Her Majesty the Queen v. Nicholas Goard

DATE: 20140408

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NICHOLAS GOARD

COUNSEL: K. Nedelkopoulos, for the Crown B. Drummie, for Mr. Goard

HEARD: January 20-23, 27, 28, 29, March 24, 2014

TROTTER J.

INTRODUCTION

[1] Nicholas Goard is charged with the following six offences: (1) robbery with a firearm (s. 344(1)(a.1) of the Criminal Code); (2) possession of a weapon (s. 88(1)); (3) pointing a firearm (s. 87); (4) robbery with a firearm (s. 344(1)(a)(i)); (5) pointing a firearm (s. 87); and (6) careless storage of a firearm (s. 85).

[2] These charges arise from events that transpired during the evening of April 22, 2011. Mr. Goard committed two robberies while using a BB gun.[^1] The first robbery was of a taxi driver. Mr. Goard then robbed a woman standing at a bus stop. A search warrant was executed at his home and the police found the gun.

[3] At the outset of trial, counsel for Mr. Goard advised that it was admitted that his client performed the actions described by Mr. Sahi and Ms. Howes. However, he relied on the defence of intoxication, contending that he was suffering the combined effects of alcohol and prescription drugs. Moreover, he argued that the gun was broken and was, therefore, not a “firearm” for the purposes of all counts.

THE FACTS

(a) The Robberies

Imtiaz Sahi

[4] At about 9 p.m., Mr. Sahi was driving a taxi. He was waiting to pick up a fare outside the Downsview Subway Station. A man, who turned out to be Mr. Goard, came to the driver’s side window and asked Mr. Sahi about a specific location. Mr. Goard got into the taxi from the rear driver’s side door, which Mr. Sahi found to be odd.

[5] Mr. Goard guided the car to a particular location and then got up close to Mr. Sahi and told him to turn the engine off. He took Mr. Sahi’s keys and asked how much money he had. Mr. Goard grabbed Mr. Sahi’s head or neck with his left hand and put a gun to the right side of his neck. Mr. Sahi testified that he thought he was going die.

[6] Mr. Goard told Mr. Sahi to throw the money out the window. Mr. Goard asked Mr. Sahi whether he was going to call the police and Mr. Sahi said he would not. Mr. Goard repeated a couple of times: “I know you’re going to call the police”, using a normal tone of voice.

[7] Mr. Goard told Mr. Sahi to get out of the taxi. He cocked (or perhaps, racked) the gun and told him it was loaded. Mr. Goard put the gun to Mr. Sahi’s head outside of the taxi. Mr. Goard also pushed Mr. Sahi’s head into the bar that separates the front and rear windows. He told Mr. Sahi to leave as quickly as possible or he would shoot him. Mr. Sahi retrieved his keys from the backseat and drove away. He saw Mr. Goard picking up money off the ground.

[8] Mr. Sahi said that Mr. Goard did not appear to have any coordination problems, in terms of getting in and out of the car. Mr. Sahi had no problem communicating with Mr. Goard – he understood everything that Mr. Goard said to him. He could smell no alcohol on Mr. Goard, even though their heads were very close to each other at times.[^2]

[9] In cross-examination, Mr. Sahi testified that, while Mr. Goard was in the process of robbing him, he asked “How are you feeling?” This was when the gun was against his neck.

[10] Mr. Sahi was cross-examined on his statement to the police and evidence he gave at the preliminary inquiry. Mr. Sahi previously said that Mr. Goard said “You are going to report this” or “You will report this.” Mr. Sahi explained at trial that he did not believe that Mr. Goard was directing him to report the robbery; he said it was as if Mr. Goard did not believe Mr. Sahi when he said he would not report the matter. I conclude that Mr. Goard was expressing doubt about Mr. Sahi’s assurances that he would not call the police.

Sarah Howes

[11] Between 9 and 9:30 that same evening (April 22, 2011), Ms. Howes was waiting for a bus on Sheppard Avenue. As she waited, Mr. Goard approached her. He seemed to be attempting to hail cars down on Sheppard Avenue.

[12] Ms. Howes was listening to music on her iPod. She removed her ear buds and Mr. Goard said something about not many cabs being in the area. He then came closer and pulled a gun. He said “give me your money” or “give me your wallet.” Ms. Howes tried to give him her purse, but he did not take it. Mr. Goard asked how much money she had. Ms. Howes took out $20 and gave it to him. He put the gun to her chest and made a clicking noise with it. He asked her if she had anything else. Mr. Goard then asked if she had a lot of downloads on her iPod. Ms. Howes tried to give it to him, but he would not take it.

[13] During the encounter, Mr. Goard racked the firearm twice. As the gun was pointed at her chest, Mr. Goard told Ms. Howes to sit on the ground. At this point he asked: “Are you ok?” Mr. Goard started to walk away, but came back and said: “Just sit there and stay there.” He walked away again. Ms. Howes estimated that the entire incident took 10 to 15 minutes.

[14] Ms. Howes said Mr. Goard had no difficulty walking. There was nothing remarkable about his demeanour. Ms. Howes did not smell any alcohol on Mr. Goard. He was not slurring his words. He seemed coherent and used a regular tone of voice, although Ms. Howes acknowledged that she had no baseline with which to compare. When he left, Mr. Goard walked away casually, normally.

[15] Ms. Howes acknowledged that, at the preliminary inquiry, she said that Mr. Goard “seemed confused” because he attempted to hail cars (not just cabs). She thought the robbery lasted longer than it should have. However, at trial, Ms. Howes said he did not seem intoxicated and his behaviour seemed indicative of a lack of experience in committing robberies. Ms. Howes said that Mr. Goard did not seem confused about his actions. He was not out of control. She found the incident odd.

(b) The Aftermath and the Involvement of the Police

[16] After the robberies, Mr. Goard’s night was far from over. The police visited his home (at 91 McAllister Road in Toronto) three times that night. On the third occasion, Mr. Goard was taken to the hospital, where he was subsequently arrested. The police returned to his residence with a search warrant and found the gun the next day.

[17] Mr. Goard did not dispute that these events occurred. He claimed to have no memory of them because of the ingestion of drugs and alcohol. In the following summary, I focus on the observations that various people made of Mr. Goard’s behaviour, demeanour and sobriety.

(i) The First Ambulance Visit – 11:30 p.m.

[18] After the robberies, Mr. Goard was at home with his wife and three small children. Their neighbours Tom and Donna Shelleau were sitting in their backyard when they heard a commotion in Mr. Goard’s driveway just after 10 p.m., although I am doubtful of this timing. Mr. Goard’s wife asked them to come over and they saw Mr. Goard on the driveway, extremely intoxicated. He was very animated and his voice was raised. Ms. Shelleau had never seen him like that before. Tom brought a beer over for Mr. Goard and they went into the basement of Mr. Goard’s house. Shortly afterwards, Mr. Goard’s mother arrived and asked Tom and Donna to leave.

[19] Mr. Goard’s wife, Natalie, asked his mother, Carla Rae, to come to the house. Ms. Rae arrived at their home at about 10:30 p.m. Before addressing her evidence, I note that Mr. Goard’s friend and business partner, Colin Grant, was also called by Natalie to come to their home. Taking public transport that took 2 to 2.5 hours, Mr. Grant said he arrived at the house between 9:00 p.m. to 10:00 p.m. When he arrived, Ms. Rae was already there, along with Mr. Goard and Natalie. In cross-examination, he agreed that he could have arrived as late as 11:30 p.m.

