R. v. Smith, 2008 ONCA 151

CITATION: R. v. Smith, 2008 ONCA 151

DATE: 20080229

DOCKET: C45100

COURT OF APPEAL FOR ONTARIO

GILLESE, ARMSTRONG and BLAIR JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

MARVIN LANCELOT SMITH

Appellant

Paul Calarco for the appellant

Deborah Krick for the respondent

Heard: February 25, 2008

On appeal from the convictions entered by Justice Harry LaForme of the Superior Court of Justice dated November 9, 2004, and the sentence imposed on January 7, 2005.

ENDORSEMENT

[1] The appellant was found guilty of robbery with a firearm (x3); robbery with an imitation firearm (x3); robbery (x3); point firearm (x4); disguise with intent (x8); and possession of a weapon for the purpose of committing an offence (x3). He was sentenced to 8 years in custody in addition to pre-trial custody of 5 years. The appellant appeals the convictions and seeks leave to appeal sentence.

[2] The appellant raises two issues in respect of his conviction appeals. First, he argues that the trial judge erred in determining that the gun before the court was a “firearm”, as that word is defined in s. 2 of the Criminal Code. Second, the appellant argues that because the voir dires were improperly conducted, the trial judge erred in admitting the out of court statements of David Caesar and Mohammad Ahmad for the truth of their contents.

The Firearm Issue

[3] The appellant concedes that there was sufficient evidence for the trial judge to find that the gun in evidence was that which had been used in the three robberies in counts 1, 9 and 23. However, that gun had no breech bolt. Without a breech bolt, the gun was not operable as it was not capable of being fired.

[4] The expert evidence established that it is easy to insert a breech bolt and, thus, to make the gun operable. The expert also testified that breech bolts could be readily obtained. He testified that with one phone call to a store in Orillia, he found he could have a breech bolt shipped in a matter of days at a cost of $40. There was no need for a permit for such a purchase.

[5] There was no evidence that a breech bolt was available during the robberies.

[6] In R. v. Covin (1983), 8 C.C.C. (3) 240 S.C.C. at p. 243, Lamer C.J. explained how to determine whether an inoperable gun is a firearm.

“If inoperable, then as regards s. 83, it is a firearm if, given the nature of the repairs or modifications required and the availability of the parts on the scene, whatever was used could, during the commission of the offence have been adapted by an ordinary person or by the accused if possessing special skills so as to be capable of firing and of causing serious injury.”

[7] In the present case, as has been noted, there was no evidence that parts were available “on the scene … during the commission of the offence” that could have been used to make the gun operable. As the above extract from Covin makes clear, in order for an inoperable weapon to be a firearm as that word is defined in the Criminal Code, the parts must be available “on the scene” so that the weapon could be made operable during the commission of the offence. There was no such evidence therefore, in our view, the trial judge erred in finding that the rifle in question was a “firearm” within the meaning of the Criminal Code.

[8] We reject the Crown’s alternative argument for the same reasons. The alternative argument which again was based on the expert evidence, was that the rifle could have been fired by striking a nail against the cartridge. Setting aside the very real question as to whether such an adaptation could have been made during a robbery, there was no evidence that a nail and something suitable to strike it with was available on the scene.

[9] Accordingly, the convictions on counts 1, 9 and 23 (robbery with a firearm) must be quashed. We would substitute convictions for robbery with an imitation firearm on those counts. It follows that the convictions for pointing a firearm (counts 2 and 10) must be quashed and acquittals entered on those counts.

[10] As a result, this court is required to sentence the appellant for robbery with an imitation firearm on counts 1, 9 and 23. We impose a sentence of four years on each count, concurrent to each other. This is consistent with the trial judge’s sentence for counts 4, 15 and 18, which are also robbery with an imitation firearm.

The Voir Dire Issue

The KGB statement of David Caesar

[11] Mr. Calarco submits that the trial judge applied a flawed procedure with respect to the statement of Mr. Caesar, mixing the Crown’s s. 9(2) and KGB applications. In particular, he argues that Crown counsel was allowed to embark upon an impermissible cross-examination of her own witness, Mr. Caesar, on the voir dire. He contends that the allegedly flawed procedure so undermined the trial process that defence counsel’s admission of “necessity” on the KGB application must not be allowed to stand. Since the necessity requirement would then not be met, the argument goes, the statement was inadmissible for the truth of its contents and – since the statement formed the only basis for identifying the appellant as a participant in the robberies – the convictions must fall.

[12] We do not agree.

[13] On the KGB application, defence counsel conceded that the requirement of “necessity” had been met. The underlying basis for this concession was that, at trial, Mr. Caesar recanted his earlier statement that the appellant was present at the robberies. That this was so was readily apparent on the evidence before Crown counsel embarked upon her s. 9(2) and KGB applications. The following exchange during Mr. Caesar’s examination in chief (at p. 864) illustrates this:

Q. Will it help you to refresh your memory if you were allowed to read about the second robbery that you told the police about?

