ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR13-70000371-00
DATE: 20130614
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DAQUAN DAWKINS
Accused
Derek Ishak, for the Crown
Gordon Cudjoe, for the Accused
HEARD: May 21, 22, 23, 24, 2013
J. Wilson J.
REASONS FOR JUDGMENT
[1] On October 18, 2011, the complainant, Mr. Justin Ling-Leblanc, was a 20 year old university student working part time to supplement his income as a bus boy and as a vendor of marijuana. On that day, Mr. Ling-Leblanc was shot with a firearm that discharged a .22 calibre rimfire bullet following a drug robbery and a fight over the possession of Mr. Ling-Leblanc’s cell phone. The bullet entered Mr. Ling-Leblanc’s neck near his left jaw, traversed his neck and exited on the right side of his lower neck, ultimately coming to rest in his shoulder. Miraculously, after surgery, Mr. Ling-Leblanc has had a complete recovery, with the exception of emotional and physical scarring.
[2] Two people were involved in the incident. It is admitted that both H.L. and Daquan Dawkins were involved in the altercation that took place on October 18, 2011. It is also admitted that either H.L. or Mr. Dawkins shot Mr. Ling-Leblanc
[3] Mr. Dawkins was charged with eight offences flowing from an incident, including attempted murder (count 1), aggravated assault (count 2), discharging a firearm with intent to endanger life (count 3), armed robbery (count 4), pointing a firearm (count 5), knowingly possessing a firearm without a licence (count 6), possession of a firearm while prohibited (count 7),[^1] and failing to comply with a condition of a probation order not to possess a firearm (count 8).
[4] Mr. Dawkins was charged and tried separately from H.L., who was a young person within the meaning of the Youth Criminal Justice Act at the time of the alleged offences.
The Positions of the Crown and the Defence with Respect to the Factual Issues
[5] There are three primary contested factual issues that arise in this proceeding that I must determine in order to assess what role Mr. Dawkins played in the events that took place on October 18, 2011:
Was Mr. Dawkins involved in the planning and execution of the robbery of the drugs by H.L., or was he simply a bystander that happened to appear after the robbery of the drugs when Mr. Ling-Leblanc and H.L. were in dispute about non-payment for the drugs?
Did Mr. Dawkins pistol whip or strike Mr. Ling-Leblanc in the head with a firearm while trying to rob him of his cell phone?
Was Mr. Dawkins in possession of the firearm that discharged and shot Mr. Ling-Leblanc as part of the admitted physical altercation that took place between Mr. Dawkins and Mr. Ling-Leblanc?
[6] With respect to these three factual issues, the Crown asserts that it is proved beyond a reasonable doubt that:
▪ H.L. and Mr. Dawkins planned together the drug robbery from the beginning, and that Mr. Dawkins was well aware that H.L. had a gun to facilitate the robbery. H.L. was to conduct the robbery, threatening Mr. Ling-Leblanc with the gun to secure the drugs. Mr. Dawkins was observing and available as back up if Mr. Ling-Leblanc was not compliant.
▪ Mr. Dawkins pistol whipped Mr. Ling-Leblanc by inflicting a blow to Mr. Ling-Leblanc’s left temple with a gun while Mr. Ling-Leblanc was sitting in his car and Mr. Dawkins was trying to grab Mr. Ling-Leblanc’s cell phone.
▪ The only reasonable inference available on the evidence is that Mr. Dawkins was in possession of the gun that discharged and shot Mr. Ling-Leblanc during the physical altercation between Mr. Dawkins and Mr. Ling-Leblanc after Mr. Dawkins had dragged Mr. Ling-Leblanc from his car.
[7] It is the defence position with respect to the three factual issues that:
▪ The Crown has not proved that Mr. Dawkins was part of the planning of the drug robbery and that he was aware that H.L. had a gun. The defence asserts that Mr. Dawkins happened to be in the area after the drug robbery by H.L. occurred.
▪ The Crown has not proved that Mr. Dawkins hit Mr. Ling-Leblanc in the head with a gun. The defence concedes that Mr. Dawkins hit Mr. Ling-Leblanc in the head with a metallic object, but argues that the blow inflicted upon Mr. Ling-Leblanc’s left temple could have been with a metallic object or weapon other than a gun. In his evidence, Mr. Ling-Leblanc was not sure that the metallic object, which he saw before the blow to the head and which he perceived as a “brown blur”, was in fact a gun.
▪ During the brief physical fight that occurred outside the car, both Mr. Dawkins and Mr. Ling-Leblanc were throwing punches with both hands, and it was not possible during this brief action-packed sequence for Mr. Dawkins to have pulled out a gun and shot Mr. Ling-Leblanc without Mr. Ling-Leblanc having observed these actions. It is the defence position that the reasonable inference based upon the evidence is that H.L. shot Mr. Ling-Leblanc during the physical altercation between Mr. Dawkins and Mr. Ling-Leblanc
[8] The Crown called two witnesses: a monitor at the school that H.L. and Mr. Dawkins attended and the complainant, Mr. Ling-Leblanc The Crown’s case also consisted of certain admitted facts, the hospital records of the complainant’s injuries, the ballistic report, and the probation order of Mr. Dawkins dated July 15, 2011.
[9] Mr. Dawkins chose not to call any evidence in his defence.
(Complete judgment continues verbatim…)
J. Wilson J.
Released: June 14, 2013
[^1]: The indictment specified that the court order was made pursuant to the Criminal Code. The evidence is clear that the prohibition order was actually under s. 51(3) of the Youth Criminal Justice Act. After the trial, I amended the indictment pursuant to s. 601(2) of the Code and deleted the reference to the prohibition order having been made under the Criminal Code. Based on the nature of the amendment and the defence’s concessions with respect to count 7, I concluded that amending the indictment in this way would not cause prejudice to the defence nor injustice in the circumstances of this case.