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(STEVE ARSTAD / iNFOnews.ca)

An Oliver man has been found guilty of break and enter, and arson.

Identifying the accused Steven Marlo Gallagher was an issue during his Penticton trial, according to the BC Supreme Court decision published today, May 12.

Although Gallagher was caught on four different surveillance cameras, his defence lawyer argued he was only identified by police due to confirmation bias and groupthink because he has history with the RCMP.

Gallagher had interacted with police only a few hours before the arson, when officers responded to a report of gunshots coming from his house.

RCMP Cpl. Paul Simons and Const. Hubert responded, the decision said. Both were familiar with Gallagher and his property having visited in the past. They would regularly notice eight to 14 vehicles on his property at any given time, and one stood out to Simons – a green 1990s Ford Ranger – as he used to own a similar truck.

When the cops arrived, Gallagher appeared to be waiting for them, and they noticed five other people drinking, albeit “not particularly intoxicated.”

Gallagher said he heard the gunshots coming from another direction and that the sound did not originate from his property.

Initially he was co-operative and gave the cops a tour of his home. Officers didn’t see any criminal activity, but at one point Gallagher said something to the effect of “I don’t know why you cops don’t like me” before listing off complaints about police. Then Cpl. Simons asked Gallagher about "rumours," according to Const. Hubert.

Then the officers were ordered off the property. They left around 2:15 a.m. and parked a kilometre away so they could observe.

Loud talking and revving engines could be heard coming from Gallagher’s property and then vehicles began leaving at high speeds.

“Judging pursuit to be unwise, and hearing no further gunshots, they returned to the RCMP detachment,” the decision read.

The two officers were getting ready to clock out at 4 a.m. when there was a loud “boom–boom–boom” outside, which the officers said sounded like gunfire but they were uncertain.

They looked out the window and saw the green 1990s Ford Ranger heading towards Main Street.

Then they smelled the familiar smell of gunpowder and found bullet holes in the bumper of a police car, indicating the sounds they heard was likely gunfire.

A report came in a few minutes later about a pickup truck on fire a few blocks away at Triangle Park. Officers arrived to find a nearby pharmacy also in flames.

Simons took a drive and saw a parked vehicle with its tail lights on at the Petro-Canada gas station at Main Street and Fairview Road. He heard that “boom-boom-boom” sound again and then watched as the parked vehicle revved its engine and drove off to the east.

“The officer was unable to see its ultimate destination, but given the few roads and sparse population in the area, one of the limited number of potential destinations would be the house of the accused,” the decision said.

One of the four videos submitted as evidence was from a surveillance camera in the pharmacy. The suspect’s face was completely obscured by a hoodie throughout the video and his facial features were impossible to discern.

“As he approaches the front door, however, the temptation of grabbing a refreshing post-arson drink proves too great. He turns towards the drinks cooler, and steals a beverage,” the decision said. "With that turn he provides a decent view of his face, from eyes to chin, both straight-on, as well as at half-profile.”

Testimony from the officers was described as credible, reliable, careful and responsible.

Const. Hubert knows Gallagher quite well. He responded to a car accident that killed his older brother, he’s fingerprinted him, executed search warrants and remembers being told on one occasion that “the police should get off the Osoyoos band subdivision: you have no right to police there.”

The two responding officers, along with Sgt. Don Wrigglesworth, know the accused well enough to be qualified as recognition witnesses.

“Both Const. Hubert and Sgt. Wrigglesworth identified the figure in the pharmacy video as Mr. Gallagher. They saw the video soon after the arson. They recognized him immediately. They had no doubt that the figure was Mr. Gallagher.”

Gallagher was only identified as the suspect as a result of confirmation bias and groupthink, his lawyer argued unsuccessfully. Two examples of case law were cited in which investigations were tainted. 

But Justice David Crerar was convinced beyond a reasonable doubt that the evidence proves Gallagher is the arsonist.

Gallagher’s distinctive facial and bodily features were clearly discernible in the pharmacy video and “it is unlikely that many people were up and active in the metropolis of Oliver at 4 a.m.: the exterior videos confirm the lack of other vehicles and people in the heart of Oliver.”

Aside from Gallagher’s prior history with police, he had a confrontation hours before the arson because gunshots could be heard coming from his house, which were heard again outside the police station shortly before the arson.

“The distinct green Ford Ranger pickup truck ignited and abandoned at Triangle Park, from which truck the arsonist emerged, provides a compelling lynchpin.”

Justice Crerar ordered a Gladue Report be prepared and the sentencing take place at the earliest convenient date.

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