ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 85/13

DATE: 2014-05-27

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DILLON HALL-WORTHINGTON, CHAD ROBINSON and LUKE ROSIER

Amanda Camara, for the Crown

Danielle Gendron, for Chad Robinson

HEARD: March 24, 25, 26 & 27, 2014

REASONS FOR JUDGMENT

Gray J.:

[1] Mr. Robinson was originally charged in an indictment that included two others: Dillon Hall-Worthington and Luke Rosier. This trial only involved Mr. Robinson.

[2] Mr. Robinson is charged with using a firearm, namely a shotgun, to rob three people of various items and money. He is also charged with breach of probation arising out of the same events.

[3] The robberies involved a scheme under which Mr. Robinson and Luke Rosier participated, together with Dillon Hall-Worthington, to recover some property belonging to Mr. Hall-Worthington. The scheme went wrong, a shotgun was fired, a person was seriously injured, and the perpetrators ran. They were subsequently apprehended.

[4] For the reasons that follow, I find Mr. Robinson guilty of all charges.

Background

[5] In August, 2012, Lukas Miklenda lived at 30 Speers Road, Apartment 807, in Oakville. On the evening of August 11, 2012, he was at home with some friends, Marcin Halabis and Tristan Gauthier-Reia. They were going to go to a pub and have some drinks.

[6] At around 9:00 p.m., he spoke to a friend, Dillon Hall-Worthington, on the telephone, and said he could come over.

[7] Mr. Miklenda testified that Dillon came over and appeared nervous. Mr. Miklenda went to the washroom. Shortly, his apartment door swung open and a masked man confronted him in the washroom. The man had a black bandana over his face, up to his nose. He had on a sweater and pants, and a hoodie on his head.

[8] The man threatened Mr. Miklenda, and told him to get down or he would get hurt. They fought. Mr. Miklenda had never seen him before.

[9] The man said to Mr. Miklenda “Give Dillon his money.” Mr. Miklenda had been pushed into the bathtub.

[10] Mr. Miklenda got out of the bathtub, struggled with the man, and managed to get into the living room. There, he saw another masked man with a sawed off shotgun pointed at his two friends who were on the floor. The gun was about two feet long.

[11] Mr. Miklenda could see more of this man’s face than he had seen of the other man’s. He also had on a bandana and a hoodie.

[12] Mr. Miklenda’s friend, Dillon, was in the far left corner of the living room. He appeared to be scared.

[13] Mr. Miklenda testified that the man with the gun screamed “Get down – I’m going to kill you.” Mr. Miklenda testified that he charged the man with the gun and ripped off his bandana. He grabbed the gun, at which point the man said “Don’t do this” or something to that effect. Mr. Miklenda then heard a very loud noise, after the other man pulled the trigger of the gun.

[14] Mr. Miklenda then saw blood pouring from his hand. He ran for his life.

[15] Ultimately, Mr. Miklenda lost one third of his left thumb. He required three surgeries and a skin graft. He now has about 50 per cent use of his thumb.

[16] When Mr. Miklenda returned to his apartment he discovered that his computer was missing, as well as cash, a guitar and some watches. The watches had been contained in a jewellery chest along with some cash, all of which were gone. His computer had been taken, which was worth about $2,500. His electric guitar, which was next to his computer, was gone.

[17] On cross-examination, Mr Miklenda confirmed that the experience was very traumatic. He did not know the man who had attacked him in the bathroom.

[18] Mr. Miklenda acknowledged that he had broken into Dillon’s car and stolen a back pack. He had wanted cash and knew there would be some “weed” in the back pack.

[19] He also confirmed that he knew there was a gun involved in the incident only when he left the washroom and went to the living room.

[20] Marcin Halabis testified that on August 11, 2012, he was hanging out in Mr. Miklenda’s apartment with Tristan Gauthier-Reia, both of whom were good friends. He said things were very good until Dillon arrived. Once Dillon arrived, things were tense. After Dillon arrived, Dillon got up and unlocked the apartment door.

