



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Andrade, 2015 ONCA 499

DATE: 20150706

DOCKET: C59097

Juriansz, Rouleau and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isidro Andrade

Appellant

Joseph Di Luca, for the appellant

Frank Au, for the respondent

Heard: May 8, 2015

On appeal from the conviction entered on January 30, 2014
    by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting
    without a jury.

Hourigan J.A.:

INTRODUCTION

[1]

The appellant was convicted of possession of an imitation weapon for a
    purpose dangerous to the public peace, contrary to s. 88(1) of the
Criminal
    Code
, and use of an imitation firearm while committing an indictable
    offence, contrary to s. 85(2)(a) of the
Code
.

[2]

The primary issue on appeal is the proper interpretation and application
    of s. 85(2) of the
Code
. Specifically, the issue is whether a
    conviction for possession of a weapon for a purpose dangerous to the public
    peace, commonly referred to as weapons dangerous, can constitute the
    predicate indictable offence necessary for a conviction under s. 85(2). The
    trial judge concluded that it could. For the reasons that follow, I have
    concluded that it cannot and that the appellants conviction under s. 85(2)
    must be set aside.

[3]

The appellant also argued that the trial judge subjected his evidence to
    a higher degree of scrutiny than to the evidence of the Crown witness. As
    discussed below, I would not give effect to this ground of appeal.
    Consequently, I would dismiss the conviction appeal for the weapons dangerous
    count.

FACTS

[4]

In the evening of June 17, 2011, the appellant was at a park in Toronto
    with his four-year-old daughter. The appellant claimed that a member of a group
    of young people in the park threw a glass bottle, which landed near his daughter.
    According to the appellant, when he approached the group one young man sliced the
    appellants arm with a small pocketknife while another stole a family heirloom
    gold chain from his neck. The appellant then left the park with his daughter
    and returned home, where he treated his injury but did not call police.

[5]

Later that evening, the appellant and a friend drove to the convenience
    store across the street from the appellants apartment to buy cigarettes. When they
    arrived, there were four young people in the parking lot near the Pizza Pizza located
    next to the convenience store. The appellant claimed that he recognized the two
    young men in the group as the same individuals who had robbed him earlier that
    evening at the park.

[6]

The appellant testified that he told the group he wanted his chain back.
    The appellant and the two young men walked towards each other. Footage from the
    Pizza Pizza surveillance camera showed the three men exchanging words and
    bumping chests. The appellants friend soon intervened and pushed the
    appellant backwards towards the convenience store. The verbal confrontation continued
    for about another minute, until the appellant and his friend entered the
    convenience store. The appellant claimed that throughout the confrontation he
    repeatedly requested that the young men return his necklace. The surveillance
    video showed that at one point during the conversation the appellant pointed in
    the direction of his apartment building across the street.

[7]

After the appellant emerged from the convenience store, he again spoke
    to one of the young men, who was identified only by the name Rudy. The
    appellant testified that Rudy told him he would call his brother to retrieve the
    necklace and would return it to the appellant if he met him back at the park in
    a few minutes.

[8]

Rudy did not testify at trial. The only member of the group of young
    people from the Pizza Pizza parking lot who cooperated with police and
    testified at trial was Jessica Putini. Ms. Putini denied that Rudy told the
    appellant he would give him his necklace if he returned to the park. Instead,
    she testified that the appellant told Rudy to meet him at his apartment
    building across the street, where the appellant would have something for him.
    The trial judge rejected the appellants account of this conversation and
    accepted Ms. Putinis evidence.


[9]

The appellant and his friend then left the parking lot in the friends
    vehicle. After they left, three more young men soon joined the four young
    people. About two and a half minutes after the appellant left the parking lot, he
    returned with a different friend. The pair walked directly towards the group of
    young people standing near the Pizza Pizza. The Pizza Pizza surveillance
    footage showed that soon after the appellants return something caused the
    three young men who had joined the initial group to flee in various directions.

