ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-50000087-0000
DATE: 20120425
BETWEEN:
HER MAJESTY THE QUEEN – and – Omar Grizzle Respondent
Michael Wilson, for the Crown
David Bayliss, for the Respondent
HEARD: April 16, 2012
Benotto, j.
REASONS FOR DECISION ON MOTION FOR NON-SUIT
[ 1 ] At the conclusion of the evidence the defence brought an application for a non-suit alleging that there was no evidence upon which the jury could find that the weapon in issue was a real as opposed to imitation firearm.
Facts
[ 2 ] Junior Beckford owns a service station. Rupert Murray is a mechanic who works for him. Mr. Grizzle’s sister took her car there to be serviced. On August 10, 2009 Mr. Grizzle went with her to pick it up. Unfortunately an argument arose about the fees charged.
[ 3 ] The Crown’s evidence is that Mr. Grizzle pulled an object from his waistband, pointed a handgun at Mr. Beckford’s chest and stomach and said he was going to shoot him. Mr. Beckford feared for his life. Mr. Beckford said it was a gun. He described it as black, with a hole in the front, a handle and a trigger, about 4-5 ½ inches long. Mr. Murray saw the gun as well and testified that it was a short, small gun approximately the length of his finger, or 3 -4 inches in length. Mr. Murray said it was a “Tommy” gun like in the movies. The evidence was that Mr. Grizzle held the gun up with his arm straight, held the gun sideways and waived his arm across body from right to left. He left the auto shop walking backwards holding the gun out.
[ 4 ] Mr. Beckford and Mr. Murray indicated surprise when the gun was pulled out and told him that was not necessary. Both men also testified that Mr. Grizzle’s sister yelled at him to stop. Mr. Grizzle was not immediately located and the gun was not put in evidence.
Defence Position
[ 5 ] The defence argues that there is no evidence upon which the jury could find that the object was a real firearm. All of the facts before the jury are equally consistent with the firearm being imitation. The evidence, it is argued, must be examined to determine if it can logically support an inference of real firearm and the evidence. Here does not. In particular:
• The belief of the complainant and witnesses that it was a real gun does not make it more likely that it is real and is thus irrelevant;
• The actions of the accused are equivocal. The purpose of using an imitation firearm is to make someone believe it is real. Thus, his conduct with an imitation gun would purposely mimic that with a real gun.
[ 6 ] The defence acknowledges that the Ontario Court of Appeal and a number of trial courts have gone against this position. That, it is argued, is a function of misguided policy considerations which have allowed the law to stray too far away from the governing principles set out by the Supreme Court of Canada.
[ 7 ] In R. v. Fontaine [2004] S.C.C. 27 the Supreme Court referred to the governing principles of directed verdicts of acquittal. The court can only consider whether there is sufficient evidence to go to the jury in the context of the Crown’s burden of proof. The Court re-affirmed the words of the Chief Justice in R. v. Charemski [1998] 1 S.C.R. 679 :
…“sufficient evidence” must mean sufficient evidence to sustain a verdict of guilty beyond a reasonable doubt…(it) always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.
[ 8 ] The Supreme Court of Canada refused leave to appeal in a case involving references to imitation versus real firearms. In R. V. Scott 2000 BCCA 220 , [2000] B.C.J. No 800 the British Columbia Court of Appeal considered the statutory definition of certain sections of the Criminal Code . Braidwood J. A. said, at paragraph 53:
…very often, the object believed to be a firearm is neither discharged during the commission of the offence, nor recovered by the police in their investigation. In such a case…it will not usually be possible to prove beyond a reasonable doubt whether the object meets the definition of a firearm.
[ 9 ] The meaning of a “firearm” was also considered in R. v. Covin [1983] 1 S.C.R. 725 . There, Lamer J. (as he then was) discussed the difference between the Criminal Code provisions regarding real and imitation firearms. The purpose of section 83 (now 85) of the Criminal Code is to “protect the victim of the commission of an offence from serious injury or death” during the commission of a crime. The fact that the Crown must meet the burden of proving the existence of a firearm beyond a reasonable doubt is understandable when mandatory sentences follow.
[ 10 ] The defence argues that these directives make it clear that there must be evidence which could support proof beyond a reasonable doubt that the gun was real in order to let this issue go to the jury. The defence further argues that the Court of Appeal and a number of trial courts have strayed too far from this principle and thus have lowered the Crown’s burden substantially.
