Her Majesty the Queen v. Robert Jordan McDonald-Cole, 2021 ONCJ 376

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 07 14 COURT FILE No.: Central East - Newmarket 4911-998-20-04689-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ROBERT JORDAN MCDONALD-COLE

Before: Justice P.N. Bourque

Heard on: June 2, 3 and 30, 2021 Reasons for Judgment released on: July 14, 2021

Counsel: M. Rumble, for the Crown D. Diab, for the defendant Robert McDonald-Cole

BOURQUE J.:

Overview

[1] The defendant is charged with possession of an imitation firearm while committing an indictable offence and of possession of ammunition, contrary to a weapons prohibition order.

CROWN EVIDENCE

I. Justin Joyce

[2] …is a young man who lived alone in a basement apartment. He would often have people come to stay with him. He said that in June 2019 a man named “JAY OR ROBERT OR JORDAN”, came and stayed for several days and notwithstanding the witness’s requests, he would not leave.

[3] He stated that this person had a silver gun and would often carry it and wave it around and would take it apart and re-assemble it. He stated that he tried to hide it above the witness’s stove. He stated that he saw the witness with bullets and a clip for the gun.

[4] On one occasion the witness used some cocaine which was the defendant’s. The defendant afterwards asked the witness for $50 to pay for the cocaine that he used. The witness said he had no money.

[5] On June 18, 2019, the witness stated that the defendant was asking him for the $50 and was waiving the gun around and sometimes putting it on a table. The witness stated that the defendant stated, “If I don’t get it something is going to happen” and the witness did not like how that sounded.

[6] The witness became frightened. He felt that he could be killed, and because he did not have a phone at the time, he went out and down the street two doors to his landlord’s house and called 911 from there.

[7] He identified the defendant in court.

[8] The witness was vigorously cross-examined. It was revealed that the witness suffers from schizophrenia but denied suffering hallucinations and kept it under control with medication. He admitted to some drug use but indicated in that period of about 3 days he had some cocaine from the defendant and perhaps a drink. The witness denied that he had not slept but admitted tiredness. The witness denied being the owner of the gun that he described and denied that his allegations were lies.

[9] The witness was played portions of his interview with the police.

[10] The witness can be seen (when he is left alone in the room) often smiling and sometimes laughing. He is sometimes breathing heavily through his nose. He blew his nose very heavily several times at one point. When asked about this he said he had the flu, although when asked earlier if he was ill, he denied

[11] When asked by the defence the witness denied that he was hallucinating during these periods. The witness also denied that he had ingested a large quantity of drugs that evening. The defence put to him that he had a bad relationship with his landlord. The witness did not deny that. The defence put to him that at that time he wanted to get the defendant out of his house. The witness did not deny that. The defence suggested that he made up this story and went to the landlord because he wanted to avoid paying the defendant for the drugs he had gotten from the defendant. The witness denied this.

II. MICHAEL WILSON

[12] ...is a YRP uniformed officer and arrived at the scene along with several other officers. He described that the basement apartment at 25 Hill St., Newmarket, was accessed by a side door off a driveway. He describes that a man was brought out of the door by the ERU officers, and they removed from the rear waistband of his trousers a gun. The gun was handed to this officer and he “safed it” and removed a bullet from the chamber and removed an ammo clip (with several rounds in it) and placed all these items on the driveway to await the identification officer. The officer then took custody of the man and took him to 1 District.

III. MEGHAN THERORET

[13] ….is a civilian employee of the YRP and she was detailed to photograph and assist (along with PC ROSENTHAL) the retrieval of the gun and ancillary items for identification. Several photographs of the scene and the weapon, a single bullet and a magazine clip were filed as exhibits.

IV. MIKE ROSENTHAL

[14] …is a YRP officer who attended that evening. He was positioned so he could see the door to the basement apartment. The ERU opened the door and called down to the person inside and asked him to come up. The person came up and he was arrested by the ERU. The officer took custody of the man. Officer Wilson had already removed the gun from the person and had placed it on the driveway. After the arrest he identified the man as the defendant by the means of a valid driver’s licence in the name of the defendant, and the officer satisfied himself that the picture on the ID was a likeness of the man being arrested. The officer then attended at the driveway where the firearm, the clip and one bullet were being photographed by MEGHAN THERORET.

