R. v. Roberts Date:, 2011 BCPC 410

Citation: R. v. Roberts Date: 20110602 2011 BCPC 0410 File No: 181565-3C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAWN ANDRE ROBERTS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. W. BALL Counsel for the Crown: L. O'Grady Counsel for the Defendant: A. Bonfield Place of Hearing: Surrey , B.C. Dates of Hearing: Nov 15, 16, 17, 18; Dec. 2, 3, 14, 15, 16, 2010; Jan. 26; Mar. 8, 9, 10, 2011 Date of Judgment: June 2, 2011 [ 1 ] THE COURT : These are oral reasons for judgment in the case of R. v. Shawn Andre Roberts , Information number 181565-C3.

INTRODUCTION [ 2 ] Shawn Andre Roberts is charged on a ten-count Information where all ten counts relate to the possession and discharge of a Glock .40 calibre handgun on the 17th of April 2010 in Surrey, British Columbia. The trial of this matter occupied 11 days for hearing the evidence and argument. A voir dire was held during the trial to consider the admissibility of statements made by Mr. Roberts during the course of a police interview conducted in the evening hours of the 17th of April 2010. In Reasons pronounced on January 17th, 2011, I found those statements voluntary and admissible.

ADMISSIONS AND ISSUES [ 3 ] On April 17th, 2010, shortly before 5:00 a.m., police were called to a residential neighbourhood near the intersection of 90th Avenue and 147A Street in Surrey, British Columbia, to respond to a "shots-fired" call. Before 5:00 a.m., a physical confrontation had occurred between persons congregating outside or near a "booze can", or unlicensed after-hours club or drinking establishment, which had been set up in a private home. During the confrontation the accused produced a semi-automatic handgun, a Glock .40 calibre. The

gun was fired by the accused, either in front of or in contact with the head of Kalin Willis, causing a significant tearing injury to the ear of Mr. Willis which required medical intervention provided by hospital emergency room that day. A photograph of the injury to Mr. Willis was marked as Exhibit 6 at trial. [ 4 ] Mr. Willis refused to cooperate, to speak to police and Crown counsel, or to provide any information in this matter. His refusal to cooperate made the case more difficult. [ 5 ] Mr.

Roberts admits possession and discharge of the firearm, but asserts defences only to Counts 1, 6, 7, 8 and 10 of the Information. Although he has not pled guilty, counsel for Mr. Roberts conceded the allegations contained in Counts 2, 3, 4, 5 and 9 of the Information had been proven on the criminal standard. The Crown seeks findings of guilt on each of these counts.

I will address these counts at the end of these reasons. [ 6 ] In addition to the evidence called from witnesses, admissions of fact dated the 2nd day of December 2010 were filed which provided that the continuity of exhibits, including the Dodge Caravan motor vehicle, the Glock handgun, a shell casing, bullets and magazine from the Glock handgun were admitted. The admissions also included affidavits of three firearms officers which state that no firearms licence of any kind, including an authorization to transport or an authorization to carry, were issued to the accused in this case.

Further, it was admitted that there was no record of a valid registration certificate issued by the Canadian Firearms Registry for the Glock .40 calibre handgun, which is exhibited in this case. [ 7 ] With respect to that firearm, a forensic report stated that the Glock was a fully-operational firearm, a prohibited weapon under s. 84(1) of the Criminal Code from which a single cartridge case located and exhibited at trial was found to have been fired. [ 8 ] On the testimony heard in this case, there is a series of fundamental conflicts of fact raised principally by the evidence given by the accused.

These include: (

a) the source of the Glock .40 calibre handgun which was admittedly in the possession of the accused when it was discharged; (

b) the physical mechanism that caused the firearm to be discharged; (

c) whether the Crown has proven that the accused knew the Glock handgun was loaded; and (

d) the applicability of the defence of self-defence advanced by the accused as justification for the discharge of the firearm. A further issue which arose was whether or not the accused intended to discharge the firearm; that is in relation to Count 7 of the Information. FACTS [ 9 ] During the evening hours of April 16th, 2010, Mr. Roberts was in the company of "Ory Crom". Mr. Roberts was unable to spell the last name of "Ory", so the foregoing spelling is a phonetic approximation. Mr. Roberts had known Ory for most of the eight years that Mr.

