COURT FILE NO.: CR-14-40000 560 0000

DATE: 20150409

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TERRENCE AGTUAL

Henry Poon, for Her Majesty The Queen

Rohan Robinson, for the Accused

HEARD: February 24 – 27, March 2, 3 and 6, 2015

DUNNET J.: (Orally)

REASONS FOR JUDGMENT

Overview

[1] The accused stands charged with robbery, assault causing bodily harm, unauthorized possession of a loaded prohibited firearm, possession of a firearm knowing its possession is unauthorized, possession of a firearm contrary to a prohibition order, and possession of cannabis marijuana in an amount exceeding 30 grams.

[2] At the outset of his trial, the accused entered a plea of guilty to robbery, assault causing bodily harm, and possession of cannabis marijuana in an amount exceeding 30 grams.

[3] The position of the Crown is that the accused brought a gun to the robbery and used it to pistol whip the victim, who suffered a broken jaw. The accused fled the scene and when he was confronted by police, he ran, tossing the gun into some bushes.

[4] The position of the defence is that the accused grabbed a bag from the victim, a drug dealer, and fled the scene. When he opened the bag, he found marijuana and a gun. When he was confronted by police, he ran, tossing the gun into some bushes. When the victim told the police that he was pistol whipped, they conspired to say that the accused brought the gun to the robbery.

The Evidence

Police Officer Sajeev Nair

[5] On October 22, 2013, Police Officers Sajeev Nair and Ajay Sidhu were investigating kidnappings in the area of a high rise apartment building located at 121 Parkway Forest Drive in Toronto. They were dressed in street clothes and seated in an unmarked police vehicle in a parking spot at the building.

[6] At 9:10 p.m., Kudakwashe Kambarami and a shorter man, later identified as the accused, cut through a grassy area about fifteen metres in front of the unmarked police vehicle. The men were looking around and disappeared behind the building.

[7] At 9:37 p.m., Nair noticed the victim, Carlos Martinez, standing in a small courtyard in front of the building. He described the artificial lighting as good and the visibility as clear. He observed a confrontation between the accused, Kambarami and Martinez. At first, he thought that the men were “horsing around” and he brought it to the attention of Sidhu. As Nair continued watching, he saw the men on the ground fighting over a bag. He also saw the accused with a gun in his hand that he was using to pistol whip Martinez.

[8] Nair got out of their vehicle on the passenger side, but because of the gun’s proximity to the building, he decided that there might be a hostage situation and a shootout. He decided that more officers were needed. He was confident that he and his partner could have dealt with the two men, but with a gun involved, too many things could have gone wrong.

[9] As he returned to the passenger seat, Nair heard Sidhu broadcast over their hand held radio a priority call for a robbery in progress and ask for all available officers to attend the location. He watched the accused and Kambarami run south on the driveway of 121 Parkway Forest Drive as Sidhu followed them in their unmarked vehicle. Sidhu gave Nair the radio and he broadcasted a description of the two male suspects.

[10] When the men reached the sidewalk, they turned right and ran in a northeasterly direction along Parkway Forest Drive. As Sidhu continued to follow them at a slow rate of speed, Nair saw the accused with the gun in his hand. As the two men approached a treed area to the east of the south driveway of 125 Parkway Forest Drive, they scattered. Nair saw a marked police vehicle approaching southbound on Parkway Forest Drive. At the same time, he called out to the men, “Police, stop, police, stop.” Sidhu yelled, “I got the short kid.” Nair testified that he yelled, “Gun, gun, gun,” to alert the units responding.

[11] Sidhu turned his vehicle right into the south driveway of 125 Parkway Forest Drive and Nair got out with his gun drawn. He saw the accused on the west side of the driveway running towards the south side of a shipping container in a parking spot adjacent to a dark treed area. Sidhu ran to the south of the container in pursuit of the accused and Nair ran to the north of the container.

[12] When Nair next caught sight of the accused, he appeared to be slowing down. Nair did not see a gun. He tackled the accused to the ground and at 9:39 p.m., Nair arrested the accused for robbery and possession of a firearm.

[13] As Nair started to manage the scene at 125 Parkway Forest Drive, Police Officer Christopher Hart informed him that a gun had been found. Nair observed that the gun was lying in a grassy area south of the shipping container. Nair then made his way over to the ambulance, which was parked at 121 Parkway Forest Drive. When he introduced himself, Martinez said, “These guys jumped me. They took my wallet. Yo, I don’t want to be a snitch.” Nair said to him, “I was there. I saw everything that went down. I saw the gun.” Martinez refused to provide a statement.

[14] Later that evening, Nair and Sidhu went to the hospital to meet with Martinez who reiterated that he did not want to be a snitch. Nair assured him that he did not care about the marijuana in the bag. He was looking at the bigger picture and Martinez was a victim.

[15] Martinez agreed to give an audio-recorded statement. In the statement, he said that he was waiting for somebody and two guys came up and took his wallet for no reason. He did not know them. When he was asked if they had a weapon, he said that one of them had a gun. When he was asked if they hit him with the firearm, he said, “I don’t know. It all happened so fast.” He refused to provide a DNA sample.

