A three-judge panel on B.C.'s top court has cited several errors by a Provincial Court judge in tossing out more than two dozen criminal convictions.
In a decision released today, Andrew James Aikman and Jayson Frankin were granted new trials.
It came in connection with 2014 robberies of a Chevron gas station in Maple Ridge and a Mac's convenience store in Langley, and a break-and-enter at a Shell gas station in Langley.
"The key issue at trial was identification," wrote Justice Sunni Stromberg-Stein on behalf of the panel. "Some of the offences were captured on poor quality video surveillance. The evidence implicating Mr. Franklin and Mr. Aikman was largely circumstantial."
Justices Daphne Smith and Richard Goepel agreed with Stromberg-Stein's reasons for judgement.
Franklin did not appeal three of his 14 convictions, which came in 2017.
Therefore, he is still guilty of the Chevron robbery, masking his face to commit an indictable offence, and being unlawfully in possession of a white Ford F-350.
Aikman successfully appealed all 14 of his convictions.
The pair were arrested at a shopping plaza in Surrey. Franklin had pepper spray with him and a small baggie of crystal methamphetamine fell out of Aikman's pocket when he was searched on the ground.
"On or around him was a black mask with a white skull logo, which contained his DNA," Stromberg-Stein wrote. "He was wearing a black hoodie with a white logo similar to the one male #2 wore in the Chevron robbery."
Police seized Rawlings and Yonex sports bags and a Puma backpack from the trunk of the taxi.
"In the Puma backpack, amongst other things, was a red paisley bandana, similar to the one worn by male #2 in the Chevron robbery, which contained Mr. Aikman’s DNA," Stromberg-Stein recounted. "There was a .22 calibre rifle in the Rawlings bag and a shotgun in the Yonex bag. Both firearms were loaded with live ammunition."
The Crown conceded that the judge "misapprehended evidence with respect to DNA located on the shotgun and the rifle...and conflated the evidence relating to Mr. Franklin and Mr. Aikman", according to today's ruling.
"Based on the Crown’s theory that Mr. Franklin and Mr. Aikman acted in concert, or as part of a joint venture, the Crown had to rely on similar fact evidence," Stromberg-Stein wrote. "However, trial Crown counsel did not articulate this legal issue and there was no voir dire to consider the admissibility and use of similar fact evidence on each count. In my view, this was a legal error."
Moreover, she wrote that the trial judge, Douglas Gardner, "made no attempt to analyze the circumstantial evidence or consider the admissibility of the evidence on each count".
"In my view, this was a legal error," Stromberg-Stein stated.
These were the justifications for tossing out 11 of Frankin's convictions. In the second paragraph of the Provincial Court decision, his first name was misspelled as "Jason", though it was correctly spelled as "Jayson" at the top of the document.
Gardner retired from the bench in 2018 after a 13-year career as a judge.
Aikman alleged that his constitutional right to privacy was infringed upon in a search of bags carrying firearms in the trunk of a taxi.
"The Crown concedes the judge erred when he adopted trial Crown’s position that Mr. Aikman had no privacy interest in the bags," Stromberg-Stein wrote. "Further, the Crown concedes the judge erred in concluding Mr. Aikman’s detention was an investigative detention.
"In addition, the Crown concedes that the judge failed to provide an opportunity for counsel to make submissions, despite counsels’ request to address the admissibility of evidence under s. 24(2) in the event the judge found a Charter violation."
The B.C. Court of Appeal panel did not address the evidence in the trial in great detail because a new trial has been ordered.
"In this case, the judge made a number of legal errors, materially misapprehended evidence, and failed to give sufficient reasons," Stromberg-Stein concluded in her reasons.