COURT FILE NO.: CR-19-1797-00
DATE: 2020 09 24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Vlacic, for the Crown
- and -
DALBIR SINGH
S. Gill, for the Defence
HEARD: August 31, September 1, 2, 3, 4, 2020, in Brampton
REASONS FOR JUDGMENT
André J.
[1] The Peel Regional Police Force (PRPF) charged Mr. Dalbir Singh (“Mr. Singh”) on December 25, 2018 with sixteen firearms-related offences following a complaint that he allegedly pointed a firearm at five persons and uttered death threats to them. The PRPF did not recover the alleged firearm.
SUMMARY OF THE EVIDENCE
[2] On December 1, 2018, five South Asian male students – Ravjot Singh, Mohit Arora, Amritpal Singh, Kulwinder Singh, and Palwinder Singh – rented two floors from a homeowner in Brampton. Mr. Dalbir Singh occupied the basement of the dwelling with his wife and two young children. Between December 1, 2018 and December 24, 2018, the five renters had limited interaction with Mr. Singh, such as exchanging greetings and pleasantries.
[3] The five renters decided to have a party at the home in the evening of December 24, 2018. They offered varying reasons for doing so. One witness testified that the party was a celebration of one of them obtaining his work permit and his purchase of a car that day. Others testified that there was no special reason for the party.
[4] There is conflicting evidence about what happened later in the evening. However, all four males who testified stated that, at some point between 10:00 p.m. and 11:00 p.m., Mr. Singh entered the main floor through a door leading to the backyard and started yelling to them about the noise they were making. He accused them of preventing his children from sleeping.
[5] Mr. Singh then left the residence by the same door. Some witnesses testified that he gave no indication that he would return. One witness testified that Mr. Singh said that he would be back.
[6] There is no dispute that Mr. Singh returned to the main floor of the dwelling, this time with what appeared to be a gun in his right hand. Fifty-two seconds of what transpired were captured by Ravjot Singh, one of the five students. The witnesses all testified that they believed that the gun was real. They testified that Mr. Singh stated that repeatedly. At least three of the students testified that Mr. Singh “racked” the gun two or three times before he was captured on video doing so.
[7] Mr. Ravjot Singh, the student who used his cellphone to record Mr. Dalbir Singh, testified that when Mr. Singh racked the gun, while being videotaped, a bullet popped out of the chamber of the gun. Other witnesses did not recall seeing this. They recalled, however, that Mr. Singh showed them a bullet to convince them that it was real. They also recalled that Mr. Singh removed the bullet magazine from the “gun” more than once.
[8] One witness testified that Mr. Singh pointed the gun at each of them and threatened to kill them. Another testified that Mr. Singh held the gun with the muzzle facing the floor. Another witness, Palwinder Singh, testified that at one point, Mr. Singh pointed the gun in the area of Palwinder Singh’s upper chest and lips and uttered words which were threatening. Mr. Singh then moved the gun away.
[9] The video shows Mr. Singh being very angry. He stated three times: “Don’t fuck with me”. Before stating this on the third occasion, Mr. Singh “racked” the gun. During the video, the five students and their approximately two to three guests, sat on couches in the room or at a table in an adjoining kitchen. One student, Mohit Arora, tried to physically restrain Mr. Singh from coming forward. Some of the other students are heard telling Mr. Singh to “calm down”.
[10] At one point, Mohit Arora gave his phone to Mr. Singh. Mr. Singh is heard speaking to a person who the students believed was the landlord. Mr. Arora tells Mr. Singh that he had called 911.
[11] Mr. Singh left the residence. Two witnesses testified that they saw Mr. Singh give the gun to a woman believed to be his wife.
[12] Following Mr. Singh’s arrest, the PRPF executed a search warrant on Mr. Singh’s basement apartment. They did not find any real or imitation firearm.
[13] The Crown and defence filed an Agreed Statement of Facts. They agreed that the item captured in the video recording, “generally resembles some of the semi-automatic pistols manufactured by companies such as Sig Sauer and Glock”. They also agree that there are companies “that copy their general design/shape and manufacture blank-firing models … and also companies … that produce Airsoft guns that closely resemble them.” The Crown and defence also agree that “an item generally cannot conclusively be identified and classified from a video tape alone.”