[16] In cross-examination, Nair testified that he made his notes when he arrived at the station at 11:45 p.m. that night and he and Sidhu referred to the Intergraph Computer Aided Dispatch (ICAD) Report of the 911 call to get time stamps. He agreed that when Sidhu broadcasted the priority call for a robbery in progress, Nair had seen a gun and had mentioned it to him. He explained that things were happening fast and he was focussing on where the suspects were going.

[17] Nair denied that he yelled, “Get him, get him, get him” and maintained that he was yelling, “Gun, gun, gun.” He agreed that the first time a gun is mentioned on the ICAD Report is four minutes after Sidhu broadcasted the robbery in progress.

Police Officer Ajay Sidhu

[18] Sidhu observed the accused and Kambarami looking around before they disappeared behind 121 Parkway Forest Drive. At 9:35 p.m., he noticed Martinez standing in front of the gazebo in the courtyard and one or two minutes later, he saw the accused and Kambarami walk up to Martinez, have a brief conversation, and attack him by punching and kicking him.

[19] During the fight, which lasted five to ten seconds, Sidhu saw the accused strike Martinez with what appeared to be a small black handgun, pull him up from the ground, and point the gun at him. Then he saw the accused and Kambarami pulling on a bag.

[20] Sidhu saw Nair kneeling on the ground beside their vehicle with his hands in front of him. Although he could not see below the passenger window, he believed that Nair had his firearm drawn and he became worried that Nair was going to discharge it. He reached over and pulled Nair back into the vehicle.

[21] Sidhu broadcasted a priority call for a robbery in progress and asked for all available officers. When he was asked why he did not indicate that the suspects were armed, he testified that as the men were pulling on the bag, a lot was going through his head and he was formulating a plan to get them into custody. He heard a number of units responding to his call and knew that other officers were on their way.

[22] Sidhu testified that if this had been a robbery with no weapons, he would have called for one or two cars, but he would not have waited for backup to arrive. Instead, he would have grabbed the men and arrested them. However, when he saw the gun, he called for other units because he did not want someone to die there that night.

[23] Sidhu backed his vehicle out of their parking spot and drove slowly behind Kambarami and the accused as they jogged down the driveway and onto the street in the direction of 125 Parkway Forest Drive. He saw a pistol in the accused’s hand. He said that the men looked back a number of times, but he did not think that they recognized Nair and Sidhu as undercover officers.

[24] As their vehicle approached the south driveway of 125 Parkway Forest Drive, Sidhu saw a scout car approaching southbound and signalled with his high beams to alert the driver and to ensure that he and Nair were not mistaken for the suspects. Sidhu heard Nair yell, “Police, stop, police, stop.” As he turned his vehicle into the south driveway, Sidhu yelled, “I got the short kid,” and he heard Nair shout, “Gun, gun, gun.”

[25] The accused ran in front of their vehicle and Sidhu slammed it into the “park” position ten feet into the driveway. As he was alighting from the vehicle, Sidhu saw a quick movement to his left and yelled out, “He’s got a gun. He’s got a gun.” He drew his pistol and told the accused to stop.

[26] As he was chasing the accused, Sidhu saw his right hand come back and noticed that he was still holding the gun as he mounted a two foot curb near the shipping container in the parking lot. When he was thirteen to fifteen feet behind him, Sidhu saw the accused throw the gun into a grassy area. The officer testified that the area was very poorly lit. As Sidhu continued to chase the accused, Nair came from the right and tackled him to the ground. One or two officers arrived quickly and a number of officers arrived at the scene very shortly thereafter.

[27] Sidhu and Police Officer Stephen Irwin located a black gun in the grassy area. When Sidhu received information that there was potentially a second, silver gun, he ordered a police dog at 9:41 p.m.

[28] Sidhu recalled speaking to Martinez at the hospital. His face was swollen and he appeared to be in a lot of pain. He seemed terrified and said that he did not want to be a snitch. The following morning, Sidhu and Nair met with Martinez at his home in order to return his wallet. Martinez advised them that he was having surgery that day to insert a plate into his fractured jaw.

[29] In cross-examination, Sidhu agreed that he did not record in his notes that the accused pointed the gun at Martinez during the robbery. He testified that it was an oversight. He agreed that he made the priority call for a robbery in progress after he saw the gun. However, it was not a conscious decision not to mention a gun.

[30] Sidhu testified that two to five seconds before they bailed out of their vehicle, he heard Nair shout, “Gun, gun, gun.” When it was suggested that what Nair said was, “Get him, get him, get him,” Sidhu recalled that Nair used the words “gun, gun, gun”.

[31] Sidhu did not remember seeing or talking to Christopher Hart, the police officer who informed Nair that a gun had been found, but he agreed that he may have spoken to him.

[32] In re-examination, Sidhu testified that Use of Force Reports were completed for himself and Nair because they drew their guns when they got out of their vehicle.

