COURT FILE NO.: CR-19-9063
DATE: 20220606
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROBERT HUSBAND
Defendant
Javier Arvizu, for the Crown
Robert Husband, Self-Represented
HEARD: February 14-18, 22-25, 28, March 1-3, April 19-22 and 25, 2022
REASONS FOR JUDGMENT
MCKELVEY J.:
Introduction
[1] On October 11, 2019, there was a report of “shots fired” at 50 High Tech Road in Richmond Hill. Police quickly responded and apprehended the defendant, Robert Husband. Mr. Husband is charged with the following offences:
That on or around the 11th day of October in the year 2019 at the City of Richmond Hill in the Regional Municipality of York did, without lawful excuse, possess a loaded restricted firearm, to wit: a Walther handgun, while he was not the holder of an authorization or a licence under which he may possess it in that place and a registration certificate for the firearm, contrary to s. 95, ss. (1) of the Criminal Code.
And further that on or about the 11th day of October in the year 2019 at the City of Richmond Hill in the Regional Municipality of York did intentionally discharge a restricted firearm, while being reckless as to the life or safety of another person, contrary to s. 244.2, ss. (1) of the Criminal Code of Canada.
And further that on or about the 11th day of October in the year 2019 at the City of Richmond Hill in the Regional Municipality of York did, without lawful excuse, possess a firearm, while he was prohibited from doing so by an order pursuant to s. 109 of the Criminal Code, made on the 27th day of September, 2005, contrary to s. 117.01, ss. (1) of the Criminal Code.
And further that on or about the 11th day of October in the year 2019 at the City of Richmond Hill in the Regional Municipality of York did, without lawful excuse possess a firearm, while he was prohibited from doing so by an order pursuant to s. 109 of the Criminal Code, made on the 1st day of October 2015, contrary to s. 117.01, ss. (1) of the Criminal Code.
Decision Re: Count 1
[2] The parties submitted an Agreed Statement of Facts pursuant to s. 655 of the Criminal Code. This Agreed Statement of Facts was marked as Exhibit 9. Paragraph 4 of the Agreed Statement of Facts provides as follows:
On October 12, 2019 York Regional Police seized a Walter Creed, Semi-automatic 9mm pistol (serial #FCM2068) from a Nissan SUV with an Ontario Licence Plate CCHD 762. This firearm is a restricted firearm pursuant to section 84 of the Criminal Code. The firearm had a 16 cartridge capacity pistol magazine designed to hold 9mm cartridge. This magazine is prohibited pursuant to Regulation SOR/98-462. The firearm was discharged with ammunition inside the magazine and test ammunition by Detective Constable (DC) Mark Hoekstra, #1638 on October 12, 2019. A report was completed by DC Hoekstra confirming that the seized firearm (including magazine and ammunition) was functioning and met the definitions of the Criminal Code and related regulations. A copy of the report is included as Exhibit “C”.
[3] Paragraph 5 of the Agreed Statement of Facts provides as follows:
On October 11, 2019, Robert Husband was not authorized or had a licence to possess the Walter Creed, Semi-Automatic 9mm pistol (serial #FCM2068). Furthermore, Mr. Husband did not have a registration certificate for the above noted firearm. Attached as Exhibit “D” is an affidavit from Ashley Michelle Charbonneau, Firearms Officer, pursuant to the Firearms Act, dated January 21, 2021, which confirms that Mr. Husband did not have a certificate or licence to possess a firearm on October 11, 2019.
[4] Further, Swetal Patel testified that she drove her black Nissan Murano to work on October 11, 2019 and parked her car in the parking lot next door to 50 High Tech Road at around 8:00 to 8:30 a.m. that morning. No one else had the keys to the vehicle. She confirmed that at the end of the day she went up to her car and one of the windows was broken and there was a bullet hole in the driver’s door of the car. This damage was not there when she left the car that morning. She further confirmed that the gun found in the car did not belong to her.
[5] Mr. Husband elected to give evidence at trial. In his evidence he testified that in the early morning hours of October 11, 2019, he was with a couple of individuals who he thought might try to rob him. He was in an unfamiliar area and was staying at a motel with these individuals. The motel was not too far from 50 High Tech Road.
