Court File No. C28804
COURT OF APPEAL FOR ONTARIO
B E T W E E N : )
HER MAJESTY THE QUEEN )
Respondent )
and )
DOUGLAS PATRICK DUPLASSIE )
Appellant )
In writing )
BY THE COURT:
[1] The appellant appeals in writing from his conviction and sentence. On November 19, 1997, the appellant was convicted by a jury of two counts of robbery, attempted robbery, wearing a disguise and carrying a concealed weapon. On December 15, 1997, Murphy J. sentenced the appellant to a total of six years’ imprisonment and prohibited him from having in his possession any firearm, ammunition or explosive substance for the remainder of his life.
[2] The appellant raises three issues in his appeal against conviction. First, the appellant submits that the trial judge failed to adequately caution the jury on the frailties of identification evidence. Second, the appellant submits that the trial judge erred in directing the jury that they could convict him of use of an imitation firearm in the commission of an offence, in the absence of sufficient evidence to support this finding. Third, the appellant submits that the trial judge erred in directing the jury that they could convict him of attempted robbery in the absence of sufficient evidence to support this finding. In his sentence appeal, the appellant submits that the sentence was excessive given the circumstances of the offence. For the reasons that follow, we would allow the appellant’s appeal against his attempted robbery conviction and would accordingly reduce his total sentence by one year. We would dismiss the other grounds of appeal.
[3] In a nine-count indictment, the appellant was charged with robbery and robbery- related offences in relation to incidents which occurred at various financial institutions on four separate dates: July 2, 1996, August 27, 1996, September 6, 1996 and November 7, 1996. On each of the first three dates (July 2, August 27 and September 6), the appellant allegedly came into a bank wearing a mask and carrying a briefcase and demanded money. The appellant allegedly pointed an imitation firearm at the teller during the July 2 incident. The November 7 counts involve attempt to commit robbery and carrying a concealed weapon. On that occasion, while the appellant was under surveillance, two police officers watched him drive from Port Hope to Cobourg, park the car and go into an apartment building where he stayed for two hours. One officer saw the appellant at the landing on the second floor. Both officers said the appellant was looking in the direction of the credit union (the same credit union that was robbed on July 2). The appellant was wearing a neck warmer and had an imitation handgun lighter in his pocket. He also had a baseball cap and in the small of his back was a folded portfolio.
[4] At trial, the main issue with respect to the counts relating to the first three dates was identity. With respect to the November 7 counts, identity was not in issue as the appellant was under police surveillance at the relevant times. The issue in relation to these counts was the appellant’s intent and whether the appellant had taken steps beyond mere preparation sufficient to constitute an attempt to commit robbery.
[5] As indicated above, the appellant’s first ground of appeal is that the trial judge failed to adequately caution the jury on the frailties of identification evidence. We see no merit in this ground of appeal. The trial judge provided both a general warning on the frailties of identification evidence and an outline of the strengths and weaknesses of the identification evidence as it related to the various counts on the indictment. In the general caution, the jury were told that identification evidence must be carefully scrutinized, and were warned that “most miscarriages of justice have been due to mistaken identity”. The jury were told that a mistaken witness could be a convincing one and that a number of honest witnesses could all be mistaken. The trial judge then thoroughly reviewed the identification evidence and carefully pointed out the position of the defence with respect to the problems with the identification evidence.
[6] The appellant’s second ground of appeal is that the trial judge should not have directed the jury that they could convict him of use of an imitation handgun in the commission of a robbery, as there was not enough evidence to support such a finding.
[7] We see no merit in this ground of appeal. The sole count alleging the use of an imitation firearm in the commission of a robbery related to the events of July 2, 1996. The appellant did not dispute that a robbery occurred, that the perpetrator had his face masked or that the perpetrator carried either a real or an imitation firearm. The principal issue in dispute was identification. In his charge to the jury, the trial judge said the following with respect to the imitation firearm:
[W]e have three different versions of what that gun looked like and that goes to the reliability of the evidence, but all that evidence still supports a finding that an imitation firearm was used … it was a robbery and the robber had an imitation gun and his face was masked and the issue is – who was that person.
The defence points out that you should look at the different descriptions we have of the gun. There are really three different guns described. Mr. Tapscott describes a wood-grained gun, long. Miss Dunk only sees a barrell. Ms. Walker doesn’t see any gun. Ms. Jones, she talks about a B.B. gun double barrelled. Reynolds-Reginald Graham talks about a gun that is like a police revolver. So if you look at all of those inconsistencies in these witnesses that you don’t get reliable evidence.
Counsel for the appellant at trial objected to the charge, principally because of how the jury charge would affect the identification of his client. He said “how do we know the gun that may or may not have been used on July the 2nd was an imitation handgun. We just don’t know. There is no proof of that, sir. I think there is a gap in that evidence that bears some comment”. He also said “[the Crown] sort of implied it had to be an imitation gun, but there is no proof of that. In other words, of course, that is something that can be used to establish identify, the type of gun that was used. If he is found with an imitation gun …”.
[8] In response the these objections, the trial judge re-charged the jury as follows:
In dealing with the evidence that was found on Mr. Duplassie, the neck warmer, the portfolio and the gun. None of that evidence was ever presented to any of the witnesses to say what they saw, particularly the gun. None of the witnesses to the July 2nd incident were shown the gun and were able to identify it as the gun they saw, nor is there any evidence that it was an imitation gun that was used on that day. There is no evidence whether it was a real gun or an imitation gun. We have the descriptions from the witnesses who saw the gun and who gave somewhat different descriptions.
