R. v. Treleaven, 2017 ONSC 6389

CITATION: R. v. Treleaven, 2017 ONSC 6389

COURT FILE NO.: CR-15-30000649-0000

DATE: 20171026

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Ryan Treleaven

Defendant

Jason Balgopal, for the Crown

Michael E. Webster, for the Defendant

HEARD: September 25, 2017

REASONS FOR DECISION

CAROLE J. BROWN, J. (ORALLY)

[1] The accused, Ryan Treleaven, comes before this Court on a six count indictment as follows. Ryan Treleaven stands charged that, on the 22^nd day of April, 2014, in the City of Toronto, he robbed Timothy Hill contrary to section 343(d) of the Criminal Code; pointed a gun at Timothy Hill contrary to section 87(1) of the Criminal Code; possessed a firearm, knowing that he was not the holder of a license to possess such gun, contrary to section 92(1) of the Criminal Code; that, while bound by a probation order made by the Ontario Court of Justice on March 4, 2013, failed, without reasonable excuse, to comply with said order to keep the peace and be of good behaviour, contrary to section 733.1(1) of the Criminal Code; that he had in his possession, a firearm while prohibited from doing so by reason of an Order made pursuant to section 109 of the Criminal Code, contrary to section 117.01(1) of the Criminal Code; and that he had, in his possession, a firearm, while he was prohibited from doing so by reason of an Order made pursuant to section 109 of the Criminal Code, contrary to section 117.01(1) of the Criminal Code.

The Crown’s Case

Timothy Hill

[2] Timothy Hill testified that on April 21, 2014, he was bored. He started talking with Jennifer MacPherson on Facebook. He knew Jen only through social media. He explained that he knew her through a mutual friend at Bendell High School, which was a vocational high school he attended. He wanted to “chill” – “hang out”. He asked Jen, on Facebook, who was at her apartment. She indicated that nobody was there. He had never met her before but had only spoken on Facebook. She told him to come to her apartment and to bring a bottle of alcohol. After going online, he indicated that the liquor stores were closed. He attempted to go to the liquor store in any event, but it was closed. Jen advised that she had a friend who is a “bootlegger”. She gave him the address of her apartment, located on Lawrence Ave. East, Apt. 411. He went to her apartment. He did not recall the time that he arrived at the apartment, but confirmed, in cross-examination, upon being shown the preliminary inquiry transcripts that he believed it to be between 10:25 and 10:30 PM. Jen took him to another apartment in the apartment complex, to the bootlegger, where he purchased some liquor for her and a number of cans of beer for himself. He described the bootlegger as a black man. He does not remember the sizes of the drinks, the names of the drinks or the number of beers purchased. In cross-examination, he confirmed that at the preliminary inquiry he had recalled that he believed the alcohol to be vodka and that the beers were “tall boys”. Later, in cross-examination, when shown three different sized cans of beer, one being a “tall boy”, he stated that he could not confirm that that was the size of the beer he purchased. He bought about six cans of beer. He testified in cross-examination that he expected to pay a lot for alcohol at the bootlegger’s as it was after LCBO hours. However, he did not recall how much he paid. Although he could not remember how much he had paid the bootlegger, in cross-examination, he was shown the preliminary inquiry transcript and agreed that he had stated that he had paid $65 for the alcohol and loaned Jen another $20. He was not expecting anything from her in return.

[3] He testified that he knew Jen through Facebook, and first met her on the night of the incident. He testified that he believed he had met Jen through her sister, Laura, who he knew from Bentell High School. He does not recall whether Laura introduced him to Jen. He believed that the first time he had met Jen was that night at her apartment. In cross-examination, when shown the preliminary transcripts, his answer at the preliminary had been that he had known Laura through high school and believed that he had met Jen one year later. He may have met her earlier, in 2012, but was not sure. He may have met her once a while ago and then again on April 14, 2016, the day he was robbed. When asked in cross-examination, he stated that he could not remember whether he had chilled out with Jen previously. He stated that he may have met her once a while ago and then hung out the evening he was robbed.

[4] He testified that he could not recall whether he finished grade 10. He knows that he finished grade 9. He thinks that he was the normal age when in grade 9. He dropped out of grade 10 and testified that classes were difficult for him.

