R. v. Watson, 2008 ONCA 614

Date: 2008-09-09

Docket: C46015 C46385

Court of Appeal for Ontario

Before: Rosenberg and Simmons JJ.A., and Speyer J. (Ad Hoc)

Between:

Her Majesty the Queen Respondent

And

Jermaine Watson And Devonne Latcha Appellants

Counsel: David E. Harris for the appellant Jermaine Watson (C46015) Christopher Hicks for the appellant Devonne Latcha (C46385) Amy Alyea for the respondent

Heard: June 25, 2008

On appeal from the convictions entered by Justice Peter A. Grossi of the Superior Court of Justice sitting with a jury on November 21, 2005 and from the sentences imposed on June 14, 2006.

Simmons J.A.:

I. Overview

[1] Following a joint trial before Grossi J. sitting with a jury, the appellants Latcha and Watson were each convicted of robbery while armed with a handgun and of possession of a loaded restricted firearm. Both appellants were sentenced to five years’ imprisonment less credit for pre-sentence custody on the armed robbery charge (“count 1”) and to two years’ imprisonment concurrent on the possession charge (“count 2”). The appellants appeal their convictions and seek leave to appeal their sentences.

[2] It was common ground at trial that a third individual, Smith, was in physical possession of a loaded handgun during the incident forming the subject matter of the charges, which occurred at a clothing store. Smith died as the result of injuries sustained in a confrontation with the storeowner. Evidence at the trial indicated that the storeowner was a drug dealer and may have been using the clothing store as a front for his drug trafficking operation.

[3] In relation to the conviction appeal, both appellants submit that the trial judge failed to give an adequate Vetrovec instruction. In addition, Latcha contends that the jury charge was unbalanced. Concerning count 1, Latcha argues that the trial judge erred by failing to instruct the jury that to be guilty of armed robbery, the accused had to know that the use of a firearm was a probable consequence of the offence. Watson submits that the party-to-the-offence instructions were fatally flawed in relation to count 1 because the trial judge failed to make it clear to the jury that in order to convict they had to be satisfied that Watson participated in a theft at a time when he knew that Smith was armed with a firearm. Concerning count 2, both appellants contend that their conviction on count 2 was unreasonable. In addition, they argue that the trial judge failed to properly instruct the jury on the essential elements of count 2.

[4] Both appellants request leave to appeal sentence and ask that their sentences be reduced.

[5] For the reasons that follow, I would dismiss the conviction appeals in relation to count 1. I would allow the conviction appeals in relation to count 2, set aside the convictions, and order a new trial. Although I would grant leave to appeal sentence to both appellants, I would dismiss their sentence appeals.

II. The Conviction Appeals

i) Background

[6] Although neither appellant testified at trial, both acknowledged their presence at the scene in videotaped statements taken by the police, which the Crown introduced into evidence at trial. In their statements, both appellants took the position that Smith was the main actor in the incident, that he had some form of dispute with the storeowner, and that there was no common plan to commit a robbery.

[7] Latcha essentially acknowledged in his videotaped statement that he realized that a robbery was going to occur after Smith purchased some garbage bags and gloves just before entering the clothing store and that he decided not to leave and have the other two men think he was a coward. In addition, he acknowledged that he closed the front door of the store on Smith’s signal; that at some point he realized that his role was going to be to fill up the garbage bags; and that Smith had shown him his gun and some bullets a month or two earlier. Although he said that Smith “never walks around without [the gun]” and “knowin’ Smith, I know Smith has somethin’ on him”, Latcha claimed he did not see a gun that day and did not turn his mind to whether Smith had a gun.

[8] Latcha also said that Smith and Watson pushed the storeowner into the backroom and that, before entering the backroom, Smith told Watson and him to take everything. Latcha said Watson was trying to open a bag and put stuff in, but that he felt paralyzed when he heard fighting in the backroom and did not take anything. He said he dropped the bag he was holding and was running out the door when the storeowner emerged from the backroom bleeding and with a metal pipe in his hands.

