WARNING

The court hearing this matter directs that the following notice 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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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.

112. 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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. D.A., 2019 ONCJ 216

DATE: 2019 03 26

COURT FILE No.: Brampton 3111 998 18 230Y

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

D.A. (A YOUNG PERSON)

Before Justice G.P. Renwick

Heard on 25 and 26 March 2019

Reasons for Judgment released on 26 March 2019

M. Morris................................................................................................ counsel for the Crown

L. Seetahal..................................................................... counsel for the young person D.A.

RENWICK J.:

INTRODUCTION

[1] The young person is charged with one count of possessing a weapon (an imitation firearm) for a dangerous purpose, contrary to section 88(1) of the Criminal Code.

[2] Initially, the young person brought a Charter application alleging that ss. 8, 9, 10(a), 10(b), and 11(a) were infringed when he was detained and arrested by the Peel Regional Police. At the close of the prosecution’s case, the young person asked to abandon the Charter application. Accordingly, that application was dismissed.

[3] The sole issue that remained for my determination is whether or not when D.A. possessed a loaded BB gun at a local community centre he did so for an unlawful purpose.

[4] The young person testified and denied that he possessed the BB gun for any unlawful purpose. Rather, he says, after having used it recreationally with his friend, they went to stop by the community centre briefly and that is why he had the item on him when he was detained by police who attended to investigate that a young person had told someone that he was in possession of a firearm.

[5] The prosecution relied upon the circumstances of the discovery of the BB gun and the young person’s statement to an arresting officer to prove the mens rea for this offence.

[6] I will discuss the law before turning to the evidence and my factual findings.

GENERAL LEGAL PRINCIPLES

[7] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt.[^1] Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of the offence charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the young person possessed the BB gun for an unlawful purpose, he will be acquitted of this charge.

[8] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities.[^2] If after considering all of the admissible evidence I am sure that the young person committed the alleged offence I must convict him, since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, than I have a reasonable doubt and an acquittal must follow.

[9] The evidence relied upon by the prosecution to prove the young person’s intention in possessing the BB gun is circumstantial. The young person’s testimony was direct evidence which may refute or raise a reasonable doubt about the circumstantial evidence of the young person’s mens rea. In order to be satisfied that the purpose has been proven to be unlawful beyond a reasonable doubt, in addition to rejecting the young person’s evidence (and not having a residual reasonable doubt about it), I must be satisfied that the unlawful purpose is the only reasonable inference available on the evidence.[^3]

[10] In assessing the case, I must consider the evidence cumulatively and as a whole. Given that each circumstantial piece of evidence may be insufficient on its own to support the required inference, I must consider all of the individual pieces of evidence together to determine whether the prosecution has met its burden.

[11] Respecting circumstantial evidence and other possible inferences besides that sought by the prosecution, the Supreme Court has held that:

the burden resting upon the Crown to establish the guilt of the accused beyond a reasonable doubt [does not include] the added burden of negativing every conjecture to which circumstantial evidence might give rise and which might be consistent with the innocence of the accused.[^4]

[12] That said, I must not reverse the onus of proof. The defendant need not offer alternative explanations for circumstantial evidence in order to raise a reasonable doubt. Where the defendant advances alternative inferences, they “must be reasonable, not just possible:” Villaroman, supra, at paras. 35 and 42.

[13] Respecting the mens rea of this offence, the law is well established. A charge of possession of a weapon for a purpose dangerous to the public peace requires a very careful instruction as to what constitutes the offence. Guidance is taken from R. v. Proverbs:

4 When the evidence is stripped to its bare essentials, the issue in this case was a very narrow one. That the accused had in his possession a weapon was not in issue. The issue was whether he possessed that weapon for a purpose dangerous to the public peace. That purpose must be determined at an instant of time which preceded the use of the weapon. The use of the weapon in a manner dangerous to the public peace does not constitute the offence although the formation of the unlawful purpose may be inferred from the circumstances in which the weapon was used.

5 In the case of Regina v. Flack, 1968 CanLII 812 (BC CA), [1969] 1 C.C.C. 55, Davey C.J.B.C. set out the following proposition at p. 56:

One of the elements of the offence is the purpose for which the person has or carries the weapon. When he has possession of the weapon lawfully, I do not think an unpremeditated use of the weapon out of sudden anger or annoyance for the forbidden purpose is enough to convert a lawful possession or carrying of it into an unlawful one within the meaning of the section. The formation of the unlawful purpose, which may be inferred from the circumstances in which the weapon is used, must precede its use. The interval of time between the formation of the purpose and the use of the weapon need not be long. It may in some cases be very short, but the gap must be significant.

