R. v. Brauer, 2019 BCPC 322

Citation: R. v. Brauer 2019 BCPC 322 Date: 20191127 File No: 20907-2-C Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JASON JOSEPH BRAUER ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.C. BLAKE Counsel for the Crown: S. Salmond Counsel for the Accused: G. Simair Place of Hearing: Colwood , B.C. Dates of Hearing: November 26 and 27, 2019 Date of Judgment: November 27, 2019 [ 1 ] THE COURT: Well, I think I can give you my decision now, much as I would like to give it in a rather more elegant fashion. If I were to do that, you would likely have to wait months, and I do not think that does anyone any good, so I am going to deal with it now.

[ 2 ] Mr. Brauer has pled guilty partway through his trial, to a charge of assault using a weapon upon Justin Oickle, contrary to s. 267 (

a) of the Criminal Code . [ 3 ] There is a second charge before the Court. Counsel have agreed upon the facts that I should consider, in determining whether the Crown has proved the second count. The second count alleges that Mr. Brauer used an imitation firearm while committing the indictable offence of assault with a weapon, contrary to s. 85(2) of the Criminal Code . [ 4 ] The essential facts of the matter, insofar as they are relevant to the determination of the second count, are as follows. [ 5 ] Mr. Brauer is apparently a friend of a young lady by the name of Kiana Turner. Ms.

Turner was, on the night in question, at a party at an apartment building on Treanor Avenue in Langford, when she became involved in a confrontation of some sort with another young lady called Morgan Gregoire. [ 6 ] As a result of the altercation occurring between the two women, Ms. Turner contacted Mr. Brauer, who was not at the party, and asked him to pick her up. Mr. Brauer arrived on the scene in his SUV motor vehicle, and waited outside the apartment building for some moments. At roughly the same time, one of Ms.

Gregoire's companions, Justin Oickle, decided that he had had enough of the spat between the two women, and he was also concerned about how Ms. Gregoire's dog, a pit bull, might react if he did not remove the dog from the scene. [ 7 ] Mr. Oickle, accordingly, went downstairs at the apartment building, and then went outside with the dog. Once outside, he telephoned his companions, consisting of his cousin Travis and Ms. Gregoire, and suggested they leave the party and go off somewhere else. The cousin and Ms. Gregoire apparently agreed, and they went outside to meet up with Mr.

Oickle. [ 8 ] For reasons which are not entirely clear, at around the same time Mr. Oickle’s group was leaving the apartment building, Mr. Brauer decided to move his vehicle from where it was by the side of the building, to a location across the street in the parking lot of a gas station. His vantage point caused him to be looking straight back across at the apartment building where Mr. Oickle and his companions were just leaving the party. [ 9 ] As I say, I am not sure why Mr. Brauer changed his location, but he did.

He also, then, got out of his vehicle with an air pistol, and he walked to a location where he had a clear vantage point across the street, to the apartment building and to the sidewalk leading from the apartment building, along Treanor Avenue. [ 10 ] In due course, Mr. Oickle and his two companions, essentially, crossed Mr. Brauer's path, although he was on the opposite side of the road. At the closest, Mr. Brauer and Mr. Oickle were approximately 80 feet apart. As I have said, Mr. Brauer had in his possession an air pistol which, ultimately, was recovered that night.

The air pistol was before me, and photographs of it were also exhibited before me. [ 11 ] I have had lengthy and interesting argument about the characterization of the air pistol for legal purposes, but I am satisfied that it is an imitation firearm as defined in s. 84 of the Criminal Code .

That provision defines an imitation firearm as "anything that imitates a firearm and includes a replica firearm." Given the purpose of the legislation, about which I will have more to say in a moment, it seems that the definition is intended to capture any item which, to an observer, could reasonably be perceived as a firearm. I do not think that there is anything particularly technical about it. This air pistol could easily be mistaken for a firearm, and it therefore constitutes an imitation firearm. [ 12 ] Clearly, however, this particular air pistol is not a firearm as defined in s. 2 of the Criminal Code .