[9] Watson claimed in his statement that he had only known Smith for a couple of months and that he had never seen him with a gun. Although he acknowledged that he “kinda figured it out” as events were unfolding, he maintained that he did not know in advance that a robbery was going to take place, and that he only realized that Smith had a gun when he saw him pull it out. He said the gun was a two-two, or a four or five, and that he thought the words “Smith and Wesson” were printed on it.

[10] Watson said he tried to push Smith and the storeowner apart after Smith pulled the gun, but that Latcha and Smith pushed the storeowner into a back room. When Latcha came out of the backroom, he dropped some garbage bags and told Watson to pick them up. Although Watson acknowledged picking up the garbage bags, he said that he was in shock, that he dropped them as he left, that he did not take anything from the store and that he “didn’t want nuttin’ to do with it.” He explained that he essentially froze while Smith and the storeowner fought in the back room for about three to five minutes and then ran from the store when the storeowner emerged from the back room holding a long item shaped like a bat made of hard plastic or metal.

[11] According to the storeowner, following some initial conversation after the three men entered the store, Smith told him to back up. He heard something click, like the cocking of a gun, and Watson yelled, “Don’t shoot.” All three men pushed him into the backroom of the store and he was hit on the head with a blunt object. Then the storeowner and Smith became embroiled in a fight. The storeowner grabbed a metal pipe and hit Smith with it twice.

[12] When the storeowner emerged from the backroom, he saw both appellants bending over putting clothing into garbage bags. Latcha was on the north side of the store and Watson was on the south side. The two men ran from the store and the storeowner followed them, and then asked someone to call the police. The storeowner returned to the backroom and found the gun.

[13] In his initial statement to the police, the storeowner denied there was a gun involved in the incident. Although he was later able to retrieve the gun and had his lawyer turn it over to the police, he claimed at trial that he could not identify the customer to whom he gave it. A police officer testified that based on the injuries Smith sustained, in his view, Smith must have been struck more often than twice.

[14] Among other things, the police found a black garbage bag with two pairs of jeans partially inserted into it on the north side of the store where Latcha was standing; packaging for garbage bags that had been ripped open and a garbage bag on the south side of the store; and two pairs of jeans on the floor behind the counter of the store.

[15] The police also found cocaine in the backroom of the store. The storeowner testified that it was a small amount and acknowledged selling it on the side. However, he denied dealing from the store, and denied that Smith entered the store because the two were involved together in the drug trade. In cross-examination, the storeowner conceded that the police found cocaine in the store along with an electronic scale and baggies. The storeowner confirmed that trafficking charges were pending against him at the time of the appellants’ trial and that he planned to plead not guilty.

ii) Analysis

1.) The Vetrovec Instruction

[16] I reject the appellants’ submissions that the trial judge’s Vetrovec instruction amounted to reversible error. In my opinion, the trial judge’s instruction to the jury to use “the greatest care and caution” in assessing the storeowner’s evidence was sufficient in the circumstances of this case. This was not a situation where the Crown’s case depended solely on the evidence of the storeowner. Further, the storeowner was not the type of witness, i.e. an informant or an accomplice, that has traditionally raised the greatest concerns about the need for caution in assessing the witness’s evidence. Given these circumstances, I would not interfere with the trial judge’s exercise of discretion concerning the appropriate wording of the caution.

[17] Further, although I agree that the trial judge could have referred to factors in addition to the storeowner’s admission that he was a drug dealer to explain the need for caution in relation to his evidence, in my opinion such factors would have been obvious to the jury in this case in any event.

[18] For example, I consider that it would have been obvious to the jury that the storeowner lied in his initial statement to the police when he denied there was a gun involved in the incident and that he lied in his evidence at trial when he claimed that he could not identify the customer to whom he gave the gun. The trial judge cautioned the jury to “beware of the witness you find that has lied to you in one area” in his instruction to the jury about partisan witnesses. In these circumstances, it would have been obvious to this jury that they should be cautious about the storeowner’s evidence as a result of his lies.