A. Well, you should tell me.

Q. What you mean by that?

A. You tell me what it is.

The Court: Well do you want to read it to see if it does help?

A. Not really, no.

Ms. Hughes: Q. Why not?

A. Because I don’t feel I need to because the whole statement is wrong. The names in it, it’s wrong.

Q. Ok. So by that, what you mean?

A. That the names that are in it shouldn’t be in it.

Q. Whose name in particular?

A. So Marvin’s [i.e. the appellant’s] and Bradley’s.

Q. Marvin’s and Bradley’s name shouldn’t be in the statement at all?

A. Not, not in all, not Marvin’s name in all, but Bradley should be in for one, one or two of them.

[14] In short, nothing that transpired during the s. 9(2)/KGB voir dire – whether arising from the Crown’s cross-examining Mr. Caesar or not – altered the already established point that Mr. Caesar was resiling from his earlier statement regarding the appellant’s presence at the robberies and, therefore, that the criterion for “necessity” with respect to the statement was met. We see no prejudice to the appellant in this respect from the s. 9(2)/KGB procedure, whether it was flawed or not.

[15] None of the trial judge’s findings regarding the “reliability” of Mr. Caesar’s arise out of any evidence that could be said to have been tainted by a flawed s. 9(2)/KGB procedure.

[16] Accordingly, we would not disturb the trial judge’s ruling with respect to the admissibility of Mr. Caesar’s statement.

The KGB statement of Mr. Ahmad

[17] Nor would we interfere with the trial judge’s ruling regarding the admissibility of Mr. Ahmad’s statement on a KGB basis.

[18] The appellant concedes that the procedure followed with respect to Mr. Ahmad’s statement was not flawed to the same degree as that which was followed in respect of Mr. Caesar. Mr. Calarco argues, however, that the trial judge erred (a) in permitting Crown counsel to cross-examine on “consistencies” between Mr. Ahmad’s evidence and his statement, and (b) in misconstruing the test for admissibility of a KGB statement by concluding that various leading questions posed by the police during the taking of the statement “did not affect voluntariness”.

[19] Again, we do not agree.

[20] First, the trial judge placed no reliance on the “consistencies”, either in his ruling in respect of the admissibility of Mr. Ahmad’s statement or in his ultimate reasons for conviction.

[21] Second, the trial judge made no error in his treatment of the leading question issue. He concluded that while the police had engaged in some leading questions during the taking of the statement, those questions did not affect the “voluntariness” of the statement. Mr. Calarco concedes that “voluntariness” is a proper consideration under the heading of “reliability” on a KGB application, but he submits that the trial judge mistakenly conflated “voluntariness” and “reliability” in this portion of his reasons, thereby applying the wrong test.

[22] It is clear when reading the trial judge’s reference to leading questions and voluntariness in context, however – it takes place under the rubric of his four-point analysis of the reliability of Mr. Ahmad’s statement – that he did no such thing. The trial judge considered whether the statement was “voluntary” as an aspect of reliability, as he was entitled to do, and dealt with the argument about leading questions in that context.

[23] Accordingly, we would not give effect to this ground of appeal.

The Sentence Appeal

[24] The appellant seeks leave to appeal his sentences on the remaining counts for which convictions stand, on the basis that the overall sentence was excessive. We disagree. We see no basis upon which to interfere with the discretion exercised by the trial judge. Given the number and serious nature of the offences, the appellant’s prior record, the vulnerability of and the impact on the victims, and the degree of planning involved in the offences, the total sentence imposed was not excessive despite the appellant’s youth.

[25] The appellant also submits that the trial judge erred in his failure to give credit on a three for one basis in respect of his pre-trial custody in the Don Jail. Counsel relies upon the trial judge’s judgment in R. v. R.L., [2004] O.J. No. 384 where such credit was given to an accused for time served in the Don Jail.

[26] In his reasons for sentence in this case, the trial judge adverted to his decision in R.L. and declined to give three for one credit for the entire pre-trial custody time spent in the Don Jail. However, he did give three for one credit for the period of time that the jail routine was disrupted by the SARS crisis. For the balance of the appellant’s pre-trial custody, he gave the usual two for one credit. Again, we see no error in the exercise of his discretion.

Disposition

[27] Accordingly, we would allow the conviction appeal in part, grant leave to appeal sentence but dismiss the sentence appeal. As a result of the appeal, the convictions and sentences are as follows:

Robbery with an imitation firearm: 4 years concurrent on each count (1, 9, 23)

Robbery with an imitation firearm: 4 years concurrent to each other (4, 15, 18) but consecutive to the foregoing robbery counts

Robbery: 3 years concurrent to each other (7, 12, 20) but consecutive to all other counts

Face masked: 2 years concurrent with each other and concurrent to all other counts (3, 6, 11, 14, 17, 19, 21, 24)

Total: 11 years

Less: Pre-trial custody 5 years

Net sentence: 6 years

The lifetime firearms prohibition and DNA order remain.

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”