[10]

While
    there was no evidence to suggest precisely what caused the men to flee, the
    appellant and his friend entered the screen of the Pizza Pizza surveillance
    footage seconds after this occurred. The appellant speculated that the young
    men scattered in response to the appellant screaming that he wanted his
    necklace back. While the trial judge found it difficult to accept the
    appellants explanation, he concluded that it was not necessary to draw any
    factual conclusions about what caused the young men to flee.

[11]

According
    to Ms. Putini, the appellant then continued walking towards the remaining young
    people. As he did so, he removed what Ms. Putini described as a silver handgun
    from the waistband of his pants. He held the handgun, which Ms. Putini believed
    was a real firearm, in his right hand and threatened to kill Rudy. Ms. Putini
    fled inside the Pizza Pizza and called 911.

[12]

The
    appellant continued to move towards Rudy. The appellant claimed that during
    this interaction Rudy refused to return the stolen necklace and threatened to
    harm the appellants family. The appellant then swung his right arm in a
    punching motion and struck Rudy in the side of the head with the silver object.
    The surveillance video showed that the appellant then left the scene in the
    direction of his apartment.

DECISION BELOW

[13]

The
    appellant was initially charged with three counts: possession of an imitation
    weapon for a purpose dangerous to the public peace, use of an imitation weapon
    while committing an indictable offence, and threatening death. He was not
    indicted on the threating death charge. The indictment was amended mid-trial in
    order to clarify that the predicate indictable offence under s. 85(2) was the
    weapons dangerous charge and not the threatening death charge.

[14]

The
    appellant

did not dispute that he was in possession of an imitation
    firearm on the night in question or that he struck Rudy as shown in the
    surveillance footage. Consequently, the key issue on the s. 88(1) charge was
    whether he possessed the imitation handgun for a purpose dangerous to the
    public peace.

[15]

The
    trial judge noted that s. 88(1) is a specific intent offence requiring proof
    that the appellants subjective purpose in possessing the imitation handgun was
    objectively dangerous to the public peace.

[16]

The
    appellant claimed that the imitation firearm was a cigarette lighter, which he
    carried with him on the day in question for the sole purpose of lighting his
    cigarettes. He testified that he did not plan or intend to use the imitation
    firearm. He claimed he reacted spontaneously when Rudy refused to return the
    stolen necklace and threatened the appellants family.

[17]

The
    trial judge accepted Ms. Putinis testimony that Rudy did not threaten the
    appellant or his family. He also rejected the appellants claim that he was
    carrying the imitation firearm to use as a cigarette lighter. Instead, the
    trial judge found that when the appellant returned to his apartment after the
    initial confrontation in the Pizza Pizza parking lot, he armed himself with an
    object that bore enough resemblance to a real firearm to scare all of the young
    people who saw it. The appellant did not have the imitation firearm with him throughout
    the entire day as he claimed. If he had, he presumably would have drawn the
    imitation firearm during the robbery at the park or during the initial
    confrontation with Rudy and his friends in the parking lot.

[18]

The
    trial judge was satisfied that after the first confrontation in the parking lot
    the appellant decided to go to his apartment, retrieve the imitation firearm
    and return to the parking lot to confront the group of young people. In taking
    possession of the imitation firearm the appellant intended to use it as
    necessary during this second confrontation. The appellant was not acting in
    self-defence when he approached the group of young people with the imitation weapon
    and struck Rudy. He was simply angry, and had decided to use violence against
    the person who robbed him earlier that evening.

[19]

The
    trial judge was satisfied beyond a reasonable doubt that the appellant
    subjectively intended to take possession of the imitation firearm for a purpose
    that was objectively dangerous to the public peace. The appellant had formed
    this subjective purpose while he was in his apartment. He then returned to the
    parking lot and used the imitation weapon to intimidate the group of young
    people and strike Rudy.

[20]

The
    second issue was whether a conviction for possession of a weapon for a purpose
    dangerous to the public peace can constitute the predicate offence necessary
    for a conviction under s. 85(2) of the
Code
. Section 85(2)(a) provides
    that it is an offence to use an imitation firearm while committing an
    indictable offence. Pursuant to s. 85(4), the sentence for a conviction under
    s. 85 is to be served consecutively to the sentence for the predicate
    indictable offence.