[20] When Mr. Grant arrived, Mr. Goard was drunk, slurring his words and disoriented. Mr. Grant said that he had “words” with Ms. Rae. She told him to leave. Mr. Grant refused. Mr. Grant went to the basement and attempted to calm Mr. Goard down. Then the ambulance arrived. Mr. Grant said that Ms. Rae left before the first ambulance visit, but this was wrong.

[21] Returning to Ms. Rae’s testimony, she told Tom and Donna to leave because it was a private matter. Ms. Rae then spoke to her son. He was under the influence of drugs. She said she was surprised at how he looked. She almost did not recognize him. She had seen him the night before and he did not look the same. Ms. Rae was shown photographs of Mr. Goard in the taxi and he did not look normal to her.

[22] Ms. Rae wanted her son to leave with her so that she could get help for him. He refused. She said that he was belligerent, but not aggressive. In the meantime, Mr. Grant showed up and went downstairs with Mr. Goard. They eventually came upstairs and they were both verbally abusive. Ms. Rae thought that Mr. Grant was under the influence of something as well.

[23] Ms. Rae thought she should call the police because her son was consuming alcohol and drugs and needed help. She denied that she mentioned crack cocaine to the 911 operator, but this was the information that was broadcast.

[24] P.C. Christopher Robert was one of the officers on the scene, arriving at 11:33 p.m. He believed that 911 had been called because Mr. Goard had consumed crack cocaine and was aggressive. He said Mr. Goard was belligerent, aggressive and very angry. Mr. Goard did not want the police or the ambulance at his house. P.C. Robert said: “It was clear that he was under the influence of something. He was full of rage.” Mr. Goard adamantly refused treatment. P.C. Robert said that they all left with a plan to make a report to the Children’s Aid Society.

[25] Other officers confirmed these observations. P.C. Timothy Mazurek said that Mr. Goard appeared mentally unstable. P.C. Andrew Nanton believed that Mr. Goard was under the effects of drugs or alcohol.

[26] Ms. Rae said that she left after the police and ambulance left. She initially went back into the house to speak to her son. She said that Mr. Grant picked her up and shoved out the front door. She spoke to an officer outside, who told her to go home. Mr. Grant denied doing this. I accept Ms. Rae’s evidence on this point. I found Mr. Grant to be an unreliable witness.

[27] Mr. Grant said that they went back inside and he put on a movie. He was hoping Mr. Goard would fall asleep. He did not. Mr. Grant took him outside for some air. Astoundingly, they ended up walking to a bar.

(ii) The Sports Bar Incident

[28] Guiseppina Raponi owns Jose’s Sports Bar and Café on Sheppard Avenue. In the early morning hours of April 23, 2011, Mr. Goard came into the bar with Mr. Grant. Ms. Raponi said that it was about 10:00 to 10:30 p.m. However, on all of the evidence, she was mistaken about the timing – the men arrived closer to 2 a.m.

[29] Ms. Raponi said Mr. Goard (who she had spoken to before) was “pretty drunk” because of the way he was speaking. Ms. Raponi refused to serve him any alcohol. Mr. Grant, who was supposed to be helping his friend, told her that he (Mr. Grant) was driving.[^3] She still said “no.”

[30] Ms. Raponi went next door to the pizza place that she also owns. When she returned, Mr. Goard had taken a bottle of cognac from the bar and left through the back door. Ms. Raponi asked Mr. Grant to pay for it ($40), but he refused. She told him to leave. In terms of Mr. Goard’s condition, Ms. Raponi had seen him in her bar a few times before. She said that he was a totally different person that evening. He was mumbling the entire time. The whole encounter lasted about 10 to 15 minutes.

[31] Mr. Grant said he was shocked when Mr. Goard stole the bottle of cognac. He went back to Mr. Goard’s house alone and waited for him to arrive. He saw that Natalie had collected bags of alcohol bottles and cans. He said some contained alcohol and some were empty. He said he also saw a crack pipe made out of a pop can or bottle. He recognized this from watching Law & Order on television and was shocked to see this in the house. Mr. Goard eventually returned home with the cognac bottle, drunker than before.

[32] In the meantime, Ms. Raponi had called the police. P.C. Robert arrived at the bar at 2:18 a.m. Ms. Raponi was not interested in pursuing charges; she just wanted her money. The police went to Mr. Goard’s house to collect the money.

(iii) Collecting the Money – 2:43 a.m.

[33] The police arrived back at Mr. Goard’s house at 2:43 a.m. P.C. Robert knocked on the door and spoke to Mr. Grant. Mr. Goard was in the background and did not initially come to the door. Mr. Goard appeared very intoxicated and belligerent, essentially the same as he presented earlier. However, Mr. Grant was able to reason with him and produced $40.

[34] Mr. Grant confirmed that he spoke to Mr. Goard and got money to give to the police. After that, Mr. Goard complained about an injury and took off his shoes and socks to show Mr. Grant. Mr. Grant said that he took Mr. Goard to the hospital. However, it is undisputed that Mr. Goard was taken to the hospital in an ambulance. Mr. Grant had no recollection of how they got to the hospital. As already noted, Mr. Grant was an unreliable witness.

(iv) The Second Ambulance Visit

[35] Shortly after the police returned the money, they were dispatched to Mr. Goard’s house again. This time, Mr. Goard had called an ambulance. The dispatcher thought Mr. Goard had been drinking. He told the dispatcher that the police had assaulted him and his left foot was bleeding.

[36] When the police arrived, Mr. Goard was sitting barefoot on the front porch, bleeding from a cut to his left foot. He was still very hostile. He claimed not to know how his foot was injured. Eventually, he was convinced to go to the hospital.

[37] P.C. Robert testified that each of the times he was at 91 McAllister Road, Mr. Goard was in the same condition. He agreed that he was one of the most aggressive individuals he had ever met. Initially, P.C. Robert said he had no recollection of the smell of alcohol. However, in cross-examination, P.C. Robert adopted his testimony from the preliminary inquiry during which he said that he could smell alcohol on Mr. Goard and he was heavily intoxicated.[^4]

(v) The Arrest

[38] Shortly after he went to the hospital, officers suspected that Mr. Goard had committed the two robberies. He was arrested at the hospital at 4:46 a.m. After Mr. Goard was treated, he was taken into custody. On the way to the police station, Mr. Goard fell asleep. One of the transporting officers, P.C. Tomei, could not recall anyone falling asleep in the back of the car in similar, serious circumstances.

(vi) Executing the Search Warrant and Seizing the Firearm

[39] The search warrant was executed in the early afternoon of the next day (April 23, 2011). The officers were looking for the gun used in the robberies. There was no issue about the validity of the warrant, but the condition of the gun when it was seized is very much in issue.

[40] D.C. Michelle Campbell found the gun in a closed basement cupboard. It was positioned upside down. She took it upstairs to another officer, D.C. Ryan Yarde, to have him prove the gun safe. D.C. Campbell said that D.C. Yarde removed a spring from the gun. Small circular pellets were in the spring coil. D.C. Campbell testified that it contained 3 pellets. In her notes, she said there were 4.

[41] D.C. Yarde found packaging for the gun, along with a 600 BB package, on the computer desk in the basement. He found a C02 cartridge under the floor of the desk, where there was also blood. He found other cartridges and instructions for the gun. D.C. Yarde acknowledged proving the gun safe. However, he said he did so by removing the magazine (not the spring).

(vii) Disposing of Garbage

[42] As noted above, Mr. Grant said he saw garbage bags of bottles and cans when he returned to Mr. Goard’s residence. Ms. Shelleau testified that, on the next day, Mr. Goard’s wife came to her backyard fence and gave her a big garbage bag with a lot of empty cans and bottles of liquor and beer. Through the blue plastic, she claimed to see a can that looked like it was used to smoke crack cocaine. She took the bag and placed it in her shed. It was never explained what happened to it afterwards.

