



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bjornaa, 2018 ONCA 939

DATE: 20181122

DOCKET: C63887

Doherty, Rouleau and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Michael Bjornaa

Respondent

Katherine Beaudoin, for the appellant

Andrew Menchynski, for the respondent

Heard and released orally: November 15, 2018

On appeal from the acquittals entered on May 12, 2017 by
    Justice Ian S. McMillan of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The respondent was charged with several offences. One group of charges
    arose out of an alleged assault on Alex Gingras (the Gingras charges). The
    second group arose out of the shooting of Jayme Bellerose (the Bellerose
    charges). A co-accused, Bernie Nadon, pleaded guilty to some of the charges
    prior to the respondents trial.

[2]

The respondents trial proceeded before a judge alone. At the end of the
    Crowns case, the respondent moved for a directed verdict on all charges. The
    trial judge directed acquittals on the Gingras charges. The trial proceeded
    on the Bellerose charges. The respondent chose not to call evidence. The
    trial judge found the respondent guilty on some of the Bellerose charges.

[3]

The Crown appeals from the directed acquittals on the Gingras charges,
    arguing that the trial judge went beyond his limited authority on a directed
    verdict application and improperly assessed the credibility and reliability of
    the Crown witness Gingras.

[4]

The respondent does not appeal from the convictions.

[5]

Counsel for the respondent correctly concedes that the trial judge
    improperly assessed the reliability of the witness Gingras, in concluding that
    the respondent was entitled to a directed verdict on those charges. The respondent
    argues however, that the Crowns appeal should be dismissed.

[6]

He submits that there was no evidence capable of supporting convictions
    on any of the three counts on which the trial judge directed acquittals. First,
    he argues that there was no evidence that the respondent broke into the
    residence and that consequently the directed verdict of acquittal on the break
    and enter count was correct. Second, the respondent submits that there was no
    evidence that he, either as a perpetrator or as aider and abetter, pointed a
    firearm at Mr. Gingras. The evidence revealed that the co-accused, Mr. Nadon,
    was the person who pointed the firearm at Mr. Gingras. The respondent argues
    that there is no evidence that he knew that Mr. Nadon had a firearm, and no
    evidence that he knew that Mr. Nadon pointed the firearm at Mr. Gingras, or
    that it was reasonably foreseeable that he would do so in the course of the
    altercation. Third, the respondent submits there is equally no evidence that he
    was party to any forcible conferment, either as an aider and abetter, or
    through s. 21(2).

[7]

The respondents alternative submission is as follows. He submits that
    this court can consider the trial judges ultimate assessment of the evidence,
    in particular, the evidence of Mr. Gingras. He contends that it is crystal
    clear that had the trial judge not directed a verdict of acquittal, he would
    inevitably have rejected Mr. Gingras evidence and acquitted the respondent on
    those counts at the end of the trial. The respondent argues that the Crown
    cannot demonstrate that the verdicts would not necessarily have been the same
    had the trial judge properly dismissed the motion for a directed verdict and
    proceeded to the end of the trial.

[8]

We are satisfied that there was some evidence that the respondent and
    Nadon broke into the Gingras residence. Under the deeming provision in s.
    350(b)(ii), Mr. Gingras evidence provided a basis upon which a reasonable
    trier could find that the respondent and Nadon entered the home without
    invitation at the same time that another person left. That entry constitutes breaking
    and entering under the deeming provision.

[9]

The submission that there was no evidence to support convictions on
    forcible confinement and pointing a firearm fails on a review of the totality
    of the evidence. There was a basis in the evidence upon which a reasonable trier
    could have found the respondent to be a party with Mr. Nadon to those offences,
    either as an aider or abetter, or under the common purpose provisions of s.
    21(2).

[10]

Turning
    to the no substantial wrong argument, counsel correctly acknowledges that
    this argument depends on the court accepting counsels submission that it is
    clear from this record that the respondent would not have testified had the
    motion been dismissed.

[11]

The
    court cannot assume that the respondent would not have testified. While in
    exceptional cases it may be that the trial record allows the court to come to
    that conclusion, this is not such a case. In fact, counsels comments after the
    trial judge directed acquittals on the Gingras charges make it clear that the
    question of whether the respondent would testify may have depended on the trial
    judges decision with respect to the directed verdict motion. We cannot say
    what the evidence would have been at the end of the trial had the trial judge
    properly refused to direct the verdicts of acquittal. This is enough for the
    Crown to meet its onus of showing that the result would not necessarily have
    been the same.

[12]

The
    appeals are allowed, the acquittals are set aside and a new trial is ordered on
    those counts.

Doherty J.A.

Paul Rouleau J.A.

K. van Rensburg J.A.


