





CITATION:
R. v. Lourenco, 2011
          ONCA 782



DATE: 20111213



DOCKET: C51848



COURT OF APPEAL FOR ONTARIO



Feldman and Armstrong JJ.A. and Himel J. (
ad hoc
)



BETWEEN



Her Majesty The Queen



Applicant



and



Christopher Lourenco



Respondent



Mark  Halfyard, for the appellant



Nadia Thomas, for the respondent



Heard and released orally: December 5, 2011



On appeal from conviction entered by Justice John Hamilton of
          the Superior Court of Justice dated January 26, 2009 and sentence imposed
          dated April 17, 2009.



ENDORSEMENT



[1]

The appellant was convicted of a number of offences arising out of two incidents
    on March 3, 2007 and March 9, 2007.

[2]

The appellant attended at the new apartment of Ms. Emily Bell , a young
    woman with whom he had had a previous relationship. When they began to argue,
    she forced him out. Outside the door, he shot two shots from his .22 calibre
    gun into the door of the apartment above the peep hole. A few days later the
    appellant was on the phone with Emily and her sister and threatened to come
    over and kill them. The sister, Jennifer, then called 911, following which, the
    police attended at the appellants home. He was eventually arrested. Sometime
    later he tried to influence Emily not to come to court to testify.

[3]

Following the appellants arrest, the police executed a search warrant
    at the appellants home and found a loaded .22 calibre gun, ammunition, a
    bullet proof vest, a quantity of crack cocaine, debt lists and drug paraphernalia.
    The appellant was convicted of a number of offences including discharge of a firearm
    with intent to endanger life, threatening death and various drug and firearm
    related offences.

[4]

The appellant raises three grounds of appeal. The first two relate to
    the reasons of the trial judge and his failure to address the frailties in the
    evidence of the complainant, Emily Bell, particularly because she lied about
    letters that she had written to the appellant in jail that said that she had
    lied to the police. He also failed to consider inconsistencies within the
    evidence of Emily herself and with other witnesses, as well as any potential
    animus of the complainant. We would not give effect to these two grounds of
    appeal.

[5]

In our view, based on the reasons for decision, as well as the trial
    judges colloquy with defence counsel, the record demonstrates that the trial
    judge was fully alive to all of the potential problems with Emilys evidence
    but was satisfied that on the essential elements of the offence her evidence
    was reliable. There was also physical evidence of the gun shots in her
    apartment and further, when the appellants apartment was searched, the loaded
    .22 calibre gun and the bullet proof vest that Emily had seen on March 3, were
    found. In our view, the trial judges reasons were sufficient to show that he
    was alive to the issues and problems with Emilys evidence. However, he was
    entitled to accept that evidence. We see no error on this ground.

[6]

The third issue raised was the voluntariness of the statements the
    appellant made to the police when they came to his apartment in response to the
    911 call. Two police officers attended. They did not caution the appellant
    before he made some derogatory statements about Emily and her sister. The
    statements made were corroborative of the evidence that supported the
    convictions for threatening death of the two women. They were not corroborative
    of or relevant to the other charges.

[7]

In our view, the trial judge erred in law in ruling that the statements
    were voluntary when there was no caution and the second officer who was present
    was not called by the Crown to testify. Although a caution is not necessary
    depending on the circumstances, there was nothing in this case to bring home to
    the appellant that he did not have to speak and that there were potential adverse
    consequences to doing so: see
R. v. E.B
. 2011 O.J. No. 1042 (C.A.) at
    paras. 88 and 91.

[8]

As a result, we would allow the appeal in respect of Counts 7 and 8, threatening
    death to each complainant, set aside the convictions and the sentence on count
    7 of six months concurrent, and order a new trial on those charges.

[9]

The appeal is otherwise dismissed.

Signed:           K. Feldman
    J.A.

Armstrong
    J.A.

Himel
    J.