[21]

The
    trial judge rejected the appellants argument that a conviction under s. 88(1)
    could not give rise to a conviction under s. 85(2)(a). The trial judge noted
    that it is not necessary that an accused
use

a weapon in order
    to be convicted of possession for a purpose dangerous to the public peace; mere
    possession with the requisite intention is sufficient. This makes the weapons
    dangerous offence similar to other indictable offences, such as robbery, theft
    or sexual assault, which can be committed where the accused possessed a weapon
    but did not use it. A conviction under s. 85(2)(a) will only result where the
    accused not only possesses a weapon, but also
uses
it.

[22]

The
    trial judge held that the appellants attempt to rely on the British Columbia
    Court of Appeals decision in
R. v. Chang
(1989), 50 C.C.C. (3d) 413
    (B.C.C.A.), was based on an erroneous understanding of that case. The
    majority of the court in
Chang

quashed the appellants
    conviction for use of a firearm while committing the indictable offence of
    possession of a firearm for a purpose dangerous to the public peace. However, the
    trial judge distinguished
Chang

on the ground that there was no
    evidence that the accused in that case had used the firearm. Instead, Mr.
    Chang was acquitted on the various charges involving use of a firearm. Since
    use is an essential element of the offence set out in s. 85(2)(a), there was
    no basis for a conviction under this provision in
Chang
.

[23]

In
    this case, however, the trial judge found that the appellants actions went
    beyond mere possession of the imitation firearm. The appellant used the
    imitation firearm by pulling it from his pants, striking Rudy, and intimidating
    the other young people in the parking lot. This violent use of the imitation
    firearm constituted the something more the B.C. Court of Appeal found is necessary
    to prove the offence under s. 85(2)(a):
Chang
, at p. 426.

[24]

Since
    the appellants use of the imitation firearm occurred while he was committing
    the indictable offence of possessing a weapon for a purpose dangerous to the
    public peace, the trial judge convicted him under s. 88(1).

POSTIONS OF THE PARTIES

[25]

The

appellant
makes two arguments on appeal. First, he
submits
that

the

offence
of

weapons
dangerous
cannot
be

the underlying offence grounding a conviction for use of an
    imitation firearm in the commission of an indictable
offence under s. 85(2)
. According to the appellant, the use of
the
imitation

weapon

must
    facilitate the

commission

of

the

predicate indictable

offence in order to give rise to a conviction under this section.
    On a charge

of

possessing

an

imitation

weapon

for a

dangerous

purpose, the offence is made out by the
    mere possession of the weapon with the requisite intent. Therefore, any use of
    the imitation weapon does not facilitate the commission of the offence.

Second, the appellant argues that the
    trial judge erred by subjecting his evidence and the evidence of Ms. Putini to
    different levels of scrutiny.

[26]

The Crown submits that

the

appellant

was

properly

convicted

under

s. 85(2)

because

he

committed an

indictable

offence

(i.e
.
weapons

dangerous),

and

he

used

an

imitation firearm

while

doing so
. Use is
an

essential
element

of
the

s.

85 offence,

but

it is not
    necessary that

the

predicate

indictable

offence

have

a

use

element.
    Further, the Crown argues that the trial

judge

did

not

apply

different

standards

in

assessing

the

evidence

of the

appellant

and

Ms. Putini.

He

scrutinized

their evidence

equally

using

common sense,

and

drew

reasonable

inferences

based on

the
evidence
    from the
surveillance

camera
s
.

ISSUES

[27]

There
    are two issues on the appeal:

(i) Did the trial judge err
    in his interpretation and application of s. 85(2)?

(ii) Did the trial judge
    subject the evidence of the appellant and Ms. Putini to different levels of
    scrutiny?

