2016. [349] Of the four photo pack line-ups shown to H.C., it is clear from the video of him observing the various photo pack line-ups, that he had much greater difficulty with this one then he did with the other three. He made his decision more quickly in the other three. In this one, it took 11 minutes and 45 seconds to make his selection. He "chose" photo number 2. [350] After viewing the photo pack line‑up the first time and viewing photo no. 2 a second time. H.C. said "it's close but I don't think it's close enough". [351] H.C. explained that he wrote "60-70% sure only" because there was a "degree of difference from the photo I was shown to the person I can recognize". He noted that the photograph seemed dated. [352] Having reviewed photo no. 2 four times, H.C. said he "couldn't be confident in this one". The officer asked him his confidence level. H.C. said "Like I said, between 60-70 percent". [353] He explained that of the ten photographs he was shown, photo no. 2 matched his memory the best. He testified that the overall facial structure, shape, and hair were similar, and that he told the officer he wasn't "completely sure". [354] During cross‑examination, H.C. agreed that the person he had identified in Court as Ellwood didn't "entirely" match the photograph he had selected. He testified that he didn't know if he had picked out the right photograph or not. [355] He testified that he was careful in his selection, and that this photo pack line‑up wasn't as easy a match as the others were. He further testified that it wasn't an exact match. It is clear from watching the video recording that H.C. took the process seriously, and was extremely careful. [356] H.C. testified that when he wrote the name "Ellwood" in quotations, he did so as he wasn't certain if that was an alias or not. [357] In response to a question from me, the Crown was of the view that I was entitled to compare the photographs in the photo pack line-up to the accused, Bradbury, in the courtroom, and to form my own conclusions about the photo in the photo pack line-up that H.C. chose, and about those that he did not choose. Counsel for the accused objected for a number of reasons which he articulated. However, counsel did agree that it would be appropriate for me to look at various contemporaneous photographs of Bradbury which are in evidence before me and compare those to the photographs in the photo pack line‑up. [358] After hearing legal argument from both counsel, I disagree with counsel for the accused and am of the view that I am entitled to compare the photo pack line‑up photographs from the Bradbury photo pack line-up to the person in the courtroom who has pleaded to the charges against Bradbury. In that regard, I refer to the following case: R. v. Nikolovski, [1966] 3 S.C.R. 1197. [359] Accordingly, I have compared the photographs in the photo pack line-up to the person named Bradbury in the courtroom and I have come to certain conclusions. [360] I have also compared the several contemporaneous photographs of Bradbury which are in evidence to the person named Bradbury in the courtroom. They have the same facial features, colouring, and the same hairstyle. His weight has varied between them but not sufficiently to cause any doubt that they are the same person. [361] Finally, I have compared the several contemporaneous photographs of Bradbury, the ten photographs in the photo pack line-up, and Bradbury in the courtroom to each other. [362] When I make the foregoing comparisons, I come to the following conclusions: 1. Bradbury in the courtroom is the person whose image appears in the contemporaneous photographs. It is clear that they are approximately the same age. 2. All of the pictures in the photo pack line-up appear to be of men a number of years younger than the contemporaneous known photographs of Bradbury which are in evidence, and of the person in the courtroom named Bradbury. 3. None of the photographs in the photo pack line-up jump out at me as being a photograph of the same person that I have seen in the known contemporaneous photographs of Bradbury, or of the person in the courtroom named Bradbury. 4. Two of the ten photographs appear more likely than the others to be the same person in the known contemporaneous photographs of Bradbury, and of the person in the courtroom named Bradbury. 5. One of those two photographs is the photograph that was chosen by H.C. Counsel agree that this is not a photograph of Bradbury. [363] With respect to H.C.'s out-of-court identification evidence (the photo pack line-up evidence) concerning Bradbury, it is not admissible for its truth. Rather, it goes to assessing his credibility: R. v. Crate, 2011 BCCA 506. In that regard, I am conscious that he failed to pick the photograph of Bradbury which was present in the photo pack line‑up. [364] However, given the fact that the photograph of Bradbury in the photo pack line‑up is more than five years old, I am unable to conclude that his very tentative selection of a different person should lead me to draw a negative inference about any aspect of his identification of the person named "Ellwood" that H.C. dealt with. 6. In‑Court Identification [365] In‑court identification has no probative value due to fact that he had seen Bradbury in the courtroom for five days and because he failed to make a pre-trial identification. [366] Of the six accused, only two were white males. H.C. knew one of them - Stewart. That left Bradbury as the only person to choose. [367] Great caution is required for the following reasons: 1. H.C.'s credibility is in serious issue. 2. When it was suggested to him that he might be mistaken about his in‑court identification of Bradbury, he said that there is "always a probability that I am mistaken but that is the face I remember." 3. H.C.'s in-court identification is the first time that he identified Bradbury. It occurred two years after the incident. He failed to identify him in the photo pack line-up. Therefore, his in-court identification is virtually worthless. 4. The Crown argues that the Court should refer to "evidence of resemblance" when I compare the photo which was picked with the known photographs of Bradbury. The notion that this can form the basis for conviction is contrary to the law on identification. 7. The Name "Ellwood" Means Nothing of Value [368] H.C. mentioned the name "Ellwood" as one of his kidnappers to police in an interview of September 19, 2016, a few hours after he was rescued. [369] The next day, he wrote the name "Ellwood" on the back of the photograph which he had chosen from the photo pack line‑up. [370] The Crown submits that the name "Ellwood" has probative value because Bradbury's first name is Ellwood. There are problems with this analysis because it is not clear that Bradbury's first name is Ellwood. To determine this, the Court would have to be able to conclude that H.C. got the name Ellwood from the house. The only evidence of this is his testimony, yet his credibility is in issue. 8. Voice Identification [371] Bradbury disagrees with the Crown's submission that H.C. paid particular attention to what was being said and by whom. Rather, H.C. simply differentiated between voices to know how many people he was dealing with. [372] H.C. said Ellwood's voice sounded gravelly. This has no probative value. The Court has not heard his voice. Further, H.C. said this only after listening to the ransom calls. What he said was that the voice on the ransom calls sounded gravelly. Third Party Suspect [373] There is evidence of the possible involvement of a third party in one or more of the offences at bar. I determined that it was relevant and probative, and therefore admissible. The name of the third party is Justin Pichler. [374] Bradbury argues that Pichler is a viable third party suspect, which should lead therefore to the Court having a reasonable doubt about Bradbury's involvement in these matters. He argues this is based upon the following evidence: 1. A male purchased five footwear items at Walmart on August 27, 2016. His image is on CCTV. There are three still images of the purchaser which are in evidence. There is a Walmart receipt found in the garbage room at the Surrey House. It is dated August 27, 2016 and shows the purchase of five "footwear" items. Each has a corresponding number. The police found tags and some damaged tags in the family room and the garbage room. The bar codes on the tags are almost the same as one of the numbers of the receipt. 4. Pichler's fingerprints were identified on a Walmart bag in the washing machine at the Surrey House. 5. In addition, there are two photographs of Pichler in evidence. 6. The shoes are similar to two pairs found in the Pathfinder and similar in appearance to the shoes which H.C. said the kidnappers wore. Walmart sold "Athletic Worx" shoes identical in appearance to the ones found in the trunk of the Pathfinder. 8. An Intelligence Profile in evidence notes that Pichler is 5'4" tall. H.C. estimated Bradbury's height at 5'6" or 5'7". He also testified that Bradbury was shorter than Ali or Stewart. [375] In addition to referring to the foregoing evidence, Bradbury's counsel opined that Pichler's appearance in the two photographs is similar to the person selected by H.C. in the Bradbury photo pack line-up. [376] H.C. was asked if he could identify one of the photographs of Pichler which has been entered into evidence. He could not. Non-Accused Persons [377] In addition to the evidence relating to Pichler, there is evidence of attendance at the Surrey House by non-accused persons. This evidence includes H.C. testifying that there were others in attendance who he did not see, but did hear, and is unable to identify. [378] There is evidence of fingerprints and DNA which identifies these people and which is set out earlier in this judgment under the heading "Confirmatory and Corroborating Evidence". [379] With respect to the foregoing, Bradbury argues that it is impossible for the Court to be certain that some or all of these people were not involved in the criminal activity that went on in the Surrey House concerning H.C. The Crown has led no evidence to suggest that some or all of these people did not do some or all of the acts that Bradbury and the other accused are charged with. Forensic Evidence [380] Forensic evidence concerning Bradbury is in evidence concerning the following: 1. DNA on the heel of the shoe. 2. Footwear evidence. 3. DNA on a straw. 4. DNA on the inside of a balaclava. 5. The gray hoodie. 6. The towel. 7. Water bottle and Pathfinder. 8. Two cigarette butts. 9. Fingerprints. 1. Bradbury's DNA on the heel of the shoe [381] The investigation at the Surrey House located a pair of shoes on the floor near the stove in the kitchen. Forensic investigation revealed a mixed profile of DNA at the interior top of the left heel. The major component was Bradbury's DNA. H.C.'s DNA and blood were found on the outstep and outside sole of the left shoe. [382] The Crown argues that these shoes were worn by Bradbury at Dieppe. [383] The Crown has not established that Bradbury wore the shoes. [384] The expert evidence indicates that a sock acts as a barrier preventing DNA from being deposited. There is no evidence that the accused ever wore the shoes without socks. The skin of the heel must touch the inside of the shoe if DNA is to be transferred. The expert evidence also indicates that the DNA in that location is consistent with Bradbury picking up the shoe with his thumb and fingers pinching the back of the shoe. [385] Bradbury argues that the evidence fails to prove that he did not pick up the shoe with his thumb and fingers, or that he wore the shoe without socks, or wore the shoe outside the Surrey House. 