WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Halton, Y222/12

Ontario Court of Justice

Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Between:

Her Majesty the Queen

— And —

R.H., a young person

Before: Justice L.M. Baldwin

Heard: April 8, 2013

Reasons for Judgment Released: June 17, 2013

Counsel:

• Mr. Dibski, for the Crown
• Mr. Gibson, counsel for the defendant R.H.

BALDWIN J.:

Charges

[1] R.H. (dob […], 1997) pled not guilty at trial to 3 counts as follows:

(1) That on or about the 12th day of June 2012, at the Town of Halton Hills, he had in his possession an imitation weapon to wit: a replica Smith and Wesson MP-40 for a purpose dangerous to the public peace, contrary to Section 88(1) of the Criminal Code;

(2) On the same day, he pointed a firearm to wit: a replica Smith and Wesson MP-40 at A.G. contrary to Section 87 of the Criminal Code;

(3) On the same day, he verbally uttered a threat to Z.H. to cause death to A.G. contrary to Section 264.1(1)(a) of the Criminal Code.

[2] At the conclusion of this 5 witness trial, I registered findings of guilt on the point firearm and utter death threat counts with reasons to follow today. I reserved on the weapons dangerous count.

Admissions at Trial

(1) The gun is an air gun that is a replica of a Smith and Wesson MP-40 hand gun, which is the same handgun used by the Halton Regional Police. The gun meets the definition of a firearm under the Criminal Code. The gun is made out of metal and has substantial weight to it as if it were a real firearm. The gun has the Smith and Wesson markings on it;

(2) R.H. had it with him at school in his back pack;

(3) R.H. took the gun out of his back pack in the presence of A.G. and C.K. in the locker room;

(4) R.H. was angry at A.G. when he later spoke to Z.H.

Summary of the Evidence of A.G.

[3] A.G. (dob […], 1997) was 15 years of age when he testified at trial.

[4] June 12, 2012 was a school day. A.G. attended Christ the King Secondary School in Georgetown.

[5] He had gym class at approximately 1 p.m.

[6] A.G. was in the change room with his friend C.K. and R.H. All the boys had this gym class together. It was just the three of them in the change room when the events in question transpired.

[7] A.G. had no prior dispute with R.H. He did not see him outside of school.

[8] A.G. testified that he first noticed that R.H. was chewing tobacco. A.G. and C.K. were sitting down and in the process of getting changed for class.

[9] R.H. said "look what we have" and then he pulled out the gun from his school bag. (Transcript p. 8)

[10] A.G. testified that the gun was black and silver and it looked like it was made of metal.

[11] R.H. had the gun out of the bag for approximately five minutes. (p. 14)

[12] A.G. testified that R.H. was waving the gun around in front of his face and C.K.'s face. R.H. had his hand on the trigger of the gun at the time. R.H. swiped the gun past C.K.'s face. R.H. pointed the gun directly at him (A.G.).

[13] A.G. denied the suggestion that R.H. held the gun with his hand on the barrel in cross-examination. (p. 16) A.G. denied the defence suggestion that R.H. merely was showing them the gun.

[14] A.G. asked R.H. if the gun was real and R.H. said that it was. This made A.G. nervous.

[15] R.H. was about a foot away from him at the time.

[16] "…he (R.H.) was standing in front of me while I was sitting down and I just saw him with his finger on the trigger in front of my face, so I said that the gun was cool and tried not to be nervous about it." (p. 10)

[17] The gun was pointed at his face for about five seconds. It was inches away from his face. (p. 15)

[18] A.G. testified that R.H.'s mood was changing while they were in the room. "One minute he would be happy and the next minute, he'd be like upset and he was mad at something." (p. 8)

[19] A.G. thought that R.H. was "high" and noted that his eyes were bloodshot.

[20] R.H. put the gun back in his bag and left the room.

[21] A.G. and C.K. locked the door and tried to figure out what to do.

[22] A.G. and C.K. opened the bag to look at the gun to see if it was real. They concluded it was real and left the room to report the matter to their gym teacher.

Summary of the Evidence of C.K.

[23] Fifteen-year-old C.K. testified that on June 12th at about 1:20 p.m., he was in the change room with A.G. and R.H. getting ready for gym class.

[24] C.K. had never had any problems with R.H. in the past.