[ 11 ] In R. v. Charbonneau [2004] O.J. No. 1503 the Court of Appeal upheld a conviction where the trial judge found that what the accused held in his hand was a gun. There, the complainant was not sure if the gun was real or fake. However, the trial judge found that the gun was real based upon the belief of the complainant that it was real, the conduct of the accused, the threat to shoot while holding the object. The Court of Appeal said this was sufficient foundation for a finding that it was a handgun.
[ 12 ] In R. v. Carlson [2002] O.J. No 1884 the Court of Appeal found that, taken cumulatively, the evidence could support a finding that the object was a firearm. The evidence was that during the course of the robbery, the gun was brandished, waved around, pointed at the back of an employee’s head, all the while screaming that this was a hold up. Various witnesses described the gun as “small” and “black” with a 6 to 8 inch muzzle. In this case, there was also evidence that the accused had access to guns.
[ 13 ] A number of trial courts have followed these precedents. ( See R. v. Dunchie [2006] O.J. No. 3306 ; R. v. Abbdullah [2005] O.J. No 6079 ; R. v. Mills [2001] O.J. No. 3675 .)
[ 14 ] The defence urges a rejection of this approach and an adoption of the view taken by the Ontario Court which disregarded the conduct of the accused as confirmatory evidence that the gun was real because it merely represents an attempt on the part of the accused to “bolster the belief in the minds of the victims” that the gun is real. ( See R. v. Arugeta 2011 ONCJ 576 , [2011] O.J. no 5195 .)
Position of the Crown
[ 15 ] The Crown argues that on the totality of the evidence, the jury is entitled to come to a common sense inference that the gun was real. In particular the jury is entitled to consider that:
• Both witnesses identified it as a gun;
• The complainant said that the accused threatened to shoot;
• The gun was pointed at Mr. Beckford’s chest;
• The gun was held in a position ready to shoot;
• The accused walked backwards out of the shop holding up the gun.
[ 16 ] The Crown submits that, because this was a spontaneous argument as opposed to a planned robbery, the accused could not have brought the fake gun with him in order to fool the victims. Thus, the jury could draw the inference that the gun was real. In addition, it would have been a phenomenal risk to pull out a fake gun in circumstances where he was out-numbered.
[ 17 ] The Crown relies on the Ontario Court of Appeal and the trial court decisions already referred to.
Analysis
[ 18 ] The argument raised by the defence is really this: the case cannot go to the jury because the conduct of the accused is equally consistent with the firearm being real or fake. This is another way of saying that the evidence must not permit any other rational conclusion but that the gun was real. This is not the test for a directed verdict. This was clarified in the oft-quoted case of R. v. Charemski [ 1998] 1 S.C.R. 679:
..whether or not there is a rational explanation for that evidence other than the guilt of the accused is a question for the jury. (Paragraph 4)
[ 19 ] The Court of Appeal in at least three cases has upheld convictions where the gun was not located and complainant was equivocal on whether it was real or an imitation:
• In R. v. Charbonneau [2004] O.J. No 1503 the evidence was the complainant’s clear belief that it was a gun, her description of it, the accused’s conduct, his threat to shoot while holding it and a complete absence of evidence to the contrary.
• In R. v. Carlson [2001] O.J. No. 1884 the evidence was the conduct of the accused in brandishing the gun, waving it around and pointing it while screaming “this is a hold up.” The witnesses description of it as “small” and “black” and having 6-8 inch muzzle. I recognize that in this case there was the distinguishing feature (not present here) that the accused has ready access to guns according to testimony of others.
• In R. v. Richards [2001] O.J. No. 2286 the evidence was the description of the gun given by the witnesses, the circumstances surrounding the use of the gun, namely that people were threatened with it and that the accused had ready access to guns. (Again, not in evidence here.)
[ 20 ] It will be up to the jury to determine based on the totality of the evidence whether the gun was real or fake. They will consider the circumstances of the event, the words and conduct of the accused, the reaction of the witnesses in the context of the event. Here, the jury will consider the evidence about:
• The nature of the argument, including the fact that it was unplanned;
• The conduct of the accused including the description of his use of the gun;
• His threat to shoot;
• The reaction and belief of the witnesses.
[ 21 ] Depending upon the evidence believed and relied upon by the jury, they could be satisfied beyond a reasonable doubt that the firearm was real. It will, however, be up to the jury to make that determination.
Madam Justice M.L. Benotto
Released: April 25, 2012
COURT FILE NO.: 11-50000087-0000
DATE: 20120425
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Omar Grizzle Respondent
Michael Wilson, for the Crown
David Bayliss, for the Respondent
HEARD: April 16, 2012
rEASONS FOR decision on motion for non-suit Madam Justice M.L. Benotto
Released: April 25 , 2012