[21] Mr. Halabis testified that Mr. Miklenda went to the bathroom. Two people then barged into the apartment at the same time. One of them confronted Mr. Miklenda in the bathroom.

[22] The other person came into the living room with a gun, and told Mr. Halabis and Mr. Gauthier-Reia to get on the floor. This person had on baggy clothes, with a bandana that came up his nose.

[23] The man with the gun told them to empty their pockets and said he would kill them if they moved. Mr. Halabis said he emptied his pockets and put the contents on a table. He testified that the gunman asked Mr. Gauthier-Reia if he had any weapons, and he poked him in the head with the gun.

[24] Mr. Halabis testified that the gun was a green/grey colour about 18 inches in length.

[25] Mr. Halabis testified that while he was on the floor he begged the gunman not to hurt him. He said his friend Tristan was also on the floor, and took out a phone and a five dollar bill. Mr. Halabis took out a Blackberry, worth about $500, and his wallet which contained identification, credit cards, and about $20-$40 in cash. He never got his belongings back.

[26] Mr. Halabis testified that the gunman ordered them to get naked. He was taking off his shirt, when Mr. Miklenda interrupted. He had fought off the other person in the bathroom.

[27] Mr. Halabis testified that Mr. Miklenda asked the gunman to stop what he was doing. He said “You’re not robbing me in my own house.” Mr. Miklenda grabbed the gun and there was a struggle. Mr. Halabis testified that the gunman said “I’m taking the safety off.” Mr. Miklenda ripped off the mask and said “It’s you – why are you doing this?”

[28] Mr. Halabis testified that he put his sweater back on and crawled towards Mr. Gauthier-Reia. He said “Should we do something?”

[29] Mr. Halabis testified that he heard the gun go off. It was so loud that his ears were ringing. He said he blacked out. He quickly got out of the apartment.

[30] On cross-examination, Mr. Halabis testified that he could see into the bathroom from where he was. He said the incident appeared to be disorganized. There was no communication between the two masked men.

[31] Samantha Brown testified. She said that on August 11, 2012, she was hanging out in Tyler Hall-Worthington’s apartment on the 14th floor at 30 Speers Road, Oakville. She was with Tyler, Tiffany Allen, and Dillon Hall-Worthington. They were watching television, and the mood was good.

[32] Ms. Brown testified that the mood changed when two people, whom she identified as “Luke” and “Chad” came in. Luke’s nickname was “B.M.” and Chad’s nickname was “Caesar”. She described Luke as white and balding, and Chad as short and black.

[33] Ms. Brown testified that there had been some discussion about something having been stolen from Dillon, and that they knew who had stolen it. Dillon called Luke and Chad to come and help.

[34] Ms. Brown testified that she had met Luke before, as a friend of Dillon’s, but did not know Chad.

[35] Ms. Brown testified that Luke had brought a big black bag with him. While they were in the apartment, Luke brought out a gun from the bag. She testified that everyone was in the apartment. Luke was on a chair near the balcony, and Chad was on a couch. Ms. Brown was on the same couch.

[36] Ms. Brown testified that the gun was a green, camouflage colour. She also described the ammunition, as “decently big”, and red. She testified that Luke put the ammunition into the gun. Everyone was still in the room when the ammunition was put into the gun.

[37] Ms. Brown testified that at some point Chad left the apartment, and was gone about 10 or 15 minutes. She testified that she let Chad into the building and brought him up to the apartment.

[38] Ms. Brown testified that about ten minutes after she and Chad returned, Tyler, Dillon, Luke and Chad left the apartment. About five or ten minutes later, she heard a loud noise and the fire alarm. Shortly, there was a bang on the door. Dillon appeared and said “Go”. She left the building. She subsequently gave a statement to the police.

[39] Tristan Gauthier-Reia, testified. He said on August 11, 2012, he was at Mr. Miklenda’s apartment with Marcin Halabis. He said Dillon Hall-Worthington subsequently came. He did not know why Dillon was there. After he arrived, Dillon went to the front door of the apartment and unlocked it.

