Brick foils apparent break and enter attempt

videotape as evidence

Criminal defence lawyers in Alberta and across Canada see a lot. We represent all kinds of people, including those that have been impulsive, made mistakes, acted not like themselves, have mental disorders, committed crime out of necessity, were drunk, the innocent, those who are wrongly charged and overcharged and in a surprisingly rare number of circumstances, those who are career criminals.  In the course of representing clients, we sometimes come across slapstick moments and occasionally slapstick moments that hurt a lot.  Indeed, this Calgary criminal lawyer has seen a lot over the years.  The video below made me  smile and hurt.

brick foils attempted break and enter

This real video of an attempted break and enter (or mischief) is as funny as it is painful.  I hope the brick throwers partner-in-crime survived without permanent injury.

- YouTube

video used to identify

From a criminal defence perspective, this video serves to illustrate a couple of points.  Firstly, neither of these atom smashers can be identified in this video. As discussed in criminal law defences, identification is an essential element to any criminal prosecution. The seminal case on the you use of video and/or photographs as identification evidence is R. v. Nikolovski, [1996] S.C.J. No. 122.  In Nikolovski, the Court held:

So long as the videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence of the identity of the perpetrator. It is relevant and admissible evidence that can by itself be cogent and convincing evidence on the issue of identity. Indeed, it may be the only evidence available. For example, in the course of a robbery, every eyewitness may be killed yet the video camera will steadfastly continue to impassively record the robbery and the actions of the robbers. Should a trier of fact be denied the use of the videotape because there is no intermediary in the form of a human witness to make some identification of the accused? Such a conclusion would be contrary to common sense and a totally unacceptable result. It would deny the trier of fact the use of clear, accurate and convincing evidence readily available by modern technology. The powerful and probative record provided by the videotape should not be excluded when it can provide such valuable assistance in the search for truth. In the course of their deliberations, triers of fact will make their assessment of the weight that should be accorded the evidence of the videotape just as they assess the weight of the evidence given by viva voce testimony.

It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. It is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness. It follows that the same result may be reached with even greater certainty upon the basis of good quality video evidence. Surely, if a jury had only the videotape and the accused before them, they would be at liberty to find that the accused they see in the box was the person shown in the videotape at the scene of the crime committing the offence. If an appellate court, upon a review of the tape, is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as the person depicted in the videotape.

 To the extent that this video is of "good quality", it shows two persons hurling what appears to be a hard object towards the building. Likely, there would be evidence that the area that the objects were being hurled is a window.  The video, however, is not good enough quality to identify either of these persons.

party to an offence

The video is of exceptional quality to demonstrate that each of these hurlers were a party to the offence of what is likely either an attempted break and enter or mischief.  I say "attempted break and enter" because it is clear that neither of these two actually entered the premises. The premises may have been willfully broken (i.e., from the item being hurled), thus likely meeting the legal definition of "mischief" (willful damage to property) but it appears that as result of the Hurler 2 smashing Hurler 1 with the object (perhaps a brick) that they did not enter; for Hurler 2 was too busy assisting his friend after he knocked him out.

Section 21 of the Criminal Code of Canada outlines what it means to be a "party to an offence". To be a "party" means that two or more accused aided, abetted or intended to carry out a common purpose to commit a crime. In this case, these persons were arguably aiding each other to break what was likely a window.  They were likely abetting (or encouraging) each other; though this is less clear. It certainly appears they had an "intention in common". Certainly Hurler 2 had no intention to knock-out the party with the brick. 

The lessen in this case? Don't throw stones at glass houses when your partner is in the path of the stone? 

David Chow defends persons charged with break and enter in Calgary and throughout the Province of Alberta.  For a free consultation call 403.452.8018. David is a full service Calgary criminal lawyer, Calgary DUI lawyer and Calgary drug lawyer.