2. Footwear evidence [386] A footwear impression near the body of H.C.'s girlfriend at Dieppe had "limited accidental characteristics" which precluded the expert from attributing these impressions to shoes found at the Surrey House with Bradbury's DNA inside them. [387] Bradbury argues as follows: 1. At best, the shoes were a "possible" donor. 2. Bradbury's DNA in the shoe is not sufficient evidence to conclude that he ever wore that shoe. The expert agrees that the DNA could indicate that the shoe was being carried with the fingers in the heel portion of the shoe. This is the best possibility that the evidence permits in the absence of some evidence suggesting that Bradbury had worn the shoes without socks. 3. Bradbury's DNA on a straw [388] An A&W cup and straw were found on the kitchen counter of the Surrey House. The DNA of both Bradbury and Cox was on the straw. [389] The Crown argues that this confirms that Bradbury and Cox were together inside the Surrey House during the kidnapping. [390] Bradbury argues that the weakness in the Crown's theory is that the Crown cannot prove when Bradbury's DNA was deposited on the straw. This weakness arises from the evidence, or from the absence of the evidence: 1. The Crown has not proven that Bradbury's DNA was not transferred from another exhibit to the straw during the processing of the exhibits. 2. The Crown's theory is that Bradbury deposited his DNA from his saliva on the straw when drinking. The expert testified that this DNA was a "partial profile" which means it was unlikely to have been derived from saliva. 3. There is a reasonable inference available that the straw had been in the Surrey House for some time and that some other person (perhaps Cox) placed it in a cup. There is a reasonable inference available that Bradbury had touched the straw prior to the kidnapping. This is a reasonable as the inference that Bradbury shared a straw with Cox. 4. Balaclava [391] The police found a balaclava on a shelf in the kitchen. The Crown says Bradbury wore it during the kidnapping of H.C. at Dieppe. [392] DNA was found in two locations on the inside: 1. The inside top of head - mixed profile - major Bradbury; minor Stewart. 2. The interior around the mouth hole - Stewart - major (and mixed undeterminable - minor). [393] There is no evidence indicating or suggesting whether Bradbury wore the balaclava before Stewart or the reverse. [394] There is only one reasonable inference available from Bradbury's DNA on the balaclava: it is that his DNA was deposited there prior to the kidnapping. 5. The gray hoodie [395] The police found the gray hoodie inside the t.v. box in the garbage room. It had burn marks on the back of the hood. [396] The Crown argues that Bradbury wore the gray hoodie during the burning of the MDX. [397] The defence disagrees and argues, for the following reasons, that there is only one reasonable inference available from Bradbury's DNA on the gray hoodie. It is that his DNA was deposited on the hoodie prior to the kidnapping: 1. H.C. testified that Figueredo, Ali, Cox, and an unknown person were in the MDX. If Bradbury was the unknown person, H.C. did not subsequently identify him as such, either visually or by voice. 2. There is no forensic evidence connecting Bradbury to the Acura TL. H.C. said the unknown person transferred to the Acura TL. 3. DNA was located on the hoodie consistent with the inference that three people had worn it. Bradbury's DNA is there. It is a reasonable inference to draw that one of the other two people wore the hoodie at the time of the explosion and that Bradbury wore it at some other time. 4. H.C. said the kidnappers were dressed in dark coloured clothing. The gray hoodie is light gray. 5. The hoodie was found in the garbage room where there was a high risk of transfer of DNA. 6. The towel [398] A towel was found on the mattress in the kill room. H.C. testified that Bradbury threw this towel at him after trying to cut off his finger. [399] The towel is heavily stained from bleach. The clear inference is that it was used to clean up. In some places, the original blue colour is barely visible, likely because of heavy staining from bleach. Bradbury's DNA is on the blue part of the towel. [400] This is consistent with Bradbury having used the towel at the Surrey House prior to the kidnapping. A second possibility is that Bradbury's DNA was transferred to the towel when it was used to clean up the house. [401] H.C. told the police that they had thrown a green/blue cloth to him to stop bleeding after the bolt cutter incident. He did not say that he received a towel stained with bleach. More likely, Bradbury argues, the towel picked up H.C.'s blood and Bradbury's DNA while it was being used to clean up. [402] The evidence does not support the inference that Bradbury touched the towel during the kidnapping. [403] There is only one reasonable inference available from Bradbury's DNA on the towel: it is that his DNA was deposited on the towel prior to the kidnapping. 7. Water bottle and Pathfinder [404] Bradbury's DNA (together with Acosta's DNA) was on the same swab from the mouth of the bottle of water found in the Pathfinder. [405] The Crown argues this shows that Bradbury was inside Acosta's Pathfinder and they drank from the same bottle. This was consistent with suspicions of surveillance officers as to the identity of one of the suspects they were watching. [406] Bradbury disagrees: 1. His DNA on the bottle was a "partial profile" which means that some of the genetic information is missing. The expert testified that if the sample had been saliva, one would expect a complete, not a partial, profile. 2. The photographs of the Pathfinder show what looks to be garbage littered all over. The bottle looks like a piece of garbage that has been inside the Pathfinder for some time - well before the dates of the kidnapping. 8. Two cigarette butts [407] The police seized a number of cigarette butts on the ground outside the Surrey House. Two with Bradbury's DNA were among them. [408] The Crown relies on these to show Bradbury's presence at the Surrey House at the relevant time. [409] There is only one reasonable inference available from Bradbury's DNA on the cigarette butts: once again, deposited prior to the kidnapping. [410] There is no evidence about how dated the butts were. Bradbury was at the house in July and there is no evidence to indicate when the butts were discarded. 9. Bradbury's fingerprints [411] There is no doubt that Bradbury was in the house. The issue is when was he there. [412] The fingerprints cannot be dated. These prints are consistent with the known fact that he was there in the summer months prior to this incident. [413] The fingerprints are not on anything related to the kidnapping. They were on an old-looking A&W wrapper from the garbage room, a plastic bag from the garbage room, the toilet handle, and the front door. Absence of Other Forensic Evidence [414] The police investigated numerous other weapons, items used as weapons, types of clothing, phones, receipts, packaging, and so on, and found no trace of forensic evidence on any of them connected to Bradbury. [415] There is no evidence to connect Bradbury to Dieppe, the MDX, the Acura TL, or the Pathfinder (other than his DNA on the mouth of a crumpled old water bottle discarded on the floor of a vehicle which was full of garbage). [416] The Crown argues that Bradbury's DNA was not on anything incriminating because he wore gloves. This argument is undermined by the fact that his DNA and fingerprints were on a number of non-incriminating items at the Surrey House. Evidence of Prior Attendance at the Surrey House [417] This refers to the evidence involving Papineaux having seen Bradbury at the Surrey House prior to September 2016. [418] The police found documents in the garbage room dated August 12 and 13 showing a letter and $2,200 from a law firm delivered by hand, and a deposit and withdrawal slip for the same amount. [419] Bradbury argues that the evidence is as consistent with his DNA and fingerprints being deposited there in August as it is in September. Surveillance [420] Bradbury argues that this evidence is unreliable. [421] Further, the surveillance evidence supports the theory that there were at least eight people (including H.C.) at the house in that time period. [422] The Crown's theory is that "Bradbury" is the person in the gray hoodie. None of the surveillance officers were asked whether they saw that man in the courtroom. [423] Four video tapes were relied upon, with respect to Bradbury: 1. Inside Shoppers Drug Mart; 2. Of a male near the Pathfinder at the Surrey Central Mall; 3. Of a male near the Pathfinder at the Surrey House about 1:00 p.m.; and 4. Of a video depicting a male when the Pathfinder returned to the Surrey House at 1:00 p.m. [424] The Crown argues that the man on the videotape is the person seen during the surveillance, and is Bradbury. [425] There are problems with the foregoing: 1. The Crown's position that H.C.'s description and the surveillance description of "Bradbury" is premised on the reliability of H.C.'s description which Bradbury argues is unreliable. 2. The videos the Crown relies on are insufficient to permit any useful identification being made. DECISION RE: VETROVEC CAUTION [426] Earlier in the judgment, I instructed myself that H.C. would be treated as a Vetrovec witness and I would require confirmatory evidence to be presented prior to deciding whether the evidence of H.C. would be considered as capable of belief. I was primarily concerned with his atrocious and likely still ongoing criminal history, and with a number of apparent prior inconsistent statements that H.C. appeared to have made during the giving of his testimony. [427] The evidence of H.C. is the cornerstone of the case. In the circumstances of this case, if I am not satisfied that there is sufficient independent evidence tending to confirm material parts of H.C.'s evidence, there will be no convictions. Now that all the evidence has been heard, I am in a position to make that determination. [428] There are numerous principles that arise from numerous appellate decisions dealing with this issue. In this particular case, there are several that are particularly applicable: 1. Confirmatory evidence must be independent of the unsavoury witness (H.C.). 2. The confirmatory evidence does not need to directly implicate the accused or confirm the witness' evidence in every aspect. 3. In a multi-accused case, the credibility assessment of a Vetrovec witness is not assessed separately for each accused. [429] I apply those principles as I approach this issue. [430] The potential confirmatory evidence, together with defence submissions with respect to much of it, has been set out in great detail. Some or all of it, with respect to some or all of the accused, includes the following types of evidence: 1. DNA and/or fingerprints, at one or more crime scenes (including a residence and several vehicles). 2. The DNA or fingerprints are found on some combination of clothing, clothing packaging, cigarettes, food packaging, various items used as weapons, used products in a bathroom, latex gloves, plastic sheeting, and other items. 3. Serious injuries suffered by the accused. 