[5] When asked whether he thought he had a good or bad memory, he indicated that he thought he had a bad memory. At the preliminary inquiry he had indicated that he thought he had a pretty good memory. He said that, at the time his memory was getting better, but he testified at trial that it is not getting better now. He still remembers the big things that occurred but not the little things. He testified that he does not believe that drinking hurt his memory, as he does not drink much, and only drinks beer. He was not a heavy drinker at the time of the incident. He stated that he had sworn an oath to tell the truth at the trial. He could not recall whether he was sworn or affirmed at the preliminary inquiry which was held on October 8, 2015. It was confirmed that he had affirmed at the preliminary inquiry. He does not know why he was affirmed then and swore on the Bible at the trial.

[6] He acknowledged that he thought he had a bad memory. He stated in cross-examination that he thought his memory was pretty good when an incident just happens. Regarding significant things (“the big stuff) he still knows what happened but on little details (“little stuff”), he does not. In cross-examination, he was asked if he thought drinking would hurt the memory and responded that he did not drink that much and was not a heavy drinker at the time.

[7] When asked in cross-examination whether he was sexually attracted to Jen, he stated that she was cute. While he was asked, in cross-examination, if he became upset when “Attitude” and “Cory” arrived, because he had sexual designs on Jen, he denied this. He denied that he wanted a sexual relationship with her. He said he didn’t want other people there as something had happened to him when he was younger, but he did not want to speak about it. He acknowledged that he had asked who would be there and she had told him that there would be only two of them when he asked.

[8] He stated, in cross-examination, that when he went over to Jen’s, he thought they would hang out and have a couple of drinks. After purchasing the liquor at the bootlegger’s, they went back to her apartment and had a couple of drinks. Her female friend and the friend’s baby where there also.

[9] He does not know how much he drank before “Attitude” and “Cory” arrived. After being shown the preliminary transcript, he stated that he had answered at that time that he may have consumed three tall boys, but he cannot remember now.

[10] Suddenly, two men who were introduced as “Attitude” and “Cory” came through the front door; just walked in. She said they were her family and were “cool”. He does not remember what ““Attitude”” looked like at the time. He had never seen him before and has only seen him in Court since that night. He identified the accused. Ryan Treleaven, as “Attitude”. He described “Cory” as wearing shorts, with short hair. He does not believe that he ever saw him before and does not believe that he has seen him since. He testified in cross-examination that when they arrived, he felt a little scared. He had a fear of strangers and a fear of men due to an incident that had happened to him a long while ago. He did not feel comfortable telling the Court why he felt scared, it was the same issue as before. She told him that one was her brother and they were staying about 15 minutes. He does not know whether he was visibly upset. He thinks she was trying to calm him down.

[11] He offered “Cory” and “Attitude” beers and the woman with her baby left. He was a bit scared of them, but wanted to get on their good side.

[12] He was not upset that his beer and cigarettes would be consumed by others, although he did not have much money. He was scared of them for the reason already given and stated that he offered beer and cigarettes because he was “being nice” and that he would rather be on someone’s good side than not. He testified that he was just being nice.

[13] He confirmed that he was on social assistance receiving approximately $650 per month, living with his father who paid the rent and that he was paying expenses of about $300 per month. He was taken to the preliminary inquiry transcripts in which he had stated that he was paying $350 per month for expenses and received $650 social assistance; therefore he had $300 left for himself for the month. He received the social assistance at the end of a month. He bought his cigarettes from a store on a Reserve which did not charge taxes. He could not remember when he had last been employed or by whom. He is currently employed as a mover.

[14] He, “Attitude” and “Cory” went to the balcony for smokes. He does not believe that Jen went out with them. Nothing happened on the balcony. They each smoked. There were no problems. They went back inside and hung out a little bit longer.

[15] He testified that there had been no conversation on the balcony. However, when taken to his preliminary transcript, he agreed that he had, at the time, stated that he was asked, by “Attitude”, on the balcony, “what would you prefer, your money or your life”. He knew that it was “Attitude” who asked him the question as “Attitude” was looking at him while he was talking. He thought it was a joke because they were all hanging out and having a cigarette. He does not recall the answer he gave, but he did give an answer.

[16] They walked back into the living room, sat down and hung out a little bit longer. He explained that he had only seen the living room, balcony and kitchen. He did not go into the bathroom of the apartment.

[17] After they had hung out for a while, “Attitude” pulled out a gun and asked if Mr. Hill were scared. Mr. Hill stated that he was not, as he thought this was a joke. “Attitude” had the gun trained to the floor with his finger on the trigger. Mr. Hill explained that “Attitude” was holding the gun with the bottom three fingers curled around the gun, the top index finger extended and the thumb up. He described the gun as about 8 to 9 inches long at the barrel, black and like the police officers carry in the movies.