[19] Further, the trial judge told the jury in a separate instruction that they should approach the evidence of the storeowner with care and caution due to the fact that he was awaiting trial on outstanding charges and explained specifically that a witness in that position might believe that it would be in his interest to provide favourable testimony. Moreover, I have no doubt that the jury would have appreciated that the storeowner would have an interest in justifying in his testimony his role in Smith’s death.

[20] I note that defence counsel at trial (not Mr. Hicks or Mr. Harris) did not mention any factors other than the storeowner’s drug dealing activities in requesting that a Vetrovec instruction be given, nor did they advance any specific objections to this aspect of the trial judge’s charge. In all of the circumstances, I am not satisfied that the trial judge erred in failing to refer to additional factors to explain the need for caution in relation to the storeowner’s evidence.

[21] The appellants also submit that the trial judge erred in the examples he gave of evidence capable of confirming the storeowner’s testimony. I agree that the fact that the storeowner admitted lying to the police about the gun was not capable of confirming his evidence. However, the gun and the evidence concerning drugs were capable of restoring the jury’s faith in his credibility. In any event, there was abundant evidence in the appellants’ own statements that confirmed much of the storeowner’s testimony. I am satisfied that the appellants suffered no prejudice from this somewhat confusing direction.

2.) Imbalance in the Jury Charge

[22] We did not call on the Crown to address Latcha’s ground of appeal that the trial judge’s charge to the jury was imbalanced in favour of the Crown. Although the trial judge did not review the appellants’ positions when setting out the various modes of liability advanced by the Crown, it was unnecessary that he do so. The trial judge had canvassed the appellants’ positions in detail when he reviewed the overall positions of each party.

3.) Failure to Instruct the Jury that Use of a Firearm was a Probable Consequence of the Offence

[23] I reject Latcha’s submission that the trial judge was required to instruct the jury that in order to find the appellants guilty of armed robbery, the jury had to be satisfied that the appellants knew that use of a firearm was a probable consequence of the offence. In my opinion, Latcha’s reliance on R. v. McGuigan, Lawson and Tatum (1979), 1979 CanLII 81 (ON CA), 50 C.C.C. (2d) 306 (Ont. C.A.), aff’d 1982 CanLII 41 (SCC), 66 C.C.C. (2d) 97 (S.C.C.), in support of this argument is misplaced.

[24] The accused in McGuigan were charged with an offence under former s. 83 of the Criminal Code, in which use of a firearm was an essential element of the offence. The appellants in this case, though, were charged with robbery under s. 343(d) of the Criminal Code, in which “use” of a firearm is not an essential element of the offence. Rather, s. 343(d) refers to being “armed” with an offensive weapon. Accordingly, it was sufficient in this case that the accused were aware that Smith was armed with an offensive weapon, which was particularized in this case as a firearm.

4.) The Trial Judge’s Instructions to the Jury Concerning Parties to an Offence--Count 1

i) Watson’s Position

[25] Watson claims that the trial judge committed reversible error in his instructions to the jury on parties in relation to count 1 because he failed to tell the jury that in order to find the appellants liable as secondary parties, the Crown was required to prove that: i) the appellants knew that Smith had a gun, and, ii) the appellants did something to participate in a theft at a time when they knew that Smith had a gun. Instead, the trial judge told the jury that possession of the gun was an essential element of robbery, but never provided the jury with a clear explanation concerning how they could make a finding that the appellants were in possession of the gun.

[26] Further, Watson contends that the jury’s questions demonstrate that they may have been having trouble with these concepts of knowledge and possession, and, moreover, that they may have been working backwards from count 2 to count 1 to try and resolve their difficulties.

[27] Particularly in the light of his evidence that he did not know Smith had a gun until he saw him pull it out, Watson claims that there is a risk that the jury relied on his conduct prior to Smith pulling the gun to make a finding that he participated in count 1. He submits that the trial judge erred by failing to instruct the jury clearly in his recharge that they could only convict on count 1 if they were satisfied that the appellants each participated in the offence at a time when they knew Smith had the gun.