[25] R.H. took chewing tobacco out of his bag and began to chew.

[26] R.H. said "look what I got guys". (p. 20)

[27] Then R.H. took out a solid black gun and was waving it around in the change room and pointed it at A.G.. In cross-examination, C.K. testified that R.H. waved the gun past A.G.'s face. (p. 26)

[28] C.K. believed that R.H. was under the influence of drugs. R.H. looked "spacey", "out of it", "high". C.K. could smell drugs coming off R.H.. (p. 26)

[29] After R.H. left the room, he and A.G. checked R.H.'s bag. He saw a bong that smelled "skunky" – like marijuana. (p. 19)

[30] The gun was solid black, metal and heavy. (p. 20)

[31] R.H. had the gun out of his bag for approximately 20 to 30 seconds. He put it back into his bag and left the room.

[32] C.K. and A.G. locked the door to the room and checked the gym bag. They decided the gun appeared to be real and they reported it to the gym teacher.

[33] C.K. testified that while he was waiting to give his report at the school office, he received a phone call from Z.H. Z.H. told him not to go anywhere near the Superstore because R.H. was very mad and upset about what occurred earlier and said that he's "going to kill A.G.". (p. 22)

[34] In cross-examination, C.K. denied the suggestion that R.H. was holding the gun by the barrel. He denied the suggestion that R.H. was simply showing the gun.

Summary of the Evidence of G.M. (Adult Witness)

[35] Mr. M. was the vice principal at the C.K. High School in 2012. On June 12 between 1:15 and 1:30 he received a report concerning this incident.

[36] R.H. was brought to the office with his belongings from the change room.

[37] Inside of R.H.'s back pack was the replica gun, some ammunition for the gun, a large bong, chewing tobacco, and other personal belongings.

[38] Mr. M. testified that he believed R.H. was under the influence of some narcotic when he dealt with him that day.

[39] "His eyes were very red and glossy…I could definitely smell marijuana, but I also had possession of the bong, which also smelled". (p. 30)

[40] Arrangements were made for Mr. H.'s father and the police to attend the school. Before either arrived, R.H. left the school without permission.

[41] When R.H. left the school he was angry at Mr. M.

Summary of the Evidence of Z.H.

[42] Z.H. (dob […], 1997) was 15 years of age when he testified at this trial.

[43] Z.H. was in the same gym class as R.H., A.G. and C.K.. He left school after the class was over.

[44] As he was leaving he saw R.H. right beside the school near the Superstore.

[45] R.H. came up to him and asked who had told on him. "And I said I wasn't too sure, but I think it was A.G. And then, he said that he wanted to strangle A.G. and that he wanted to beat the shit out of him". (pp. 34, 35)

[46] A.G. was angry at the time.

[47] Z.H. walked away and called C.K. to warn him and A.G. not to go near R.H. because he did not want them to be hurt. He called C.K. because he did not have A.G.'s cell phone number.

Summary of the Evidence of R.H.

[48] R.H. is presently 16 years of age.

[49] R.H. testified that the day before these events, he was out in the forest with his friends shooting pop cans with the gun and smoking marijuana.

[50] R.H. testified that on June 12th he got up late and missed his first three classes of school. He decided to go to his fourth class which was gym. He forgot that the gun and the bong were in his bag from the day before.

[51] He walked into the change room and put in some chewing tobacco. Everyone left the change room except A.G. and C.K.

[52] "And I say, 'hey, look what I got'. I go into my bag and I pull out the BB gun. A.G. I think, was standing on my left and C.K. was standing on my right". (p. 40)

[53] R.H. testified that he picked the gun up by the barrel and showed both sides of the gun for about 30 seconds. Then he put it back into his bag.

[54] "And as I was leaving – I'm not sure who – one of them asked me if it was real and how much it cost, to which I said, 'Naw, and a hundred dollars…or, Naw, dropped a hundie on it'". (pp. 40, 55)

[55] R.H. explained why he pulled out the gun as follows: "I thought it would be something cool to show them. Like, hey, look at what I got; isn't this cool. And I thought they would share my enthusiasm, but it was really stupid". (p. 41)

[56] R.H. denied being under the influence of drugs at the time. He denied being in an angry mood. He was excited showing the boys the gun because he thought it was cool.

[57] He walked out of the change room and went to gym class.