Roberts had been in Canada; he knew Ory as a close friend, they "have one another's back". Mr. Roberts knew Ory frequently carries a concealed firearm. Mr. Roberts had asked Ory to give Mr. Roberts a handgun on various occasions. Mr. Roberts testified that Ory always refused to give him a firearm in the past. [ 10 ] Mr. Roberts and Ory were consuming alcohol during the evening hours of April 16th. Mr. Roberts also testified that he had taken a non-prescription ecstasy pill and was "high". Mr.

Roberts testified he had no particular plans for the evening, but he and Ory had gone to the home of a friend some five blocks from his own home where there were drinks, music and "some ladies". That party came to an end in the early morning hours of April 17th, 2010. Around 2:30 a.m. that morning, someone suggested that Mr. Roberts and others should attend the "after-hours" club which was being held in a private home. Mr. Roberts said in his state of sobriety he would agree to anything, and arrived at the after-hours club with Ory at approximately ten minutes after 4:00 a.m.

There he met friends, including Tanya Dosanjh and Joel Morgan, who are sister and brother. Eon Jemmott was also present at the after-hours. Mr. Jemmott is a large man who works as a doorman or bouncer and was on time-off. Unlike the other parties who gave evidence before me, the evidence was that Mr. Jemmott had very little to drink and certainly not enough alcohol to impair his ability to drive or to observe. [ 11 ] Mr. Roberts testified that he was drinking at the after-hours and talking with Joel Morgan, who was also quite intoxicated by alcohol. Mr.

Roberts was encouraged to dance by Tanya Dosanjh, who was eager to join him dancing, he said. While the two were dancing, Ory approached Mr. Roberts and told him he was leaving and urged Mr. Roberts to come with him. Mr. Roberts testified he was having fun dancing, was grabbing Ms. Dosanjh, and he had an erection. He declined to leave with Ory. Ms. Dosanjh offered Mr. Roberts a drive home, which Mr. Roberts accepted. He told Ory he had a ride and Ory could leave without him. Mr. Roberts said that Ory then approached Mr. Roberts, who was continuing to dance with Ms.

Dosanjh, spoke into his ear while placing a handgun into Mr. Roberts' jacket pocket. Mr. Roberts stated he did not hear what Ory said, but he did feel something placed into his pocket. He testified that there was already a large folding knife in his pocket and the handgun was not a significant additional weight. [ 12 ] I refer to the facts in this paragraph as “explanation number 1” for the source of the handgun used by the accused. [ 13 ] Shortly thereafter, the group of persons, including Mr. Roberts, Tanya Dosanjh, Ory, Joel Morgan and Sasha Falk began to leave the after-hours.

An inebriated Joel Morgan began an argument with a woman outside the after-hours. Tanya Dosanjh joined in the argument on behalf of her brother. The argument continued for some minutes and showed no sign of stopping. A vehicle arrived. Kalin Willis and another man, described only as a large South Asian, exited the vehicle. At least Kalin Willis joined in the argument on behalf of the female. The argument continued without any physical involvement by any party. [ 14 ] Tanya Dosanjh, Ory and Mr.

Roberts had gone to the Dosanjh family van, but on seeing and hearing the continued argument, the three of them exited the van and headed towards the site of the argument. Ms. Dosanjh verbally intervened on behalf of her brother and attempted to drag him back to the van. She was partially successful, but approximately one-half of the distance to the van Joel Morgan

reversed direction, heading back to the scene of the argument. Again, while there was shouting and unpleasant epithets thrown back andforth by the participants in the argument, the only physical interaction or touching was a mutual push between Joel Morgan and KalinWillis. There was no punching or other blows struck; it was “just noise” which Mr. Jemmott was concerned would result in a disturbedneighbour calling the police. Suddenly, Mr. Roberts pulled out a Glock .40 calibre handgun and held it in the direction of Mr. Willis. The gun was discharged seconds later, and Mr.

