WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2014-04-25

Court File No.: BARRIE 10-4547

Between:

Her Majesty the Queen

— and —

Abdul Mehraban and Ahmad Popalzay

Before: Justice C.M. Harpur

Heard on: May 2, 2012, March 1, 2013, December 12, 2013, January 21, 2014 & March 14, 2014

Committal Ruling Concerning Ahmad Popalzay and the Charge under s. 88 C.C.: Released on April 25, 2014

Counsel:

M. Villamil — counsel for the Crown

G. Logan — counsel for the defendant Ahmad Popalzay

HARPUR J.:

Overview and Issue

[1] Mr. Popalzay is charged with dangerous operation of a motor vehicle contrary to s. 249 C.C. and with possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88 C.C. The offences are alleged to have been committed in the morning of May 15, 2010 as Mr. Popalzay drove an automobile north on Highway 400 from Toronto accompanied by his brother Samir Popalzay ("Samir"). At the conclusion of the Crown's case on the final day of the preliminary inquiry on March 14, 2014, Mr. Logan for Mr. Popalzay conceded the existence on the record of evidence providing grounds for committal on the dangerous operation charge and consented to committal in that regard. Mr. Logan submits, however, that the Crown has not satisfied its onus of proof in this hearing in respect of the weapon possession charge and submits that the appropriate order concerning it is the discharge of Mr. Popalzay.

[2] Ms. Villamil for the Crown acknowledges the Crown's obligation concerning the weapon possession charge to adduce "evidence on which a reasonable jury, properly instructed, could return a verdict of guilty": R. v. Arcuri, [2001] S.C.R. 828; U.S.A. v. Sheppard, [1997] 2 S.C.R. 1067. The essential averments in the s. 88 charge are (i) possession (ii) of a weapon (iii) for a purpose dangerous to the public peace. The Crown says some evidence of each of these elements of the offence is before the court.

The Evidence

a. Mr. Cellupicca

[3] In her submissions, Ms. Villamil relied on the testimony of Crown witnesses Adriano Cellupicca and Robert Wild and on the statement given by Samir to the investigating officers on May 15, 2010 and made Exhibit 5. Samir's statement was the subject of an application by the Crown for admission pursuant to s. 540(7) C.C., an application I ultimately allowed for written reasons released January 21, 2014.

[4] It is not in dispute that Mr. Popalzay was the driver of a red Mitsubishi Eclipse car in which Samir was a passenger as the two drove north on Highway 400 in the early morning of May 15, 2010. Mr. Cellupicca, who was also driving north on Highway 400 that morning – he in a black sport utility vehicle – testified that he was involved in an altercation with the occupants of a red sports car, as well as with the occupants of a blue minivan apparently travelling with the sports car. With respect to the occupants of the sports car and the weapon charge, Mr. Cellupicca said that one of the occupants of the car emerged from it after stopping on the highway and that that person had something black tucked into the front of his waistband. Mr. Cellupicca said, in-chief:

MS. VILLAMIL: Q. Thank you. And, then you said at that point you did what?

A. And, then to left I could see, I don't remember exactly, but standing near the red car, what I saw looked like the butt end of a pistol sticking out of their pants. But, I had assumed that. I cannot clarify that that's what it was. I can verify the other thing was a pipe or a piece of wire, or some kind of club. But, like I said, I didn't stick around to see anything else. So, I got into the car that was to my right of me, I had been way further behind. So, I had enough room to go in between the minivan and that car and go around them, and then everybody else started to do the same thing.

and in cross-examination:

Q. So, you can't tell us whether or not anyone got out of the red car, that's fair?

A. I remember the door opening.

Q. Door opening. Okay. But, you never see it……

A. That's how I saw whoever was getting out, or was out, right? Remember, I'm scanning for a weapon. So, that's why I scanned. I saw something sticking out and I moved directly to where I can actually physically see either a weapon or a device.

Q. When you say moved directly, what do you mean?

A. Sorry?

Q. When you say moved directly, did you physically move somewhere?

A. No, my face, my scanning, right.

Q. Okay.

A. Okay.

Q. So, you see someone partially getting out of the red car, is that……

A. Yes.

Q. Okay. And, this is a person who you believe you saw something around the waist.

A. Not around the waist, tucked in the waist. See where your belt buckle is.

Q. Yeah.

A. Pretend that's something tucked in your belt, in between your belt buckle, your pants, and your shirt.

Q. Okay. But, apart from seeing something, you're clear in your evidence that it could have been a cell phone, it could have been anything, right?

A. It could have been anything. It was black. It looked like the butt end of anything. It could have been a club, it could have been a taser like I said, right. I was thinking.

Q. It could have been anything.

A. It definitely wasn't a flower.

b. Samir

[5] In his interview by the police on May 15, 2010, Samir said the following about the alleged weapon and the drive north with Mr. Popalzay:

PC: ….okay? So explain to me what sequence of events would lead up to me coming to look for your car for what we were told was a handgun today. Can you explain that?

SP: What was the question again?

PC: What is it…..

SP: Yeah.

PC: …that led up….that you think led up to us coming and looking for a hangun with the people that were in your car today? What would make me think today…or what would make someone think that there was a hangun in the car?

SP: Maybe it got pulled out.

PC: Maybe it got pulled out, and where maybe did that --.

SP: Not maybe I guess, uh, it did get pulled out, but…..

PC: Okay.

SP: ….to who it pointed I'm not sure who it was getting pointed at, but --.

PC: Okay, did you see this?

SP: Yes I did.

PC: Okay, and where was that?

SP: In the car.

PC: In the car. Okay, so there's two of you in the car.

SP: There is only two of us, yeah.