[6] Mr. Husband had a significant amount of cash on him at the time (about $6,500) and he was concerned that the individuals he was staying with were going to rob him. As a result, when the individuals in the motel room went to the washroom he grabbed the gun from a bag that was in the room and he left.
[7] Mr. Husband left with the gun and went and sat in front of Country Style Donuts. He tried calling a friend of his to pick him up but he was not able to reach him.
[8] During the course of his evidence, Mr. Husband stated, “I have no problem admitting to having the gun, its wrong, I knew it was wrong at the time”.
[9] In cross-examination, Mr. Husband acknowledged that he knew the firearm which was in his possession was loaded and that he was sober when he took the firearm. Police retrieved the firearm from the black Nissan SUV which Mr. Husband had subsequently broken into and then left. Mr. Husband further acknowledged that he knew he did not have a license or authorization for possession of the firearm.
[10] Based on the facts set out in the Agreed Statement of Facts and Mr. Husband’s own evidence, it is clear that on October 11, 2019, Mr. Husband did have possession of a Walther handgun, that he was not the holder of an authorization or license to possess that handgun and that he was aware of the fact that he was not in lawful possession of the handgun.
[11] I therefore find that the Crown has proved that Mr. Husband was guilty of possessing a loaded restricted firearm while he was not the holder of an authorization or a license to possess that handgun in that place.
Decision Re: Count 3
[12] Paragraph 2 of the Agreed Statement of Facts provides as follows:
On October 11, 2019 Robert Husband, was bound by a section 109 Weapons Prohibition Order imposed by Justice Duchesneau-McLachlan of the Ontario Court of Justice on September 27, 2005. Attached as Exhibit “A” is a certified true copy of the order.
[13] Exhibit A is a court order which contains a lifetime prohibition prohibiting Mr. Husband from possessing any prohibited or restricted firearm and prohibited ammunition for life.
[14] In his cross-examination at trial, Mr. Husband acknowledged that he was fully aware that he had two weapons prohibition orders against him. As noted earlier, he acknowledged that he was aware that the firearm was loaded and he was sober at the time when he took the firearm.
[15] Based on the Agreed Statement of Facts and his evidence at trial, I am satisfied that the Crown has proved beyond a reasonable doubt that Mr. Husband is guilty as per Count 3 of without a lawful excuse possessing a firearm while he was prohibited from doing so by an order pursuant to s. 109 of the Criminal Code, made on the 27th day of September, 2005, contrary to s. 117.01, ss. (1) of the Criminal Code.
Decision Re: Count 4
[16] The charge under Count 4 is identical to that under Count 3 except that the reference to the prohibition from possessing a firearm is in relation to an order made on October 1, 2015 which was issued by Justice Goldstein. Given that there has been a conviction under Count 3, Crown Counsel confirmed that this charge should be stayed under the Kienapple principle.
Decision Re: Count 2
[17] Section 244.2(1) of the Criminal Code provides that:
Every person commits an offence
(b) who intentionally discharges a firearm while being reckless as to the life or safety of another person.
[18] Kelvin So was employed by York Regional Transit on October 11, 2019 and worked at 50 High Tech Road in Richmond Hill. At around 4:00 p.m. he was on the fifth floor of the building. He got a call from another employee who told him that there was a man trying to get into some transit vehicles located in the parking lot. Mr. So saw a man wearing a white t-shirt and black pants and a black hat who was attempting to unlock vehicles. He was subsequently observed getting into a black SUV. Mr. So subsequently heard four consecutive shots come from the black Nissan vehicle. He then saw the individual leave the black Nissan and trying to get into other vehicles. The individual was seen getting into a silver Pontiac and some cash dropped out of the individual’s pocket. He then proceeded near a loading dock at the Shoppers Drug Mart where he was apprehended by police officers. Mr. So took a video of the individual on his iPhone after the person got out of the black SUV.
[19] Debbie Bignatelli was also working on the fifth floor of 50 High Tech Road. She also observed a male going in between York Region vehicles and trying to get into them. She saw this person getting into a black SUV and described him wearing a white t-shirt and black pants. She saw him smash a window on the black SUV and go into the vehicle. She also saw the individual with a gun and heard shots from the black SUV. She then saw the individual get out of the black SUV and try to get into other vehicles at the back of the plaza. She then saw the individual go to the back of the Shoppers Drug Mart when police arrived.