[18] “Attitude” then put the gun barrel into his mouth. His teeth were on the barrel. Then “Cory” pulled out a knife and told him to roll over on the bed where he was seated and pull everything out of his pockets. He testified that he does not recall what the knife looked like. It was touching his throat and was sharp. He explained that they were on a bed which was located in the living room. He was seated on the edge of the bed, “Cory” was beside him and Jennifer was lying on the bed beside him. “Attitude” was standing. He rolled over on the bed and did what he was told. He pulled out his wallet, keys and cigarettes. He had $80 in his wallet. He does not know who pulled the money out of his wallet. He did not know that they had done this until he was speaking with the police later.

[19] He does not know what “Attitude” and “Cory” did with the gun and knife. “Attitude” asked him if he was “good”, which he understood to mean “are you okay”. He said “yeah, yeah”. He just said what he had to in order to get out of there. He was scared.

[20] “Attitude” said they were going downtown. They did not ask Mr. Hill to come with them. They took his red Jordan shoes, which he had gotten from his boss. He does not know what they were worth. He paid $50 for them. He bought them from his former employer who had gotten them from a shoe store client. They gave him an old pair of running shoes they found in the closet.

[21] After they emptied his pockets, they told him to sit up and gave him a beer. He opened it, took one sip and then left it on the floor. He collected his items from his pocket and put them back in his pocket, including his wallet, and everything else, except the money and shoes.

[22] After this, they told him to go into the kitchen. They were heating up a knife on the stove. In cross-examination, he stated that he believed it was one knife that he saw, a butter knife. They had toilet paper rolls and told him to breathe the fumes from the knife through the roll. He guessed that they had put a drug on the knife. It smelled weird. The smoke did not make him feel anything differently. He does not know whether it was marijuana being smoked. He had smoked marijuana but quit. He stated, in cross-examination that they had told him to breathe the fumes of the substance and he did not feel that he could refuse it, given that it was offered by “a guy with a gun”. He testified that he had stopped smoking marijuana when he was about 22 years old.

[23] They then gave him a green cup filled with the alcohol he had purchased from the bootlegger in it. They told him to drink it. He took the cup, walked downstairs behind them and threw the liquid away outside.

[24] He testified that when he went to Jen’s, he had his cell phone with him. He didn’t call 911 at the time of the incident, as his cell phone was on a charger on the floor when all of this happened. As they were all leaving, he grabbed his cell phone and charger. They did not see him as they were walking ahead of him. He then contacted 911, went outside, saw a police cruiser driving by and flagged it down. He spoke with the police and told them what had happened. He could not recall whether he had told them about what had happened on the balcony. He was then shown the police statement. After reviewing his statement, he indicated that he had not told them about the balcony incident, because that had not stuck in his mind. What stuck in his mind was the gun in his mouth and the knife to his throat.

[25] In cross-examination, Mr. Hill stated that he had an iPhone 5, which was state-of-the-art. It was charging on the floor near him and was not obstructed from view. He confirmed that he was on social assistance. He stated that people did not comment about his state-of-the-art cell phone and he does not think they had seen it that night. He stated that he was careful with it. The Crown and defence agreed that Mr. Hill called the police at 2:17 AM.

[26] He stated that after drinking, he was tipsy. He indicated that he does not usually stagger or get off balance, except when he is scared. When he is frightened, he starts to shake and his knees start to shake. He thinks that the police told him he looked like he had had a lot to drink. He thinks they asked him how much he had had to drink. He testified that it takes him about eight beers to be drunk, but not pass out. Having more, he would either pass out or vomit. He does not behave badly on beer, although his aunt had told him once that he behaved badly on alcohol.

[27] He testified in cross-examination that after having liquor he would become angry and not behave well. He gave an example of drinking liquor at his aunt’s home and her telling him that he had been rude. He testified that after that, he no longer drinks liquor but only beer.

[28] He does not know whether the gun was real. There was nothing to indicate that it was not a real gun and it was used as if it were a real gun.

[29] In cross-examination, he was asked whether someone had told him that if he did not want to answer a question, he should just say he didn’t remember. He testified that his mother had advised him that if he did not remember something when asked, he should just say that. He confirmed that he had seen movies where people say they can’t remember when they want to avoid answering a question. He testified that that is not what he was doing.

