R. v. Dragani et al. Date:, 2017 BCPC 429

Citation: R. v. Dragani et al. Date: 20170815 2017 BCPC 429 File No: 240949-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. STEVEN JOHN DRAGANI NAEIM BAKHTYARI EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: G. Ng Counsel for Accused Dragani : J. Thorhaug Counsel for Accused Bakhtyari : J. Desbarats Place of Hearing: Vancouver , B.C. Date of Hearing: August 15, 2017

Date of Judgment: August 15, 2017 [ 1 ] THE COURT: So this is a trial that involved Mr. Dragani and Mr. Bakhtyari. They are both charged with various offences that arise out of an incident that occurred on September 7th, 2015. [ 2 ] The charges, briefly stated, under Count 1, is a break-and-enter charge of a house at 2918 Grandview Highway. That is 348(1) (

d) of the Code . Count 2 is the allegation that the two accused on the same date used a restricted or prohibited weapon and committed a robbery of Reggie Sambire, Norcelita Sambire, and Rency Sambire. That is contrary to 344(1)(

a) of the Code . Count 3 is unlawfully confining those three individuals. Count 4 is an allegation of assault with a weapon, to wit, a firearm, on Rency Sambire. Count 5 is an allegation of assault causing bodily harm on that same individual. Count 6 is a count relating to a firearm and that is possessing a loaded prohibited or restricted firearm without being a licence holder. That is s. 95(1) of the Code . Count 7 is possessing -- and this is all with respect to both accused, possessing a firearm or handgun without being the holder of a licence, and that is under 91(1) of the Code .

Count 8 is possessing a prohibited firearm, restricted firearm, or non-restricted firearm knowing that that person was not a licenced holder under which they may possess a firearm or knowing they were not the holder of a registration certificate under s. 92(1) of the Code . [ 3 ] All of those allegations arise out of an incident that occurred, again, on the evening of September 7th, 2015. The Crown alleges that the Sambire residence was unlawfully entered by the two accused and that certain events occurred therein leading to the charges I have just summarized. At the commencement of the trial, we had a voir dire.

That was conducted with respect to the admissibility of statements that were provided later by Mr. Dragani and Mr. Bakhtyari to the police. That was in the morning hours following the arrest, on July 26th, 2017. [ 4 ] I filed a ruling on that voir dire. I found the statements of Mr. Bakhtyari were inadmissible and that the statement of Mr. Dragani was admissible as evidence on the trial in this matter.

Counsel were agreed that some of the evidence called within that voir dire was properly admitted onto the trial proper and several of the exhibits have been numbered thusly by agreement between counsel and a number of admissions were also made that were filed in this trial. [ 5 ] The background, just briefly, as I indicated on the voir dire in this matter, the case involves a 911 call received at approximately 9:53 p.m. on September 7th, 2015. That call came from a young man, Irvin Sambire, who was a resident in this residence at 2918 Grandview Highway.

Irvin Sambire was -- essentially at the time the call came in, he was hiding in his bedroom and he was inside the residence and he had relayed to the dispatcher that, what is colloquially called, a home invasion was in progress at his house. He said that two men, one he thought was armed with a gun, had restrained some family members. He had actually, at that time, only seen one man, and he relayed that to the dispatcher. He said he could hear his mother crying and screaming. [ 6 ] Understandably, this scenario resulted in quite a robust police response and a number of units rushed to the scene.

Shortly after arriving on the scene, the police set up a perimeter of substantial police presence around the residence, and eventually two men were seen coming away from that residence and were interdicted and apprehended. These are the two men that are before me, Mr. Dragani, and Mr. Bakhtyari. [ 7 ] There was a statement, again, by Mr. Dragani to the police and that statement is part of the evidentiary context vis-à-vis Mr. Dragani alone. Of course, that statement cannot be used as evidence against Mr.

