DATE: 20040415
DOCKET: C40484
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – JOHN CHARBONNEAU (Appellant)
BEFORE:
GOUDGE, MacPHERSON AND CRONK JJ.A.
COUNSEL:
G. Eldon Horner
for the appellant
Lisa Joyal
for the respondent
HEARD:
April 2, 2004
On appeal from the decision of Justice Johanne LaFrance-Cardinal of the Superior Court of Justice (Summary Conviction Appeal Court) dated July 7, 2003.
E N D O R S E M E N T
[1] The fundamental issue before the Summary Conviction Appeal Court was whether the finding by the trial judge that what the appellant held in his hand was a handgun was unreasonable. The trial judge made this finding after refusing, without any explanation, the request to amend the information to encompass either a handgun or an imitation handgun.
[2] The Summary Conviction Appeal Court erred in not squarely dealing with this question. However, in our view, the correct answer to the question is that a reasonable trier of fact could reach this conclusion on this record and, hence, the trial judgment ought not be set aside.
[3] It is true that the complainant was equivocal on the question of whether she could tell for certain whether the gun was real or fake. However, the trial judge also had before him the evidence of the complainant’s clear belief that it was a gun, her description of the object, the appellant’s conduct in relation to it and his use of it together with the appellant’s threat to shoot while holding it. Moreover, there was a complete absence of evidence to the contrary. Taken together, this is a sufficient foundation for the trial judge’s finding that it was a handgun.
[4] The appellant argues that the trial judge also erred in admitting evidence of bad character. We agree with the Summary Conviction Appeal Court that this evidence was properly admitted as part of the narrative and was not misused.
[5] Therefore, despite Mr. Horner’s able argument, we would grant leave to appeal but dismiss the appeal.
_
_ “S.T. Goudge J.A.”
“J.C. MacPherson J.A.”
“E.A. Cronk J.A.”