Willis received a serious tearing injury to his ear caused by the discharge of the handgun. [15] I have used neutral language in describing this event because of the conflicting versions of testimony, particularly by the accused,which I will discuss in the following paragraphs. TREATMENT OF THE EVIDENCE OF THE ACCUSED [16] This case turns largely on credibility and on the application of the presumption of innocence enshrined in s. 11(

d) of the Charterof Rights and Freedoms. This

section requires that no accused may be convicted unless all of the elements of the offence are provenbeyond a reasonable doubt. It places the burden of proof on the Crown throughout. The accused need not prove either the existence orthe non-existence of a fact essential to guilt. A criminal trial is not a credibility contest; the test is whether, on the totality of theevidence viewed as a whole, the Crown has proven the offence charged beyond a reasonable doubt. [17] As the accused gave evidence in this case, the instructions contained in R. v. W.(D), (SCC), [1991] 1 SCR 742,p. 757, and R. v.

H.C.W. (1991), 68 CCC (3d) 145 will be considered. Those instructions are as follows: 1. If I believe the evidence of the accused which raises a defence, I must acquit; 2. If I do not believe the testimony of the accused which raises a defence but I am left in doubt by it, I must acquit; 3. As noted in R. v. H.C.W., where I do not know whether to believe the accused or the complainant, I must acquit; 4.

Even if I am not left in doubt by the evidence of the accused I must ask myself whether, on the basis of the evidence I accept, I amconvinced beyond a reasonable doubt by that evidence of the accused's guilt. [18] The statement by Mr. Roberts given to the police was inconsistent with his testimony at trial. In the statement to Cst. Hall, theaccused stated that he bought the handgun, that is the Glock .40 calibre, for $1,200 and still owed $300 of the purchase price. He toldCst. Hall he bought the gun in Surrey because of concerns over being assaulted and kidnapped with his brother in the place they live.

Hecalled it "a fearful place". The foregoing is “explanation number 2” for the source of the handgun used by the accused. [19] Explanation number 1, as above, was that Mr. Roberts told the story about his friend, Ory Crom, slipping a loaded gun into thepocket of his heavy jacket while Mr. Roberts was dancing with Tanya Dosanjh. These explanations are in direct conflict one with theother. [20] In Exhibit 18, that is the statement to Cst. Hall, the accused said the discharge of the firearm was an accident, but the dischargeoccurred in circumstances where Mr.

Willis was "trying to rush" the accused, but he did not remember, that is, the accused did notremember thereafter what happened. That is Exhibit 18, page 14, line 13. [21] On the next page of the statement, Mr. Roberts stated that the gun was strictly for protection; he did not plan on shooting anyonewith it. In the statement at page 15, line 3, the accused stated: I just planned on having the gun in my house for safety, but unfortunately tonight we went to the "after-hours" and it's like, younever know what you run into there. Q Yeah? And that's why you brought it with you? A Yeah. It's, like, I made a mistake.

Later in the statement the accused stated he was pushing Kalin Willis away and Kalin Willis was trying to grab him when the accusedtried to hit Kalin Willis and the gun went off. [22] In the statement, Exhibit 18, Mr. Roberts also told Cst. Hall that when his friends left the after-hours shortly before Roberts leftwith his friends, the friends said, "You know, Shawn, you really want to take that thing home." The only inference that can reasonablybe drawn from the context is that the "thing" referred to was the handgun.

In the statement when asked what model the Glock handgunwas, the accused had responded that the gun was a .40 calibre Glock. [23] When he testified at trial, the accused insisted that no one knew he had the gun except Ory. During cross-examination, however,Mr. Roberts testified that he had, before drawing or discharging the firearm, told Joel Morgan that he had a handgun. This statement wasinconsistent with his evidence earlier in the trial, but was also not put to Mr. Morgan when he was in the witness box. [24] Ms.

Dosanjh had consumed three or four drinks before she arrived at the after-hours with her friend Sasha. Ms. Dosanjhconsumed at least seven drinks of hard alcohol at the after-hours. She believed she arrived there at about 2:30 a.m. when the club waspacked. She does not remember dancing with the accused or seeing any firearm either inside or outside of the after-hours. She does nothave any evidence to support the presence of Ory Crom in the after-hours, or near the accused for that matter. She did not recall dancingwith the accused.

