ONTARIO COURT OF JUSTICE Date: 2024-09-17 Court File No.: Hamilton 998 24 47102317; 998 23 47107025
Between:
HIS MAJESTY THE KING
— And —
GIANNI DELUCA
Before: Justice Davin M.K. Garg Heard: August 20-22 and September 5-6, 2024 Reasons for Judgment released on September 17, 2024
Counsel: Alannah Grady, for the Provincial Crown Tara Mimnagh, agent for the Public Prosecution Service of Canada Jamie Stephenson, counsel for the accused Gianni Deluca
Overview
1An altercation broke out late one evening in a parking lot near the edge of Gage Park in the City of Hamilton. Shots were fired, the police arrived, and the accused before the court, Mr. Gianni Deluca, was arrested near the scene. There is no dispute that Mr. Deluca was involved in the altercation. He was attacked by two males who wielded weapons including a machete and bear spray. He testified that he desperately pulled a bag off one attacker, found a revolver inside, and fired off multiple rounds, striking an attacker in the hand. The two attackers dispersed. The police searched Mr. Deluca upon his arrest, including a cross-body satchel that they found in his possession.
2When and how Mr. Deluca possessed the satchel is a central issue in this trial. When searching the satchel, the police located the revolver along with a significant quantity of fentanyl and fluorofentanyl. The quantity of drugs was consistent with possession for the purposes of trafficking.
3The charges can be grouped into two sets. First, a single charge of discharge firearm that relates to the shooting. Second, several firearm and drug possession charges from the items seized upon Mr. Deluca’s arrest. Each set of charges raises a particular issue that I must decide. Self-defence is the principal issue on the shooting. Possession is the principal issue on the rest.
4For the reasons that follow, I am satisfied that Mr. Deluca acted in self-defence. I am also convinced beyond a reasonable doubt that he possessed the satchel—including the firearm and drugs within—before the altercation took place.
General Principles
5The parties consented to Mr. Deluca bring arraigned on the provincial and federal informations and having all of the evidence apply to every count.
6The Crown bears the onus of proving each and every element of the offences charged beyond a reasonable doubt. Mr. Deluca carries no onus to prove or disprove anything. He is presumed innocent of all charges. The burden of proof never shifts to the defence. If the evidence raises an air of reality to a defence, then the Crown must disprove an element of the defence beyond a reasonable doubt. It is not enough for me to believe that Mr. Deluca is probably or likely guilty of an offence. In that situation, I would need to acquit. While the Crown is not required to prove its case to an absolute certainty, proof beyond a reasonable doubt falls much closer to an absolute certainty than the balance of probabilities. Reasonable doubt can arise from the evidence or from the absence of evidence.
Edgar Application
7I will start with the defence application to admit Mr. Deluca’s on-scene statement to the police pursuant to R. v. Edgar, 2010 ONCA 529. The statement essentially begins as Mr. Deluca is walked to the cruiser and then sits down in the back seat. It can be seen and heard on the in-car camera footage marked as Exhibit 7C.
8In Edgar, the Ontario Court of Appeal created an exception to the rule against prior consistent statements to admit an accused’s spontaneous out-of-court utterances when first confronted with the allegations before the court. The statement is not admitted for the truth of its contents but is reaction evidence that is relevant to the accused’s credibility and can be considered as circumstantial evidence pertaining to guilt or innocence: Edgar at para. 72; R. v. Reddick, 2021 ONCA 418 at para. 47. There are three elements to the Edgar test as outlined in R. v. Liard, 2015 ONCA 414 at paras. 54-76: (1) the accused must testify; (2) the statement must be made when the accused was arrested or first accused of committing a crime; and (3) the statement must be spontaneous.
9All three criteria are met in this case. Mr. Deluca testified. He made the statement shortly after his takedown by the police. He was speaking while and immediately after the police were trying to tell him about the reasons for his arrest. The only real issue is spontaneity. The time that passed between the incident and his arrest was relatively short. There were no material intervening events. The truthfulness of Mr. Deluca’s account remains an open issue that I will address later in these reasons. But at the admissibility stage, I find that the statement was sufficiently spontaneous to be probative and thus warrant admission: see Liard at paras. 62, 65-66.
Self-Defence
10Self-defence is the principal issue on the charge of discharge firearm; Mr. Deluca does not dispute that he grabbed the revolver and intentionally fired it. [1] The Crown does not dispute the air of reality to self-defence. On the Crown’s own theory, Mr. Deluca was attacked by two men named Daniel Hanson and Hayden Ermel who planned to carry out a robbery. The Crown argues that it has disproven the second and third elements of the defence.
