COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Andrade, 2015 ONCA 499

DATE: 20150706

DOCKET: C59097

Juriansz, Rouleau and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isidro Andrade

Appellant

Joseph Di Luca, for the appellant

Frank Au, for the respondent

Heard: May 8, 2015

On appeal from the conviction entered on January 30, 2014 by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting without a jury.

Hourigan J.A.:

INTRODUCTION

[1] The appellant was convicted of possession of an imitation weapon for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code, and use of an imitation firearm while committing an indictable offence, contrary to s. 85(2)(a) of the Code.

[2] The primary issue on appeal is the proper interpretation and application of s. 85(2) of the Code. Specifically, the issue is whether a conviction for possession of a weapon for a purpose dangerous to the public peace, commonly referred to as “weapons dangerous”, can constitute the predicate indictable offence necessary for a conviction under s. 85(2). The trial judge concluded that it could. For the reasons that follow, I have concluded that it cannot and that the appellant’s conviction under s. 85(2) must be set aside.

[3] The appellant also argued that the trial judge subjected his evidence to a higher degree of scrutiny than to the evidence of the Crown witness. As discussed below, I would not give effect to this ground of appeal. Consequently, I would dismiss the conviction appeal for the weapons dangerous count.

FACTS

[4] In the evening of June 17, 2011, the appellant was at a park in Toronto with his four-year-old daughter. The appellant claimed that a member of a group of young people in the park threw a glass bottle, which landed near his daughter. According to the appellant, when he approached the group one young man sliced the appellant’s arm with a small pocketknife while another stole a family heirloom gold chain from his neck. The appellant then left the park with his daughter and returned home, where he treated his injury but did not call police.

[5] Later that evening, the appellant and a friend drove to the convenience store across the street from the appellant’s apartment to buy cigarettes. When they arrived, there were four young people in the parking lot near the Pizza Pizza located next to the convenience store. The appellant claimed that he recognized the two young men in the group as the same individuals who had robbed him earlier that evening at the park.

[6] The appellant testified that he told the group he wanted his chain back. The appellant and the two young men walked towards each other. Footage from the Pizza Pizza surveillance camera showed the three men exchanging words and “bumping chests”. The appellant’s friend soon intervened and pushed the appellant backwards towards the convenience store. The verbal confrontation continued for about another minute, until the appellant and his friend entered the convenience store. The appellant claimed that throughout the confrontation he repeatedly requested that the young men return his necklace. The surveillance video showed that at one point during the conversation the appellant pointed in the direction of his apartment building across the street.

[7] After the appellant emerged from the convenience store, he again spoke to one of the young men, who was identified only by the name “Rudy”. The appellant testified that Rudy told him he would call his brother to retrieve the necklace and would return it to the appellant if he met him back at the park in a few minutes.

[8] Rudy did not testify at trial. The only member of the group of young people from the Pizza Pizza parking lot who cooperated with police and testified at trial was Jessica Putini. Ms. Putini denied that Rudy told the appellant he would give him his necklace if he returned to the park. Instead, she testified that the appellant told Rudy to meet him at his apartment building across the street, where the appellant would “have something” for him. The trial judge rejected the appellant’s account of this conversation and accepted Ms. Putini’s evidence.

[9] The appellant and his friend then left the parking lot in the friend’s vehicle. After they left, three more young men soon joined the four young people. About two and a half minutes after the appellant left the parking lot, he returned with a different friend. The pair walked directly towards the group of young people standing near the Pizza Pizza. The Pizza Pizza surveillance footage showed that soon after the appellant’s return something caused the three young men who had joined the initial group to flee in various directions.

[10] While there was no evidence to suggest precisely what caused the men to flee, the appellant and his friend entered the screen of the Pizza Pizza surveillance footage seconds after this occurred. The appellant speculated that the young men scattered in response to the appellant screaming that he wanted his necklace back. While the trial judge found it “difficult” to accept the appellant’s explanation, he concluded that it was not necessary to draw any factual conclusions about what caused the young men to flee.

[11] According to Ms. Putini, the appellant then continued walking towards the remaining young people. As he did so, he removed what Ms. Putini described as a silver handgun from the waistband of his pants. He held the handgun, which Ms. Putini believed was a real firearm, in his right hand and threatened to kill Rudy. Ms. Putini fled inside the Pizza Pizza and called 911.

