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Criminal - Robbery. R. v. Bzezi
In R. v. Bzezi (Ont CA, 2024) the Ontario Court of Appeal considers evidence relevant to the determination of a 'firearm', here as it relations to the "7-year mandatory minimum sentence that the appellant received as a result of s. 344(1)(a)(ii)":[37] The appellant raises two grounds of appeal on his sentence appeal. First, he argues that the trial judge erred by finding that the handgun that Mr. Perkins described the appellant using during the robbery, which was never recovered by the police, was a “firearm” within the definition in s. 2 of the Criminal Code. This definition, among other things, requires proof that the gun was capable of being fired. Since the trial judge’s finding that the gun was a firearm triggered the 7-year mandatory minimum sentence that the appellant received as a result of s. 344(1)(a)(ii) of the Code,[1] the appellant argues that if the trial judge erred on this issue, his sentence should be reduced.
[38] It is well-settled that the question of whether a gun is a “firearm”, rather than merely an imitation gun or a real but non-functioning weapon, can be determined circumstantially: see R. v. Richards (2001), 2001 CanLII 21219 (ON CA), 50 W.C.B. (2d) 244 (Ont. C.A.), at para. 4; R. v. Charbonneau (2004), 2004 CanLII 9527 (ON CA), 61 W.C.B. (2d) 301 (Ont. C.A.), at para. 3; R. v. Dillon, 2018 ONCA 1085, at para. 18. In R. v. O.A., 2022 ONCA 565, at para. 10, this court explained:As held in R. v. Villaroman, where a verdict is based on circumstantial evidence, the question on appeal is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”. There are other cases in which this court has upheld a finding that an accused used or was in possession of a firearm, even where the firearm was never recovered. In such cases, the court looked at whether the trial judge assessed the totality of the evidence, and whether the trial judge could have been reasonably satisfied that the accused’s guilt was the only reasonable conclusion available on that evidence. [Citations omitted]. [39] In the case at bar, Mr. Perkins’s evidence was that the gun the appellant brandished was loaded with real bullets, which the appellant demonstrated to Mr. Perkins by pulling out the clip, and by racking the slide to eject an unfired bullet and cartridge, which Mr. Perkins later found and gave to the police. The trial judge also noted that the appellant “had clearly had access to firearms prior to this occasion”, because at the time of sentencing he was already serving a sentence for having possessed a loaded firearm in April 2014, which was a little more than a year before he robbed Mr. Perkins in June 2015.
[40] In these circumstances, I am satisfied that the trial judge did not commit any reversible error by drawing the inference that the gun was a real firearm. In this regard, I do not agree that the conclusion the trial judge reached is at odds with the approach taken in the Alberta cases cited by the appellant, R. v. Osiowy, 1997 ABCA 50, 113 C.C.C. (3d) 117, and R. v. Fielder, 2019 ABQB 211. In Osiowy, where the Court of Appeal of Alberta found that the circumstantial evidence fell short of proving that the gun used in a robbery had been operable, the court noted at para. 21 that:The accused did not load the weapon in front of the victim, cock the weapon, or otherwise use the weapon in such a way that its operability could be inferred. In contrast, Mr. Perkins testified that the appellant did some of these very things, in order to demonstrate for him that the gun was real and operational. . R. v. Moreira
In R. v. Moreira (Ont CA, 2023) the Court of Appeal considers variations on robbery, here while considering a jury charge on appeal:[68] It is important to remember that the robbery charge in this case was pursuant to s. 343(c) not s. 343(b) of the Criminal Code, which raises important distinctions: assault with intent to steal under s. 343(c) of the Criminal Code does not require a “major” assault or a particular level of violence; even a trivial or “mere” assault is sufficient: Manning, Mewett and Sankoff, Criminal Law, 5th ed., (LexisNexis, 2015), at § 22.70; R. v. Lew (1978), 1978 CanLII 2262 (ON CA), 40 C.C.C. (2d) 140 (Ont. C.A.). (I also note that the de minimis defence has never been definitely endorsed by this court.)
[69] In Lew, by contrast, this court overturned a conviction for robbery pursuant to s. 302(b) of the Criminal Code (the identical precursor to s. 343(b)). The accused in that case had bumped or nudged a woman while taking her wallet from her purse: Lew, at para. 2. In finding that this did not rise to the level of violence required under s. 302(b), the court compared the provision to s. 302(c) (the identical precursor to s. 343(c)):The violence contemplated by the section [s. 302(b)] is more than a mere assault which is contemplated by s. 302(c). On the material before us, this case appears to be a case of a nudge and that is no more than a mere assault.
While it may be that if he had been tried on a charge of robbery, pursuant to s. 302(c), the same result [a conviction] would have occurred, that is not the issue here. [70] Similarly, in R. v. Chiang, 1999 BCCA 503, 138 C.C.C. (3d) 522, the British Columbia Court of Appeal upheld a conviction for robbery under s. 343(c) of the Criminal Code where the assault consisted of the accused sticking his hand in the victim’s pocket and attempting to remove his wallet. The trial judge specifically considered whether this met the definition of assault and found that there was “sufficient force…to cause [the victim] to stop walking and to crouch or squat down and to shift his hips around” while trying to get away: Chiang, at para. 1. The court, at paras. 1 and 3, accepted the trial judge’s reasoning that even benign touching, combined with an intent to steal, was sufficient to make out the offence of robbery:That each offence set out in the Criminal Code covers a range of behaviour is obvious. The range of actions which falls within the definition of assault is vast, from relatively benign touching, spitting on another, causing another to move out of fear, to quite serious physical violence at the other end of the range. When any of these actions are combined with an intent to steal, the Criminal Code dictates by the definition section that a robbery has been committed. [Emphasis added.]
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