11I am satisfied that Mr. Deluca acted in self-defence. I will examine each element of the defence under s. 34 of the Criminal Code.
The catalyst: s. 34(1)(a)
12The first question examines the catalyst: did Mr. Deluca subjectively believe, on reasonable grounds, that force was being threatened against him? I answer this question in the affirmative. I have concerns with Mr. Deluca’s evidence. Whether he was attacked and then responded in the manner that he described is something that I will address later in these reasons. But I accept his evidence that he was jumped by two men wielding weapons. The general thrust of being attacked is corroborated by the video and photographic evidence led by the Crown. Weapons, including a long machete, are visible in the possession of Mr. Hanson and Mr. Ermel, who I will refer to collectively as “the attackers”. The fact of the attack was confirmed by the civilian witness, Donovan Silver. Mr. Deluca’s reaction in his “Edgar statement” supports his testimony that he subjectively believed that force was being threatened against him. His belief was reasonable in the circumstances.
The motive: s. 34(1)(b)
13The second question examines the motive: did Mr. Deluca shoot at the attackers for the purpose of defending himself from the threat of force? I answer this question in the affirmative. The attackers were gearing up for violence. I have no reliable evidence to say that Mr. Deluca was the aggressor or that he fired before being attacked. I only have Mr. Deluca’s evidence on the specifics of the attack, and I accept his motivations for the shooting.
14The Crown’s arguments on self-defence unrealistically parse the sequence of events. I cannot make findings on this record that Mr. Deluca fired the gun either before he needed to defend himself or after the threat had passed. I cannot discern the precise order of the altercation from the evidence of the civilian witness.
The response: s. 34(1)(c)
15The third and final question examines Mr. Deluca’s response: was his conduct reasonable in the circumstances? This analysis considers what a reasonable person would have done in similar circumstances, not what Mr. Deluca thought at the relevant time: R. v. Willemsen, 2022 ONCA 722 at para. 21. I must consider the totality of the circumstances, which incorporates a broader temporal frame of reference than the specific threat that motivated Mr. Deluca to act: R. v. Khill, 2021 SCC 37 at para. 81.
16Of relevance here are Mr. Deluca’s motivations for attending the scene and whether he brought the revolver with him. His self-defence claim is stronger on his version of events as compared to an alternate version of arming up because he knew that he was going to do something dangerous. As the Supreme Court explained in Khill at para. 87, “The ultimate reasonableness of the [defensive] act will be coloured by whether the accused caused or contributed to the very circumstances they claim compelled them to respond”.
17For the sake of considering self-defence, I am prepared to find that Mr. Deluca brought the revolver with him. Even so, his conduct was reasonable in the circumstances. Arming oneself with an illegal firearm does not create a legal bar to using that firearm in self-defence. I will track the list of non-exhaustive factors that I must consider in s. 34(2).
(a) The nature of the force or threat: Mr. Deluca faced a significant threat of force. He was alone, at night, in a dark area near the back of an abandoned building when he was attacked by two men. The attackers may have wielded as many as four weapons: two BB guns, a machete, and bear spray. They certainly carried a machete and bear spray.
(b) The extent to which the use of force was imminent: The attackers could have caused imminent harm to Mr. Deluca. The court must remember that people in stressful and dangerous situations cannot weigh their response to a nicety: R. v. Cunha, 2016 ONCA 491 at para. 7.
The Crown argues that the civilian contradicts Mr. Deluca on how the altercation occurred. The civilian did not see people hit the ground or fall into the ditch. If the altercation did not go as Mr. Deluca claimed, then perhaps he invented the seriousness or imminence of the force that he faced. I do not accept this submission. First, I never took the civilian to say that he knew exactly how the altercation took place. That would be an unrealistic expectation in the circumstances. Second, even if the altercation did not unfold exactly as Mr. Deluca claimed, I still find that he faced an imminent threat of serious force.
(c) Mr. Deluca’s role in the incident: Whatever Mr. Deluca’s role in the incident, it did not foreclose him from taking action to save his own life. I find that he was jumped without provocation and was attacked before he responded with force.
(d) Whether any party to the incident used a weapon: The attackers were armed with weapons and used them when attacking Mr. Deluca. I will address Mr. Deluca’s use of a firearm under the proportionality factor.
(e) Physical characteristics: Mr. Deluca was attacked by two men who were younger than him. One of the men was smaller but the other was larger.
(f) Relationship among the parties: I have no evidence of a prior relationship between Mr. Deluca and the attackers. To also address factor (f.1), there was no history between the parties relevant to the reasonableness of Mr. Deluca’s actions.