6 In Regina v. Sulland, 1982 CanLII 495 (BC CA), 2 C.C.C. (3d) 68, Seaton J.A., in dealing with the constituent elements of this offence, stated at p. 72:

The Code does not prohibit instruments for self-defence and s. 85 should not be converted into such a prohibition. There are many other prohibitions in the Code. They focus on the weapon (for example s. 89) or the place it is taken (for example, s. 86), or the manner in which it is carried (for example, s. 87), or a combination of factors (for example, s. 88(2)). Section 85 is narrow; it focuses on purpose. It does not carry the weapons prohibition burden by itself. It is part of the group of prohibitions considered by parliament in the Criminal Law Amendment Act, 1976-77 (Can.). c.53.

I conclude that when the trial judge equated self-protection with a purpose dangerous to the public peace he erred.[^5]

[14] This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness says while testifying.

[15] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[16] Given the conflicting evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31. Justice Paciocco breaks down the W.(D.) principles into 5 propositions:

(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

(ii) If I believe evidence that is inconsistent with the guilt of the young person, I cannot convict the young person;

(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the young person, if I cannot decide whether that evidence is true, there is a reasonable doubt and the young person must be acquitted;

(iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(v) Even where I entirely disbelieve evidence inconsistent with guilt, the young person should not be convicted unless the evidence that is given credit proves the young person’s guilt beyond a reasonable doubt.

[17] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific pieces of the evidence. Although I may not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed the testimony of each witness for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and their ability to observe, recall, and communicate.

[18] I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to review my notes, listen to parts of the digital recordings of the proceedings, and to review the exhibits. I have thoroughly reviewed the evidence in this case and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I have come to no conclusions about any of the testimony I heard until all of the closing submissions were made and my review of the evidence was complete.

THE EVIDENCE AND FINDINGS OF FACT

[19] The prosecution lead evidence from the security guard at Century Gardens Community Centre (William Garland) and two police officers (tactical officer Edwin Mulder and uniform officer Edil Aden). The young person testified. There were no other witnesses called by either party. The BB gun became exhibit 2 in the trial.

[20] The security officer’s evidence was largely uncontroversial. He testified that another security guard had relayed to him hearsay information about someone indicating that they had a gun at the community centre. He maintained observations of the young person who had been spoken about and he called 9-1-1. Within minutes, many police officers arrived at the community centre and once he pointed out the young person, police took him into custody. I also heard the 9-1-1 call, which became exhibit 1.

[21] The security guard’s evidence was not contested by the young person’s evidence, nor was it undermined during cross-examination. It differed somewhat from the testimony of Constable Mulder respecting how the young person was initially dealt with and eventually taken into custody, but the differences do not cause me any concerns with the reliability of Mr. Garland’s evidence. Where his evidence differs from Constable Mulder’s, I prefer and accept the latter testimony as more complete, accurate, and reliable.

[22] Constable Mulder testified about his involvement in investigating the matter and dealing with the young person. Once the young person was pointed out to the officer, he told D.A. to sit down on the curb to exert some control over the young person and to gain an advantageous position over him for tactical reasons. The prosecutor led statements made by this officer during their interactions, but not for their substantive admissibility, only in terms of grounds for the officer’s search and seizure of the BB gun.

[23] During the cross-examination of the young person, everyone present seems to have forgotten that the prosecution had not sought nor was a ruling ever made that the utterances to Constable Mulder by the young person were substantively admissible or usable for any purpose beyond the abandoned Charter application. I am not relying on this evidence for any purpose, despite that no objection was taken to it at the time.

[24] There is no denying that the police faced a difficult and potentially dangerous situation at the community centre that evening. There were many by-standers, most of whom were likely minors, and they were responding to a call involving what was believed to be a firearm. The young person had a loaded BB gun shoved down the front of his pants. The BB gun itself is extremely realistic looking. In all of the circumstances, Constable Mulder responded professionally and appropriately for the safety of our community and bearing in mind that he was dealing with a young person who was cooperative and unthreatening.

[25] There is no issue taken by the young person that the BB gun is an imitation of a firearm. I accept Constable Mulder’s evidence that looking at the item, one would not be able to know whether or not it was a genuine firearm because of its markings, colouring, shape, and the impressive detailing of its design. In handling exhibit 2, the officer demonstrated the movement of the slide on the top of the gun, the pulling of the trigger, and the release of the magazine by depressing the button on the side of the handle. I noted in examining the item that the safety behind the trigger guard functions to prevent the trigger from being pulled even after racking the slide to engage the hammer. I accept the officer’s evidence that without touching the gun, to know that it is made of plastic, it is indistinguishable from an actual firearm.