Police Officer Stephen Irwin

[33] Irwin heard the priority call and arrived at the south driveway of 125 Parkway Forest Drive at 9:40 p.m. He parked his vehicle on the street and saw Police Officers Chris Elliott and Solomon Tenn with a male on the ground and other police officers with someone to the northeast. He encountered Sidhu on the sidewalk who told him that a firearm may have been tossed. Irwin and Sidhu searched the bushes and at 9:45 p.m. Irwin found a small black handgun in the grassy area north of and in close proximity to the shipping container. When he shone his flashlight on the gun, Sidhu was standing beside him.

[34] In cross-examination, Irwin agreed that Sidhu told him that he saw something tossed and he thought that it may have been a firearm. He also agreed that the first time he heard about a gun was when Sidhu spoke to him at the scene.

Police Officer Chris Elliott

[35] At 8:30 p.m., Elliott was asked by Sidhu to be in the area with his team on standby to support the officers in their kidnapping investigation. At 9:30 p.m., Elliott told Nair that he was in the area and standing by. He was alone and dressed in street clothes in an unmarked police vehicle.

[36] At 9:37 p.m., Elliott heard the priority call from Sidhu about a robbery in progress. He testified that Sidhu sounded in control, but there was a heightened excitement in his voice. He explained that a priority call is for an active offence involving violence. It would pre-empt other officers’ duties and ensure that they are dispatched immediately.

[37] Forty seconds later, Elliott was the first officer to respond, driving his vehicle southbound on Parkwood Forest Drive. He had his window rolled down because the area was dark and tree-covered, the lighting was poor, and a little rain was falling. Ten metres west of the south driveway of 125 Parkway Forest Drive, he saw a figure running across the driveway. At the same time, he heard Sidhu yelling, “He’s got a gun.” He could not see Sidhu, but recognized his voice.

[38] Elliott stopped his vehicle and got out with his gun drawn. He watched Kambarami run across the driveway and into the concrete wall south of the container, which caused him to fall into the shrubs. Kambarami recovered, cleared the shrubs and was heading southbound towards the sidewalk when Elliott intercepted him and drove him to the ground. Under his left arm was a bag.

[39] Police Officer Solomon Tenn arrived to assist and Elliott directed him to administer handcuffs. When Police Officer Neil Fiedtkou joined them, Elliott stepped away for a few seconds and radioed at 9:39 p.m. that he “had one in custody”.

[40] Elliott returned to Tenn and Fietkou and arrested Kambarami for robbery and possession of a firearm. He left Kambarami in their custody and asked them to perform a search incident to arrest. Then he went to deal with the second person and to help manage the scene.

[41] Elliott testified that he was the senior officer and it was his responsibility to coordinate the crime scene. The investigation was the responsibility of Nair and Sidhu and, at the time, he did not know their whereabouts. Elliott saw Hart on the south driveway of 125 Parkway Forest Drive before Hart left to secure the crime scene at 121.

[42] At 9:44 p.m., Elliott heard Hart broadcast over the radio: “Victim confirming a handgun used. Pistol whipped.”

[43] At 9:45 p.m., Sidhu told Elliott that a black gun had been found in the bushes near the shipping container. He pointed out the location to Elliott who directed an officer to stand over the gun. At the same time, Elliott received information from Hart that the colour of the gun used in the robbery was silver. In his notes, Elliott wrote: “Victim said he had been struck with a silver gun.” Elliott requested Police Dog Services because the area was very dark and it was necessary to expand the search to determine whether there was a second gun.

[44] In cross-examination, Elliott testified that he remembered speaking with Nair as Nair was leaving with Sidhu to speak to the victim at the hospital. Elliott made no note of their conversation.

[45] He agreed that the first time he heard about a gun was when Sidhu yelled, “He’s got a gun.” He testified that it took Kambarami two seconds to run “full out” across the driveway before he hit the wall and tripped. During that time, Elliott could not see anyone else or any other vehicles in the driveway. He did not see Sidhu getting out of a vehicle, but he heard his voice coming from the same area as Kambarami and in close proximity. He testified that there was no lighting in the grassy areas to the east and west of the driveway.

[46] Elliott agreed that at the preliminary inquiry, he said that he was positive that an armed robbery had been called out before he arrived on scene. When confronted with his testimony, Elliott testified that he was mistaken.

[47] He agreed that when he arrested Kambarami, Tenn and Fiedkou were present and he believed that Kambarami was still on the ground.

[48] Elliott did not recall whether he told Hart that a gun had been spotted and he did not remember directing Hart to deal with the victim. He did recall hearing the radio communication from Hart confirming that a handgun was used to pistol whip the victim. Hart then contacted him and gave him a description of the handgun and that was why Elliott expanded the search perimeter.

[49] In re-examination, Elliott testified that, as a police officer for almost twenty years, it was his experience that officers do not always broadcast a fulsome transmission or communication. He said, “You get out what information you can and different people have different situations of awareness and are able to communicate such things better than others.”