[30] In cross-examination, he indicated that he received social assistance in the amount of $650 per month. He lived with his father, who paid the rent, while he paid the expenses which amounted to about $350 per month. He had about $300 left over each month. His only other regular expenses included a couple of packs of cigarettes a week, which he bought at the stores on Reserves which do not charge tax, and about a bottle of beer per week. He testified that he did not regularly drink beer, but only when he is “hanging out” with people. He also sometimes takes the TTC, for which he pays. He denied in cross-examination that it was difficult to find girls to hang out with or to have sex with. He denied that women used him for money and stated that he offered to pay for things. He denied that he chose to hang out with girls because he wants to date them and stated that he chose to hang out with them when he was bored.

[31] He was asked in cross-examination about the crime with which he had been charged in August 2011. He testified that he did not really remember what had happened. After reading a police synopsis, he stated that he still did does not remember much about the incident but that the victim did not appear in Court and the charge was withdrawn. There was no admission of guilt.

Jennifer MacPherson

[32] Jennifer MacPherson testified that on April 21, 2014, she and Timothy Hill had communication on Facebook. She told him to buy a bottle and come over. A “bottle” meant liquor. He asked if the LCBO was opened and she indicated that it was.

[33] She said that she asked him to come over and bring liquor because “like your stupid; bring me liquor”. He was not the only guy she would get liquor from. She had no other interest in the guys she asked to bring liquor and come over, other than getting the alcohol. She just wanted alcohol and asked him to bring her alcohol. She wasn’t thinking about anything else. She just ignored him. She testified that she would just ignore the men who brought the alcohol and they usually would feel stupid and leave. She would often leave the apartment with the alcohol that was brought over and wait until the men got tired of waiting and left.

[34] At the time, and from 2011 to 2015, she was a heavy drinker. Whenever she drank she would get “blackout drunk”. She no longer drinks as she has a baby and is breast-feeding.

[35] She lives at 4205 Lawrence Ave. East, Apt. 411. He came to the apartment and did not have alcohol. He gave her money, she does not remember how much, and she went up to the bootlegger. She testified that when he arrived, she was already pretty drunk and that she drank a lot in those days. She probably had had some beers and a shot with her sister at her sister’s apartment located at Galloway and Lawrence also on the fourth floor.

[36] Her best friend, Alyssa Farmer, showed up. She left her sister’s to go back to the apartment to meet Alyssa. She messaged the guy to bring a bottle. He didn’t make it to the liquor store. It took him a while to get to her apartment. She believes he arrived after 9 PM. She had let Tim know before he arrived that Alyssa and her baby were there. She was texting Tim using Alyssa’s phone after having initially used Facebook.

[37] Tim arrived, gave her money and she went upstairs to the bootlegger. She believes that she was by herself, and that Tim was at the apartment with Alyssa. She purchased beers and a mickey of Appleton’s rum. The beers were “tall boys”, she believed Laker Ice. Tim only drank beer. She probably would not have let him drink the rum, because she was rude like that. The bottle was for her.

[38] She does not recall when the others showed up. She knew that Ryan Treleaven was coming; he had been with her family for Easter. She knew him from childhood. His family lived near her aunt and uncle. She hadn’t seen him for a number of years, but then they met up again. He is a good, longtime friend. She stated that he was like a brother and always stood up for her on the street. She stated that Ryan is a good person, but that they are no longer friends. Every time she is with him, she gets in trouble. They have not associated since April 22, 2014.

[39] Tim was not aware that Ryan was going to drop by. When he showed up, she told him that if he was nervous he should let her know. He knew that Alyssa was going to be there. From the information she had given Tim initially, she expected that he would have understood that she and Alyssa would be at the apartment and no one else.

[40] She was trying to avoid him because he had wanted photos of her when he was on the way over. He asked if she had any “boob shots”, which she refused. There was no other talk of sex. Perhaps he was thinking about sex, but she didn’t care; she just wanted the alcohol.

[41] Alyssa had asked her if she thought she could get money for “weed” from him. He gave her $20-$40. She bought “weed” from the “weed people”. She did not want to say from whom she had purchased it, as she did not want to bring them into this trial. She thinks she bought about a ¼ oz. She knows that it was more than one joint.