[20] In her testimony she said she heard three shots in rapid succession coming from the black SUV.
[21] In his evidence, the accused testified as noted earlier that he stole a gun from some individuals he was staying with and who he thought were going to rob him. His evidence as to whether he fired the gun was confusing. At first he suggested that he did not recall firing the gun. He testified as follows:
And the next thing I remember I’m on one knee and I had the firearm in, in my, in my hand like this, and I’m like, I’m like, woah, and I snap out of it, and I’m like fuck did – what happened? Did I fire the gun? Like I didn’t, I didn’t know if I had fired the gun or not. I’m like why – what – why was I just like this? What the fuck is going on?
[22] Later in his evidence, however, the accused testified that he recalled shooting the gun out of the window of the black Nissan. His evidence was as follows:
I was sitting in the driver’s seat, and I remember shooting the gun out of the window, yes.
[23] Later on he stated:
Yes. I don’t, I don’t recall what I was shooting at. I remember having the gun in my hand and I remember the, the louds, the bang.
[24] Based on the above evidence I am satisfied that the Crown has proved beyond a reasonable doubt that the accused did commit the actus reus of the offence in question. Mr. Husband discharged a firearm and was clearly reckless as to the life or safety of another person. The firearm in question was discharged in a very public area where other persons could reasonably be expected. His actions were reckless to the life and safety of other persons who would reasonably be found in that area. If sober, he would have realized that by firing the gun in that location he put the lives of others at risk.
[25] Mr. Husband’s defence is that he did not have the necessary mens rea to commit the offence. To address the issue of mens rea, the first issue which needs to be considered is whether the offence under s. 244.2(1) is a general intent offence or whether it is a specific intent offence. In the Supreme Court of Canada decision in R. v. Daviault, 1994 CanLII 61 (SCC), the Court had to consider the mens rea element required for sexual assault. The Court held that in crimes requiring only a general intent, drunkenness or intoxication will not be a defence unless it is so severe as to be akin to automatism. In that decision, Justice Cory stated,
In my view, the Charter could be complied with, in crimes requiring only a general intent, if the accused were permitted to establish that, at the time of the offence, he was in a state of extreme intoxication akin to automatism or insanity. Just as in a situation where it is sought to establish a state of insanity, the accused must bear the burden of establishing, on the balance of probabilities, that he was in that extreme state of intoxication. This will undoubtedly require the testimony of an expert. Obviously, it will be a rare situation where an accused is able to establish such an extreme degree of intoxication. Yet, permitting such a procedure would mean that a defence would remain open that, due to the extreme degree of intoxication, the minimal mental element required by a general intent offence had not been established. To permit this rare and limited defence in general intent offences is required so that the common law principles of intoxication can comply with the Charter.
[26] The classification of this offence, therefore, is a significant issue. In the Daviault decision Justice Sopinka, although dissenting on the main issue, describes the difference between a general and a specific intent offence. He comments that specific intent offences are as a rule, those that require a mental element beyond that of general intent offences and include those generally more serious offences where the mens rea must involve not only the intentional performance of the actus reus but, as well, the formation of further ulterior motives and purposes. An example given by Justice Sopinka of a specific intent offence is the offence of assault to resist or prevent arrest. It is the ulterior intent of resisting arrest which makes the offence a “specific intent” offence.
[27] In addition to the ulterior intent offences, there are certain offences which by reason of their serious nature and the importance of the mental element are classified as specific intent offences notwithstanding that they do not fit the criteria usually associated with ulterior intent offences. Justice Sopinka gives the example of murder as a specific intent offence by reason of its serious nature.
[28] As noted by Justice Sopinka in the Daviault decision, general intent offences as a rule are those which require minimal intent to do the act which constitutes the actus reus. Proof of intent is usually inferred from the commission of the act on the basis of the principle that a person intends the natural consequences of his or her act. He further states,
Without attempting to exhaust the policy reasons for excluding the defence of drunkenness from this category of offences, I would observe that it is seldom, even in cases of extreme drunkenness, that a person will lack this minimal degree of consciousness.