Police Officer Solomon Tenn

[50] Tenn was on uniformed duty with Police Officer Ken Slugg when he heard the priority call for a robbery in progress. At 9:38 p.m., their vehicle was approaching the south driveway of 125 Parkway Forest Drive when Tenn saw Kambarami running alone in a northeast direction in a grassy area to the south of the driveway.

[51] Tenn jumped out of the passenger side of the vehicle and ran ten to fifteen metres in the direction of Kambarami, but he was already on the ground and Elliott was gaining control of him. There was a black bag beside the man. Elliott told Tenn that Kambarami was under arrest for robbery. He said that his interaction with Elliott was less than a minute. Tenn administered handcuffs and a pat-down search produced a wallet.

[52] In cross-examination, Tenn said that he was alone with Kambarami for a brief time before Fiedkou arrived. Elliott did not mention anything to Tenn about a firearm.

Police Officer Neil Fiedtkou

[53] Fiedtkou arrived at the scene at 9:40 p.m. and parked his vehicle at a forty-five degree angle blocking the south driveway of 125 Parkway Forest Drive. He saw that Elliott and Tenn had Kambarami on the ground and ran over to assist, but the man was already handcuffed and under arrest. Tenn and Fiedtkou helped him up and Fiedtkou removed a bag from the man’s shoulder. Fiedkou assumed that the arrest was for robbery because he had heard over the radio about a robbery in progress. He heard nothing about the charges from Elliott or Tenn.

[54] In cross-examination, Fiedtkou said that he entered the area from the south and saw no other police vehicles before stopping his vehicle in the driveway. He did not know the make of vehicle that Sidhu was driving. Between 9:40 p.m. and 1:00 a.m., no one gave him any information about a firearm.

Police Officer Ken Slugg

[55] As Slugg was driving his vehicle towards the south driveway of 125 Parkway Forest Drive, he saw two people running in a westerly direction. As he turned into the driveway, Tenn jumped out of their vehicle. Slugg reversed and drove into the north driveway of 125 Parkwood Forest Drive because he saw the accused face down on the ground near the driveway and recognized Police Officer Neville Lawrence on top of him.

[56] Slugg assisted in applying handcuffs and was advised by Lawrence that the accused was under arrest for robbery and possession of a firearm. Slugg testified that he saw other officers, but he made no notation of their names.

[57] In cross-examination, Slugg testified that when he drove into the south driveway, he did not see any other police vehicles. He saw a vehicle parked on the treeline, but he was not aware if it was involved in the incident. He said that it was dark.

[58] He testified that notwithstanding that Lawrence told him the accused was under arrest, Slugg arrested him again for robbery and possession of a firearm.

[59] In re-examination, he was unclear whether there was more than one officer with the accused when Slugg saw him on the ground.

Police Officer Christopher Hart

[60] When Hart arrived at the south driveway of 125 Parkway Forest Drive with his partner Fiedkou, Elliott had one person under arrest. Elliott told Hart that there was one suspect outstanding and the victim was at 121 Parkway Forest Drive.

[61] Hart testified that he had no conversation with Nair or Sidhu before he interacted with Martinez in the courtyard of 121. Martinez was holding his jaw and moaning and Hart asked him if he was okay. Martinez replied, “No, I’m not fucking alright. I got pistol whipped in the face.” At 9:44 p.m., the broadcast from Hart on the ICAD Report states: “Victim confirming a handgun used. Pistol whipped.”

[62] Hart testified that the man’s jaw looked extremely swollen and when he started to administer first aid, Martinez became very belligerent and uncooperative. Hart knew that the firearm had not been located and he was concerned for the families and children in the area. He admitted that, because the victim did not care that the police were trying to help him, his reaction was to make only cursory notes about the incident and he should have acted in a more professional manner.

[63] In cross-examination, Hart’s evidence was that, after he arrived on scene, he did not remember Elliott saying anything about a gun. He agreed that at the preliminary inquiry, his evidence was that Elliott told him there was a gun. He testified that when he reviewed his transcript, he realized that his evidence at the preliminary inquiry was wrong.

[64] Hart testified that he did not speak with Nair before he saw Nair speaking with Martinez at the door of the ambulance. He agreed that at the preliminary inquiry he said that he thought Nair told him where to find the victim and to deal with him. Hart testified that his recollection at the preliminary inquiry was incorrect and he admitted that his notes did not assist.

[65] When Hart was asked why he used the word “confirm” when he broadcasted that the victim confirmed that a handgun was used, he explained that he was putting over the air a fact, a certainty, and he did not mean to suggest that someone told him earlier that there was a gun. He said, “That’s just how I talk.”

Carlos Martinez

[66] On October 22, 2013, twenty-two-year-old Martinez was standing outside 121 Parkway Forest Drive when two men attacked him and took his wallet. The taller one grabbed him from behind and the shorter one took a black gun from his waist and used it to hit Martinez before they ran away. He remembered seeing police officers afterwards, but he did not remember giving an audio-statement to the police.

[67] In cross-examination, Martinez recognized his voice on the audio-recording during which he was asked if they hit him in any way with the firearm and he replied, “I don’t know.” He agreed that his memory of events would have been better at the time he made the statement. When it was suggested to him that he did not know if he was struck with a gun, he said, “It’s not something you forget.” Martinez maintained that the gun was black and there was no reason to say that it was silver.