[15] The officer then saw to the bagging and tagging of the exhibits and their placing in the storage at 1 Division.

V. MIKE KAMSTRA

[16] …was a Det. Csl. with the YRP and was their firearms officer. After a voir dire, I allowed him to give expert testimony in the field of the TESTING AND FUNCIONING AND CLASSIFICATION OF FIREARMS AND AMMUNITION.

[17] The officer first testified about his examination of the apparent firearm seized from the defendant. There were several pictures filed as exhibits.

[18] It was his view that the item was originally designed and built to be a “modified non-functioning blank pistol.” The item was designed to look like a BERETTA PISTOL. The witness was of the view that there had been attempts to modify it (not very well according to his testimony) to fire rounds with a projectile. There were several holes in the weapon at unusual places. The trigger mechanism did not work. The witness was unsure if there was a working firing pin in the item. The witness stated definitively that the item could not be fired at all, and certainly could not fire any projectile. I took it from all of his evidence that this was not a “firearm” as defined in the Criminal Code.

[19] With regard to the three bullets that were examined, the witness described that the markings on the bottom were that of ammunition which was commercially available. It was a 380 MM projectile ammunition made by Winchester. He stated that they had all been modified by shaving or grinding off the front of the projectile several millimetres. One of the bullets was ground down past the copper (showing the lead projectile underneath). One of them had a wire loosely wrapped around the bottom.

[20] The witness was of the opinion that these modifications were undertaken as an attempt to get them to fit into the chamber so they could be fired. The witness was of the view that such modifications would not be successful as the firing pin (if it existed) would strike at the wrong place and without the necessary force to ignite the primer.

[21] EXHIBIT 7K is a picture of the base of the three bullets. All show some pitting in the centre; the one on the left has the most pitting. The witness believed that the pitting showed that attempts were made to fire them but the firing pin (in whatever weapon it was) did not strike them dead centre nor with sufficient force to ignite the primer and fire the projectile. He was cross-examined extensively about whether this showed that the bullets did not have primer or propellant or in some way were “duds”. The witness stated that it was his belief that there was primer and propellant in the bullets (it was his evidence that a lack of powder or igniter would result in a lighter bullet). He said that there was a possibility that the bullets were duds but very unlikely as in his experience he had only in his entire career only seen one “dud”. He believed that the explanation for these markings was the one he had already stated.

[22] Defence pointed out that without the disassembly of the bullet or a test firing in some firearm, there could be no absolute certainty that these bullets had all the elements to make them function.

DEFENCE EVIDENCE

I. ROBERT MCDONALD-COLE

[23] …testified in his own defence. He stated that he had known Justin Joyce for about a year. He had gone to his house on his birthday and had been there for about 3 days when the police came. He stated that there were 4 or 5 people in the house coming and going and there was a lot of partying and drug use. He stated that he was a drug dealer, in cocaine, and he was selling. He stated that JUSTIN JOYCE was also selling and doing drugs and he was in and out of the apartment. He denied that he owned any gun. He stated that he saw several knives in this apartment, and he also saw “the gun” sitting on a table. He picked it up and looked at it one time. He stated that sometime after 9:00 p.m. on the 18th, JUSTIN JOYCE became very agitated and was pacing around the apartment. He stated that it was at that point that he took the gun from the table and put it in his waistband, for “protection”.

[24] He stated that he knew there was a magazine in the gun but he did not know there were bullets in it.

[25] In cross-examination he admitted his criminal record, which had two youth court entries and 4 adult sentencings. He admitted that he had a conviction in 2014 for possession of a controlled substance and assault police. He also admitted that he was subject to a weapons prohibition.

[26] The Crown suggested to him that as a drug dealer (which he admitted he was) he probably would have wanted to protect himself from getting ripped off and that would include having a gun. He denied that. The Crown also took him through the scenario that night and he began to include details not in his examination in-chief, including hiding the knifes. He admitted that when JUSTIN JOYCE left the apartment that he was no longer in danger and could have simply left or called the police or in any event, put the gun away. The defendant explained that he never thought to call the police because he was a drug dealer, but he had no real explanation why he did not simply leave or hide the gun if he felt threatened by JUSTIN JOYCE.

