R. v. Charley, 2017 ONSC 605
CITATION: R. v. Charley, 2017 ONSC 605
COURT FILE NO.: CR-16-4000004
DATE: 20170127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
– and –
Ammaan Charley
Defendant
COUNSEL:
Tracy Vogel, for the Crown
David Midanik, for the Defendant
HEARD: January 9-18, 2017
E.M. Morgan, J.
I. The robbery
[1] Ammaan Charley is charged with armed robbery, aggravated assault, and possession of a loaded restricted firearm. The charges relate to an incident that took place at Mr. Jerk’s West Indian Groceries and Convenience store (“Mr. Jerk’s”) in the Eglinton-Oakwood area of Toronto on January 15, 2015.
[2] The defense concedes that a robbery took place at Mr. Jerk’s that evening, and that Mr. Charley was in the store when the robbery began. It is Mr. Charley’s contention that his friend, who is a young person and was tried separately, committed the offense, and that Mr. Charley himself took no part. The defense also states that Mr. Jerk’s was locally known as a place that sells marijuana, and that there are weapons kept behind the counter in the store for protection.
[3] It is the Crown’s view that Mr. Charley was a full participant in the robbery, and that he is the one who brought a firearm to the store and used it to threatened and pistol-whip the store clerk, Glassford Gordon. The incident eventually spilled out into an alleyway adjacent to the store, where two shots were fired as Mr. Charley and Mr. Gordon wrestled with each other for control of the gun.
[4] Fortunately, no one was hit by the two rounds that were fired during the course of the struggle in the alleyway. Another customer in the store called 911 and alerted the police, who very quickly attended at the store’s address. PC Abuturab Mansuri, a member of the Toronto Police primary response unit at 13 Division, located only blocks away from Mr. Jerk’s, arrived on the scene first. He got out of his squad car just after Mr. Charley and Mr. Gordon, still violently grappling for the gun, had come out of the alleyway and onto Eglinton Avenue. To his credit, Officer Mansuri successfully diffused the situation without further injury.
II. The store clerk’s version
[5] Mr. Gordon was the Crown’s lead witness, and was the only witness who claimed to see the incident in its entirety.
[6] On January 15, 2015, Mr. Gordon was working as the sole clerk behind the counter at Mr. Jerk’s, a variety store owned by his father. He was filling in at the store while his father was away.
[7] As Mr. Gordon described it, Mr. Charley and another young man came into Mr. Jerk’s sometime around 5:30 in the evening. Mr. Gordon noticed them as he was speaking with an acquaintance, Sandra Jonathan, and a woman named Simone that accompanied Ms. Jonathan. He had just run into Ms. Jonathan on Eglinton Avenue when he went to get some food for himself, and she had come back to his store to chat.
[8] The counter where Mr. Gordon stood was toward the back of the store. The younger of the two men approached the counter first and immediately jumped on top of the counter and proceeded to kick Mr. Gordon. Mr. Gordon stepped backward and tripped on a chair, falling onto the floor behind the counter. The young man jumped on him and continued to kick him and stomp on him to keep him down on the ground.
[9] At the moment that the young man leaped onto the counter, Mr. Gordon heard Ms. Jonathan scream and run out of the store. He indicated that did not see what the second man, who turns out to be Mr. Charley, was doing at that moment, although he seemed to be aware that two men had entered the store.
[10] In any case, as the young man was stomping on him behind the counter, Mr. Gordon saw Mr. Charley approach holding a gun in his hand and push the young man aside. Mr. Gordon identified Mr. Charley as having gold teeth, and identified the handgun as a silver coloured revolver. Mr. Gordon confirmed that the revolver seized by the police at the end of the robbery and tendered as an exhibit at trial was the gun that Mr. Charley pointed at him in the store. In addition, the photos taken by the Toronto police forensic officer that attended at that scene after the robbery show a set of gold teeth coverings, or grills, lying in the middle of the alleyway next to the Mr. Jerk’s store, close to the spot where Mr. Charley and his young friend were arrested.
[11] Mr. Gordon testified that before Mr. Charley approached him, he had not noticed that either one of the men had a gun. He indicated that when he saw Mr. Charley holding the firearm he became scared for his life. At that point, the young man had moved off of Mr. Gordon and so he managed to stand up and tell Mr. Charley to relax. Mr. Charley pointed the gun at his face and demanded, “Where’s the money?”
[12] Mr. Gordon testified that Mr. Charley continued to point the gun and started pushing Mr. Gordon down one of the aisles toward the back of the store. Mr. Charley continued to ask about the money, and as they walked in the aisle of the store the younger man punched Mr. Gordon in his face and his glasses broke. The young man picked up the glasses and put them in his pocket. One of the lenses of the glasses popped out of the frame, and was photographed on the floor of the store when the police arrived just after the robbery.