Bakhtyari. [ 8 ] The defence states that there are significant issues with the evidence that has been called and particularly with the identification evidence relating to these two men. The evidence, they say, if considered as a totality, does not meet the criminal standard of proof beyond a reasonable doubt. It does not establish the guilt of the accused on these charges. In the alternative, it is argued that the accused are only guilty of a limited number of the allegations. [ 9 ] The evidence establishes that shortly before 10:00, as I have indicated, on September 7th, the police get this call from Mr.

Sambire. He is in his room. He hears his mom scream. He crawls out from his room a little bit and he sees a man wearing what he described as a dark hoodie and wearing orange gloves and this man is standing in the entranceway to his brother Rency's room and appears to be holding his arm out in front of him in a fashion as if he was holding a weapon of some kind. Mr. Irvin Sambire assumed it was a firearm and he told the dispatcher that he thought it might be. [ 10 ] That man's back was facing Irvin Sambire, but he could see his mom inside Mr.

Rency Sambire's room appearing to look very scared and he immediately assumed that this was some kind of home invasion. He retreated back into his room. He called 911. He told them his observations. It was his impression based on the heavy footsteps that he heard around the house that there were multiple people going upstairs and downstairs, more than one, in any event. [ 11 ] Eventually he heard his dad screaming and arguing with people. He assumed that his dad was with his mom, although he could not see him directly. Mr.

Irvin Sambire tried to get under his desk and he made an unintentional noise in doing so and he heard someone come to his door. Shortly after that, he heard a voice saying something to the effect that the cops were there and he heard steps and he assumed the steps were basically people running out of the residence. His viva voce evidence is largely consistent with the transcript of the 911 call which is Exhibit 13B in these proceedings. [ 12 ] Rency Sambire, who is also known by R.J. by his family, is Irvin's older brother. His evidence was clearly not as cogent or reliable as Mr.

Irvin Sambire's evidence, I find. It was clear he was a reluctant witness. However, the evidence he provided that I do accept because it is consistent with other more reliable evidence is that he was there that evening and, at some point in time, he went out to his vehicle where he was grabbed from behind, his hands were tied, and his head was covered. He was taken inside to his bedroom where he said he was hit in the head with something hard and later received kicks and punches of some kind.

Photos indicate a large laceration-type injury that required stitches that he received on his head. [ 13 ] He did not know how many assailants there were. He thought he may have heard two to three voices. He was certain that only

one to two people were actually talking to him during the incident. He said that because of comments that they made, he assumed that they were there looking for money. At some point, he heard the voices of his parents in the same vicinity. Now, at this point in time his head is still covered. [ 14 ] Eventually, the people left after he heard someone say something about the police being there. Things went quiet. He managed to get his head cover off.

His legs were also tied and somehow he hopped up the stairs and was met by the police outside. [ 15 ] Norcelita Sambire is the wife of Reggie Sambire and mother to Rency and Irvin Sambire. She was home with her husband that night. She was upstairs, went downstairs to where Mr. Rency Sambire's bedroom was and also the laundry facility. She went down there to do some laundry, went to the washing machine where she felt, she described it as, gloved hands covering her eyes from behind.

She very momentarily thought it was a family member that she knew, but then immediately realized it was not. [ 16 ] In her terror, she basically pushed back and turned around to see a person holding a gun that was pointed at her head. She did not recognize that person. She says she started to scream uncontrollably. She could also sense, she testified, the presence of other person or persons outside the house. She saw some movement in her peripheral vision and heard some noises to that effect. [ 17 ] She described the man with the gun as wearing a hoodie with long sleeves and the hoodie was up.

She thought he may be wearing dark jeans and had short facial hair on the sides of his face. He was described as being European or a "Punjab mix" is how she put it and was taller than the other man. She described him as, again, wearing a black hoodie with the hood up. [ 18 ] The shorter man was described as the leader of the two and she surmised that because he seemed to be telling the taller man what to do. That person was described as wearing a black t-shirt and looking Italian or something like that. He was 20-something.

She said he was the one who was kicking her son on the ground several times. [ 19 ] Her husband came down and was grabbed, she says. She was certain that both men had a gun, that the shorter man had a gun that was six to eight inches in length and the other gun was 12 inches in length, she estimated. She was tied. They both were tied up with plastic straps commonly known as Zap Straps, it turned out.