[14] Mr. Liam James Hendriksen was qualified, on consent, as an expert in firearms and ballistics and therefore capable of giving an opinion about the item seen in the video. He stated the following:
(1) It is not possible to conclusively identify and classify an item on the basis of video-evidence alone.
(2) The motion of pulling a slide back on a “gun” is not unique to a legitimate firearm.
(3) He did not see a round of ammunition ejecting from the “gun” when Mr. Singh pulled the slide back.
(4) Only a physical examination can conclusively identify and classify the “gun” shown in the video.
CROWN’S POSITION
[15] The Crown submits that although the video alone does not prove that Mr. Singh was in possession of a firearm, the circumstances of the incident, including Mr. Singh’s actions and utterances, prove that he was in possession of a firearm as defined in law. He should therefore be found guilty as charged.
DEFENCE POSITION
[16] Mr. Singh’s counsel submits that it would be dangerous to convict Mr. Singh based on the expert opinion about the video and the unreliability of the evidence of the Crown’s witnesses. He submits that because of the numerous inconsistencies in the evidence of the Crown’s witnesses, their evidence should be accorded little or no weight.
ANALYSIS
[17] Central to the analysis in this case, is a determination whether or not the Crown has proven beyond a reasonable doubt that the instrument in Mr. Singh’s possession during the incident was a firearm. This necessarily involves an analysis of the relevant provisions in the Criminal Code and the applicable jurisprudence.
THE LAW
[18] Section 2 of the Code provides that:
firearm means 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;
[19] In R. v. Willis, 2007 ONCJ 605, [2007] O.J. No. 5691, the court noted the following, at para. 31:
[W]here a firearm is not recovered, the case law requires more than just a reference in conversation to a gun, or a mere depiction of one in an image, in order to come to a reasonable conclusion that the gun is an operable firearm. Other factors such as the circumstances of its use, its description, the conversation or images surrounding its possession, or any expert evidence tendered must permit a jury to conclude beyond a reasonable doubt that it was a real firearm. In short, the totality of the circumstances and evidence must be taken into account.
[20] In R. v. Mills, [2001] O.J. No. 3675, Eberhard J. noted, at para. 20, that:
Where all the circumstances lead to an inference that the item looking like a firearm is a firearm, it is open to the trier of fact to draw such an inference.
[21] The fact that a witness who identified a firearm in the hands of an accused who threatened to kill her, and the fact that the witness knew nothing about guns, are factors to be considered on deciding whether an instrument used to intimidate a person was a firearm but are not determinative of the issue: see Mills, at para. 16.
[22] Other factors that a court can consider in deciding whether an instrument was a firearm include the following:
(1) Whether the witness had described the instrument as a “revolver” and later “a pistol”;
(2) Where the witness had only seen the barrel end of the alleged gun; and
(3) Where the accused had neither loaded nor cocked the weapon in front of the victim: see R. v. Osiowy, 1997 ABCA 50, at para. 21.
[23] In R. v. Charbonneau, 2004 CanLII 9527 (ON CA), [2004] O.J. No. 1503 (C.A.) the Court of Appeal for Ontario noted, at para. 3, that:
It is true that the complainant was equivocal on the question of whether she could tell for certain whether the gun was real or fake. However, the trial judge also had before him the evidence of the complainant’s clear belief that it was a gun, her description of the object, the appellant’s conduct in relation to it and his use of it together with the appellant’s threat to shoot while holding it. Moreover, there was a complete absence of evidence to the contrary. Taken together, this is a sufficient foundation for the trial judge’s finding that it was a handgun.
APPLICATION OF THE LAW TO THE FACTS
[24] It is true that, as Mr. Singh’s counsel contends, the evidence may support his position that the Crown has failed to prove beyond a reasonable doubt that Mr. Singh was in possession of a firearm.
[25] First, all the witnesses testified that they had no prior knowledge of firearms nor experience handling one at any time. One witness testified that his father, who had been an army officer, had taken him to a firing range on one occasion. However, he had not handled a gun.
[26] Second, the witnesses gave different descriptions of the magazine that they testified Mr. Singh removed from the gun. One witness described it as black in colour, while another described it as “transparent”.