[43] Not surprisingly, Ms. Shelleau was pressed on her apparent observation of the can used to smoke crack cocaine. She said that it had not been pointed out to her; it was something that she noticed on her own. She could not recall whether it was a beer can or a pop can, but Ms. Shelleau insisted she could see it through the blue plastic. I do not accept this evidence. Moreover, if the cans or bottles were empty, there would have been no point in transferring these bags to Ms. Shelleau. If they contained alcohol, it is unclear why the contents were not disposed of by being poured down a sink or toilet, or dumped in the backyard. As noted already, Mr. Goard’s wife did not testify.

(c) The Gun

[44] A key issue in this case is whether the gun used in the robberies was a firearm within the definition of s. 2 of the Criminal Code. The Crown called two witnesses who were qualified as experts on this issue; the defence called its own expert.

[45] P.C. Dwayne Scott is with the Toronto Police Service (TPS) and was designated as an examiner of firearms and weapons. He worked with firearms for about a year. He took two courses and received on-the-job training and mentorship. He was involved in about 150 cases. However, the overwhelming majority of his cases involved traditional guns, not pellet guns. He may have dealt with just 6 to 12 pellet guns. Accordingly, his experience was limited and this is reflected in the weight I place on his testimony.

[46] P.C. Scott had a working knowledge of the “Pig’s Eye Test”, a standardized test used by police forces to determine whether a pellet gun is capable of “causing serious bodily injury or death”, as required by the definition in s. 2 of the Criminal Code. Simply put, the speed of BBs fired from a device is measured with a chronograph. If a BB can travel more than 214 feet per second, it is capable of penetrating a pig’s eye, which shares many of the same features with a human eye. A reading of 246 feet per second means that it can consistently penetrate a pig’s eye and is capable of “causing serious bodily harm.”

[47] When P.C. Scott received the gun (and other items) in a box, the spring had been removed from the magazine. It was never clarified in the evidence how or why this occurred. A photo[^5] taken at Mr. Goard’s house shows that the spring was bent when it was in the magazine. P.C. Scott put the spring back into the magazine to test fire the gun. P.C. Scott testified that the TPS has magazines in stock that are suitable for use in this gun. He also said that they are easy to find in sporting goods stores.

[48] P.C. Scott loaded seven BBs into the magazine and fired them, at an average speed of 342.6 feet per second, easily satisfying the Pig’s Eye Test. A certificate was filed as an exhibit, presenting the test fire results and certifying that the gun is capable of “causing serious bodily injury or death.” After he was finished testing the gun, P.C. Scott pulled the spring out the magazine, damaged it and rendered it unusable. P.C. Scott said that it already had a bend in it when he received it.

[49] In cross-examination, P.C. Scott was shown Exhibit #63D, which shows several BBs caught and dispersed in the spring. P.C. Scott said that the gun could have jammed and that it was “quite possible” that the gun would not function in that condition. He also said there was a plastic piece (called a follower) missing from the magazine. The follower is meant to hold the spring in place.

[50] Detective Richard Rossel of the TPS has extensive experience with all types of guns, including BB guns and pellet guns. Detective Rossel did not test fire Mr. Goard’s gun, but he examined it in court and reviewed P.C. Scott’s notes.

[51] Detective Rossel said that the magazine was damaged because the spring was bent and the follower was missing. He also said that the magazine tube was slightly “swollen.” Detective Rossel said followers and springs could be obtained from a sporting goods store or the manufacturer, as could magazine assemblies. He also testified that the magazine assembly would have to be repaired or a new one obtained to properly fire the gun. He said it might be possible to fire the gun without a magazine by placing a BB in the chamber, but he was vague on this. He also said that the magazine could be temporarily “fixed” by using Kleenex or tape to act as a follower. Detective Rossel testified that he could repair the spring (after it was damaged by P.C. Scott). But as he said, “I can fix just about anything.”

[52] Detective Rossel agreed with the conclusion stated in the certificate and he too would classify the gun as a firearm. However, in cross-examination, he acknowledged that he did not know if it would work in the state that it was found.

[53] Albert Anthony Bernardo was called as an expert for the defence. Mr. Bernardo’s expertise with firearms was not gained through law enforcement experience. He has advised politicians on firearms policy and has been involved in drafting legislation. He has taught courses to the Guns and Gangs Task Force in Ontario. He has also gained knowledge and experience through working within the Canadian firearms industry. Moreover, he is a certified instructor for Canadian Shooting Sports. Mr. Bernardo has extensive experience with pellet guns. Mr. Bernardo testified that he has handled “hundreds if not thousands” of them and has tested them with chronographs.

[54] Mr. Bernardo said that the magazine was integral to this gun. He testified that the gun could not be fired without the magazine. He also noted the missing follower. Looking at Exhibit #63D, he said that the spring was inoperable. Also, without the follower, the functionality of the gun would be minimal. Although, he later said that it “may” be able to be fired and that it was “almost inoperable.” Again, and somewhat vaguely, he said that the gun would not fire in any normal manner; the magazine would have to be replaced.

[55] In terms of accessing parts for this gun, Mr. Bernardo described it as a “cheap piece of junk” and said someone would be better off obtaining a brand new one. He said that it might be possible to get parts from a parts depot, but that it would be complicated.

[56] Mr. Bernardo said that, to be classified as a firearm, the gun would have to fire at 495 feet per second and expend 5.5 Joules of energy. He said the Pig’s Eye test is not even close to the standard that is required. As discussed below, Mr. Bernardo was mistaken on this issue.

(d) Mr. Goard’s Evidence

[57] Mr. Goard is 33 years old. He talked about his background in great detail. He said that his parents separated when he was around two years old and he was largely raised by nannies. He had to see counsellors because of the challenges he experienced from the fallout of the breakup.

[58] Mr. Goard started using drugs when he was 16, experimenting with LSD, MDMA, mushrooms, marijuana and cocaine. He also started to drink alcohol and became an alcoholic around 2000 to 2001. He has been hospitalized for alcohol addiction and has been to rehabilitation facilities. He spoke of bad incidents when intoxicated, injuring himself at times. On some of these occasions, he required psychiatric treatment while hospitalized. To a certain extent, Mr. Goard’s mother confirmed some of this background information.

[59] Mr. Goard suffered from anxiety attacks and also experienced very bad withdrawal symptoms after binge drinking. Consequently, he was prescribed Clonazepam and Lorazepam. Mr. Goard testified that blackouts were a common occurrence for him. However, he was all over the map in terms of their frequency. He described one incident when he woke up in Buffalo after being at a concert in Toronto. He also spoke of an incident in the United States when he took his bike to a store to buy alcohol. He smashed his head after he fell off his bike and his mother found him. His mother confirmed this story. He attributed this incident to a blackout. But in cross-examination, he admitted his lack of memory could have been due to a concussion. He provided no other specific examples of blackouts.

[60] Mr. Goard said he saw a psychiatrist, Dr. David Slyfield. The first time was from March 2007 to August 2010. He went to see him for alcohol abuse and underlying mental issues. Mr. Goard said that Dr. Slyfield prescribed Clonazepam almost immediately upon consultation. After the initial consultation, he basically went to see Dr. Slyfield in order to pick up drugs.

[61] Leading up to the robberies, Mr. Goard said that he started drinking again at the beginning of 2011. He said things went seriously downhill between February and April 2011, when he was drinking a lot and taking a lot of drugs. He relied on his banking records to show that he made many purchases of alcohol from the LCBO and many cash withdrawals to buy drugs (i.e., crack cocaine).