[29] The distinction between a general and specific intent offence was further refined by the Supreme Court in its decision in R. v. Tatton, 2015 SCC 33. In this decision Justice Moldaver referred to Sopinka J.’s explanation in the Daviault decision. He commented that while Sopinka J. restricted his discussion of specific intent offences to crimes involving an ulterior purpose, it would be a mistake to assume that an ulterior purpose is always required. To the contrary, a heightened mental element could take the form of a requirement that the accused intend to bring about certain consequences, if the formation of that intent involves more complex thought and reasoning processes. Justice Moldaver summarizes the distinction as follows:
To summarize, specific intent offences contain a heightened mental element. That element may take the form of an ulterior purpose or it may entail actual knowledge of certain circumstances or consequences, where the knowledge is the product of more complex thought and reasoning processes. Alternatively, it may involve intent to bring about certain consequences, if the formation of that intent involves more complex thought and reasoning processes. General intent offences, on the other hand, require very little mental acuity.
[30] On the role of policy in making a distinction between general and specific intent offences, he notes that in his view the most logical approach is to first examine the nature of the mental element. Only when this analysis fails to yield a clear answer should one turn to policy considerations. Justice Moldaver explains that general intent crimes involve such minimal mental acuity that it is difficult to see how intoxication short of automatism could deprive the accused of the low level of intent required. That provides a strong policy reason for precluding reliance on intoxication for those offences. However, if an examination of the mental element does not provide a clear answer, policy considerations may help resolve the question. In the main, the policy assessment will focus on whether alcohol consumption is habitually associated with the crime in question. If it is, then allowing an accused to rely on intoxication as a defence would seem counterintuitive.
[31] Justice Moldaver then comments that as a general observation, and without setting out a general rule, alcohol habitually plays a role in crimes involving violent or unruly conduct. It also tends to be prevalent in crimes involving damage to property. As such, Justice Moldaver concludes that it makes little sense from a policy perspective that it should provide a defence for crimes in which people or property are harmed or endangered.
[32] In the present case, I have concluded that s. 244.2(1) is a general intent offence. There is no “ulterior intent” that is required in order to commit the offence. It does not entail actual knowledge of certain circumstances or consequences and therefore does not appear to have a heightened mental element. From a policy perspective, the crime involves violent or unruly conduct and therefore from a policy perspective it does not appear to make sense to allow intoxication as a defence.
[33] The offence in question is a double mens rea offence. The first mens rea is the intention to discharge a firearm, and the second mens rea is being reckless as to the life or safety of another person. With respect to the intention to discharge a firearm, this would not appear to have a heightened mental element. It would appear to be akin to an offence like an assault which is clearly considered to be a general intent offence.
[34] With respect to the second mens rea of being reckless as to the life or safety of another person, this again would appear to have a minimal level of intent. In the R. v. Tatton decision, the question was whether the offence of arson in s. 434 of the Criminal Code was a general or specific intent offence. This provision provides that every person who intentionally or recklessly causes damages by fire or explosion to property is guilty of an offence. In commenting on the significance of recklessness as part of the offence, Justice Moldaver comments that the mental element of the offence of arson is the intentional or reckless performance of the illegal act – the causing of damage to property. He further comments that no additional knowledge or purpose is needed. He concludes, “[n]o complex thought or reasoning processes are required. On its face, the level of intent required for the offence would appear to be minimal.” Similarly in the offence under s. 244.2(1)(b), the level of intent involving recklessness would appear to be minimal.
[35] My conclusion that this offence is a general intent offence is supported by a decision of the Supreme Court of Nova Scotia in R. v. Jacquard, 2019 NSSC 338. A para. 59 of this decision, the Court concludes that s. 244.2(1)(b) is a general intent offence.
[36] In the recently released Supreme Court of Canada decision in R. v. Brown, 2022 SCC 18, Justice Kasirer found that s. 33.1 of the Criminal Code which was passed subsequent to the Supreme Court decision in Daviault and which eliminated the defence of extreme self-induced intoxication was unconstitutional. In his decision, Justice Kasirer states,
I specifically leave intact the common law rule that drunkenness, absent clear scientific evidence of automatism, is not a defence to general intent crimes, including crimes of violence such as sexual assault.