(g) Proportionality: Shooting a firearm multiple times is among the most severe defensive actions that a person could take. But I recognize that Mr. Deluca, on his version, did not know whether he was aiming towards his attackers. He was more focussed on getting the attackers to disperse. Even if Mr. Deluca knew that he was firing a loaded gun and was intentionally shooting towards the attackers, I find that his actions were proportionate. He took desperate action when he thought he his life was on the line.
(h) Response to lawful force: There is no indication that the attackers were acting lawfully.
18In conclusion, I find that defence of person applies to Mr. Deluca’s act of discharging a firearm.
Possession
19The principal issue on the remaining counts comes down to whether I am satisfied beyond a reasonable doubt that Mr. Deluca possessed the firearm or drugs that night. On the federal information, Mr. Deluca is charged with one count of possessing fentanyl and one count of possessing fluorofentanyl, each for the purpose of trafficking. On the provincial information, Mr. Deluca is charged with four counts of possessing a firearm. Each of these counts relates to the revolver that was seized by the police, described as a North American Arms 22 Long Rifle 5 Shot Revolver. The name is misleading; the revolver is surprisingly small.
20“Possession” is defined in s. 4(3) of the Criminal Code. The type of possession at issue here is personal possession. Liability rests on Mr. Deluca knowingly having the items in his possession and knowing what they were: see R. v. Williams, 2009 ONCA 342 at para. 19; R. v. Kalanyos, 2021 ONSC 4368 at para. 60.
21The main basis of liability is premised on me finding that Mr. Deluca possessed the firearm and drugs well before the altercation took place. An alternative basis of liability—which the defence referred to as the “hot potato” theory—relies on the interval that follows when Mr. Deluca says he took the satchel from his attacker. I will focus on the main basis of liability.
22The W.(D.) principles apply in this case. Mr. Deluca testified that neither the firearm nor the drugs at issue belonged to him. He only came into their possession when he ripped the satchel away from his attacker. If I accept Mr. Deluca’s account or am left in doubt by it, then I would need to acquit on the possession offences (subject to the alternative theory of liability). Although the W.(D.) analysis proceeds in three steps, the overriding consideration is whether the evidence as a whole leaves me with any reasonable doubt about Mr. Deluca’s guilt. Any evidence favourable to Mr. Deluca must be considered with the conflicting evidence offered by the Crown as a whole.
23As I will explain, I reject the exculpatory evidence on the possession issue and am not left in doubt by it. I am satisfied that the only reasonable inference on the totality of the evidence is that Mr. Deluca was wearing and thus in possession of the satchel before the altercation took place. I am subjecting possession of the satchel to the “only reasonable inference” standard because defence counsel acknowledged that Mr. Deluca would be guilty of the firearm and drug offences if he possessed the satchel before the altercation. Possession of the satchel is thus determinative of the ultimate issue.
Analysis of the exculpatory evidence
24I will briefly summarize Mr. Deluca’s account. He testified that he met a lady named Heather earlier in the afternoon. He thought he was texting with her later that day to meet up for a date around 10:30 pm. He picked up some cocaine at her request and planned to meet at the location she gave near the corner of Gage and Cumberland. He hopped in a taxi and started making his way. Upon arrival, he received a phone call from Heather saying that she would be down soon and to meet her at the building next door. Mr. Deluca figured that she had some good reason for not wanting to be seen with him outside her residence. He got out of the taxi, told the driver he would soon return, and saw two people coming towards the back of the building. Mr. Deluca began walking towards the two people. He did not recognize them. They said that a woman would be right down, which Mr. Deluca took to mean Heather. Mr. Deluca continued walking towards the back of the building. Fairly soon thereafter, the altercation broke out that I alluded to during my analysis on self-defence. I will examine aspects of this altercation in greater detail below. [2]
25I took no issue with Mr. Deluca’s demeanour as he testified. He was excitable and demonstrable, but it never caused me to question his credibility. How Mr. Deluca presented on the stand played no role in my analysis. It is the content of Mr. Deluca’s account where I take issue.
26First, Mr. Deluca’s account of what happened when he was attacked is implausible. I accept that he was indeed attacked and that he fired a gun in self-defence. But that is about the extent of what I accept. Mr. Deluca testified that his attackers were robbing him. He grabbed the attacker’s satchel and fell into a small ditch behind the abandoned building. After already being bear sprayed, he tried to satiate the attackers by reaching into his wallet and pulling out about $100 in Canadian currency.