[62] Mr. Goard testified that he bought the gun at a Downsview flea market, probably a couple of weeks before. His partner immediately told him to get rid of it. Mr. Goard testified that, when he first got the gun, he stuck it in the back of his car. He opened it a couple of days later. He put in BBs and ended up bending the spring. He said he was never able to fire it properly, but he qualified this answer in cross-examination, and he may have told one of the psychiatrists (Dr. Ramshaw) that he was able to shoot it. I will return to this issue below. In any event, I accept that Mr. Goard did try to the sell the gun on the internet at one point, but without success.

[63] On the day of the robberies, Mr. Goard said he woke and “chewed a couple of pills” (probably Clonazepam) with a Peroni beer. In cross-examination, Mr. Goard said he did not remember anything other than drinking between 10:30 to 11:00 a.m. He could provide no information as to how much he drank or what further medication (if any) that he took. He said he assumed he took the medication as directed. His next memory was being in the hospital. He had a very fragmented memory of the period of time following this day.

[64] More specifically, in terms of the drugs he took that morning, Mr. Goard said “I can see myself taking two Clonazepam.” He said that, if he were in withdrawal, he would have taken more. He did not mention taking Lorazepam that morning. After he was arrested, the police were sent to retrieve a prescription of his, that being Clonazepam.

[65] In cross-examination, Mr. Goard said that he was taking his medication consistently between January and April 2011. He could not remember being specifically told not to mix his medications. As he said, “No, not directly. But you learn down the road not to do it.” He said he never received any informational leaflets from the pharmacy when he picked up his prescriptions.

[66] When Mr. Goard was in hospital after the robberies, he spoke to a nurse. The notation on his chart says: “[Patient] states had an altercation with the police tonight. [Patient] states had ‘7 beers and couple shots.’ [Patient] states going through withdrawal and wants help.” There is no mention of drugs. In cross-examination, Mr. Goard had no explanation for not mentioning drugs (although Clonazepam and Ativan are mentioned under “Current Medications”).

[67] Mr. Goard was cross-examined on his banking records. He shared an account with his wife, who also had a banking card for this account. He said the LCBO purchases would have been his, whereas his wife made Wine Rack purchases. It was also pointed out that there was no money in their account around the time of the robberies. However, Mr. Goard said that it was not unusual – their accounts went up and down all the time. He denied committing the robberies because he needed money.

[68] Mr. Goard testified that he tried to hide his drinking from everyone. As he said, “I hid my alcohol from everyone.” He hid bottles in the basement. After Mr. Goard was arrested for the robberies, he said his wife found “15-20-30” bottles in the home and removed them.

[69] Mr. Goard was pressed on why he bought the gun. He attributed it to alcohol. He purchased it after drinking. He said he used to shoot a pellet gun with his father when he was younger. He told Dr. Ramshaw that he bought it because he thought it was cool. In the end, he said he was not really sure why he bought it.

[70] In terms of using the gun, Mr. Goard said he was only able to blow air through it at one point. He said that he pulled the “thing” (presumably, the magazine) out of the gun and broke the spring. In the end, he said that he did not really remember, so he may have been able to fire it at some point. It was suggested to him that he told Dr. Ramshaw that he shot at cans with it in the back yard.

[71] Mr. Goard was cross-examined on an ad he placed on Craigslist when he tried to sell the gun. In the ad, he said “I am pretty sure it is broken” and “I haven’t fired it.” He said that he possibly fired it after placing the ad, but in the end, it was not working.

[72] Mr. Goard was asked again about his blackouts. Initially he said that it had probably occurred 10 to 20 times. When he was confronted with the fact that he told Dr. Ramshaw that he had 50 to 60 blackouts, he agreed he said this. When he was asked to clarify, he said he had 10 to 60 blackouts.

(e) Dr. Slyfield

[73] Dr. David Slyfield testified Mr. Goard was his patient for a few years, but he did not see him very frequently. At the time of trial, he had not seen Mr. Goard in almost 3 years.

[74] Dr. Slyfield was aware that Mr. Goard suffered from anxiety disorder and substance abuse. He sought Dr. Slyfield’s help for anxiety and panic attacks. He testified that he typically does not prescribe Ativan for someone with alcohol dependency. Dr. Slyfield said that in late November of 2010 into April of 2011 (the last entry in his file for Mr. Goard), Mr. Goard complained of increased anxiety. Due to the fact that Dr. Slyfield did not consider Mr. Goard to have trouble with alcohol at this time, he felt it was safe to prescribe Ativan. In any event, he only prescribed Ativan to Mr. Goard in small amounts because Ativan can be used as a substitute for alcohol and he did not want Mr. Goard addicted to both.

(f) Expert Psychiatric Evidence

[75] The defence relied on the evidence of two expert witnesses who testified about Mr. Goard’s state of mind during the robberies.

[76] In a previous oral ruling, I qualified Dr. David Rosenbloom, a clinical pharmacist, with a doctorate in his specialty, as an expert. Dr. Rosenbloom met with Mr. Goard on October 30, 2013. Mr. Goard reported that he had consumed no alcohol in 4 ½ years. Mr. Goard also said that he experienced blackouts on a number of occasions in the past.

[77] Dr. Rosenbloom testified about the effects of alcohol and drugs on the brain. He spoke generally about compromised executive function associated with the ingestion of alcohol and benzodiazepines (Mr. Goard’s prescription medications). He said that a person who consumes these substances has less ability to encode short-term memory into long term-memory, sometimes reducing the ability to utilize executive functioning, being less inhibited and less able to appreciate the consequences of one’s actions.

[78] In terms of benzodiazepines, Dr. Rosenbloom said that 1% to 2% of people who take these drugs have paradoxical reactions that may last for hours. In cross-examination, he admitted that these reactions are rare and may depend on dosage.

[79] Dr. Rosenbloom said that taking one or two Clonazepam pills and consuming beer, perhaps as well as crack, could cause someone to do things out of character and to have no memory of such events. While Dr. Rosenbloom said that there is no scientific evidence about a person’s mentation during a blackout, he would find it difficult to believe that someone would be aware of what they were doing in such circumstances because executive functioning would be seriously compromised.

[80] When asked if it would be possible to experience memory loss after 2 Clonazepam tablets and 1 beer, Dr. Rosenbloom said it would be unusual, but not impossible. He also said that a blackout could last from minutes to hours, depending on the person.

[81] In cross-examination, it was suggested to Dr. Rosenbloom that lack of memory does not equate to a lack of consciousness. Dr. Rosenbloom disagreed and said that, given Mr. Goard’s reported dense impairment, it is likely that he had no insight into the crimes he committed.

[82] Lastly, Dr. Rosenbloom was asked about testimony in other cases in which he testified that a sexual assault complainant could experience alcoholic blackout, but still be capable of consenting to sexual interaction. He said that his opinion relating to Mr. Goard was different because of the extreme density of his blackout. Finally, Dr. Rosenbloom testified that, once a blackout is over, the person would start encoding memory once again.

[83] Dr. Lisa Ramshaw, a forensic psychiatrist, provided expert testimony related to Mr. Goard’s state of mind at the relevant time. She interviewed Mr. Goard on two occasions and reviewed his medical records. She recounted Mr. Goard’s history of drinking and attempts at treatment. Dr. Ramshaw was forthright in acknowledging that she was dependent on the veracity of the information provided by Mr. Goard.