She told these men not to hurt her husband as her husband had a medical condition and she was quite worried about him. [ 20 ] She saw Rency, her son, on the ground in his bedroom where they were being instructed to be -- to go into and he was apparently bleeding from his head. He was tied up and, as they described it, in a fashion like hogtying. The shorter man was asking questions like, "Where is the money," and, "Who is in the house?" She could hear someone go up and appeared to be looking for something.

Their heads were covered, as well by this time and she heard a phone ringing and she thought that it was the taller man on the phone saying something to the effect of, "Let's go, we got to get out of here." She thought that he then left leaving the shorter man who still appeared to be rummaging around for a bag of some kind. [ 21 ] Now, again, all of this is heard as their heads were covered. Now, before the heads were covered, though, she says that she was able to see that both men were wearing gloves.

One had blue gloves on and one had orange gloves. [ 22 ] She purported to identify both men in court as being the men that were inside of her house on that evening. Ms. Sambire was a little unclear as to which man was doing what when you look at her evidence in the entirety, and that is a generous characterization. She later told the police that she "may" be able to identify these individuals from a photo. After receiving a subpoena, she decided to look up the names on Facebook and saw a photo of Mr. Dragani.

She was adamant, however, that that did not assist her in making her in-court identification. [ 23 ] She thought she could hear the taller man on the phone indicate that the police were there, as I indicated.

He was the one who appeared more eager to leave the residence at that time and, although she did not see the police apprehend the two men, she did hear commotions outside after the shorter man had left behind the taller man and, shortly after that, the police told them that two men were in custody. [ 24 ] Later, as well, part of the evidence is that she told her husband that although she was somewhat unsure about it, she thought she had seen the shorter man on Kingsway Avenue at a later date at a bank in October.

Her husband, however, indicated it could not have been that man as her husband told her that, according to him, the man was in custody. [ 25 ] Reggie Sambire is the father of Rency, husband of Norcelita. He was upstairs that evening with his wife, Norcelita. He was watching movies. He heard a commotion in the downstairs portion of the house after his wife had gone down to do the laundry.

He also went downstairs to check out what was going on and he heard his wife basically saying in a panicked fashion something to the effect of, "How did you get in here?" [ 26 ] As he opened the door to the basement, he saw a man with a gun pointed at his face. He was then instructed to go to Rency's room. He said he did not want to look at that man's face for too long because he feared the man would think that he may be able to recognize him and he did not want the man to think that so he looked away after a few seconds. He did say the man was 25 to 30 years old with hair on the side of his face.

He agreed that he only saw the man's face for mere seconds before he looked away. [ 27 ] Once inside the room, Rency's room, he saw his wife in there. He saw Rency lying on the floor face down with a blanket over him. He and his wife were instructed to face the wall. They were tied up with these plastic straps. He described two men being there. The gunman was shorter, he says. It was the taller man who tied up their hands.

He says the shorter man was asking questions like, "Where did the money go?" [ 28 ] After a while, some 10 to 15 minutes, he estimated, he heard another person or persons talking outside the house. It was not entirely clear whether they were talking to the men inside or not, but he heard voices, in any event, and then there was some quiet and he felt after that that the two men had left. So he managed to uncover his head and went upstairs and saw the police outside his house. [ 29 ] When asked if he could recognize either of the men that were in his house that night, he pointed to Mr. Bakhtyari as being the

man with the gun. Mr. Bakhtyari was sitting in front of counsel bar behind defence lawyers with Mr. Dragani, and I should note that Mr.Bakhtyari is clearly the shorter of the two men. [30] Now, before I move on to assess and describe the other evidence in this case, I will comment on the identification evidencehere. This is important to deal with. Defence counsel seeks to impugn -- essentially it is an in-docket identification of the accused. They were not actually sitting in the prisoner's dock, as it were, in this courtroom.

