Page 1

 


 

 

 

Case Name:

R. v. [REDACTED]

 

 

Between

Her Majesty the Queen, and

[REDACTED], [REDACTED] and [REDACTED]

 

[2014] O.J. No. [REDACTED]

 

2014 ONSC [REDACTED]

 

113 W.C.B. (2d) [REDACTED]

 

2014 CarswellOnt [REDACTED]

 

Court File No. 85/13

 

 

Ontario Superior Court of Justice

 

[REDACTED]

 

Heard: March 24-27, 2014.

Judgment: May 27, 2014.

 

(119 paras.)

 

Criminal law -- Criminal Code offences -- Weapons offences -- Using firearm in commission of offence -- Offences against rights of property -- Robbery and extortion -- Robbery -- Trial of [REDACTED] who was charged with robbery using firearm – [REDACTED] convicted – [REDACTED] and [REDACTED] went to victim's apartment and took some of his property – [REDACTED]  fired shotgun – [REDACTED] stole from and assaulted victim – [REDACTED] was party to robbery using firearm -- He and [REDACTED] aided each other, had common plan and knew that robbery would be probable consequence -- All other witnesses testified that [REDACTED] knew about gun.

 

Trial of [REDACTED] who was charged with robbery using a firearm. [REDACTED] and [REDACTED] went to the victim's apartment to recover stolen property and took some of his property while there. [REDACTED] fired a shotgun, seriously injuring the victim. The victim, two other people who were in his apartment when the assailants arrived, [REDACTED] and three other people who were aware of the plan to go to the apartment testified. [REDACTED] denied knowing about the gun until after the incident.

HELD: [REDACTED] convicted. [REDACTED] did not use a gun during the incident, but stole from and assaulted the victim. [REDACTED] was a party to robbery using a firearm. He and [REDACTED] aided each other in committing robbery. They had a common plan to steal from and "rough up" the victim. They knew that robbery would be a probable consequence of carrying out the plan. All other witnesses testified that [REDACTED] knew about the gun before the incident, that he saw it and that he made comments about whether it should be loaded. It defied common sense to conclude that he did not know about it. He told the police that he saw it.

 

Statutes, Regulations and Rules Cited:

Criminal Code, R.S.C. 1985, c. C-46, s. 21, s. 21(1), s. 21(2), s. 343, s. 344, s. 344(1)

 

Counsel:

[REDACTED], for the Crown.

[REDACTED], for [REDACTED].

 

 

 

 

REASONS FOR JUDGMENT

1 [REDACTED] :-- [REDACTED] was originally charged in an indictment that included two others: [REDACTED] and [REDACTED]. This trial only involved [REDACTED].

2 [REDACTED] is charged with using a firearm, namely a shotgun, to rob three people of various items and money. He is also charged with breach of probation arising out of the same events.

3 The robberies involved a scheme under which [REDACTED] and [REDACTED] participated, together with [REDACTED], to recover some property belonging to [REDACTED]. The scheme went wrong, a shotgun was fired, a person was seriously injured, and the perpetrators ran. They were subsequently apprehended.

4 For the reasons that follow, I find [REDACTED] guilty of all charges.

Background

5 In August, 2012, [REDACTED] lived at [REDACTED], in Oakville. On the evening of August 11, 2012, he was at home with some friends, [REDACTED] and [REDACTED]. They were going to go to a pub and have some drinks.

6 At around 9:00 p.m., he spoke to a friend, [REDACTED], on the telephone, and said he could come over.

7 [REDACTED] testified that [REDACTED] came over and appeared nervous. [REDACTED] went to the washroom. Shortly, his apartment door swung open and a masked man confronted him in the washroom. The man had a black bandana over his face, up to his nose. He had on a sweater and pants, and a hoodie on his head.

8 The man threatened [REDACTED], and told him to get down or he would get hurt. They fought. [REDACTED] had never seen him before.

9 The man said to [REDACTED] "Give [REDACTED] his money." [REDACTED] had been pushed into the bathtub.

10 [REDACTED] got out of the bathtub, struggled with the man, and managed to get into the living room. There, he saw another masked man with a sawed off shotgun pointed at his two friends who were on the floor. The gun was about two feet long.

11 [REDACTED] could see more of this man's face than he had seen of the other man's. He also had on a bandana and a hoodie.