[13] During these few minutes in the store, Mr. Charley continued to demand money from Mr. Gordon, and when Mr. Gordon was not forthcoming Mr. Charley hit him on the top of his head with the gun. Mr. Gordon testified that he could feel his head start to bleed. Mr. Charley asked several more times, “Where’s the money”, and then struck him again on the head with the gun. Mr. Gordon testified that at that point he thought he was going to be killed.
[14] Mr. Gordon related that Mr. Charley and the young man then started pushing him to the back of the store in the direction of the back door. That door leads to a hallway, and both men pushed or guided him out the door and down the hall to a door at the end of the hall marked “Apt. 4”. As Mr. Gordon described it, he stood with his back to the apartment door, facing directly toward Mr. Charley with his hand on the door that led from the hall to an alleyway outside the building. The younger man was standing next to Mr. Charley.
[15] According to Mr. Gordon, Mr. Charley continued to hold the gun and point it at him, and began demanding that Mr. Gordon give him the keys. Mr. Gordon testified that he did not know what keys Mr. Charley was referring to, but that Mr. Charley looked in Gordon’s pocket and took out his car keys. Mr. Gordon indicated that at that point, standing in the hallway in front of the Apt. 4 door, Mr. Charley ripped a gold chain off Mr. Gordon’s neck and handed it to the younger man who put the chain in his pocket.
[16] Mr. Charley continued to demand the keys. Mr. Gordon testified that he still did not know which keys Mr. Charley was referring to, but it occurred to him to send them back into the store in order to buy some time to think of a way out of the situation. He told Mr. Charley that he “probably dropped” them, at which point Mr. Charley sent the younger man into the store to look for the keys.
[17] Mr. Gordon testified that as he stood in the hallway, he could feel drops of blood from his head running down his face. The police photographs of the scene show red dots of blood on the mat lying in front of the Apt. 4 door. Photographs of Mr. Gordon taken immediately after the incident by the police show a bleeding gash on his head with dried blood on his head and face. This head wound would suffice as the type of injury – a gash that broke the skin – that constitutes a “wound” for the purposes of aggravated assault in section 268(1) of the Criminal Code: R v Littletent, 1985 ABCA 22, at para 2.
[18] After a moment, Mr. Gordon saw the younger man came back from the store into the hallway holding his store keys and gave them to Mr. Charley, who then handed them to Mr. Gordon and told him to open the Apt. 4 door. Mr. Gordon testified that he did not know why they wanted to open the apartment, and that he had no keys to the apartment. He tried the keys in the door, but they did not work. He stated that at that point, he was unsure what to do to save himself – that is, whether to fight or run. He also indicated that he was starting to feel dizzy from the blows on the head.
[19] After watching Mr. Gordon fumble with the keys at the apartment door, Mr. Charley grabbed the keys from his hand, gave the younger man the gun to hold, and then tried to open the door himself. The younger man continued to point the gun at Mr. Gordon, saying “I know how to use this thing, I know how to use this.” Mr. Gordon said that he thought the young man was going to shoot him.
[20] Mr. Gordon testified that as Mr. Charley was trying the keys in the apartment door, the young man took his eyes off Mr. Gordon for a second and Mr. Gordon seized the opportunity to grab the gun from him and run through the back door of the hallway and out into the alleyway adjacent to the store. He described using his right hand to grab the gun and his left hand to open the door.
[21] As Mr. Gordon ran out the door, Mr. Charley grabbed at him to try to get the gun back. Mr. Gordon indicated that he could see Mr. Charley reach for him, glimpsing him over his shoulder behind him as he tried to run into the alleyway. As they exited the building, Mr. Charley continued to pursue Mr. Gordon down the alley. He reached for the gun and grabbed Mr. Gordon’s wrist. Mr. Charley was behind Mr. Gordon, and grabbed him from the back using his right hand to reach for the gun and his left arm to hold Mr. Gordon in place. They continued to move forward down the alleyway toward Eglinton Avenue as they struggled.
[22] Mr. Gordon said that as they wrestled with each other, he attempted to get a better grip on the gun and went to hold it with two hands. At that point, two shots went off. Mr. Gordon said that the first shot was fired when he was still holding the gun with one hand, and the second round went off when he held it with two hands. At this time, Mr. Charley’s hand continued to hold Mr. Gordon’s wrist. Mr. Gordon said that he did not mean to fire the gun, but in the midst of the struggle it went off by accident.
[23] Mr. Gordon indicated that he and Mr. Charley were just over half-way down the alley toward Eglinton when the shots went off. The two of them continued to struggle and move forward, eventually coming out of the alley and onto Eglinton Avenue in front of the store. Mr. Gordon said that he could hear Mr. Charley calling the younger man to come help him, saying “Take the gun, take the gun!”
