Court of Appeal for Ontario

Date: 2018-11-22 Docket: C63887

Judges: Doherty, Rouleau and van Rensburg JJ.A.

Between

Her Majesty the Queen Appellant

and

Michael Bjornaa Respondent

Counsel

Katherine Beaudoin, for the appellant

Andrew Menchynski, for the respondent

Heard and Released Orally

November 15, 2018

Appeal

On appeal from the acquittals entered on May 12, 2017 by Justice Ian S. McMillan of the Superior Court of Justice.

Reasons for Decision

[1] The respondent was charged with several offences. One group of charges arose out of an alleged assault on Alex Gingras (the "Gingras" charges). The second group arose out of the shooting of Jayme Bellerose (the "Bellerose" charges). A co-accused, Bernie Nadon, pleaded guilty to some of the charges prior to the respondent's trial.

[2] The respondent's trial proceeded before a judge alone. At the end of the Crown's case, the respondent moved for a directed verdict on all charges. The trial judge directed acquittals on the "Gingras" charges. The trial proceeded on the "Bellerose" charges. The respondent chose not to call evidence. The trial judge found the respondent guilty on some of the "Bellerose" charges.

[3] The Crown appeals from the directed acquittals on the "Gingras" charges, arguing that the trial judge went beyond his limited authority on a directed verdict application and improperly assessed the credibility and reliability of the Crown witness Gingras.

[4] The respondent does not appeal from the convictions.

[5] Counsel for the respondent correctly concedes that the trial judge improperly assessed the reliability of the witness Gingras, in concluding that the respondent was entitled to a directed verdict on those charges. The respondent argues however, that the Crown's appeal should be dismissed.

[6] He submits that there was no evidence capable of supporting convictions on any of the three counts on which the trial judge directed acquittals. First, he argues that there was no evidence that the respondent broke into the residence and that consequently the directed verdict of acquittal on the break and enter count was correct. Second, the respondent submits that there was no evidence that he, either as a perpetrator or as aider and abetter, pointed a firearm at Mr. Gingras. The evidence revealed that the co-accused, Mr. Nadon, was the person who pointed the firearm at Mr. Gingras. The respondent argues that there is no evidence that he knew that Mr. Nadon had a firearm, and no evidence that he knew that Mr. Nadon pointed the firearm at Mr. Gingras, or that it was reasonably foreseeable that he would do so in the course of the altercation. Third, the respondent submits there is equally no evidence that he was party to any forcible confinement, either as an aider and abetter, or through s. 21(2).

[7] The respondent's alternative submission is as follows. He submits that this court can consider the trial judge's ultimate assessment of the evidence, in particular, the evidence of Mr. Gingras. He contends that it is crystal clear that had the trial judge not directed a verdict of acquittal, he would inevitably have rejected Mr. Gingras' evidence and acquitted the respondent on those counts at the end of the trial. The respondent argues that the Crown cannot demonstrate that the verdicts would not necessarily have been the same had the trial judge properly dismissed the motion for a directed verdict and proceeded to the end of the trial.

[8] We are satisfied that there was some evidence that the respondent and Nadon broke into the Gingras residence. Under the deeming provision in s. 350(b)(ii), Mr. Gingras' evidence provided a basis upon which a reasonable trier could find that the respondent and Nadon entered the home without invitation at the same time that another person left. That entry constitutes breaking and entering under the deeming provision.

[9] The submission that there was no evidence to support convictions on forcible confinement and pointing a firearm fails on a review of the totality of the evidence. There was a basis in the evidence upon which a reasonable trier could have found the respondent to be a party with Mr. Nadon to those offences, either as an aider or abetter, or under the common purpose provisions of s. 21(2).

[10] Turning to the "no substantial wrong" argument, counsel correctly acknowledges that this argument depends on the court accepting counsel's submission that it is clear from this record that the respondent would not have testified had the motion been dismissed.

[11] The court cannot assume that the respondent would not have testified. While in exceptional cases it may be that the trial record allows the court to come to that conclusion, this is not such a case. In fact, counsel's comments after the trial judge directed acquittals on the "Gingras" charges make it clear that the question of whether the respondent would testify may have depended on the trial judge's decision with respect to the directed verdict motion. We cannot say what the evidence would have been at the end of the trial had the trial judge properly refused to direct the verdicts of acquittal. This is enough for the Crown to meet its onus of showing that the result would not necessarily have been the same.

[12] The appeals are allowed, the acquittals are set aside and a new trial is ordered on those counts.

"Doherty J.A."

"Paul Rouleau J.A."

"K. van Rensburg J.A."