[40] After the door was unlocked, two guys came in. One went to the bathroom and one to the living room.

[41] The person in the living room had a bandana over his nose, and had a shotgun, which was a camouflage colour, and was about one and a half to two feet long.

[42] The gunman told Mr. Gauthier-Reia and Mr. Halabis to get on the floor. He pointed the gun at them. He told them to empty their pockets. Mr. Gauthier-Reia took five dollars and a phone out of his pockets. He put the phone under the couch. He said the gun was touching him in the back of his head.

[43] Mr. Gauthier-Reia testified that he saw the other person in the bathroom with Mr. Miklenda. Mr. Miklenda got out of the bathroom and struggled with the gunman.

[44] Mr. Gauthier-Reia testified that he heard a shot fired, that was very loud. He had his head down and did not see it. He looked up, and everyone was out of the apartment except the person who had been in the bathroom with Mr. Miklenda. That person was trying to unplug a computer that was in the living room. He did so. They looked at each other, and the person left the apartment. Mr. Gauthier-Reia did not recognize that person. He was carrying the computer.

[45] Mr. Gauthier-Reia testified that the five dollars that he had taken from his pocket was gone.

[46] On cross-examination, Mr. Gauthier-Reia confirmed that he is a good friend of Mr. Miklenda. He testified that Mr. Miklenda may have had something of Dillon’s. He testified that he was the only one left with the man who was in the bathroom with Mr. Miklenda when that person took the computer. He said it was a desktop computer with a touch screen. It was about one and a half feet wide and about three inches thick.

[47] Tiffany Allen testified. She testified that on August 11, 2012, she was at an apartment on Speers Road with her friend Samantha Brown and Tyler Hall-Worthington, at about 9:30 p.m. At about 9:40 p.m., Luke, or “B.M.” and Chad, or “Caesar”, entered the apartment. She had known Luke since Grade 9, but did not know Chad before.

[48] Ms. Allen testified that she knows Dillon Hall-Worthington, who arrived in the apartment before Luke and Chad did.

[49] While Dillon was in the apartment, there was discussion about some of Dillon’s possessions having been stolen. Ms. Allen testified that she had been told about the theft by a friend of Mr. Miklenda’s, with whom she had been in a relationship. She told Dillon about this. He became upset. Shortly after, Luke and Chad arrived.

[50] Ms. Allen testified that Luke had a black duffle bag, about two feet long. Chad was not carrying anything. Chad left the apartment for a short period of time.

[51] After Chad left the apartment, Luke took a shotgun out of the bag. It was a dark green camouflage colour. It was about one and a half to two feet long.

[52] Samantha Brown left the apartment to let Chad in. Tyler had already left the apartment.

[53] When Chad came back into the apartment, the shotgun was on Luke’s lap. Luke loaded one round into the gun. The ammunition was red with a copper tip. Chad said “If we’re not going to use the gun, why load it?” He was told “Don’t worry about it.”

[54] It was decided that Dillon, Luke and Chad would go. The gun was in Luke’s jacket, underneath it. Luke was holding it.

[55] Shortly after they left, Ms. Allen felt the building shake. Dillon banged on the door and said “Luke shot someone’s finger off”. They all left.

[56] Ms. Allen identified Chad Robinson, the accused, from a photo line-up. It is agreed that he was properly identified.

[57] Ms. Allen testified that when Chad came back into the apartment after he had left for a period, and saw the gun, there was no reaction.

[58] On cross-examination, Ms. Allen testified that on the evening of August 11, 2012, she had had one glass of wine. She did not believe Chad was carrying anything. She estimated that Chad was away from the apartment for 10 to 30 minutes. She confirmed that the gun was still on Luke’s lap when Chad re-entered the apartment. She testified that she only saw Luke holding the gun, and that he put it under his jacket. When she first saw the gun, she was not sure if it was real. When she saw it was loaded, she knew it was real.

