Court File and Parties

Ontario Court of Justice

Date: 2018-05-09

Court File No.: Ottawa 16-A13486

Between:

Her Majesty the Queen

— and —

Ziya Aeinechi

Before: Justice P. K. Doody

Heard on: April 17 and 18, 2018

Reasons for Judgment released on: May 9, 2018

Counsel:

• J. Fuller, counsel for the Crown
• J. Addelman, counsel for the accused

DOODY J.:

Part 1: Overview

[1] Ziya Aeinechi is charged with assaulting Arthur Decarie with an imitation weapon contrary to s. 267(a) of the Criminal Code; using an imitation firearm while attempting to commit an indictable offence of assault with an imitation firearm, contrary to s. 85(3) of the Criminal Code; and possession of an imitation weapon for the purpose of committing an offence contrary to s. 88(1) of the Criminal Code.

[2] The charges arise out of events on November 25, 2016, following an altercation between Matthew Decarie, Arthur Decarie's son, and a young man by the name of Curtis.

[3] The facts can be best understood by starting with a list of the individuals who were present at or played a role in the events of that night. They are as follows:

• Ziya Aeinechi, the accused;
• Curtis, a friend of the accused;
• Matthew Decarie (Matthew), who was 20 years old at the time of the events in question;
• Jose Bonilla (Jose), a friend of Matthew's who was approximately 22 years old at the time of the events;
• Robert Faulkner (Robert), a friend of the Decarie family who was approximately 30 years old at the time of the events;
• Arthur Decarie (Arthur), Matthew's father;
• Andrew Decarie (Andrew), Matthew's brother and Arthur's son;
• Gerry Decarie (Gerry), Arthur's brother who lived in the same apartment building as his brother Arthur and his family.

[4] The altercation between Matthew and Curtis took place in the parking lot beside the apartment building at 810 Pinecrest Road in which Matthew lived with his parents and his younger brother, Andrew. Following the altercation, Curtis and the accused drove away in a Dodge Caravan, with the accused driving. They were followed by a Nissan Altima driven by Robert in which Matthew and his friend Jose were passengers.

[5] Arthur placed a 911 call at 12:06 a.m. on November 25, 2016.

[6] The Crown and the accused have agreed on a number of facts. They include the following:

(a) a number of police officers were dispatched to a gun call at 810 Pinecrest Road;

(b) PC Stephan Kubiseski saw the Dodge Caravan and an Altima driving on Carling Avenue and followed the Caravan as it turned onto Burland Avenue, noting the van slowed down to take the turn;

(c) PC Kubiseski followed the van and activated his lights attempting to effect a traffic stop;

(d) the van continued on past Walter Street before eventually stopping at Scrivens Street;

(e) at 12:15 a.m., PC Virginia Martel arrived on scene at Scrivens and Walter, where PC Kubiseski had the Dodge Caravan pulled over; a high-risk takedown was conducted;

(f) the driver of the Caravan was the accused;

(g) PC Martel conducted a cursory search of the immediate area of the driver's seat, where the accused had been seated; she located an empty black magazine that was lying on the floor between the driver's seat and the door; there were no bullets or pellets in the magazine;

(h) PC Jennifer Harper arrived at the scene of the takedown at 12:15 a.m.; she was directed to Burland Avenue where Matthew, Robert, and Jose were located; she arrived in front of 77 Burland Avenue, where the three men pointed out a black object in the fresh snow in the driveway;

(i) PC Harper seized a black pellet gun at 1:00 a.m.; the pellet gun was lying on fresh snow in the driveway, and had no magazine in it;

(j) the pellet gun fit the magazine found in the Caravan;

(k) when examined by a firearms expert, the pellet gun was in 4 pieces: the slide, magazine, a spring, and the receiver;

(l) the pellet gun could not be reassembled – some interior pieces were missing and/or broken; it could not be test fired;

(m) the pellet gun would be considered a "replica firearm" as it resembles exactly or with near precision a known make/model of firearm – a Sig Sauer Model 1911 or a Colt Model 1911;

(n) the pellet gun is a "prohibited device" under s. 84(1) of the Criminal Code;

(o) the pellet gun is not a firearm as defined by s. 2 of the Criminal Code.

[7] The charges allege that as he was driving away from the apartment building after the assault, the accused put his hand out the window of the van, holding the pellet gun, and pointed it at Arthur, yelling "hey big guy". The issues are whether the Crown has proven this beyond a reasonable doubt, and whether it has proven beyond a reasonable doubt that the accused possessed the pellet gun for the purpose of committing an offence.