The prisoner's dock in this courtroom is clearlydemarcated by Plexiglas windows, but they were sitting behind counsel. [31] In this case, Reggie Sambire purports to identify Mr. Bakhtyari as one of the assailants. Norcelita Sambire purports to identifyboth accused as being inside the house. There is no real question here as to these witnesses' honesty and sincerity. An assessment of thereliability of the identification evidence always depends upon a critical consideration of the basis for the witnesses' conclusion.

Clearly,they are trying to be honest and sincere about their evidence on this point and this is "direct evidence," as it were, but it suffers. It suffersfrom a number of frailties that makes any substantial reliance on it very problematic. [32] In Hibbert, a case from our Supreme Court of Canada, the court was faced with the issue of adequacy of the trial judge's chargeto the jury with respect to in-court eyewitness identification.

Madam Justice Arbour says this for the majority, she says: I think it is important to remember that the danger associated with eyewitness in-court identification is that it is deceptively credible,largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravatethe distorted value that the jury may place on it. [33] The descriptions provided by the two were meagre at best.

Also, it is fair to characterize their views as fleeting and the courtshave been very clear that a fleeting glance of a suspect by an eyewitness is generally unsatisfactory. [34] Norcelita's evidence relating to the distinguishing factors between the two men was less than certain. Clearly tainting her in-dock identification of Mr. Dragani was the fact that she had looked him up on Facebook prior to the trial.

She thought she saw Mr.Bakhtyari on the street at a later date, but there is some indication that could not have been that person. [35] The courts have shown express preference for the police to conduct pretrial identification steps for the sole reason to avoid in-court dock identification because they are so unreliable. Why that did not take place in this case, I am not clear on. It was notexplained.

Those pretrial identification processes ordinarily take the form of a properly constituted photo lineup or other form of prioridentification procedure, and that is set out in the Sophonow Inquiry. [36] With respect to a suspect unknown to the eyewitnesses, as in-court dock identifications are, as a general rule, the courts havebasically concluded that they are essentially worthless. There is little use that can be made of the direct identification evidence that wasgiven by the two witnesses who did purport to make in-docket identifications in this case.

However, that is not nearly the end of theinquiry. [37] With respect to Mr. Dragani, there is still the direct evidence contained in his statement where he describes some of hisinvolvement. There is also a reliable body of circumstantial evidence here that is compelling in nature. There is a fundamentaldifference between direct and circumstantial evidence and that also has to be clearly pointed out and kept in mind by the trial judge. Direct evidence requires only one determination, that is, whether you believe it or not. Is it believable or not. Circumstantial evidenceadds a second question.

Even if it is reliable and believed, what conclusions or inferences can be drawn from the evidence? [38] At one time, courts may have relied too inflexibly on an

interpretation of the Hodges case where it was concluded that whenassessing circumstantial evidence, conclusions that are alternative to the guilt of the accused must be grounded in "proven facts" as foundby the trial judge. I had always found that to be problematic, but the previous cases have relied on that sort of test. The Ontario Court ofAppeal in a case called Bui, [2014] O.J.

No. 4003, stated the law succinctly and correctly, in my view, at paragraph 25 where they said: ... it has been clear that the rule in Hodge’s Case is not “an inexorable rule of law in Canada”. [That the] ... the rule’s reference torequiring “proven facts” to ground alternative explanations is problematic because there is no obligation on an accused to prove anyfacts.

Rather, an accused is entitled to an acquittal if there is “a reasonable doubt on all of the evidence, a conclusion sustainable at athreshold significantly lower than a “reasonable inference” from “proven facts"" ... [39] That proposition was recently confirmed by the case that the Crown provided to me in Villaroman, 2016 SCC 33 ,[2016] S.C.J. No. 33. Justice Cromwell for the majority writes there basically confirming the law is what I have just stated it to be andrelying on that Bui case.