She heard a gun discharge outside the after-hours as she walked away from the scene where her brother and Mr. Williswere arguing. She did not see Kalin Willis attack or preparing to attack anyone. [25] The testimony of Ms. Dosanjh does not support any aspect of the testimony of the accused. [26] Joel Morgan, another witness called by the defence, is the brother of Tanya Dosanjh and had known the accused for about threeyears. These two men have musical interests in common. Prior to attending the after-hours, Joel Morgan had consumed half of a 26-

ounce bottle of vodka and a few beers. He arrived at the after-hours between 2:45 a.m. and 3:00 a.m. Once there, he testified he had eight drinks of hard liquor before the incident of the discharge of the firearm; two hours after his arrival at the after-hours. [ 27 ] He testified that he was so highly impaired by alcohol that he was staggering and unreasonably loud. As he was leaving the after-hours he saw a woman whom he did not trust, and an argument began between the woman and Joel Morgan. His memory of the events that morning was poor by his own admission.

His evidence at its highest and best was that while he was in the argument with the woman, the argument shifted to an argument with Kalin Willis, once he arrived at the scene in his car. Mr. Morgan testified that Willis was also drunk and was also loud. Morgan testified that there was one mutual push between them. Joel Morgan testified that no other physical altercation would have proceeded because Joel Morgan and Kalin Willis were "family". [ 28 ] Kalin Willis was not a danger to or for Joel Morgan. Mr. Morgan was more worried about the potentially assaultive behaviour from the East Asian man with Mr. Willis.

Mr. Morgan testified that any potential advances from this man were avoided by simply stepping back from the man. Joel Morgan testified that Kalin Willis is less than five feet tall and Shawn Roberts was over six feet tall and physically superior to Mr. Willis. Joel Morgan did not see any approach by Kalin Willis towards Mr. Roberts. Joel Morgan did not see a gun in the possession of Mr. Roberts; in fact, when asked to draw a diagram of the persons engaged in the argument between himself and Kalin Willis, Joel Morgan did not include Mr.

Willis in the diagram. [ 29 ] The weight which might be accorded to the testimony of Joel Morgan, reduced as it was by too much alcohol intake, was in no way supportive of the evidence of Mr. Roberts. This witness was also not asked if he was told by the accused that the accused had a handgun. [ 30 ] The testimony given by the accused, and by Eon Jemmott, was in material conflict. The alcohol consumption of these witnesses is of assistance in assessing the weight to be given to their testimony. Mr.

Roberts has maintained throughout his evidence that he was intoxicated, and high from taking an ecstasy pill before he went to the after-hours. He also testified that he drank several vodkas in the approximate 45 minutes he was in the after-hours. He claimed he was still intoxicated and high when he gave the statement to Cst. Hall some 12 hours after the discharge of the handgun. [ 31 ] In the statement to police, Mr. Roberts stated he had consumed a 40-ounce bottle of vodka prior to attending the after-hours. Mr. Jemmott had nothing alcoholic to drink before he arrived at the after-hours.

He drank two large Grand Marnier drinks between 3:30 and 5:00 a.m. Mr. Jemmott, a tall, heavyset individual, was in no way impaired by that amount of alcohol consumed while he was at the after-hours. [ 32 ] Two versions of the circumstances of the discharge of the gun by the accused are in direct conflict. As noted above, two versions were given by the accused; one in the statement he gave to Cst.

Hall in Exhibit 18, and a second inconsistent version in his testimony before this court. [ 33 ] The third description of the discharge of the firearm inconsistent with the testimony of the accused was given by Eon Jemmott. The essential elements of that conflict are described next. [ 34 ] Mr. Jemmott gave testimony that Mr. Roberts produced a handgun, held the handgun in front of the face of Mr. Willis while making threatening comments when the handgun was fired by the accused.