[42] Ryan (“Attitude”) and “Cory” arrived. They sat around talking, drinking and some people were smoking on the balcony. Tim and Ryan had a conversation about where they lived, what school they had attended, things like that. Alyssa, Tim and Ryan tried the weed. Jennifer testified that, at one point, Tim made comments about her and Ryan had to stick up for her. She does not know what was said, but Ryan said to Tim: “hey, you can’t talk to her like that”.

[43] She did not know whether anything happened in the kitchen with drugs, although she said that it was possible that someone may have done “a hot knife”.

[44] Before Tim left, he could not find his shoes. He looked all over for them and did not know where they were. He took an old pair of her work shoes from her closet.

[45] She does not know where his shoes were. They were probably still in her apartment. She was arrested thereafter and then left for Alberta. They were probably still in the apartment when the landlord cleared things out of her apartment.

[46] They left her apartment. She later passed out. She somehow found herself back in the apartment the next day, although she does not know how she got there.

[47] She was arrested and pled guilty of robbery with threats of violence. She was in jail five months prior to the trial. She stated that when she pled guilty, she just wanted to get out. She was not trying to tell the truth. Her only purpose was to get out of jail. She was not concerned about pleading, as her record is so bad that this additional plea did not matter. She was not trying to tell the truth, but simply trying to get out of jail. When she entered the plea of guilty she was represented by Mitch Engel, who had represented her since she was 19. When she entered the plea she was 26 years of age. She testified that when she was guilty, she “pled right out”. When she isn’t guilty, she fights it. In this case, she pled guilty voluntarily. She was not forced into it. She testified that she pled guilty to something when it wasn’t true, because she wanted to be released from jail.

[48] Thereafter, the Crown advised that he wished to bring a Canada Evidence Act, section 9 (2) application.

[49] Cross-examination continued under the Canada Evidence Act, section 9(2), with no opposition from counsel for the defence as regards her plea of guilty to robbery with threats of violence contrary to section 343(a) of the Code.

[50] She testified that because she wanted to be released from jail, she lied to the Court and pled guilty. She testified that she never saw a gun or a knife; that there was no robbery; and that no one took Tim’s shoes. She testified that she had not brought Ryan and Cody to her apartment, knowing that they planned to rob Tim. She denied that anyone ever threatened Tim’s family.

[51] Following the cross-examination, counsel argued the KGB Application to permit the guilty plea contained in the Court transcript to be entered into evidence.

[52] Pursuant to my Ruling dated September 29, 2017, I granted the KGB Application and permitted the transcript of the guilty plea to be entered into evidence.

[53] The relevant portions of the transcript of the guilty proceedings held September 29, 2014 at Scarborough Court of Justice before T. Kelly J, are as follows:

Mr. Engle [counsel for Jennifer MacPherson]: I can indicate and I’ll go through it on the record. That Ms. MacPherson understands that the matter was scheduled for preliminary hearing today and that she could have very well put the Crown through the necessary requirements in order to get a committal on these charges. But she’s choosing to plea [sic] guilty voluntarily without any outside influences and pressures. And she understands that by doing so she is giving up her right to a trial, as I’ve just indicated, ultimately a trial, a prelim then trial. She is aware that the facts are gonna be read into the record. She’ll be acknowledging them as substantially correct. And she understands that while there is a joint submission that’s gonna be put forward for your Honour’s consideration, your Honour ultimately is the final arbiter and will decide whether or not that’s a fit and appropriate sentence. Is that all correct Ms. MacPherson?

Ms. MacPherson: Yes.

The Court: Thank you. And Ms. MacPherson, as you know I had the chance this morning to sit down in what we call a judicial pretrial conference setting and discuss the case to a limited extent with the lawyers. And I heard about the allegations and what the Crown is going to allege today, and what I understand you’re prepared to admit, and I heard a little bit about your background. But as I told counsel at the pretrial conference, and as I say in every case, I sentence people in Court on the record in a pretrial conference. So counsel have told you that there is a joint submission, which means they’re both going to ask to impose the same sentence. Sentencing is always up to the judge, I don’t have to go along with the joint submission. It always remains the judge’s decision, and I will impose the sentence once I have heard everything about the case. Do you understand?

Ms. MacPherson: Yes, I do.