[27] He admitted that JUSTIN JOCYE owed him $50 and that he wanted the money from him, but he denied that he threatened him for it.

[28] He became quite argumentative with the Crown and would ask the Crown to repeat simple questions. He went to great lengths to explain why after ingesting pain killers and alcohol and cocaine, that he would not feel “different”. I had the distinct impression that he was making some of this up as he went along.

ANALYSIS

[29] With regard to both charges, the Crown bears the burden of proving the essential averments of the offences beyond a reasonable doubt. I rely upon the decision of R. v. Lifchus.

the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;

a reasonable doubt is not a doubt based upon sympathy or prejudice;

rather, it is based upon reason and common sense;

it is logically connected to the evidence or absence of evidence;

it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and

more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty must acquit.

[30] The defendant has testified and it was implicit in all of his evidence that he did not threaten JUSTIN JOYCE and was not aware of the presence of ammunition in the gun that he had picked up.

[31] I must apply the doctrine of R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) at pg. 409:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, in the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[32] I do have some difficulty with the evidence of the defendant. His stated reasons for the possession of the imitation gun at that point is, in my opinion farfetched. He had every reason, as an admitted drug dealer, to possess something (even if it was just an imitation gun) to give some protection to him as he plied his trade. Even if he had just picked up the imitation gun to protect himself from JUSTIN JOYCE, there was no reason to keep possession of it when JOYCE left the apartment. Indeed, there was no reason for him to remain there. Even if he was afraid and stayed, he could have hidden or otherwise disposed of the weapon.

[33] Some of his responses (as noted above) to the Crown’s simple suggestions seemed contrived and manufactured on the spot.

[34] With regard to the crucial question of why he had possession of the imitation firearm and the three bullets when he was arrested by the police, I find I cannot accept his explanation, and further I find that his evidence on this point does not leave me with a reasonable doubt.

[35] That does not end the matter as I must review all of the evidence and decide what I accept and then whether I am satisfied beyond a reasonable doubt that the Crown has met their onus.

[36] With regard to the offence under Section 85(2)(a), the Crown must prove that the defendant was committing the underlying offence of threatening death or bodily harm. The defendant must have “in any manner, knowingly utters, conveys, or causes any person to receive a threat.” The Crown need not prove that the defendant had any intention to carry out the threat, just that he made the threat with the intention to intimidate or to be taken seriously. The threat is not limited to words spoken (although that is alleged here and most of the cases deal with the spoken word).

[37] In our case, the Crown points to the imitation weapon that the defendant had. The Crown does not allege it was a firearm, but there is some doubt as to whether the witness believed it was a functioning weapon. He certainly stated in his evidence that it made him fearful for his safety. I note however, that the witness stated that the gun “fell apart.” The witness stated that the weapon was with the defendant throughout the time he was there. He describes him “playing with it” for much of the time. The question is whether just having it there constituted the threat. Based upon all of the evidence, I do not think that I can rely alone on the presence of this object at the scene to constitute the threat. There has to be more, some words or further actions of threat.

[38] The evidence of JUSTIN JOYCE must be examined with care.

[39] The witness is a young man who was testifying about events at his home which occurred over a one or two-day period in June 2019, almost two years ago. The scene at his home appeared to be somewhat chaotic. He described several persons coming and some going. Some people were sleeping there, and some were not. The witness was unclear as to when the defendant arrived. In that two or three-day period the witness was unclear as to whether he had ever slept. He was adamant that during that period he only had one line of cocaine and one small drink of Bacardi alcohol. Yet he described a scene where there was a not insignificant number of drugs and alcohol consumed by others. The view of him at the police station, while not definitive of anything, does appear to show a person who while alone was spending time with his thoughts. Whatever he was thinking, it caused him to smile on several occasions. The nose blowing episode could have been an indication that he had more than just a little cocaine sometime recently.

[40] I do not give any weight to the notion that he had been diagnosed with schizophrenia. He denied hearing any voices or hallucinating. There was no expert evidence tying any of this to any of his potential behaviours that evening. It may affect his perception of some of the subtleties of the events but not the general tenor of the events.