4. Evidence of purchases (receipts or CCTV) by more than one accused of various items found at one or more of the crime scenes, some of which are connected to the crimes by DNA and/or fingerprints. 5. Intercepted and recorded ransom calls. 6. Surveillance. [431] While some of the foregoing have potential innocent explanations made in defence submissions, which must be considered in due course, there is a plethora of evidence that can only be considered as confirmatory of material aspects of H.C.'s evidence. [432] All of the potential confirmatory evidence bears on the two most significant contested issues: identification and what, if any, criminal activities were the accused involved in. [433] I am satisfied that the evidence which to this point has been referred to as potential confirmatory evidence does indeed confirm significant and material aspects of H.C.'s evidence and renders his evidence capable of belief. Consequently, from this point forward, I will refer to the potential confirmatory evidence as evidence of corroboration. [434] This leads to the next question, which is: does the evidence of H.C., together with all the other evidence, prove the offences charged beyond a reasonable doubt? The evidence will have to be considered through the lens of the defence submissions. [435] Further, it is important to note that the Vetrovec analysis only addresses the credibility of H.C. Even if his evidence is credible, it must also be reliable. FINDINGS OF FACT General [436] While several of the accused make arguments concerning significant factual issues that are unique to them, there are some issues that are common to all of the six accused. [437] There is a great deal of "DNA evidence" to be considered. In that regard, there have been a number of concerns raised in cross-examination that bear on general groups of exhibits (and sometimes specific exhibits). Broadly, these concerns relate to issues of: 1. Continuity. 2. Cross-contamination of exhibits lumped together in "bulk exhibits". 3. The suggestion of a "missed step" where proper procedure required a certain step to avoid cross-contamination. 4. Blowback evidence. [438] With respect to continuity, concerning the seizing, gathering, transportation, cataloguing, storing, and related issues, I am satisfied that all proper procedures were followed and that there are no concerns with respect to this issue. [439] With respect to "bulk exhibits", this refers to the practice that forensic officers sometimes employ (and did employ in this case) of seizing large quantities of exhibits and putting them into large boxes or bags together without taking steps to separate them from touching each other. This does not occur, and did not, with respect to exhibits that were identified at the scene as likely being of high importance. It does occur, and did occur in this case, where there are other potential exhibits that are not identified at the scene as likely being of high importance, but become the subject of later reconsideration such that many of them become the subject of forensic testing and are determined to be important after all, and become evidence at trial. This less efficient and less safe procedure (in terms of avoiding cross-contamination) is employed because of cost and efficiency. To itemize each exhibit at the scene would take longer, require more officers and incur more expense, all of which must be shared with other investigations. It is not for the Court to question that investigative decision. Having said that, it is for the Court to assess the possibility of cross-contamination with respect to any exhibit which was transported as part of a "bulk exhibit". [440] In this particular case, the exhibits that were transported by "bulk exhibit", and which have become exhibits at this trial, came from the garbage room. They are noted in the section of this judgment called Potential Confirmatory Evidence. It is possible that each was contaminated by DNA from another exhibit which touched it. It is clear that each exhibit within a bulk exhibit may potentially be the recipient of DNA by cross-contamination, but it is not clear that all will be, or most, or necessarily any at all. It is impossible to know if this will occur, how many, and which ones. [441] Having said that, there are some such exhibits which are highly unlikely to have been subject to cross-contamination; for example, the piece of gum with the DNA of Ali on it which came from a bulk exhibit. In this case, the evidence establishes that the DNA was on the interior centre part of the gum. Since cross-contamination would come from the touching of another exhibit, it seems extraordinarily unlikely that it occurred in this case. [442] With respect to the "missed step" by the DNA expert search technologist, this issue concerned the question of whether she had failed to set aside her reusable instruments (things like tweezers and scissors) resulting in a risk that they would not be properly sterile for continued or subsequent testing. I am satisfied that this defence argument is without foundation. The expert evidence made it clear in direct examination that she did regularly and properly cleanse, autoclave, and store prior to their continuing or next usage. Blowback Evidence [443] With respect to the balaclava, the accused argue that the DNA expert indicated that the forensic unit examined it for a "blowback" - a projection of biological material resulting form a shooting. The theory was that if the balaclava was worn during the kidnapping, one might have expected biological material that would have sprayed onto the balaclava. This testing was done and there was no such material found on the exhibit. There is no DNA on it connecting it to Dieppe. This suggests that it was not worn at Dieppe. [444] I disagree. There was no expert with respect to blowback evidence called. The DNA expert is not a blowback expert. He is an expert in doing DNA examinations for certain kinds of materials and that would certainly include blowback material. However, he is not qualified to comment upon what kind of situations might expect to receive blowback evidence nor did he testify that this was such a situation. He merely testified that the police asked him to check for it. He did, and there was none. No conclusions can be drawn from that evidence. H.C.'s Evidence [445] Were it not for the evidence that confirms and corroborates H.C.'s evidence, I would not believe him, for those same reasons that caused me to consider him to be a Vetrovec witness. [446] However, H.C.'s credibility is enhanced by the corroborating evidence which I consider to be overwhelming. It causes me to believe and I do believe that he attempted to tell the truth in every aspect of his evidence. [447] The foregoing comment refers to his credibility. There are areas of his evidence where the accuracy of his evidence is less certain. This refers to reliability rather than credibility. I am satisfied that this difficulty is a consequence of his ordeal as a victim, the trauma he suffered, the stress he was under, the pain from his injuries, the uncertainty of the outcome, the unavailability of his glasses, and the speed with which he was rushed into being questioned by police officers within hours of his rescue. [448] It is understandable that he wouldn't remember all of the details, that he wouldn't have had them organized in his mind in a way which would have permitted him to reveal them all in the very first interview and it is understandable he would remember various things as the early days passed which he had not remembered initially. [449] Even so, to the extent that his reliability has been affected in any material way, it is important, and I do not intend to ignore it. [450] Generally, I believe his evidence. I have set it out in great detail earlier in the judgment under the following headings: 1. Narrative - Summary a) As related by H.C. b) Participation of each accused (which contains a combination of H.C.'s evidence and other evidence). 2. Identification as related by H.C. 3. Defence submissions - various comments made where they are clearly attributable to evidence given by H.C. [451] I also believe and rely upon the evidence that corroborates that of H.C. including, but not limited to, the forensic evidence of the police officers who gathered and processed it. [452] The corroborating evidence enhances H.C.'s evidence to the point where I am certain that he is being truthful, is found earlier in the judgment under the following headings: 1. Potential confirmatory evidence 2. Potential confirmatory evidence - the evidence applied to each accused [453] The foregoing evidence of corroboration, includes the following types of evidence: 1. Evidence connecting H.C. to various accused and/or crime scenes. 2. Evidence that three of the accused were arrested in the presence of H.C. at the time of his rescue. 3. Evidence of clothing seized from the three arrested persons with H.C.'s DNA on it. 4. Evidence of DNA and/or fingerprints of each of the accused connecting them to the Surrey House and either the Acura TL, the Pathfinder, or both. 5. Evidence of DNA of more than one accused on a number of exhibits suggesting a relationship between them. 6. Evidence of items located at the Surrey House and in one or both of the vehicles which were used by the accused over the three days and which were purchased by the accused prior to or during the three days. 7. Surveillance evidence. 8. Ransom call transcripts. Prior inconsistent statements [454] The defence cross-examined and made closing submissions with respect to a number of apparent prior inconsistent statements of H.C. These prior statements were all found in the recorded statements made to police officers over the first few days after H.C.'s rescue. The first of those statements started just a few hours after his rescue. The portions of the statements that were referred to in submissions were all put to the witness and he did adopt them as his prior statements to the police. [455] The Crown responded to a number of them in re-examination, and in closing submissions, including submissions in reply. [456] With respect to a number of the alleged inconsistencies, most were explainable in a way which I am satisfied have no potential effect on either the credibility or reliability of H.C. Most of them turned out to be benign in the sense that the alleged "inconsistency" in an answer was really a reference to the fact that the police had never asked the same question that had been asked in Court. The defence argued that, nevertheless, there was importance to the fact that H.C. had not provided the information in any event. [457] The second reason why these apparent inconsistencies do not, in my view, impact upon the credibility or reliability of H.C. is because with respect to several of them, he initially gave an answer to police which was inconsistent with his evidence in Court, but in a later statement, often the next day, he gave the same answer he gave in Court. While I agree this is technically an inconsistency, in my view it is explainable by what I referred to earlier - his stress, his pain, the speed with which he was rushed into a question and answer session, and so on. [458] Having said that, there are several prior inconsistent statements, which did emerge. I intend to ignore his in‑court evidence on those points. In the same category, there are several statements which, while they may not fit quite within the definition of prior inconsistent statement, have several versions to them and cause me concern about their reliability. I intend to ignore his evidence with respect to those as well. [459] These include: 1. The notion that Cox "thanked" the others in the Surrey House. In cross-examination, he confirmed that he had never disclosed that in any of his interviews with the police or the Crown. Neither was he asked. 