Part 2: The Evidence

(a) Arthur Decarie

[8] Arthur testified on Nov. 25, 2016 his son Matthew called him while Arthur was in the family home. He said Matthew told him that Curtis was coming to the apartment and wanted to fight him. Arthur testified that he told Matthew to go up to the apartment when he arrived. Arthur and his brother Gerry, who lived in a neighbouring apartment, went down to the front of the building.

[9] Arthur described Robert as a friend of the family. Curtis is Robert's cousin.

[10] Matthew arrived with Robert and Jose. Matthew got out of the car and he (Arthur) sent Matthew upstairs. Arthur could not recall if either Jose or Robert got out of the car.

[11] Arthur said Curtis arrived with another male and told Arthur that he wanted to fight Matthew. Arthur then called his son Andrew and told him to tell Matthew that if he wanted to fight Curtis to come on down. He said that he knew that Matthew and Curtis had had "a beef" for a little while and he wanted them to get it over with.

[12] He testified that Matthew and Andrew came down to the parking lot. He testified that Matthew punched Curtis in the face. Curtis fell to the ground. Curtis' friend (the accused) then said "why don't you try me?"

[13] Arthur testified that he then said "no" and told the accused that the fight was between Matthew and Curtis. Curtis and the accused then stumbled back to the van they had arrived in.

[14] He testified that his brother Gerry was trying to get the accused in the driver's seat. He, Arthur, was on the passenger side with Curtis. He testified that he (Arthur) said "let's go – that is enough". He said that Curtis and the accused were yelling. They drove off and, as they did so, the mirror on the driver's side struck his brother Gerry.

[15] He testified that after they had driven 20, 30, or 40 feet to the sidewalk in front of the building, they stopped. Arthur was with Andrew and Gerry walking to the front of the apartment building. Matthew yelled at Arthur "hey Dad turn around!" He did so and saw the accused pointing a handgun out of the van at him, saying "hey big guy". They ran into the building.

[16] He said he knew the words were directed at him. He was the biggest man there. The gun was not pointed at anyone else.

[17] He testified that the van was about 100 feet away from him at the time the gun was pointed at him. It was stopped, but still on the parking lot property. It was not yet on the street. Matthew was still with Robert at the parking lot at the side of the building.

[18] He testified that the sun was still up a bit. The street lights were not on. It was dusk, but with good visibility. In cross-examination, it was pointed out to him that he made the 911 call at 12:06 a.m., and it was totally dark out. He said he did not recall that, and did not think it was possible. He did not dispute, however, that the call was made at 12:06 a.m. when the transcript with that time was shown to him.

[19] He testified in cross-examination that at the time the accused and Curtis drove away, Robert and Jose were in Robert's car. Matthew was getting his shirt on. After the accused pointed the gun at him, Matthew got in the car and they pursued the van.

(b) Matthew Decarie

[20] Matthew was 20 years old at the time. He testified that, after the incident giving rise to these charges, he was in a bad motor vehicle accident. He suffered a brain injury. It has affected his memory. Consequently, he does not remember everything that happened that night.

[21] He was living with his mother, father, and his brother Andrew in an apartment at 810 Pinecrest on Nov. 25, 2016.

[22] He testified that Robert was his friend, and Curtis was Robert's cousin. He said that although he had a good relationship with Curtis in November 2016, he had a dispute with him because he (Matthew) had supposedly beaten up Curtis' brother.

[23] He remembered seeing Curtis the night of the incident, but did not recall seeing him before they were both at the side of his apartment building fighting. He said he had seen the accused around when they were both children, they had no mutual friends.

[24] He did not know how the fight with Curtis started. Although he did remember that they were there, he did not know where his father, his uncle Gerry, Jose or Robert were during the fight. He said that during the fight Curtis was "drunk and mad". He could not remember how the fight ended. He did not remember what happened after the fight.

(c) Jose Bonilla

[25] Jose was 22 years old at the time of the incident. He said he was a friend of Matthew's and of his brother Andrew.

[26] He testified that that evening, Robert was driving his car and he and Matthew were passengers. They had stopped earlier that evening at the College Square outdoor shopping mall. Curtis and the accused, who he had met once or twice before, were there. Curtis wanted to fight Matthew. Matthew told him he did not want to fight. Robert, Matthew and Jose left in Robert's car. Curtis and the accused followed in a van.