12 [REDACTED]'s friend, [REDACTED], was in the far left corner of the living room. He appeared to be scared.

13 [REDACTED] testified that the man with the gun screamed "Get down - I'm going to kill you." [REDACTED] testified that he charged the man with the gun and ripped off his bandana. He grabbed the gun, at which point the man said "Don't do this" or something to that effect. [REDACTED] then heard a very loud noise, after the other man pulled the trigger of the gun.

14 [REDACTED] then saw blood pouring from his hand. He ran for his life.

15 Ultimately, [REDACTED] lost one third of his left thumb. He required three surgeries and a skin graft. He now has about 50 per cent use of his thumb.

16 When [REDACTED] returned to his apartment he discovered that his computer was missing, as well as cash, a guitar and some watches. The watches had been contained in a jewellery chest along with some cash, all of which were gone. His computer had been taken, which was worth about $2,500. His electric guitar, which was next to his computer, was gone.

17 On cross-examination, [REDACTED] confirmed that the experience was very traumatic. He did not know the man who had attacked him in the bathroom.

18 [REDACTED] acknowledged that he had broken into [REDACTED]'s car and stolen a back pack. He had wanted cash and knew there would be some "weed" in the back pack.

19 He also confirmed that he knew there was a gun involved in the incident only when he left the washroom and went to the living room.

20 [REDACTED] testified that on August 11, 2012, he was hanging out in [REDACTED]'s apartment with [REDACTED], both of whom were good friends. He said things were very good until [REDACTED] arrived. Once [REDACTED] arrived, things were tense. After [REDACTED] arrived, [REDACTED] got up and unlocked the apartment door.

21 [REDACTED] testified that [REDACTED] went to the bathroom. Two people then barged into the apartment at the same time. One of them confronted [REDACTED] in the bathroom.

22 The other person came into the living room with a gun, and told [REDACTED] and [REDACTED] to get on the floor. This person had on baggy clothes, with a bandana that came up his nose.

23 The man with the gun told them to empty their pockets and said he would kill them if they moved. [REDACTED] said he emptied his pockets and put the contents on a table. He testified that the gunman asked [REDACTED] if he had any weapons, and he poked him in the head with the gun.

24 [REDACTED] testified that the gun was a green/grey colour about 18 inches in length.

25 [REDACTED] testified that while he was on the floor he begged the gunman not to hurt him. He said his friend [REDACTED] was also on the floor, and took out a phone and a five dollar bill. [REDACTED] took out a Blackberry, worth about $500, and his wallet which contained identification, credit cards, and about $20-$40 in cash. He never got his belongings back.

26 [REDACTED] testified that the gunman ordered them to get naked. He was taking off his shirt, when [REDACTED] interrupted. He had fought off the other person in the bathroom.

27 [REDACTED] testified that [REDACTED] asked the gunman to stop what he was doing. He said "You're not robbing me in my own house." [REDACTED] grabbed the gun and there was a struggle. [REDACTED] testified that the gunman said "I'm taking the safety off." [REDACTED] ripped off the mask and said "It's you - why are you doing this?"

28 [REDACTED] testified that he put his sweater back on and crawled towards [REDACTED]. He said "Should we do something?"

29 [REDACTED] testified that he heard the gun go off. It was so loud that his ears were ringing. He said he blacked out. He quickly got out of the apartment.

30 On cross-examination, [REDACTED] testified that he could see into the bathroom from where he was. He said the incident appeared to be disorganized. There was no communication between the two masked men.

31 [REDACTED] testified. She said that on August 11, 2012, she was hanging out in [REDACTED] [REDACTED]'s apartment on the [REDACTED], Oakville. She was with [REDACTED], [REDACTED], and [REDACTED]. They were watching television, and the mood was good.

32 [REDACTED] testified that the mood changed when two people, whom she identified as "[REDACTED]" and "[REDACTED]" came in. [REDACTED]’s nickname was "[REDACTED]" and [REDACTED]'s nickname was "[REDACTED]". She described [REDACTED] as white and balding, and [REDACTED] as short and black.

33 [REDACTED] testified that there had been some discussion about something having been stolen from [REDACTED], and that they knew who had stolen it. [REDACTED] called [REDACTED] and [REDACTED] to come and help.