2. H.C. testified that Figueredo was the person who, at the Surrey House, admitted to punching H.C. at Dieppe. However, in a statement to the police, he said "Who hit me, I don't know." 3. With respect to Acosta, H.C. testified that while Acosta was sitting in the back of the Acura TL with him, he threatened to put H.C.'s daughter "next to him". When he was asked by the police if he knew who made this threat, he answered "no". 4. A prior statement from H.C. to the police, referred to earlier in this judgment about whether Figueredo was wearing a mask inside Dieppe is exceedingly unclear and/or ambiguous. 5. There is ambiguity about who the speaker was on call 31. H.C. testified that it was Acosta and he was clear on that. During his discussions to the police, he was less clear and seemed to think it was Ali. Further, the voice on the speaker on call 31 sounds very much like the speaker on call 30, who H.C. has identified as Ali. Further, the exact same phrase is used in both calls at least once. I am less than certain about the speaker of call 31. [460] With respect to the foregoing, I intend to ignore that evidence. [461] I do not conclude that any of the foregoing has an effect upon the credibility of H.C. generally. As noted earlier, I am satisfied that these kinds of errors are easily explainable by the ordeal he had undergone. On the other hand, they clearly must be considered as part of the broad picture when I am assessing the reliability of H.C. Voice identification [462] With respect to voice identification during the ransom calls, I am satisfied that H.C. was careful and accurate about this topic and about which persons were in the same car as him, or standing outside the window of that car, when each call was made. With respect to the discrepancy between calls 30 and 31, I am satisfied that H.C. believes in his own mind that he has been accurate. I am less certain about that call than I am about the others. It may be that he is wrong, such that the speaker was indeed Ali on both calls, and not Acosta on one of them. This does not affect his credibility. If he is indeed wrong, it has an effect on his reliability to that extent, and I will keep that in mind as I assess his reliability generally. [463] With respect to the words "try something" or "try moving" at Dieppe, H.C. attributes these to Ali. That evidence does not satisfy me to the level required in order for me to give it any weight. I believe that H.C. believes that he is making a correct identification. He may be but I am less than sure. The circumstances consist of his only hearing these two words from a person and voice that he had never heard before, in remarkably stressful circumstances, and then matching a voice to that later at the Surrey House, which happens to be Ali's voice. I intend to disregard the identification of the person speaking those words. [464] Having said that, I am satisfied that H.C. correctly identified Ali's voice during the ransom calls. By that point, he had had a good deal more opportunity to listen to the voice and match it to the face. I have acknowledged his difficulty in identifying the speaker of ransom call 31. In my view, his acknowledgment of this difficulty enhances his credibility. [465] H.C. testified that he heard Figueredo say the words "Go, go, go" while at Dieppe, after the gunshots and immediately before all of them exited. I am satisfied that H.C. was correct in this voice identification. He knew Figueredo well and had been in conversation with him not very long before when H.C. was in a meeting with Figueredo and Cox. [466] H.C. testified that, on the first night, he overheard Bradbury say to some of the others that, while at Dieppe, he had almost decided to shoot H.C.'s dog. While I am satisfied that H.C. was telling the truth to the best of his ability, I am not satisfied that his voice identification was accurate on this occasion. He had never met Bradbury before, nor some of the others who had been at Dieppe and the evidence leaves me unclear that Bradbury was in a position to distinguish between voices at that early stage. I give no weight to that voice identification. Corroborating Evidence [467] I also believe and rely upon the evidence that corroborates that of H.C. including, but not limited to, the forensic evidence and the police officers who gathered and processed it. Identification [468] Excluding Bradbury for the time being, the identifications of the other five accused, as the main participants in this series of crimes, is established by a combination of H.C.'s evidence and the corroborating evidence. [469] That corroborating evidence is compelling and lifts H.C.'s identifications to beyond a reasonable doubt. Further, four of the five acknowledged their participation to the extent that their identifications (except at Dieppe), are no longer an issue. [470] The fifth is Stewart who argues both that H.C. may have erroneously (or intentionally) misidentified him, or at least did not identify him until the last day when Stewart was merely present. [471] I reject that submission for several reasons: 1. H.C. knew Stewart and was able to identify him by face and voice. 2. While it is true that H.C. was not sure when he first realized that Stewart was one of the kidnappers, I am satisfied that he knew no later than the "long night" when Stewart was in the back seat of the Acura TL with him, armed with an assault rifle. 3. Stewart's fingerprints are located in the Surrey House: a) On pre-paid Mastercard papers (one of which corresponded by matching numbers to the activation of a Titanium Mastercard in the name of "Matthew Scott Stewart" on July 25, 2016). b) On a Vaseline jar on a counter in the bathroom beside the sink. c) On a clear latex glove in the garbage room. 4. His DNA was located in the Surrey House on: a) Two black Wilson gloves (one of which had his DNA on the inside right glove and H.C.'s DNA (positive for H.C. blood)) on the exterior left glove. b) Black balaclava - interior top of head mixed with Bradbury. and interior around mouth hole major component Stewart. c) Blue shoes, Cox's DNA (confirmed blood) on outside of right sole, Stewart's DNA on interior of right shoe. d) Mouth end of straw - living room floor. e) Mouth end of straw - garbage room. 5. In the Acura TL - black balaclava - front passenger footwell - Stewart DNA around mouth and nose. 6. The defence argues that the evidence is just as consistent with the fingerprints and the DNA being left over from the evidence that indicates that Stewart had attended at the Surrey House on previous occasions prior to September (referred to earlier in this judgment). 7. For the foregoing submission to be accurate, a number of coincidences will have had to occur: a) Stewart will have left his fingerprints and DNA on a number of items having deposited them there in the summer. b) He will also have left his Mastercard papers. c) He will have left the Vaseline jar on the counter in the bathroom, apparently in the summer. This is the same bathroom in which Bradbury left a fingerprint on the toilet flush, apparently also in the summer, and Figueredo had left a deodorant stick with his print on it. d) He will have left his shoes at the Surrey House when he was there in the summer, with his DNA on the inside of one of them and it will have come into contact with Cox's blood and DNA on the outside of the same shoe. e) He will have had his DNA deposited inside two different balaclavas found at two different crime scenes (the Surrey House and the Acura TL). f) H.C. will have, somewhere between September 16 and 19, when he was at the Surrey House, left his DNA (blood) on the exterior of a glove, the mate of which had Stewart's DNA on the inside, again apparently deposited there during the summer. [472] All of the foregoing are coincidences that are simply not capable of belief. The only reasonable explanation for the foregoing is that H.C.'s identification of Stewart is correct and that he and Stewart were in the Surrey House at the same time, somewhere from September 16 to 19. [473] I am satisfied that H.C.'s identification is correct and that Stewart was one of the persons involved in the series of crimes currently under consideration. [474] Bradbury is in the strongest position, among the accused, with respect to his argument about identification. This is because he was not picked out of the photo pack line‑up. My analysis of this has already been made clear: while I do not agree with the defence that I should give zero weight to the in-court identification of Bradbury, I do agree that the in-court identification carries less weight than that of the other accused because there is no prior identification by photo pack line-up, or in any other way. [475] When it was suggested to H.C. during cross-examination that he might be mistaken about his in-court identification of Bradbury, he said that there is "always a probability that I am mistaken but that is the face I remember." I have no difficulty in concluding that he misspoke and that he intended to say "always a possibility". An acknowledgment that there is always a "possibility" that he is mistaken is consistent with the tenor of his evidence. It also enhances his credibility. [476] As with Stewart, the extent of the corroborating evidence will be important: 1. H.C. told the photo pack line-up officer that the name of the person was "Ellwood" and he wrote it on the back of the photograph which he had chosen. The defence argues that this is meaningless because it is not clear that Bradbury's first name is indeed Ellwood. I reject this argument. Bradbury pleaded to the indictment which was in the name of Ellwood Bradbury. I am entitled to rely upon that for the purpose of determining that that is in fact his name. 2. Bradbury's fingerprints were found at the Surrey House on the front door, on the chrome handle of the toilet flush, on an A&W food wrapper in the garbage room, and on a plastic bag in the garbage room. 3. His DNA was found at the Surrey House on: a) Two cigarette butts at the rear of the house. b) A pair of shoes in the kitchen with Bradbury's DNA on the inside and H.C.'s DNA (blood) on the outstep and sole of one of the shoes. c) Swab of a straw on the kitchen counter with Cox's DNA (minor component). d) A black balaclava - interior top of head (with Stewart) e) Bath towel with bleach and blood stains - in kill room - Bradbury's DNA on one side - H.C.'s DNA on the other side. f) A grey hoodie with burn holes on the back - inside the bulk exhibit. 4. In the Pathfinder a swab of DNA on the mouth hole - Bradbury's DNA shared with Acosta's DNA. 5. Like Stewart, Bradbury argues that the timing of when the fingerprints and DNA were deposited is not capable of being known. Therefore, it is consistent with the evidence for it all to have been deposited in the summer when there is clear evidence that Bradbury had attended at the house on a number of occasions. 