[12] The appellant continued to move towards Rudy. The appellant claimed that during this interaction Rudy refused to return the stolen necklace and threatened to harm the appellant’s family. The appellant then swung his right arm in a punching motion and struck Rudy in the side of the head with the silver object. The surveillance video showed that the appellant then left the scene in the direction of his apartment.

DECISION BELOW

[13] The appellant was initially charged with three counts: possession of an imitation weapon for a purpose dangerous to the public peace, use of an imitation weapon while committing an indictable offence, and threatening death. He was not indicted on the threating death charge. The indictment was amended mid-trial in order to clarify that the predicate indictable offence under s. 85(2) was the weapons dangerous charge and not the threatening death charge.

[14] The appellant did not dispute that he was in possession of an imitation firearm on the night in question or that he struck Rudy as shown in the surveillance footage. Consequently, the key issue on the s. 88(1) charge was whether he possessed the imitation handgun “for a purpose dangerous to the public peace”.

[15] The trial judge noted that s. 88(1) is a “specific intent” offence requiring proof that the appellant’s subjective purpose in possessing the imitation handgun was objectively dangerous to the public peace.

[16] The appellant claimed that the imitation firearm was a cigarette lighter, which he carried with him on the day in question for the sole purpose of lighting his cigarettes. He testified that he did not plan or intend to use the imitation firearm. He claimed he reacted spontaneously when Rudy refused to return the stolen necklace and threatened the appellant’s family.

[17] The trial judge accepted Ms. Putini’s testimony that Rudy did not threaten the appellant or his family. He also rejected the appellant’s claim that he was carrying the imitation firearm to use as a cigarette lighter. Instead, the trial judge found that when the appellant returned to his apartment after the initial confrontation in the Pizza Pizza parking lot, he armed himself with an object that bore enough resemblance to a real firearm to scare all of the young people who saw it. The appellant did not have the imitation firearm with him throughout the entire day as he claimed. If he had, he presumably would have drawn the imitation firearm during the robbery at the park or during the initial confrontation with Rudy and his friends in the parking lot.

[18] The trial judge was satisfied that after the first confrontation in the parking lot the appellant decided to go to his apartment, retrieve the imitation firearm and return to the parking lot to confront the group of young people. In taking possession of the imitation firearm the appellant intended to use it as necessary during this second confrontation. The appellant was not acting in self-defence when he approached the group of young people with the imitation weapon and struck Rudy. He was simply angry, and had decided to use violence against the person who robbed him earlier that evening.

[19] The trial judge was satisfied beyond a reasonable doubt that the appellant subjectively intended to take possession of the imitation firearm for a purpose that was objectively dangerous to the public peace. The appellant had formed this subjective purpose while he was in his apartment. He then returned to the parking lot and used the imitation weapon to intimidate the group of young people and strike Rudy.

[20] The second issue was whether a conviction for possession of a weapon for a purpose dangerous to the public peace can constitute the predicate offence necessary for a conviction under s. 85(2) of the Code. Section 85(2)(a) provides that it is an offence to use an imitation firearm “while committing an indictable offence”. Pursuant to s. 85(4), the sentence for a conviction under s. 85 is to be served consecutively to the sentence for the predicate indictable offence.

[21] The trial judge rejected the appellant’s argument that a conviction under s. 88(1) could not give rise to a conviction under s. 85(2)(a). The trial judge noted that it is not necessary that an accused use a weapon in order to be convicted of possession for a purpose dangerous to the public peace; mere possession with the requisite intention is sufficient. This makes the weapons dangerous offence similar to other indictable offences, such as robbery, theft or sexual assault, which can be committed where the accused possessed a weapon but did not use it. A conviction under s. 85(2)(a) will only result where the accused not only possesses a weapon, but also uses it.

[22] The trial judge held that the appellant’s attempt to rely on the British Columbia Court of Appeal’s decision in R. v. Chang (1989), 1989 CanLII 2863 (BC CA), 50 C.C.C. (3d) 413 (B.C.C.A.), was based on an “erroneous understanding” of that case. The majority of the court in Chang quashed the appellant’s conviction for use of a firearm while committing the indictable offence of possession of a firearm for a purpose dangerous to the public peace. However, the trial judge distinguished Chang on the ground that there was no evidence that the accused in that case had “used” the firearm. Instead, Mr. Chang was acquitted on the various charges involving use of a firearm. Since “use” is an essential element of the offence set out in s. 85(2)(a), there was no basis for a conviction under this provision in Chang.