34 [REDACTED] testified that she had met [REDACTED] before, as a friend of [REDACTED]'s, but did not know [REDACTED].

35 [REDACTED] testified that [REDACTED] had brought a big black bag with him. While they were in the apartment, [REDACTED] brought out a gun from the bag. She testified that everyone was in the apartment. [REDACTED] was on a chair near the balcony, and [REDACTED] was on a couch. [REDACTED] was on the same couch.

36 [REDACTED] testified that the gun was a green, camouflage colour. She also described the ammunition, as "decently big", and red. She testified that [REDACTED] put the ammunition into the gun. Everyone was still in the room when the ammunition was put into the gun.

37 [REDACTED] testified that at some point [REDACTED] left the apartment, and was gone about 10 or 15 minutes. She testified that she let [REDACTED] into the building and brought him up to the apartment.

38 [REDACTED] testified that about ten minutes after she and [REDACTED] returned, [REDACTED], [REDACTED], [REDACTED] and [REDACTED] left the apartment. About five or ten minutes later, she heard a loud noise and the fire alarm. Shortly, there was a bang on the door. [REDACTED] appeared and said "Go". She left the building. She subsequently gave a statement to the police.

39 [REDACTED], testified. He said on August 11, 2012, he was at [REDACTED]'s apartment with [REDACTED]. He said [REDACTED] subsequently came. He did not know why [REDACTED] was there. After he arrived, [REDACTED] went to the front door of the apartment and unlocked it.

40 After the door was unlocked, two guys came in. One went to the bathroom and one to the living room.

41 The person in the living room had a bandana over his nose, and had a shotgun, which was a camouflage colour, and was about one and a half to two feet long.

42 The gunman told [REDACTED] and [REDACTED] to get on the floor. He pointed the gun at them. He told them to empty their pockets. [REDACTED] took five dollars and a phone out of his pockets. He put the phone under the couch. He said the gun was touching him in the back of his head.

43 [REDACTED] testified that he saw the other person in the bathroom with [REDACTED]. [REDACTED] got out of the bathroom and struggled with the gunman.

44 [REDACTED] testified that he heard a shot fired, that was very loud. He had his head down and did not see it. He looked up, and everyone was out of the apartment except the person who had been in the bathroom with [REDACTED]. That person was trying to unplug a computer that was in the living room. He did so. They looked at each other, and the person left the apartment. [REDACTED] did not recognize that person. He was carrying the computer.

45 [REDACTED] testified that the five dollars that he had taken from his pocket was gone.

46 On cross-examination, [REDACTED] confirmed that he is a good friend of [REDACTED]. He testified that [REDACTED] may have had something of [REDACTED]'s. He testified that he was the only one left with the man who was in the bathroom with [REDACTED] when that person took the computer. He said it was a desktop computer with a touch screen. It was about one and a half feet wide and about three inches thick.

47 [REDACTED] testified. She testified that on August 11, 2012, she was at an apartment on [REDACTED] with her friend [REDACTED] and [REDACTED] [REDACTED], at about 9:30 p.m. At about 9:40 p.m., [REDACTED], or "[REDACTED]" and [REDACTED], or "[REDACTED]", entered the apartment. She had known [REDACTED] since Grade 9, but did not know [REDACTED] before.

48 [REDACTED] testified that she knows [REDACTED], who arrived in the apartment before [REDACTED] and [REDACTED] did.

49 While [REDACTED] was in the apartment, there was discussion about some of [REDACTED]'s possessions having been stolen. [REDACTED] testified that she had been told about the theft by a friend of [REDACTED]'s, with whom she had been in a relationship. She told [REDACTED] about this. He became upset. Shortly after, [REDACTED] and [REDACTED] arrived.

50 [REDACTED] testified that [REDACTED] had a black duffle bag, about two feet long. [REDACTED] was not carrying anything. [REDACTED] left the apartment for a short period of time.

51 After [REDACTED] left the apartment, [REDACTED] took a shotgun out of the bag. It was a dark green camouflage colour. It was about one and a half to two feet long.

52 [REDACTED] left the apartment to let [REDACTED] in. [REDACTED] had already left the apartment.

53 When [REDACTED] came back into the apartment, the shotgun was on [REDACTED]'s lap. [REDACTED] loaded one round into the gun. The ammunition was red with a copper tip. [REDACTED] said "If we're not going to use the gun, why load it?" He was told "Don't worry about it."