[28] Finally, Watson claims that there was no evidence to support the Crown’s theories that the appellants could be liable as principals or abettors on the first count. He says that these instructions were prejudicial because once again the trial judge failed to instruct the jury that, before making a finding of guilt against the appellants on count 1, they had to be satisfied that the appellants knew that Smith had a gun.

ii) The Trial Judge’s Instructions on Parties and his Answers to the Jury’s Questions

[29] As I have said, there was no dispute at trial that Smith was in possession of the handgun during the course of the incident forming the subject matter of charges. The Crown’s position at trial was that the appellants were guilty of armed robbery either as principals, or as aiders, or as abettors.

[30] After setting out the overall positions of the parties at trial and reading the indictment to the jury, the trial judge began his instructions on the legal principles applicable to the offences by discussing the concept of principals, aiders and abettors.

[31] Concerning principals, the trial judge told the jury that accused persons may be found guilty of a criminal offence “if they are acting together as part of a joint plan or agreement to commit the offence.” He then described the Crown’s position that the appellants were guilty of armed robbery as principals, and in doing so, he said, “They do not have to have the gun in their possession; they do have to know that Mr. Smith has a gun.”

[32] Concerning aiders, the trial judge gave the jury standard instructions that included the following:

The aider must intend to help the other person commit the offence. Actual assistance is necessary. It is not enough that a person was simply there when a crime was committed by someone else; in other words, just being there does not make a person guilty as an aider of any or every crime somebody else commits in the person’s presence. Sometimes people are in the wrong place at the wrong time.…

Aiding relates to a specific offence. An aider must intend that the offence be committed, or know that the other person intends to commit it and intend to help that person accomplish his goal. [Emphasis added.]

[33] The trial judge then described the Crown’s position that the appellants were guilty of armed robbery as aiders, and, in doing so, he said:

The Crown’s position is that Mr. Watson and Mr. Latcha knew that Mr. Smith was going to rob [the] clothing store and knew that Mr. Smith had a gun. [Emphasis added.]

[34] Concerning abettors, the trial judge gave the jury standard instructions that included the following:

First of all, there must be actual encouragement by words conduct or both. Second, a person who offers encouragement must intend to encourage the other person to commit the offence….

It is not enough that a person was simply there when the crime was committed by someone else; in other words, just being there does not make someone guilty as an abettor of any crime the other person commits. Sometimes people just end up in the wrong place at the wrong time.…

Abetting relates to a specific offence. An abettor must intend that the other person commit the offence, or know that the other person intends to commit it and intend to encourage that other person to do so. [Emphasis added.]

[35] After completing his instructions on principals, aiders and abettors, the trial judge turned to the law relating to count 1. His basic instructions concerning the elements of the offence included the following:

Crown counsel must prove each of the essential elements beyond a reasonable doubt: that Mr. Watson and/or Mr. Latcha stole from [the storeowner]; two, that Mr. Watson and/or Mr. Latcha were armed with an offensive weapon at the time of the stealing.

Each essential element may be made into a question…The first question is: Did Mr. Watson and/or Mr. Latcha steal something from [the storeowner]? To steal something from somebody means to take something, for example, money or property…. To steal something also requires that what is taken…be moved. Any movement is enough. Theft is complete when, with intent to steal, someone moves property…. To steal something also requires proof that Mr. Watson and/or Mr. Latcha intended to take the…property, permanently or at least temporarily from [the storeowner].

If you are satisfied beyond a reasonable doubt that Mr. Watson and/or Mr. Latcha stole something,…you must go on to consider the next question. Were Mr. Watson and/or Mr. Latcha armed with an offensive weapon at the time of the stealing? To be armed means to be equipped or in possession of an instrument or thing.…

What must be proven, however, is that Mr. Watson and/or Mr. Latcha was equipped with or had in his possession an offensive weapon at the time he stole from [the storeowner]. [Emphasis added.]

