A "Maize" for the Prosecution: Circumstantial Evidence, Direct Evidence and Exclusive Opportunity

On January 21^st, 2026 the CBC reported about a case involving a man who allegedly tunnelled into his neighbour’s home.

https://www.cbc.ca/news/canada/calgary/ben-maize-break-and-enter-trial-tunnel-9.7052133

While this case is certainly peculiar by nature, it provides a nice framework to discuss direct evidence, circumstantial evidence and exclusive opportunity.

Break and Enter by Tunnelling

According to the CBC, the accused – Ben Maize – and the complainant, Betty Golightly were in some kind of neighbor dispute leading up to the discovery by the complainant of damage to her home, which included a purported tunnel between the upstairs and downstairs apartments.

As reported,

Ms. Golightly testified… “that on July 10, she arrived home, entered her apartment and then believed Maize was banging on his ceiling”.

“There was a banging on my floor and that followed me around wherever I went,” she said.

The Prosecution presented photographs of damage to the complainant’s home, including a picture showing a large hole behind her fireplace.  

Golightly further testified that

“when she discovered the damage, she also noticed one of her dresser drawers was tossed, her pantry door was not closed, a table had been moved, and her shower curtain was not as she’d left it”.

Mr. Maize defended himself claiming that the prosecutor failed to present any evidence that he did any of the damage or was ever inside of the complainant’s home. 

According to the CBC:

“In his closing arguments, Maize pointed out that the condo building had recently undergone renovations to its balconies, and that there were scaffolding and workers present who could have had access to the units. 

“The Crown has presented no proof I was ever in Ms. Golightly’s apartment,” argued Maize. 

“There is no proof I caused the damage to the flooring between our homes … or in her apartment.” 

Direct Evidence, Circumstantial Evidence and Exclusive Opportunity

While this Calgary criminal lawyer found this case interesting on the facts, it also serves to address a couple of important criminal law issues: the defence of identification and the application of circumstantial evidence.

As part of any criminal law case, it is incumbent on the Prosecution to prove beyond a reasonable doubt who committed the alleged crime. In Mr. Maize’s case, it appears that the Crown did not have any direct evidence identifying Mr. Maize as the person who damaged the property or who tunnelled and entered into the Golightly residence. For example, from reviewing the article, it appears that there were no eyewitnesses, no fingerprints, no DNA and no media evidence, such as footage from an interior security camera. 

Please understand, it is possible that the Crown had additional evidence beyond what was reported in the CBC; however, for the purpose of this post, let’s assume that the Crown had nothing more than evidence of the property damage, the connection between the residences and the evidence from the complainant alleging that an intruder had been in her home. From this, the question is: how does the Prosecutor prove the case?

In criminal law there are generally speaking two types of evidence: direct evidence and circumstantial evidence. “Direct evidence” is essentially first-hand evidence that directly proves the fact at issue. For example, in Mr. Maize’s case, there is direct evidence of property damage. This is proven by a combination of evidence, including the testimony of Ms. Golightly, supported by photographs.

Circumstantial evidence is essentially inference evidence. In criminal law, circumstantial evidence is a kind of indirect evidence from the which the trier of fact can draw inferences to establish a material fact at issue. For example, in the Maize case, if there was a tunnel connecting Mr. Maize’s residence to Ms. Golightly’s residence, that is some evidence to potentially support the inference that somebody tunnelled between the two apartments. I was not able to ascertain from the CBC article whether the tunnel between the two residences connected an access point from the Maize residence, such that a person inside of that residence could actually access the tunnel. Assuming that there was no access point from the Maize residence to the tunnel, the circumstantial evidence might weaken; however, if there was an access point (such as a door, hole or hatch), then the circumstantial evidence may be stronger.

The judge in the Maize case will almost assuredly seek guidance from the Supreme Court of Canada with respect to the use of circumstantial evidence.   

In R v Villaroman, 2016 SCC 33, 30 CR (7th) 223, 338 CCC (3d) 1 [Villaroman]. Cromwell J, for the court, said that "an inference of guilt drawn from the circumstantial evidence should be the onlyreasonable inference that such evidence permits" and that "[t]he inferences that may be drawn must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense".

Application to the Maize Case

For the purpose of Mr. Maize’s case, the circumstantial evidence would likely need to be strong enough to displace his argument that the damage to the property was not by construction workers who were apparently at the building and who had access to the apartments unit. Additionally, the circumstantial would need to be sufficiently to prove beyond a reasonable doubt (alongside all of the other evidence) that Maize was the person who tunnelled between the two units and used the tunnel to commit break and enter. 

While the Maize case may appear rather peculiar, the fact is that proving the case against Mr. Maize may be challenging from the prosecutor.  This is so in large measure because the case appears to hinge on inference evidence for which there are other reasonable inferences other than the guilt of the accused.

Moreover, since it appears that there is no direct identification evidence, arguably the only path to prove the guilt of Mr. Maize is for the crown to demonstrate that Maize had “exclusive opportunity” to commit the offence. In criminal law, “exclusive opportunity” is a kind of circumstantial evidence from which an inference can be drawn that only the accused had opportunity to commit the crime. From reading the CBC report, it appears there were others (construction workers) who had opportunity to cause the property damage and commit break and enter.

Conclusion

The takeaway from this case is simply to demonstrate to the reader that proving a case can be difficult for the Crown.  A case might appear to be open and shut, but when one truly assesses the quality of the evidence, the strength of the case may, by all rationale extension, be quite weak.

It is important to remember that the Crown must prove the case “beyond a reasonable doubt”. This is an onerous standard. Proof beyond a reasonable doubt means that the trier of fact is convinced that all elements of the case have been proven to a measure of something closer to absolute certainty than to proof on the balance of probabilities. Even if the judge is sure that the accused is probably or likely, that is not enough.

The best criminal defence lawyers in Calgary and throughout Canada will closely analyze the evidence for the purpose of assessing whether the Crown can prove the case beyond a reasonable doubt. This includes carefully considering the strength of all of the evidence (both the circumstantial and direct evidence). The defence will also scrutinize the admissibility of evidence. 

Based on the information in the Maize article, other than to say that the Maize case is unique, this Calgary criminal lawyer is not able to provide any further opinion about the likelihood of conviction. 

While the case may appear open-and-shut on the outside, the Maize case may be a real maze for the prosecution. 

David Chow

Calgary criminal lawyer

www.calgary-law