He agreed with the respondent's position that a reasonable doubt or theory alternative to guilt is not renderedspeculative by the mere fact that it arises from a lack of proven evidence. A reasonable doubt is a doubt based on reason and commonsense which must logically have a basis in the evidence or lack of evidence, and a certain gap in the evidence may result in inferencesother than guilt, but those inferences must be reasonable given the evidence and the absence of evidence.

They must be assessedlogically and in light of human experience and common sense. [40] The line between plausible theory and speculation is not always an easy one to determine, but the question remains, in short,whether the circumstantial evidence viewed logically and in light of human experience is reasonably capable of supporting an inferenceother than guilt. If you have a multiplicity of available, meaning reasonable, inferences to be drawn on the evidence, that is fatal to afinding of guilt.

It remains a rule of law that where proof of a constituent element of an offence turns on circumstantial evidence, theevidence must not only be consistent with the guilt of the accused, but also inconsistent with other reasonable

interpretations. [41] What is the other evidence here in this case? Well, you have got Sergeant Wong and the other police officers. Sergeant Wong,in particular, arrived at around ten o'clock. By that time, there -- or shortly thereafter, there is a full surrounding of this house and the callhad only come in minutes before the dispatch call. He is one yard east of the subject house. He describes himself with a view of theback yard and the back basement door of this area. [42] As information came in from the caller that there was yelling inside the house, he decided to move closer to the fence and see if

he could hear it and he could not at that time, but around about four minutes later, at 10:04, he did hear a door open. He looks at the residence and he sees, on his evidence, two males exit the rear basement door of that residence. He was essentially unchallenged on this evidence. It was pointed out that from his viewpoint from where he said he was, he may not have been able to see the door actually open.

However, if you look at the photos, the entry and exit way to that lower back door is a very circumscribed one and he saw the two individuals, he says, exit the rear basement door of that residence. [ 43 ] One was about six feet in front of the other one. A shorter male was in front and a taller male was following. The shorter male was wearing a black baseball hat with a black sweatshirt with the hood down. The second male had a black sweatshirt with the hoodie up. He was not able to see if there was anything in their hands. [ 44 ] He ducked.

He started to move towards the lane with his police service dog, Hunter. There was a gate on the subject residence. He was watching that, watching them approach the laneway through -- apparently to go through that gate. As soon as he saw the shorter male breach the threshold of that gate, he yelled at that person. He said basically, "Police. Get on the ground." At that point, both men began to flee back into the yard from whence they came. [ 45 ] The police service dog, Hunter had seen the man breach the exit.

At least that was the opinion of his handler and he commanded the police service dog, Hunter, to apprehend that male. The dog was released off-line, apprehended a male, later identified as Mr. Bakhtyari, in beside the garage of that yard. From the time he saw them exit the house and walk to the gate, it was less than 20 seconds. From the time he saw a man at the gate to extracting him from the side of the garage was less than 20 seconds, in his estimate. He ID'd Mr. Bakhtyari in court as the man he apprehended with his police service dog. Mr.

Dragani was arrested after he fell off a fence between the Sambires' yard and the neighbour's yard within a very short time of Mr. Bakhtyari's apprehension. [ 46 ] Both individuals were taken to the detachment where later a statement was obtained from Mr. Dragani. It is important to understand the context of it. So now I will refer to it, parts of it. That statement given by Mr. Dragani to Detective Constable Willoughby, was ruled admissible. On page 3 of that statement, Mr.

Dragani says, "It's embarrassing," and Willoughby says, "What's embarrassing?" He eventually says, "I shouldn't have been there." On page 8, Mr. Dragani is asked, "Were you the orchestrator behind this?" His answer is, "I wouldn't do something like this," but he says, "It doesn't matter because I was part of it. I have it all now." He is asked, "Do you know the other people that are involved in this thing," and he says, "The other guy, I don't know. I just prefer not to say right now." [ 47 ] He is asked about the weapon, the firearm because the investigator wants to know who had the firearm. Mr.

Dragani says, "It doesn't matter who had it in there. The fact two of us were in there with one of it, it's all that matters." He says, "It was made out to sound like so simple, that all we had to do was stand there," this is on page 9, as well, "And then like you know I was just coming down so hard and the real simple thing to do would have just been to stay home." He is obviously remorseful.