6. For the foregoing submission to be accurate, a number of coincidences will have had to occur: a) H.C., who had never met nor seen Bradbury before, would have to coincidentally know his name and pick him out in Court, without knowing that Bradbury had been at the Surrey House a month or two previously and left DNA and fingerprints in various places. b) H.C., who had never been to that residence before he was kidnapped, would have had to coincidentally left his DNA on a towel and a pair of shoes where, unknown to him, Bradbury had coincidentally left his own DNA, presumably a month or two earlier. c) Bradbury's fingerprint on the toilet flush handle was presumably left there a month earlier, perhaps at the same time that Stewart's fingerprint on the Vaseline jar was imprinted, and there was no argument made by Figueredo's counsel as to when his fingerprint on a deodorant stick in the same bathroom was left. d) Bradbury and Cox will have had to have shared, or at least touched, the same straw, although they were at the house weeks apart. e) Bradbury and Stewart will have had to both have worn the same black balaclava, presumably in the summer when they were both there, and then left it at the house. [477] All of the foregoing are coincidences that stretch credulity. [478] However, there is an additional consideration that relates to Bradbury alone before a final determination can be made with respect to whether or not H.C. has correctly identified him. Third Party Suspect [479] This potential defence was canvassed earlier in this judgment under the heading Bradbury - Defence Submission. After hearing submissions from the defence and the Crown, I concluded that the evidence of the possible involvement of the third party was relevant and admissible: R. v. Grandinetti, 2005 SCC 5. [480] Now that I have heard that evidence in the context of all the other evidence in the case, the question to be determined is whether, on the evidence as a whole, the possible involvement of the third party (Pichler) raises a reasonable doubt about the guilt of the person charged (Bradbury): R. v. Kahn, 2011 BCCA 382. [481] The evidence set out earlier in the judgment indicates that Pichler had involvement in buying items that were found in the Surrey House. They are items likely connected to the kidnapping. There are also photographs of Pichler in evidence, including photographs of his purchasing of the items in question at Walmart. [482] Bradbury's counsel opined that Pichler's appearance is similar to the person (wrongly) selected by H.C. in the Bradbury photo pack line-up. [483] Bradbury's counsel argued that there is a reasonable possibility that H.C. has confused Bradbury with Pichler and that this should raise a reasonable doubt about Bradbury's involvement. [484] I am unable to accede to Bradbury's argument. There are a number of reasons for this, including: 1. H.C. was shown a photograph of Pichler, and was asked if he could identify him. He indicated that he could not. 2. The police investigation for forensic identification evidence from the Surrey House turned up one item only with respect to Pichler. That item is the fingerprint on the Walmart bag that was advanced as part of the third party suspect issue I am currently addressing. 3. The evidence leads to the reasonable conclusion that Pichler bought supplies (for use in the kidnapping) on one occasion, and may have personally delivered them to the Surrey House. It may also lead to the conclusion that he knew some or all of the six accused, and that he had knowledge of, and perhaps was even an accomplice in, the ongoing confinement of H.C. 4. While I acknowledge that there is some similarity in appearance between them, there is also a marked difference which is clear and obvious when all of the Pichler photographs in evidence (including those on CCTV), are compared to all of the photographs of Bradbury in evidence, and also compared to Bradbury himself in the courtroom. That difference is in the hairline. Pichler has a distinct "widow's peak". If I have misnamed it, I will describe it from the photographs: he has a hairline which has a v-shaped point in the centre of the forehead. On either side of that centre, are receding bald areas which are of similar shape and size. The "peak" is of course the centre. The photographs of Bradbury do not have this, Bradbury in the courtroom does not have this, and photograph number two (the one which H.C. picked) from the Bradbury photo pack line-up, also does not have it. 5. The potential involvement of Pichler, based upon the evidence presented may lead to the conclusion that Pichler was an accomplice in the ongoing confinement, but it does not reasonably lead to the conclusion that Bradbury has been mistaken for him. [485] I am satisfied that, in the context of the evidence as a whole, the evidence of the involvement of Pichler does not raise a reasonable doubt about the guilt of Bradbury. [486] I am satisfied that H.C.'s identification is correct and that Bradbury was one of the persons involved in the series of crimes currently under consideration. [487] I am satisfied that all six accused persons have been correctly identified by H.C. as persons significantly involved in the plan, and the corresponding activities, to confine H.C., assault him, and attempt to recover a ransom for him. [488] I am satisfied that H.C. has identified all six accused correctly as the persons who were at the Surrey House with him from September 17-19, 2016. Non-Accused Persons [489] All of the accused point to the evidence indicating that there are a number of non-accused parties who accessed the Surrey House. [490] This evidence includes fingerprints and DNA of Grattan, fingerprints of Pichler, Reeve, Stevens and DNA of Ross. It also includes evidence that Pichler purchased five pairs of shoes from Walmart in August 2016. It also includes evidence that Ross had a tattoo on his neck. Further, H.C. testified that he heard voices in the Surrey House that were different than those of the six accused. [491] The defence argues that this evidence leads to the inference that some or all of these non-accused persons might have been involved in the kidnapping and/or the confinement of H.C. leading to the conclusion that some or all of the six accused are wrongly charged. [492] The Crown has taken the position that, from the outset, there may have been more than six persons involved in the overall scheme concerning the kidnapping and confinement of H.C., although it has chosen not to charge any other persons. [493] I agree with the defence that some of the evidence referred to may suggest that one or more of these persons had some involvement in the scheme. However, even if one or more of them were involved in the scheme, there is nothing in that evidence that suggests that any of the six accused were therefore not involved. [494] Further, there is no evidence to suggest that H.C. ever identified any of the so called non-accused persons as being present in the Surrey House, as anyone he saw or heard during the relevant time period or as persons involved in the crimes committed against him. Actions [495] I am satisfied that each accused committed and/or was involved in those activities that H.C. testified he saw and heard. [496] I am also satisfied that they were all involved in some or more of the various assaults against H.C., within the kill room, where he was unable to identify each individual each time. I am satisfied, based on H.C.'s evidence, that they all participated in some of them. [497] I am also satisfied that whenever a particular accused was not directly involved in a particular assault, he would still have been able to hear it and realize what was going on. [498] I am satisfied of all of the foregoing because it was a small house and according to H.C., he could hear everything, although not always make out the words. It follows that the accused could also hear everything, particularly when H.C. was being beaten. [499] Several accused made the argument that they should not be held accountable for assaults they were not directly involved in, most notably, the assaults with the blow torch and/or bolt cutters, one involving Ali alone, and one involving Ali and Bradbury. I reject that submission. Although they were not present, they are parties to that offence just as all of the others are parties to every assault that occurred in that house for the reasons already noted. They all knew what was going on, and just their presence there was an intimidating factor, a factor that made it more unlikely that an escape was possible and more likely that each of the six could feel more at liberty to continue the series of assaults simply because there were six of them. [500] With respect to how many such assaults there were, H.C. was unable to estimate. In addition to the several assaults which he described with some details, it is hard to imagine that there were very many more over the 45 hours of the confinement, much of which was spent in the cars. In fairness to the accused, I conclude only that there were several such additional group assaults. [501] I am satisfied that all of the accused participated in the ransom calls made from the two vehicles and that they were all in one or other of the vehicles (together with H.C.) during the entire duration of the various ransom calls, unless the vehicles had stopped, and one or more of the accused was standing outside. [502] I am satisfied that H.C. has correctly identified the voices in the ransom calls with the exception of call 31 about which I draw no conclusion. [503] I am satisfied that all of the accused participated in one or more of the ransom calls. Dieppe [504] There are two issues of significance that counsel have raised with respect to Dieppe: 1. Who was present at the time of the kidnapping and the manslaughters? 2. If none of the accused were present, is that fatal to the notion of convictions for what happened inside Dieppe? [505] The evidence from Dieppe is limited. [506] There are two witnesses other than the kidnappers themselves: H.C. and the four-year-old, K.B. [507] With respect to K.B., the Crown presented his evidence, with consent, by videotape in the form of his interview with police shortly after the incident. In addition, I heard testimony from the first officer who took control of the boy shortly after the police discovered him at the scene at Dieppe. [508] I understand the boy had suffered a traumatic event. His demeanour may well be what should be expected in those circumstances. However, I have a concern about his evidence. [509] While he spoke like a normal small child, the general ambiance left me unsure that he was behaving and speaking in the way a child would be expected to be behaving and speaking in those circumstances. I fully understand the Court's duty to view and consider the evidence of young witnesses in a different way than the evidence of adults; to consider that they speak differently, think differently, view the world differently, and so on. Consequently, he may well be behaving in the anticipated way. The difficulty is that it leads me to think that he had not fully comprehended what has occurred, and this leads me to be concerned about the extent, if any, to which I can rely upon his evidence. [510] As a result, I intend to ignore the evidence of K.B. [511] With respect to H.C.'s evidence, it will be clear that his ability to observe and understand were impaired. He was punched in the face at the outset, his glasses fell off and were never retrieved, and the bone around his eye was broken. He was beaten and thrown down a flight of stairs. [512] He was frank about his inability to relate with much detail or accuracy what happened there. He was not sure how many people were there, he thought three or four. He said they were wearing dark coloured balaclavas. [513] His hands were tied behind his back. He believes a gun was put to the back of his head. He was thrown down a flight of stairs. [514] H.C. testified that three or four men wearing black balaclavas were there. [515] He did not see the face of anybody other than, perhaps, Figueredo. Cox had been in the home earlier before the masked men appeared. H.C. did not see him again until he was put in the MDX. [516] Both Figueredo and Cox had a legitimate reason to be in the house, although Figueredo appeared to be acting together with the other men. [517] He heard someone yell "go, go, go" and he recognized the voice as Figueredo's. His evidence is ambiguous about whether he saw Figueredo with or without a mask. He did see him outside at the MDX. [518] Evidence suggesting Figueredo was at Dieppe: 1. H.C. testified that he saw him and recognized his voice as yelling "Go, go, go". 