[26] In terms of the item itself, there was little evidence about its firing characteristics and whether or not it could cause “serious bodily injury” or death, to be considered a firearm within the meaning of the Criminal Code. However, that matters not. By all appearances, this was a handgun that imitated a deadly weapon, and if it were possessed to threaten or harm someone, it would easily be a “weapon” within s. 88(1) of the Code.

[27] Constable Aden testified that she took control of the BB gun from Constable Mulder. As well, when she checked the item to “make it safe” she discovered that there was at least one pellet and possibly more in the gun, because she recalled that when she did this, several pellets fell out of the magazine for the BB gun onto her trunk. In cross-examination she could not say how many pellets she retrieved from the item versus how many came from the young person’s coat pocket, but I accept that part of her evidence that more than one pellet fell out of the gun onto her trunk, when she released the magazine from the gun. This evidence was not directly contradicted by the young person.

[28] He testified that he did not think any pellets were in the gun because it had stopped firing when he had used it on pop cans earlier in the day. I do not accept the young person’s evidence on this point. I will return to this, but suffice it to say that the young person’s credibility as a witness was entirely unsatisfactory in my view. Instead, I accept that the BB gun was loaded with at least two of the seven pellets recovered by the police. Constable Aden impressed me as a careful and truthful witness. Her evidence was plausible, consistent, and largely uncontradicted. It does not seem reasonable that a police officer would be easily mistaken about whether or not a gun, even a BB gun, was loaded. I believe her evidence that this BB gun had pellets capable of being discharged from it when the gun was given to her.

[29] Constable Aden also testified that the young person told her why he possessed the gun at the community centre as they drove back to the police station. She says he told her he carried it for his own safety. The young person accepted that he told the officer this, but in court he denied that this rationale was the reason he had it on him that day.

[30] This brings me to my review of the young person’s testimony. I remind myself that I cannot employ a higher degree of scrutiny toward the A.D.’s evidence because of his role in the proceedings. If anything, the opposite may well be required. I am aware that he is a young man and I should not demand the same level of precision, detail, and articulation of his observations and memories as an adult because this fails to recognize that children’s brains are not fully developed and they may not be able to recall and communicate things with the same degree of accuracy or organization of thought as an adult.

[31] The thrust of D.A.’s evidence was that he had been using the BB gun earlier that day to shoot pop cans at his friend’s house. When they were done, they hoped to meet up with some young women at the Century Gardens Community Centre before D.A. would go home. Because D.A. knew that children would be at the community centre and because he acknowledged that a BB gun can be dangerous he was well aware that he should not be bringing his gun to the community centre, but given that he only intended to meet up with the young women momentarily before heading home, this seemed like a better option than leaving the gun at his friend’s house.

[32] I accept this general overview of how the young person was initially in possession of the BB gun that day. I disagree with the young person’s explanation of why he had the BB gun at the community centre, but I will say more about this below. Generally, as a witness, the young person was not sophisticated, he appeared to be untruthful at many parts of his evidence, and his testimony was hollow.

[33] The young person did not appear to have any emotional content to the words he expressed. He certainly did not appear to believe what he conveyed. His answers to questions were simple and unadorned, but they were not plausible or consistent. Some examples will suffice.

[34] D.A. was clear in his evidence that leaving the BB gun at his friend’s house was not an option because of how it looks and what his friend’s parents might think if they discovered it. This evidence and the theory of innocent possession comes sharply into conflict with the evidence of how the young person chose to carry the gun, tucked into his shorts, down the front of his pants.

[35] The young person was not believable when he said that he was coming from his friend’s house, someone he had known for some time, who he only knew as Y.R., yet he could not say where it was he had been because he did not know where his friend lived.

[36] D.A. also seemed to downplay that he had smoked “weed” with his friend. As well, he initially said that he had smoked weed before shooting at the pop cans, and then within a couple of questions he reversed himself on this point.

[37] The most striking problem with the young person’s evidence was his testimony about when his friend had asked him if he was “strapped.” He initially told the prosecutor that his friend had asked him if he had the gun as they were walking [toward the community centre]. This begs the question why the friend with whom he had been shooting the BB gun would ask if he had the gun when they had just left the friend’s house. But this was not my only concern with this evidence. In re-examination, for the first time, the following evidence was given:[^6]

Q. What word did your friend use when he asked if you had the BB gun?

A. He said “strapped.”

Q. Were others around?

A. Yes.

Q. Were they part of the conversation with Y.R.?

A. No, not really. But they were close enough to hear what we were saying. But they were not part of it. I could see them. They kept looking at us for some reason. We were standing on the wall and they were beside us, a bunch of people.