Ms. Mandel [Crown]: By way of background the accused Jennifer MacPherson was arrested on charges of assault bodily harm and other offences, and released on recognizance on April 7, 2014 by the presiding justice with certain conditions. Including a condition to remain at your residence at all times, seven days a week, except for medical emergencies; for the purpose of travelling directly to, from and while at work or school. On Monday, April 21, 2014 at approximately 9:30 PM the complainant Timothy Hill made arrangements with his friend, Ms. MacPherson, the accused to hang out. He attended her apartment at 4205 Lawrence Ave. East, unit 411 in Toronto. While the complainant was at the apartment of the co-accused, Ryan Treleaven and another male attended the apartment also to “hang out”. These two males were not known to the complainant. Treleaven was referred to as “Attitude” and the other male was referred to as “Cory”. At approximately 12:30 AM on April 22, 2014, Treleaven asked the complainant if he was scared. He then pulled a black handgun and put it in the complainant’s mouth. The other male pulled out a knife and put it to the complainant’s throat. They then made a demand for the complainant to turn around and empty his pockets. The complainant handed over $80 in cash and his white and red Nike Jordan shoes. Treleaven and the unknown male then made the complainant smoke hash against his wishes. All four parties then exited the apartment. Treleaven checked the complainant’s driver’s license and stated that if he called the police “we will come for your family”. Ms. MacPherson and the two males then left the apartment and went, advised they were going downtown. The complainant was not injured. The Crown is not alleging that Ms. MacPherson knew that any weapons would be used, or knew that there were any weapons in anyone’s possession, although she brought the males knowing they would commit a robbery with threats of violence, but not with weapons. Those are the facts in support of a plea.

Mr. Engle: I understand that those facts are agreeable with Ms. MacPherson. Is that right ma’am?

Ms. MacPherson: Yes they are.

The Court: Those facts are true?

Ms. MacPherson: Yes they are.

Case for the Defence

[54] No evidence was called on behalf of Ryan Treleaven and he did not testify, as is his right.

Credibility

[55] Timothy Hill, the victim, struck me as a simple, somewhat slow witness. He had a poor memory for many things, but seemed to remember significant events from the past.

[56] Based on his testimony in examination in chief and cross-examination, he remained consistent and unshaken as regards the major events, namely that a gun was shoved into his mouth by the accused, the accused’s friend, “Cory”, held a knife to his throat and he was robbed of his money and his red Jordans. He also recalled that he was taken into the kitchen and given a drug that had been heated on a hot knife on the stove. While he indicated to the police that the accused was using “hot knives” to administer the drug, he stated that there was only one knife, which he also confirmed in cross-examination. He further confirmed in cross-examination that there was a process for taking drugs called “hot knives” and again confirmed that he saw one knife. I do not find this to be a significant inconsistency. While it is unclear as to whether he was referring to the process of “hot knives” or the number of knives being used by the accused in the kitchen when he gave a statement to the police, he was consistent in his testimony that he had seen only one knife being heated on the burner.

[57] Ms. MacPherson, in her statement to the Court during the guilty plea in September 2014, had acknowledged that what Timothy Hill stated at trial had happened. At this trial, she recanted this statement and testified that she had seen no weapons in her apartment and that there was no robbery of either Timothy Hill’s money or shoes. She further stated that her earlier statement to the Court during the guilty plea was made only because she wanted to get out of jail and was a lie. I note that she had had a long relationship with the accused and had described him as a really good friend. While she stated that she did not see him anymore, she also testified that she had seen him at Easter.

[58] Based on Ms. MacPherson’s testimony at trial and her testimony as regards the statement given in the guilty plea, and taking into consideration the evidence regarding her past criminal record which included convictions of failing to follow Court orders and lying to the police, I am skeptical of the reliability and credibility of her evidence. I discount her statements as regards the events of April 21-22, 2014, given the doubts raised as regards the veracity of her testimony at trial. While her statement at the guilty plea is consistent with the evidence of Mr. Hill, I do not place great weight on this as regards her veracity, given her consistent testimony that she had lied simply to get out of jail.

[59] While Mr. Hill was somewhat simple and mentally slow, I found his testimony to be forthright and consistent throughout as regards the events of April 21-22, 2014. While his memory was poor, I am satisfied that he remembered significant things and those things that stood out in his mind as regards the evening in question. I prefer his testimony to that of Ms. MacPherson and, as previously noted, have discounted her statements as regards the events of April 21 and 22, both at trial and as given in Court in September 2014 regarding her own charges emanating from those events.

The Charges

[60] The charges are as set forth at paragraph 1, above.

