COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Innocent, 2012 ONCA 659
DATE: 20121001
DOCKET: C52116
Sharpe, Simmons and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Emmanuel Innocent
Appellant
Howard L. Krongold, for the appellant
James K. Stewart, for the respondent
Heard and released orally: September 26, 2012
On appeal from the conviction entered on January 20, 2008, and the sentence imposed on August 13, 2009 by Justice C. Hackland of the Superior Court of Justice.
ENDORSEMENT
[1] The appellant was convicted of several offences, including attempted murder, following a trial before a Superior Court Judge sitting without a jury. He was designated as a dangerous offender. He appeals both the conviction for attempted murder and the dangerous offender designation.
[2] It is undisputed that the appellant pointed a loaded handgun, a .38 revolver, at the head of a police officer. No one saw him pull the trigger of the revolver. However, the officer at whom the revolver was pointed, another police officer, Sgt. Fournier, and another witness all testified that they heard a loud click from which they concluded that the appellant had pulled the trigger. Shortly after this occurred, the appellant was arrested and the handgun was recovered. Five of the six chambers were loaded. The hammer of the handgun rested on the one empty chamber. That chamber would have been in the “11 o’clock” position before the gun was dry fired. The appellant was in possession of several other bullets that could have been used in the revolver.
[3] On appeal from conviction, the appellant raises two issues:
Did the trial judge err in law by failing to subject the testimony of Sgt. Fournier to adequate scrutiny?
Did the trial judge err in law by reversing the onus of proof?
Analysis
1. Did the trial judge err in law by failing to subject the testimony of Sgt. Fournier to adequate scrutiny?
[4] Sgt. Fournier testified that some years earlier she had used a firearm similar to that found in the possession of the appellant at the time of his arrest and from that experience she was convinced that the sound she heard was that of the revolver being dry fired. She claimed something approaching a photographic memory of the incident.
[5] As the trial judge put it at paragraph 16 of his reasons:
Sgt. Fournier testified that she was certain that the gun nearly touched Cst. Khan’s head and was aimed above his right eye. She described the sound she heard once the accused pointed the gun as a “distinct click of trigger hitting metal”. She was certain that the click which she heard was the sound of a dry firing .38 Colt revolver, a type of gun which she had once owned and had often dry fired (i.e. fired when not loaded).
[6] The appellant argues that her positive identification of the click as being the sound of handgun dry firing is subject to similar frailties encountered with respect to eyewitness identification evidence. He submits that the trial judge erred in law by failing to subject Sgt. Fournier’s evidence to the same scrutiny eyewitness identification evidence would attract.
[7] We are unable to accept this submission. We reject the analogy to eyewitness identification evidence. Experience has shown that type of evidence to have inherent dangers that are not replicated where a witness simply testifies as to what he or she heard or saw.
[8] Trial judges should, of course, subject all evidence to careful consideration and, reading his reasons as a whole, we are satisfied that the trial judge in this case subjected Sgt. Fournier’s evidence to the usual careful judicial scrutiny. He clearly did not treat her evidence as conclusive but rather considered it as one piece of a much larger pattern of evidence from which he was entitled to infer that the Crown had proved beyond a reasonable doubt that the appellant had pulled the trigger on the handgun he held to the officer’s head.
2. Did the trial judge err by reversing the onus of proof?
[9] The appellant submits that the trial judge erred in law by reversing the onus of proof when he found that the appellant had the requisite intent for attempted murder. This ground of appeal turns on paragraph 35 of the trial judge’s reasons:
In the present case, the accused’s revolver did not discharge when it was pointed at Cst. Khan’s head and the trigger pulled. I find that the reason for this was that there was an empty chamber (i.e. no bullet) in the firing position, which was observed when the revolver was recovered. The weapon was otherwise fully loaded. The accused did not testify. No other evidence explained why there was one empty chamber in the firing position. I decline to speculate as to why this occurred. The accused stated to Dr. Pallandi during an interview for the psychiatric assessment, that he kept one empty cylinder in the firing position so that the gun would not accidentally fire. This statement is unreliable and self-serving hearsay and is not admissible in evidence. In my opinion, the important point is that the revolver was a loaded fully operational firearm at the time of this incident.
[10] The appellant submits that the trial judge could have been left with a reasonable doubt on the issue of mens rea by the fact that the only empty chamber in the revolver was that in the 11 o’clock position and from the fact that the appellant had additional bullets in his possession. The appellant submits that by resting his decision on a refusal “to speculate”, the trial judge was effectively stating that it was incumbent upon the appellant to advance positive evidence as to his lack of intention to kill, thereby reversing the onus of proof.
[11] The appellant does not, however, argue that the conviction was unreasonable or that there was not sufficient evidence from which the trial judge could find beyond a reasonable doubt the requisite intent for attempted murder.
[12] We do not accept the submission that the trial judge reversed the onus of proof. While perhaps his reasons could have been more detailed on this point, at the end of the day, as conceded by the appellant, a finding of proof beyond a reasonable doubt on the issue of intent was clearly available on this evidence. As the trial judge stated in the final sentence of the paragraph quoted above, “the important point is that the revolver was a loaded fully operational firearm at the time of this incident.” We are satisfied that the trial judge considered the fact of the empty chamber at the 11 o’clock position but that he simply found that to be too thin a reed to give rise to a reasonable doubt. We are also satisfied that his conclusion that the Crown had proved guilt beyond a reasonable doubt rested upon the evidence that the Crown had presented and not the failure of the appellant to meet any legal onus of proof.
[13] Accordingly, we dismiss the appeal from conviction.
Sentence appeal
[14] We see no merit in the appeal from the dangerous offender designation. In our view, the trial judge applied the correct legal test and the evidence amply justified the finding he made.
[15] We grant leave to appeal sentence, but dismiss the sentence appeal.
“Robert J. Sharpe J.A.”
“Janet Simmons J.A.”
“Gloria Epstein J.A. ”