[27] Third, the witnesses were also inconsistent in their testimony about the colour of the bullet they had seen. One described it as silver, another copper while a third testified that it was gold with a red line on it.
[28] Fourth, the witnesses testified that they only had limited contact with Mr. Singh prior to December 24, 2018. However, one witness conceded that he advised the police that Mr. Singh had partied with him and his friends before December 24, 2018.
[29] Fifth, the witnesses gave different accounts of what drinks they had during the party. One witness testified that they had purchased beer and alcohol for the party. Another stated that they only had beer while a third stated that he had only consumed alcohol.
[30] Finally, defence counsel submits that the fact that the witnesses did not appear alarmed in the video constitutes evidence that they did not think that Mr. Singh had a real gun.
[31] The fact that the witnesses had no prior knowledge of a real gun does not necessarily mean that their belief that Mr. Singh had a real gun was unfounded. They all testified that Mr. Singh repeatedly stated that the gun was real. The video also establishes, at the very minimum, that the object appeared to be a gun.
[32] The fact that the witnesses gave different descriptions about the magazine and colour of the bullet is not fatal to the Crown’s case. The witnesses, given their location in the room, had different vantage points while the incident unravelled. There were lights in the room; however, it is not unexpected that the witnesses’ perceptions of the nature of the magazine and colour of the bullets were different.
[33] Admittedly, the witnesses gave different accounts of the drinks at the party. Some drank beer while others drank alcohol. In my view, this discrepancy does not impeach the credibility of the witnesses. They all consumed alcohol during their party. There is no evidence that any was intoxicated. Defence counsel did not question Constable Bianca Benes, who had some interaction with Ravjot Singh, about Ravjot’s level of intoxication.
[34] I also disagree that the witnesses were not alarmed and that this constitutes some evidence that they did not believe that Mr. Singh had a real gun. The fact that the witnesses did not try to hide or run away is not evidence, in my view, that they were not scared or alarmed about Mr. Singh’s actions. Mohit Arora physically tried to stop Mr. Singh. He is seen attempting to hold Mr. Singh’s right hand. Other witnesses are heard telling Mr. Singh to “calm down”. Amritpal Singh tried to come between Mr. Singh and Mr. Arora. Finally, Mr. Arora called the landlord and 911. All of these actions collectively indicate that the students were alarmed after Mr. Singh re-entered the main floor of the residence, carrying what, to them, appeared to be a real gun.
[35] Do the circumstances surrounding the incident permit me to draw an inference that the object in his right hand was a real gun? These circumstances include the following:
(1) Mr. Singh initially entered the main floor of the residence in an angry manner, complaining about the noise the students were making.
(2) Mr. Singh left and then returned with what appeared to have been a firearm. Three witnesses testified that Mr. Singh removed the magazine from the gun, and showed them a bullet while stating that the gun was real. There is no evidence of collusion among the witnesses, neither is there any evidence that they had an animus towards Mr. Singh.
(3) Mr. Singh appears on the video to be approaching Palwinder Singh, according to Ravjot Singh and Palwinder Singh.
(4) Mr. Singh “racked” the “gun” on at least three occasions, according to the witnesses, just before he threatened one of the students: “Don’t fuck with me”.
[36] In my view, these circumstances, alone, do not collectively raise an inference that Mr. Singh was in possession of a real firearm as opposed to an imitation gun, blank firing gun, air gun or Airsoft firing pistol. However, there is one critical piece of evidence that is relevant to determining whether the item in Mr. Singh’s possession was a real gun.
[37] Ravjot Singh testified that he saw a bullet in Mr. Singh’s hand. The bullet was copper coloured. He conceded in cross-examination, that he told the police on December 25, 2018, that the bullet was copper coloured with a red line on it.
[38] Amritpal Singh testified that Mr. Singh pulled out the magazine, showed them a bullet and placed the magazine back into the gun. Mr. Singh had the bullet in his hand for one to two minutes. Amritpal Singh described the bullet as golden in colour and about an inch long. He testified that the top of the bullet was “sharp” while the bottom was “round”.