54 It was decided that [REDACTED], [REDACTED] and [REDACTED] would go. The gun was in [REDACTED]'s jacket, underneath it. [REDACTED] was holding it.

55 Shortly after they left, [REDACTED] felt the building shake. [REDACTED] banged on the door and said "[REDACTED] shot someone's finger off". They all left.

56 [REDACTED] identified [REDACTED] Robinson, the accused, from a photo line-up. It is agreed that he was properly identified.

57 [REDACTED] testified that when [REDACTED] came back into the apartment after he had left for a period, and saw the gun, there was no reaction.

58 On cross-examination, [REDACTED] testified that on the evening of August 11, 2012, she had had one glass of wine. She did not believe [REDACTED] was carrying anything. She estimated that [REDACTED] was away from the apartment for 10 to 30 minutes. She confirmed that the gun was still on [REDACTED]'s lap when [REDACTED] re-entered the apartment. She testified that she only saw [REDACTED] holding the gun, and that he put it under his jacket. When she first saw the gun, she was not sure if it was real. When she saw it was loaded, she knew it was real.

59 [REDACTED] testified. He said that on August 11, 2012, he was in his brother [REDACTED]'s apartment with [REDACTED] and [REDACTED]. He testified that [REDACTED] said that [REDACTED] had broken into a car and stolen some of his stuff. She said it was about three weeks prior. He said this was a shock, because the stuff had been stolen by someone he trusted.

60 [REDACTED] testified that he called [REDACTED] and told him he needed help. He said that he and [REDACTED] went and picked up [REDACTED] near Oakville Place. They drove to an apartment building near [REDACTED] Road, where [REDACTED] picked up a duffle bag. [REDACTED] testified that he knew there was a shotgun in the duffle bag. He had told him to bring protection.

61 [REDACTED] testified that they drove to an apartment near North Service Road and Dorval Drive. They picked up [REDACTED]. [REDACTED] did not know him. He was introduced as "[REDACTED]". He testified that they drove to [REDACTED]'s apartment.

62 After arriving at [REDACTED]'s apartment, [REDACTED] testified that he tried to call [REDACTED], and then he left the apartment. When he returned, [REDACTED] was not there. At about 9:30 p.m., he managed to reach [REDACTED]. [REDACTED] called [REDACTED], who then returned to the apartment.

63 While [REDACTED] was out of the apartment, [REDACTED] took out the shotgun. He had a bag of shells with him. After [REDACTED] returned, they were all there while the gun was being handled. In the apartment were [REDACTED], [REDACTED], [REDACTED], [REDACTED] and [REDACTED]. It is a small apartment.

64 [REDACTED] described the gun as being a sawed off shotgun, about two feet long, and being a camouflage colour. [REDACTED] said something to the effect of "Don't load it." [REDACTED] had the shells for the gun in a zip lock bag. He said they had to be prepared for anything to happen.

65 [REDACTED] testified that they discussed the plan. He said the plan was to go to [REDACTED]'s apartment and see what happens. He said they would scare [REDACTED] and get his stuff back. He said the plan was discussed with everyone in the apartment, including [REDACTED]. It was decided to go down and rough [REDACTED] up and get the stuff. The gun was in the bag.

66 [REDACTED] testified that he went to [REDACTED]'s apartment. He unlocked the door after he got there. He sat on a chair and was nervous. He said [REDACTED] and [REDACTED] were sitting on a couch. [REDACTED] was in the bathroom.

67 [REDACTED] testified that the apartment door was kicked in. [REDACTED] went to the bathroom where [REDACTED] was. [REDACTED] told the others to get on the ground and undress and empty their pockets. He was holding the gun in his hands. The gun was loaded. He heard it click.

68 [REDACTED] testified that [REDACTED] hit [REDACTED], who fell into the bathtub.

69 [REDACTED] testified that [REDACTED] and [REDACTED] were on the floor and removed their cellphones.

70 [REDACTED] testified that [REDACTED] got out of the bathroom and ran at [REDACTED]. He said [REDACTED] grabbed the gun, at which point [REDACTED] said "Fuck it - I'm taking the safety off." [REDACTED] heard the gun go off. He said [REDACTED] was near the bathroom.