27I find it implausible that Mr. Deluca, while in the ditch and with his vision affected by bear spray, was able to pull out multiple bills of Canadian cash from a wallet that was packed with other items including foreign currency and expired fentanyl patches—no matter how strategically he had compartmentalized his wallet. [3] Nor does it make sense that Mr. Deluca would choose to pull out money from his wallet when he had loose bills in his pocket.
28Second, Mr. Deluca gave an inconsistent explanation for why he chose his wallet instead of the loose bills. He said that he decided against the loose bills because they totaled $500, and he did not want to hand over such a sum. That explanation conflicts with his testimony that he was intensely terrified of handing over his wallet because it contained identification with his family’s address and would put their safety at risk. If Mr. Deluca was terrified of the attackers taking his wallet—to the point of saying, “You’ll have to kill me before you get my wallet”—it does not make sense that he even chose to retrieve it when he had loose cash instead. Mr. Deluca would have also needed to fumble with his wallet while dealing with the effects of the bear spray and the muddy environment of the ditch. Mr. Deluca’s evidence that he could not see well enough after the attack to call 911 is inconsistent with his ability to retrieve Canadian cash from his wallet. In his words, after being bear sprayed in the ditch, “I can’t see anything. My face is on fire”. [4]
29Third, Mr. Deluca’s account is too fortuitous for me to accept. I cannot accept the following narrative. Mr. Deluca was being attacked by a machete. It just so happened that a satchel was swinging from the same arm wielding the machete. The satchel hits Mr. Deluca in his chest. He grabs hold of the satchel, even though a machete blade is coming his way. He intentionally moves towards the attacker so that the blade swings past him over his shoulder. Mr. Deluca pulls the satchel to turn the attacker into a human shield, the attacker lets go of the satchel, and Mr. Deluca falls back into the three-foot ditch. He is then bear sprayed. The attackers are threatening to kill him, and Mr. Deluca hears the attackers fire something. He gives the attackers some money, but they still jump into the ditch. Because the attackers want their bag back, Mr. Deluca posits that the best way to defend himself from this deadly attack is to dig around in the satchel that he now finds in his possession—rather than simply returning it. He reaches into one of the satchel’s two compartments, and without really knowing what he has found, happens to locate a firearm that he pulls out and begins shooting. This entire sequence of events stretches belief. It is too convenient that Mr. Deluca happened to serendipitously find the very object that he says he needed to save his life.
30Fourth, there are suspicious aspects of Mr. Deluca’s account that are either unexplained or come with an explanation that I cannot accept. If the satchel that contained the firearm did not belong to Mr. Deluca, then why did he keep it with him after the attack? I cannot accept the Good Samaritan explanation for why Mr. Deluca kept the satchel as he climbed out of the ditch, walked across the parking lot, and crossed the road over to the shoulder near the park. If Mr. Deluca did all this because he wanted to give the satchel to the police, then I would have expected him to try and call 911, even if doing so would have been difficult in the circumstances. Relatedly, if neither the satchel nor the firearm belonged to the accused, then why did he put the firearm back in the satchel and zip it up? This action is more consistent with a person putting their belongings back where they belong. I reject the defence argument that Mr. Deluca’s decision to keep the satchel is somehow evidence that it did not belong to him.
31Fifth, Mr. Deluca’s account is inconsistent with the apartment security footage. I have watched the clips showing the attackers before the attack and returning to the apartment afterwards. I do not see a satchel in the earlier clips that was gone upon their return. [5] I see other key items that were present before and after, including a grey bag (which is different from the satchel). I acknowledge that the satchel might be hidden from the camera’s eye. The defence also elicited potential footage that the police did not seize. But I have examined the satchel (Exhibit 5). It is not particularly small. And on Mr. Deluca’s account, it is much more likely that the satchel would have been visible on the footage given that it was soon swinging from the attacker’s arm. I cannot give effect to defence counsel’s argument that the satchel is not visible because it was possibly hidden underneath Mr. Ermel’s closed jacket. It is illogical that Mr. Ermel was wearing the satchel under his closed jacket, opened his jacket, removed the satchel over his head, and decided to hold the satchel in his hand or leave it hanging loose around his arm, all before swinging a machete to rob Mr. Deluca. I cannot see any plausible explanation for why Mr. Ermel would do that. He did not need the satchel to equip his machete. If anything, he would have wanted to keep the items in the satchel—a firearm and thousands of dollars in fentanyl—secure and close to his body. Firearms and drugs are known to be valuable: see R. v. Thompson, 2020 ONCA 361 at para. 11.