2. Figueredo purchased seven identical pairs of shoes and six sweat suits. This suggests that Figueredo planned on working with five others. Two of the pairs of shoes were not recovered. 3. A sole impression of his footwear was located near the bodies, although there were no accidental characteristics such that the most that can be said is that he cannot be excluded as having been there. 4. H.C. testified that when he was dragged from Dieppe to the MDX, Figueredo was there and was indeed the driver. When vehicles were changed, he became the driver of the Acura TL. [519] There is no forensic evidence connecting Figueredo to Dieppe other than the possibility of a connection between a footwear impression at Dieppe and a pair of shoes connected to Figueredo. It is of limited probative value. [520] Evidence suggesting Ali was at Dieppe: 1. Upon arrest, a black balaclava was found in the Acura TL with Ali's DNA on the inside. The significance of this is that the Acura TL was one of the vehicles that drove away from Dieppe. The Crown argues that Ali left the balaclava there after having been at Dieppe. 2. The evidence indicating that the balaclavas were not worn at any time during the three days except at Dieppe and later that evening at the Surrey House. 3. H.C. testified that in the back of the MDX he was lying with his head on the lap of a man whose arm was brown‑skinned. 4. A sole impression of his footwear was located near the bodies, although there were no accidental characteristics such that the most that can be said is that he cannot be excluded as having been there. 5. Figueredo testified that he recognized Ali's voice saying "Try something" by comparing it to the face that he saw later at the Surrey House with the same voice. I have already commented on my concern about that evidence. [521] There is no forensic evidence connecting Ali to Dieppe other than the possibility of a connection between a footwear impression at Dieppe and a pair of shoes connected to Ali. It is of limited probative value. [522] Ali argues that there is a danger that H.C. has been a victim of reverse reasoning: 1. He believes that a masked man in the MDX had dark skin. 2. He sees a man who is "brown" on September 19 who he can identify as Ali. 3. He therefore assumes that Ali was at Dieppe and in the MDX because he was the only person he has seen with dark skin. 4. He attributes all actions by someone with dark skin to Ali. [523] Evidence suggesting Bradbury was at Dieppe: 1. A black balaclava with his DNA on it (together with Stewart's DNA) was located at the Surrey House. 2. The evidence indicating that the balaclavas were not worn at any time during the three days except at Dieppe and later that evening at the Surrey House. 3. A sole impression of his footwear was located near the bodies, although there were no accidental characteristics such that the most that can be said is that he cannot be excluded as having been there. [524] Evidence suggesting Stewart was at Dieppe: 1. A black balaclava was located by the police in the Surrey House, combined with Stewart's DNA and Bradbury's. 2. A second black balaclava was located with Stewart's DNA on the inside in the Acura TL. The significance of this is that the Acura TL was one of the vehicles that drove away from Dieppe. The Crown argues that Stewart left the balaclava there after having been at Dieppe. 3. The evidence indicating that the balaclavas were not worn at any time during the three days except at Dieppe and later that evening at the Surrey House. [525] Evidence suggesting that none of the accused were present is as follows: 1. There is no forensic evidence found at Dieppe directly connecting any of the accused to that address. 2. There is no blood or DNA of either deceased person found on any shoes or clothing or any other object at the Surrey House or in any of the three automobiles in which the evidence suggests the six accused travelled. This is important because the evidence suggests that all three vehicles were used in travelling directly from Dieppe, with two of them arriving at the Surrey House and the third being located by the police. 3. The only evidence inside Dieppe that is a "connection" to the accused are footwear impressions from shoe soles that have a connection to Figueredo, Ali, and Bradbury. The expert evidence is that this is not conclusive evidence. The impressions have no accidental characteristics leaving the footwear impression expert to opine that every new shoe of the same sort sold in the world would produce the same impression. It is of little probative value. 4. The gun that shot the two victims was never located. [526] While I am satisfied that some or all of the accused were present at Dieppe at the time of the kidnapping and the manslaughters, the evidence does not permit me to be satisfied as to which ones, other than Figueredo, were present. In particular, I am concerned with the following: 1. I have already noted that I am not satisfied with respect to H.C.'s voice identification concerning Ali at Dieppe. 2. I have already noted that I am not satisfied with H.C.'s voice identification of Bradbury at the Surrey House speaking about his almost shooting H.C.'s dog. [527] I am satisfied that Figueredo was present at Dieppe because of H.C.'s voice identification of Figueredo yelling "Go, go, go". I am unable to attribute any other specific actions to him while at Dieppe, although I am satisfied that he was one of the three or four men who were there for the purpose of kidnapping H.C., and who accomplished that goal at that time. [528] Some of the accused argue that there are two defence theories as consistent with what happened at Dieppe as is the Crown's theory (that all of the accused were there). [529] Both of these defence theories acknowledge responsibility for some or all of Counts 1 to 5 but deny responsibility with respect to Counts 6 and 7 and deny ever being at Dieppe. In fact, they deny ever intending to be at Dieppe. The first of those theories is as follows: 1. That H.C. was never supposed to be kidnapped and taken by force from Dieppe to the Surrey House for confinement. Rather, he was to be lured there by tricking him into driving Figueredo and Cox there after a party the night before or perhaps two nights before September 17. That party is referred to by H.C. in his evidence, and earlier in this judgment. H.C. testified that Figueredo and Cox were getting a ride home to Surrey and they asked him if he would drive them all the way. He declined and he dropped them at the Skytrain station. The defence argues that this was the real plan. When it failed, they had nothing to do with what followed and, in particular, nothing to do with what happened at Dieppe, nor did they know about it. They next learned that H.C. was indeed at the Surrey House and that a "new plan" was underway in which they were involved in his confinement at that house. 2. The second theory was that they were never supposed to be involved in getting H.C. to the Surrey House at all. Rather, their part of the plan was always to just be involved in the confinement at the Surrey House and they had nothing to do with and no knowledge of how he was going to get there. [530] The defence argues that the evidence is just as consistent with either of those two theories as with the theory of the Crown. [531] I reject that submission. In my view, it is speculative and not based on the evidence. It is contrary to the evidence of H.C. who says that the masked men took him to the Surrey House and by the next day he had seen all their faces. [532] I am satisfied that whether some or all of the accused were at Dieppe or not, they were each part of the entire plan which included the kidnapping and the confinement and they were part of it before September 17. They all knew about it, they all took part in preparing for it, and in implementing it, whether or not they were physically at Dieppe. [533] Further, whether or not any of the accused were at Dieppe, I have no doubt that they all knew that whoever among them went to Dieppe would be running the risk of violence and of someone being seriously hurt. Duress [534] Cox raises and relies on the defence of duress. [535] The defence of duress is dependant upon an analysis of the legal principles involved, together with evidence/facts that may or may not move that legal analysis in the direction of the party raising the issue. [536] Rather than separate the facts and the law in this situation, I will deal with the facts and law relating to the issue of duress under the heading Legal Issues. LEGAL ISSUES Duress [537] Cox raises and relies on the defence of duress. [538] The framework for analysis when the defence of duress is raised is set out in Ketch. [539] The six factors in the analysis are the following: 1. An explicit or implicit threat; 2. A reasonable belief the threat will be carried out; 3. No safe avenue or escape; 4. A close temporal connection between the threat and the harm threatened; 5. Proportionality between the harm threatened and the harm inflicted by the person relying on the defence; 6. The defence is not available to someone who voluntarily has participated in a conspiracy or association. [540] Additional legal principles, derived from the case law, are as follows: 1. An accused need not testify in order to raise the defence. 2. An accused has the evidentiary burden to show that the defence has an air of reality to it. 3. If an air of reality has been made out, then the burden shifts to the Crown, and it is the Crown who must prove beyond a reasonable doubt that at least one of the essential elements for the defence of duress has not been met. 4. The Court must look at the evidence to see whether the accused took steps of his own free will to assist the kidnappers and further their objectives. [541] The evidence that the defence advances with respect to the six factors referred to in Ketch are set out earlier in this judgment under the topic of Cox - Defence Submissions immediately after the brief discussion there about Ketch. [542] The Crown refers to the following evidence and argues that Cox was a participant at the outset and throughout the kidnapping: 1. Cox is the only one who could have known when the optimum time for the kidnapping had arrived, that is, when H.C.'s girlfriend and roommate were not going to be present. 