[39] The Crown brought an application for the admission of a prior statement of Mr. Amritpal Singh, under the doctrine of “past recollection recorded”. I granted the application. Mr. Amritpal Singh told the police that the accused stated during the incident that the gun was a “9 MM” gun. Mr. Singh’s counsel put to Amritpal Singh that a popular disc jockey in the Punjabi community, known as “Jassie B,” has a popular song which lyrics include the phrase “9 MM”. Amritpal had no recollection of that song being played that night and denied that the song’s lyrics were “embedded in his head”. He testified further that a bullet came out of the gun after Mr. Singh “racked” it. Mr. Singh had then placed the bullet into the magazine and proceeded to insert the magazine into the gun.
[40] Defence counsel submits that this utterance about a “9 MM” gun that Amritpal attributes to his client should not be accorded any weight since no one else heard it. However, defence counsel never cross-examined the other Crown witnesses about whether they heard this utterance or forgot hearing it. To that extent, I cannot conclude that no weight should be given to that part of Amritpal Singh’s evidence because no one else heard any comment from Mr. Singh that the gun was a “9 MM”.
[41] Kulwinder Singh testified that the accused started shouting when he entered the room. He accused them of making noise. They told him they would cease to do so. Before leaving, the accused stated, “You don’t know who I am; I will show you who I am”. Mr. Singh returned carrying what appeared to be a gun in his hand. According to Kulwinder Singh, the accused took off the magazine and showed them a bullet. While doing this, the accused stated that the bullet was real; rather than a fake. Kulwinder Singh described the bullet as silver in colour and having a “sharp mouth” and “round back”. He did not see anything come out of the gun when Mr. Singh “racked” it.
[42] What is the significance of the shape of the bullet described by Amritpal Singh and Kulwinder Singh? The significance of this evidence stems from the expert testimony of Liam Hendriksen. He testified that blank firing guns and “Airsoft” guns generally have a slide back, much like a real gun. Furthermore, that “Airsoft” and “air gun” models have similar magazines “that generally resemble Sig Sauer and Glock magazines”. Mr. Hendriksen opined that the item shown in the video could be a real gun, a soft gun or a non-firing replica.
[43] Mr. Hendriksen testified that blank firing pistols have no projectiles while Airsoft models use conventional air to propel a plastic pellet. This pellet is spherical in nature and is a “very small ball”. By contrast, the Sig Sauer firearm has a brass metal bullet which is circular at its base and egg-shaped at its nose.
[44] In my view, the description given by Mr. Hendriksen of a real bullet matches that given by Amritpal Singh and Kulwinder Singh. In the circumstances in which Mr. Singh brandished the weapon, I am entitled to draw an inference that the gun held by Mr. Singh during this incident was a real firearm. To that extent, I find that the Crown has proven beyond a reasonable doubt that the item which Mr. Singh held in his right hand was indeed a firearm.
[45] Having found that the Crown has proven beyond a reasonable doubt that Mr. Singh had a firearm in his possession, I now turn to the individual counts on the indictment. They can be grouped in the following manner:
(1) Count No. 1 alleges that Mr. Singh had in his possession a weapon for a purpose dangerous to the public peace;
(2) Counts 2 to 6 alleges that, without lawful excuse, Mr. Singh pointed a firearm at each of the witnesses and at Mohit Arora;
(3) Counts 7 to 11 alleges that Mr. Singh uttered a threat to each of the five students to cause death to them;
(4) Count 12 alleges that Mr. Singh was in possession of a firearm while he was prohibited from doing so on account of a March 5, 2013 court order;
(5) Count 13 alleges that Mr. Singh used an imitation firearm while committing the offence of uttering threats;
(6) Counts 14 to 16 allege that Mr. Singh possessed a loaded firearm while he was not the holder of a licence to do so.
Count One
[46] Section 2 of the Code defines “weapon” as anything “used, designed or intended for use:
(a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person and, without limiting the generality of the foregoing, includes a firearm…”
[47] The definition of “weapon” therefore, is not restricted to a firearm. It is anything that has a use falling under (a) and (b). To that extent, the item in Mr. Singh’s possession – even if it was not found to have been a firearm – is a weapon. It was used for the purpose of threatening and intimidating Palwinder Singh. Mr. Singh conveyed a threat to Palwinder Singh when he “racked” the firearm, moved towards him and warned him: “Don’t fuck with me”.