At line 21, it is suggested that he is remorseful and he says, "Yes, it is really sucks because I don't like being in those situations obviously putting people in there -- people don't like -- people that don't like deserve to be there." [ 48 ] On page 12, it is suggested to him that he did not seem to have a lot of knowledge about what this venture was going to be all about.

He said, "I guess like usually I don’t trust any of them, like people that I guess I just had too much trust and it just sounded too good to be true and it sounded like, 'Go in, go out, go home,'" and the investigator asks him, "What were you supposed to get out of this," and he says, "Just money." [ 49 ] On the next page, he is explaining why he agreed to get involved and, essentially, he is saying he was told that there would be nobody home and he says, "Like he's never there.

I guess like what I was told is that it's in his parents' name and they were supposed to never be there 'cause like it's his house, a front type of thing." He says later at page 18, "The plan was just to go in, go out, and guess -- like from there I was supposed to just like leave." [ 50 ] He is asked how he was contacted to be part of this and he says, essentially, he did not have a phone and that it was on Facebook that he was notified and he just went down there and met somebody by the gas station.

He is later asked what he was thinking after the contact that he received and he says, "I heard about this guy's house, how it happens a lot, like he never did anything about it. He just put money there and so I was just like if it's that easy, just like do it and like I could use the money and then like everything just turned like sour and like with the gun thing it's like I don't really know this guy so I don't -- like I don't want to say anything to him and then be like -- like something, like this would happen.

I don't want that to happen to me." [ 51 ] He is asked about the people that were inside the house and the investigator suggests at page 22, "There's four victims inside the residence." Mr. Dragani seems to express some surprise about that suggestion, "Four," and Willoughby says, "Yeah, four people inside that residence. How many did you see," he was asked. Mr. Dragani says, "There was only three." [ 52 ] He is asked on page 24 what room the victims were in. Mr. Dragani answers that he thinks it is "his bedroom," and he agrees it was Rency's bedroom.

He says on page 26 that if he had known the whole family was going to be there, he would not have agreed to do this. He is asked about, on page 36, "Why was Rency in the lane," and Mr. Dragani says, "Which one?" "The lane, why was he out in the lane or out of his house?" Mr. Dragani, "It was just a lot of waiting to see if anything was going to happen and like he was there.

I don't -- like if he was going for a smoke or something," and he says he saw a car there, it did not stop, and it just seemed to drive by. [ 53 ] He says on the following pages that, "After a while in there the bad chain of events started happening," and that Mr. Dragani was just pacing back and forth and he says, "Yeah, his face was covered and everything was covered and it was just like -- I don't know. I just feel horrible for his family. I didn't know there was another person there." So those are the kind of comments that Mr.

Dragani makes in his statement that is obtained by the police. [ 54 ] There was a gun discovered underneath the staircase of the neighbour's yard. The police did a thorough search of the area and could not find any other gun. There was DNA from that gun that was extracted, but it belonged to an unknown person. [ 55 ] There was gloves found in the back yard. There was orange gloves that were discovered in a planter in the back yard near the garage. There was blue gloves that were discovered on the bed in Rency's bedroom. The inside cuff of the orange gloves contained

DNA from Mr. Dragani among two other individuals. Both Norcelita Sambire and Mr. Irvin Sambire testified that one of the assailants had orange gloves on. No useful DNA was extracted from the blue gloves. [ 56 ] There is the cellphone records that show that a phone that was seized from Mr. Bakhtyari was present in the area during the incident.

That phone was forensically examined and a number of calls were made between that phone and somebody named J.R. or J. between 8:51 p.m. and 10:30 p.m., and again, Irvin Sambire had called 911 about 9:53 p.m. [ 57 ] As the British Columbia Court of Appeal said in the Ball decision, this is 2011 BCCA 11 , leave to refuse by the Supreme Court of Canada, they said at paragraph 23: Two persons may ... be actual committers for the purposes of s. 21(1)(a) [of the Code ] (referred to in the case law variously as “co- principals”, “joint-principals”, “co-perpetrators” or “joint-perpetrators”) even though each has not performed every act which makes up the actus reus of the offence. [ 58 ] At paragraph 24, the court says: This conclusion is logical.