[36] Prior to charging the jury, the trial judge ruled that the Crown had particularized the charge against the appellants as armed robbery under s. 343(d) of the Criminal Code. Accordingly, he did not leave liability on the basis of the other forms of robbery set out in s. 343 with the jury, but he did leave theft with the jury as an included offence. In doing so, he said:

If you are not satisfied beyond a reasonable doubt that Mr. Watson and/or Mr. Latcha was armed with an offensive weapon at the time he stole from [the storeowner], you must find Mr. Watson and/or Mr. Latcha not guilty of robbery, but guilty of theft. [Emphasis added.]

[37] After completing his instructions concerning count 1, the trial judge turned to count 2. He instructed the jury simply that their verdicts on count 2 should correspond to their verdicts on count 1.

[38] After they retired, the jury asked the following two questions, which they submitted at the same time:

We are requesting clarification on two points: One, can a person be found guilty of robbery of goods when not having physically touched them? And, two, can a person be found guilty of possession of firearms being in the company of the person possessing it? Please clarify aiding and abetting relative to these two points. Thank you.

[39] In response to these questions, the trial judge repeated the appellants’ positions that they did not know there was going to be a robbery and that they did not know that Smith had a gun, and he also repeated his instructions on aiding and abetting and stealing. However, he did not repeat his summaries of the Crown’s position concerning how the appellants could be guilty under the various modes of liability.

iii) Analysis

[40] Although I agree that the trial judge’s instructions and recharge could have been clearer, I am satisfied that they were adequate to ensure that the jury would not convict unless they were satisfied that the appellants participated in a theft at a time when they knew Smith had a gun. I say that for three main reasons.

[41] First, I consider that it would have been obvious to the jury, based on the aiding and abetting instructions, that they could only convict on count 1 if they were satisfied that Watson participated in the robbery at a time when he knew Smith had a gun.

[42] In instructing the jury on aiding and abetting, both in his charge and in his recharge, the trial judge stated repeatedly that actual assistance (or actual encouragement by acts or conduct) is necessary, that aiding (and abetting) relates to a specific offence, and that the aider (or abettor) must intend to help (or encourage) the other person commit the offence.

[43] Given the instruction that actual assistance (or encouragement) is necessary and that mere presence is not enough, the jury would necessarily have understood that in order to be guilty of count 1, they had to find that a particular appellant actually did something (such as pick up garbage bags) to assist (or encourage) commission of the offence.

[44] Further, in my view, the repeated instruction that aiding (and abetting) must relate to a specific offence is significant. In the face of the instructions that aiding (and abetting) relate to a specific offence, and that the aider (or abettor) must intend to help or encourage the other person to commit the offence, it would have been obvious to the jury that in order to intend to assist (or encourage) an armed robbery, the particular appellant had to know the person they intended to assist was armed.

[45] Second, I am not persuaded that either the jury’s first question, or the trial judge’s answer to it, create any realistic possibility that the jury may have concluded that they could convict the appellants on count 1 based on a finding that the appellants had done no more than knowingly assist or encourage a mere theft. Even if the question reflects a possibility that the jury was working through the elements of the offence, the language the jury used in their first question, by itself, strongly supports this conclusion.

[46] As noted above, in setting out the elements of the offence of robbery, the trial judge framed the first element as follows:

Did Mr. Watson and/or Mr. Latcha steal something from [the storeowner]?

[47] The jury’s first question reads as follows:

[C]an a person be found guilty of robbery of goods when not having physically touched them? Please clarify aiding and abetting relative to [this point].

[48] In my view, the jury’s use of the term “robbery” is a strong indication that the jury clearly understood that, in order to convict the appellants on count 1, they had to find that the appellants intended to aid or abet an armed robbery, which was the only form of robbery left with them, as opposed to a simple theft. Because the trial judge ruled that the Crown had particularized count 1 as armed robbery, throughout his charge he often used the term robbery as a short way of referring to the offence as charged, namely, armed robbery.

[49] So, for example, the trial judge told the jury that in order to prove robbery the Crown had to prove that “Mr. Watson and/or Mr. Latcha were armed with an offensive weapon at the time of the stealing.” In addition, the trial judge specifically instructed the jury that if they were not satisfied beyond a reasonable doubt that “Mr. Latcha and/or Mr. Watson was armed with an offensive weapon at the time he stole from [the store owner]”, they must find the appellant “not guilty of robbery, but guilty of theft.”