[24] The entire struggle in the alleyway was described by Mr. Gordon as being with Mr. Charley alone. He said that he did not recall seeing the younger man during the time he was in the alleyway, and that he only saw him again out on Eglinton Avenue when Mr. Charley called him.
[25] In any case, Mr. Gordon said that the young man responded to Mr. Charley and came over to them to try to take the gun. Mr. Gordon said that with Mr. Charley holding onto him he had fallen to the ground, first on his knees and then lying down on his stomach with Mr. Charley on his back. The young man came over and stomped on Mr. Gordon’s hand to try to get him to drop the gun. The young man then grabbed the muzzle – which Mr. Gordon referred to as the “nozzle” – of the weapon.
[26] Mr. Gordon testified that as they were struggling in this way, he heard police sirens and heard Mr. Charley say, “The cops are coming.” They continued to struggle for the gun, and Mr. Gordon said that he could recall swearing at Mr. Charley. And then Mr. Gordon said that the struggle suddenly stopped, the two men got off of him, and he was able to see that the police had arrived on the scene.
[27] Mr. Gordon dropped the gun when he saw the police, although he testified that he does not remember the police commanding him to do so. He said he just threw it down on the ground. He testified that he remembers the police telling him to get on the ground, and that he saw Mr. Charley and the younger man do the same thing. The officers then handcuffed all three of them.
[28] Mr. Gordon said that at that point he felt a sense of relief that the entire incident was over. He stated that his head hurt and he was still bleeding, and that when the officer put him in the police car he was feeling dizzy. The police searched him, and during the course of that search found a 12 inch kitchen knife wrapped in newspaper that he had placed in the waistband of his pants. Mr. Gordon also indicated that he could see Mr. Charley being searched behind the car he was in.
[29] The police then brought Mr. Gordon to an ambulance that had arrived at the scene. In the ambulance, Mr. Gordon explained to the police that he was the victim of the robbery, and that the younger man they arrested had his glasses and his gold chain. These items were in fact found in the young man’s possession. The police photographs that document this show a torn gold chain and glasses with one lens missing.
[30] Mr. Gordon testified that the reason he had a knife is that he had been working at Mr. Jerk’s the previous day, January 14, 2015, when four or five masked men came into the store to rob it. He said that he escaped injury from that robbery by exiting the store through the back door, and that he then went through the alleyway and around to the front of the store and saw them taking things from the shelves and putting them into bags.
[31] Mr. Gordon also testified that Mr. Charley was in the store at the time of the robbery on the previous day. He said that Mr. Charley was not masked and did not take part in the robbery, but was just standing there with several customers as the robbery took place. Mr. Gordon said that he recognized Mr. Charley when he came back the following day. Mr. Gordon also indicated that after the police had placed him in the squad car, he heard Mr. Charley shout, “That’s my girl!”, referring to someone who was standing nearby as Mr. Charley was being searched.
[32] The woman to whom Mr. Charley referred was his girlfriend, Rashida Beckett. Ms. Beckett was initially charged with having been an accomplice in the robbery of January 15, 2015, but eventually those charges were dropped when she was not committed for trial by the preliminary inquiry judge.
[33] At trial, a transcript of a portion of Mr. Gordon’s testimony at the preliminary inquiry was read into the record. In that portion of his preliminary inquiry testimony, Mr. Gordon stated that he recognized Ms. Beckett as having been among the customers in the store the day before the incident in issue here, during the robbery by the masked individuals. He stated that she had come to the store separately from Mr. Charley, just before the masked men entered. In response to cross-examination on this observation, Mr. Gordon expressed the view that Ms. Beckett and Mr. Charley had visited the store the day before their own robbery in order to stake it out in preparation for robbing it themselves.
[34] It must be said that at least one aspect of Mr. Gordon’s recounting of the events of the previous day was confused. At the preliminary inquiry, he said that following the January 14th robbery, he stayed in the store and went home at 8:00 p.m. At trial, he stated in his examination-in-chief that, in fact, he went home just after the robbery at 4:00 p.m., while in cross-examination he said that he stayed at the store until going home at 7:00 p.m.
[35] Mr. Gordon explained that the previous day’s robbery by the masked men was what prompted him to put a knife in his waistband the next day. He indicated that he had taken the kitchen knife from behind the counter at Mr. Jerk’s, where it was kept since in previous times the store used to sell meat products which required a knife.
[36] In cross-examination, Mr. Gordon conceded that there were also other potential weapons in the store, including an Exacto knife and an ax, or short-handled fire hatchet, kept behind the counter. Defense counsel suggested that the gun that the police seized from him on Eglinton Avenue after his struggle with Mr. Charley was also part of the weaponry that Mr. Gordon kept in the store. It was the defense theory that the reason Mr. Gordon kept this weaponry behind the counter at Mr. Jerk’s was that he sold drugs out of the store – indeed, counsel for the defense made a point of showing how visibly understocked the store shelves appeared to be, suggesting that no one could actually earn a living in such a store unless it was a front for illegal drug sales.
