



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Robinson, 2018 ONCA 741

DATE: 20180911

DOCKET: C63485

Lauwers, Pardu and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ishmael Robinson

Appellant

Ishmael Robinson, acting in person

Mark Halfyard, duty counsel

Grace Choi, for the respondent

Heard: September 6, 2018

On appeal from the conviction entered on February 22,
    2017, and from the sentence imposed on February 27, 2017 by Justice Paul H.
    Reinhardt of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Ishmael Robinson was convicted of a number of offences arising out of an
    altercation that occurred after Mr. Robinson purported to sell cocaine powder
    to an associate, Leonard Ford, who owed him money. The trial judge accepted most
    of Mr. Robinsons testimony but found Mr. Robinsons own account supported his
    convictions of robbery, breach of recognizance, breach of probation in failing
    to keep the peace, and possession of the proceeds of crime.

[2]

The robbery conviction occurred despite the trial judges conclusion
    that the Crown had failed to prove the specific allegation it had made that, when
    he stole the money, Mr. Robinson was armed with a firearm, thereby committing
    robbery contrary to
Criminal Code
, R.S.C. 1985, c. C-46, s. 343(d).
    Since Mr. Robinson admitted violence and theft in his testimony, the trial
    judge convicted him of the lesser, included offence of robbery contrary to s.
    343(b).

[3]

The trial judge then sentenced Mr. Robinson to a global sentence of 20
    months in prison, and 2 years of probation. After 320 days of pre-sentence
    custody was credited at 1.5:1, Mr. Robinsons net sentence was 4 months in
    prison.

[4]

Mr. Robinson now appeals both his conviction and sentence.

[5]

With the able assistance of duty counsel, Mr. Robinson has abandoned the
    grounds of conviction appeal specified in his inmates notice of appeal and now
    advances two grounds of conviction appeal, both limited to the robbery
    conviction. First, he contends that the trial judge erred in treating robbery
    by stealing with violence, contrary to s. 343(b), as an included offence in a
    charge of robbery by stealing while armed with a firearm, contrary to s. 343(d).
    Second, he urges that the trial judge erred by placing the onus on Mr. Robinson
    to prove his defence of self-defence.

[6]

It is convenient to begin with the second ground of appeal, the claim
    that the trial judge erred by placing the onus on Mr. Robinson to prove his
    defence of self-defence.

[7]

It is settled if not trite law that where there is an air of reality to
    the defence of self-defence, the Crown bears the onus of disproving the defence
    beyond a reasonable doubt:
R. v. Cinous
, 2002 SCC 29, [2002] 2 S.C.R.
    3, at paras. 39, 47.

[8]

Although he did not advert to the air of reality test, it is evident
    that the trial judge, quite properly, proceeded on the basis there was an air
    of reality to the defence of self-defence in this case and analysed whether that
    defence had been made out.

[9]

Mr. Robinson contends that when he analysed the defence of self-defence the
    trial judge misapplied the burden of proof. That contention rests on the fact
    that, without saying explicitly that the burden was on the Crown to disprove self-defence
    beyond a reasonable doubt, the trial judge said, at para. 166, he was not
    satisfied with the defence evidence on self-defence. He then said on two
    occasions that he was not satisfied that Mr. Ford had a gun: at paras. 168 and
    172.

[10]

We
    would not give effect to this ground of appeal, even though we recognize that
    the use of the term not satisfied is capable, in isolation, of suggesting
    that the defence was rejected improperly on the basis that the facts supporting
    the defence had not been affirmatively proven by the accused. In this case, when
    the decision is read as a whole, however, we are not persuaded that the trial
    judges rejection of the defence of self-defence was improper. The trial judge noted,
    at para. 174:

Indeed, as I find by his own version of the event, he, Mr.
    Robinson was clearly the aggressor, at the A & C, [the location of the
    confrontation] and the purpose of his use of force was [to] recover a drug
    debt, to rip-off Mr. Ford for more money and to make his escape.

[11]

It
    is manifest in his reasons that the trial judge was left in no doubt that the
    force used was not for the purpose of self-defence. This finding alone is fatal
    to the defence of self-defence. We would not, therefore, give effect to this
    ground of appeal.