[58] The gym teacher called him over to sit next to him and noticed that he was chewing tobacco. He was told to go spit it out and return to class.

[59] On his way back to the class the gym teacher and Mr. M. called him over. "They asked what I had in my bag and I told them I had a BB gun and a bong". (p. 42)

[60] He went to the office and was told that the police would not be called; that he would be suspended for 20 days or expelled. He was told that his father had been called and would be attending the school when he was done working.

[61] "And then they just told me to wait in this little room and I was waiting in this little room. And there's only 10 days left of school and he already told me that I was going to be suspended for 20 or expelled and the police wouldn't be called. So I was just like, why am I sitting here? Like what's the point of me waiting for dad to come pick me up in two hours and just sitting in this little room? So I left and that's when I walked…in-between the Superstore and the school". (p. 42)

[62] This is where everyone goes to smoke cigarettes. He saw Z.H. there and told him what happened. He was fairly upset at this point but not "completely livid". (p. 43)

[63] He told Z.H. that someone had snitched on him, ratted him out, and told the school that he had a BB gun in his bag. He asked Z.H. if he knew who had told the school. Z.H. did not know, but said it might have been A.G.

[64] "And yeah, I was calling him profanities and like saying, yeah, A.G. is a piece of shit. They're like assholes, but – I didn't threaten him". (p. 42)

[65] "…if I said anything along the lines of strangled in describing how angry I was and told him…I could strangle somebody, I never made a threat towards A.G. or C.K.

[66] R.H. testified that the gun was not loaded. It had no BBs and there was no CO2 in it either. And the BBs that Mr. M. said he found were for a different pellet gun that his friend was using the day before. "So they couldn't even have gone in if I wanted them to because they wouldn't even fit". (p. 44)

[67] R.H. testified that he was expelled from the school. He studies at the T.M. Learning Centre in Oakville. He is not working.

[68] In cross-examination R.H. testified that he knew that the gun looked like a real firearm. (p. 46) He knew that when he decided to pull it out of his bag in the locker room and show it off. He thought A.G. and C.K. would think it was cool because it was interesting. (p. 48)

[69] R.H. agreed that A.G. and C.K. would think he was showing them a real gun. (p. 49)

[70] R.H. denied that he waved the gun around. R.H. denied pointing the gun at A.G.'s face.

[71] R.H. agreed that he was angry in the vice principal's office.

[72] R.H. agreed that he was angry when he spoke to Z.H. after leaving the school.

[73] He thought that A.G. and C.K. should have just ignored or turned a blind eye to seeing the gun in the locker room. (p. 51) He repeated that he thought that A.G. and C.K. would find him pulling out a gun to be 'cool or interesting'. He did not think they would be scared. He did not think it was that big of a deal at the time.

[74] R.H. also did not think it was a big deal to go to gym class chewing tobacco at the time. He thought it might have been "a little bit cheeky".

[75] R.H. adamantly denied that he was stoned or under the influence of any drugs on June 12th at the school.

Position of the Parties

Defence

[76] With respect to the point firearm count, the defence submits that the Crown has failed to prove beyond a reasonable doubt that R.H. pointed the firearm at A.G.

[77] R.H. denies it. A.G. and C.K. give different time estimates for how long the gun was out of the bag: A.G. estimated five minutes; C.K. estimated 20 to 30 seconds. A.G. testified that the gun was waved past C.K.'s face. C.K. did not testify that the gun was waved past his face.

[78] The defence submits that because A.G. and C.K. saw what they believed to be a real gun they were understandably scared. They are mistaken about the gun being waved around or pointed at A.G.'s face.

[79] With respect to the weapons dangerous count, the defence submits that the Crown has failed to prove that R.H.'s possession of the firearm was for a purpose dangerous to the public peace. The defence points to the fact that there was no prior animus between the parties; R.H.'s testimony that he had the gun in his school bag through inadvertence; R.H.'s testimony that he was showing off the gun because he thought it was cool.

[80] The defence relies upon the case of R. v. Cassidy, [1989] 2 S.C.R. 345 in support of the submission that spontaneous use of a weapon is not evidence of the prior purpose for which it was possessed.

[81] With respect to the utter death threat count, the defence submits that Z.H.'s memory of the exact words spoken is unreliable given the passage of time. Although Z.H. recalls for sure hearing R.H. use the word "strangle" that this could be consistent with R.H.'s denial of threatening anyone in particular. R.H. has testified that if he did say the word "strangle" it was in reference to him being so angry that he could strangle somebody.