[41] With regard to his testimony, he asserts that the defendant possessed what looked like a gun for the whole time he was in his house. He described it as “falling apart” on occasion and he was not sure it was functioning. The witness described him waving it around. He did not specifically say that he pointed it at him for any time.

[42] The witness wanted to be rid of this unwelcome house guest. He owed this houseguest some money. It was late at night and he was suffering (at least) from a severe lack of sleep. With that general scenario, the Crown asserts that I should be satisfied beyond a reasonable doubt of all aspects of his evidence including that at one point the defendant said, “If I don’t get it something is going to happen.”

[43] The Crown points to the fact that he went quickly to the landlord to relate this complaint to the police. That is true and it gives some support to his evidence, but it is also true that his motive for going to the landlord could have been just to get rid of the defendant and indeed the witness expressed that he did not want to get in any trouble with his landlord. He may indeed have been frightened. That does not in itself prove that the defendant did and intended to convey a threat to the defendant.

[44] Ultimately, while there are many aspects of his evidence which are easy to accept, the question remains as to whether I am left with a reasonable doubt as to the words allegedly spoken by the defendant to the witness. I find that it would be unsafe to accept beyond a reasonable doubt the particular words spoken by the defendant on that evening. That the witness may have been in some fear is a distinct possibility but whether there were words of threat conveyed to the witness is a matter that I am left in doubt and I cannot make a finding that those words (or words sufficiently similar) were in fact spoken.

[45] Having made that finding I must still assess whether the remainder of the scene, as I can find it, would constitute a threat. I find it does not. I find that the actions of the defendant did not change over the 2 or 3 days he was there. He was always “playing” with the gun. We have pictures of this gun and the expert evidence of the firearms expert. This gun was something of a shambolic device. For a short period of time, and certainly from any distance, it could be mistaken for a functioning firearm. If the defendant had pulled it out for the first time that evening and began to be serious about getting money from the witness Joyce, it is possible that a threat could be made out. After the time described by the witness Joyce, and all of the handling (even by the witness) it would be hard to see how this would (and of itself) be an instrument of fear and coercion.

[46] The fact that he wanted money from the defendant for his drugs is a factor but is not determinative. I am very much left in doubt as to whether the actions that I do accept constitute the actus reus of the offence and am also in doubt as to whether his intentions are proven.

[47] I therefore find the defendant not guilty of the offence of conveying or uttering a threat to cause death while in possession of an imitation firearm.

[48] With regard to the charge of a breach of the firearms prohibition, I must decide whether upon all of the evidence I accept that any of the three bullets were indeed “AMMUNITION” as defined in Section 84(1) of the Criminal Code. The section reads as follows:

ammunition means a cartridge containing a projectile designed to be discharged from a firearm and, without restricting the generality of the foregoing, includes a caseless cartridge and a shot shell

[49] As I have not accepted the defendant’s evidence as to how he came into possession of this imitation firearm and “ammunition”, I also reject his assertion that he did not know that there were three bullets (two in the magazine and one in the chamber) in the imitation handgun. Based on all of the evidence that I do accept, I find that he knew these “bullets” were inside the imitation firearm.

[50] I certified MIKE KAMSTRA, as a firearms expert in the functioning and classification of firearms and ammunition. Notwithstanding submissions by the defence, I do not find that the witness exhibited any bias towards any conclusions or opinions that he gave in his evidence.

[51] The expert witness was of the opinion that these three bullets were “ammunition”. He accepted the possibility that there could be a defect in manufacture which would lead to some sort of misfire and the projectile in the bullet would not be discharged from a firearm but that would be very rare. He testified that bullets without powder or primer are lighter than the ones he examined. He noted the manufacturers marks on the bottom which indicted that these were manufactured as projectile bullets.

[52] He gave a plausible explanation (there was no other evidence to contradict his assessment) as to the marks on the bottoms of the bullets. In his opinion they were caused by a trying to fire these bullets in a weapon that they were not designed for. (Such as the weapon in this case).