[37] Mr. Gordon denied this suggestion. He indicated that the Exacto knife was needed in the store for opening boxes and other containers and that the ax was a typical implement that is used in case of fire. He explained that the ax had always been kept behind the counter, and conceded that it could be used as a weapon if necessary. He stated that the neighbourhood where Mr. Jerk’s was located is a high crime area where this could come in handy.
III. The 911 call
[38] As indicated, when Sandra Jonathan saw the young man leap onto the counter and accost Mr. Gordon, she and her friend Simone quickly turned around and left the store. She testified that on her way out of the store she crossed paths with Mr. Charley, who was walking from the front door toward the back of the store. Ms. Jonathan indicated that Mr. Charley was at about the mid-point in the store when their paths crossed.
[39] Ms. Jonathan said that she when she reached the sidewalk just outside Mr. Jerk’s she called 911 on her cell phone. Without turning around, she walked straight across the street to the other side of Eglinton, where she got into Simone’s car. During all of this time she remained on the phone with the 911 operator.
[40] The recording of the 911 call was played for the record during Ms. Jonathan’s testimony. She can be heard speaking in a rather panicked voice, narrating events as they happened. She said that at first “they” jumped onto the counter and attacked Mr. Glassford, although in her testimony in chief she corrected that and indicated that it was only the first young man, and not Mr. Charley, who she had seen jumping up on the counter.
[41] A few minutes after calling the operator and crossing to Simone’s car, Ms. Jonathan can be heard exclaiming that three individuals emerged from the alleyway adjacent to the store in what appeared to her to be a fight or a struggle. She said they came out onto the sidewalk and continued struggling on the sidewalk in front of the store. She indicated that Mr. Gordon was in front trying to move forward, and that the other two were pulling on him from behind.
[42] When the operator asked Ms. Jonathan to describe the individuals, she advised that Mr. Gordon was wearing glasses. Again, in her examination-in-chief she corrected that statement and indicated that she meant to say that Mr. Gordon wears glasses, not that he had them on at that very moment. She did not know the other two individuals, but confirmed in her testimony that she was certain that it was three men who she saw emerge from the alleyway onto Eglinton Avenue.
[43] Ms. Jonathan conceded that there was a brief period of time when she was crossing the street to Simone’s car when she had her back to the store and could not see what was happening. In cross-examination she agreed that it is possible that someone exited the store while she had her back turned, but she thought it unlikely as her back was only turned very briefly. Ms. Jonathan was certain that when she turned back around, she never saw Mr. Charley walking along Eglinton Avenue in front of or nearby the store. She also indicated that during the entire time that she was watching the events unfold, she did not see anyone enter the alleyway from Eglinton Avenue; she only saw the three men move in the other direction – that is, out from the alleyway and onto the Eglinton Avenue sidewalk.
[44] Ms. Jonathan saw the police arrive and stop the struggle while she was still on the phone. The 911 operator told her to wait there, and eventually she was approached by a police officer who questioned her. She advised the officer that one of the individuals they had taken into custody – Glassford Gordon – was the victim, and not a perpetrator, of the robbery.
IV. The accused’s version
[45] Mr. Charley testified at trial and confirmed that he was indeed at Mr. Jerk’s on January 14, 2015 and again on January 15, 2015, the day of the robbery in question. He explained that Mr. Jerk’s was a place known to sell marijuana. He testified that he went there for the first time on January 14th with an acquaintance who introduced him to Mr. Gordon for the purpose of buying some weed.
[46] Mr. Charley indicated that on his January 14th visit to the store he had handed some cash to Mr. Gordon, who went out the back door of the store. Mr. Charley said that he was waiting for Mr. Gordon to come back into the store with his weed when the masked men staged their robbery.
[47] Mr. Charley testified that he was caught there as a bystander and took no part in the January 14th robbery. He denied that he was there with Ms. Beckett, and explained that during the robbery the masked men told him to stand against a wall with his hands outside of his pockets along with the other patrons of the store.
[48] The next day, he had a date with Ms. Beckett. Mr. Charley testified that they planned to go to the Red Lobster restaurant on Dufferin Street, and that they were going there by taxi. He said that before going to the restaurant, he told the taxi driver to take him to Eglinton Avenue, where he planned to stop at the Mr. Jerk’s store to buy some more marijuana.
[49] As Mr. Charley related it, he and Ms. Beckett saw Mr. Charley’s young friend somewhere near Oakwood and Vaughan Streets, several blocks south of Eglinton. The young man told Mr. Charley that he was hungry, and Mr. Charley invited him to go with them to Eglinton Avenue to get something to eat. Mr. Charley indicated that he did not expect the young man to accompany them to Red Lobster, but rather to grab something on Eglinton – presumably, at Mr. Jerk’s. Mr. Charley confirmed in cross-examination that there are a number of restaurants at Eglinton and Oakwood Streets, a block east of Mr. Jerk’s, but that they planned to go to the Mr. Jerk’s store because that was where he wanted to go to buy weed.