I received the affidavit of an expert witness who tested it, and it is not capable of discharging any projectile at the requisite velocity to constitute a firearm. [ 13 ] To go back, then, to the sequence of events. Mr. Brauer, standing at his vantage point looking directly across Treanor Avenue, with the air pistol in his possession, began a verbal confrontation - and I call it that advisedly - with Mr. Oickle. It is not clear exactly what was said, but it was not pleasant. If it did not start off this way, it certainly degenerated into a brief commentary in which Mr. Brauer told Mr.

Oickle to "just fucking keep walking" or words very close to that. [ 14 ] Mr. Oickle gave evidence before me, and I am satisfied that he did not really understand Mr. Brauer's perspective. Mr. Oickle admittedly had had a considerable amount to drink, he was not part of whatever the confrontation had been between Ms. Gregoire and Ms. Turner, and really did not understand what, if anything, it was that was irritating Mr. Brauer. I am satisfied that Mr.

Oickle responded with the words "What's your problem?" or something like that. [ 15 ] It should be pointed out that as these events were unfolding, the time was about 1:05 in the morning. It was dark, and while there may have been some streetlights, the area where these people were located was not particularly well lit. The video evidence which is before me, shows that Mr. Brauer then quickly removed the air pistol from his right pocket, raised it and fired once in Mr. Oickle's direction. It may be safely inferred from the evidence, if it was not actually stated, that Mr. Oickle never saw the gun.

He appears to have been completely surprised when he was hit, which he was. He was struck in the forehead with the projectile – a so-called “BB”-- fired from the air pistol. Fortunately, he narrowly missed injury to his eye, and he was only slightly injured, although quite obviously dazed. He walked off with his companions, angry and confused. [ 16 ] Again, at this point the evidence becomes a little murky. It is not clear exactly what Mr. Brauer did, except that he drove away. He seems to have returned to the general vicinity a few minutes later, and then he was arrested.

It was at that point that the air pistol was seized, and the police became aware that the item resembled a firearm. Nobody had seen it before that, apart from Mr. Brauer. [ 17 ] As I said at the outset, Mr. Brauer admits that he assaulted Mr. Oickle with a weapon. Counsel disagree on the application of s. 85(2) which, as I have said, forms the second charge. If he is convicted on that second count, Mr. Brauer would face a mandatory minimum, consecutive one-year jail sentence, assuming that he is a first offender. If he is more than a first offender, the penalties are more serious.

At this point I know nothing of Mr. Brauer's background.

[18] Clearly, Parliament intended there to be significant additional punishment if the index offence, in this case the charge of assaultwith a weapon, has superadded to it an additional element of the sort contemplated by s. 85(2). That additional element is the use of afirearm or an imitation firearm in the commission of an offence. That term has been the subject of a good deal of debate. [19] One important point to note right now, is that in the Supreme Court of Canada decision of R. v.

Steele, Justice Fish interpretedthe phrase “in the commission of an offence” to mean more precisely “to facilitate the commission of the offence”. The Steele decision isat 2007 SCC 36, and the comment from Justice Fish that I have just mentioned is found at paragraph 32. [20] So the question here is this: Did the defendant use an imitation firearm to facilitate the commission of an offence, so as toengage s. 85(2)?

On the face of it, it looks like a simple answer, he did indeed use the air pistol in the sense that the term would be usedin common parlance, and it seems unquestionable that he was doing it while committing an offence, an indictable offence. But thewording of the section, and, indeed, the entire provision of s. 85 is unusual, such that the usual meaning of words does not always govern,and careful attention must be paid to statutory purpose, as Mr. Justice Braidwood pointed out in R. v.

Scott, 2000 BCCA 220. [21] In the Scott case, the British Columbia Court of Appeal concluded that an imitation firearm actually included a real firearm,which is a bit of a stretch from common parlance, but an extension that was necessary, in the Court’s view, in order to make sense of thelegislative intent. The Scott decision actually contains a very helpful discussion, explaining the statutory purpose for these provisions,and their history. I refer to the decision of Mr.