Where two people rob a bank with a gun, only one person can carry and point the weapon, and it may be more convenient for a second, not occupied with a weapon, to scoop up the cash. The robbers have not, individually performed all elements of the offence, yet they both have committed the crime in the sense that they are co-perpetrators. There is no need in such a case to turn to accessorial principles to determine guilt. So also with an attack by two or more on two (or more) victims – an attacker may strike only one victim while others strike the second, or they may all strike both.

The attackers are all actual committers. Again, there is no need to resort to accessorial principles to find a basis for conviction. [ 59 ] Finally, at paragraph 25, they say: Where two persons commit a crime as co-perpetrators it may be the case that they have agreed to do so before embarking on the endeavour. For purposes of liability under s. 21(1)(

a) of the Code , however, agreement to carry out a common purpose is not necessary. The question is whether there is an indication of common participation, not a common purpose. [ 60 ] The evidence, in my mind, in this case leads to only one rational and inexorable conclusion. That is, while there is no substantial or cogent evidence available beyond a reasonable doubt to sort out what specific activities each of these men performed while inside the residence, they both were, in fact, inside the residence.

Both were in close proximity to each other while the occupants were being dealt with in the way that they testified they were being dealt with. Their inability to identify with any degree of certainty does not assist the accused in this case. They were guilty as joint-perpetrators. [ 61 ] Count 1 of the Information is an allegation of break and enter.

It is clear that both of these gentlemen were inside the house at 2918 Grandview Highway and did, therefore, commit by entering that house in the way that they did, they are guilty of that offence, of break and enter under Count 1, both accused. [ 62 ] Under Count 2, which is originally charged as under s. 344(1)(

a) which is using a restricted or prohibited firearm in the commission of a robbery, "robbery" under s. 343(

c) could be an assault of any person where the intent to steal, that definition has been met here. There is no proof beyond a reasonable doubt that both had possession of a gun or an imitation, however, one of them at least did have an imitation firearm, but there is no proof that what appeared to be a gun by the witnesses was, in fact, a restricted or prohibited firearm. Therefore the conviction is, under that count, pursuant to 344(1)(

b) of the Code , and essentially that the two gentlemen here before me using an imitation firearm did commit the robbery of Reggie Sambire, Norcelita Sambire, and Rency Sambire, and that is contrary to s. 344(1)(

b) of the Code . [ 63 ] Count 3, both the accused here are co-perpetrators in this venture. They are guilty of unlawfully confining the three individuals on September 7th, 2015. [ 64 ] Count 4, which is originally charged as s. 267 (

a) of the Criminal Code , there is no proof beyond a reasonable doubt that the assaults here was with the use of a weapon, to wit, a firearm, and they are not guilty of that offence. Count 4, there is a not-guilty verdict. [ 65 ] Count 5, though, while there is no proof beyond a reasonable doubt that an assault was committed with the use of a weapon, there was an assault. Clearly here there was an assault on Rency Sambire causing bodily harm. I heard no argument that the serious head wound that caused a breaking of the skin of Mr. Sambire, who received stitches there, did not constitute bodily harm. Again, joint participation has been established. The conviction is under 267(

b) of the Code on Count 5 as worded. [ 66 ] Count 6, these are the gun charges. There is no sufficient proof, in my mind, that the accused were ever in possession of the gun that was later located in the neighbour's yard. That is probably the gun or one of the guns seen by the witnesses in all the circumstances, but it just simply cannot be determined beyond a reasonable doubt and, in that case, the accused are not guilty of that count. [ 67 ] For the same reasons, they are not guilty of Count 7 or Count 8. [ 68 ] Those are my reasons. [REASONS FOR JUDGMENT CONCLUDED]