[27] They drove to Matthew's apartment building at 810 Pinecrest. When they got there, Curtis continued to try to get into a fight with Matthew. Eventually, the fight happened in the parking lot beside the building.

[28] In cross-examination, he testified that when they arrived, Matthew's father, Arthur, was there with his younger son Andrew. Curtis wanted to fight. Matthew continued to say that he did not want to. His father was discouraging him from fighting. Eventually, Curtis threw a punch at Matthew. Matthew stumbled but did not fall. He defended himself by fighting back. One of Matthew's punches connected, causing Curtis to slip on the ice. That ended the fight.

[29] Jose testified that he was standing beside a car during the fight. He thought Robert stayed in his car. Matthew's father and younger brother watched the fight. The fight ended when Curtis slipped on some ice and fell to the ground. Curtis then got up and apologized to Matthew. He and the accused went and got in the van they had arrived in. The accused got in the driver's seat. In cross-examination, he denied seeing Arthur and Gerry at the side of the van.

[30] He testified that he, Matthew, Arthur, and Andrew were walking back to the apartment building. As they were about to turn the corner to go into the doors, he turned around.

[31] The accused was just leaving the parking lot, still on the apartment building property. He was 10 to 12 feet away from them. He had his hand out the window with a gun in it. He pointed the gun at "everyone". He said the accused did not say anything. He had the gun out for about 10 seconds and then drove off.

[32] He testified that Matthew turned around after he did, and told his father what was happening.

[33] He said that he, Matthew, Arthur and Andrew went in the lobby of the apartment building. Arthur got his cellphone and called 911 while they were still in the lobby together.

[34] He got in Robert's car and they drove after the accused and Curtis. He said he could not recall if anyone else was in the car with them. Robert was driving and he was in the back seat. Robert was on a phone to Arthur and he told him to tell the police which direction they were headed. He testified that they caught up to the van because it had turned around and gone down another road right beside them. They saw police coming. He said he stuck his head out the window and directed the police toward the others' van.

[35] He testified that at the next intersection, where the van had turned, Robert stopped the car. He said that they stopped because they were on the phone with Arthur, who was on the phone with the police, and Arthur had been told to have them stop following the others. They sat there for a short time.

[36] He said that after a while they noticed that there was something in the snow off to the right – the gun that the accused had pointed at them. He said they concluded it was the gun because there was a trail in the snow behind the gun, making it noticeable that someone had thrown it there from the street. It was on the street on which they had followed the accused's van. He did not see the gun being thrown.

[37] They told the police about the gun they had seen.

[38] He testified that he then went back to Matthew's apartment to speak with him and Arthur. He denied protecting Matthew by saying he was not in the car with him and Robert when they were pursuing the accused's van. He said he was just testifying about what he remembered.

(d) Robert Faulkner

[39] Robert testified that he had been at a parking lot at the Deborah housing project earlier that evening. He was with Jose, Matthew, and another man by the name of Jordan. Curtis arrived with the accused. He said the mood was good. The group of them left the parking lot and went to the Tim Horton's at the College Square mall. Curtis and the accused were in their van. He testified that he saw no troubles or difficulties between Matthew and the accused at Tim Horton's.

[40] He said that they then went to Matthew's home on Pinecrest. He drove his own car, a black Altima, and Matthew drove his car in which Jose was a passenger. He recalled that after he arrived at the parking lot to Matthew's apartment building Curtis and the accused arrived.

[41] He testified that he paid no attention to what was happening. He was on Facebook on his phone. He did not recall seeing either Curtis or the accused getting out of the van in which they arrived or talking to Matthew, but said that he had not really been looking. He thought he recalled seeing Matthew, Jose, Arthur, Arthur's son Andrew and Arthur's brother Gerry but he could not recall where they were. He thought they were beside Matthew's car. He did not hear or see a fight.

[42] He said he stayed about 20 to 30 minutes and then left, and drove Jose back to the Deborah housing project. He did recall Arthur coming out and saying somebody was waving a gun around. He (Arthur) asked Robert to go look for Curtis and the accused. He said that he drove down Carling looking for them. He thought that maybe Matthew and Jose were in his car but he did not remember. He then recalled Matthew getting in his (Robert's) car, saying that Curtis and the accused pointed a gun at his father and had taken off. He then testified that he had no idea why Matthew wanted him to follow Curtis and the accused. He said that he thought Matthew was on his phone with his father "or something like that" and "they were talking to the cops and I can't remember if the cops said stop following them or what".