[68] He denied that he was a drug dealer and did not know anything about a bag containing one and one-half pounds of marijuana and a gun.

Shane Staniek

[69] Shane Staniek, a scientist at the Centre of Forensic Sciences, testified as an expert in firearms and toolmarks. He examined the gun located by Irwin and concluded that it was a 32 semi-automatic Colt Pistol calibre with a dischargeable cartridge manufactured by Beretta under the name “3032 Tomcat”. It was a barrelled weapon designed to be aimed and fired by the action of one hand. Projectiles from it were capable of causing serious bodily injury or death. The barrel length measured 61.8 millimetres and the cartridge magazine had a capacity of seven .32 Colt Pistol calibre centre-fire cartridges suitable for use in the semi-automatic pistol.

[70] Staniek examined the cartridge, which was loaded with a full metal jacketed bullet and determined that the cartridge was ammunition and suitable for use in the pistol.

[71] Staniek found that the firing pin in the pistol was defective and he replaced it with a firing pin from the Centre of Forensic Sciences Reference Collection. When it was test fired using the detachable cartridge magazine, the pistol functioned correctly as a semi-automatic pistol.

[72] Staniek testified that on four different occasions, he disassembled the pistol to withdraw the firing pin and put in the replacement pin. The length of time required was between a few minutes and fifteen minutes. It was his opinion that anyone could perform the task if they had standard small machinery tools and manual dexterity.

[73] On January 23, 2014, Staniek made an on-line inquiry of Brownells, a supplier of gun parts, and learned that it was possible to order a replacement firing pin for $6.50 US. He made inquiries of Numrich, another on-line supplier of gun parts, and was advised that the firing pin was sold out, but a 25 calibre pin, which was also suitable, was available for $17.55 US.

[74] Staniek also telephoned several commercial suppliers of gun parts – Elwood Epps Sporting Goods, Marstar Canada and Western Gun Parts. All three advised him that they were sold out of the firing pin.

[75] Using the Integrated Ballistics Identification System (IBIS), Staniek determined that in 2011, the same cartridge cases were fired from the same pistol.

[76] In cross-examination, Staniek agreed that as an infantryman with the Department of National Defence, Canadian Forces Reserve, he gained experience in swapping firing pins.

[77] He agreed that the time of his testing, the Centre of Forensic Sciences Reference Collection did not have a firing pin for a 3032 Beretta. He knew that a firing pin from a 21A Beretta was similar and when he replaced the firing pin using a 21A Beretta pin, the pistol functioned properly as a semi-automatic weapon.

[78] He testified that a machinist’s tool called an armorer’s block can be used to remove the firing pin and it can be purchased at a gun or sporting goods store.

Inspector Carrie Warren

[79] Carrie Warren, an investigator in the Criminal Investigation Division of the Canada Border Services Agency, testified that the Beretta Tomcat is a common firearm.

[80] She stated that a person in possession of a gun in Canada has either declared it at the border or smuggled into the country. Pursuant to Customs Regulation D-1913-2, parts for prohibited weapons, including a Beretta Tomcat, cannot be imported into Canada. Warren testified that individuals use the Internet or on-line shopping to attempt to smuggle firearms’ parts into the country. In the Greater Toronto Area, the Canada Border Services Agency intercepts at least one shipment of firearms’ parts weekly because they are not properly declared or are concealed within other items.

[81] In cross-examination, Inspector Warren agreed that during her investigations, she is able to cross-reference the indicators on shipments of gun parts with the Canada Police Information Centre (CPIC) and access criminal records and weapons prohibitions.

Terrence Agtual

[82] Terrence Agtual is twenty-three years of age. He came to Canada from the Philippines at the age of eight. At 9:00 p.m. on October 22, 2013, he was in a convenience store near 121 Parkway Forest Drive buying food and cigarettes. He encountered Kambarami and asked if he had marijuana, but he did not. The accused suggested that they go to 121 Parkway Forest Drive to see if Martinez was around because he had seen him there before and had heard that he “picks up weed.”

[83] On the way, the accused said to Kambarami, “Let’s take this guy’s shit.” Kambarami said nothing and followed along. When the accused did not see Martinez in front of 121 Parkway Forest Drive, he suggested that they wait for him at the back of the building where it was dark so they could surprise Martinez when he appeared.

[84] One or two minutes later, the accused noticed Martinez standing near the gazebo. There was a bag on the bench beside him. He approached Martinez and said, “What up?” and grabbed the bag. Martinez tried to take the bag back from him and the accused started punching him. He hit Martinez hard so that he would let go of the bag and would not follow them. Kambarami grabbed the bag and they jogged down the driveway to the street, turned right and headed towards 125 Parkway Forest Drive. They entered a dark treed area east of the south driveway with the intention of splitting the contents of the bag.

[85] The accused testified that he reached inside the bag and felt a bag of marijuana and something hard. As he was pulling it out to see what it was, he heard someone say, “Police, stop, police, stop.”