[59] Dillon Hall-Worthington testified. He said that on August 11, 2012, he was in his brother Tyler’s apartment with Samantha Brown and Tiffany Allen. He testified that Tiffany Allen said that Lukas Miklenda had broken into a car and stolen some of his stuff. She said it was about three weeks prior. He said this was a shock, because the stuff had been stolen by someone he trusted.

[60] Dillon testified that he called Luke Rossier and told him he needed help. He said that he and Tyler went and picked up Luke near Oakville Place. They drove to an apartment building near Trafalgar Road, where Luke picked up a duffle bag. Dillon testified that he knew there was a shotgun in the duffle bag. He had told him to bring protection.

[61] Dillon testified that they drove to an apartment near North Service Road and Dorval Drive. They picked up Chad. Dillon did not know him. He was introduced as “Caesar”. He testified that they drove to Tyler’s apartment.

[62] After arriving at Tyler’s apartment, Dillon testified that he tried to call Lukas Miklenda, and then he left the apartment. When he returned, Chad was not there. At about 9:30 p.m., he managed to reach Mr. Miklenda. Dillon called Chad, who then returned to the apartment.

[63] While Chad was out of the apartment, Luke took out the shotgun. He had a bag of shells with him. After Chad returned, they were all there while the gun was being handled. In the apartment were Dillon, Luke, Chad, Samantha and Tiffany. It is a small apartment.

[64] Dillon described the gun as being a sawed off shotgun, about two feet long, and being a camouflage colour. Chad said something to the effect of “Don’t load it.” Luke had the shells for the gun in a zip lock bag. He said they had to be prepared for anything to happen.

[65] Dillon testified that they discussed the plan. He said the plan was to go to Mr. Miklenda’s apartment and see what happens. He said they would scare Lukas and get his stuff back. He said the plan was discussed with everyone in the apartment, including Chad. It was decided to go down and rough Lukas up and get the stuff. The gun was in the bag.

[66] Dillon testified that he went to Mr. Miklenda’s apartment. He unlocked the door after he got there. He sat on a chair and was nervous. He said Tristan and Marcin were sitting on a couch. Mr. Miklenda was in the bathroom.

[67] Dillon testified that the apartment door was kicked in. Chad went to the bathroom where Mr. Miklenda was. Luke told the others to get on the ground and undress and empty their pockets. He was holding the gun in his hands. The gun was loaded. He heard it click.

[68] Dillon testified that Chad hit Mr. Miklenda, who fell into the bathtub.

[69] Dillon testified that Tristan and Marcin were on the floor and removed their cellphones.

[70] Dillon testified that Mr. Miklenda got out of the bathroom and ran at Luke. He said Mr. Miklenda grabbed the gun, at which point Luke said “Fuck it – I’m taking the safety off.” Dillon heard the gun go off. He said Chad was near the bathroom.

[71] Dillon testified that he was the first to leave the apartment. He went to Tyler’s apartment, where Ms. Brown and Ms. Allen let him in. He told them they had to go. They went to a bar down the street. They did not speak to Chad afterwards.

[72] On cross-examination, Dillon testified that when he was interviewed by the police he was high on drugs. He said he was functional.

[73] Dillon testified that he thought that he and Mr. Miklenda were best friends. He was hurt when he found out what Lukas had done.

[74] Dillon confirmed that when the gun was visible, Chad was there. He said Chad said “Don’t load it.” He said all of those present discussed the plan when Chad was there. They thought the gun would be used as a scare tactic. He said everyone in the room knew about the gun. Ms. Brown and Ms. Allen thought using the gun was a bad idea. Chad’s reaction was “Don’t load it”. Dillon said he was not sure about using the gun.

[75] Chad Robinson, the accused, testified. He said that on August 11, 2012, he was at home when he received a call from Luke Rosier. Luke told him his friend Dillon had lost valuable items, and he wanted help. He said there was an opportunity to make some money.