[50] Considered in the context of the trial judge’s description of the first element of the offence of robbery by reference to stealing and the trial judge’s use of the term robbery as meaning “armed robbery”, the jury’s reference to “robbery” when asking a question related to the first element of the offence is a strong indication that they were clearly focused on the conduct necessary to aid or abet an armed robbery.

[51] However, even if the jury was using the term robbery more colloquially as meaning theft or stealing, the trial judge’s answer to the jury’s question would have made it quite clear that, before they could convict the appellants on count 1 based on aiding or abetting, the jury had to find not only that the appellants actually did something to assist or encourage a theft, but also that the appellants intended to aid or encourage the offence with which the appellants were charged, namely, armed robbery.

[52] As I have already explained, this is because the trial judge made it clear in his instructions that aiding and abetting relate to a specific offence and that the aider or abettor must intend to assist or encourage another person in committing the offence. Accordingly, even if the jury’s first question was aimed at clarifying the type of conduct that could amount to aiding or abetting the act of stealing, the trial judge’s instructions made it clear that the aiding or abetting had to relate to the specific offence charged, namely, armed robbery.

[53] Further, to the extent that the jury’s first question may indicate they were working through the elements of the offence, the jury still had to go on to consider the second element, namely, “[w]ere Mr. Latcha and/or Mr. Watson armed with an offensive weapon at the time of the stealing?”

[54] My third reason for concluding that the trial judge’s instructions were adequate is that even if the jury’s second question indicates that they were working backwards from count 2 to resolve a difficulty with the concept of possession, it would have been clear to the jury, based on the aiding and abetting instructions, that they could not find that Watson was in possession of the handgun unless they were satisfied that Watson knew that Smith had the handgun and intended to at least encourage Smith in possessing the handgun.

[55] As I have said, because the instructions indicate that aiding and abetting must relate to a specific offence and also that the aider or abettor must intend to assist or encourage the offence, it would have been obvious to the jury that in order to find that the appellants were parties to possession of the handgun, they had to find that the appellants knew that Smith had the handgun and also that the appellants did something to, at a minimum, encourage his possession, such as remaining in the store or picking up garbage bags.

[56] In my view, a conclusion that the appellants were parties to possession of the handgun would have lead inevitably to a finding that they were parties to armed robbery. Even assuming the jury was working backwards from count 2 to resolve a concern about the concept of possession, once the jury found that the appellants knew that Smith had a handgun and, at a minimum did something to encourage his possession, the jury would inevitably have concluded that that conduct and the appellants’ subsequent actions were in furtherance of the robbery.

[57] I am satisfied that it is implicit in the jury’s verdict that they rejected Watson’s evidence that he froze after picking up the garbage bags and I would not give effect to this ground of appeal.

5.) Count 2

[58] In my opinion, there was evidence capable of supporting convictions against both appellants on count 2. With respect to Latcha, this evidence included his admitted knowledge of Smith’s habit of carrying a gun, and his statement that Smith had shown him the gun and the bullets a month or two earlier. With respect to Watson, the evidence included his statement describing the caliber and make of the gun and the storeowner’s evidence that he heard Watson say, “Don’t shoot.”

[59] Nonetheless, the convictions on count 2 must be quashed in relation to both appellants. As I have said, the trial judge instructed the jury that findings of guilt on count 1 must necessarily lead to findings of guilt on count 2. This instruction was in error. Count 2 required that the trial judge give the jury instructions on additional elements of that offence that were not included as part of the instructions on count 1. These additional instructions would have addressed the requirement for knowledge that the firearm was loaded as well as instructions concerning joint and constructive possession. As these instructions were not given, the convictions against both appellants on count 2 are set aside and a new trial is ordered.