Justice Braidwood for the majority, at paragraph 36, and I quote: The forerunner to what is now s. 85 was first enacted by Parliament in 1977 ... This amendment to the Criminal Code made it mandatoryin cases in which a firearm was used during the commission of an indictable offence for a one year sentence to be imposed in addition tothe sentence for the underlying offence. The purpose of this provision has been discussed in several cases. The Court then refers to R. v.

Langevin, from the Ontario Court of Appeal, in which the following passage appears, and I quote: It is clear to me that Parliament intended by s. 83 [which is now s. 85] to repress the use of firearms in the commission of crimes bymaking such use an offence in its own right, and one which attracts a minimum sentence of one year consecutive to that imposed for theoffence which such use accompanies.

The use of firearms in the commission of crimes is fraught with danger and gravely disturbing tothe community, and Parliament has sought to protect the public from danger and alarm caused by that use by enacting the presentlegislation. Continuing with his chronological

summary, Mr. Justice Braidwood next points out that in its decision in R. v. Covin, (SCC), [1983] 1 S.C.R. 725, the Supreme Court of Canada determined that the original provision in s. 85 did not capture imitationfirearms. In that case, Mr. Justice Lamer, as he then was, said this at page 729: The offence we are considering in this case is the use of a firearm during the commission of another offence.

The purpose of s. 83 [nows. 85] is to protect the victim of the commission of an offence from serious injury or death by discouraging, through mandatoryconsecutive imprisonment, the use, by him who commits the offence, of a firearm that is capable of being fired. It has been said that s. 83is not only aimed at preventing physical injury but also to prevent the cause of alarm ... With respect, I do not agree. Had that been thesection's purpose, Parliament would have included imitations of firearms, as it did in [then] s. 85 or ... s. 302 of the [Criminal] Code ... That is the end of the quote from Covin. Mr.

Justice Braidwood then goes on to say at paragraph 37: ... The prevention of "alarm" or trauma produced by the use of an object that later turns out to be an inoperable firearm or a toy gun wasnot part of the legislative intent of what is now s. 85(1). [22] Mr. Justice Braidwood explains what happened after that by way of amendment, and quotes from Department of Justice reportswhich refer to the pending amendments in the following terms: ... an amendment would recognize that the impact on the victim is the same regardless of whether a real or imitation firearm was used ... And at paragraph 43, Mr.

Justice Braidwood says this: ... the purpose of s. 85(2) is to prohibit persons from using an object that has the appearance of a gun during the commission of a crime,so as to prevent the alarm and trauma that such an activity produces. Parliament must have been aware of the Supreme Court of Canada'sdecision in Covin which ruled that s. 85(1) does not cover such situations. [23] This is one of those rare occasions, then, in which by virtue of the way the judicial and legislative history unfolded, it is possibleto isolate the Parliamentary intention fairly clearly.

In fact, the comments of the British Columbia Court of Appeal, in Scott, wereconfirmed when the Supreme Court of Canada dealt with the issue in the case of R. v. Steele, the 2007 decision which I mentionedearlier. [24] In the Steele decision, at paragraphs 19 to 23, Mr. Justice Fish said this: It is well established that Parliament’s objective in enacting this provision was to prevent the danger of serious injury or death associatedwith the use of firearms ... He is there referring to the original s. 85(1).

The Crown submits that s. 85 serves a second purpose as well: the prevention of victim intimidation and alarm. This view finds supportin ... [various cases which he cites]. It is true that the Court, in Covin, expressly rejected the prevention of alarm objective. Imitation firearms, said the Court, were no lessalarming or intimidating than real ones. Since Parliament had chosen not to target the use of imitation firearms, the prevention of alarm

and intimidation could not have been contemplated by Parliament as an objective of s. 85 ... But Covin predated Scott , and Parliament in the interim amended s. 85 to include the use of imitation firearms. The Crown contends that this amendment was a legislative response to Covin , expressing Parliament’s intention to include the prevention of victim alarm and psychological trauma as underlying objectives of s. 85, which must be read globally. I find this submission persuasive ... [ 25 ] In R. v. Steele , Mr.