[48] For these reasons, Mr. Singh is found guilty of this charge.
Counts 2 to 6
[49] Ravjot Singh testified that Mr. Singh threatened to shoot everyone, but held the gun with the front of the gun “facing the floor”. During cross-examination, he agreed that the gun was always pointed at the “ground”.
[50] Amritpal Singh testified that Mr. Singh pointed the gun at “each and everyone” and threatened to shoot all of them. He also testified that Mr. Singh stated that, “I have enough bullets to finish you all”.
[51] Kulwinder Singh testified that Mr. Singh threatened them by speaking loudly while in possession of a gun. He testified that Mr. Singh kept the gun pointed to the ground. He also stated that Mr. Singh was a couple of feet away from him.
[52] Palwinder Singh testified that he could not recall any exact threatening words uttered by Mr. Singh. Palwinder testified that Mr. Singh pointed the gun at him and then moved his hand with the gun “around”. The gun was pointed in the area of Palwinder’s lips and neck. Mr. Singh, according to this witness, then moved his hand “the other way” and held the gun down.
[53] Ravjot Singh, Kulwinder Singh and Palwinder Singh testified that the accused had the gun “pointed to the ground”. Amritpal and Palwinder testified that Mr. Singh pointed the gun at Palwinder. I am inclined to find as a fact that Mr. Singh pointed the gun at Palwinder because the video confirms that, for some reason, Mr. Singh directed much of his hostility towards Palwinder Singh to a point that Mohit Arora attempted to restrain him. I therefore find Mr. Singh guilty of count number 6 on the indictment. I have a reasonable doubt that Mr. Singh pointed the gun at the other witnesses. To that extent, I acquit him of Counts 2, 3, 4 and 5 on the indictment.
Counts 7 to 11
[54] Mr. Singh is charged, in these counts, of uttering a death threat to each of the five students. I have already made reference to the testimony of the Crown’s four witnesses regarding the alleged threats made by Mr. Singh to them. Only Amritpal Singh testified that Mr. Singh verbally threatened to shoot or kill all of those present at the party. However, all the witnesses testified that Mr. Singh racked the firearm multiple times, showed them a bullet and told them that the gun was real. He clearly did so to show them what he may resort to, if they did not cease making noise.
[55] The video, in my view, confirms that Mr. Singh, by his words and actions, threatened to cause death to Palwinder Singh. Mr. Singh racked his gun menacingly, warned Palwinder Singh, “don’t fuck with me”, and moved towards him. This constitutes a threat to Palwinder Singh. I therefore find that the Crown has proven count 11 on the indictment beyond a reasonable doubt.
[56] I am not convinced beyond a reasonable doubt that Mr. Singh knowingly uttered a threat to the other persons named in the indictment. To that extent, I find Mr. Singh not guilty of counts 7, 8, 9 and 10.
Count 12
[57] There is no dispute that on March 5, 2013, a court order prohibited Mr. Singh from possessing a firearm. Given my finding that he was in possession of a firearm on December 24, 2018, the Crown has proven this count beyond a reasonable doubt. Accordingly, I find Mr. Singh guilty of count number 12.
Count 13
[58] I have found as a fact that the item in Mr. Singh’s hand was a firearm, not an imitation weapon. To that extent, I find Mr. Singh not guilty of this charge.
Counts 14 to 16
[59] Count 14 relates to a “loaded firearm”, unlike counts 15 and 16 which only relate to a firearm.
[60] I have already found that the item in Mr. Singh’s possession is a firearm as defined under s. 2 of the Code. I find that the firearm is a “handgun” as defined under s. 84(1) of the Code. I also find that there is no evidence in this trial that Mr. Singh held a licence under which he could possess a loaded firearm. To that extent the Crown has proven these charges beyond a reasonable doubt. Accordingly, Mr. Singh is found guilty.
[61] Given my factual findings, I find that the Crown has proven these last three counts beyond a reasonable doubt. Accordingly, I find Mr. Singh guilty of these charges as well.
André J.
Released: September 24, 2020
COURT FILE NO.: CR-19-1797-00
DATE: 2020 09 24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DALBIR SINGH
REASONS FOR JUDGMENT
André J.
Released: September 24, 2020