R. v. Lourenco, 2011 ONCA 782

CITATION: R. v. Lourenco, 2011 ONCA 782

DATE: 20111213

DOCKET: C51848

COURT OF APPEAL FOR ONTARIO

Feldman and Armstrong JJ.A. and Himel J. (ad hoc)

BETWEEN

Her Majesty The Queen

Applicant

and

Christopher Lourenco

Respondent

Counsel:

Mark Halfyard, for the appellant

Nadia Thomas, for the respondent

Heard and released orally: December 5, 2011

On appeal from conviction entered by Justice John Hamilton of the Superior Court of Justice dated January 26, 2009 and sentence imposed dated April 17, 2009.

ENDORSEMENT

[1] The appellant was convicted of a number of offences arising out of two incidents on March 3, 2007 and March 9, 2007.

[2] The appellant attended at the new apartment of Ms. Emily Bell , a young woman with whom he had had a previous relationship. When they began to argue, she forced him out. Outside the door, he shot two shots from his .22 calibre gun into the door of the apartment above the peep hole. A few days later the appellant was on the phone with Emily and her sister and threatened to come over and kill them. The sister, Jennifer, then called 911, following which, the police attended at the appellant’s home. He was eventually arrested. Sometime later he tried to influence Emily not to come to court to testify.

[3] Following the appellant’s arrest, the police executed a search warrant at the appellant’s home and found a loaded .22 calibre gun, ammunition, a bullet proof vest, a quantity of crack cocaine, debt lists and drug paraphernalia. The appellant was convicted of a number of offences including discharge of a firearm with intent to endanger life, threatening death and various drug and firearm related offences.

[4] The appellant raises three grounds of appeal. The first two relate to the reasons of the trial judge and his failure to address the frailties in the evidence of the complainant, Emily Bell, particularly because she lied about letters that she had written to the appellant in jail that said that she had lied to the police. He also failed to consider inconsistencies within the evidence of Emily herself and with other witnesses, as well as any potential animus of the complainant. We would not give effect to these two grounds of appeal.

[5] In our view, based on the reasons for decision, as well as the trial judge’s colloquy with defence counsel, the record demonstrates that the trial judge was fully alive to all of the potential problems with Emily’s evidence but was satisfied that on the essential elements of the offence her evidence was reliable. There was also physical evidence of the gun shots in her apartment and further, when the appellant’s apartment was searched, the loaded .22 calibre gun and the bullet proof vest that Emily had seen on March 3, were found. In our view, the trial judge’s reasons were sufficient to show that he was alive to the issues and problems with Emily’s evidence. However, he was entitled to accept that evidence. We see no error on this ground.

[6] The third issue raised was the voluntariness of the statements the appellant made to the police when they came to his apartment in response to the 911 call. Two police officers attended. They did not caution the appellant before he made some derogatory statements about Emily and her sister. The statements made were corroborative of the evidence that supported the convictions for threatening death of the two women. They were not corroborative of or relevant to the other charges.

[7] In our view, the trial judge erred in law in ruling that the statements were voluntary when there was no caution and the second officer who was present was not called by the Crown to testify. Although a caution is not necessary depending on the circumstances, there was nothing in this case to bring home to the appellant that he did not have to speak and that there were potential adverse consequences to doing so: see R. v. E.B. 2011 ONCA 194, 2011 O.J. No. 1042 (C.A.) at paras. 88 and 91.

[8] As a result, we would allow the appeal in respect of Counts 7 and 8, threatening death to each complainant, set aside the convictions and the sentence on count 7 of six months’ concurrent, and order a new trial on those charges.

[9] The appeal is otherwise dismissed.

Signed: “K. Feldman J.A.”

“Armstrong J.A.”

“Himel J.