[86] He sprinted across the driveway towards a shipping container. He jumped over the concrete barrier and discarded the gun in a treed area on the west side of the driveway. He ran in the direction of the north driveway and stopped in a laneway with his hands in the air. He was tackled by police and brought to the ground.

[87] The accused denied that he used a gun to rob or beat Martinez. He testified that the first time he had the gun in his hand was when he heard, “Police, stop.”

[88] In cross-examination, the accused said that he was familiar with 121 and 125 Parkway Forest Drive and claimed he was interested in the architecture of the buildings. He admitted that, at the time, he was smoking a few grams of marijuana weekly, but he could not remember the names of his suppliers.

[89] He testified that he hatched the plan to rob Martinez on his way to the gazebo. He had never bought marijuana from Martinez before. All he knew was that Martinez was “a guy who had weed.”

[90] He agreed that he had a cell phone with him. He denied that he called Martinez and ordered one and one-half pounds of marijuana from him. He agreed that he hit Martinez in the head a few times. He could not remember how many times he punched and kicked him before Martinez lost his grip on the bag.

[91] He testified that when he opened the bag, he had never felt such a big bag of marijuana before. When he felt the hard object, he did not know that it was a gun until he took it out of the bag and held it in his hand. When he heard the words, “Police, stop,” he panicked and ran “full tilt” across the driveway for five seconds because there was a gun in his hand and he wanted to get rid of it.

The Position of the Crown

[92] The Crown submits that the accused robbed the victim in plain view. Nair and Sidhu saw the confrontation and the gun. They followed the accused and never lost sight of him. Less than two minutes after the robbery, Sidhu saw the accused throw the gun into the bushes and Nair tackled him to the ground. It is submitted that there was no conspiracy among the senior police officers.

[93] The Crown asserts that Elliott, Hart, Tenn and Fiedkou arrived at the scene within minutes of the 911 call and it is reasonable to conclude that they had little time to react, observe, and recall all of the events as they were unfolding. The Crown’s position is that, based on the evidence of the police, the victim, and the accused’s DNA on the gun, he brought the gun to the robbery and used it to pistol whip the victim. Further, although the firing pin in the gun was defective, it was sufficiently adaptable to comply with the Criminal Code.

The Position of the Defence

[94] The position of the defence is that Nair and Sidhu saw a robbery, but there was no firearm. Elliott spoke to Hart at the scene and Hart told the victim that the police thought they saw a gun. The victim said that he was hit with a gun and Nair and Sidhu believed the victim and wanted his DNA to bolster what he had said, but he refused. The defence suggests that Hart would not have broadcasted the words “victim ‘confirmed’ gun used,” unless Elliott told him beforehand that a gun was used in the robbery. Therefore, the position of the defence is that Nair, Sidhu, and Elliott conspired to say that the victim was pistol whipped.

[95] It is asserted that their evidence conflicts with the evidence of the junior officers, Tenn and Fiedkou. Also, the evidence of Elliott conflicts with the evidence of Nair and Sidhu.

[96] The defence submits that, contrary to the evidence of Nair and Sidhu that they called out to the accused from the vehicle before turning into the south driveway, the accused’s evidence was that the police called out to him from the north. Neither Elliott nor Fiedkou saw an unmarked police vehicle in the driveway before they started their pursuit. Moreover, Fiedkou said that he parked his vehicle in such a way to block the driveway because there was no other vehicle there.

[97] The defence notes that Sidhu testified that the accused had the gun the entire time, whereas Irwin testified that Sidhu told him that he saw something tossed and he thought that it may have been a firearm. Elliott testified that because he heard Sidhu say, “He’s got a gun,” he arrested Kambarami for possession of a firearm. It is submitted that Tenn and Fiedkou were detailed to arrest Kambarami, but Elliot gave them no information about a firearm.

[98] The defence contends that the evidence of the accused should be accepted because he gave a candid account of the robbery and did not downplay his involvement. Further, his evidence was largely consistent with the testimony of the police constables.

[99] It is asserted that neither Nair nor Sidhu had a reasonable explanation for why they did not alert the attending police officers to the presence of a firearm. The defence suggests that the reason that there was no call for an armed robbery is because the gun was only discovered when the accused felt it in the bag. The defence maintains that no one other than Sidhu heard Nair say “gun, gun, gun” and the first time Sidhu saw a gun was when he called out, “He’s got a gun”.

[100] The defence also submits that the firearm was not readily adaptable because the firing pin was defective. A firing pin for a 3032 Tomcat could not be located in the Centre of Forensic Sciences Reference Collection at the time the gun was tested and the pin was sold out in Canada when the expert made inquiries. Although it was available in the United States, the expert had never ordered a prohibited gun part and the Canadian Border Services Agency has a regulation prohibiting its importation.

Was the accused in possession of a firearm?

[101] The accused admitted that he has previously been convicted of a number of criminal offences. However, I must not use the fact, number or nature of the prior convictions to engage in propensity reasoning.