[37] Later in his judgment, Justice Kasirer refers to the Daviault decision and notes,
[A]t common law, an accused was entitled to an acquittal for a general intent offence if they could prove, on a balance of probabilities, that they committed the acts involuntarily, while in a state of extreme intoxication akin to automatism. In order to do so, the accused must adduce expert evidence.
[38] In summary, therefore, in the case of a general intent offence, intoxication is not a defence unless the accused is able to establish on a balance of probabilities that he was in the state of extreme intoxication akin to automatism or insanity. This requires the testimony of an expert.
[39] The accused in the present case argues that he was in the state of automatism at the time of the alleged offence. This is reflected in his evidence where he testified as follows:
Question: No. Sir, you simply were careless on October 11.
Answer: I was high as a fucking kite out of my mind. Do you understand was (sic) delusions and illusions are? Just because you have a delusion, does not mean that you’re completely out of your mind one hundred percent of the time. It comes – you come – you can still have a conversation with somebody, but you are still fucking hearing voices.
Question: And you still know what’s right and what’s wrong. Correct?
Answer: No. If I knew what was right or what was wrong, I wouldn’t -why would I be sitting in a frigging ….
Question: Well you do, sir, because for instance, you – when you were walking around with your firearm, you didn’t repeatedly just empty the entire clip out of the vehicle. Right?
Answer: Obviously not. You found it in the vehicle with the thing.
Question: So ….
Answer: If I had any right frame of mind, you think I would be sitting in a vehicle with the alarm going off, with a loaded gun and put the seatbelt on and attempt to start the car with my finger. You tell me.
[40] There are several difficulties with the accused’s automatism defence. First, there was no expert evidence to support this defence called at trial. In the Daviault and Brown decisions, the Court noted that drunkenness of the extreme degree required in order for it to become relevant will only occur on rare occasions. It is only the accused who can give evidence as to the amount of alcohol or drugs consumed and its effect on him. The Court notes that expert evidence will be required to confirm that the accused was probably in a state akin to automatism or insanity as a result of his drinking. In the present case, the accused filed an article on cocaine and its association with psychiatric symptoms. The article notes that cocaine is an addictive drug that produces numerous psychiatric symptoms which can include agitation, paranoia, hallucinations, delusions, violence as well as suicidal and homicidal thinking. The article goes on to state that the effect of cocaine consists of intense euphoria, pleasure and ecstasy. After approximately 5 to 20 minutes of this arousal, the person will start to feel irritable and uncomfortable. In an attempt to avoid this discomfort and “recapture” the initial high, people frequently compulsively will take the drug again. The article goes on to document that paranoia and suspiciousness are often initial symptoms of a psychosis.
[41] While the article is helpful in understanding the risks of cocaine abuse, it does not in itself draw a link between the accused’s consumption of cocaine on the day in question and a diagnosis of automatism at the time of the offence. This is the required link which must be established in the evidence in order to establish the defence of intoxication for a general intent offence.
[42] It is also significant to note that Mr. Husband’s evidence does not by itself support a claim that he was intoxicated to being in a state akin to automatism. He has essentially no recollection of the events in question. Mr. Husband testified that after going to the Country Style Donuts on the morning of October 11th, he then proceeded to a Shoppers Drug Mart in the mall immediately adjacent to 50 High Tech Road. At the Shoppers Drug Mart he bought a bag of syringes and then went into a wooded area where he injected a solution of cocaine and water. In his evidence he described taking a “couple of smashes of coke” and feeling tired. He ended up going to sleep and put the balance of the cocaine in a baggie which was then placed in his buttock area.
[43] Later, Mr. Husband described waking up and was confused and scared. He looked up and saw a small airplane which appeared to be going back and forth. He also thought he heard people talking but could not understand what they were saying. He then described how the next thing he remembered is being on one knee with the firearm in his hand and he didn’t know if he had fired the gun or not. Shortly thereafter, however, he testified that he remembered being in the vehicle and the alarm went off. He also stated that he remembered firing the shots out of the window although he couldn’t recall why he had done so. His next recollection after that point of time is when the police officers were on top of him.