[43] He testified that after they saw Curtis and the accused going up Carling Avenue he did a U turn. Curtis and the accused turned around. He saw police cars stopped. He waited. He thought a police officer had come to see them. He went back to Arthur's, gave the police a statement, and went home.

[44] He testified that he never saw a gun or any weapon. He had a vague recollection of Matthew having seen it or talking to the police about a gun.

Analysis

(a) Assault with a Weapon

[45] The evidence of Robert and Matthew is of no value. Matthew can recall nothing significant. I have no reason to doubt his evidence that he was in a serious motor vehicle accident that affected his memory.

[46] Robert's lack of memory is a different matter. In my view, Robert was deliberately crafting his lack of memory out of a desire to avoid incriminating anyone – not his cousin Curtis, and not Matthew for fighting or for what else, if anything, happened that night. It is simply not credible that he did not notice or remember any significant event from that night. I do not believe his memory loss.

[47] But Robert's feigned lack of memory does not itself weaken the Crown's case. It just does not add to it.

[48] There remains the evidence of Arthur and Jose.

[49] There are significant discrepancies between them.

[50] Arthur testified that when Matthew, Jose, and Arthur arrived, he sent Matthew up to the apartment because he did not want him to fight Curtis. He said he only allowed him to come down to the parking lot because Curtis arrived and wanted to fight him and he decided it was a good idea for them to "get it over with", and that Matthew came down prepared to fight. Jose testified that when he and Matthew arrived, Arthur discouraged Matthew from fighting until Curtis threw the first punch – that Matthew was only defending himself.

[51] Arthur testified that after the fight, he went with Curtis to the passenger's side of Curtis' van and his brother Gerry went with the accused to the driver's side. He (Arthur) yelled at the two to go and, as they drove away, the driver's side mirror clipped Gerry. Jose testified that he saw Curtis and the accused get in the van, but did not see Arthur and Gerry at the side of the van.

[52] Arthur testified that the van was about 100 feet away from him when Matthew yelled "Hey Dad turn around", he turned to look, and saw the van stopped, the accused pointing what he thought was a gun at him, saying "hey big guy". Jose testified that the van was about 10 to 12 feet away from Matthew, Arthur and Andrew when the accused pointed the gun at "everyone", and that the accused did not say anything.

[53] Arthur testified that he was with Andrew and Gerry when the accused pointed the gun at him, that Jose was in Robert's car, and that Matthew was in the parking lot putting his shirt on. Jose testified that he, Matthew, Arthur, and Andrew were about to turn the corner to go in the front door of the apartment building when he turned around and saw the accused pointing the gun. Jose also testified that he and Matthew went into the lobby of the apartment building with Arthur and Andrew.

[54] Arthur testified that Matthew got in Robert's car (which Jose was already in) and it drove after the accused and Curtis. Jose testified that he could not recall if anyone else was in Robert's car other than him and Robert.

[55] Arthur was cross-examined about the 911 call he made. The following exchange occurred between Arthur and the 911 operator:

Operator: Tell whoever it is not to follow the vehicle. Who is it that's following them?

Arthur: Friend … my son's …. Well he's like a friend of ours of the family.

Operator: And your son is with them?

Arthur: No.

Operator: No?

Arthur: No.

[56] Arthur was asked why he had not told the police that Matthew was with the persons following the van. He replied that he had – that the transcript showed that he had answered the question "who is it that's following them" by telling the operator "friend and my son". He said that when he was specifically asked if his son was with them, he said no because he thought the operator was referring to his other son Andrew, who was not following Curtis and the accused.

[57] I do not accept this explanation. It is not consistent with what Arthur said to the operator. His son Matthew had been involved in a fight shortly before. It was his son who was most directly connected to the fight that had led to the two vehicles following each other. And it was his son Matthew who was in the van, as Arthur testified to and as can be inferred from the agreed fact that Matthew was with Robert and Jose in front of the driveway where the imitation gun was found. Arthur said, as the transcript shows, that "his son" was not with them. The obvious son for the question to be about was Matthew. He was the one who was with those who were following the van. I conclude that Arthur told the 911 operator that his son was not with them because he wanted to protect Matthew.