[50] When they arrived at Eglinton Avenue, Mr. Charley told the driver to stop at the corner of Glenholme Street, the closest north-south street to the Mr. Jerk’s store, and not to turn onto Eglinton. He and the young man got out of the taxi to go to the store, while Ms. Beckett waited with the driver for them to return.
[51] In cross-examination, counsel for the Crown suggested to Mr. Charley that he wanted to keep the taxi on Glenholme, out of sight of the store, so that no one would see where he and the young man went after the robbery and the driver would not see where they were returning from. Mr. Charley denied this suggestion, and insisted that Glenholme Street was simply a convenient place to stop and wait.
[52] Mr. Charley described his and the young man’s entrance into the store much like Ms. Jonathan did. He said that the young man entered first, and immediately went to the counter at the back of the store and jumped on it and started kicking Mr. Gordon. Mr. Charley indicated that he entered just after the young man, and had gotten part way into the store when he realized what the young man was doing. He said he was shocked to see the young man up on the counter, that he never expected him to act in this way, and that they had not planned to rob the store. Mr. Charley said that he had $60 in his pocket and was planning on buying weed and some food for his young friend and then leaving the store.
[53] As an aside, I note that Mr. Charley does not know what ever happened to this $60. The police have no record of his having possessed any money when they arrested him and catalogued his possessions.
[54] Once Mr. Charley recovered from his shock at the young man’s violent conduct, he decided to turn around and run out of the store. As he explained it, “I didn’t want to have any involvement with it.”
[55] He turned around and exited the store, only seconds behind Ms. Jonathan. He said that when he left the store he turned right (i.e. east) and walked toward the corner of Eglinton and Oakwood. In cross-examination, Crown counsel pointed out to him that Ms. Beckett and his taxi were waiting at Eglinton and Glenholme, to the west of the store, and that it made no sense for him to have walked east when he wanted to distance himself from the scene of his young companion’s actions. Mr. Charley explained that he walked toward Oakwood and stayed there for a few minutes, just to separate himself from the store and to think about what comes next.
[56] Shortly thereafter, Mr. Charley said that he heard a gunshot, and walked back in the direction of the store. He said that he saw Mr. Gordon and the young man struggling with each other in the alleyway, and that Mr. Gordon appeared to be grabbing the gun and overpowering the young man. Although Mr. Charley said that he wanted no part of the incident, he decided to jump into the fray to help his young friend out.
[57] Mr. Charley related that he turned into the alleyway next to the store and tried to get the revolver from Mr. Gordon. As he described it, he fell backward and Mr. Gordon fell on top of him. They continued struggling with each other and eventually spilled out of the alleyway onto Eglinton. Mr. Charley stated that the gun did not go off while he was struggling with Mr. Gordon. Mr. Charley did lose his gold teeth during the course of this struggle, and, as previously indicated, a set of gold grills were found by the police in the alleyway close to the Eglinton Avenue sidewalk.
[58] Mr. Charley testified that when the police arrived, he was held on the ground by one police officer, while others took his young acquaintance and Mr. Gordon into custody. He was also aware that Ms. Beckett had left the taxi to come speak to the police, but he did not see her being taken into custody.
V. The expert evidence
[59] The Crown produced as a witness David McGimpsey of the Firearms and Toolmarks unit of the Centre of Forensic Sciences. Mr. McGimpsey indicated that he has been qualified about 50 times by Ontario courts as an expert in the examination and comparison of firearms and ammunition. I found him qualified as expert in the examination, identification and comparison of firearms, ammunition and related components, and firearm function and safety testing. Mr. McGimpsey examined the revolver seized from Mr. Gordon at the scene of the robbery and prepared a report.
[60] Mr. McGimpsey opined that the revolver meets the statutory definition of a firearm, and that it can cause serious bodily injury or death. It is a restricted firearm under s. 84 of the Criminal Code (i.e. a handgun). It is not a prohibited firearm because of the barrel length, but it is restricted.
[61] He likewise assessed the physical state of the revolver and determined that it was capable of discharging ammunition, although the cylinder was not functioning properly. According to Mr. McGimpsey, the cylinder did not rotate automatically with each shot, as it was supposed to, because one of the internal components had come unseated. Accordingly, the cylinder had to be manually rotated in order for the next round to line up properly in the chamber after each shot.
[62] After fixing the internal component, Mr. McGimpsey test fired the revolver. He said he was able to discharge it twice before the previously repaired internal component became unseated again. Accordingly, the gun could likely only fire twice at any one time before the cylinder got stuck and had to be manually rotated. This helps explain why Mr. Gordon stated that the gun went off twice but no more, even though the struggle over the gun continued after the two rounds were fired. The component had probably become unseated after the second round was discharged, preventing a third round from firing.