[76] About five minutes later, Mr. Robinson testified that he was picked up by Dillon and Tyler and Luke. They went to Tyler’s apartment at 30 Speers Road. About 10 or 15 minutes after he arrived, he went on an errand to pick up some wine at the LCBO.

[77] Mr. Robinson testified that he left the apartment at just after 9:00 p.m. He was called and asked if he could pick up some coke. Later, Luke called and asked him where he was. He said he was on his way.

[78] After returning to the apartment, they decided what to do. There was no real plan, it was spur of the moment. It was agreed that Dillon would go to the apartment and unlock the door. The others would come and rough up Mr. Miklenda. Dillon’s stuff would be in the apartment and they would get it.

[79] Mr. Robinson testified that he wore black clothes and a bandana, so that it would be intimidating. He said Luke wore black clothes.

[80] Mr. Robinson said that as far as he knew there was no weapon. He did not see a weapon in Tyler’s apartment. He saw Luke carrying a bag, but they did not discuss its contents. He did not ask. He reiterated that he did not see a gun. He was not paying attention to Luke. As far as he was concerned, they were just going to go to Mr. Miklenda’s apartment and recover Dillon’s stuff.

[81] Mr. Robinson testified that he and Luke went to Apartment 807. They opened the door. He saw Mr. Miklenda in the apartment. He did not see what Luke did.

[82] Mr. Robinson testified that he was in the washroom with Mr. Miklenda. Dillon came in with him. There were punches to Mr. Miklenda’s face. There was no weapon.

[83] Mr. Robinson testified that after leaving the washroom, he went directly into Mr. Miklenda’s bedroom. There was no light on. He searched in the dark. He heard a loud bang and a commotion.

[84] Mr. Robinson testified that he went to the living room and saw a computer, which he assumed was Dillon’s computer. He unplugged it and took it. He saw Tristan on the floor.

[85] Mr. Robinson testified that he went into the hallway and down the stairs. He heard Luke call “Hail Caesar”, on the fifth floor. He went down the stairs to Tyler’s vehicle. He had the computer with him. Luke had a jacket on.

[86] Mr. Robinson testified that he saw Luke remove a strap from his neck, and he saw a shotgun, approximately two feet long. He said it was the first time he had seen it. Luke put the gun in a bag and they went to Luke’s place.

[87] Mr. Robinson testified that at Maplehurst he had some contact with Luke. Luke accused him of ratting on him.

[88] Mr. Robinson denied telling Luke to not load the gun. He reiterated that he first saw the gun when he was in the back of Tyler’s car.

[89] On cross-examination, Mr. Robinson insisted that he did not know that Luke had a gun. While he saw Luke carrying a duffle bag, he did not ask what was in it. He said that Luke did not open the bag when he was in Tyler’s apartment.

[90] Mr. Robinson acknowledged that in his interview with the police, he agreed that he had seen the gun while he was in Tyler’s apartment, but he insisted he was not being truthful. He just wanted to tell the police what they wanted to hear so that he could get out of there.

[91] Mr. Robinson denied that he had taken two watches, or any money or anything off the coffee table. He only took the computer.

[92] Mr. Robinson acknowledged and identified a photograph recorded on a security camera that showed him leaving the building after the incident. He acknowledged that he was carrying a computer, and that he had a bag on his back that clearly had items in the bag. He said he had never checked the bag before.

Submissions

[93] Ms. Gendron, counsel for Mr. Robinson, submits that Mr. Robinson should be acquitted of all charges. Clearly, Mr. Robinson committed an assault, a theft and a breaking and entering. However, he is charged with robbery, and he did not commit that offence.

[94] Mr. Gendron submits that evidence that Mr. Robinson knew of the gun was unreliable and should not be accepted. There are inconsistencies in the evidence given by various witnesses about the gun.