The Law

[61] Section 343(d) of the Criminal Code provides as follows:

Everyone commits robbery who

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

[62] Section 87(1) of the Code provides as follows:

Every person commits an offense who, without lawful excuse, points of firearm at another person, whether the firearm is loaded or unloaded.

[63] Section 92(1) of the Code provides as follows:

92 (1) Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm knowing that the person is not the holder of

(a) a licence under which the person may possess it; and

(b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

[64] Section 733.1(1) of the Code provides as follows:

a) an offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of

i. an indictable offence and is liable to imprisonment for a term not exceeding two years; or

ii. an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding 18 months, or to a fine not exceeding $2000, or both.

[65] Section 109 of the Code provides as follows:

109 (1) Where a person is convicted, or discharged under section 730, of

(a) an indictable offence in the commission of which violence against a person was used, threatened or attempted and for which the person may be sentenced to imprisonment for ten years or more,

(a.1) an indictable offence in the commission of which violence was used, threatened or attempted against

(i) the person’s current or former intimate partner,

(ii) a child or parent of the person or of anyone referred to in subparagraph (i), or

(iii) any person who resides with the person or with anyone referred to in subparagraph (i) or (ii),

(b) an offence under subsection 85(1) (using firearm in commission of offence), subsection 85(2) (using imitation firearm in commission of offence), 95(1) (possession of prohibited or restricted firearm with ammunition), 99(1) (weapons trafficking), 100(1) (possession for purpose of weapons trafficking), 102(1) (making automatic firearm), 103(1) (importing or exporting knowing it is unauthorized) or section 264 (criminal harassment),

(c) an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act, or

(d) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited by any order made under this Act or any other Act of Parliament from possessing any such thing,

the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period specified in the order as determined in accordance with subsection (2) or (3), as the case may be.

(2) An order made under subsection (1) shall, in the case of a first conviction for or discharge from the offence to which the order relates, prohibit the person from possessing

(a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance during the period that

(i) begins on the day on which the order is made, and

(ii) ends not earlier than ten years after the person’s release from imprisonment after conviction for the offence or, if the person is not then imprisoned or subject to imprisonment, after the person’s conviction for or discharge from the offence; and

(b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

(3) An order made under subsection (1) shall, in any case other than a case described in subsection (2), prohibit the person from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.

Definition of release from imprisonment

(4) In subparagraph (2)(a)(ii), release from imprisonment means release from confinement by reason of expiration of sentence, commencement of statutory release or grant of parole.

[66] Section 117.01(1) of the Code provides as follows:

Subject to subsection (4), every person commits an offence who possesses a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance while the person is prohibited from doing so by any order made under this Act or any other Act of Parliament.

Submissions of Counsel

[67] It is the submission of the Crown that Timothy Hill was consistent in both examination in chief and cross-examination as regards the significant events of the evening of April 21-22, 2014. The Crown submits that Jennifer MacPherson, on the other hand, was not forthright in her testimony at trial. However, her statement regarding the guilty plea, entered pursuant to the KGB application, for the truth of the statement must be carefully weighed. That statement, in the form of the Court transcript of the guilty plea, was consistent with everything that Timothy Hill testified had happened as regards the robbery at gunpoint with the knife held to his throat. He submits that weight should be placed on the guilty plea statement. The Crown submitted that the transcript statement should be accepted as true.

[68] It was the submission of the Crown that all elements of the offences had been established beyond a reasonable doubt. As regards the gun, the Crown acknowledged that no weapon had been found. However, he relied upon the case of R. v. Charbonneau, 2004 CanLII 9527 (Ont. C.A.) for the proposition that the Court can conclude that another unrecovered object, such as a gun, can be found to have been a gun, having regard to supporting or contradictory evidence. He submits that the facts of the present case are almost the same as those in Charbonneau. The victim, Timothy Hill, described the gun, and believed that it was a gun given the way it was used by the accused as a weapon of intimidation. The accused had asked the victim, while on the balcony, whether he preferred his life or his money. Inside, when the gun was drawn and shoved into the victim’s mouth, implicit in that act was “give me your money or I’ll shoot”. There was no evidence to suggest that the weapon was not a gun.

[69] It was the submission of Counsel for the defence, Mr. Webster, that there were many things as regards the testimony of Mr. Hill that would raise a reasonable doubt. It is the submission of the defence that Timothy Hill’s credibility was seriously called into question. He posits that Mr. Hill was not a “simple fellow” as the Crown urged. He submitted that Mr. Hill’s issues with memory had to do with calculation; namely that he had a calculating mind rather than a simple mind.