[53] It was also noted that all the bullets differ from the norm in that all of them have the “top” of them shaved down. One of them has a wire wrapped around a groove at the bottom. It was the evidence of the expert that these were modifications made (non-professionally) to somehow make them fit into the imitation firearm.

[54] He concluded his evidence by saying that they are cartridges of ammunition and are a cartridge containing a projectile designed to be discharged from a firearm even with the modification.

[55] He did not attempt to fire any of these bullets and did not disassemble any of them for further inspection.

[56] There is very little case law dealing with what is required to prove that an item meets the definition of “ammunition”. Unlike the definition of “firearm”, there is no requirement in Section 84 that the bullet be “fired”. Some cases seem to suggest that it should be fired, and other cases seem to suggest that any police officer can provide an opinion.

[57] In R. v. Wilson, 2020 ONSC 1956, the Court stated:

85 The Crown consented to a motion for a directed verdict of acquittal on these counts, based on the evidence of the firearms expert Laurie Legg that the ammunition that was found in the black bag seized from the accused's motor vehicle did not function, in that the rounds did not fire when tested. As such, they did not meet the definition of ammunition under s. 84(1) of the Criminal Code. A finding of not guilty will be entered on these two counts.

[58] In R. v. Singh, 2004 BCCA 428, the British Columbia Court of Appeal stated:

16 As Chief Justice McEachern pointed out in R. v. To (1992), 16 B.C.A.C. 223 at 230, a case where the issue was possession, courts must approach cases with a certain degree of realism. It seems to me that it is only common sense to hold that when experienced police officers describe the items found as being bullets and shells, as they did in this case, that it is a fair inference that they are talking about the type of items that the Criminal Code definition of ammunition encompasses. Of course, evidence might be adduced to rebut such an inference. But as the evidence stood in the instant case, it seems to me that it was proper for the trial judge to conclude that these items were ammunition. Accordingly, in my view, he did not err in convicting the appellant of the offence of having in his possession this ammunition contrary to the order that was made in 1993 prohibiting him from possessing firearms and ammunition.

[59] In R. v. Myles, 2019 BCPC 87, the court stated:

30 In this case I am of the view that police officer Baines who testified on behalf of Crown had the adequate knowledge and experience and I might add perhaps better experience with the type of ammunition that was located at the time of the search.

31 I accept the direction of the Court of Appeal in Singh that I can rely upon that type of evidence in coming to an assessment and my analysis of the evidence adduced by Crown.

32 I am satisfied that given the totality of the evidence presented by Constable Baines and the lack of any other evidence adduced that would rebut the inference that the item seized from the Accused was in fact ammunition that I must therefore conclude that the cartridge that was seized and recovered was in fact ammunition as defined under s. 84 of the Criminal Code.

[60] In both Myles and Singh, it had been argued that the ammunition should have been fired, or there should have been expert opinion. In Wilson, the Police did fire the ammunition and it did not fire, and the Crown agreed to a directed verdict dismissing the charge.

[61] On it’s face Wilson is not reconcilable with Singh and Myles.

[62] The question for me to decide, is whether to prove that an item is “ammunition” as per Section 84(1) it is necessary that it be tested by firing. I don’t think that R. v. Wilson goes that far. I do however accept that in certain circumstances, that the failure of the ammunition to fire could and should prove conclusively that it is not ammunition. What I must ask myself is, in the circumstances of this case, with the modifications to the bullets noted here, is a firing of the ammunition necessary to prove that it falls within the definition in 84(1), or is the evidence of the expert witness sufficient to convince me beyond a reasonable doubt.

[63] The witness has stated that the modifications would not change the design of the bullet so as to prevent it from being fired in the appropriate firearm. He accepted that some ammunition may not fire because it is defective, but he found that to be very rare. I accept the opinion of the expert that the bullets are “ammunition”.

[64] I therefore find it has been proven beyond a reasonable doubt that these bullets do fall within the definition of “ammunition” as contained in Section 84(1) of the Criminal Code.

[65] In conclusion, I find that the defendant was knowingly in possession of these three items of ammunition and will be found guilty of the offence of possession of ammunition while prohibited from doing so by reason of an order under Section 110 C.C., contrary to Section 117.01 (3) C.C.

Released: July 14, 2021 Signed: Justice P.N. Bourque