ANALYSIS

(i)
Interpretation and Application
    of s. 85(2)

[28]

Section
    85(1) of the
Code
provides:

1) Every person commits an offence who uses a firearm,
    whether or not the person causes or means to cause bodily harm to any person as
    a result of using the firearm,

(a)     while committing an indictable offence, other
    than an offence under section 220 (criminal negligence causing death), 236
    (manslaughter), 239 (attempted murder), 244 (discharging firearm with intent),
    244.2 (discharging firearm  recklessness), 272 (sexual assault with a weapon)
    or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section
    279.1 (hostage taking), 344 (robbery) or 346 (extortion).

[29]

The
    offence of using a real or imitation firearm during the commission of an
    indictable offence requires a distinct conviction for the specified indictable
    offence:
R. v. Pringle
, [1989] 1 S.C.R. 1645, at p. 1654. For example,
    in the present case it is not sufficient that the evidence suggests the
    appellant could have potentially been convicted of assault or threatening death.
    There was no conviction on those potential charges, and, accordingly, the evidence
    that would support these charges is irrelevant to the s. 85 analysis.

[30]

In
    my view, the crux of the issue between the parties is the meaning of the word
    uses in s. 85. Courts determine on a case-by-case basis whether the conduct
    alleged amounts to use of a firearm. However, it is well established in the
    case law that mere possession of a firearm is not sufficient to support a
    conviction under s. 85(2). Carrying a concealed firearm while committing an
    indictable offence does not constitute a use of a firearm:
R. v. Steele
,
    2007 SCC 36, [2007] 3 S.C.R. 3, at paras. 25-28.

[31]

In
    this case, the respondent submits the constituent elements of the offence are
    established beyond a reasonable doubt because the appellant was convicted of an
    indictable offence (i.e. weapons dangerous) and used an imitation firearm while
    committing that indictable offence (i.e. striking Rudy and intimidating other
    people at the scene). According to the Crown, there is no requirement on the
    wording of s. 85(2) that the predicate offence includes use as an essential
    element or that the use of the firearm facilitate the predicate offence.

[32]

I
    accept the submission of the Crown that the appellant was engaged in more than
    mere passive possession of the imitation firearm. I also accept that the appellant
    used the imitation firearm while he was committing an indictable offence for
    which he was subsequently convicted.

[33]

Where
    I part company with the Crowns position is on the issue of whether the use of
    the weapon must facilitate the predicate offence. While it is accurate to say
    that the wording of the provision does not explicitly require facilitation, the
    Supreme Court has held that it does. Justice Fish explained the courts
    interpretation of uses in
Steele
, at para. 32:

In the absence of a statutory definition, I would therefore
    hold that an offender uses a firearm, within the meaning of s. 85(1), where,
    to facilitate the commission of an offence or for purposes of escape, the
    offender reveals by words or conduct the
actual

presence

or
immediate availability

of a firearm. The weapon must
    then be in the physical possession of the offender or readily at hand.

[34]

This
    definition is consistent with the Supreme Courts reasoning in
Pringle
.
The use of the firearm must be connected to the commission of an indictable
    offence for which a conviction has been entered. If it were otherwise, an
    accused could be convicted under s. 85 for conduct that is merely coincidental
    to the commission of the indictable offence. This opens the door for prohibited
    convictions under s. 85 based on uncharged conduct or charges that do not
    result in conviction.

[35]

The
    result in
Chang
is also consistent with this definition. In that case
    the accused was charged with attempted murder, assault, pointing a weapon,
    weapons dangerous, and using a firearm in the commission of an indictable
    offence. He was convicted of only the final two offences. Contrary to what the
    trial judge in the present case concluded in his analysis of
Chang
,
    there was evidence before the court that Mr. Chang used the weapon. Specifically,
    Mr. Chang had brandished his handgun. However, given the acquittals
    entered on the assault and pointing of a firearm counts, the B.C. Court of
    Appeal correctly concluded that the use of the weapon did not facilitate the
    commission of an indictable offence for which a conviction had been entered.
    Mr. Changs action in brandishing the firearm could not have facilitated the
    offence of possession for a purpose dangerous to the public peace. Consequently,
    there could be no conviction on the count of using a firearm in the commission
    of an indictable offence:
Chang
, at p. 427.

