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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

CITATION: R. v. Q.B.B., 2023 ONCJ 589

DATE: 2023 10 18

COURT FILE No.: Brantford - 0211-998-23-Y2100027-00

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

Q.B.B., a young person

Before Justice R. Blouin

Heard on August 28, August 30 and September 11, 2023

Reasons for Judgment released on October 18, 2023

M. Solin ............................................................................................... counsel for the Crown

J. Stephenson .................................................................. counsel for the accused Q.B.B.

BLOUIN J.:

Overview

[1] On November 18, 2022, two weeks before his 18^th birthday, the defendant Q.B.C. and a friend called a taxi to take them from Brantford to the defendant’s grandmother’s home in the countryside about 30 minutes away. As he was paying the taxi driver in the driveway of the home, he pulled a loaded sawed-off shotgun from a bag, pointed it at the cab driver and demanded money. After forcing the cab driver into the rear seat, and while he was searching for money in the front seat, the gun discharged, blew a hole through the front seat, and wounded the right leg of the cab driver. He was very fortunate to survive given the size of the wound, and the amount of blood that was lost.

[2] As a result of the defendant’s arrest later that evening, he faces 16 criminal counts. They are as indicated below:

Count 1 – Attempt Murder using a Firearm

Count 2 – Discharge Firearm with Intent to Endanger Life

Count 3 – Assault with Weapon

Count 4 – Aggravated Assault

Count 5 – Forcible Confinement

Count 6 – Fail to Comply – Youth Sentence

Count 7 – Fail to Comply – Youth Sentence

Count 8 – Fail to Comply – Youth Sentence

Count 9 – Careless Use of a Firearm

Count 10 – Pointing a Firearm

Count 11 – Possession of Weapon for Dangerous Purpose

Count 12 – Unauthorized Possession of a Firearm

Count 13 – Unauthorized Possession of a Firearm in a Motor Vehicle

Count 14 – Robbery

Count 15 – Robbery with a Firearm

Count 16 – Possess Firearm knowing its Possession is Unauthorized

[3] Much of the defendant’s conduct was admitted. The defendant’s guilt was contested only on the first four counts regarding the offences of Attempt Murder, Aggravated Assault, Assault with a Weapon, and Discharge Firearm with Intent to Endanger Life. Essentially, the defendant contends that the firearm discharging was an accident, and thereby he lacked the requisite criminal intent to commit those four offences.

Evidence

[4] Exhibit 1 in this trial was a statement of admissions made by the defendant and accepted by the Crown. They read as follows:

1. The accused before the court, Q.B.B., did steal the sum of $85.00 Canadian currency from Harshil Desai on November 18, 2022, and that at the time he did wound Harshil Desai in the commission of said offence.

2. The accused before the court, Q.B.B., did intentionally point a loaded firearm, namely the 12-gauge double barrel break action shotgun at Harshil Desai on November 18, 2022, during the commission of said robbery.

3. It is admitted that said firearm is a "firearm" as defined by s. 2 of the Criminal Code and further that it is a "prohibited firearm" as defined in s. 84 of the Criminal Code.

4. The accused before the court, Q.B.B., did injure his right hand during the commission of said offences on November 18, 2022, and that his blood is on said firearm.

5. On November 18, 2022, the accused before the court, Q.B.C.B did possess said firearm without being the holder of a licence under which he may possess it.

6. On November 18, 2022, the accused before the court, Q.B.B., was an occupant of a motor vehicle, namely, the 2017 Toyota taxicab in which he knew there was said firearm.

7. During the offences perpetrated on the complainant, Harshil Desai,on November 18, 2022, by the accused before the court, Q.B.B., the accused pointed said firearm which was loaded.

8. The offences perpetrated on the complainant, Harshil Desai, on November 18, 2022, by the accused before the court, Q.B.B. wounded, maimed, disfigured, and endangered Harshil Desai's life, satisfying the s. 268 Criminal Code definition of aggravated assault. It is expressly not admitted that the requisite intent or objective foresight of risk existed at the material time.

9. On November 18, 2022, the accused before the court, Q.B.B., did intentionally deprive the complainant, Harshil Desai, of his liberty without his consent thereby unlawfully confining him.

10. After the commission of said offences the accused before the court, Q.B.B. did on November 18, 2022, put said firearm under the rear porch area of […] Road, where it was subsequently found during the execution of a search warrant on November 19, 2022.