2. Cox is the only one who could have, before H.C. arrived home, hidden the kidnappers in his own room which was on the same floor as the kitchen and living room, and where H.C. was subsequently watching t.v. That is consistent with the evidence from H.C. that he did not hear any footsteps on the stairs except for the other persons who lived there and who had arrived home early. 3. The kick by one of the masked kidnappers to Cox's face or head was observed by H.C. to be not terribly hard, not hard enough to draw blood, and it appeared to elicit an exaggerated response from Cox. 4. On the first night in the Surrey House, Cox came into his room to ask him to cooperate. 5. While Cox did say that he didn't wish to be involved in this, he did so when none of the other kidnappers were within ear shot. The Crown argues that this comment was for the benefit of H.C. 6. From the room where H.C. was held captive, he overheard Cox interacting with the other kidnappers in light-hearted banter about smoking weed. 7. Cox's DNA and fingerprints leads to the conclusion that he had free access to items of food found in the fridge and on the kitchen counter, that he had shared a drink, or at least a straw, with Bradbury, and that he had, on at least one occasion, kicked H.C. while wearing a shoe. [543] Cox's involvement as a willing participant in the kidnapping was already underway, and Cox was part of it, before the killings of H.C.'s girlfriend and roommate. It is too late to claim duress after that point. [544] In response to the six Ketch factors, the Crown argues as follows: 1. There is no evidence of a threat, or who made such a threat and there is no evidence of what Cox was being compelled to do because of the so-called threat. 2. The second element is that the accused must reasonably believe that the threat will be carried out if he doesn't comply with what he has been told to do. Here, there is no evidence of what the threat was, or what he was compelled to do, and therefore, the Court cannot determine if his belief with respect to what might occur was reasonable. 3. The third element is that there must be no safe avenue of escape. Here, Cox had the ability to leave. Various of the kidnappers were seen away from the Surrey House by surveillance officers. Other persons also came and went from the house. The Crown argues that Cox had the ability to leave. There is no evidence to the effect that he was unable to leave. 4. The fourth element requires that there be a close temporal connection between the threat to the accused and the harm. Once again, there is no evidence of the threat so it is impossible for the Court to assess it. There is insufficient evidence to raise the inference of an implied threat. 5. The fifth element is negated by virtue of the fact that there is no evidence about any threat to Cox. Even if there is such evidence, there is no evidence about how serious it was in terms of proportionality. 6. The sixth element is negated by the evidence that indicates that Cox was initially a willing participant in the original kidnapping. [545] In my view, there is sufficient evidence to establish an air of reality to the defence such that the burden of proof shifts to the Crown. When the evidence is considered in that context, I am satisfied that the Crown has disproven beyond a reasonable doubt, several of the essential elements of the defence: 1. I agree with the Crown that there is a no evidence of a threat, nor of who made such a threat, nor of what it compelled Cox to do. At most, one might argue that he feared that something would happen to him if he did not go along with the others. This is something less than a threat, or evidence of a threat. 2. Because there is no threat, it is impossible to assess Cox's belief with respect to whether such a threat might be carried out. 3. There is no evidence upon which the Court could determine whether there was a safe avenue of escape for Cox. There is evidence on this topic with respect to H.C. There is none for Cox. 4. Because there is no evidence of a threat, it is impossible to assess whether there is a temporal connection between the threat and the potential harm of the threat. 5. Again, no threat, it is impossible to assess it in terms of proportionality. 6. I am satisfied that Cox was originally a voluntary participant - he provided information about the best timing, and he led them into the house. It may well be that Cox quickly became disenchanted with the enterprise, particularly after the shootings. It may even be that he became disenchanted at the Surrey House with what he perceived to be excessive and gratuitous violence against H.C. Neither of those are evidence of a threat, nor do they entitle him to rely upon the defence of duress, when he had originally been a willing participant. Parties [546] In a case involving more than one accused, charged with the same offences, counsel and the court must inevitably address the notion of "parties": to what extent is each accused responsible, not only for his own actions, but for the actions of his co-accused? [547] To address this problem, one must turn to s. 21 of the Criminal Code. In this case, I am satisfied that s. 21(1) is the appropriate section that must be considered to address the party issues that arise with respect to Counts 1 to 5 of the indictment. I am satisfied that s. 21(2) is the appropriate section to address Counts 6 and 7. I will deal with them separately. Section 21(1) [548] Section 21(1) of the Criminal Code provides: Everyone is a party to an offence who a) actually commits it; b) does or omits to do anything for the purpose of aiding any person to commit it; or c) abets any person in committing it. [549] This section indicates that both the principal(s) who commit an offence, and those who assist the principal(s), are parties to that offence. [550] The Crown argues that each of the six accused is guilty of counts 1 to 5, as being a member of a pre-planned joint venture to kidnap H.C. for ransom by application of s. 21(1). [551] It is legally irrelevant whether any given accused participated in the actual abduction. The acts undertaken were done so in furtherance of the joint venture. [552] It is not necessary to determine which of the accused were actually present at Dieppe at the time of the original kidnapping. I am satisfied based upon the evidence relating to each of them that they were fully participating parties with respect to the offences in each of Counts 1 to 5 whether or not they were present at Dieppe at the relevant time. The evidence that relates to each of them in this regard includes, but is not limited to, the following: 1. The evidence relating to each accused set out earlier in this judgment under the heading Participation of Each Accused. 2. The evidence of what happened at Dieppe including the preparation for it. 3. The evidence of preparation for the Surrey House including arrangement for rental, purchase of numerous items, and preparation of a kill room. 4. The evidence of the presence of each of them at the Surrey House at the relevant time. 5. The evidence of numerous purchases at a variety of different places including materials for Dieppe and materials for the Surrey House. 6. The evidence of the procurement of the two vehicles. 7. The evidence of travelling in the two vehicles on various occasions and the making of the ransom calls. 8. The evidence of their participation in ongoing assaults on H.C. in various locations. [553] In relying upon the foregoing evidence, I am satisfied that each of the accused in fulfilling their individual tasks did so in pursuant of their common goal. I am also satisfied that they each knew and understood that each of the other accused were performing actions similar to theirs also in furtherance of the overall common scheme. [554] I am satisfied with respect to all of the foregoing beyond a reasonable doubt. [555] I am satisfied that all of the accused were consciously and willingly involved, and parties to a joint venture in which capacity they each, as a group and individually, committed each of the crimes set out in Counts 1 to 5 of the indictment. [556] I am satisfied with respect to all of the foregoing beyond a reasonable doubt. [557] Where the court finds that the offences have been proven beyond a reasonable doubt and that each accused participated in any of the ways described in s. 21(1), there is no need to specify the role or roles of each individual accused: R. v. J.F.D., 2005 BCCA 202. [558] Multiple persons may "actually commit[s]" the crime for the purposes of s. 21(1)(a), often referred to in the jurisprudence variously as co-principals, joint venturers or co-perpetrators. This is so even though each person has not performed every act which makes the actus reus of the offence: para. 23 in R. v. Ball, 2011 BCCA 11 cited R. v. Mena (1987), 34 C.C.C. (3d) 304 (Ont. C.A) where Justice Martin wrote at para. 309: [23] .... It was well established that, if several persons combined to commit a crime and each person committed a different part of the crime, every such person was a principal in the first degree. In Russell on Crime, supra, the author states at p. 131: All the facts of the case must be taken into account, so that where it appears that there is a joint enterprise afoot between two (or more) persons in which each has an active part to perform in order to effect the criminal purpose then each participant is equally a principal in the first degree. [559] In this case, the principal offence and driver of all of the criminal acts committed is the kidnapping of H.C., s. 279(1). The seminal case on the required proof for a charge of kidnapping is R. v. Vu, 2012 SCC 40. At para. 47, Justice Moldaver adopted the basic elements of the offence summarized by Chief Justice Finch in the Court below: [47] Finch C.J.B.C. accurately summarized the basic elements of the offence of kidnapping in his reasons. For the actus reus, there has to be an abduction of a person and moving him or her to a place ("carrying away" or "asportation"), against the victim's will, which can be accomplished either by force or by fraud. The mens rea will be established if the accused has one of the intents described in s. 279(1) of the Code. [560] The intent alleged in the present case is found in s. 279(1)(c): to hold the person for ransom. [561] Party liability was addressed in Vu. Justice Moldaver held that kidnapping is a 'continuing offence' such that party liability is available at any point during the currency of the unlawful confinement occurring as a consequence of the kidnapping. In other words a latecomer to participation in the confinement, may be held liable for the kidnapping pursuant to s. 21(1). [562] In the case at bar, the foregoing means that those who were not at Dieppe but became involved in the confinement of H.C. at the Surrey House, will be responsible as principals or as parties, for the kidnapping itself. [563] The actus reus for aiding or abetting is wide in scope. Any act or omission that happens before or during the commission of the offence and somehow furthers, facilitates, promotes, assists, or encourages the perpetrator will suffice. [564] With respect to Counts 6 and 7, these will be addressed under s. 21(2). Section 21(2) [565] Section 21(2) is the appropriate section for analyzing whether the accused are responsible for the deaths of the two persons at Dieppe, even though they, or some of them, may not have even been present at the time. [566] Just as the evidence does not reveal who was at Dieppe, it also does not reveal who actually shot the two victims. For that reason, the Crown has not charged anyone with that offence. If that person was known, surely he or she would be guilty of murder, rather than manslaughter. [567] The reason the Crown has charged all six accused with manslaughter rather than murder is because, in addition to not knowing who pulled the trigger, the evidence is not sufficient to conclude that any identifiable accused had a specific intent to kill. Manslaughter does not require proof of such an intent. [568] The Crown argues that s. 21(2) provides a route by which guilt can be established against one or more of the accused even if they were not present at Dieppe, and did not intend that anyone should or would be killed. [569] Section 21(2) of the Criminal Code provides: (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [570] Section 21(2) attaches criminal liability for distinct, incidental offences which occur in the course of commission of a joint enterprise offence. In the case law, these offences are often not planned and not part of the desired outcome. [571] The essential elements of s. 21(2) to be proven, if there are to be convictions, are these: 1. Agreement - participation of the party in a common unlawful purpose. 