The accused testified that he struck the victim on the side of the head or face while holding the handgun and the handgun discharged when that blow was delivered by the accused to the head of the victim. Curiously, the accused also testified that he was very concerned if he got into a physical confrontation with Mr. Willis while the handgun was in his pocket that there might be an accident. [ 35 ] Given the insobriety of Mr. Roberts taken against the relative sobriety of Eon Jemmott and the independence of Mr. Jemmott as a witness, I accept the evidence of Mr. Jemmott and reject the evidence of Mr.

Roberts with respect to the position of the handgun when it was discharged. I also find that Mr. Roberts had brought the handgun with him to the after-hours. I reject the testimony of Mr. Roberts that the handgun was given to him by Ory Crom at the after-hours. [ 36 ] I must note that counsel for the accused advised the court that Ory Crom was expected to appear as a witness. The court agreed to adjourn the case to allow counsel an opportunity to contact Ory Crom to arrange for his attendance as a witness. Crown counsel offered to arrange to have a subpoena served that afternoon on Mr. Crom.

That offer was declined by Mr. Roberts, and Mr. Crom did not testify. [ 37 ] I find as a fact that the handgun was in the possession of the accused prior to attending at the after-hours, that he was well aware of the aspects of the firearm and that it was fully loaded. I find as a fact that Mr. Roberts was pointing the handgun at the head of Kalin Willis when the handgun was discharged, injuring the ear of Mr. Willis. Mr. Willis fell to the ground following the discharge of the handgun. The injury to his ear required medical treatment to close a significant wound there. [ 38 ] Mr.

Roberts and five other persons, three males and two females, immediately left the location in a Dodge Caravan motor vehicle without offering any assistance to Mr. Willis. Mr. Jemmott was one of the males who left the location in that vehicle. Neither the accused nor any of the others who left the location with him made any inquiry as to the medical condition of Kalin Willis prior to leaving the location. [ 39 ] When the police arrived at the location they observed several young adults milling about. One of these young adults was Kalin Willis who was bleeding from a wound to his ear but was otherwise unharmed. Mr.

Willis was not cooperative with the police and refused to provide a statement. Police located a fresh shell casing and some small deposits of blood identified near the location. [ 40 ] The police were told at the location that immediately after the shooting, four black males and two females left the location in a dark blue Dodge Caravan motor vehicle. Police vehicles searched the area and about five minutes later located the dark blue Dodge Caravan motor vehicle approximately 15 blocks north of the location. Four male persons, including the accused and Mr.

Jemmott, as well as two females, were inside the Caravan when it was stopped by police officers. All of those persons were advised they were detained for the purposes of an investigation into the shooting of Kalin Willis, and all were provided prompt and complete advice of their

rights under s. 10(

a) and 10(

b) of the Charter of Rights and Freedoms. A search of the vehicle was conducted to attempt to locate thefirearm due to the risks that a handgun presents in the community. At approximately 5:25 a.m. Cpl. Baker of the RCMP located thefirearm, a Glock Model 27 .40 calibre pistol, inside the centre console of the vehicle. SUBMISSIONS BY COUNSEL IN THE COUNTS ON THE INFORMATION [41] Crown counsel submitted that each of the counts in the Information had been proven beyond a reasonable doubt with theexception of Count 7 which the court may find proven in the circumstances of the case.

Crown counsel, as a minister of justice, quiteproperly expressed a concern that Count 7 was not supported by direct evidence of planning or malice which one might find to stronglysupport a conviction on that count. As noted above, guilt was conceded or admitted on Counts 2, 3, 4, 5 and 9 which I will address later. [42] On Count 1, counsel for the accused, in a brief submission, argued that on the evidence of the accused he did not possess ahandgun for an unlawful purpose.

I have rejected the evidence of the accused as to the source or possession of the handgun; he hadbought a handgun and took that gun with him to the after-hours. He knew he had a loaded handgun in the pocket of his jacket. Removing that handgun and pointing it towards the head of Kalin Willis is sufficient for this court to find that the Crown has proven theelements of Count 1 beyond a reasonable doubt. I find the accused guilty on Count 1. [43] On Count 6, counsel argued that based on the testimony of the accused, the handgun was not his and he did not know it wasloaded.