11. After the commission of said offences on November 18, 2022, the accused before the court, Q.B.B. did tell his grandmother, J. that he had been shot and needed medical attention. Further, that he then left her residence, […] Road, and was found by police in a field to the north of the residence.

12. The accused before the court, Q.B.B., was bound by a sentence order dated February 14, 2022, by Judge K. Baker at Youth Justice Court, Brantford, Ontario on November 18, 2022. Further, the accused wilfully failed to comply with the conditions that he keep the peace and be of good behaviour and not possess any weapons as defined by the Criminal Code contrary to said order.

13. It is admitted that the accused before the court, Q.B.B., was bound by a sentence order dated June 16, 2022, by Judge R. Gee at Youth Justice Court, Brantford, Ontario on November 18, 2022. Further, the accused wilfully failed to comply with the condition that he keep the peace and be of good behaviour contrary to said order.

[5] The Crown called four witnesses. A police officer, Justin Isaacs, introduced a photo book (Exhibit 2) created by the police that catalogued the photographs of physical evidence of the investigation. The Crown also called the taxi driver/complainant, Harshil Desai. The Crown also called a firearms expert, Elspeth Lindsay, and Daryl Mayers, a toxicologist, both from the Centre of Forensic Sciences.

[6] The defence called one witness – the defendant.

The Complainant’s Evidence

[7] Harshil Desai was driving a taxi on November 18, 2022, when he picked up the defendant and his friend from an address in Brantford around 7:00 to 7:30 p.m. After stopping at a Wendy’s restaurant for the defendant and his friend to buy food, he drove to […] Road, which was the defendant’s grandmother’s home, where the defendant had been residing. The defendant was carrying a cloth bag with something inside.

[8] The defendant handed Mr. Desai three $20 bills for the $57.00 fare. As he was giving the defendant change, the defendant then asked for all of the taxi driver’s money. The defendant had been in the rear seat behind the driver, leaned to his right and pulled out a sawed-off shotgun. Mr. Desai gave the defendant all of the cash he had but felt the defendant was not happy with that amount. He was rubbing the barrel of the gun on the back of the seat. The defendant then told Mr. Desai to get out of the taxi while pointing the gun at him. The defendant told him to get in the back seat, closed the back door, and began searching the glove box and other areas in the front of the car, all the while holding the gun in one hand. The defendant found nothing. He told Mr. Desai to turn off the “tracker”. Mr. Desai did not know how to do that.

[9] Fearing for his life, Mr. Desai begged him to let him live. The defendant had stopped searching but was still demanding money. The defendant then fired the gun through the seat and into Mr. Desai’s right leg. When asked whether the defendant looked nervous, Mr. Desai said his face looked “eager to like trigger the gun”. When asked if the defendant looked shocked or surprised after the gun was fired, Mr. Desai said “he left like nothing happened”.

[10] When the gun was fired Mr. Desai only saw aggression and anger in the defendant’s facial expression. Around 8:15 p.m., after driving some distance away, and after being in and out of consciousness, the complainant called 911. He was in the hospital for close to three weeks, and had two surgeries. He still has buckshot in his leg, and pain and numbing in his feet and toes.

[11] Mr. Desai was shown a photograph of the rear seat of the taxi (Exhibit 2, Tab 12, photograph 25). He drew his position in the rear seat at the time of the shooting. He had been leaning to the right with his legs still behind the driver’s seat and his head more towards the area in the middle, and even slightly toward the passenger side of the rear backseat.

[12] In cross-examination Mr. Desai agreed that he could not see the gun because there were moments his sightlines were blocked by the front seat, and he was not able to see the gun immediately before it discharged. He agreed that the defendant left immediately after the gunshot and went towards the house. He also thought both the defendant and his friend had been drinking or consuming drugs.

Dr. Elspeth Lindsay

[13] Dr. Lindsay was qualified, on consent, as a firearms expert. She conducted a trigger pull analysis, and examined the propensity of this firearm to discharge accidentally. She also was able to identify the spent shotgun shells as those fired by the shotgun seized by police hidden under the defendant’s deck.

[14] Dr. Lindsay did a trigger pull analysis using a digital gauge. The gun had two triggers – one for each barrel. The front trigger had a pull weight average of 2.45 lbs, and the rear trigger had an average of 3.17 lbs. There were no internal or external safeties on the gun given its age.