[63] It is noteworthy that the police found two spent cartridges in the alleyway beside the Mr. Jerk store, where Mr. Gordon’s description of the two shots would put them.
[64] The Crown also called David Ruddell of the Centre of Forensic Sciences, who indicated that he has been qualified as an expert by the Ontario courts some 20 times in gunshot residue (“GSR”) analysis and glass analysis. I qualified him as an expert forensic scientist in the field of GSR analysis.
[65] Mr. Ruddell explained in some detail how gunshot residue is produced, and how it typically splatters on the hand of a person holding the gun when it is fired. Mr. Ruddell testified that if there is residue on a hand, that person either fired a gun, was near a gun when it fired, or had touched a surface with GSR on it. If there is no residue on a person’s hand, either the person did not fire a gun, or the gun did not deposit GSR, or the GSR was lost to activity such as washing, or the sampling was ineffective. GSR cannot be used to determine the type of firearm or angle of firing.
[66] Mr. Ruddell analyzed samples taken from the young man’s and Mr. Charley’s hands, and found that the young man had on his hand more than 10 GSR particles (possibly up to 17), and that Mr. Charley had on his hand 2 particles of GSR. From this, he concluded that both of the individuals had gunshot residue on their hands, and that one of three possibilities applies: either both of them fired a gun, both were near a gun when it fired, or they had touched a surface with GSR.
[67] Mr. Ruddell further opined that if neither the young man nor Mr. Charley actually fired the gun, then the one with more on his hand was either closer to the gunshot or handled a part of the firearm where a lot of GSR was deposited (unless, of course, the one with less particles had washed his hands or wiped them or put on and off gloves or something like that).
[68] According to Mr. Ruddell, when one person holds another person’s wrist, the non-shooter and the shooter would likely be in the same position. He said that it is therefore likely that if Mr. Charley was in a physical struggle with the shooter, he could have ended up with 2 particles of residue on his hand from that contact.
VI. The police officers
[69] As noted at the outset, Officer Abuturab Mansuri is to be commended for the way he dealt with the dangerous situation that prevailed between Mr. Gordon and Mr. Charley when he arrived on the scene. He disarmed Mr. Gordon, subdued Mr. Charley, and signaled for his partner to attend to the young man who was standing nearby.
[70] A number of other police officers testified at trial, all of whom attended at the scene of the robbery and played a role in the collection of evidence. These include PC Martin Warnock, who interviewed Ms. Beckett, PC Michael Chmela, who arrested and interviewed the young man who entered the store with Mr. Charley, PC Lawrence Parasram, who inspected the taxi that Mr. Charley, Ms. Beckett, and the young man took to Eglinton Avenue and who downloaded the taxi’s security video that shows the three of them riding together, and DC Kim Seguin, the forensic officer who attended at the scene to collect physical evidence and photograph the relevant locations. These officers provided evidence that was relatively uncontentious, but that helped complete a picture of what happened at the Mr. Jerk’s store during the evening of January 15, 2015.
VII. Burden of proof
[71] It is, of course, a first principle of criminal law that the Crown must establish proof of guilt beyond a reasonable doubt. Furthermore, in a case like this, where Mr. Charley has testified, I must approach the case in the way that the Supreme Court of Canada instructs in R v W (D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742. In the first place, this means that I must keep in mind that a criminal trial is not a credibility contest where I simply chose between the Crown’s story and Mr. Charley’s story. The burden of proof always remains on the Crown.
[72] To put the matter the way that Cory J. put it in R v W (D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, at para 10, as trier of fact I “need not firmly believe or disbelieve any witness or set of witnesses.” Moreover, I must proceed in accordance with the charge that Cory J., at para 11, states that a jury would properly have received:
First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[73] The evidence must be considered in its totality, such that “mere disbelief of the accused’s exculpatory account or a mere preference in favour of the complainant’s account does not equate with guilt”: R v. L (CO), 2010 ONSC 2755, at para 6. Accordingly, I can only convict if I am convinced that the evidence establishes “exactly where the truth of the matter [lies]”, R v Nimchuk (1977), 1977 CanLII 1930 (ON CA), 33 CCC (2d) 209, at para 7 (Ont CA), and must acquit if the conflicting evidence leaves me in a state of reasonable doubt: R v Challice (1979), 1979 CanLII 2969 (ON CA), 45 CCC (2d) 546, at para 45 (Ont CA).
[74] Counsel for the Crown submits that Mr. Gordon’s account, as corroborated by Ms. Jonathan’s testimony and the forensic evidence, is straightforward and believable. She contends that Mr. Charley’s explanation of the events, by contrast, is not believable. As Crown counsel put it, “This was not a preponderance of bad timing and bad luck for Mr. Charley.”