Justice Fish, in paragraphs 27 and 28, refers to examples of acts which could constitute “use” of either of a firearm or an imitation firearm to facilitate the commission of an offence, so as to attract the provision of s.85(2) . Clearly, His Lordship was of the view that mere possession of a firearm or imitation firearm while committing the index offence would not constitute “use”. His Lordship suggested that it would be appropriate for courts to make the assessment of whether the firearm or imitation firearm had been “used” on a case-by-case basis, having regard to the principle and purpose of the legislation.

And, indeed a modest body of case law has developed a body of case law which establishes that only those “uses” which square with the purpose of the legislation are intended to be captured by s. 85(2) . [ 26 ] With that in mind, it is important to consider what was said, for example, in R. v. Hall , which is a 2017 British Columbia Supreme Court case, at 246. The accused in that case was charged with mischief to property and uttering threats, and the s. 85 use of a firearm. The facts are a little difficult to discern in detail, but in

summary, the accused used a firearm to break a window. Breaking the window constituted the alleged act of mischief. [ 27 ] In dealing with the s. 85(1) count, the Court said this, and I am quoting from paragraphs 88 and 90: The Crown’s submission is that the accused’s use of the rifle to break the window satisfies the elements of this offence. Mr. Fogel submitted that if I found the accused was the individual who fired shots at the other house with a different rifle, I could conclude that his use of a rifle to facilitate the commission of mischief would satisfy the elements of s. 85(1) ... Mr.

McMurray’s submission is that the rifle was used as an object and does not fall within the scope of “use” in s. 85(1). I agree ... [ 28 ] I was also referred to the case of R. v. Andrade , a 2005 decision of the Ontario Court of Appeal. Although I do not find that case to be directly on point, I will refer to it in more detail because it does illustrate some of the difficulties of

interpretation of the legislative provision. [ 29 ] The issue in Andrade was whether an imitation firearm had been “used”, in the sense required by s. 85(2) , in circumstances in which the index offence was possession of a weapon for a purpose dangerous. The facts were that the accused had found himself in an argument with other persons and had returned home to pick up an imitation firearm in order to strengthen his case in the continuation of the dispute.

He went back to the scene, where he promptly threatened the other persons with the imitation firearm, and struck his adversary with it, about the head. [ 30 ] The question in Andrade was whether the accused could be convicted of using an imitation weapon, where the index offence was possession for a dangerous purpose. The Court of Appeal answered that question in the negative, because the elements of the offence of possessing the weapon for the dangerous purpose were already complete when the accused left home, and the accused did not use it until later on.

Therefore, it could not be said that the imitation firearm was used to facilitate the offence. [ 31 ] The Andrade case provides an illustration of how carefully the purpose and the strict wording of these provisions must be considered. What may, in common parlance, sound like the use of an imitation weapon in the course of the commission of an offence, is not necessarily so. [ 32 ] The question in the present case, then, is this: Did the use of an imitation firearm in some way facilitate the commission of the assault offence?

To put it more specifically: Did the air pistol’s status as an imitation firearm facilitate the commission of the assault offence? [ 33 ] In my view, s. 85(2) was not intended to apply to a situation in which the imitation firearm is not produced in such a way as to make the victim aware of its existence. In the present case, that situation prevailed because it was dark, the lighting was poor, the ultimate victim was some distance away, and the accused said nothing to indicate the presence of the imitation firearm.

The air pistol’s status as an imitation firearm, which it undoubtedly was, was essentially irrelevant, and did nothing to facilitate the commission of the offence.

I would put that in terms of the mischief, which s. 85 (2) is intended to combat, by referring back to what the BC Court of Appeal said in Scott , and I quote: ... the purpose of s. 85(2) is to prohibit persons from using an object that has the appearance of a gun during the commission of a crime, so as to prevent the alarm and trauma that such an activity produces ... [ 34 ] The air pistol, in this case, did not have any “appearance”, neither for the victim nor for anyone else, because it was not visible.

An invisible item could not have contributed to the commission of the offence by intimidating or exacerbating any sense of alarm or trauma, so as to bring the offence about. The wrongdoing in this case, in my respectful view, begins and ends with the shooting itself. It does not have the superadded component contemplated by s. 85(2) , and I therefore must find Mr. Brauer not guilty on Count 2 of the information. (REASONS CONCLUDED)