[95] Mr. Robinson’s denial of knowledge of the gun is consistent, and believable. Mr. Robinson testified that he did not know about the gun until after the incident had occurred, and he should be believed, or at the very least his evidence raises a reasonable doubt. If Mr. Robinson did not know about the gun, he cannot be convicted of robbery by using a firearm.

[96] Ms Gendron submits that this case falls to be decided based on the well-known case of R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742

[97] Ms. Gendron submits that if I believe Mr. Robinson’s evidence, he must be acquitted. Even if I do not believe Mr. Robinson’s evidence, he must be acquitted if his evidence leaves me with a reasonable doubt. Even if Mr. Robinson’s evidence does not leave me with a reasonable doubt, he can only be convicted if the rest of the evidence convinces me of his guilt beyond a reasonable doubt.

[98] Ms. Gendron submits that Mr. Robinson’s evidence, at the very least, should raise a reasonable doubt. The rest of the evidence, with its many inconsistencies, is not sufficient to prove Mr. Robinson’s guilt beyond a reasonable doubt.

[99] Ms. Camara, counsel for the Crown, submits that Mr. Robinson should be convicted on all counts.

[100] Ms. Camara submits that all the witnesses, other than Mr. Robinson, are consistent in their evidence that everyone knew of the firearm before the incident occurred. It defies common sense that they are all mistaken, and that Mr. Robinson simply did not see the gun.

[101] It is not in dispute that Mr. Rosier had the gun in Mr. Miklenda’s apartment. It is inconceivable that Mr. Robinson would not have seen the gun before they got to the apartment. It is also inconceivable that he only saw the gun after the incident was over.

[102] At a number of points in Mr. Robinson’s interview with the police, he acknowledged that he had seen the gun before the incident occurred. It is not credible that he acknowledged seeing the gun simply to let the police hear what they wanted to hear.

[103] Ms. Camara submits that when all the evidence is considered, it can only be concluded that Mr. Robinson’s guilt has been proven beyond a reasonable doubt.

Analysis

[104] Mr. Robinson is charged with three counts of robbery. Robbery is defined in section 343 of the Criminal Code, which provides:

343. Every one commits robbery who

(a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;

(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;

(c) assaults any person with intent to steal from him; or

(d) steals from any person while armed with an offensive weapon or imitation thereof.

[105] From this definition, it is clear that robbery is committed whenever there is theft and a measure of violence is used while committing it. While robbery can be committed by stealing while armed with an offensive weapon, the use of an offensive weapon is not an essential ingredient: see R. v. Moore, 2012 ONCA 770, [2012] O.J. No.5249 (C.A.).

[106] The use of a firearm during a robbery can result in the imposition of a minimum sentence. Section 344(1) of the Code provides:

344. (1) Every person who commits robbery is guilty of an indictable offence and liable

(a) if a restricted firearm or 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. (i) in the case of a first offence, five years, and

ii. (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 of imprisonment for a term of four years; and

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

[107] During the incident in question, Mr. Robinson did not use a gun. However, he went to Mr. Miklenda’s apartment with the objective stealing from him. He did steal from him, and he assaulted Mr. Miklenda. Thus, he is guilty of robbery. Whether or not he is liable to a minimum sentence depends on whether he was a party to the offence of robbery which included the use of a firearm. Section 21 of the Code provides as follows:

21. (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[108] In my view, Mr. Robinson and Luke Rosier aided each other in committing the offence of robbery. There was a common plan to attend at Mr. Miklenda’s apartment and steal things that were in the apartment. It was intended to “rough up” Mr. Miklenda as part of the plan. The commission of a robbery was something each of them knew would be a probable consequence of carrying out the plan. Thus, in my view, pursuant to either subsection 1 or subsection 2, Mr. Robinson and Mr. Rosier are both parties to the offence of robbery.

[109] For the purpose of considering whether Mr. Robinson is subject to a minimum sentence pursuant to section 344 of the Code, I must decide whether Mr. Robinson’s involvement included the common purpose of using a firearm. In other words, I must be satisfied beyond a reasonable doubt that Mr. Robinson was aware of the use of a firearm as part of the plan.

