ONTARIO
SUPERIOR COURT OF JUSTICE
FILE NO.: CR-12-40000440-0000
DATE: 20130326
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
LILIANA PATRICIA ACEVEDO
Sharna Reid, for the Crown
Chris O’Connor, for the Accused
HEARD: March 6, 2013
G.R. Strathy J.
[1] The accused moved for a directed verdict of acquittal at the conclusion of the Crown’s case. After hearing and considering the submissions of counsel, I dismissed the motion, with reasons to follow. The facts are summarized in my reasons released today on the defence application to re-open the evidence: R. v. Acevedo, 2013 ONSC 1736.
[2] There are three counts on the indictment:
(a) robbery while armed with a firearm;
(b) unlawful confinement; and
(c) conspiracy to commit robbery with a firearm.
[3] In the course of his submissions, Mr. O’Connor stated that he would not be proceeding with his motion in relation to the first count, but he submitted that there was no evidence that the firearm was real, and that the count should be amended to refer to an imitation firearm.
[4] Counsel for the Crown advised that the second count would be withdrawn.
The Test
[5] The test on a motion for a directed verdict was not addressed by counsel, but it is well-settled: is there any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty? See R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154 at para. 8; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at para. 21. The motion must be dismissed if there is admissible evidence that could, if it were believed, result in a conviction. In a case like this one, where the evidence relied on by the Crown is entirely circumstantial, the court must engage in a limited weighing of the evidence to determine whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw: see Arcuri at para. 23, per McLachlin C.J.C. It is not, however, the responsibility of a judge on a motion such as this to choose between competing inferences. Where the evidence is capable of supporting more than one inference, only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 at para. 18, per Major J.
The Firearm
[6] Mr. O’Connor submitted that there is no evidence that anyone was armed with a firearm in the commission of an offence and submitted that the indictment should be amended to refer to an imitation firearm. He pointed out that no firearm was recovered and that there is no evidence that what the complainant observed in the hands of the robbers was anything other than an imitation firearm.
[7] There is some evidence, including some direct evidence, which, if believed, could lead a properly instructed jury to conclude that one of the robbers was armed with a firearm. The complainant testified that:
• when he was thrown on the bed one of the men stuck a gun in the side of his head and said “don’t shout or I’ll kill you”. He said that he took a little sideways glance and saw a black handgun;
• one of the other men (“the Spanish guy”) also had a black handgun in his hand;
• when he was in the vehicle, his abductors said that if he went to the police they would kill him and his family;
• after being driven around for a time by his abductors, they took him out of the car, laid him flat on the ground and told him that they were going to kill him. He pleaded with them and they apparently changed their minds; and
• he had not had much familiarity with handguns, but he had seen police and soldiers with guns in Guyana.
[8] As well, in cross-examination, when confronted with the somewhat conflicting evidence he gave at the preliminary hearing, the complainant said that he was quite sure that he saw the gun. He later said that he was confused when he testified at the preliminary hearing, but he was confident that he had seen a gun. When it was suggested to him that it was a stressful occasion, he said that he had been confused, but he knew that there was a gun put to his head.
[9] I concluded that it would be for the jury to determine, on the basis of all the evidence, whether the gun was real or imitation. There are many cases in which the issue has been left to the trier of fact in similar circumstances: see R. v. Charbonneau, 2004 9527 (ON CA), [2004] O.J. No. 1503 (C.A.); R. v. Grizzle, 2012 ONSC 2478, [2012] O.J. No. 1795; R. v. Abdullah, [2005] O.J. No. 6079 (S.C.J.), aff’d [2006] O.J. No. 3936 (C.A.). The jury would consider the complainant’s evidence as to his observations, his conflicting statements, his lack of real experience with firearms and the words and actions of his assailants, to determine whether the Crown has established, beyond a reasonable doubt, that a firearm was used in the commission of the offence.
[10] I therefore concluded that the indictment would not be amended.
The Conspiracy Count
[11] Defence counsel relied on the recent decision of the Supreme Court of Canada in R. v. J.F., 2013 SCC 12, [2013] S.C.J. No. 12 at para. 43, and the decision of the Alberta Court of Appeal in R. v. Trieu, 2008 ABCA 143, 429 A.R. 200, which the Supreme Court approved, in support of the proposition that liability for conspiracy as a party is limited to conduct that aids or abets the formation of the agreement that is at the core of the crime of conspiracy, and that in all other cases there must be proof that the accused was a member of the conspiracy.
[12] The defence submitted that there was no evidence that Ms. Acevedo was involved in the making of an agreement to rob the complainant. There is no evidence of communications of any kind between the alleged conspirators.
[13] I accept the submission of the Crown that the same evidence the Crown relies on to establish that the accused was a party to the offence of robbery — that she aided the commission of the offence — can be relied upon to support the allegation that she was a party to the agreement underlying the conspiracy count. The Crown submitted that Ms. Acevedo’s involvement supports the inference that her participation was central to the agreement because she brought the complainant to the place where the crime was committed. Without being exhaustive, and without commenting on the credibility, reliability or weight that should be attached to the evidence, the following circumstantial evidence could be considered by the jury:
• Ms. Acevedo proposed sex to the complainant when they had never before been intimate and their relationship had been one simply of friendship;
• Ms. Acevedo rejected the complainant’s suggestion that they go to his house and instead suggested that they go to the motel, saying that it was preferable because it had music and a TV;
• Ms. Acevedo was observed texting while the complainant checked in at the motel;
• the complainant testified that he had locked the door once they got into the room and stated on cross-examination that the three men just walked into the room;
• Ms. Acevedo disappeared after the robbers entered the room and never thereafter contacted the complainant; and
• Ms. Acevedo had been to the complainant’s home and the robbers knew exactly where he lived.
[14] I am satisfied, engaging in the very limited weighing permitted by the authorities, that this evidence is capable of supporting the inference that Ms. Acevedo entered into an agreement with the three unidentified abductors to rob the complainant and that she agreed to act as the “bait” to lure him to the motel and to facilitate their entry into the room.
[15] In determining whether there was an agreement, and whether Ms. Acevedo was a party to that agreement, the jury could infer from these facts, and from the evidence as a whole, that Ms. Acevedo and the three men came together in the motel room as a result of an agreement and not by chance. It could also conclude that by virtue of her central role in luring the complainant to the room, and facilitating the identification and entry into that room, Ms. Acevedo must have been a party to that agreement.
Conclusions
[16] For these reasons, the motion for a directed verdict was dismissed.
[17] As matters developed, the Crown withdrew counts 2 and 3 and the case went to the jury on count 1 only. The jury returned a verdict of not guilty.
G.R. Strathy J.
Released: March 26, 2012
COURT FILE NO.: 2013 ONSC 1737
DATE: 20130307
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
LILIANA PATRICIA ACEVEDO
reasons on motion for directed verdict
G.R. Strathy J.
Released: March 26, 2013