III. The Sentence Appeals

[60] Concerning sentence, Latcha argues that since the trial judge relied on the fact that the handgun was loaded as a significant aggravating factor on count 1, the sentence on count 1 should be reduced if Latcha is acquitted on count 2. In the alternative, relying on R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 172 C.C.C. (3d) 225 (Ont. C.A.), Latcha submits that the trial judge erred in principle in imposing a lengthy penitentiary sentence without considering Latcha’s youth as a mitigating factor.

[61] I do not accept these submissions. The trial judge listed seven factors that he considered aggravating in relation to sentence. In describing one of those factors, he said the following: “[T]he robbery involved a weapon: a loaded firearm. A bullet was discharged and found at the scene.” Further, in declining to impose only the minimum sentence for using a firearm in the commission of a robbery, the trial judge said:

Given Watson and Latcha’s prior records, the presence of a loaded firearm, and the epidemic of gun possession and used firearms in society, I am of the view that in order to adequately respond to the necessary objectives of denunciation and deterrence in this case, the minimum sentence is not appropriate.

[62] In my view, the trial judge’s statements accurately describes an aggravating feature of the offence, whether or not Latcha knew Smith’s handgun was loaded. Although there may be some difference in Latcha’s moral blameworthiness depending on whether he actually knew the gun was loaded or simply failed to make inquiries, I consider the difference slight. Latcha chose to participate in a robbery knowing Smith had a gun and having seen the bullets on a previous occasion. In fact, the gun was loaded. The trial judge was entitled to rely on the presence of a loaded gun as an aggravating feature on count 1.

[63] Further, on the facts of this case, I am not persuaded that the trial judge erred in failing to identify Latcha’s youth as a specific mitigating factor or in relying on the sentencing objectives of denunciation and deterrence as one of the reasons for increasing the sentence on count 1 beyond the minimum.

[64] Although the trial judge did not include Latcha’s youth in his list of mitigating factors, during the course of his reasons, he did refer to the fact that Latcha was 22 at the time of sentencing. In addition, as the trial judge noted, the circumstances of the robbery were extremely serious – they included a robbery committed in a public place during daylight hours, the presence of a loaded firearm, and the loss of a life – and Latcha’s youth record included a previous finding of guilt for robbery. Despite an offender’s youth, the sentence imposed must still be proportionate to the gravity of the offence: See R. v. Tan, 2008 ONCA 574, at para. 33. On the facts of this case, I am not persuaded that the sentence imposed reflects error.

[65] Watson submits that the trial judge erred in principle by sentencing him for robbery while using a firearm, which carries a minimum sentence of four years’ imprisonment, when he was not charged with that offence.

[66] Watson contends that the offence creating-provision for robbery is s. 344 of the Criminal Code and that s. 343 of the Criminal Code is a definition section. He claims that s. 344 divides the offence of robbery into robbery simpliciter, which has no minimum punishment, and robbery using a firearm, which attracts a minimum sentence of four years’ imprisonment. He says that the higher form of robbery must be specifically pleaded and that any other result violates his right to be tried by a jury under s. 11(f) of the Charter. Watson submits that the trial judge’s error skewed the sentencing process and that absent a finding by the jury that he used a firearm during the offence, his sentence should be reduced to three years’ imprisonment.

[67] I do not accept this submission.

[68] Sections 343 and 344 of the Criminal Code as they read at the time the offences were allegedly committed, provided as follows:

343. Every one commits robbery who

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;

c) assaults any person with intent to steal from him; or

d) steals from any person while armed with an offensive weapon or imitation thereof.

344. Every person who commits robbery is guilty of an indictable offence and liable

a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

b) in any other case, to imprisonment for life.

[69] Unlike former s. 83 of the Criminal Code[^1], dealt with in McGuigan, in which use of a firearm was an essential element of the offence, s. 343 describes the single offence of robbery, which can be committed in a number of different ways. Use of a firearm is not an essential element of any of the ways described. Once an offence as described in s. 343 has been proven, the accused is, in the opening words of s. 344, guilty of “an indictable offence.” It is then for the trial judge to impose sentence in accordance with paragraph (a) or (b), depending on whether the trial judge finds that a firearm was used.