[102] He testified that at the time of the alleged offences, he was trying to stay out of trouble, except for “a little bit of weed” that he would buy by the gram. His intention was to rob Martinez because he had seen him at the gazebo and he “had weed”. He struck Martinez in the head a few times until he let go of the bag before running to a tree covered area to divide the contents of the bag with Kambarami. He maintained that he had never seen a bag of weed that large before. He said, “I guess I lucked out.”

[103] I reject the evidence of the accused that this was a spur of the moment plan to rob a drug dealer of marijuana at the gram level. In my view, this was a well-orchestrated plan to rob a drug dealer of a large amount of marijuana using a tool of the trade, a loaded firearm. I reject his explanation that his DNA only ended up on the gun because he held it for a few seconds before discarding it. I find that his evidence lacks common sense and the ring of truth.

[104] It is clear from R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 that even if his evidence does not leave me with a reasonable doubt, I may convict the accused only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

[105] It is not disputed that Martinez was involved in the drug trade or that a drug dealer may want to protect himself from robbery with a loaded gun. However, it defies logic, in my view, that Martinez would keep the gun inside a bag containing a large amount of drugs, where the gun would be difficult to access and could be stolen in the process of taking the bag of drugs.

[106] I accept that there is good reason to look at the evidence of Martinez with the greatest care and caution. I am entitled to rely on his evidence, even if it is not confirmed by another witness or other evidence, but it would be dangerous to do so. Therefore, I should look for some confirmation of his evidence from somebody or something before I rely on it in deciding whether Crown counsel has proven the charges beyond a reasonable doubt. I am also mindful that the evidence of the police officers is not automatically more worthy of belief, but subject to the same tests that apply to all witnesses.

[107] Martinez indicated in chief and cross-examination that he was pistol whipped by the accused. This is consistent with Hart’s testimony that, when he asked Martinez if he was ok, Martinez responded, “No, I’m not fucking alright. I got pistol whipped in the face.”

[108] Nair and Sidhu were in a position to have a clear view of the robbery and the lighting and visibility were good. I accept the accuracy of their observations, their recollection, and their ability to describe the confrontation. Their evidence was consistent with one another. They saw the accused with a gun in his hand and they saw him strike Martinez. Furthermore, they had a continuous view of the accused as they followed him until they issued the police challenge and started the foot pursuit, resulting in his arrest.

[109] Nair and Sidhu maintained that Nair called out “Gun, gun, gun.” What he said is not captured on the ICAD Report. Having listened to the 911 call, it is possible, as suggested by defence counsel, that Nair called out, “Get him, get him, get him.” There is no doubt that the call is garbled. Irrespective of the words he used in the heat of the moment, I am of the opinion that the evidence on this issue does not detract from the credibility of the officers’ evidence as a whole. Moreover, both Sidhu and Elliott testified that Sidhu yelled, “He’s got a gun” and I accept Elliott’s evidence that he based his arrest of Kambarami for possession of a firearm on the words he heard Sidhu call out in the dark.

[110] I also accept that Nair made his notes at the station later that evening, whereas Sidhu made notes earlier while sitting alone in his vehicle at the scene. In those notes, he stated that during the fight, a small black handgun was used to strike the victim and when the accused was jogging along the street, Sidhu saw a pistol in his hand.

[111] A major focus of the defence was the failure of Sidhu and Nair to alert the attending officers to the fact that this was an armed robbery. I accept the evidence of Sidhu that it was not a conscious decision to not mention the gun in the 911 call. He testified that when he saw the men pulling on the bag, his first thought was that this was a robbery in progress. When he saw the gun, he knew he had to get more people there because he did not want someone to die that night.

[112] The 911 call is compelling evidence of the chaotic and dynamic events that unfolded during the two minutes between the start of the robbery and the arrest of the two men involved. All of the officers testified that they took the priority call seriously and responded within minutes.

[113] Elliott and Tenn arrived in separate vehicles and stopped immediately when they caught sight of Kambarami running. When Fiedkou arrived, he did not see the vehicles associated with Elliott or Tenn or the unmarked vehicle associated with Sidhu. Slugg saw a vehicle parked on the treeline when he drove into the south driveway of 125 Parkwood Forest Drive. I find that the vehicles driven by the police must have been parked in the area, which was described as dark, and it is an innocent inconsistency that Fiedkou did not see any vehicles. All of the officers were responding to the priority call and in the confusion of the rapidly unfolding events, it is reasonable that the responding officers were focussed on finding the suspects and the gun.

[114] Whether Sidhu told Irwin that he saw something tossed that may have been a firearm does not detract from Sidhu’s evidence that he saw the accused pistol whip Martinez with a small black handgun. Moreover, whether Hart used the word “confirmed” when he broadcast that a handgun was used is nothing more significant than his idiosyncratic manner of speaking and does not detract from the observations of Nair and Sidhu that Martinez was struck by a gun. Tenn and Fiedtkou were attending to Kambarami and Fiedtkou assumed that Kambarami had been arrested for robbery because of what he had heard on the radio. He heard nothing about the charges from Elliott or Tenn.