[44] Clearly Mr. Husband’s recollection of the events of that day are very sketchy. Taking his evidence at its highest, he does not know why he discharged the firearm and has very little recollection of the events which took place after he consumed cocaine.
[45] As noted in the Daviault decision, the testimony of an accused to the effect that he was not aware of what he was doing is unlikely to constitute on its own a sufficient basis to permit a Court to conclude that his intoxication was so severe that it was akin to automatism.
[46] There is also evidence that the accused did have an operating mind at the time of the offence. In this regard, the evidence of Officer Preet Sharma is relevant. Officer Sharma was given custody of the accused immediately following his arrest and read to him his right to counsel and caution. While Officer Sharma suspected that the accused had consumed drugs, and while the answers given were untrue, he felt that the accused understood the questions he was being asked. This would therefore suggest that the accused had an operating mind in the timeframe very shortly after his arrest.
[47] A further factor I have considered is that the accused was at the relevant time a relatively experienced user of cocaine. This was reflected in his evidence when he testified as follows:
Question: … you can put it into a line, and you snort it. Right?
Answer: Yeah.
Question: Is that how you used cocaine on that day? You put it through your nose?
Answer: No. I injected it that day.
Question: Okay. So that requires you heating it up. Right?
Answer: No.
Question: Was the cocaine already liquid?
Answer: No, you - when you heat things up, it’s usually like pills, heroin. Cocaine you can just put it, you can - I, I usually just mix up like a gram with a whole bunch of water, shake it up and then I just – you don’t even have to stir it or nothing. You just, you know?
Question: Okay.
Answer: That’s why I had, like that’s why they’re in the picture, there’s a couple syringes …
Question: Yeah.
Answer: …that are loaded because I, I have – you know what I mean? I don’t want to do too much. I, I suck up these amount, that way – I don’t want to overdose, you know what I mean? I’m not looking to …
Question: No, again …
Answer: … I’m looking to feel better, right?
Question: … and it’s also, it’s much more potent when you’re putting it directly into your veins.
Answer: Yes, correct.
Question: So it’ll, it’ll hit you faster. Right? And when I say faster, it’s faster than if I was deciding to, you know, put it through my nose. Right?
Answer: Instantly.
Question: Okay, and how or when did you figure out this method of shooting cocaine? When did you start that?
Answer: The penitentiary.
Question: Okay, and you, obviously, have some, some extensive experience in knowing how to use cocaine that way, but also knowing your body because, as you just told us, you had it separated in different syringes. Correct?
Answer: Correct.
[48] Given Mr. Husband’s prior use and knowledge about cocaine, I have concluded that it is less likely that he could have inadvertently administered himself a dose of cocaine which would have rendered him into a state akin to automatism.
[49] There is, however, evidence that Mr. Husband was acting bizarrely at the time of the alleged offence. One of the bullets fired by Mr. Husband went through the arm rest of the car and there is no explanation as to why Mr. Husband would want to fire another two or three bullets from the car. Further, he also left the gun in the black Nissan as well as a prescription bottle with his name on it in the car. He also left an envelope full of his cash in the black Nissan.
[50] When he was confronted by the police a short time later he held his hands out as if he was holding a gun and pretended to fire the gun at the police officers when in fact he was only holding some cash in his hands. Even accepting that Mr. Husband’s behaviour on the day in question was bizarre, however, I am not satisfied on the balance of probabilities that he was suffering from a condition akin to automatism. Although this is one possible explanation, in the absence of any expert evidence to link his behaviour to a state of automatism from the injection of cocaine, this remains as only a possible explanation. The accused, therefore, has not met his onus on a balance of probabilities of establishing a state of automatism related to the ingestion of cocaine. For this reason, I find that the Crown has proved the offence beyond a reasonable doubt.
Conclusion
[51] Mr. Husband will you please stand?
[52] For the above reasons, there will be a finding of guilt on Counts 1, 2 and 3. Count 4 is stayed.
Justice M. McKelvey
Released: June 6, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ROBERT HUSBAND
Defendant
REASONS FOR JUDGMENT
Justice M. McKelvey
Released: June 6, 2022