[84] In advance of trial, Dr. Ramshaw provided a comprehensive report. Of particular interest is the following paragraph:

Mr. Goard’s behaviour leading to his arrest in April 2011 would likely not have occurred absent the influence of alcohol and possibly other substances. His underlying motivation for the offending remains unclear, albeit there were indicators of increasing problems including substance abuse and purchasing a firearm. He described a memory deficit for the time, and a significant history of black outs. Both his description of his drinking pattern and his reported memory deficit are consistent with alcohol-induced black outs. While it is not clear how much he consumed or whether this was combined with other substances, including his prescription medication (lorazepam and clonazepam – both are benzodiazepines), alcohol and benzodiazepines can both significantly impact on memory encoding, and they can both lead to significant disinhibition. Further, alcohol in particular is associated with aggressive behaviour. Blackouts do not, however, impact the ability to understand what one is doing at the time, i.e. that robbing someone is just that. [emphasis added]

[85] Dr. Ramshaw noted that a person who is highly intoxicated by alcohol can have their cognitive capacity severely affected. Moreover, bizarre behaviours may point to a higher level of intoxication. Alternatively, alcohol may simply disinhibit someone, allowing them to engage in uncharacteristic behaviours. Dr. Ramshaw said that, while a blackout does not affect the ability to understand, high levels of intoxication could impact on the ability to appreciate consequences.

[86] In cross-examination, Dr. Ramshaw acknowledged that her conclusion that Mr. Goard experienced a blackout was based on Mr. Goard’s self-reporting. Speaking about the effects of Clonazepam, Dr. Ramshaw said that Mr. Goard did not report that he had been taking them that day.

[87] She further elaborated on the difference between memory and consciousness. She said that a blackout is “just that” – an absence of memory at the time. If an individual were not also highly intoxicated, he or she would be aware of his/her environment and behaviour. However, a highly intoxicated person would have difficulty processing information, exercising reasonable judgment and might act in a bizarre manner.

[88] Dr. Ramshaw also acknowledged the phenomenon of paradoxical behaviours associated with benzodiazepines, and noted that they are rare. She noted that dosage is an important consideration.

ANALYSIS

[89] As I noted at the beginning of these reasons, Mr. Goard does not dispute that he was the person who took money from Mr. Sahi and Ms. Howes while armed with the gun. The evidence identifying him as that person is overwhelming.

[90] There are two main issues to be determined in this case. The first issue concerns Mr. Goard’s state of mind at the time he committed these acts. The second issue concerns whether the gun is a firearm for the purposes of s. 2 of the Criminal Code.

(a) Intoxication

[91] Mr. Goard relies on the defence of intoxication. Due to the multi-layered arguments that were made concerning this defence, it is helpful to consider the types or degrees of intoxication discussed in the case law. The Supreme Court of Canada discussed the various levels of intoxication in R. v. Daley (2007), 2007 SCC 53, 226 C.C.C. (3d) 1 (S.C.C.), in which Bastarache J. said the following at paras. 41-43:

Our case law suggests there are three legally relevant degrees of intoxication. First, there is what we might call "mild" intoxication. This is where there is alcohol-induced relaxation of both inhibitions and socially acceptable behaviour. This has never been accepted as a factor or excuse in determining whether the accused possessed the requisite mens rea…. Second, there is what we might call "advanced" intoxication. This occurs where there is intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused's foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea…..

The third and final degree of legally relevant intoxication is extreme intoxication akin to automatism, which negates voluntariness and thus is a complete defence to criminal responsibility. As discussed above, such a defence would be extremely rare, and by operation of s. 33.1 of the Criminal Code, limited to non-violent types of offences. [emphasis added]

This case engages a consideration of all three types of intoxication.

[92] The focus of the argument at the end of trial was on the impact of intoxication on the two counts of robbery with a firearm (Counts #1 and #4). However, Mr. Goard seeks to rely upon intoxication in relation to all counts.

[93] The most common type of intoxication defence is advanced intoxication. However, if successful, this can only take Mr. Goard so far. As the passage from Daley explains, it is only available in relation to specific intent offences. Robbery contains a specific intent element – relating to the purposeful connection between the assault or threat and theft: see R. v. Jean (2012), 2012 BCCA 448, 293 C.C.C. (3d) 66 (B.C.C.A.), at p. 74. Intoxication is capable of negating this intent. However, if intoxication were to succeed in relation to these offences in this case, it would not result in complete acquittals on these counts; instead, Mr. Goard would stand convicted of assault: see R. v. George (1960), 128 C.C.C. 289 (S.C.C.) and R. v. Luckett (1980), 50 C.C.C. (3d) 489 (S.C.C.).

[94] In order to negate the basic or general intent for assault, Mr. Goard must rely on the defence of extreme intoxication, asserting that the combination of alcohol and drugs robbed him of his ability to form the basic intent for assault or to engage in conduct that was voluntary. This form of intoxication is discussed in R. v. Daviault (1994), 93 C.C.C. (3d) 21 (S.C.C.). See also Kent Roach, Criminal Law, 5th ed. (Toronto: Irwin, 2012), at pp. 255-261. Writing for the Court, Cory J. held that, in order to succeed on this defence: “Expert evidence would be required to confirm that the accused was probably in a state akin to automatism or insanity as a result of his drinking.” Moreover, as Bastarache J. said in Daley, such a defence is “extremely rare” and largely barred by s. 33.1 of the Criminal Code.

[95] This section, the enactment of which was a direct and almost immediate response to Daviault, takes away the defence of extreme intoxication for certain general intent offences in cases of self-induced intoxication. The restriction to the defence applies to “an offence…that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person”: ss. 33.1(3). This covers all of Mr. Goard’s charges.

[96] The net result of this provision is that the defence would only be available to Mr. Goard if he became intoxicated involuntarily. Involuntary intoxication in Canada can be traced back to R. v. King (1962), 133 C.C.C. 1 (S.C.C.). It is capable of negating the mens rea and actus reus for general intent offences. However, there is an important restriction placed on this defence. The accused must be unaware that the substance (or, here, the combination of substances) might result in impairment. Further, the defence will not apply if the accused could reasonably have known that taking a certain substance or combination of substances would impair: see Roach, supra, at pp. 272-274.

[97] In R. v. Chaulk (2007), 2007 NSCA 84, 223 C.C.C. (3d) 174 (N.S.C.A.), the accused defended a number of violent offences on the basis of involuntary intoxication, owing to the consumption of alcohol and drugs. After reviewing the authorities, Batemen J.A. said the following (at para. 45): “Thus, I conclude, since R. v. King, supra the courts have consistently held that "voluntary intoxication" means the consuming of a substance where the person knew or had reasonable grounds for believing such might cause him to be impaired.” Expressed another way by Professor Roach, supra, at p. 273: “[C]onsumption of drugs or alcohol will be excluded as self-induced intoxication under section 33.1 only if the accused did not know and could not reasonably be expected to know the risk of becoming intoxicated.”

[98] Moreover, in R. v. Honish (1991), 1991 ABCA 304, 68 C.C.C. (3d) 329 (Alta.C.A.), the Court added a further restriction, saying (at p. 339): “The law concerning responsibility for one's acts following voluntary ingestion of intoxicating substances does not require that the consumer know to a nicety what the effect of the intoxicating substances will be.” The Supreme Court upheld the rejection of extreme intoxication in that case: 1993 156 (SCC), [1993] 1 S.C.R. 458.

[99] Lastly, and importantly, in R. v. Bouchard-Lebrun (2011), 2011 SCC 58, 275 C.C.C. (3d) 145 (S.C.C.), at p. 178, the Supreme Court held that s. 33.1 applies to any mental condition that is a direct extension of intoxication and draws no distinction based on the seriousness of the effects of self-induced intoxication. As the Chief Justice said at p. 178: “The appellant’s suggestion that it applies only to the “normal effects” of intoxication is wrong. There is no threshold of intoxication beyond which s. 33.1 Cr. C. does not apply to an accused…”

[100] The defence of extreme intoxication is not available to Mr. Goard. He testified to waking up in the morning and taking a Clonazepam (or two) and washing it down with a beer. Based on the line of cases tracing all the way back to King, the risk of becoming intoxicated in the circumstances was obvious. Any reasonable person would realize that this was a combination that might have drastic effects. I find that Mr. Goard knew this at the time, based on his self-described vast experience with drugs and alcohol.