[58] The same theme runs through both Arthur's and Jose's evidence. Both of them consistently avoided blaming Matthew for any wrongdoing. In doing so, however, they testified to different facts. Arthur said that Matthew did not want to fight and when it happened, it was consensual. Jose said that Matthew was just defending himself. Arthur said that he and his brother Gerry escorted the accused and Curtis to the van but did not chase them. Jose said that Arthur and Gerry were never near the van when the accused and Curtis got back in it. Arthur said that Matthew was in the parking lot and nowhere near Robert's car when the accused and Curtis got back in it, leaving open the inference that Matthew was not involved in any decision to immediately chase them before they left. Jose's evidence that Matthew was going into the apartment building at that time allowed the same inference. And Jose testified that he did not recall Matthew being in Robert's car when it was chasing the van.

[59] I conclude that there is a realistic possibility that these two witnesses are intentionally misleading the court. It would be unsafe, in my view, to rely on their evidence to conclude that the Crown has established beyond a reasonable doubt that the accused pointed the imitation gun at Arthur.

[60] If they are willing to give false evidence to protect Matthew, they could be equally willing to give false evidence to condemn the accused, who was a friend of Curtis with whom Arthur testified his son Matthew had a longstanding "beef".

[61] My concern as to the possibility of them giving false evidence is exacerbated by the significant discrepancy between the evidence of each of them about the alleged pointing of the gun. Arthur testified the van was 100 feet away when the defendant pointed the gun at him; Jose said it was 10 feet away. Arthur said the defendant said "hey big guy"; Jose heard him say nothing, despite being only 10 feet away.

[62] The evidence about the finding of the gun does not quell my concerns. I have no difficulty in concluding that there was a gun in the van and that it was thrown out of the van into the snow on the driveway where it was found. That is consistent with the agreed facts, particularly when one considers that the magazine was found between the driver's seat and the door. That makes it a reasonable inference that the accused, who was in the driver's seat, threw the gun out of the car.

[63] I am not satisfied, however, that the accused threw the imitation gun out of the car because he had just pointed it at Arthur and wanted to get rid of it. The imitation gun was a replica firearm and a prohibited device under the Criminal Code. It would be a criminal offence for the accused to possess it without the appropriate licence, whether or not he threatened anyone with it. It is a reasonable possibility that he threw the gun out of the van because he saw the police cars ahead and did not want to be caught with it. This evidence does not corroborate the evidence of Arthur and Jose that the accused threatened Arthur with the imitation handgun.

[64] I am not satisfied beyond a reasonable doubt that the accused pointed the imitation handgun at Arthur. Counts 1 and 2 are dismissed.

(b) Possession of a Weapon for the Purpose of Committing an Offence

[65] Subsection 88(1) of the Criminal Code reads:

88 (1) Every person commits an offence who carries or possesses a weapon … for a purpose dangerous to the public peace or for the purpose of committing an offence.

[66] In R. v. Kerr, 2004 SCC 44, the Supreme Court of Canada discussed the elements of the offence of possession of a weapon for a purpose dangerous to the public peace. The judgment requires close reading, because there were four sets of reasons from the seven judges who heard the case. Six of the judges agreed that the defendant's acquittal by the trial judge should be restored, although each of their three sets of reasons were written or agreed to by only two judges. Binnie J. dissented.

[67] Major and Bastarache JJ. noted that s. 88:

seems to create two separate offences: (i) possession of a weapon "for a purpose dangerous to the public peace" and (ii) possession of a weapon "for the purpose of committing an offence". In this case, we are concerned only with the first of these offences.

[68] In my view, however, the principles outlined in the decision are applicable, with necessary modifications, to the second of those two offences, with which this case is concerned.

[69] The reasons of Major and Bastarache JJ. include the following propositions of law:

(a) a person's purpose may change from one which is not dangerous to one which is dangerous during the time that he possesses the weapon;

(b) the "purpose" of the defendant's possession of the weapon is determined by a hybrid subjective-objective test, by which the trier of fact must first determine the defendant's subjective intention and then determine whether that purpose was, in all the circumstances, dangerous to the public peace;

(c) in determining the defendant's subjective intention, the trier of fact is required to determine what object (or objects) the defendant knew would probably flow from his possession, whether he or she desired it (or them) or not – this is the defendant's "purpose" or subjective intention;

(d) the determination of the defendant's subjective purpose may involve consideration of objective indicia;

(e) while the use to which the weapon was put does not establish that the weapon was possessed for a purpose dangerous to the public peace, that use is one factor to be considered in making the objective determination of whether the weapon was in the defendant's possession for such a purpose.