[70] Following a jury trial, the trial judge is entitled to make the finding of use of a firearm under s. 724 of the Criminal Code. Unless agreed upon, the trial judge must make any such finding on the basis of the standard of proof beyond a reasonable doubt: s. 724(3)(e). Because s. 344(a) addresses the punishment to be imposed, rather than proof of an offence, as with other aggravating factors on sentence, s. 11(f) of the Charter does not apply.

[71] Contrary to Watson’s submissions, R. v. D.(A.) (2003), 2003 BCCA 106, 173 C.C.C. (3d) 177 (B.C.C.A.), does not stand for the proposition that use of a firearm must be pleaded in the charging document before an accused can be sentenced under s. 344(a). At paragraph 30 of D.(A.), the court said,

The reference to s. 344(a) in the charge was unnecessary, in the sense that proof of the use of a firearm, as defined by s. 2, is not an essential element of the offence of robbery. Proof that a firearm was used is relevant to the question of sentence only. It is well established that non-essential averments in charges need not be strictly proved if there is no prejudice to the accused.”

[72] Although the court in D.(A.) also stated that the reference to s. 344(a) in the charge gave the appellant notice of the minimum sentence for robbery where a firearm is used, the court did not say that notice in the charge was mandatory. Here, there is no dispute that both appellants were aware that the Crown intended to seek the minimum sentence provided in s. 344(a).

[73] Although I would grant leave to appeal sentence, I would dismiss the sentence appeals.

IV. Disposition

[74] Based on the foregoing reasons, in relation to count 2, I would allow the appellants’ appeals, set aside the convictions and sentences, and order a new trial. In relation to count 1, I would dismiss the conviction appeals, grant leave to appeal sentence and dismiss the sentence appeals.

RELEASED: September 9, 2008 “MR”

“Janet Simmons J.A.”

“I agree M. Rosenberg J.A.”

“I agree C.M. Speyer J. (Ad Hoc)”

[^1] The relevant portions of s. 83(1) provided:

83. (1) Every one who uses a firearm

(a) while committing or attempting to commit an indictable offence

whether or not he causes or means to cause bodily harm to any person as a result thereof, is guilty of an indictable offence and is liable to imprisonment

(c) in the case of a first offence under this subsection, except as provided in paragraph (d), for not more than fourteen years and not less than one year;

In Krug v. The Queen (1985), 1985 CanLII 2 (SCC), 21 C.C.C. (3d) 193 (S.C.C.), the Supreme Court of Canada held that an accused could properly be convicted under both the predecessor to s. 343(d) of the Criminal Code and s. 83 without offending the Kienapple principle or s. 7 of the Charter. In relation to robbery, the court in Krug stated at p. 202 that by enacting s. 83, Parliament had “in substance…create[d] an aggravated form of robbery, to punish more severely an accused who uses a firearm in perpetrating that offence by imposing an additional penalty including a mandatory period of imprisonment.”

Parliament subsequently removed robbery and certain other indictable offences (e.g. manslaughter, aggravated sexual assault) from s. 85 of the Criminal Code (the successor to s. 83 of the Criminal Code), and enacted s. 344(a) and other similar provisions providing for minimum sentences where the aggravating factor of using a firearm while committing those offences is present: the Firearms Act, S.C. 1995, c. 39.

In R. v. Lapierre (1998), 1998 CanLII 13203 (QC CA), 123 C.C.C. (3d) 332 (Q.C.A.), the court commented that documents filed by the Attorney General of Canada in that case showed that, in relation to robbery, s. 85 did not meet its goal of constituting a separate deterrent measure to strongly discourage the use of firearms in the commission of crimes. This was because some judges applied the totality principle and reduced the sentence imposed for the main offence by the sentence required under s. 85.

While an accused is liable to an enhanced penalty under s. 344(a) for using a firearm while committing a robbery, the accused is no longer subject to conviction for an additional offence. In my view, the evolution of these provisions supports the view that in enacting s. 344(a) Parliament did not intend to create a separate offence.