[115] Slugg was the officer who dealt with the accused. He was told by Lawrence that the accused was under arrest for robbery and possession of a handgun. Although Lawrence did not testify, I accept the evidence of Slugg that he re-arrested the accused for robbery and possession of a firearm.

[116] Accordingly, on the evidence that I accept, I am satisfied beyond a reasonable doubt that the accused was in possession of a firearm at the time of the robbery and used it to strike the victim.

Was the gun a prohibited firearm?

[117] Section 2 of the Criminal Code defines a firearm as “a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm”.

[118] Staniek testified that the gun that was seized was a barrelled weapon and projectiles fired from it were capable of causing serious bodily injury or death to a person. He concluded that the gun, as adapted with the replacement firing pin from the Centre of Forensic Sciences Reference Collection and test fired using the detachable cartridge magazine functioned correctly as a semi-automatic pistol. Thus, the gun that was seized by the police was a firearm.

[119] Section 84(1) of the Code defines a handgun as “a firearm that is designed, altered or intended to be aimed and fired by the action of one hand, whether or not it has been redesigned or subsequently altered to be aimed and fired by the action of both hands”. Staniek concluded that the gun was designed to be aimed and fired by the action of one hand. Therefore, the gun seized by the police was a handgun.

[120] Section 84(1) defines a prohibited firearm as “a handgun that has a barrel equal to or less than 105 millimetres in length, or is designed or adapted to discharge a 25 or 32 calibre cartridge”. Staniek testified that the barrel length was 61.8 millimetres and was designed to discharge a 25 or 32 calibre cartridge. Therefore, the gun that was seized is a prohibited weapon.

Was the gun adaptable to be a firearm?

[121] There is no issue that the firing pin in the gun was defective and rendered the gun incapable of discharging a projectile capable of causing serious bodily injury or death to a person. The issue is whether the gun could be adapted for use as a firearm within the meaning of s. 2 of the Code.

[122] In R. v. Cook (1989), 1989 MBCA 7157, 57 Man. R. (2d) 93, 48 C.C.C. (3d) 61 (C.A.), the accused was charged with possession of a prohibited weapon. The expert evidence was that the sawed off shotgun was incapable of being fired because it lacked a firing pin and the mainspring and mainspring follower had been bent.

[123] The Manitoba Court of Appeal held:

On a charge of possession of a prohibited weapon under s. 90(1), which is a continuing offence, the factors of adaptability and time are of far lesser importance than in an offence of using a weapon in the commission of an offence as in Covin, supra [R. v. Covin, 1983 SCC 151, [1983] 1 S.C.R. 725, 8 C.C.C. (3d) 240]. Moreover, the ability of the accused himself to adapt the weapon is not really a crucial factor. There are many people knowledgeable about guns who could readily assist him in that endeavour.

[124] The court concluded that the evidence was sufficient from which it could be reasonably inferred that the accused had the capacity by himself or with the assistance of others and within a reasonable time to activate the gun for firing and that therefore, it was a firearm and hence a prohibited weapon under s. 84(1) of the Code.

[125] In R. v. Grant, [2006] O.J. No. 851, 69 W.C.B. (2d) 345 (S.C.) at para. 24, Stinson J. stated:

The cases reviewed above suggest that where the evidence establishes that a gun can be made operational through the straight forward installation of readily available parts in a relatively short period of time, the courts are disposed to find it to be a firearm for purposes of the offence of possession. By contrast, where the effort to make the gun operational required special expertise, considerable time, or parts that are not readily available, the courts are less disposed to find it to be a firearm for the purposes of that offence.

[126] Staniek testified that on four different occasions, he disassembled the gun and replaced the firing pin. The procedure took between several minutes and fifteen minutes. He said that others could replace the pin if they had manual dexterity and suitable tools. He suggested that one could use an armorer’s block, which is available at a sporting goods store or gun store.

[127] Although Staniek found a replacement pin on-line in the United States for $6.50, the evidence is that a gun part imported from the United States for a prohibited weapon is subject to confiscation by Canadian Customs Officials. When Staniek made inquiries in Canada, the item was sold out.

[128] Inspector Warren testified that the 3032 Tomcat is a common gun manufactured in the United States. In my view, the fact that the pin was “sold out” suggests that the firing pin could be readily sourced and available. Combined with the evidence of the relative ease with which the pin could be installed, I conclude that the accused had the capacity by himself or with the assistance of others and within a reasonable time to adapt the gun for firing by replacing the pin.

Disposition

[129] I am, therefore, satisfied beyond a reasonable doubt that the accused was in possession of a loaded prohibited firearm, possession of a firearm knowing its possession was unauthorized, and possession of a firearm contrary to an order under s. 109 of the Code.

DUNNET J.

Released: April 9, 2015

CITATION: R. v. Terrence Agtual, 2015 ONSC 2191

COURT FILE NO.: CR-14-40000 560 0000

DATE: 20150409

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

TERRENCE AGTUAL

REASONS FOR JUDGMENT

DUNNET J.

Released: April 9, 2015