



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Moore, 2012
    ONCA 770

DATE: 20121109

DOCKET: C53043

Simmons, Armstrong and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jerome Moore

Respondent

Nadia Thomas, for the appellant

Craig Bottomley and Chris Sewrattan, for the respondent

Heard and released orally: November 2, 2012

On appeal from the acquittal, dated November 17, 2010, by
    Justice Julie Thorburn of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

After a trial on a multi-count indictment before a judge of the Superior
    Court of Justice sitting without a jury, the respondent was acquitted on a
    count that alleged that he did, while armed with a firearm, to wit: a handgun,
    rob Steve Howland, contrary to Section 344 of the
Criminal Code
.

[2]

The basis upon which the trial judge acquitted the respondent appears in
    the penultimate paragraph of her reasons for judgment. There the trial judge
    said:

[66]    I am not however, satisfied beyond a reasonable doubt
    that on February 2, 2009, Mr. Moore was carrying a handgun or that he pointed
    it at Mr. Howland.  While I do not doubt Mr. Howlands sincerity, he is not
    familiar with guns and saw and heard something only fleetingly.  Out of great
    fear for his safety, he quickly turned his head away from Mr. Moore toward the
    window. As such, I am not satisfied beyond a reasonable doubt that Mr. Moore
    was armed or that he pointed a handgun at Mr. Howland.

[3]

The Crown appeals the respondents acquittal and alleges two errors of
    law:

i.        
    that the trial judge erred in law in considering that use of a        firearm
    was an essential element in the offence of robbery    failing proof of which
    the respondent must be acquitted; and

ii.       
    that the trial judge erred in law in considering the offence with   which the
    respondent was charged as armed robbery.

[4]

The respondent acknowledges that s. 344 of the
Criminal Code
does not create the offence of armed robbery. Rather, the inclusion of the
    words while armed with a firearm, to wit: a handgun is for the purpose of
    putting the respondent on notice that, if convicted of a robbery and
    satisfactory proof is made of the use of a firearm, he will be subject to a
    minimum punishment of four years imprisonment.

[5]

The respondent acknowledges further that

i.        s.
    343 of the
Criminal Code
creates the offence of robbery and   defines
    the four ways that the offence may be committed; and

ii.

the
Criminal Code
does not create an offence of armed robbery
    as the trial judge erroneously believed.

[6]

The
Criminal Code
does not, in fact, create an offence of armed
    robbery. Section 343 of the
Criminal Code
creates the offence of
    robbery and describes the four ways in which robbery may be committed.  A count
    that charges robbery and refers to s. 344, the punishment provision, does not
    specify a particular mode of committing robbery nor limit the basis upon which
    the Crown may prove the substantive offence of robbery.

[7]

On the indictment in this case, it was open to the Crown to prove the
    respondents guilt of robbery under any definition of that offence in s. 343.
    To engage the minimum punishment provisions of s. 344 in the circumstances of
    this case, however, the Crown was required to prove, as a matter of sentence,
    that the respondent used the firearm in the commission of the robbery within
    any definition of s. 343. See
R. v. D. (A.)
(2003), 173 C.C.C. (3d)
    177 (B.C.C.A.), at paras. 29-31; and
R. v. Watson
, 2008 ONCA 614, at
    paras. 68-72.

[8]

In our view, the trial judge erred in law in acquitting the respondent
    of robbery, the offence with which he was charged in count 1 of the indictment.
    The error consisted of requiring proof of the respondents use of a firearm as
    an essential element of the offence, thus a condition precedent to a conviction
    of robbery. It follows that the acquittal of robbery must be set aside.

[9]

The Crown invites us to substitute a conviction for robbery in place of
    the acquittal.  We may only do so under s. 686(4)(b)(ii) of the
Criminal
    Code
if the trial judges findings of fact, viewed in the light of the
    prevailing jurisprudence, support a conviction beyond a reasonable doubt, see
R.
    v. Katigbak
(2011), 276 C.C.C. (3d) 1 (S.C.C.), at para. 50.

[10]

In
    our view, this is not a case in which it is appropriate to set aside the
    respondents acquittal of robbery and substitute a conviction for that
    offence.  Reading the reasons for judgment as a whole as we must, we simply
    cannot say that the trial judge made the findings of fact essential for us to
    enter a finding of guilt and conviction of robbery.

[11]

The
    appeal from acquittal is allowed and a new trial ordered.  It will be up to the
    Crown to determine whether it is in the interests of justice to proceed with a
    new trial in light of the remaining convictions and the sentences imposed on
    those convictions.

Janet
    Simmons J.A.

Robert P. Armstrong J.A.

David Watt J.A.