32The Crown adds that Mr. Deluca’s description of the altercation is inconsistent with the tight timeline established by (a) the civilian witness’s description of the altercation; and (b) the fact that the attackers are seen leaving the apartment building at 11:04 pm and returning at 11:12 pm, keeping in mind some travel time. I cannot find that Mr. Deluca’s version could not have occurred within that timeframe.
33There is no evidence that Mr. Deluca ran away from the scene of the altercation. This factor adds credit to his account but ends up weighing little in my analysis. Mr. Deluca testified that he could have fled through the park if he wanted to avoid the police. But that is not exactly true. The police arrived quickly (they were dispatched at 11:10 pm and arrived at 11:14 pm), given that they were dispatched to a shooting and the civilian called 911 while the altercation was ongoing. Mr. Deluca’s struggles seeing and breathing from the bear spray would have complicated an escape. There is also a fence between Mr. Deluca and the park that is visible on the footage from the police cruiser.
34Finally, I will address why I accepted Mr. Deluca’s evidence that he acted in self-defence but reject his evidence that he did not bring the gun to the encounter. First, the issues are different. As I explained above, bringing a gun to the scene did not bar a successful self-defence claim. Second, I can accept some, none, or all of a witness’s evidence: R. v. S.H., 2011 ONCA 215 at para. 8. Believing that Mr. Deluca responded defensively does not preclude me from disbelieving that he did not already possess the defensive tool. Third, while Mr. Deluca’s reaction in his “Edgar statement” supported his self-defence claim, I do not reach the same conclusion on the possession issue. I recognize that Mr. Deluca made utterances that supported his trial evidence (e.g., he said that he took the bag from the attacker’s arm, asked the police whether the gun was real, and expressed satisfaction that he had found a gun in the bag to defend himself). But these utterances are not admissible for their truth: Reddick at para. 51. In addition, the fact that Mr. Deluca put this narrative together in fairly short order does not make it true. The issues that Mr. Deluca needed to confront were uncomplicated. He knew that the police had found or were about to find a gun in his immediate possession. He came up with a basic story to say why the gun belonged to the attackers. Repeating this story at trial did not improve its believability. I recognize that in admitting the statement, I found it to be spontaneous. But a spontaneous reaction is only “more likely” to reflect a person’s honest reaction: Liard at para. 62. Finding the reaction to be spontaneous does not bind me to finding the account to be true. I still needed to assess its weight based on the totality of the evidence: Edgar at para. 69; Liard at para. 87.
35In conclusion, I do not accept Mr. Deluca’s account and am not left in doubt by it. I do not accept that he ripped the satchel away from his attackers. However, rejecting this evidence cannot be converted into a positive finding that Mr. Deluca already had the satchel in his possession.
Analysis of whether the evidence establishes guilt
36I must go on to consider the evidence that I do accept to determine whether the Crown has proven Mr. Deluca’s guilt beyond a reasonable doubt. Mr. Deluca carries no onus to prove his innocence. Disbelieving him does not mean that he is guilty.
37I am satisfied that the only reasonable inference on the totality of the evidence is that Mr. Deluca was wearing and thus in possession of the satchel before the altercation took place. I will outline my factual findings and the related evidence in support of this conclusion.
Mr. Deluca was wearing the satchel across his torso
38First, I find that Mr. Deluca was wearing the satchel’s strap across his torso upon his arrest. This finding is based on the testimony of Police Constable Dean Yaromich and my observations of the cruiser footage.
39PC Yaromich testified that Mr. Deluca was wearing the satchel across his body. PC Yaromich was involved in Mr. Deluca’s takedown and arrest. Handcuffing posed a challenge because it was dark and Mr. Deluca is a bigger male who was wearing tighter clothing. As part of the search incident to arrest, PC Yaromich saw the satchel on Mr. Deluca’s torso, which he called a fanny pack. He testified in examination in chief that: “What he was wearing was, he had a fanny pack from his right shoulder that went down underneath his armpit”. He later added that “the fanny pack was worn, like, across his body”. PC Yaromich never testified that the accused possessed the satchel in some unusual manner that made him question whether Mr. Deluca had been wearing it.
40PC Yaromich credibly recounted his evidence. I do not find that any mischief occurred when the police officers initially dealt with Mr. Deluca in front of the only cruiser not equipped with in-car camera. I find this was an understandable mistake made in dynamic circumstances that was remedied upon its discovery by then dealing with Mr. Deluca on-camera.