PC: Okay, and you didn't have the replica handgun?

SP: No.

PC: Okay. And it was being pointed at what?

SP: I'm not sure who it was getting pointed at, but I just saw it raised I guess.

PC: Raised.

SP: Mm-hmm.

PC: Raised like how, like up here, where?

SP: Like this maybe I guess, but it wasn't like…..it wasn't like pointed at someone like I'm gonna shoot you, you know, it wasn't pointed at someone, but maybe I think it just pulled out and went back in.

PCL: Okay, but --.

SP: (inaudible).

PCL: ….do you think that if I'm driving along,…..

SP: Mm.

PCL: …. Whether I would know, um, I mean the average person for that matter would know whether or not you're just pulling it out or pointing. What are the….what are they gonna see? They're gonna see it's just out so at that point whether it's being pointed or not pointing, I mean they're…..they're seeing….they're seeing a replica.

SP: Yeah.

PCL: Right? So do you not think that would be kind of scary?

SP: It is scary, yeah.

PCL: Okay, and who did that?

SP: My brother which was the driver.

PCL: So he did that?

SP: Mm-hmm.

[6] In his viva voce evidence, Samir indicated that, having attended with Mr. Popalzay at an automobile auction off Highway 400 near Innisfil following the drive, Mr. Popalzay told him to "go to the car and throw the toy gun away". Samir said he agreed to do so, went to the Eclipse, found the toy gun in a concealed place, and, instead of throwing it away, put it in his waistband. Samir said he had not handled the toy gun prior to fetching it from the car.

[7] It is to be noted that, in his viva voce evidence at the preliminary inquiry, as opposed to his statement to the police, Samir said he could not recall his brother's handling of the toy gun during their trip north on the highway. It is also noteworthy that Samir submitted a letter to the Crown following his first day of testimony denying that Mr. Popalzay had manipulated a toy gun during the trip.

c. Mr. Wild

[8] Mr. Wild was a sergeant with the Ontario Provincial Police in May of 2010. He testified about his activities in connection with the charges. It was he who confronted Samir at the auto auction. He said that he eventually seized from Samir a black, toy handgun. His description was the following:

I touched the outside of the jacket in the left pocket area and felt something hard at the belt line. I asked the male what it was and he did not respond. I reached inside his jacket and felt what felt like a gun butt sticking above the belt on his left side. I asked him "What's this", again, received no reply. I pulled out a small black pistol and arrested the male for possession of a dangerous weapon. As I turned him to face the hood of the cruiser, I called over to Constable Taylor. With his assistance, the male was handcuffed, and searched, and placed in the rear of my cruiser.

Mr. Popalzay was read his rights and cautioned by Constable Taylor from the pre-printed plastic card that I carried in my notebook at the time. The pistol seized was a toy. It was black, plastic, semi, semi automatic style. It would look similar to a 32 caliber Berretta from a distance. It is designed to fire small plastic beads at a Velcro target. They are commonly sold in dollar stores and flea market's as child's toys. The pistol is equipped with a clip. It comes out a pistol grip similar to a real handgun. The beads are loaded into the clip onto a string which is approximately the size of a spring you would find in a ballpoint pen, that is what provides the energy to shoot these little plastic beads.

Analysis

[9] On this record, Mr. Logan submits that no evidence has been adduced supporting a finding of intended use or use to threaten or intimidate. Thus, the defence says, since Mr. Wild's description of the toy gun clearly negatives "design for use" to cause death or injury or for the purpose of threatening or intimidating, the Crown has failed to establish that what Mr. Popalzay possessed in the car meets the definition of "weapon" in s. 2 C.C. Mr. Logan relies on what he says is this same lack of evidence about use or intended use in submitting that the Crown has also failed to establish possession which is "for a purpose dangerous to the public peace".

[10] I agree with Mr. Logan that, if one looked only to Mr. Cellupicca's evidence, the Crown would be hard-pressed to contend that there is some evidence supporting this charge. At its highest, that evidence is that Mr. Popalzay had an unidentified, black object tucked into the front of his waistband on emerging from the Eclipse. From this, a trier of fact could not, in my view, draw an inference either of what the object was or why it was there. This would not be a situation of an array of possible inferences one of which provides the Crown with some evidence. Something possessed by Mr. Popalzay "which could be anything", with a visible, black, butt end, remains too amorphous an object to offer any proof of a weapon.

[11] However, the Crown's evidence on the point does not stop with Mr. Cellupicca's testimony. In Samir's police statement, he said, in response to P.C. Lambert's question "what would make someone think there was a handgun in that car?", that Mr. Popalzay pulled out, raised and then put away the toy gun. Samir first said in the statement he was "not sure who [the toy gun] was pointed at" and then said that "it wasn't pointed at someone like I'm gonna shoot you". Samir agreed with P.C. Lambert's suggestion that a person travelling near the red sports car and looking at it would be seeing a replica of a gun and that "it would be scary".

[12] Mr. Wild provided a comprehensive description of the toy gun said by Samir to have been handled in the car by Mr. Popalzay. There was nothing amorphous about the object he described.

[13] Samir's viva voce evidence on the voir dire of not remembering anything about the handling of the toy gun in the car, and his letter to the Crown denying any handling of the toy gun, may or may not at a later stage of this proceeding serve to neutralize his statement to the police. However, at this stage, where the issue is committal, the record contains some evidence of what it was Mr. Popalzay was holding in the car and a manner of holding it which is at least consistent with the objective of intimidation.

[14] In the result, I am obliged to commit Mr. Popalzay for trial in the Superior Court on this count also.

Signed C.M. Harpur

Justice C.M. Harpur, O.C.J.

Released: April 25, 2014