[101] I am aware of the potential paradoxical effects that benzodiazepines may have on certain individuals. This was referred to in the evidence of both Dr. Rosenbloom and Dr. Ramshaw. However, these occurrences are extremely rare and are more commonly associated with higher doses than that reported by Mr. Goard. With the defence of extreme intoxication, the burden is on Mr. Goard to establish this defence on a balance of probabilities. The paradoxical effect aspect of his defence is purely speculative, especially since there is no reliable measure of his consumption that day. Moreover, while he may have blacked out in the past, Mr. Goard has not reported previous paradoxical episodes with this type of drug.

[102] Consequently, even if I accepted Mr. Goard’s evidence that he was extremely intoxicated at the time, he is unable get around the fact that, based on existing law, it must be considered to be self-induced intoxication and subject to the limitations of s. 33.1 of the Criminal Code.

[103] Before completing my discussion of extreme intoxication, and for the sake of completion, I make the following findings about the evidence. Had s. 33.1 not been a bar to this defence for Mr. Goard, I am unable to find that the evidence established that Mr. Goard was in this state. His evidence as to his consumption of drugs was incomplete and based on speculation. Mr. Goard could not give any real estimate of what he consumed that day. Based on the expert evidence called in this case, it is so unlikely one or two Clonazepam tablets taken with a beer would produce a state of intoxication sufficient to undermine the requisite intent for any of the offences on the indictment.

[104] I am also dubious whether Mr. Goard experienced a blackout for what transpired that day. I find that he was inconsistent about his history of blackouts and tended to exaggerate the number of times he has experienced this state. Nowhere was this more telling than in his dealings with Dr. Ramshaw. When asked to reconcile his various estimates of his own blackouts, Mr. Goard simply said it was anywhere between 10 and 60 times. I found this evidence to be unhelpful and somewhat evasive. In her report, Dr. Ramshaw wrote that, in describing his situation, Mr. Goard tended to be “over-inclusive and vague at times.” I would characterize his evidence at trial in more or less the same way – over-inclusive, glib and designed to paint himself and his situation in a more dramatic, but favourable light.

[105] As in many cases, the expert evidence called in this case is only as good as the facts upon which it is based. Both Dr. Ramshaw and Dr. Rosenbloom were completely dependent on Mr. Goard’s account. Dr. Ramshaw in particular was unable to confirm many facts because she was unable to get in touch with Colin Grant or Mr. Goard’s wife, even though she tried.

[106] Lastly, based on Dr. Ramshaw’s evidence, even if Mr. Goard’s account of experiencing a blackout could be accepted, this does not lead directly to the conclusion that his mental functioning was compromised at the relevant time. I reject Dr. Rosenbloom’s evidence on this point and his attempt to distinguish the density of Mr. Goard’s blackout with other examples of blackouts.

[107] To conclude this part of the intoxication analysis, Mr. Goard cannot rely upon the defence of extreme intoxication to negate the basic intent for assault, being a constituent element of robbery. Nor can it negate the basic or general intent for pointing a firearm, contrary to s. 87(1) of the Criminal Code. The question becomes whether advanced intoxication defence raises a reasonable doubt about Mr. Goard’s formation of the specific intent elements of any of the other counts on the indictment.

[108] On behalf of Mr. Goard, Mr. Drummie focused on the importance of determining whether the combination of alcohol and drugs deprived Mr. Goard of the capacity to form the intent to commit the offence, as well as whether he actually possessed the requisite intent. For many years, this was the mandated approach: see R. v. McKinlay (1986), 28 C.C.C. (3d) 306 (Ont. C.A.), at para. 45. Now, in dealing with advanced intoxication, a trier of fact must determine whether all of the evidence, including expert evidence, raises a reasonable doubt about intent: see Daley, supra, at p. 49. See also Don Stuart, Canadian Criminal Law, 6th ed. (Toronto: Carswell, 2011), at p. 456.

[109] The evidence does not raise a doubt in my mind that Mr. Goard possessed the requisite intent to commit any of the offences he committed that night. Again, part of the problem, from Mr. Goard’s perspective, is that there is no reliable evidence of his consumption of alcohol and drugs leading up to the commission of the offences. Mr. Goard simply asserted that, when he got up, he thought he took a pill or two and washed it down with a beer. There is no evidence of consumption following this time period.

[110] There is very strong evidence of intoxication on Mr. Goard’s part after the robberies, at Mr. Goard’s house and at the sports bar. Just as evidence of prior intoxication may be relevant to a person’s state at a later time, evidence of subsequent intoxication is capable of being probative of intoxication at an earlier time. Here, there is no evidence of Mr. Goard’s state before the robberies. His state of sobriety after the robberies is not compelling on the issue of intoxication during the robberies given the stark contrast in his deportment, demeanour and behaviour.

[111] I look to some of the features and surrounding circumstances of the robberies. Neither Mr. Sahi nor Ms. Howes thought that Mr. Goard was intoxicated. Neither of them could smell alcohol on his breath. Neither said that he was slurring his speech or that he lacked coordination.

[112] The robberies were not sophisticated or complicated encounters. Both reflected straightforward, goal-directed behaviour, carried out logically and without falter. Mr. Goard appeared to be aware of his environment and the nature of his interactions. He used the gun in an instrumental manner on both occasions. While somewhat unusual in the circumstances, Mr. Goard expressed concern for Mr. Sahi and Ms. Howes. But this reflects an awareness of the frightening impact of his actions. On both occasions, he calmly walked away with the money he had taken by threat with the gun.

[113] Mr. Drummie pointed to aspects of Mr. Goard’s behaviour that he characterized as unusual and bizarre. He argued that this behaviour was indicative of someone who was not in his right mind, perhaps intoxicated by alcohol and/or drugs. Mr. Drummie placed great emphasis on Mr. Goard’s exchange with Mr. Sahi about calling the police. However, as I have already said, I interpret their interaction differently. I find that Mr. Goard was expressing doubt about Mr. Sahi’s assurances that he would not call the police.

[114] In terms of Ms. Howes, Mr. Drummie relies on Mr. Goard’s questions about the downloads on her iPod. Again, while this might be somewhat unusual, I do not see it as being indicative of intoxication. As Ms. Howes said, the encounter was somewhat unusual. But she attributed it to Mr. Goard’s lack of experience in carrying out the robbery.

[115] I accept that Mr. Goard was a different person when the police arrived at his home later that evening. Had Mr. Goard presented in this manner while committing the robberies, his assertion of advanced intoxication might be more credible. The stark contrast in his behaviour leads me to believe that something happened between the time he committed the robberies and when the police first arrived. There were suggestions made by a number of witnesses (Ms. Rae, Mr. Grant and Ms. Shelleau) that he may have been smoking crack cocaine when he was back at the house, prior to the arrival of the police. He was aggressive and volatile in his own home, and for a long period of time. He was not like this at all during the robberies.

[116] In all of the circumstances, I am not left with any doubt that Mr. Goard possessed the requisite specific intent to commit both robberies and the accompanying offences involving the gun. Perhaps he had been drinking and maybe he did consume more Clonazepam during the day. At the very most, he may have achieved the disinhibiting state of mild drunkenness, as described in Daley. But the evidence of the robbery victims does not even support the presence of this non-absolving state of being. In other words, Mr. Goard has not raised any doubt that he was labouring under the effects of alcohol and/or drugs sufficient to compromise the mental state required for the offences with which he stands charged.