[36]

Given
    the interpretation of uses in
Steele
, the question is whether the
    use of the firearm in this case facilitated the commission of the offence of
    weapons dangerous. To secure a conviction for weapons dangerous, the Crown must
    establish that the accused possessed a weapon and that the purpose of that
    possession was one dangerous to the public peace:
R. v. Kerr
, 2004 SCC
    44, [2004] 2 S.C.R. 371, at para. 23. Therefore, the
actus reus

of
    the offence is made out on establishing beyond a reasonable doubt that the
    accused possessed the weapon. Of course the Crown must also establish that the
    accused had the requisite intention, as discussed above.

[37]

I
    conclude that the trial judge erred in law in finding that the impugned conduct
    of the appellant (i.e. the use of the imitation weapon to beat Rudy and to
    intimidate others) constituted a use under s. 85. This use did not facilitate
    the commission of the predicate indictable offence, which was complete when the
    appellant took possession of the imitation weapon with the requisite intent. The
    trial judge found that this occurred when the appellant was still in his
    apartment, before he ever revealed the imitation firearm to the group of young
    people. Accordingly, I would set aside the conviction under s. 85(2).

(ii)     Uneven Scrutiny of the Evidence

[38]

The
    appellant also appeals his conviction under s. 88(1) on the ground that the
    trial judge glossed over important aspects of Ms. Putinis testimony that
    warranted scrutiny while subjecting his evidence to close and critical
    scrutiny. For the reasons that follow, I do not accept this argument.

[39]

The
    appellant acknowledges that it is difficult to succeed on an uneven scrutiny
    argument. As noted by Doherty J. in

R. v. Howe
(2005), 192
    C.C.C. (3d) 480 (Ont. C.A.), at para. 59:

This argument or some variation on it is
    common on appeals from conviction in judge alone trials where the evidence pits
    the word of the complainant against the denial of the accused and the result
    turns on the trial judges credibility assessments. This is a difficult
    argument to make successfully. It is not enough to show that a different trial
    judge could have reached a different credibility assessment, or that the trial
    judge failed to say something that he could have said in assessing the
    respective credibility of the complainant and the accused, or that he failed to
    expressly set out legal principles relevant to that credibility assessment. To
succeed
    in this kind of argument, the appellant must point to something in the reasons
    of the trial judge or perhaps elsewhere in the record that make it clear that
    the trial judge applied different standard in assessing the evidence of the
    appellant and the complainant.


[40]

The
    appellant submits that since the trial judge accepted his evidence regarding
    the confrontation in the park, Ms. Putinis must have lied when she testified
    that Rudy and the other young men in the park had not robbed the appellant. However,
    it is not clear on the evidence whether Ms. Putini was in the park at the time
    of the incident. The appellant testified that the incident took place at
    approximately 6 or 7 p.m., while Ms. Putini testified that she was at the park
    between 9 and 11 p.m. The appellant also testified that he did not know if Ms. Putini
    had been in the park at the time of the robbery. It does not follow, therefore,
    that it was implicit in the trial judges findings that Ms. Putini lied about
    the park incident. It is possible that the robbery occurred before Ms. Putini
    joined her friends in the park.

[41]

With
    regard to the appellants testimony, there were ample grounds for the trial
    judge to reject critical aspects of his evidence as incredible. For example, I
    see no error in the trial judges rejection of the appellants testimony that Rudy
    agreed to return the necklace to the appellant in the park across the street. It
    was clear that none of the parties made any effort to return to the park. It
    was open to the trial judge to reject this and other portions of the appellants
    testimony. His decision to do so was not the product of uneven scrutiny of the
    evidence.

DISPOSITION

[42]

For
    the reasons above, I would set aside the conviction under s. 85(2) of the
Code
on the count of use of an imitation weapon while committing an indictable
    offence and would otherwise dismiss the appeal.

Released: July 6, 2015 RGJ

C.W.
    Hourigan J.A.

I
    agree R.G. Juriansz J.A.

I
    agree Paul Rouleau J.A.


