DATE: 20030626

DOCKET: C37842

COURT OF APPEAL FOR ONTARIO

CARTHY, CHARRON and SHARPE JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Philip Perlmutter

for the respondent

Respondent

• and -

ANTHONIEL ROMAINE THOMAS

David M. Tanovich

for the appellant

Appellant

Heard: May 28, 2003

On appeal from the conviction entered by Justice Susan G. Himel of the Superior Court of Justice, sitting with a jury, on January 21, 2002.

CHARRON J.A.:

[1] The issue raised on this appeal is whether the jury’s verdict of guilty on two weapons offences is inconsistent with the verdict of not guilty on two other weapons offences where the four charges related to the same weapon and the case was put to the jury by both Crown and defence counsel as an “all or nothing” proposition.

[2] The appellant was convicted of weapons trafficking and transferring a prohibited firearm without lawful authority contrary to s. 99(1) and s. 101(1) of the Criminal Code. The latter charge was stayed pursuant to the principle in R. v. Kienapple (1974), 1974 14 (SCC), [1975] 1 S.C.R. 729. The appellant was acquitted by the same jury of two possession charges in respect of the same weapon, possession of a prohibited firearm for the purpose of transferring and possession of a weapon for a purpose dangerous to the public peace contrary to s. 100(1) and s. 88(1) of the Criminal Code. The appellant was also acquitted on two other charges not relevant to this appeal, threatening and harassment.

[3] The weapon in question was an 8 millimetre handgun that had been drilled out so that it could shoot .25 calibre cartridges. In its altered state, the weapon fell within the definition of a prohibited firearm under sections 2 and 84 of the Criminal Code. The appellant testified that he found the weapon in a park and, upon inspecting it, he determined that it was a replica pistol. However, his testimony about the discovery of the weapon and his determination that it was only a replica was inconsistent in some respects with a statement he had given to the police. A couple of days after the discovery of the weapon, the appellant received a call from his cousin who said she was looking to purchase a gun. While there were divergent testimonies relating to the circumstances of the ultimate sale, it was undisputed at trial that the appellant eventually sold the weapon to his cousin. It was also undisputed that by the time the weapon was later recovered by the police, it had been altered and transformed into a prohibited firearm. The circumstances of the sale, the timing of the alterations to the weapon, and the appellant’s knowledge of its prohibited character were in issue at trial. The events relating to the additional charges of harassment and threatening were also very much in issue at trial. These charges, not relevant to this appeal, related to the appellant’s efforts to obtain payment from his cousin for the weapon.

[4] Both Crown counsel and defence counsel at trial argued the case in respect of the four weapons charges as revolving entirely on the issue of whether the appellant knew that the weapon had been altered such that it was a prohibited weapon prior to the time that he sold it. It was the Crown’s theory at trial that the jury should convict the appellant of all four weapons charges if they were satisfied beyond a reasonable doubt that he had this knowledge. In the same way, it was the defence position that if the jury had a reasonable doubt that the appellant had the required knowledge, it was their duty to acquit him of all four weapons charges.

[5] In these circumstances, the appellant submits that the acquittal on the two possession charges is inconsistent with the verdict of guilty on the two transferring charges and that the latter two convictions should be set aside.

Analysis

[6] The test the appellant has to meet is well-known. It was set out by this court in R. v. McLaughlin (1974), 1974 748 (ON CA), 15 C.C.C. (2d) 562 (Ont. C.A.) as follows at p. 567:

The fact that verdicts may be inconsistent does not mean that in all cases the Court of Appeal ex necessitate must quash the conviction or grant a new trial. If the verdicts are violently at odds and the same basic ingredients are common to both charges then the conviction will be quashed but the onus is on the appellant to show that no reasonable jury who had applied their minds to the evidence could have arrived at that conclusion.

Hence, in order to determine whether the verdicts are “violently at odds”, it is necessary to consider not only the evidence and the position of counsel, but also the legal ingredients of the offences in question and the trial judge’s instructions to the jury.

[7] In this case, it is my view that the appellant does not meet this test because he cannot show that the “same basic ingredients are common” to both sets of charges. The distinction between the possession charges in respect of which the appellant was acquitted and the trafficking and transferring charges in respect of which he was convicted is that the former required a finding as to the appellant’s purpose. In order to convict the appellant of possession for the purpose of transferring the weapon, the jury had to be satisfied beyond a reasonable doubt that the appellant had the weapon in his possession for that purpose. Likewise, in order to convict him of possession for a purpose dangerous, they had to be convinced that he had the weapon in his possession for a purpose dangerous to public peace. The trial judge instructed the jury accordingly. It is also noteworthy that she instructed the jury to consider and assess the evidence with respect to each of the counts separately and to arrive at a separate verdict in relation to each. Even though counsel at trial put the case to the jury as an “all or nothing” proposition, the jury was not bound to accept the theory advanced by either counsel. They were bound, however, to follow the judge’s instructions on the law.

[8] In my view, there is no difficulty in explaining the difference between the verdicts on the trafficking and transferring charges on the one hand, and on the possession for a purpose dangerous to public peace charge on the other. It is readily apparent from the trial judge’s instructions to the jury that the focus on the possession charge was the question of whether the appellant’s purpose for having the weapon in his possession was dangerous to public peace. Her instructions in relation to this additional element of the offence were extensive:

You will have to look at all the surrounding circumstances in order to decide whether or not Mr. Thomas knew that he had a weapon, as I have defined it for you, in his possession and that he had it for a purpose dangerous to the public peace. You will have to decide whether he had it for that purpose.