(c) Robbery With a Firearm (Counts #1 and #4)

[117] As mentioned already, it is necessary to determine whether the gun was a “firearm” within the meaning of s. 2 of the Criminal Code. The resolution of this issue will determine whether Mr. Goard will be convicted of robbery with a firearm or just robbery.

[118] Section 344(1) of the Criminal Code addresses the use of firearms while committing robberies. As the section provides:

344(1) Everyone who commits robbery is guilty of an indictable offence and liable

(a) if a restricted firearm or a prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment for a term of four years; and

(b) in any other case, to life imprisonment.

[119] In a rather complicated manner, the section states that the maximum penalty for robbery is life imprisonment. If a person uses a restricted or prohibited firearm, or any firearm in the criminal organization context (as described), a minimum penalty of five years imprisonment must be imposed for a first offence (and seven years for a subsequent offence): s. 344(1)(a). If a person uses a “firearm” (one that is not restricted or prohibited), and not in a criminal organization context, the mandatory minimum penalty is four years’ imprisonment: s. 344(1)(a.1).

[120] Mr. Goard’s case falls into the latter category (s. 344(1)(a.1)) because the gun he used was not restricted or a prohibited firearm, and he was acting alone. Consequently, it must be determined whether the gun he used is a “firearm” within the meaning of s. 2 of the Criminal Code. If the gun is not a “firearm”, he will be found guilt of robbery simpliciter: see R. v. D.(A.) (2003), 2003 BCCA 106, 173 C.C.C. (3d) 177 (B.C.C.A.) and R. v. Benns, [2004] O.J. No. 182 (C.A.).

Section 2 of the Criminal Code defines “firearm” in the following manner:

“firearm” means any 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 adapted for use as a firearm.

[121] When dealing with guns that are not “conventional” firearms, such as BB guns, it is necessary to determine whether the device is capable of firing projectiles at a velocity that can cause serious bodily injury or death. I accept the evidence of P.C. Dwayne Scott and Detective Richard Rossel that it was established that the device was capable causing this type of harm through the use of the Pig’s Eye Test, a recognized laboratory procedure used by law enforcement agencies: see R. v. Dunn (2013), 117 O.R. (3d) 171 (C.A.), at para. 40.

[122] The expert called by the defence, Mr. Bernardo, testified that Mr. Goard’s gun was not a firearm because if did not fall within the definition of a “firearm” in s. 84(3) of the Criminal Code which, in paragraph (d), makes reference to guns that can shoot projectiles at a velocity of 152.4 meters per second and expend energy of at least 5.6 Joules. Clearly the gun in this case did not meet these requirements. However, this definition of “firearm” only applies to specifically enumerated Criminal Code offences (ss. 91 to 95, 99 to 101, 103, 103 to 107 and 117.03) and not to any of the offences with which Mr. Goard stands charged.

[123] My conclusion on this point is supported by the Court of Appeal’s decision in Dunn, a case dealing with the question of whether a pellet gun (similar, but not identical to the one used in this case) was a “firearm” and also a “weapon” for the purposes of a number of Criminal Code offences. In the course of his reasons for a five-person panel, Rosenberg J.A. discussed the overall structure of the firearms provisions in the Criminal Code. He held that barrelled weapons that are not capable of firing a projectile at 214 feet per second are not firearms. For the purposes of this case, the following classification of a different group of firearms is helpful (in para. 45):

Barrelled objects shooting a projectile with a velocity of more than 214 ft./s. (or 246 ft./s., using the V50 standard) are firearms, because they are capable of causing serious injury or death, whether or not they also meet the paras. (a) or (b) in the definition of “weapon”; these weapons will fall within a prohibition such as that found in s. 90. Nevertheless, they will not be subject to the stricter licensing regime in the Criminal Code and the Firearms Act if they fall within one of the exemptions in s. 84(3), for example, if the velocity of the projectile does not exceed 500 f./s. [emphasis added]

This disposes of the issue in this case definitively. Mr. Bernardo was mistaken.[^6]

[124] Establishing that the gun is “capable of causing serious bodily injury or death” requires more than merely proving that the gun is capable of firing projectiles at a certain velocity. The case law also places a temporal limitation on the term “capable.” The question is when must it be capable of causing the requisite harm? This engages the question of the status of a gun that has been modified, damaged or disabled.

[125] The leading case is R. v. Covin and Covin (1983), 8 C.C.C. (3d) 240 (S.C.C.). The accused brothers were convicted of robbery and using a firearm during the commission of an offence under what is now s. 85 of the Criminal Code. The Nova Scotia Court of Appeal held that, while the “CO2 pistol” constituted a weapon (or imitation thereof) for the purposes of the robbery conviction, it set aside the firearm conviction, largely because the weapon was damaged – 14 parts of the gun were missing or damaged (although an experienced person could replace those parts within 10 to 15 minutes).

[126] The Supreme Court of Canada dismissed the Crown’s appeal. In doing so, Lamer J. (as he then was) employed a functional approach in determining the acceptable amount of adaptation required before something could be considered a firearm. As he said at p. 479:

In my view, the acceptable amount of adaptation and the time required therefore for something to still remain within the definition is dependent upon the nature of the offence where the definition is involved. The purpose of each section should be identified and the amount, nature and the time span for adaptation determined so as to support Parliament’s endeavour when enacting that given section. [emphasis added]

After discussing the definition of firearm that was applicable in that case (and which is virtually identical to the current definition in s. 2), Lamer J. focused on adaptability in the context of s. 83 (now s. 85) of the Criminal Code (at pp. 243-244):

Therefore, whatever is used on the scene of the crime must in my view be proven by the Crown as capable, either at the outset or through adaptation of assembly, of being loaded and fired, and thereby of having the potential of causing serious bodily harm during the commission of the offence, or during the flight after the commission of that main offence, the hold up.

…If inoperable, then, as regards s. 83, it is a “firearm” if, given the nature of the repairs or modifications required and the availability of parts on the scene, whatever was used could, during the commission of the offence, have been adapted by an ordinary person, or by the accused, if possessing special skills, so as to be capable of firing and causing serious injury. [emphasis added]

[127] In R. v. Hasselwander (1993), 81 C.C.C. (3d) 471 (S.C.C.), the Court considered the question of adaptation in determining whether a gun was a prohibited weapon. The case involved a gun that could be adapted to fire bullets in rapid succession during one pressure on the trigger (i.e., a machine gun). Writing for the majority, Justice Cory referred to the functional approach in Covin and concluded that a definition of immediate capability was too narrow in the circumstances. Instead, he held at p. 480, that, in the context of that case, involving a case of possession of a prohibited weapon, it meant “capable of conversion to an automatic weapon in a relatively short period of time and with relative ease.”

[128] This body of cases requires a consideration of adaptability in the context of the specific offence provision in issue, based on a sliding (though not necessarily linear) scale: see R. v. Brefo, [2010] O.J. No. 1085 (S.C.J.), R. v. Stacey (2009), 2009 NLCA 68, 249 C.C.C. (3d) 389 (N.L.C.A.) and R. v. Nikolic, [2008] O.J. No. 2895 (S.C.J.). In the case of possession offences, a longer period of time to repair or adapt a device may be tolerable: see Hasselwander. However, when the offence definition requires that the device be used during the commission of another offence (such as robbery), the gun must be adaptable within a time frame suitable to facilitate that purpose. This was confirmed in R. v. Smith, 2008 ONCA 151, at para. 7:

In the present case, as has been noted, there was no evidence that parts were available “on the scene…during the commission of the offence” that could have been used to make the gun operable. As the above extract from Covin makes clear, in order for an inoperable weapon to be a firearm as that word is defined in the Criminal Code, the parts must be available “on the scene” so that the weapon could be made operable during the commission of the offence. There was no such evidence therefore, in our view, the trial judge erred in finding that the rifle in question was a firearm within the meaning of the Criminal Code.