2. Incidental Offence - commission of an incidental and different crime by another participant. 3. Knowledge - foreseeability of the likelihood of the incidental crime being committed. [572] In this case, the first element is the agreement to participate in the kidnapping. [573] The second element (incidental offence) is the two manslaughters. [574] The third element (knowledge) is the foreseeability of the likelihood of the incidental crime being committed. [575] Some accused agree that the first two essential elements (Agreement and Incidental Offence) have been proven. The third element, knowledge/foreseeability, is what is in dispute. [576] With respect to knowledge, the mens rea of this offence is found within s. 21(2) itself, that is, that the accused "knew or ought to have known that the commission of the incidental offence would be a probable consequence of carrying out the common purpose...". [577] The accused argue that the words "foreseeability of the likelihood of the incidental crime being committed" mean that the mens rea to be proven is foreseeability that death would result from their participation in the common unlawful purpose (the kidnapping). [578] The Crown states that, if the charge before the Court was murder, then the Crown would agree with the defence. However, since manslaughter is not a "specific intent offence", the mens rea is simply that the accused "knew or ought to have known that a probable consequence [of the kidnapping] was perpetration of an inherently dangerous act creating a risk of bodily harm to the deceased that was neither trivial nor transitory": R. v. Jackson, [1993] 4 S.C.R. 573. [579] The accused argue that an essential aspect of the foregoing principle is contained within the phrase "probable consequence". This requires an analysis, based on the evidence of the case, of whether or not the accused "knew or ought to have known" that the consequence which in fact occurred, was indeed "probable". In that regard, the accused notes the following: 1. The accused had taken steps to avoid the presence of innocent parties. The kidnapping had been set for a time when no one else was supposed to be there. It was an unexpected intervening event which was not expected or "probable" based on the evidence. 2. H.C. agreed in cross-examination that those in the drug trade (himself and at least two of the accused) do not involve, or harm, persons who are uninvolved in the drug trade, such as the victims in this case. That is outside the boundaries of what is accepted. Even when H.C. heard the shots, he believed it was simply to scare the two persons in his home. He did not realize they had been shot until later at the Surrey House when he overheard conversation that caused him to understand. 3. In R. v. Kawal, 2018 ONSC 4560, the Court cited with approval, a passage from a textbook on criminal law: 54 ... in the most common type of case where s. 21(2) is used, which is the commission of a murder during the course (of an armed robbery, it is by no means obvious that the condition [of probability] is met. To say that a consequence is "probable" (or "likely") is ordinarily to say that it can be expected to occur, that its occurrence is more likely than not, or that there is a better than even chance of its occurrence. Armed robberies do not usually lead to killings. Killing might be regarded as a possible outcome of any armed robbery, but it will rarely be a probable outcome.... E. Colvin, Principles of Criminal Law 3rd ed. (Toronto: Carswell, 1986) at p. 323 4. The accused argue that the same principle that is raised with respect to armed robbery should be applicable to kidnappings of those in the drug business by others in the drug business. [580] Further, the defence makes a strong argument, based largely upon R. v. Patel, 2017 ONCA 702, that the mens rea has not been met because of an intervening event, the two victims arriving home unexpectedly with the unfortunate outcome which was not foreseen as a probable consequence. [581] In Patel, the charge was murder. [582] After consideration, I am satisfied that the mens rea for manslaughter in these circumstances focuses upon the inherent dangerousness of the kidnapping itself which leads reasonable persons to foresee a risk of bodily harm which is neither trivial or transitory. [583] The test, when the charge is manslaughter, is one of objective, not subjective, foreseeability. [584] In R. v. Natewayes, 2015 SKCA 120 aff'd by the Supreme Court of Canada at 2017 SCC 5, the Saskatchewan Court of Appeal allowed a Crown appeal, thereby convicting an accused, of manslaughter on the basis that she drove the actual killers to the residence where the homicide occurred. She knew that one of the men was carrying a bat and some of them covered their faces. She knew they were going to fight. None of them were planning or anticipating a death. She did not go inside. She did wait outside. The presence of the person that was killed was unexpected. [585] The Court said this at paras. 20 and 21: 20 As for s. 21(2), if a common unlawful purpose has been proven, the mens rea for manslaughter is objective awareness of harm. More specifically, a manslaughter conviction will be entered when a reasonable person, in all of the circumstances, would have foreseen the risk of harm to another individual as a result of carrying out the common intention. See: Jackson at pp. 586-587. 21 Criminal liability as a party to an offence under ss. 21(1)(b) and 21(2) does not require that the harm in issue be foreseeable in relation to a specific identifiable individual. No such requirement exists with respect to the liability of a principal and it would therefore be illogical to demand it with respect to a party. See, for example: R v DeSousa, [1992] 2 SCR 944. [586] The foregoing stands for two propositions: 1. The mens rea is "objective awareness of harm", not subjective. 2. It is not necessary that the objective foreseeable harm be towards a specific identifiable individual (such as H.C.); in other words, the objectively foreseeable harm (and subsequent death) to a different individual can equally form the basis for a manslaughter conviction. [587] The Supreme Court of Canada decision in Natewayes was delivered by the Chief Justice and, in its entirety, says this: We are all of the view that the appeal should be dismissed for the reasons of Chief Justice Richards in the Court of Appeal. [588] It follows from the foregoing that it is unnecessary to assess whether the accused ought to have subjectively foreseen harm as a probable consequence of the kidnapping. However, if that were an issue to be determined, the Court would have to consider the following: 1. That at least three men entered Dieppe and some or all of them were masked. 2. Prior to going to Dieppe, the Surrey House had been "prepared" to receive a victim and to hold him in a "kill room" which had been covered on the walls and the ceiling in plastic sheeting. 3. In addition to the preparation of the kill room, supplies had been purchased and were waiting at the Surrey House which included a blow torch and bolt cutters, without any suggestion, in the evidence, of an anticipated legitimate use for either of those. 4. The evidence suggests that there were at least two, and possibly three guns present at Dieppe. 5. Several firearms were found in the Surrey House during the investigation after the rescue. One of them was an assault rifle to which two of the accused have a connection - H.C. saw Stewart in the back of the Acura TL holding an assault rifle during one of the ransom call trips, and Acosta's fingerprint was found on the trigger of that rifle. Another was found in the car from which H.C. was rescued. 6. Knowledge by an accused that his co-participants in the unlawful common purpose are armed with lethal weapons and/or have a history of violence will permit the inference that they are prepared to use lethal force should the need arise: R. v. Mooring, 2003 BCCA 199 at para. 48. [589] With respect to the evidence in this case, it is impossible to determine who the shooter was, or who was present at Dieppe. In my view, it is not necessary to do so: R. v. Bidesi, 2015 BCSC 863. [590] The Court can look at the surrounding circumstances, including the conduct of the participants before, at the time of, and after the offence was committed to determine whether there existed an intention in common to carry out the kidnapping. [591] I am satisfied that, in accordance with s. 21(2), each of the accused, in carrying out the "common purpose" (kidnapping) knew or ought to have known that a probable consequence of carrying out that common purpose was perpetration of an inherently dangerous act creating a risk of bodily harm to the deceased that was neither trivial nor transitory. [592] For those reasons, I find each of the accused is a party to the crime of manslaughter and therefore guilty of that offence. [593] Having said that, I am satisfied that they cannot be convicted of manslaughter as charged in the indictment, which is pursuant to s. 236(a) and includes the words "did using a firearm, commit manslaughter". The significance of s. 236(a) is that the inclusion of a firearm as part of the charged offence creates a minimum punishment of imprisonment for a term of four years. [594] In my view, the inclusion of a firearm as part of the offence is an essential ingredient of the offence and therefore must be proven beyond a reasonable doubt. This means that knowledge that there was a firearm, prior to its use, also must be proven beyond a reasonable doubt. While it is clear that a firearm was used in the offence, it is not at all clear which accused, if any, had prior knowledge of its presence at Dieppe. As noted, it is not even clear which of the accused were present at Dieppe. That said, it is impossible for me to be satisfied beyond a reasonable doubt who had knowledge of the presence of the firearm and consequently the conviction will be entered for manslaughter simpliciter pursuant to s. 236(b). VERDICTS [595] I find all of the accused guilty of Counts 1 to 5 as charged. With respect to Counts 6 and 7, I find all of them not guilty of the charges as laid, but guilty of the lesser included offences of manslaughter simpliciter. "Silverman J."