41The reliability of how exactly PC Yaromich found the satchel was impacted by the dynamics of the situation. But I find that the cruiser footage supported PC Yaromich’s main point that the accused was wearing the satchel. [6] On the footage from PC Jacob Mills’ cruiser, marked as Exhibit 7B, I can see a strap across Mr. Deluca’s torso when playing the video from 5:42 to 6:02. [7] The strap is visible breaking up the white lettering on the sweatshirt that Mr. Deluca is wearing underneath his jacket. The visible strap must be the strap from the satchel. It corresponds in colour and dimension. On Mr. Deluca’s version, there is no other reason for that strap to be there. A screenshot of the video at 5:57 is reproduced below (Exhibit 13A). [8]
Mr. Deluca was wearing the satchel underneath his jacket
42Second, I find that Mr. Deluca was wearing the satchel’s strap underneath his jacket upon his arrest. I again base this finding on the evidence of PC Yaromich combined with the cruiser footage.
43PC Yaromich wavered on whether Mr. Deluca wore his jacket on top or underneath the satchel. He initially testified that Mr. Deluca wore the jacket underneath the satchel. Without being prompted to reconsider that order, PC Yaromich then testified that Mr. Deluca’s jacket was on top of the satchel. Defence counsel reminded PC Yaromich of the initial order in cross-examination. PC Yaromich acknowledged that he might have misspoken. But he explained his belief that the satchel was worn under the jacket and ultimately confirmed his recollection:
Q. … to the best of your recollection your evidence now is that [the satchel] was somehow underneath his jacket, is that right?
A. … that’s correct, it was underneath his jacket.
44I accept PC Yaromich’s evidence on this issue, even though he did not note the exact order in his memo book. PC Yaromich’s explanation for why he initially misspoke was credible and understandable. It must be remembered that Mr. Deluca’s jacket was open at the front. The satchel is only underneath the shoulders and the back of the jacket. I accept PC Yaromich’s ultimate evidence when he slowed down to consider his recollections. It makes sense given that he needed to cut the satchel’s straps to remove the satchel. He testified that he otherwise would have needed to first remove Mr. Deluca’s jacket and handcuffs and then pull the satchel over his head. PC Yaromich did not agree with defence counsel’s suggestion that he needed to cut the satchel off because it was all twisted and turned.
45I find that PC Yaromich’s evidence is supported by the in-car camera footage. The straps from the satchel appear to go underneath the jacket when playing Exhibit 7B from 5:42 to 6:02. At no point are the satchel’s straps or second compartment visible on the video when looking at Mr. Deluca’s back (see e.g., 6:31), even if it would be challenging to see a black strap on top of a black jacket. Importantly, the video shows the police pulling Mr. Deluca’s jacket off his shoulder to deal with the satchel (see 6:34 until at least 6:50). A screenshot at 6:38 is reproduced below (Exhibit 13B). I find that the act of pulling down the jacket to cut the straps supports that the straps were underneath the jacket. There would have been no reason to pull down the jacket if the straps were on top of the jacket. In fact, it may have been difficult to pull down the jacket if the straps were on top.
Mr. Deluca had his arms out and was arrested with physical force
46Third, I find that Mr. Deluca had his arms out to the side before the police arrested him and pushed him down with significant force. Counsel suggested to PC Yaromich that Mr. Deluca can been seen with both arms out to his sides on the video at Exhibit 7A. The officer agreed. Having watched the video myself, I find that Mr. Deluca had his arms out to the side starting around 4:20. The police then arrested him with significant force. These facts support the conclusion that Mr. Deluca was wearing the satchel before his arrest. If the satchel was only pinned under Mr. Deluca’s armpit or otherwise in his hand, I would have expected it to have fallen to the ground as he put his arms out to the side and then was pushed down by the officers.
Mr. Deluca was able to quickly fire the gun
47Fourth, I find that Mr. Deluca’s ability to quickly fire the gun to defend himself showed a level of comfort with it. I do not put too much weight on this fact because I appreciate defence counsel’s point that the gun does not appear overly complicated to manipulate. Mr. Deluca’s ability and decision to fire it still provides some evidence that the gun, and therefore the satchel, belonged to Mr. Deluca.
No evidence of the satchel being in the attackers’ possession
48Fifth, there is no evidence that I accept of the satchel being in the attackers’ possession. The satchel must have come from somewhere. No one suggests that the satchel had been lying in the ditch before the altercation took place. Rejecting Mr. Deluca’s evidence that the satchel came from the attackers does not automatically mean that the satchel came from him. But it remains relevant at this stage that there is no other evidence that I accept of the satchel being possessed by someone else.