[38] It is interesting to me that Y.R. apparently used a slang term for firearm that is used in many rap songs and movies. This slang was certainly not new to me. Apparently, Y.R. did not ask the young person if he had brought “it” or his “BB gun” with him. Also interesting, is that in this second version of when this conversation occurred, the young person, for the first time gives a possible explanation for how the security guards came to know that he possessed a “gun,” because the conversation was now outside the community centre, beside other people.

[39] I accept that the other young people gathered in the area were looking at the young person and Y.R., especially, once Y.R. and the young person made it known to them that D.A. was “strapped.” I do not accept the young person’s evidence that this was a private conversation. I reject the young person’s evidence on this point. He wanted the other young people to know that he was armed and together with Y.R., they communicated this in no uncertain terms.

[40] As a whole, the young person’s evidence lacked credulity and common sense. He says he did not want to stay long at the community centre, but he remained, even after the young women he had gone to meet had left, because he was hoping they would return. I do believe he was hoping that they would return, but not to walk them home as he suggested. More realistically, the young person wanted to use his BB gun to protect his friends from their aggressors.

[41] Also, the stated desire to leave the community centre quickly is undermined by the young person’s actions. This is certainly established once he has reason to wonder whether others have become aware of his gun given that they may have overheard Y.R. ask him about being strapped.

[42] The evidence of Mr. Garland was that the young person was just standing at the front doors waiting. This does not support D.A.’s evidence that he wanted to leave the community centre after a brief period of time. The young person remained at the entrance long enough for security to become involved, 9-1-1 to have been called, and for the arrival of the police. His explanation that he was waiting to decide if he wanted to call a taxi was not believed by me.

[43] I find as a fact that all of the circumstances lead to the conclusion that the young person remained at the community centre for a confrontation where he could brandish his BB gun to harm or threaten others, for the following reasons:

i. The BB gun was carried by the young person where he could conceal it;

ii. The BB gun was carried by the young person where he could retrieve it;

iii. The BB gun was loaded with at least two pellets;

iv. The BB gun was carried by the young person in a way that would be intimidating if it were seen or partially seen – I accept Officer Mulder’s evidence that it was shoved down the front of his pants and underwear and his pants were loose and hanging down;

v. The young person had a conversation about being “strapped;”

vi. The conversation about being strapped was had with the young person, Y.R., and other children in the area; and

vii. The young person remained at the front of the community centre to await the return of his friends in order to possibly confront the people with whom they had been arguing.

[44] The simple act of loading a gun may prove that the weapon was possessed for a dangerous purpose.[^7]

[45] In this case, the gun was not only loaded, but it was concealed and carried in a menacing way for quick access. It was referenced by the young person and Y.R. so that others would be fooled into accepting that it was a genuine and deadly weapon. There was nothing benign or innocent about the young person’s appearance at the community centre, with a loaded BB gun shoved down his pants, his intention to meet his friends, or the conversation about being armed.

[46] I reject the young person’s evidence completely with respect to the purpose of his possession of a BB gun. I am not left in any reasonable doubt about the purpose for which the young person possessed his loaded BB gun at the community centre that day.

[47] The BB gun was possessed as a weapon to use and intimidate others. Talking about it in front of other children makes that obvious.

[48] I have considered and rejected the other explanations given to explain the purpose for the possession of the BB gun and they are not reasonable in light of how the item was carried, the fact that it was loaded, the discussion about being “strapped” versus simply a discussion about a BB gun, and the manner of the young person’s sentry at the front of the community centre for an extended period of time.

CONCLUSION

[49] When all of the circumstantial pieces of evidence are added up, they lead to only one reasonable conclusion, D.A. was armed with a weapon for a purpose dangerous to the people outside the Century Gardens Community Centre that night.

[50] Accordingly, D.A. is guilty as charged.

Released: 26 March 2019

Justice G. Paul Renwick

[^1]: See R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] S.C.J. No. 77 at paras. 13, 14, 23, 26, 27, 30, 31, 33, 34, 36, 37, and 39.

[^2]: R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242.

[^3]: R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 at paras. 17, 18, 22, 26, 27, 29, 30, 31, 32, 34, 35, 36, 41, 42, 55, and 56.

[^4]: R. v. Paul, 1975 CanLII 185 (SCC), [1977] 1 S.C.R. 181 at p. 191. This statement of the law is expressly confirmed in Villaroman, supra, at para. 50.

[^5]: R. v. Proverbs, 1983 CanLII 3547 (ON CA), [1983] O.J. No. 155 (C.A.) at paras. 4-6 and 43.

[^6]: References taken are from my notes rather than the digital audio recording of the proceedings.

[^7]: Proverbs, supra, at p. 38.