I have explained above my reasons for rejecting that evidence. I accept the contents of the statement given by the accused toCst. Hall that he purchased the firearm for the purposes of self-protection because of the "dangerous place" in which Mr. Roberts lived. [44] Defence counsel relied on the cases of R. v. Budden 2005 ABQC 757, and R. v. Hurley October 31st, 2006, docket numberC44785.

In Budden, a handgun was found in a bag in a motor vehicle driven by the accused, and the court concluded that based on alack of evidence about the handgun there was a reasonable doubt whether the accused knew the gun was loaded. [45] The further case was the Hurley decision, a case in the Ontario Court of Appeal where a conviction was set aside on the basisthat there was no evidence that the accused knew the gun was loaded, according to this testimony.

The difficulty there was the trialjudge had failed to avert to that testimony and therefore the conviction was set aside. [46] Both of these cases are distinguishable because I have found that the accused knew he was carrying a loaded handgun when heentered the after-hours club. Based on the evidence and the findings that I have made as a totality, and the careful submissions ofcounsel and the cases cited therein which I have reviewed with care, I find that the Crown has proven the elements of Count 6 beyond areasonable doubt. Mr. Roberts, I find you guilty on Count 6. [47] Count 7 presents different issues.

Apart from the accused being in possession of a loaded handgun, there is no direct evidence, infact, no evidence at all that the accused had any particular foreknowledge that he would encounter Mr. Willis at the after-hours, or thathe intended for any purpose to encounter Mr. Willis. The evidence concerning the purpose for the discharge of the firearm is notcompletely clear. In respect to Count 7, I have a reasonable doubt as to whether Mr. Roberts intended to discharge the handgun. Thatdoubt inures to the benefit of Mr. Roberts; I find he is not guilty of Count 7. [48] Count 8 alleges that Mr.

Roberts used a firearm in committing the indictable offence of assault. His answer is that he acted inself defence when he struck Mr. Willis in the side of the head with the handgun which he asserts was accidentally discharged. Mr.Roberts asserted that Mr. Willis was coming at him, or rushing him, and he pushed Willis away. No witness, apart from Mr. Roberts,agrees with this assertion. No witness supports any physical contact occurred between Mr. Roberts and Kalin Willis before the gun wasfired. I do not accept the evidence of Mr. Roberts that he acted in self defence. [49] Mr.

Bonfield attempted to support his client's position by describing the injury to Mr. Willis to create a scenario explaining thepositions of the parties at the time of the discharge of the gun. This attempt was not helpful because of the immense number of variablesin the physical positions of parties and their movements, one in relation to the other. A medical expert with very clear facts would berequired to present a helpful analysis to this court. Defence counsel relied upon R. v. Kandola (BC CA), 1993 80 CCC(3d), 481, and R. v. Scorcia 2011 ONCA 17, and R. v.

Veale 2000 BCCA 322, all of which I have considered with care. [50] There was no evidence before this court that beyond a shouting match, with absolutely minimal physical contact between Mr.Willis and Mr. Morgan, that there was a justification for drawing a firearm or using a firearm as occurred in this case. Each of theforegoing cases is distinguishable on its facts, but on the expressed law therein would not support the actions of Mr. Roberts producing ahandgun for a defensive purpose in the circumstances and the facts of this case. Mr.

Willis, I find as a fact, made absolutely no physicalapproach nor threat to Mr. Roberts. Based on that finding, there is no basis for the defence of self-defence to be advanced on behalf ofMr. Roberts. (R. v. Ivanic 2010 BCCA 598) [51] That said, based on the evidence, and the findings I have made, as a totality and the careful submissions of counsel and the casescited, which I have reviewed with care, I find the Crown has proven the elements of Count 8 beyond a reasonable doubt. Mr.

Roberts, Ifind you guilty on Count 8. [52] The findings of fact that support a conviction on Count 8 also support a conviction on Count 10.

SUMMARY AND CONCLUSION [53] Based on the admissions made by the accused and the findings which I have made above, I am satisfied that the Crown hasproven beyond a reasonable doubt the guilt of the accused on Counts 1, 2, 3, 4, 5, 6, 8, 9 and 10 on the Indictment herein. As notedabove, I acquit the accused on Count 7. (REASONS FOR JUDGMENT CONCLUDED)