Court of Appeal for Ontario

Date: September 11, 2018 Docket: C63485

Judges: Lauwers, Pardu and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Ishmael Robinson Appellant

Counsel

Ishmael Robinson, acting in person Mark Halfyard, duty counsel Grace Choi, for the respondent

Heard: September 6, 2018

Appeal Information

On appeal from the conviction entered on February 22, 2017, and from the sentence imposed on February 27, 2017 by Justice Paul H. Reinhardt of the Ontario Court of Justice.

Reasons for Decision

Background

[1] Ishmael Robinson was convicted of a number of offences arising out of an altercation that occurred after Mr. Robinson purported to sell cocaine powder to an associate, Leonard Ford, who owed him money. The trial judge accepted most of Mr. Robinson's testimony but found Mr. Robinson's own account supported his convictions of robbery, breach of recognizance, breach of probation in failing to keep the peace, and possession of the proceeds of crime.

[2] The robbery conviction occurred despite the trial judge's conclusion that the Crown had failed to prove the specific allegation it had made that, when he stole the money, Mr. Robinson was armed with a firearm, thereby committing robbery contrary to Criminal Code, R.S.C. 1985, c. C-46, s. 343(d). Since Mr. Robinson admitted violence and theft in his testimony, the trial judge convicted him of "the lesser, included offence" of robbery contrary to s. 343(b).

[3] The trial judge then sentenced Mr. Robinson to a global sentence of 20 months in prison, and 2 years of probation. After 320 days of pre-sentence custody was credited at 1.5:1, Mr. Robinson's net sentence was 4 months in prison.

[4] Mr. Robinson now appeals both his conviction and sentence.

Grounds of Appeal

[5] With the able assistance of duty counsel, Mr. Robinson has abandoned the grounds of conviction appeal specified in his inmate's notice of appeal and now advances two grounds of conviction appeal, both limited to the robbery conviction. First, he contends that the trial judge erred in treating robbery by stealing with violence, contrary to s. 343(b), as an included offence in a charge of robbery by stealing while armed with a firearm, contrary to s. 343(d). Second, he urges that the trial judge erred by placing the onus on Mr. Robinson to prove his defence of self-defence.

Self-Defence and Burden of Proof

[6] It is convenient to begin with the second ground of appeal, the claim that the trial judge erred by placing the onus on Mr. Robinson to prove his defence of self-defence.

[7] It is settled if not trite law that where there is an air of reality to the defence of self-defence, the Crown bears the onus of disproving the defence beyond a reasonable doubt: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 39, 47.

[8] Although he did not advert to the air of reality test, it is evident that the trial judge, quite properly, proceeded on the basis there was an air of reality to the defence of self-defence in this case and analysed whether that defence had been made out.

[9] Mr. Robinson contends that when he analysed the defence of self-defence the trial judge misapplied the burden of proof. That contention rests on the fact that, without saying explicitly that the burden was on the Crown to disprove self-defence beyond a reasonable doubt, the trial judge said, at para. 166, he was "not satisfied with the defence evidence" on self-defence. He then said on two occasions that he was not satisfied that Mr. Ford had a gun: at paras. 168 and 172.

[10] We would not give effect to this ground of appeal, even though we recognize that the use of the term "not satisfied" is capable, in isolation, of suggesting that the defence was rejected improperly on the basis that the facts supporting the defence had not been affirmatively proven by the accused. In this case, when the decision is read as a whole, however, we are not persuaded that the trial judge's rejection of the defence of self-defence was improper. The trial judge noted, at para. 174:

Indeed, as I find by his own version of the event, he, Mr. Robinson was clearly the aggressor, at the A & C, [the location of the confrontation] and the purpose of his use of force was [to] recover a drug debt, to "rip-off" Mr. Ford for more money and to make his escape.

[11] It is manifest in his reasons that the trial judge was left in no doubt that the force used was not for the purpose of self-defence. This finding alone is fatal to the defence of self-defence. We would not, therefore, give effect to this ground of appeal.