[15] Dr. Lindsay performed drop tests wherein the firearm was dropped from a four feet height on to a rubber mat. It was her view that this firearm could be discharged accidentally. The likelihood of such an event depended on whether the gun was cocked. If cocked, and made ready to fire, the dropped gun discharged one or both barrels four out of six times. If not cocked, only the right side discharged one out of six times.

Dr. Daryl Mayers

[16] Dr. Mayers was qualified, on consent, as a forensic toxicologist. His evidence was contested as to its relevance by the defendant. He submitted that, since the defence was accident, the defendant’s sobriety was not relevant. I ruled otherwise. I admitted his evidence as relevant to the defendant’s credibility and reliability. Credibility – in that the defendant’s evidence as to how much he drank might well be contradicted by the physical manifestations of behaviour that were observed. In other words, was it likely the defendant drank what he first testified to (14 beers and five shots) and would he be able to perform the physical tasks he did? Reliability – in that a person who is significantly intoxicated may not be an accurate historian of the relevant events.

[17] Essentially, Dr. Mayers opined that if the defendant had consumed the amount he told his lawyer in examination-in-chief he did (he doubled down in cross-examination, and said it was probably more) that his blood alcohol level would have been between 335 milligrams and 505 milligrams at 8:15 p.m. As to the expected physical effects of those levels of alcohol, Dr. Mayers was of the view that the defendant would have been extremely intoxicated, or comatose, or possibly dead if he had not developed a tolerance to alcohol (the defendant’s evidence suggested that he had not developed a tolerance to alcohol).

The Defendant’s Evidence

[18] The defendant left his grandmother’s house after finishing work the afternoon of this incident. He and a friend took a cab to the area of downtown Brantford that he referred to as “the river”. He contended that he drank 14 beers, and five shots of vodka during the one hour he and his friend were there. He ordered a taxi to take them home to […] Road. He asked that they stop at Wendy’s before continuing in the cab to his grandmother’s house.

[19] When the defendant and his friend arrived at the driveway of […] Road, he gave the cab driver $60.00. He asked for change, and then pulled out the gun and demanded the cab driver give him all of his money. The defendant told the cab driver to get out of the cab and into the backseat. He then “started rifling” through the front seat with one hand and had the other on the gun. Ms. Stephenson asked about the firearm at page 7 of the transcript:

Q. Okay. And where did it come from? Like did you have it from when you left, did you find it somewhere? Like where – where did – at what point did you actually get the firearm in hand?

A. I’m not too sure.

Q. Okay. When you left earlier in the day to go down to the river drinking did you have the firearm with you?

A. No.

Q. Okay. And so at what point did you end up getting the firearm?

A. It must have been when I was walking by the river.

Q. Okay. And so where did it come from?

A. It was a friend’s.

Q. It was a friend’s, okay. And so when you got in the taxi were you holding the firearm out in the open or did you have it concealed somewhere?

A. I had concealed in – in a bag.

Q. Okay. And what kind of bag did you have?

A. It was a black bag.

Q. Okay. Like a backpack, a gym bag, a murse?

A. It was like a – it was like a side bag, yeah.

Q. A side bag?

A. Yeah.

Q. Okay. And do you remember what else – was that your bag?

A. Yes.

Q. Okay. Do you remember what else was in the bag?

A. Just shotgun shells.

[20] The defendant then described the moment of the shooting. He was searching around the console and then thought the gun malfunctioned and blew up in his hand. He thought he had been shot. In fact, he did require stitches to close the wound in his hand. After the shooting he immediately left, hid the gun outside the house, and asked his grandmother to call an ambulance. He then ran into a field behind the house. He claimed that he did not intend to shoot the firearm.