71 [REDACTED] testified that he was the first to leave the apartment. He went to [REDACTED]'s apartment, where [REDACTED] and [REDACTED] let him in. He told them they had to go. They went to a bar down the street. They did not speak to [REDACTED] afterwards.

72 On cross-examination, [REDACTED] testified that when he was interviewed by the police he was high on drugs. He said he was functional.

73 [REDACTED] testified that he thought that he and [REDACTED] were best friends. He was hurt when he found out what [REDACTED] had done.

74 [REDACTED] confirmed that when the gun was visible, [REDACTED] was there. He said [REDACTED] said "Don't load it." He said all of those present discussed the plan when [REDACTED] was there. They thought the gun would be used as a scare tactic. He said everyone in the room knew about the gun. [REDACTED] and [REDACTED] thought using the gun was a bad idea. [REDACTED]'s reaction was "Don't load it". [REDACTED] said he was not sure about using the gun.

75 [REDACTED] Robinson, the accused, testified. He said that on August 11, 2012, he was at home when he received a call from [REDACTED]. [REDACTED] told him his friend [REDACTED] had lost valuable items, and he wanted help. He said there was an opportunity to make some money.

76 About five minutes later, [REDACTED] testified that he was picked up by [REDACTED] and [REDACTED] and [REDACTED]. They went to [REDACTED]'s apartment at [REDACTED]. About 10 or 15 minutes after he arrived, he went on an errand to pick up some wine at the LCBO.

77 [REDACTED] testified that he left the apartment at just after 9:00 p.m. He was called and asked if he could pick up some coke. Later, [REDACTED] called and asked him where he was. He said he was on his way.

78 After returning to the apartment, they decided what to do. There was no real plan, it was spur of the moment. It was agreed that [REDACTED] would go to the apartment and unlock the door. The others would come and rough up [REDACTED]. [REDACTED]'s stuff would be in the apartment and they would get it.

79 [REDACTED] testified that he wore black clothes and a bandana, so that it would be intimidating. He said [REDACTED] wore black clothes.

80 [REDACTED] said that as far as he knew there was no weapon. He did not see a weapon in [REDACTED]'s apartment. He saw [REDACTED] carrying a bag, but they did not discuss its contents. He did not ask. He reiterated that he did not see a gun. He was not paying attention to [REDACTED]. As far as he was concerned, they were just going to go to [REDACTED]'s apartment and recover [REDACTED]'s stuff.

81 [REDACTED] testified that he and [REDACTED] went to Apartment [REDACTED]. They opened the door. He saw [REDACTED] in the apartment. He did not see what [REDACTED] did.

82 [REDACTED] testified that he was in the washroom with [REDACTED]. [REDACTED] came in with him. There were punches to [REDACTED]'s face. There was no weapon.

83 [REDACTED] testified that after leaving the washroom, he went directly into [REDACTED]'s bedroom. There was no light on. He searched in the dark. He heard a loud bang and a commotion.

84 [REDACTED] testified that he went to the living room and saw a computer, which he assumed was [REDACTED]'s computer. He unplugged it and took it. He saw [REDACTED] on the floor.

85 [REDACTED] testified that he went into the hallway and down the stairs. He heard [REDACTED] call "Hail [REDACTED]", on the fifth floor. He went down the stairs to [REDACTED]'s vehicle. He had the computer with him. [REDACTED] had a jacket on.

86 [REDACTED] testified that he saw [REDACTED] remove a strap from his neck, and he saw a shotgun, approximately two feet long. He said it was the first time he had seen it. [REDACTED] put the gun in a bag and they went to [REDACTED]'s place.

87 [REDACTED] testified that at Maplehurst he had some contact with [REDACTED]. [REDACTED] accused him of ratting on him.

88 [REDACTED] denied telling [REDACTED] to not load the gun. He reiterated that he first saw the gun when he was in the back of [REDACTED]'s car.

89 On cross-examination, [REDACTED] insisted that he did not know that [REDACTED] had a gun. While he saw [REDACTED] carrying a duffle bag, he did not ask what was in it. He said that [REDACTED] did not open the bag when he was in [REDACTED]'s apartment.