[12]

We
    would, however, give effect to Mr. Robinsons other ground of conviction
    appeal. The Crown was correct to concede the error; one mode of robbery cannot
    be an included offence in a charge specifying another mode of robbery because
    s. 343 creates only one offence of robbery, with different ways of committing
    it. While the Crown need not allege a specific mode of robbery in the charge,
    where it does so, as here, the Crown must prove the mode of robbery it alleges:
R. v. Johnson
(1977)
,
35 C.C.C. (2d) 439 (B.C.C.A.), at pp.
    460-61;
R. v. Manley
, 2011 ONCA 128, 269 C.C.C. (3d) 40.

[13]

The
    Crown asks us, nonetheless, to dismiss this ground of appeal by using our power
    to amend a count in the information pursuant to
Criminal Code
, s.
    683(1)(g), or in the alternative, by finding that no miscarriage of justice
    occurred.

[14]

We
    agree that the power to amend a count in an information or indictment on appeal
    provided by s. 683(1)(g) is broad:
R. v. Irwin
(1998), 38 O.R. (3d)
    689 (C.A.), at pp. 693-94;
R. v. Bidawi
, 2018 ONCA 698, at para. 33. An
    appellate court has the discretion to amend the indictment or information to
    conform to the evidence at trial, including by substituting a different charge,
    unless it is of the opinion that the accused has been misled or prejudiced:
R.
    v. Irwin
, at p. 700; and see
R. v. M.N.
, 2017 ONCA 434, 37 C.R.
    (7th) 418.

[15]

This
    is not, however, an appropriate case for such an amendment because the Crown
    has not satisfied us that amending the alleged mode of robbery would not
    prejudice Mr. Robinson. Charged with robbery by stealing while armed with a
    firearm, he chose to testify and deny possession of a firearm. His evidence
    included admissions to using violence and taking the money held by Mr. Ford. In
    effect, by testifying in response to one charge, Mr. Robinson effectively
    admitted to the uncharged offence the Crown now wishes to hold him responsible
    for. In our view, in the circumstances of this case, to change the charge after
    he made the tactical decision to testify in response to the charge laid would
    be unfair.

[16]

We
    do not accept the Crowns submission that, tactically, Mr. Robinson had no
    choice but to testify regardless of the charge, given the crush of
    circumstantial evidence that he caused the injuries to Mr. Ford. The offence
    charged when Mr. Robinson chose to testify carried a minimum sentence of five
    years, pursuant to
Criminal Code
, s. 344(a). That minimum sentence would
    operate as a powerful incentive for Mr. Robinson to testify and deny possession
    of the firearm. That compelling tactical incentive to testify would not have
    been present had he initially been charged with robbery by stealing with
    violence. We can have no confidence that Mr. Robinson would have made the same
    choice had he not been at risk of a mandatory minimum sentence.

[17]

Since
    we are not satisfied that Mr. Robinson was not prejudiced by the functional
    amendment to the information that occurred when the trial judge convicted him
    of an uncharged offence, the Crowns invitation to find that no miscarriage of
    justice occurred must also be refused. The robbery conviction cannot stand.

[18]

We
    would, however, pursuant to
Criminal Code
, s. 686(3), substitute a verdict
    of guilty of the offence of theft under $5,000 contrary to
Criminal Code
,
    s. 334(b). This offence is included in the allegation made against Mr. Robinson
    in the robbery count that he did steal from Mr. Ford, since
Criminal Code
,
    s. 2 defines steal as meaning to commit theft:
Fergusson v. The Queen
,
    [1962] S.C.R. 229, at p. 233.

[19]

Mr.
    Robinson does not press the general appeal of sentence included in his inmates
    notice of appeal but he has asked us, through duty counsel, to substitute a
    different sentence to reflect that he now stands convicted of theft and not
    robbery. Since Mr. Robinson has already served the custodial portion of his
    sentence we have not been asked to disturb that disposition. Mr. Robinson asks only
    that we terminate the remainder of his two year probationary sentence. The
    Crown does not oppose this request.

[20]

We
    therefore dismiss Mr. Robinsons appeal in accordance with
Criminal Code
,
    s. 686(1)(b)(i), set aside the verdict of guilty of the offence of robbery, and
    substitute a verdict of guilty of theft under $5,000 contrary to
Criminal
    Code
, s. 334(b).

[21]

We
    also grant leave to appeal the sentence, and vary the probationary terms
    imposed on counts 1, 4, 15, and 16 on information 16-45001442, from 2 years
    concurrent, to a concurrent term of probation expiring on September 6, 2018.

P. Lauwers J.A.

G. Pardu J.A.

David M. Paciocco
    J.A.


