COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moore, 2012 ONCA 770

DATE: 20121109

DOCKET: C53043

Simmons, Armstrong and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jerome Moore

Respondent

Nadia Thomas, for the appellant

Craig Bottomley and Chris Sewrattan, for the respondent

Heard and released orally: November 2, 2012

On appeal from the acquittal, dated November 17, 2010, by Justice Julie Thorburn of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] After a trial on a multi-count indictment before a judge of the Superior Court of Justice sitting without a jury, the respondent was acquitted on a count that alleged that he “did, while armed with a firearm, to wit: a handgun, rob Steve Howland, contrary to Section 344 of the Criminal Code.”

[2] The basis upon which the trial judge acquitted the respondent appears in the penultimate paragraph of her reasons for judgment. There the trial judge said:

[66] I am not however, satisfied beyond a reasonable doubt that on February 2, 2009, Mr. Moore was carrying a handgun or that he pointed it at Mr. Howland. While I do not doubt Mr. Howland’s sincerity, he is not familiar with guns and saw and heard something only fleetingly. Out of great fear for his safety, he quickly turned his head away from Mr. Moore toward the window. As such, I am not satisfied beyond a reasonable doubt that Mr. Moore was armed or that he pointed a handgun at Mr. Howland.

[3] The Crown appeals the respondent’s acquittal and alleges two errors of law:

i. that the trial judge erred in law in considering that use of a firearm was an essential element in the offence of robbery failing proof of which the respondent must be acquitted; and

ii. that the trial judge erred in law in considering the offence with which the respondent was charged as “armed robbery”.

[4] The respondent acknowledges that s. 344 of the Criminal Code does not create the offence of “armed robbery”. Rather, the inclusion of the words “while armed with a firearm, to wit: a handgun” is for the purpose of putting the respondent on notice that, if convicted of a robbery and satisfactory proof is made of the use of a firearm, he will be subject to a minimum punishment of four years imprisonment.

[5] The respondent acknowledges further that

i. s. 343 of the Criminal Code creates the offence of robbery and defines the four ways that the offence may be committed; and

ii. the Criminal Code does not create an offence of “armed robbery” as the trial judge erroneously believed.

[6] The Criminal Code does not, in fact, create an offence of armed robbery. Section 343 of the Criminal Code creates the offence of robbery and describes the four ways in which robbery may be committed. A count that charges robbery and refers to s. 344, the punishment provision, does not specify a particular mode of committing robbery nor limit the basis upon which the Crown may prove the substantive offence of robbery.

[7] On the indictment in this case, it was open to the Crown to prove the respondent’s guilt of robbery under any definition of that offence in s. 343. To engage the minimum punishment provisions of s. 344 in the circumstances of this case, however, the Crown was required to prove, as a matter of sentence, that the respondent used the firearm in the commission of the robbery within any definition of s. 343. See R. v. D. (A.) (2003), 2003 BCCA 106, 173 C.C.C. (3d) 177 (B.C.C.A.), at paras. 29-31; and R. v. Watson, 2008 ONCA 614, at paras. 68-72.

[8] In our view, the trial judge erred in law in acquitting the respondent of robbery, the offence with which he was charged in count 1 of the indictment. The error consisted of requiring proof of the respondent’s use of a firearm as an essential element of the offence, thus a condition precedent to a conviction of robbery. It follows that the acquittal of robbery must be set aside.

[9] The Crown invites us to substitute a conviction for robbery in place of the acquittal. We may only do so under s. 686(4)(b)(ii) of the Criminal Code if the trial judge’s findings of fact, viewed in the light of the prevailing jurisprudence, support a conviction beyond a reasonable doubt, see R. v. Katigbak (2011), 2011 SCC 48, 276 C.C.C. (3d) 1 (S.C.C.), at para. 50.

[10] In our view, this is not a case in which it is appropriate to set aside the respondent’s acquittal of robbery and substitute a conviction for that offence. Reading the reasons for judgment as a whole as we must, we simply cannot say that the trial judge made the findings of fact essential for us to enter a finding of guilt and conviction of robbery.

[11] The appeal from acquittal is allowed and a new trial ordered. It will be up to the Crown to determine whether it is in the interests of justice to proceed with a new trial in light of the remaining convictions and the sentences imposed on those convictions.

“Janet Simmons J.A.”

“Robert P. Armstrong J.A.”

“David Watt J.A.”