The formation of the unlawful purpose may be inferred from the circumstances in which the weapon is used and possessed and that formation of the unlawful purpose must precede its use. You may find it difficult to decide exactly what Mr. Thomas’ purpose was. This is because the reason or purpose for doing something is a matter within his mind.

However, you are entitled as a matter of common sense to infer or conclude that Mr. Thomas’ purpose was to bring about the natural consequences of his actions. If his actions would have the natural effect of possessing a weapon for a purpose dangerous to the public peace, then you are entitled to conclude that they were done for that purpose.

However, you are not required to make this conclusion. You may decide that there is reasonable doubt about his actions that they were done for that purpose even if this was the natural consequences of his actions.

You will have to consider all of the surrounding circumstances in order to decide whether or not his possession of the weapon was for a purpose dangerous to the public peace. If you are left with a reasonable doubt as to whether his purpose was dangerous to the public peace, then you must find him not guilty of the charge.

Now, to give you some assistance as to how the law defines dangerous to the public peace, dangerous means creating peril or risk. The law gives a broad definition to the expression public peace. It refers to the “normal state of society” and is synonymous with the general peace and order of the realm as provided for by law. It is “that quiet, peace and security which is guaranteed by the laws for the personal comfort and safety of the people of Canada.”

A purpose dangerous to the public peace would be a purpose which imperils the comfort, tranquility, security or safety of a citizen of this country. Therefore, you must ask yourselves whether the Crown has proved beyond a reasonable doubt that Mr. Thomas possessed a weapon for such a purpose.

You must also ask yourselves whether the Crown has proved beyond a reasonable doubt that Mr. Thomas possessed a weapon for such purpose with the intention of using it for a purpose dangerous to the public peace. In considering the element of the intention of the accused, you should consider the nature of the weapon, the circumstances under which he had it in his possession, how he acquired it and the manner of its use. If after consideration of all of the evidence you are left with a reasonable doubt whether Mr. Thomas intended to possess a gun for a purpose dangerous to the public peace, then you must find him not guilty of this charge.

In considering this essential element of the charge I should point out to you that the Crown did not call evidence suggesting the use to which Mr. Thomas put the weapon which is alleged to have been in his possession. The Crown simply called evidence of him having it in his possession and giving it over to Roshane James, expecting to receive money in return.

[9] I note in passing that the instructions were overly generous to the appellant to the extent that it was suggested to the jury that it was necessary for the Crown to prove that the appellant intended to use the weapon for a purpose dangerous to public peace to prove the offence, as opposed to simply possessing it for that purpose. In any event, the verdicts can be explained by the fact that the jury may have had a doubt on whether the appellant possessed the weapon for the required purpose and may have acquitted the appellant on that basis. In these circumstances, it cannot be said that the verdict of not guilty on this charge is violently at odds with the verdicts of guilt on the trafficking and transferring charges.

[10] The distinction between the acquittal on the possession of the weapon for the purpose of transferring charge and the convictions on the trafficking and transferring charges is admittedly more difficult to explain on the evidence. Nonetheless, the jury was likewise instructed in respect of this possession offence that one of the necessary elements of the offence was the purpose for which the appellant was in possession of the weapon. Amongst other things, the trial judge instructed the jury as follows:

The real issue in this case on this count is whether you are satisfied beyond a reasonable doubt that the offence took place in that Mr. Thomas had the gun in its modified form. That is, did he have it in his possession in the form that it was when it was picked up by Detective Emond, who received it from Cleveland Williams, who says he got it from Roshane James, and the same gun examined by Mr. Nielson.

You should have little or no difficulty concluding that Mr. Thomas had a gun in his possession. What you must decide is whether he knew that it was a prohibited firearm and possessed it for the purpose of transferring it, knowing that he was not authorized to do so. [Emphasis added.]

[11] Again, on this charge, from a logical standpoint, the jury could well have focussed on the appellant’s purpose for having the weapon in his possession since this was the distinguishing element of this offence. The appellant’s testimony that he had found the weapon was undisputed. Hence the jury would not likely have attributed any unlawful purpose to the appellant for coming into possession of the weapon. It was never explained to the jury that the purpose behind his possession at the time he transferred the weapon would suffice to make out the charge. On the basis of the evidence and the instructions they were given, the jury may well have understood, albeit mistakenly so, that the purpose necessary to make out the offence had to relate to the entire time he was in possession of the weapon or that it had to relate to the reason he had it in his possession in the first place. To the extent that the instructions were incomplete on this point, they enured to the benefit of the appellant. However, it does not follow as a matter of law that the convictions on the trafficking and transferring charges must be set aside.

[12] Consequently, it is my view that there is a sufficient difference in the legal requirements for the two sets of charges to explain the verdicts. In other words, the jury may have had a doubt on the appellant’s purpose for having the gun in his possession while still being satisfied beyond a reasonable doubt that he did in fact sell the gun to his cousin knowing that the weapon was a prohibited weapon.

[13] I would therefore dismiss the appeal.

Released: JJC 26 JUN 2003 Signed: “Louise Charron J.A.”

“I agree. J.J. Carthy J.A.”

“I agree. Robert J. Sharpe J.A.”