Whether ammunition was found in the accused’s pockets
49The Crown asked me to find that ten rounds of ammunition, capable of being fired from the firearm, were seized from Mr. Deluca’s pockets. PC Yaromich did not testify that he found the ammunition in Mr. Deluca’s pockets. The Crown asks me to deduce that he found it there. PC Yaromich testified to what he found in the satchel, and since the ammunition was not included, it must have been found in Mr. Deluca’s pockets.
50I do not make this finding of fact. I accept that the ammunition was found when searching Mr. Deluca, but I cannot place it in his pockets. There were inconsistencies among the police witnesses on what was seized from where and how the items were sorted and bagged. For example, PC Yaromich testified that he put all the items that he had seized into different plastic bags based on the location of where he found them. But PC Devan Richardson said that the items were loose when PC Yaromich handed them to him. I prefer PC Richardson’s evidence on this specific issue. He had less to deal with at that moment and was specifically tasked with creating an inventory of the items. PC Yaromich’s evidence about putting everything he found from one area into one bag did not align with the subsequent photographs. These flaws in the reliability of the evidence prevent me from determining exactly where the police found each specific item.
51Having said that, I do not find that these issues impacted the truthfulness or accuracy of PC Yaromich’s testimony that Mr. Deluca was wearing the satchel under his jacket. I find that PC Yaromich was credible and reliable on the satchel issue. He was corroborated by in-car camera footage. To the extent there are conflicts between the testimony of PC Yaromich and PC Mills, I prefer the evidence of PC Yaromich. PC Yaromich tried to answer questions fairly and present the court with his best recollections. PC Mills meanwhile was too combative with defence counsel and did not recollect whether Mr. Deluca was wearing a jacket.
Villaroman analysis
52I must conduct an analysis pursuant to the principles articulated in R. v. Villaroman, 2016 SCC 33. These principles were helpfully summarized by Fiorucci J. in R. v. Taylor, 2019 ONCJ 110 at paras. 115-119. My assessment of the circumstantial evidence and the process of drawing inferences is guided by the Court of Appeal’s decision in R. v. Gibson, 2021 ONCA 530 at paras. 75-79.
53I must consider other reasonable possibilities or plausible theories that are inconsistent with guilt to decide whether an inference of guilt is the only reasonable inference. Inferences inconsistent with guilt do not need to arise from proven facts, as this would put an obligation on an accused to prove facts. Reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. The possibilities inconsistent with guilt that I must consider—even if they conflict with Mr. Deluca’s testimony—include:
- whether Mr. Deluca decided to wear the satchel around his torso after taking it during the altercation; and
- whether Mr. Deluca was holding the satchel (or had it pinned under his armpit), and the strap ended up around his torso by function of the arrest.
54I find that none of the alternative possibilities proposed by the defence are reasonably possible. My findings preclude them. There is no reasonable possibility that Mr. Deluca deprived the attackers of the satchel, and then post-attack, removed his own jacket, put the satchel over his head, and then put his jacket back on—all within a relatively short timeframe and while struggling from the bear spray. Furthermore, the process of the arrest could not have taken the satchel from being loose in Mr. Deluca’s arms or underneath his armpit to being wrapped around his torso with the strap under his jacket. The only way to wear the satchel is to sling it over one’s head. [9] It requires a measure of deliberate action. The arrest, no matter how dynamic or uncontrolled it may have been, would not have put the strap around Mr. Deluca’s torso and in the expected position of starting at the shoulder and ending by the hip.
55To summarize, the only reasonable inference is that Mr. Deluca was in possession of the satchel when he first arrived on-scene at Gage and Cumberland. It is the only reasonable inference notwithstanding the absence of evidence highlighted by the defence, including no testimony from Mr. Hanson or Mr. Ermel, no other video evidence from the apartment building or from anywhere near the scene of the altercation, and no evidence from the taxi driver or the taxicab that Mr. Deluca took to the scene.
56The findings in this case are materially different than those in R. v. Jeyakanthan, 2021 ONSC 8250, a case relied on by the defence. In that case, a gun was found down the accused’s pants in his crotch area. The gun’s butt was protruding from the accused’s tightly sinched beltline. The trial judge had a reasonable doubt on possession. He believed the accused’s denials that the gun belonged to him or that it had been on his person the whole time. Furthermore, the trial judge determined it was a reasonable inference that the accused did not know about the gun until it was dropped into his lap. In the case before me, I found that there was no other reasonable way for Mr. Deluca to have been wearing the satchel across his torso and under his jacket—it did not get there innocently. This route to liability is not premised on a “hot potato” argument.