[129] The evidence in this case was not uniform on this issue. It is unclear whether the gun could be altered or fixed within a brief period of time by someone with little or no experience. The photographic exhibits of the firearm on the day that it was seized show that the spring in the magazine was damaged, with a couple of BBs stuck in the spring. As all of the experts noticed, the spring is meant to push and hold the BBs into position, ready to be fired; the BB’s are not supposed to be inside of the spring.

[130] There was a difference in the evidence in terms of being able to obtain a new magazine or spring. I accept the evidence of P.C. Scott and Det. Rossel that this type of equipment is readily available to police officers and that it might be possible to find replacement magazines at certain sporting goods stores. However, in this context, Covin requires a more precise point-in-time adaptability. When he committed the robberies, I have a doubt whether the broken (but fixable) gun was a “firearm” within the meaning of s. 2 of the Criminal Code. Consequently, I find Mr. Goard not guilty of robbery with a firearm on Count #1, but guilty of robbery. Similarly, I find Mr. Goard not guilty of robbery with a firearm on Count #4, but guilty of robbery.

(d) Possession of a Weapon (Count #2)

[131] On Count #2, Mr. Goard is charged with having in his possession “a weapon, to wit: a handgun, for the purpose of committing an offence, contrary to s. 88(1) of the Criminal Code.” Section 88(1) provides:

s. 88(1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for the purpose of the public peace or for the purpose of committing an offence. [emphasis added]

[132] The term “weapon” is defined in s. 2 of the Criminal Code as follows:

“weapon means any thing used, designed to be used or intended for use

(a) in causing death or injury to a person, or

(b) for the purpose of threatening or intimidating a person

and without restricting the generality of the foregoing, includes a firearm.

[133] Throughout this trial, this count was predicated on the Crown proving that the gun was operable and properly classified as a firearm. Given my findings in relation to this gun, and with 20/20 hindsight, it might have been appropriate for the Crown to include a charge under s. 85(2) of the Criminal Code, which criminalizes the use of an “imitation firearm” during the commission of an indictable offence. Section 84(1) defines an “imitation firearm” as “anything that imitates a firearm, and includes a replica firearm.” The gun in this case, albeit disabled, clearly falls within the definition of an “imitation firearm” and a “replica firearm” (also defined in s. 84(1)). Surely a device that just misses the mark (in terms of adaptability) of being a “firearm” must be an “imitation firearm”: see R. v. Scott (2000), 145 C.C.C. (3d) 51 (B.C.C.A.), aff’d (2001), 2001 SCC 73, 159 C.C.C. (3d) 319 (S.C.C.).

[134] As already mentioned, while it might be possible for the disabled gun in this case to be classified as a weapon or an imitation weapon (see Dunn, supra), the charge was always predicated on the gun being classified as a “firearm.” This is how the case was defended. Very fairly, Ms. Nedelkopoulos for the Crown took the position that, if I find that the gun is not a “firearm”, I should not register a conviction on this count. Accordingly, I find Mr. Goard not guilty on this count. However, I should note that the use of the broken device during the commission of both robberies could well be a serious aggravating factor on sentence.

(e) Pointing a Firearm (Counts #3 and #5)

[135] Mr. Goard is charged with pointing a firearm at his robbery victims, contrary to s. 87(1) of the Criminal Code. For the reasons set out above in relation to the robbery with a firearm counts, these counts have not been made out. The same point-in-time analysis derived from Covin is applicable to these counts. The gun pointed at Mr. Sahi and Ms. Howes was not a “firearm” within the meaning of s. 2 of the Criminal Code. Section 87(1) does not specifically criminalize pointing an imitation firearm at another person, even though the firearm need not be loaded for the purposes of this provision. Consequently, Mr. Goard will be found not guilty on these counts: see R. v. Smith, supra, para. 9.

(f) Careless Storage (Count #6)

[136] Lastly, Mr. Goard is charged with careless storage of a firearm, contrary to s. 86 of the Criminal Code. This count is based on the police finding the gun in a downstairs cupboard when the search warrant was executed.

[137] As noted above, I have determined that the gun is not a “firearm” for the purposes of a number of counts in the indictment. The offences that relate to the actual commission of the robberies require that the device be adaptable within a limited time frame. Arguably, and employing the same functional approach when dealing with this count, the expanded time frame reflected in Hasselwander, supra, is more appropriate to these circumstances. Assuming that the gun is a firearm for the purposes of s. 86, the question becomes whether it was stored in a careless manner.

[138] In determining whether liability has been established under this section, it must be determined whether Mr. Goard’s conduct constitutes a “marked departure from the standard of care of a reasonably prudent person in the circumstances”: R. v. Finlay (1993), 83 C.C.C. (3d) 494 (S.C.C.). Despite their diligence, counsel was unable to find BB gun cases decided under this provision of the Criminal Code. It would appear that the type of gun in this case is not subject to the transport and storage regulations under the Firearms Act (S.C. 1995, c. 39).

[139] The gun was seized from the cupboard the day after the offences were committed. There was no evidence as to how the gun found its way into this cupboard or who placed it there. A number of people were in and out of the house the night of the offences and into the morning hours of the next day.

[140] On the assumption that Mr. Goard placed it there, or knew that it was so placed, in all of the circumstances, while his actions were careless, they did not amount to a marked departure. Admittedly, the most concerning aspect of the scenario related to the presence of Mr. Goard’s children in the home. Little mention was made about this in the evidence, other than the fact that they were in the house. There was no evidence about where these children spent their time in the home and whether they used or were permitted to be in the basement at all (which was set up as an office or work space).

[141] Given my findings with respect to the operability of the gun, I have determined that leaving a broken, but loaded, BB gun in a closed basement cupboard does not constitute careless storage in these circumstances. It may be that a loaded BB gun, left on a table or a couch, in a house occupied by children, might constitute a marked departure. But I have a reasonable doubt that the standard was met in this case.

CONCLUSION

[142] In summary, with the exception of Count #6 (careless storage), I find that it was Mr. Goard who committed acts reflected in all other counts on the indictment. I reject his defences of advanced intoxication and extreme intoxication. Due to the fact that the BB gun that he used was inoperable at the time of the robberies, I find Mr. Goard not guilty of two counts of robbery with a firearm, but guilty of two counts of robbery. The same problems with the gun lead me to find him not guilty on the rest of the counts on the indictment.

[143] I wish to thank both counsel for their excellent assistance on the many legal issues that arose throughout the course of this trial.

TROTTER J.

Released: April 8, 2014

[^1]: The gun is described in more detail below. For present purposes, the gun is a device that shoots BBs. Witnesses referred to it variously as a BB gun or a pellet gun. I will refer to it as “the gun.” Whether the gun is a “firearm” pursuant to s. 2 of the Criminal Code is a live issue in this trial, addressed below.

[^2]: To a certain extent, Mr. Sahi’s account was confirmed by many (60) photographs of Mr. Goard sitting in the back of the taxi.

[^3]: This was not true because Mr. Grant travelled to Mr. Goard’s home by TTC.

[^4]: P.C. Robert said that he was not close enough to Mr. Goard to smell alcohol on the first visit to 91 McAllister. However, he would have smelled alcohol on the second occasion.

[^5]: Exhibit #63D.

[^6]: My conclusion is also supported by Det. Rossel, who testified that a BB gun that does not shoot at greater than 500 feet per second need not be registered.