[23] In this case, however, the trial judge found that the appellant’s actions went beyond mere possession of the imitation firearm. The appellant “used” the imitation firearm by pulling it from his pants, striking Rudy, and intimidating the other young people in the parking lot. This violent use of the imitation firearm constituted the “something more” the B.C. Court of Appeal found is necessary to prove the offence under s. 85(2)(a): Chang, at p. 426.

[24] Since the appellant’s “use” of the imitation firearm occurred while he was committing the indictable offence of possessing a weapon for a purpose dangerous to the public peace, the trial judge convicted him under s. 88(1).

POSTIONS OF THE PARTIES

[25] The appellant makes two arguments on appeal. First, he submits that the offence of weapons dangerous cannot be the underlying offence grounding a conviction for use of an imitation firearm in the commission of an indictable offence under s. 85(2). According to the appellant, the use of the imitation weapon must facilitate the commission of the predicate indictable offence in order to give rise to a conviction under this section. On a charge of possessing an imitation weapon for a dangerous purpose, the offence is made out by the mere possession of the weapon with the requisite intent. Therefore, any use of the imitation weapon does not facilitate the commission of the offence. Second, the appellant argues that the trial judge erred by subjecting his evidence and the evidence of Ms. Putini to different levels of scrutiny.

[26] The Crown submits that the appellant was properly convicted under s. 85(2) because he committed an indictable offence (i.e. weapons dangerous), and he used an imitation firearm while doing so. Use is an essential element of the s. 85 offence, but it is not necessary that the predicate indictable offence have a use element. Further, the Crown argues that the trial judge did not apply different standards in assessing the evidence of the appellant and Ms. Putini. He scrutinized their evidence equally using common sense, and drew reasonable inferences based on the evidence from the surveillance cameras.

ISSUES

[27] There are two issues on the appeal:

(i) Did the trial judge err in his interpretation and application of s. 85(2)?

(ii) Did the trial judge subject the evidence of the appellant and Ms. Putini to different levels of scrutiny?

ANALYSIS

(i) Interpretation and Application of s. 85(2)

[28] Section 85(1) of the Code provides:

1. Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm,

(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (discharging firearm with intent), 244.2 (discharging firearm – recklessness), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage taking), 344 (robbery) or 346 (extortion).

[29] The offence of using a real or imitation firearm during the commission of an indictable offence requires a distinct conviction for the specified indictable offence: R. v. Pringle, 1989 CanLII 65 (SCC), [1989] 1 S.C.R. 1645, at p. 1654. For example, in the present case it is not sufficient that the evidence suggests the appellant could have potentially been convicted of assault or threatening death. There was no conviction on those potential charges, and, accordingly, the evidence that would support these charges is irrelevant to the s. 85 analysis.

[30] In my view, the crux of the issue between the parties is the meaning of the word “uses” in s. 85. Courts determine on a case-by-case basis whether the conduct alleged amounts to use of a firearm. However, it is well established in the case law that mere possession of a firearm is not sufficient to support a conviction under s. 85(2). Carrying a concealed firearm while committing an indictable offence does not constitute a “use” of a firearm: R. v. Steele, 2007 SCC 36, [2007] 3 S.C.R. 3, at paras. 25-28.

[31] In this case, the respondent submits the constituent elements of the offence are established beyond a reasonable doubt because the appellant was convicted of an indictable offence (i.e. weapons dangerous) and used an imitation firearm while committing that indictable offence (i.e. striking Rudy and intimidating other people at the scene). According to the Crown, there is no requirement on the wording of s. 85(2) that the predicate offence includes use as an essential element or that the use of the firearm facilitate the predicate offence.

[32] I accept the submission of the Crown that the appellant was engaged in more than mere passive possession of the imitation firearm. I also accept that the appellant used the imitation firearm while he was committing an indictable offence for which he was subsequently convicted.

[33] Where I part company with the Crown’s position is on the issue of whether the use of the weapon must facilitate the predicate offence. While it is accurate to say that the wording of the provision does not explicitly require facilitation, the Supreme Court has held that it does. Justice Fish explained the court’s interpretation of “uses” in Steele, at para. 32:

In the absence of a statutory definition, I would therefore hold that an offender “uses” a firearm, within the meaning of s. 85(1), where, to facilitate the commission of an offence or for purposes of escape, the offender reveals by words or conduct the actual presence or immediate availability of a firearm. The weapon must then be in the physical possession of the offender or readily at hand.