Legal findings
57As Doherty J.A. explained in R. v. Chalk, 2007 ONCA 815 at paras. 18-19, “[p]ossession requires knowledge of the criminal character of the item in issue … Knowledge alone will not establish possession. The Crown must also prove that an accused with the requisite knowledge had a measure of control over the item in issue. Control refers to power or authority over the item whether exercised or not”.
58I find beyond a reasonable doubt that the firearm, ammunition, and controlled substances were all found in property that belonged to Mr. Deluca. The defence conceded their continuity once they were seized. The defence also conceded that possession would be proven beyond a reasonable doubt if I concluded that Mr. Deluca possessed the satchel in advance of the altercation. I agree with this concession. Having concluded that Mr. Deluca possessed the satchel in advance, then it does not matter whether the police found the items in a particular compartment of the satchel or in Mr. Deluca’s clothing. He controlled all these areas. And the only available inference is that Mr. Deluca knew about the criminal character of these items. He knew about the character of the firearm given that he pulled it out to defend himself. And people do not walk around with high value fentanyl on their person without knowing about it.
Conclusions
59I find that Mr. Deluca acted in self-defence on the charge of discharging a firearm. The Crown has not disproven an element of self-defence beyond a reasonable doubt.
60I am satisfied beyond a reasonable doubt that Mr. Deluca possessed fentanyl and fluorofentanyl. The fentanyl was mixed with other ingredients and totaled 36.61 grams. The fluorofentanyl was mixed with other ingredients and totaled 27.79 grams. Having decided the possession issue, the defence concedes that Mr. Deluca possessed the drugs for the purpose of trafficking.
61I am not satisfied beyond a reasonable doubt that the cash seized from Mr. Deluca constituted proceeds of crime. The mere fact that Mr. Deluca possessed drugs for trafficking does not mean that any cash found on him was automatically the proceeds of crime. I heard no additional evidence in relation to this count. I am left in doubt by Mr. Deluca’s explanation that he gained the cash from selling a bicycle.
62I am satisfied beyond a reasonable doubt that Mr. Deluca possessed the firearm at issue in this case. The defence conceded that there were no additional issues to resolve with respect to the four counts that relate to firearm possession. On my findings, Mr. Deluca possessed the firearm while it was loaded. He continued to possess it when it was unloaded because all the rounds had been fired. At that time, he also possessed readily available ammunition that could fire from the firearm. Finally, Mr. Deluca breached the weapons prohibition order imposed by Justice Campling on October 25, 2018. The agreed statement of fact that was filed as Exhibit 4 stipulates as follows at paragraphs 6, 7, and 9:
A North American Arms 22 calibre long rifle 5 shot revolver was seized by police on December 4, 2023. Detective Constable Michael Eves of the Hamilton Police Service received the revolver and 10 rounds of 22 calibre ammunition. He conducted an examination and test fired the handgun in a controlled setting using the seized ammunition.
DC Eves concluded that the revolver handgun was a prohibited firearm in firing condition that functioned as designed with the seized ammunition.
Gianni Deluca was bound by a weapons prohibition order at the time of the allegations. Further, he was not the holder of a license or registration certificate to possess a firearm.
Verdicts
63On information 998 24 47102317, I find Mr. Deluca not guilty on count 4. I find Mr. Deluca guilty on counts 1 and 5.
64On information 998 23 47107025, I find Mr. Deluca not guilty on count 6. I find Mr. Deluca guilty on counts 2, 4, 5, 7, and 8. [10]
65I will hear submissions on the Kienapple principle at the sentencing phase.
Released: September 17, 2024 Signed: Justice Davin M.K. Garg
[1] The revolver is depicted in the photographs at pages 29 to 33 of Exhibit 6. [2] The building at issue and the scene where the altercation took place are visible in the photographs filed at pages 3 to 6 of Exhibit 3 as well as Exhibits 12A and 12B. [3] See the images of the accused’s wallet at pages 20-24 of Exhibit 6. [4] It may very well have been that Mr. Deluca did not want to provide his wallet. But I find his stated explanation for not wanting to provide it inconsistent with his actions. [5] Defence counsel did not suggest that the satchel was visible on the surveillance footage. [6] The specific shoulder noted by PC Yaromich appears to conflict with the cruiser footage. I find that the specific shoulder is a minor detail. Any incongruency does not impair PC Yaromich’s reliability on this point. [7] I am referring to the time on the scroll bar and not the time stamp on the video. [8] PC Mills also testified that Mr. Deluca was wearing the satchel’s strap from a shoulder to the opposite hip. [9] Defence counsel agreed with this proposition after examining the satchel and confirming that it did not have a quick-release buckle. [10] Mr. Deluca was not arraigned on the other counts.