Included Offence and Mode of Robbery

[12] We would, however, give effect to Mr. Robinson's other ground of conviction appeal. The Crown was correct to concede the error; one mode of robbery cannot be an included offence in a charge specifying another mode of robbery because s. 343 creates only one offence of robbery, with different ways of committing it. While the Crown need not allege a specific mode of robbery in the charge, where it does so, as here, the Crown must prove the mode of robbery it alleges: R. v. Johnson (1977), 35 C.C.C. (2d) 439 (B.C.C.A.), at pp. 460-61; R. v. Manley, 2011 ONCA 128, 269 C.C.C. (3d) 40.

Appellate Amendment of Charge

[13] The Crown asks us, nonetheless, to dismiss this ground of appeal by using our power to amend a count in the information pursuant to Criminal Code, s. 683(1)(g), or in the alternative, by finding that no miscarriage of justice occurred.

[14] We agree that the power to amend a count in an information or indictment on appeal provided by s. 683(1)(g) is broad: R. v. Irwin (1998), 38 O.R. (3d) 689 (C.A.), at pp. 693-94; R. v. Bidawi, 2018 ONCA 698, at para. 33. An appellate court has the discretion to amend the indictment or information to conform to the evidence at trial, including by substituting a different charge, unless it is of the opinion that the accused has been misled or prejudiced: R. v. Irwin, at p. 700; and see R. v. M.N., 2017 ONCA 434, 37 C.R. (7th) 418.

[15] This is not, however, an appropriate case for such an amendment because the Crown has not satisfied us that amending the alleged mode of robbery would not prejudice Mr. Robinson. Charged with robbery by stealing while armed with a firearm, he chose to testify and deny possession of a firearm. His evidence included admissions to using violence and taking the money held by Mr. Ford. In effect, by testifying in response to one charge, Mr. Robinson effectively admitted to the uncharged offence the Crown now wishes to hold him responsible for. In our view, in the circumstances of this case, to change the charge after he made the tactical decision to testify in response to the charge laid would be unfair.

[16] We do not accept the Crown's submission that, tactically, Mr. Robinson had no choice but to testify regardless of the charge, given the crush of circumstantial evidence that he caused the injuries to Mr. Ford. The offence charged when Mr. Robinson chose to testify carried a minimum sentence of five years, pursuant to Criminal Code, s. 344(a). That minimum sentence would operate as a powerful incentive for Mr. Robinson to testify and deny possession of the firearm. That compelling tactical incentive to testify would not have been present had he initially been charged with robbery by stealing with violence. We can have no confidence that Mr. Robinson would have made the same choice had he not been at risk of a mandatory minimum sentence.

[17] Since we are not satisfied that Mr. Robinson was not prejudiced by the functional amendment to the information that occurred when the trial judge convicted him of an uncharged offence, the Crown's invitation to find that no miscarriage of justice occurred must also be refused. The robbery conviction cannot stand.

Substituted Conviction

[18] We would, however, pursuant to Criminal Code, s. 686(3), substitute a verdict of guilty of the offence of theft under $5,000 contrary to Criminal Code, s. 334(b). This offence is included in the allegation made against Mr. Robinson in the robbery count that he "did steal" from Mr. Ford, since Criminal Code, s. 2 defines steal as meaning "to commit theft": Fergusson v. The Queen, [1962] S.C.R. 229, at p. 233.

Sentencing

[19] Mr. Robinson does not press the general appeal of sentence included in his inmate's notice of appeal but he has asked us, through duty counsel, to substitute a different sentence to reflect that he now stands convicted of theft and not robbery. Since Mr. Robinson has already served the custodial portion of his sentence we have not been asked to disturb that disposition. Mr. Robinson asks only that we terminate the remainder of his two year probationary sentence. The Crown does not oppose this request.

Disposition

[20] We therefore dismiss Mr. Robinson's appeal in accordance with Criminal Code, s. 686(1)(b)(i), set aside the verdict of guilty of the offence of robbery, and substitute a verdict of guilty of theft under $5,000 contrary to Criminal Code, s. 334(b).

[21] We also grant leave to appeal the sentence, and vary the probationary terms imposed on counts 1, 4, 15, and 16 on information 16-45001442, from 2 years concurrent, to a concurrent term of probation expiring on September 6, 2018.

"P. Lauwers J.A."

"G. Pardu J.A."

"David M. Paciocco J.A."