[34] This definition is consistent with the Supreme Court’s reasoning in Pringle. The use of the firearm must be connected to the commission of an indictable offence for which a conviction has been entered. If it were otherwise, an accused could be convicted under s. 85 for conduct that is merely coincidental to the commission of the indictable offence. This opens the door for prohibited convictions under s. 85 based on uncharged conduct or charges that do not result in conviction.

[35] The result in Chang is also consistent with this definition. In that case the accused was charged with attempted murder, assault, pointing a weapon, weapons dangerous, and using a firearm in the commission of an indictable offence. He was convicted of only the final two offences. Contrary to what the trial judge in the present case concluded in his analysis of Chang, there was evidence before the court that Mr. Chang “used” the weapon. Specifically, Mr. Chang had brandished his handgun. However, given the acquittals entered on the assault and pointing of a firearm counts, the B.C. Court of Appeal correctly concluded that the use of the weapon did not facilitate the commission of an indictable offence for which a conviction had been entered. Mr. Chang’s action in brandishing the firearm could not have facilitated the offence of possession for a purpose dangerous to the public peace. Consequently, there could be no conviction on the count of using a firearm in the commission of an indictable offence: Chang, at p. 427.

[36] Given the interpretation of “uses” in Steele, the question is whether the use of the firearm in this case facilitated the commission of the offence of weapons dangerous. To secure a conviction for weapons dangerous, the Crown must establish that the accused possessed a weapon and that the purpose of that possession was one dangerous to the public peace: R. v. Kerr, 2004 SCC 44, [2004] 2 S.C.R. 371, at para. 23. Therefore, the actus reus of the offence is made out on establishing beyond a reasonable doubt that the accused possessed the weapon. Of course the Crown must also establish that the accused had the requisite intention, as discussed above.

[37] I conclude that the trial judge erred in law in finding that the impugned conduct of the appellant (i.e. the use of the imitation weapon to beat Rudy and to intimidate others) constituted a use under s. 85. This use did not facilitate the commission of the predicate indictable offence, which was complete when the appellant took possession of the imitation weapon with the requisite intent. The trial judge found that this occurred when the appellant was still in his apartment, before he ever revealed the imitation firearm to the group of young people. Accordingly, I would set aside the conviction under s. 85(2).

(ii) Uneven Scrutiny of the Evidence

[38] The appellant also appeals his conviction under s. 88(1) on the ground that the trial judge glossed over important aspects of Ms. Putini’s testimony that warranted scrutiny while subjecting his evidence to close and critical scrutiny. For the reasons that follow, I do not accept this argument.

[39] The appellant acknowledges that it is difficult to succeed on an uneven scrutiny argument. As noted by Doherty J. in R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59:

This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge’s credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge applied different standard in assessing the evidence of the appellant and the complainant.

[40] The appellant submits that since the trial judge accepted his evidence regarding the confrontation in the park, Ms. Putini’s must have lied when she testified that Rudy and the other young men in the park had not robbed the appellant. However, it is not clear on the evidence whether Ms. Putini was in the park at the time of the incident. The appellant testified that the incident took place at approximately 6 or 7 p.m., while Ms. Putini testified that she was at the park between 9 and 11 p.m. The appellant also testified that he did not know if Ms. Putini had been in the park at the time of the robbery. It does not follow, therefore, that it was implicit in the trial judge’s findings that Ms. Putini lied about the park incident. It is possible that the robbery occurred before Ms. Putini joined her friends in the park.

[41] With regard to the appellant’s testimony, there were ample grounds for the trial judge to reject critical aspects of his evidence as incredible. For example, I see no error in the trial judge’s rejection of the appellant’s testimony that Rudy agreed to return the necklace to the appellant in the park across the street. It was clear that none of the parties made any effort to return to the park. It was open to the trial judge to reject this and other portions of the appellant’s testimony. His decision to do so was not the product of uneven scrutiny of the evidence.

DISPOSITION

[42] For the reasons above, I would set aside the conviction under s. 85(2) of the Code on the count of use of an imitation weapon while committing an indictable offence and would otherwise dismiss the appeal.

Released: July 6, 2015 “RGJ”

“C.W. Hourigan J.A.”

“I agree R.G. Juriansz J.A.”

“I agree Paul Rouleau J.A.”