90 [REDACTED] acknowledged that in his interview with the police, he agreed that he had seen the gun while he was in [REDACTED]'s apartment, but he insisted he was not being truthful. He just wanted to tell the police what they wanted to hear so that he could get out of there.

91 [REDACTED] denied that he had taken two watches, or any money or anything off the coffee table. He only took the computer.

92 [REDACTED] acknowledged and identified a photograph recorded on a security camera that showed him leaving the building after the incident. He acknowledged that he was carrying a computer, and that he had a bag on his back that clearly had items in the bag. He said he had never checked the bag before.

Submissions

93 [REDACTED], counsel for [REDACTED], submits that [REDACTED] should be acquitted of all charges. Clearly, [REDACTED] committed an assault, a theft and a breaking and entering. However, he is charged with robbery, and he did not commit that offence.

94 [REDACTED] submits that evidence that [REDACTED] knew of the gun was unreliable and should not be accepted. There are inconsistencies in the evidence given by various witnesses about the gun.

95 [REDACTED]'s denial of knowledge of the gun is consistent, and believable. [REDACTED] testified that he did not know about the gun until after the incident had occurred, and he should be believed, or at the very least his evidence raises a reasonable doubt. If [REDACTED] did not know about the gun, he cannot be convicted of robbery by using a firearm.

96 [REDACTED] submits that this case falls to be decided based on the well-known case of R. v. W.(D.), [1991] 1 S.C.R. 742

97 [REDACTED] submits that if I believe [REDACTED]'s evidence, he must be acquitted. Even if I do not believe [REDACTED]'s evidence, he must be acquitted if his evidence leaves me with a reasonable doubt. Even if [REDACTED]'s evidence does not leave me with a reasonable doubt, he can only be convicted if the rest of the evidence convinces me of his guilt beyond a reasonable doubt.

98 [REDACTED] submits that [REDACTED]'s evidence, at the very least, should raise a reasonable doubt. The rest of the evidence, with its many inconsistencies, is not sufficient to prove [REDACTED]'s guilt beyond a reasonable doubt.

99 [REDACTED], counsel for the Crown, submits that [REDACTED] should be convicted on all counts.

100 [REDACTED] submits that all the witnesses, other than [REDACTED], are consistent in their evidence that everyone knew of the firearm before the incident occurred. It defies common sense that they are all mistaken, and that [REDACTED] simply did not see the gun.

101 It is not in dispute that [REDACTED] had the gun in [REDACTED]'s apartment. It is inconceivable that [REDACTED] would not have seen the gun before they got to the apartment. It is also inconceivable that he only saw the gun after the incident was over.

102 At a number of points in [REDACTED]'s interview with the police, he acknowledged that he had seen the gun before the incident occurred. It is not credible that he acknowledged seeing the gun simply to let the police hear what they wanted to hear.

103 [REDACTED] submits that when all the evidence is considered, it can only be concluded that [REDACTED]'s guilt has been proven beyond a reasonable doubt.

Analysis

104 [REDACTED] is charged with three counts of robbery. Robbery is defined in section 343 of the Criminal Code, which provides:

 

                     343. Every one commits robbery who

 

                     (a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;

 

                     (b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;

 

                     (c) assaults any person with intent to steal from him; or

 

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

105 From this definition, it is clear that robbery is committed whenever there is theft and a measure of violence is used while committing it. While robbery can be committed by stealing while armed with an offensive weapon, the use of an offensive weapon is not an essential ingredient: see R. v. Moore, [2012] O.J. No.5249 (C.A.).

106 The use of a firearm during a robbery can result in the imposition of a minimum sentence. Section 344(1) of the Code provides:

 

                     344. (1) Every person who commits robbery is guilty of an indictable offence and liable

 

                     (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

 

i.               (i) in the case of a first offence, five years, and ii. (ii) in the case of a second or subsequent offence, seven years;

 

                     (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

 

                     (b) in any other case, to imprisonment for life.

107 During the incident in question, [REDACTED] did not use a gun. However, he went to [REDACTED]'s apartment with the objective stealing from him. He did steal from him, and he assaulted [REDACTED]. Thus, he is guilty of robbery. Whether or not he is liable to a minimum sentence depends on whether he was a party to the offence of robbery which included the use of a firearm. Section 21 of the Code provides as follows:

 

                     21. (1) Every one is a party to an offence who

 

                     (a) actually commits it;

 

                     (b) does or omits to do anything for the purpose of aiding any person to commit it; or

 

                     (c) abets any person in committing it.