[70] Mr. Webster, for the defence, submitted that there was motive for Mr. Hill to make up his story, that there was reason for revenge. He posited that Mr. Hill wanted to be alone with Ms. MacPherson to “ make moves” on her, that he had found her cute, that he spent a lot of money on her regarding the alcohol and beer, when he had little money. He posited that Mr. Hill’s hopes were dashed when “Attitude” (Mr. Treleaven) and “Cory” (Cody Wright) came to her apartment, that he did not get what he wanted due to their unexpected presence. Further, they drank his beer. He submitted that Mr. Hill displayed “coyness” regarding his sexual passions or designs vis-à-vis Ms. MacPherson, when it is general knowledge that young men are sexually driven.

[71] Mr. Webster submitted that Mr. Hill’s memory lapses were motivated lies. While Mr. Hill could not remember how much money he spent on Ms. MacPherson for the liquor and beer, money was dear to him. He couldn’t remember how much he had in his pocket when he arrived, but did remember what was stolen.

[72] Mr. Webster submitted that while Mr. Hill testified that he did not know the smell of the drug that he had been given, one would assume that he would have asked his friends if that was the case. He submits that this was a ruse he made up to appear “simple”.

[73] Mr. Webster submitted that it did not make sense that Mr. Treleaven would take Mr. Hill’s money and shoes, but not his iPhone, and that this also raises a reasonable doubt.

[74] As regards the testimony of Ms. MacPherson, he stated that people regularly plead guilty to get out of jail, which is what Ms. MacPherson did in this case. She pled guilty to a lesser charge, and admitted that she had lied simply to get out of jail. He testified that this has a ring of truth.

Analysis

[75] The accused is presumed innocent. He need not testify at trial, as it is his right to remain silent and not call evidence. It is the obligation of the Crown to establish that all elements of the offence or offences with which the accused is charged have been established beyond a reasonable doubt.

[76] I am satisfied that the testimony of Mr. Hill was straightforward and not motivated by malice or revenge as urged by counsel for the defence. He was consistent in stating that the accused pulled out a gun, which he was able to describe in detail, put it in his mouth, “Cory” held a knife to his throat and he was robbed of $80 and his red Jordan shoes.

[77] I am satisfied, beyond a reasonable doubt, that money in the amount of $80 was taken from Mr. Hill’s pocket at gunpoint and that his red Jordan shoes were also taken and put in a bag on the dresser by the door of Ms. MacPherson’s apartment. He testified that he had worn the shoes, which he had purchased from his boss, to Ms. MacPherson’s apartment. She recalled that he had red Jordan shoes on when he arrived. It is clear from the security video of the parties walking down the stairs and leaving the apartment building, that he did not have the red Jordan shoes on, but rather an old pair of worn running shoes.

[78] While no gun was retrieved, I find that the accused was consistent in his testimony regarding the presence and use of the gun, and his testimony regarding Mr. Treleaven’s conduct regarding the use of the gun, namely that it was used as a firearm and that it was used for purposes of intimidation. I am satisfied beyond a reasonable doubt, based on the testimony of Mr. Hill, that a gun was used in the robbery of Mr. Hill. As regards this finding, I rely on the case of R v Charbonneau, supra.

[79] It has been conceded that Mr. Treleaven did not hold a license for the possession of a firearm on April 21 and 22, 2014. It is further conceded that there was an Order made pursuant to section 109 of the Criminal Code prohibiting him from possession of a firearm. As indicated above, I have found that he had a firearm in his possession such that he was in breach of section 92(1) and section 117.01(1) of the Criminal Code, the latter as he was prohibited by reason of an order from possession of a firearm.

[80] It is further conceded that on April 21 and 22, 2014, Mr. Treleaven was bound by a probation order made by the Ontario Court of Justice on March 4, 2013 to keep the peace and be of good behaviour. As indicated above, I have found that he was involved in the robbery of Mr. Hill at gunpoint and, as a result, had failed to keep the peace and be of good behaviour as ordered by the Ontario Court of Justice, thus breaching section 733.1(1) Criminal Code.

Conclusion

[81] I am satisfied, beyond a reasonable doubt, that Ryan Treleaven is guilty of the above charges against him as set forth above at para. 1.

Carole J. Brown, J.

Released: October 26, 2017