[110] I am satisfied beyond a reasonable doubt that Mr. Robinson was aware of the use of a firearm as part of the plan. My reasons follow.

[111] All of the witnesses, apart from Mr. Robinson, testified that Mr. Robinson knew of the sawed-off shotgun, and that it was loaded. Except for Mr. Robinson, all witnesses testified that Mr. Robinson was in Tyler Hall-Worthington’s apartment when the sawed-off shotgun was displayed, and when it was loaded. Indeed, they testified that Mr. Robinson made comments about whether it should be loaded. The witnesses who testified to this effect had no reason to lie about it. I accept their evidence.

[112] It is common ground that Mr. Robinson and Mr. Rosier went together to Mr. Miklenda’s apartment in order to steal from Mr. Miklenda. Mr. Rosier had the gun with him. It defies common sense to conclude that Mr. Robinson was unaware of the fact that Mr. Rosier had a gun that was one and a half to two feet long with him. It is also difficult to believe that Mr. Rosier could have trained the gun on two individuals in a fairly small apartment, without Mr. Robinson being aware of it. On several occasions (by my count, at least five occasions) during Mr. Robinson’s interview with the police, Mr. Robinson acknowledged seeing the gun before the incident occurred, or did not dispute it when it was put to him by the police. I do not accept his evidence that he simply told untruths to the police so that they would hear what they wanted to hear.

[113] Having considered all of the evidence, including the evidence of Mr. Robinson, I am persuaded beyond a reasonable doubt that Mr. Robinson was fully aware that a firearm would be used in the course of the robbery, at the very least to scare the victims. Whether he knew it would actually be fired is not material.

[114] In count one, it is alleged that Mr. Robinson used a firearm in robbing Lukas Miklenda of a laptop computer. There is no doubt, indeed Mr. Robinson admits, that he took a computer from Mr. Miklenda’s apartment. I do not regard the term “laptop” as an essential part of the description of what was stolen. A computer was stolen, and a firearm was used in the course of stealing it. Mr. Robinson was a party to the offence. He is guilty on count one.

[115] In count two, it is alleged that Mr. Robinson used a firearm in robbing Marcin Halabis of a cell phone and a wallet. Mr. Halabis testified that a Blackberry and his wallet, containing identification, credit cards and cash, were taken from him and he did not get them back. A firearm was used in committing the offence. I am satisfied beyond a reasonable doubt that either Mr. Robinson or Mr. Rosier took them, and they were each party to the offence. Mr. Robinson is guilty on count two,

[116] Mr. Robinson is charged in count three with using a firearm in robbing Tristan Gauthier-Reia of money. Mr. Gauthier-Reia testified that five dollars was taken from him. A firearm was used in committing the offence. I am satisfied beyond a reasonable doubt that either Mr. Robinson or Mr. Rosier took the five dollars and they were each party to the offence. Mr. Robinson is guilty on count three.

[117] Mr. Robinson is charged in count four that on the day in question he failed without reasonable excuse to comply with a probation order, which required that he keep the peace and be of good behaviour. Clearly, by engaging in a robbery, he did not keep the peace and be of good behaviour. Mr. Robinson is guilty on count four.

[118] There will obviously be a question as to whether count four should be stayed on the basis of the Kienapple principle (R. v. Kienapple,1974 14 (SCC), [1975] 1 S.C.R. 729). I will hear submissions on that question on the day I hear submissions on the appropriate sentence.

Disposition.

[119] For the foregoing reasons, I find Mr. Robinson guilty on counts one, two, three and four.

Gray J.

Released: May 27, 2014

COURT FILE NO.: 85/13

DATE: 2014-05-27

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

HER MAJESTY THE QUEEN

– and –

DILLON HALL-WORTHINGTON, CHAD ROBINSON and LUKE ROSIER

REASONS FOR JUDGMENT

Gray J.

Released: May 27, 2014