 

(2)          Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

108 In my view, [REDACTED] and [REDACTED] aided each other in committing the offence of robbery. There was a common plan to attend at [REDACTED]'s apartment and steal things that were in the apartment. It was intended to "rough up" [REDACTED] as part of the plan. The commission of a robbery was something each of them knew would be a probable consequence of carrying out the plan. Thus, in my view, pursuant to either subsection 1 or subsection 2, [REDACTED] and [REDACTED] are both parties to the offence of robbery.

109 For the purpose of considering whether [REDACTED] is subject to a minimum sentence pursuant to section 344 of the Code, I must decide whether [REDACTED]'s involvement included the common purpose of using a firearm. In other words, I must be satisfied beyond a reasonable doubt that [REDACTED] was aware of the use of a firearm as part of the plan.

110 I am satisfied beyond a reasonable doubt that [REDACTED] was aware of the use of a firearm as part of the plan. My reasons follow.

111 All of the witnesses, apart from [REDACTED], testified that [REDACTED] knew of the sawed-off shotgun, and that it was loaded. Except for [REDACTED], all witnesses testified that [REDACTED] was in [REDACTED] [REDACTED]'s apartment when the sawed-off shotgun was displayed, and when it was loaded. Indeed, they testified that [REDACTED] made comments about whether it should be loaded. The witnesses who testified to this effect had no reason to lie about it. I accept their evidence.

112 It is common ground that [REDACTED] and [REDACTED] went together to [REDACTED]'s apartment in order to steal from [REDACTED]. [REDACTED] had the gun with him. It defies common sense to conclude that [REDACTED] was unaware of the fact that [REDACTED] had a gun that was one and a half to two feet long with him. It is also difficult to believe that [REDACTED] could have trained the gun on two individuals in a fairly small apartment, without [REDACTED] being aware of it. On several occasions (by my count, at least five occasions) during [REDACTED]'s interview with the police, [REDACTED] acknowledged seeing the gun before the incident occurred, or did not dispute it when it was put to him by the police. I do not accept his evidence that he simply told untruths to the police so that they would hear what they wanted to hear.

113 Having considered all of the evidence, including the evidence of [REDACTED], I am persuaded beyond a reasonable doubt that [REDACTED] was fully aware that a firearm would be used in the course of the robbery, at the very least to scare the victims. Whether he knew it would actually be fired is not material.

114 In count one, it is alleged that [REDACTED] used a firearm in robbing [REDACTED] of a laptop computer. There is no doubt, indeed [REDACTED] admits, that he took a computer from [REDACTED]'s apartment. I do not regard the term "laptop" as an essential part of the description of what was stolen. A computer was stolen, and a firearm was used in the course of stealing it. [REDACTED] was a party to the offence. He is guilty on count one.

115 In count two, it is alleged that [REDACTED] used a firearm in robbing [REDACTED] of a cell phone and a wallet. [REDACTED] testified that a Blackberry and his wallet, containing identification, credit cards and cash, were taken from him and he did not get them back. A firearm was used in committing the offence. I am satisfied beyond a reasonable doubt that either [REDACTED] or [REDACTED] took them, and they were each party to the offence. [REDACTED] is guilty on count two,

116 [REDACTED] is charged in count three with using a firearm in robbing [REDACTED] of money. [REDACTED] testified that five dollars was taken from him. A firearm was used in committing the offence. I am satisfied beyond a reasonable doubt that either [REDACTED] or [REDACTED] took the five dollars and they were each party to the offence. [REDACTED] is guilty on count three.

117 [REDACTED] is charged in count four that on the day in question he failed without reasonable excuse to comply with a probation order, which required that he keep the peace and be of good behaviour. Clearly, by engaging in a robbery, he did not keep the peace and be of good behaviour. [REDACTED] is guilty on count four.

118 There will obviously be a question as to whether count four should be stayed on the basis of the Kienapple principle (R. v. Kienapple,[1975] 1 S.C.R. 729). I will hear submissions on that question on the day I hear submissions on the appropriate sentence.

Disposition.

119 For the foregoing reasons, I find [REDACTED] guilty on counts one, two, three and four.

[REDACTED]


 

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