[82] The defence submits that there is inconsistent evidence concerning whether R.H. appeared to be under the influence of drugs on the day in question. A.G., C.K. and Mr. M. all made observations consistent with impairment by drugs. Z.H. did not make any observations of impairment. R.H. has denied being under the influence of drugs on the day in question.

Crown

[83] The Crown submits that the Court should accept the evidence of the independent and unbiased adult witness, vice principal Mr. M., in concluding that on the day in question R.H. was stoned on drugs. His observations are consistent with A.G.'s and C.K.'s observations in this regard.

[84] The Crown submits that if the Court makes this finding, it affects the reliability of all of R.H.'s evidence as to what transpired on June 12th with respect to how he used the gun and what words he spoke.

[85] The Crown submits that on the accused's own evidence, the purpose he had this gun was to get stoned and shoot it, which he had done the previous evening. The Crown submits that this is sufficient to find he had the gun for a dangerous purpose.

[86] Further, the Crown submits, that even if R.H. absentmindedly took the gun to school the next day, once he realized that it was in his bag, he made a conscious choice to take it out and show it to the two boys in the change room. The Crown submits that pulling out a firearm in a school setting is clearly a breach of the public peace and is an action that constitutes possession for a purpose dangerous to the public peace.

[87] The Crown relies upon the case of R. v. Kerr, 2004 SCC 44, [2004] 2 S.C.R. 371 at page 2:

The question is what object the accused knew would probably flow from his possession, regardless of whether he desired it or not. Subsequently, the trier of facts must determine objectively whether that purpose was, in all the circumstances, dangerous to the public peace. There is no exhaustive test for dangerousness because of the wide variety of settings and circumstances in which danger may arise. In Section 88, the concept of "public peace" refers generally to a state of order or to the normal state of society, but violence is not always and without exception a danger to the public peace.

[88] The Crown submits that by pulling out a real looking firearm, in a school setting, in front of two students, while under the influence of drugs, R.H. engaged in the use of a weapon that was a clear danger to the public peace. The Crown references the well-known mass school shootings in the Columbine massacre in support of this submission.

[89] With respect to the point firearm count, the Crown submits that they have proven that the gun was intentionally pointed at A.G. This was not a case of just showing a gun in the change room.

[90] The Crown submits that the fact that A.G. thought the gun was out of the bag for longer than C.K. estimated was because the gun was pointed right at A.G.'s face. A.G. testified that he was scared, which would explain why the incident seemed to take longer for him.

[91] The Crown submits that they have established the utter death threat count beyond a reasonable doubt. Z.H. was also an unbiased witness, as were A.G. and C.K. None of the boys had any prior bad dealings with R.H. before this day. Z.H. is clear that R.H. made verbal threats to strangle and beat the shit out of A.G. and he was very angry when he spoke these words. Z.H. was concerned and called C.K. so that he and A.G. would be forewarned and not hurt.

Analysis

[92] I have applied the three-prong test in R. v. W.D. in assessing the reliability, accuracy and truth of the evidence heard.

[93] On the last day, I made a finding of fact that R.H. was under the influence of drugs on June 12th, 2012 at the school.

[94] When those drugs were consumed is unknown. R.H. could have consumed drugs throughout the evening and early morning hours which would explain why he slept in and missed three of his four classes that day. There is no doubt in the evidence that his consumption was recent to the events. He smelled of marijuana. The bong in his bag smelled of marijuana. A.G. concluded R.H. was high on drugs because he noted bloodshot eyes and mood swings. C.K. concluded that R.H. was under the influence of drugs and described R.H.'s appearance as "spacey, out-of-it, high". Mr. M. concluded R.H. was under the influence of drugs and observed very red and glossy eyes and he smelled marijuana coming from R.H. and on the bong. Z.H. was only in R.H.'s presence briefly that day. At that time, Z.H. was observing R.H. in a scary state of anger.

[95] None of the Crown witnesses observed R.H. to be in a calm and normal state that day. I reject R.H.'s evidence that he was not under the influence of drugs on June 12th. This finding affects the reliability of all of his evidence with respect to how he used the gun in the school and what he said to Z.H. about his intention to harm A.G.