[70] In their reasons, LeBel and Arbour JJ. differed from Major and Bastarache JJ. They were of the view that the mens rea of the offence was to be determined on a purely subjective basis. That having been said, however, they noted that the subjective purpose had to be determined from evidence from the defendant (if he or she testified) and all the other evidence.

[71] Fish and Deschamps JJ. held:

On a prosecution under s. 88, the relevant purpose is that of the accused. Any statement by the accused as to the purpose of the possession is therefore admissible and entitled to appropriate weight. It is not, however, conclusive. The court must consider all of the evidence, including the declared purpose, in determining the real purpose for which the accused had possession of the weapon at the relevant time. And the court, bearing in mind all of the circumstances, must then determine whether that purpose was "dangerous to the public peace" within the meaning of s. 88. [emphasis in original]

[72] I am not sure that, in practice, there is much of a distinction among these approaches. All require that the trier of fact consider all of the evidence to determine whether the defendant was in possession of the weapon for a purpose dangerous to the public peace. I would have thought that it would be rare that a trier of fact would be able to conclude that the Crown had proven beyond a reasonable doubt a subjective purpose which was different from the objective purpose. In any event, the reasons of four judges – LeBel, Arbour, Fish, and Deschamps JJ. – hold that the Crown must prove that the defendant had the necessary purpose, although that purpose could be proved by evidence other than the defendant's own evidence or statements as to his or her purpose in possessing the weapon. That is the normal way in which the intent or purpose of a defendant is regularly established for offences which require a subjective intent.

[73] Furthermore, the purpose must be determined at an instant of time which preceded the use of the weapon. (R. v. Proverbs, 9 C.C.C. (3d) 249 (Ont. C.A.))

[74] The charge before me is not of possession for a purpose dangerous to the public peace. It is of possession of a weapon for the purpose of committing an offence. I take from Kerr that what I am required to do is determine, from all the evidence, whether the Crown has proven beyond a reasonable doubt that:

(a) the defendant was in possession of the imitation handgun;

(b) it was an imitation of a "weapon" as that term is defined in the Criminal Code (i.e. "any thing used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person"); and

(c) he possessed it for the purpose of committing an offence.

[75] To the extent that the Crown relies on circumstantial evidence to prove the charge, I am required to consider whether the defendant's guilt is the only reasonable conclusion available on the totality of the evidence – that the evidence (or lack of evidence), in the light of human experience, excludes any other reasonable alternative. (R. v. Villaroman, 2016 SCC 33)

[76] The charge does not particularize the offence that the defendant is alleged to have intended to use the imitation handgun to commit. Consequently, the Crown does not have to prove that he possessed it to commit any particular offence. Any offence will do. But the intent to commit an offence is required. The Crown submitted that the defendant possessed the imitation gun for the purpose of committing an offence by threatening.

[77] Crown counsel submitted that, although the principle in Proverbs prevents me from making a finding of guilt on the basis that the defendant possessed the imitation firearm for the purpose of committing an assault during the period of time he pointed it at Arthur, I could use that assault to support a conclusion that the defendant possessed the imitation gun throughout the evening for that purpose. But I have determined that I cannot safely conclude that the defendant threatened anyone with the imitation firearm. Consequently, I cannot utilize the manner in which he used it to assist in determining his purpose for possessing it.

[78] Nor, in my view, can I use the fact that he threw it out of the van to assist in determining whether he possessed it for the purpose of committing an offence. The imitation gun did not work. It was not a weapon by itself. It was only an imitation of a weapon. The offences it is most likely to be used for (other than the offence of possessing a prohibited device without a licence) are those that involve threatening an individual. In my view, the mere fact of possessing the imitation gun, and of throwing it away, does not prove beyond a reasonable doubt that it was possessed for that purpose.

[79] Although I can, and do, conclude that the defendant threw the imitation handgun out of the van, that alone does not prove beyond a reasonable doubt that he possessed it for the purpose of committing an offence. As I have indicated, he may well have done so to avoid a conviction for possession of a prohibited device.

[80] The Crown has not proven that the defendant possessed the imitation handgun for the purpose of committing an offence. Count 3 is dismissed.

Released: May 9, 2018

Signed: Justice P. K. Doody