[21] In cross-examination, the defendant was asked if the friend he was with that evening at “the river”, and then in the cab, was the friend who gave him the gun. He said “maybe” and that he wasn’t sure. He also wasn’t sure if the friend gave him the shotgun shells, or if they were already in his bag when he arrived at the river. And to further indicate the defendant’s uncertainty about significant issues, the following exchange took place from the bottom of page 22 to page 23 of the transcript:

Q. And did your friend say anything to you when he gave you the gun?

A. No.

Q. And did you find it odd that he was giving you a gun?

A. No.

Q. Had he given you a gun before?

A. No.

Q. And why was he giving it to you now?

A. I don’t know.

Q. Did you ask for it?

A. No.

Q. Sorry?

A. No.

Q. And he didn’t say anything?

A. No.

Q. And prior to the break while you were testifying, you said you knew how to load the gun?

A. Yes.

Q. Okay. And how many shells does that gun take?

A. Two.

Q. And how do you load that gun?

A. It’s a breech break so you pull the lever and it drops down and then you put the shells in and close it.

Q. And on that day you loaded the gun?

A. I don’t know.

Q. So, you don’t know if you loaded the gun?

A. I’m not sure.

[22] When asked about details around the moment of the shooting, the defendant was at the very least, vague. When asked about him being upset when he realized there was no more money, the defendant testified, “I’m not sure.” When asked if he cocked the gun, the defendant testified, “I don’t believe so.” When it was suggested that he was angry when there was no more money, the defendant testified, “I don’t remember.” And when it was suggested that he pulled the trigger, the defendant testified, “I don’t recall that.”

Findings

[23] Let me first assess the evidence of the defendant. I have significant doubt that the defendant consumed the amount of alcohol he testified to consuming. However, I find that his ability to be an accurate historian of the events of that evening was substantially diminished by that consumption. Mr. Desai’s observation that the defendant and his friend had been drinking or consuming drugs aligns with the defendant’s admission of consumption. Dr. Mayers’ evidence suggests that the defendant’s assessment of the amount he drank was extraordinarily unlikely, but I have no doubt that his ability to remember was compromised by alcohol consumption. As a result, the reliability of his evidence was similarly compromised.

[24] Now, turning to his evidence as to how he gained possession of the firearm, I find his explanation of the relevant events to be wholly untrustworthy. In my view, he is not telling the truth when he testified that he wasn’t sure when it was that he received the gun and that he wasn’t telling the truth when he testified that he wasn’t sure that he received the gun from the friend he was with that evening. He was also untruthful when he testified he wasn’t sure if he received the shells from the friend or if he already had them in his bag. I find that it is implausible that he received a gun without asking for it, or asking why it was given to him. Even when he was asked if he pulled the trigger, he couldn’t recall if he did or not.

[25] The defendant’s evidence, as to the live issues I must decide, is not credible and not reliable. I do not believe the defendant, and his evidence creates no reasonable doubt.

[26] Let me be more specific. I do not believe the defendant’s testimony that the gun was discharged by accident. That is for the reasons outlined above for generally rejecting his evidence and for two additional reasons. Firstly, I accept the complainant’s evidence regarding the events of that evening. He was reasonable and thoughtful. I appreciate that the stark horror of this situation makes it difficult to chronicle every aspect of it, but I believe him when he said the defendant looked angry, and aggressive, and eager to trigger the gun when no money was produced. Secondly, there was no evidence from either the defendant or the complainant that would support a scenario where the gun accidentally discharged. Dr. Lindsay testified that the gun could discharge accidentally but that was shown to happen when there was a jarring factor present. Like dropping it from four feet. Here, there was no evidence that the gun was dropped, or jarred to the extent that it could discharge.

Conclusion

[27] As a result, I find the defendant intentionally assaulted the complainant, first by pointing the loaded firearm at him and then by firing the gun towards the general location of the complainant, objectively foreseeing a significant wound, and, in fact, gravely wounding him. (R. v. Williams, [2003] S.C.C. 41) sets out the mens rea for Aggravated Assault at paragraph 22, which is the mens rea for Assault plus objective foresight of the risk of bodily harm. He will be found guilty on Counts 2, 3, and 4.

[28] The necessary mens rea to establish guilt on Attempted Murder is the specific intent to kill (R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225). On this count only, I am possessed of a reasonable doubt. That doubt is created by a simple examination of the physical evidence. The gun was discharged in the general direction of the lower half of the complainant’s body. It was also discharged through a seat in the taxicab. I agree with Ms. Stephenson, that if the defendant intended to kill he could have simply raised the firearm a few feet and shot him directly and without obstruction of the seat, in the upper half of the body. In addition, he left immediately after the only discharge, and made no attempt to further an attempt to kill the complainant. Although a close call since I conclude he fired the gun with intent, I am not satisfied beyond a reasonable doubt that the defendant intended to kill the complainant. Accordingly, he will be found not guilty on Count 1.

Released: October 18, 2023

Signed: Justice R. Blouin