[75] Defense counsel suggests that the firearm at issue here may have belonged to Mr. Gordon, and not to Mr. Charley as the Crown alleged. The problem with this suggestion is that it is unsupported in the evidence. Mr. Gordon testified that it was Mr. Charley that brought the revolver to the store and pointed it at him, threatened him with it, and pistol whipped him with it. Mr. Charley denies all of this, but he does not testify that it was Mr. Gordon who had the gun in the store. After all, it is Mr. Charley’s contention that he had already exited the store when the gun made its first appearance, and so he cannot say where the gun came from.
[76] The evidence all points to the firearm being brandished while the individuals were still inside the store. The wounds on Mr. Gordon’s head confirm that he was indeed pistol whipped on his forehead and skull, and the drops of red blood in the hallway in front of Apt. 4, together with his broken glasses lens in the aisle of the store, indicate that he was already beaten and wounded before going out into the alleyway.
[77] The only person that was present at this time other than Mr. Charley and Mr. Gordon was the young man. He presumably knows who brought the gun to the store, but he was not produced as a witness. Accordingly, the only evidence the court has as to the owner of the firearm is the testimony of Mr. Gordon and Mr. Charley. Mr. Gordon says that it was Mr. Charley who brought it to the store, while Mr. Charley denies it. In my view, all of the surrounding circumstances of the robbery, including Mr. Gordon’s injuries and the evidence of Ms. Jonathan that the young man who first attacked Mr. Gordon did so by jumping on him and kicking him without brandishing a weapon, support Mr. Gordon’s testimony that it was Mr. Charley who brought the gun.
[78] It is Mr. Charley’s contention that he turned around and ran out of the store when he realized what the young man was doing, and that he walked east on Eglinton toward Oakwood in order to clear his head and consider his next move. Ms. Jonathan, who was watching the scene closely, never saw him walking eastbound on Eglinton after the robbery began, and never saw him turn around at the corner of Eglinton and Oakwood and walk back toward Mr. Jerk’s. She also never saw Mr. Charley turn into the alleyway from Eglinton and enter the struggle over the gun from that direction. Instead, she only saw Mr. Charley initially enter the store behind the young man, and then later tumble out of the alleyway struggling with Mr. Gordon.
[79] While, as indicated, Ms. Jonathan conceded that there was a brief time when she exited the store and crossed the street that she did not actually have her eyes on the Mr. Jerk’s premises, it would be a rather large coincidence if in that instant she missed Mr. Charley’s movements in their entirety. He did not describe his movements in a way that took him outside of her range of vision once she turned around, and Ms. Jonathan was attentive to the scene watching it from Simone’s car; she described it step-by-step to the 911 operator. Ms. Jonathan was an objective observer, and nothing in her account suggests that Mr. Charley exited the store after her and strolled along Eglinton until deciding to risk his life fighting Mr. Gordon for a loaded gun that he had just heard fire a round.
[80] It is the defense contention that Mr. Gordon was selling marijuana out of the Mr. Jerk’s store. That may or may not be; Mr. Charley says it is the case, while Mr. Gordon denies it. The defense points out that the understocked shelves of the store, and the fact that at least a knife and a hatchet were kept as weapons behind the counter, corroborates Mr. Charley’s version. The Crown points out that no marijuana, cash, drug paraphernalia, or other indicia of trafficking were found in the store.
[81] In any case, there are no drug charges against Mr. Gordon, and the marijuana allegation is more of a distraction than a probative point. An armed robbery can take place at a store whether the store clerk is selling soft drugs or soft drinks. Mr. Gordon has no criminal record, and he is not an unsavory character or untrustworthy witness in the sense discussed in Vetrovec v The Queen 1982 CanLII 20 (SCC), [1982] 1 SCR 811, or in any other sense. He is a storekeeper/clerk in his father’s store, no more no less.
[82] Mr. Charley’s narrative does contain the remarkable coincidence that he has only been to Mr. Jerk’s twice to buy weed – January 14th and January 15th, 2015 – and both times the place was robbed by someone other than him. Without putting too fine a point on it, bad luck would seem to follow him into this store. Frankly, it strains credulity almost to the breaking point to think that a person could be terrorized by masked intruders robbing a store one day, and casually return to the store the very next day – let alone that he might encounter a surprisingly violent robbery the next day as well.
[83] Furthermore, Mr. Charley states that he heard the gun fire when he was still walking around on Eglinton Avenue, and that the gun never fired again once he started wrestling for control of it with Mr. Gordon. By coincidence, however, Mr. Charley was found to have gunshot residue on his hand, which would be consistent with his having been holding Mr. Gordon’s wrist when the gun fired in Mr. Gordon’s hand.
