ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR13400001490000
DATE: 20130911
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SOLOMON HOULDER
Defendant
H. Poon, for the Crown
Anthony Paas, for the Defendant
HEARD: August 2, 2013
b. p. o’marra J.
ruling on an application for a directed verdict on a charge of robbery with a firearm
overview
[1] Graziano Lamanna was robbed by two men. One of the robbers held what appeared to be a handgun. The gun was not discharged and was not recovered by police. At the close of the Crown’s case the Defence applied for a directed verdict on the charge of robbery with a firearm.
Issue
[2] Is there an evidential basis for the jury to consider whether the Crown has proven beyond a reasonable doubt that the gun was a firearm as defined in the Criminal Code?
[3] On August 6, 2013, I dismissed the application with reasons to follow.
the evidence
[4] The Crown’s case in chief was that Graziano Lamanna was robbed by two men. One of the men held what appeared to be a firearm. The Crown opposed the application for a directed verdict based on the following:
- Descriptions provided of what appeared to be a firearm;
- how the gun was handled; and
- words attributed to one or both of the robbers during the incident.
[5] A summary of the evidence focused on the alleged firearm is as follows:
(a) Graziano Lamanna observed something in the hand of the masked robber. It appeared to be a barrel and he was pretty sure it was a gun. The barrel was approximately five or six inches long, dark grey in colour and looked metal. The masked robber struck Mr. Lamanna on the left side of his face. The blow was fairly hard and the item felt heavy. It felt like metal striking his face.
(b) The second unmasked robber told Mr. Lamanna that he better give over cash and/or jewellery or he would be shot.
(c) Mr. Lamanna testified that he knows a little bit about guns. He could not see the handle of the item but it appeared to be a modern type gun, perhaps a semi-automatic. He indicated that it looked like a Baretta 9mm. The gun barrel was long and flat on the sides.
(d) Rocco Lamanna observed the events initially from some 40 yards away. He saw the profile of a gun in the right hand of one of the robbers. He had a better view of the barrel as the two robbers and his brother approached him. He was focused on the gun. He phoned 911 and said “they have a gun”. The barrel looked like a revolver and was some three to five inches in length. He is not familiar with guns. He described the item as black and assumed it was metal. The gun was never lifted by the person who held it although he did see his brother struck by the hand of the person who held the gun. As the two robbers got very close to his car, one of them still had a gun in his hand. He described the barrel as round like a pipe. He does not know much about guns and had never held or seen a real gun.
the law
[6] “Firearm” is defined in the s. 2 of the Criminal Code as a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adopted for use as a firearm.
[7] On an application for a directed verdict the question is whether there is any admissible evidence which could, if believed, result in a conviction.
USA v. Sheppard 1976 8 (SCC), [1977] 2 S.C.R. 1067 at p. 1080.
[8] “Sufficient evidence” for purposes of a directed verdict application means sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt.
R. v. Charemski 1998 819 (SCC), [1998] 1 S.C.R. 679 at p. 701.
[9] Where the Crown relies upon circumstantial evidence to prove an essential element of an offence, the judge engages a very limited weighing process. The judge must weigh the evidence in the sense of assessing whether it is reasonably capable of supporting inferences that the Crown asks the jury to draw. The judge does not ask him or herself whether they would have found the defendant guilty. Nor does the judge draw factual inferences or assess credibility. The issue is whether there is evidence, if believed, that could reasonably support the inference of guilt.
R. v. Acuri 2001 SCC 54, 2001 S.C.C. 54 at para. 23.
position of the parties
[10] The Defence position is that the evidence does not provide a basis for the jury to find proof beyond a reasonable doubt that the item was a firearm. Mr. Paas points to the following aspects of the evidence:
- The gun was not recovered.
- The gun was not discharged.
- The gun was not pointed (although there is evidence that the gun was held in the hand of one of the robbers and used to strike Mr. Lamanna on the side of his face).
- There was no loading or cocking.
- There is minimal evidence of bruising to the side of Mr. Lamanna’s face which would indicate that the item held by the masked robber was not made of metal or a similar hard material.
[11] The Crown’s position is that the cumulative evidence of the Lamanna brothers is a basis upon which the jury could reasonably find, beyond a reasonable doubt, that the item held was a firearm.
analysis
[12] Recovery of the gun or evidence that it was discharged is not a condition precedent to prove that the item was a firearm as defined in the Criminal Code.
R. v. Richards 2001 21219 (ON CA), [2001] O.J. No. 2286 (O.C.A.) at paras. 3 and 4.
R. v. Carlson [2002] O.J. No. 1884 (O.C.A.) at paras. 13, 15 and 16.
R. v. Charbonneau 2004 9527 (ON CA), [2004] O.J. No. 1503 (O.C.A.).
[13] Evidence of the following may provide the basis for proof that the item in question was a firearm:
- Description of the gun by witnesses.
- Circumstances surrounding use of the gun.
- Whether the witness was struck by the gun.
- Evidence of threats, especially a threat to shoot.
- Evidence of a witness’ belief that the item was in fact a firearm.
R. v. Abdullah [2005] O.J. No. 6079 (O.S.C.) at paras. 22 to 29.
result
[14] The evidence of Graziano Lamanna and Rocco Lamanna provides a basis for the jury to find, beyond a reasonable doubt, that the item in question was a firearm as defined in the Criminal Code. Their evidence included the following:
- Description of the gun.
- The way it was held, including used at one stage to strike Graziano Lamanna on the side of his face.
- A threat to shoot Graziano Lamanna.
- Their belief that it was a gun.
[15] It will be for the jury to determine whether or not the firearm aspect has been proven beyond a reasonable doubt.
[16] Application dismissed. I am grateful to both counsel for their helpful submissions.
B. P. O’Marra J.
Released: September 11, 2013
COURT FILE NO.: CR13400001490000
DATE: 20130911
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SOLOMON HOULDER
Defendant
ruling on an application for directed verdict on a charge of robbery with a firearm
B. P. O’Marra J.
Released: September 11, 2013