Client charged with attempt break and enter. Neighbour of residence in question testified that she saw a male walking around her neighbour’s residence – from front to back, to the garage and back, and looking in the back door window on a few occassions. She described the individual take a large stick and break the window on the back door and then pry the bits of glass out, seeing the glass actually shatter herself. She called the police who arrived within minutes. She lost sight of the individual but then saw him in the yard walking to the back door as she was speaking to the police. She pointed him out to the police who immediately arrested the individual. The police examined the property in question. They testified that the back door window was not broken, but it appeared that two bits of the wood frame about the window had been removed. The main door to the garage was noted to be wide open, but no damage was noted to either garage door. There were numerous footprints in the snow on the property that matched the tread of the shoes the client was wearing. The property owner did not attend court but provided a statutory declation stating that on his return home he noted two torn screens to the windows at the front of the house and damage to the frame of the garage door. Client did not testify.

Held: Not guilty.

Trial judge held that while he was suspicious, he could not be convinced beyond a reasonable doubt given the inconsistencies in the evidence.