[84] Likewise, the young man was found to have an even greater quantity of GSR on his hand. That is consistent with his having grabbed the muzzle of the gun at the end of the struggle as Mr. Gordon described it, just before the police arrived and right after the gun was fired twice.
[85] In addition, Mr. Charley’s narrative contains a number of holes in its logic. He said that he left the store because he wanted no part of a robbery; but shortly thereafter he dived into the alleyway in order to take part in a violent gunfight. He said that he left Ms. Beckett in a taxi on a street west of the Mr. Jerk’s store, and that she was waiting there for his return; but when he exited to consider what to do next he walked east and away from his girlfriend and his ride.
[86] Mr. Charley’s testimony was described by Crown counsel as “contrived”. This series of unlikely coincidences and logical flaws lends credence to that characterization.
[87] Mr. Gordon’s testimony overall hangs together as a logical whole. His wounds show that he was hit on the head with a pistol, his broken glasses and gold chain found in the young man’s pocket corroborate his testimony that he was also kicked, stomped on and robbed during the course of the evening; the drops of blood outside Apt. 4 support his narrative of having stopped there to fumble with keys, the gold grills found in the alleyway supports Mr. Gordon’s testimony and Ms. Jonathan’s observations that Mr. Charley and Mr. Gordon came out of the alleyway physically struggling with each other.
[88] Moreover, the knife in Mr. Gordon’s waistband corroborates his testimony that he was inclined to take his defense into his own hands if robbed again rather than call the police. Counsel for the defense submits that Mr. Gordon’s failure to call the police after being robbed on January 14th somehow impugns his character or credibility. There is no doubt, however, that he was indeed robbed the previous day; Mr. Charley says so himself.
[89] Counsel for the Crown points out that Mr. Charley, who supposedly was an innocent bystander for the January 14th robbery, also never contacted the police to advise them of that event. I will simply observe that people respond to events in different ways, and some for their own reasons, or born of their own experience, may be disinclined to call the police even where they are victims of crime. I do not read anything further into the fact that the police were not called regarding the January 14, 2015 robbery at the Mr. Jerk’s store.
[90] The fact that the knife remained wrapped in newspaper and never came out of Mr. Gordon’s waistband despite his engaging in a physical struggle, seems to confirm that he was set upon in a surprise attack. He clearly suffered blows to his head from a metallic object – a pistol whipping, as he put it – before he had his wits about him sufficiently to react or defend himself.
[91] Nothing in the events as they unfolded, or the injuries suffered by Mr. Gordon very early on in those events, point to Mr. Gordon springing a gun on his robbers rather than the other way around. As counsel for the Crown put it in her final submissions, you don’t knowingly take a knife to a gunfight.
[92] Had the incident proceeded in the way that Mr. Charley described it, Mr. Gordon’s entire wrestling match down the length of the alleyway, until the very end, would have been with the young man rather than with Mr. Charley. There is no indication as to why Mr. Gordon would identify the wrong adversary in his physical struggle; for him to do so makes no sense.
[93] Mr. Gordon identified the young man as being the one who started the robbery with an aggressive attack on him across the counter in the store. He had no reason to spare the young man anything else or to impugn Mr. Charley in one part of the attack rather than the other.
[94] Indeed, it is noteworthy that Mr. Gordon did not hesitate to take responsibility for the two rounds being fired from the gun during the course of the struggle with Mr. Charley in the alleyway. He conceded that he caused the gun to fire accidently as he grasped it; had he wanted to make false allegations against Mr. Charley, he could just as easily have said that Mr. Charley fired the gun in an attempt to shoot him.
[95] I find Mr. Gordon to be a credible witness. He said he was robbed by two men – the same two men that took a taxi to the store together and that Ms. Jonathan saw come into the store one after the other. Mr. Gordon said that he was kicked and stomped on by one of the robbers – the younger one – and that he was pistol whipped and threatened with a firearm by the other robber.
[96] In other words, his testimony coherently described the roles that each of the robbers played. He did not know either of them personally and had no reason to lie about what each one did.
[97] Nothing in Mr. Gordon’s testimony was contrived to coincidentally serve his own purpose. His relating of the events accords with the portion of the events that Ms. Jonathan observed and with the physical and photographic evidence collected by the police just after the incident.
VII. Disposition
[98] On the basis of all of the evidence taken in its totality, I am convinced beyond a reasonable doubt that the robbery that took place on January 15, 2015 at the Mr. Jerk’s store transpired in the way that the Crown submits that it did.
[99] I find Mr. Charley guilty of armed robbery, aggravated assault, and possession of a loaded restricted firearm.
Morgan, J.
Released: January 27, 2017
CITATION: R. v. Charley, 2017 ONSC 605
COURT FILE NO.: CR-16-4000004
DATE: 20170127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
– and –
Ammaan Charley
Defendant
REASONS FOR JUDGMENT
E.M. Morgan, J.
Released: January 27, 2017