[96] I conclude that R.H. was reckless, arrogant, defiant, and distorted in his sense of entitlement and empowerment to do anything he pleased on the day in question. Examples include the following: sleeping in and missing all his classes except for gym class; coming to school while under the influence of drugs; bringing a firearm and bong to school in his school bag; chewing tobacco before and during the gym class; pulling out a firearm knowing A.G. and C.K. would think it was real; holding it with finger on the trigger to further show how cool it was and how very cool he was; pointing the gun mere inches from A.G.'s face; stashing the gun back in the bag as if nothing of concern had just occurred and attending class; being angry when sent to the principal's office believing in his distorted thinking that he had been betrayed and ratted-out for nothing important; leaving the office after being told to remain until his father arrived; going to the smoking area and approaching Z.H. and venting his rage at being ratted out to the authorities; uttering a threat to strangle and beat the shit out of A.G.

[97] It is for these reasons that I stated at the end of last day's evidence that the facts in this case disturb me.

[98] I found R.H. guilty beyond a reasonable doubt of pointing a firearm and uttering a death threat last day. I accept the submissions of the Crown as summarized above.

Weapons Dangerous

[99] In this case, possession is not in issue. The sole issue is with respect to purpose.

[100] Referencing R. v. Kerr, supra, per Justices Arbour and LeBel at page 3:

Under s. 88(1), an accused's subjective purpose must be one that is dangerous to the public peace. To avoid importing an objective element into a purely subjective approach, the concept of a "purpose dangerous to the public peace" needs to be given concrete content. Within the meaning of s. 88(1), it is the possession of a weapon with the intention of doing harm to persons or property, or showing reckless disregard for harm to persons or property. Section 88(1) does not require actual use of the weapon, but does require possession of a weapon coupled with an additional intention.

[101] As noted in Kerr, a person's intent does not necessarily remain constant and may change with respect to purpose. "There must be, at some point, a meeting of the elements of possession and of a purpose dangerous to the public peace." (p. 11)

[102] The Court must consider all the relevant circumstances in determining what the purpose is, including the nature of the weapon, the circumstances under which the accused had it in his possession, his own explanation for that possession, and the use to which he actually put it.

[103] In the case before me, I have considered R.H.'s explanation for having the firearm in his possession. He originally had it the night before to shoot pop cans in the forest while smoking marijuana with "friends". He left it in his school bag and recklessly brought it into the school. Once he discovered it was in there, he took it out and proudly displayed it to two students in the change room.

[104] I find as a fact that he held the gun with his finger on the trigger, waved it about and pointed it at A.G.'s face. R.H. used the gun in this manner knowing that A.G. and C.K. would think it was a real gun. R.H. gave no thought to whether his actions would scare them. He wanted A.G. and C.K. to share his "enthusiasm" with the risk-taking and danger he created. If they did not share his "enthusiasm", he expected them to ignore his actions.

[105] His stated intention was to appear "cool". I conclude that his possession of the firearm in all the circumstances was not "cool", nor was it "interesting", it was dangerous.

[106] I am satisfied beyond a reasonable doubt that, while under the influence of drugs, R.H. engaged in reckless disregard for the harm his actions would cause to persons or property by using a firearm in a school.

[107] Accordingly a finding of guilt is registered on the weapons dangerous count.

Sufficiency of Reasons for Judgment

During the course of this trial, all of the witnesses' evidence, Exhibits filed, and submissions made, have been carefully reviewed and assessed. It is not necessary or reasonable for me to review all of the evidence in any more detail than I have in these focused reasons for judgment. It must be understood that busy trial court Judges must deliver both oral and written reasons in hundreds of trial matters every year and we are required to do so in a timely fashion. Judgment writing time is not factored into trial time estimates. The OCJ Judges do not get judgment writing weeks like the SCJ Judges have. In Halton, the fastest growing Region in Canada, judgment time is being eroded by the increasing trial case load and the pile up of long, split-up trial continuations.

This Court is aware of appellant authority governing the sufficiency of reasons by trial Courts and has been guided accordingly. See R. v. S. (T.), [2012] ONCA 289; R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. Drabinsky, [2011] 107 O.R. (3d) 595 (OCA); R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.

Released: June 17, 2013

Signed: "Justice L.M. Baldwin"