[9] On the evidence, there is no doubt that the perpetrator of the July 2 robbery used either a real or an imitation firearm. The appellant submits, however, that the Crown had to prove that the weapon was not a real gun. Counsel for the respondent points out that this very issue was considered by the British Columbia Court of Appeal in R. v. Scott (2000), 2000 BCCA 220, 145 C.C.C. (3d) 52 (B.C.C.A.), where the majority of that Court held that the term “imitation firearm” includes real firearms. Thus, Braidwood J.A. held as follows, at page 69:
Parliament intended that an object which resembles a firearm, and is used to facilitate a robbery, satisfies the requirements of s. 85(2). To require the Crown to go on and prove that it is in fact not a “firearm” defeats the purpose of the section. Furthermore, an unordinary meaning must be ascribed to the term “imitation firearm” to achieve the purpose of the section. Firearms that are capable of causing serious bodily harm (ie. real firearms) must be included so that the intention of Parliament is not defeated. Such an interpretation of “imitation firearm” is also mandated by the so-called “golden rule” of statutory interpretation, since absurdities would arise in firearms cases if the Crown is required to prove that a firearm is not a real firearm.
[10] The decision of the British Columbia Court of Appeal in Scott is under appeal in the Supreme Court of Canada. While we are inclined to the view that Scott was properly decided, we need not reach a firm decision on that issue. The fact that the appellant was found in possession of an imitation firearm in circumstances indicating he was about to rob the same bank branch a second time is circumstantial evidence that he used an imitation firearm on the earlier occasion. There was no evidence that the appellant had access to, or had possession of, a real firearm. Furthermore, the appellant’s real concern at trial was that the jury might use the fact that the Crown said an imitation gun was used during the July 2 robbery and the fact that the appellant had an imitation gun in his possession on November 7 as positive identification evidence. The trial judge addressed this concern in his re-charge to the jury on this issue.
[11] The appellant’s third ground of appeal is that the trial judge erred in leaving the charge of attempted robbery to the jury. For the following reasons, we would allow this ground of appeal. In R. v. Cline (1956), 1956 ONCA 150, 115 C.C.C. 18 (Ont. C.A.), Laidlaw J.A. made the following comments, at p. 29:
(5) The actus reus must be more than mere preparation to commit a crime. But (6) when the preparation to commit a crime is in fact fully complete and ended, the next step done by the accused for the purpose and with the intention of committing a specific crime constitutes an actus reus sufficient in law to establish a criminal intent to commit that crime.
In Henderson v. The King (1948), 1948 SCC 17, 91 C.C.C. 97 (S.C.C.) the majority of the Supreme Court of Canada held that three accused were guilty of an attempt to rob a bank when they armed themselves and drove toward the bank. The accused did not complete the robbery because they spotted police in the vicinity of the bank; however, the Court held that their acts went beyond mere preparation. In R. v. Sorrell and Bondett (1978), 1978 ONCA 2388, 41 C.C.C. (2d) 9 (Ont. C.A.) the accused knocked on the door of a take-out food store which had closed fifteen minutes early. The manager said “sorry we are closed” and returned to his work. The accused then left. The accused had balaclavas over their heads and another store employee noticed one of the accused had a gun in his hand. The accused in that case were acquitted on charges of attempted robbery because the trial judge found a lack of intent. However, the Ontario Court of Appeal said, at p.15, that “[i]f the trial judge had found that the respondents intended to rob the store, the acts done by them clearly had advanced beyond mere preparation, and were sufficiently proximate to constitute an attempt.”
[12] In the case at bar, the appellant spent two hours observing the credit union that had been robbed on July 2. He was wearing a neck warmer that could be used as a mask and was similar to the mask used in the other robberies. He had a baseball cap and had the imitation handgun lighter in his pocket. In the small of his back, folded, was a portfolio similar to the portfolio or briefcase used in the other robberies. While this evidence suggests that the preparation to commit a crime was fully complete, it is the next step done by the accused for the purpose of committing a crime that constitutes the actus reus of this offence. In our view, there is insufficient evidence to conclude that the appellant took any steps beyond preparation. After two hours of watching the credit union he got in his car and drove away. Unlike in Henderson and Sorell and Bondett, the appellant in this case did not approach the credit union. In R. v. Cheeseman (1862), Le. & Ca. 140 at 145, Blackburn J. stated that “if the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.” We find that the appellant’s actions fall short of this test. There is no evidence to suggest that he would have robbed the credit union but for being interrupted by the police.
[13] Finally, the appellant appeals from the sentence of six years’ imprisonment. With the exception of adjusting the sentence by one year in light of the appellant’s successful appeal of the attempted robbery conviction, we would dismiss the sentence appeal. The trial judge’s reasons for sentence disclose no error in principle. The trial judge recognized the appellant’s lack of a prior record and his past employment record as mitigating factors. He took into account the year of pre-trial custody. He properly described the number of offences (two robberies and one attempt robbery), the wearing of the mask, the use of a type of weapon and the impact of the offences on the employees of the bank as aggravating factors. The sentence is fit and within the appropriate range given the nature of the offences.
[14] Accordingly, the appeal against the attempted robbery conviction is allowed and an acquittal entered. The appeal from conviction and sentence is otherwise dismissed.
(signed) “M. Rosenberg J.A.”
(signed) “K. Feldman J.A.”
(signed) “J. Simmons J.A.”
April 4, 2001