R. v. J.S.W. Date:, 2017 BCPC 47

Citation: R. v. J.S.W. Date: 20170220 2017 BCPC 47 File No: 19830-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Youth Criminal Justice Act) REGINA v. J.S.W. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for the Crown: P. Bhatti Counsel for the Defendant: C. Muldoon Place of Hearing: Surrey , B.C. Date of Hearing: February 6, 2017 Date of Judgment: February 20, 2017

INTRODUCTION [1] J.S.W. (“Mr. W.”) is a young person within the meaning of the Youth Criminal Justice Act and is charged that:

(1) He did, in committing an assault upon G.S.B., use a weapon, to wit, a pellet gun, contrary to

Section 267(

a) of the Criminal Code;

(2) He did carry, or have in his possession a weapon, a pellet gun, for a purpose dangerous to the public peace or for the purpose ofcommitting an offence, contrary to Section 88(1) of the Criminal Code;

(3) He did commit mischief by damaging a door, a wall and/or a window, the property of G.S.B., contrary to s. 430(4) of theCriminal Code. [2] The allegations as presented through G.S.B. (“Mr. B.”) is that, there had been an ongoing dispute between two groups of youngmen, and that further to that dispute, Mr. W. and his friend, J.S.S. (“Mr. S.”), came to the door of his home. When Mr. B. answered thedoor, after some angry words, a brief physical altercation took place between Mr. B. and Mr. W., and to a lesser extent Mr. S. [3] Mr. B. says that Mr. W. then pulled out a gun and pointed it at him.

This was also supported by Mr. B.’s younger sister,G.K.B., who says she saw that from the inside stairs. Mr. B. quickly closed the door, but then some sounds were heard outside and theglass window beside the front door shattered. According to both Mr. B. and his sister, later observations of the front door and panellingon the house revealed small holes or indentations on four other locations. The police attended later and took photographs of this apparentdamage, which were entered as exhibits. [4] Mr. B., along with his younger sister, says he believed the gun to be “real”. Mr.

B. described this as the kind of gun a policeofficer might have. Neither Mr. B. nor his sister has any experience with pellet guns. No gun was ever recovered and no evidence waspresented to support the allegation that this was indeed a “pellet gun”. The Crown did not apply to amend the information so as tocomply with the evidence. [5] Mr. W., supported by Mr. S., offered an entirely different version of the events that took place that day, including a denial ofthe presence of a gun of any kind.

Those contrasting versions would otherwise require me to make an assessment of credibility. [6] However, the more immediate issue is whether the Crown, having particularized the information to read the weapon to be a“pellet gun”, is required to prove that.

LEGAL PRINCIPLES [7] Section 581(3) of the Criminal Code states as follows: A count shall contain sufficient detail of the circumstances of the alleged offence to give the accused reasonable information withrespect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence orinsufficiency of details does not vitiate the count. [8] As confirmed by the Supreme Court of Canada (“SCC”) in R. v Saunders, (SCC), [1990] 1 S.C.R. 1020(“Saunders”), the Crown may properly decline to give particulars where they do not have sufficient evidence, so long as the accused isable to identify the transaction.

However, once the Crown has particularized the charge, they must prove the offence as particularizedbeyond a reasonable doubt. If the particular is not essential to constitute the offence, it is considered “surplusage” and need not beproved as long as the accused is not prejudiced in their defence (R. v. Cote, (SCC), [1986] 1 S.C.R 2). [9] The issue in this case was addressed directly by the B.C. Court of Appeal (“BCCA”) in 2008 in R. v. Katsiris, 2008 BCCA351(“Katsiris”). In that case, the allegation was that the accused had assaulted the victim in a bar with what was believed to be a piece ofbroken glass.

She was charged that, in committing an assault, she did “use a weapon, to wit, broken glass”, contrary to

Section 267(

a) ofthe Criminal Code. She was also charged with aggravated assault, but the charge did not specify the broken glass. When the evidencewas presented, the video from the bar showed an assault by another woman on the victim, as well as the accused.

The accused was seenwith something in her hand when she assaulted the victim, but the video failed to clearly show that the accused assaulted the victim withbroken glass, nor was it clear how the victim’s injuries were caused. [10] The BCCA, considering the SCC decision in Saunders, rejected the Crown’s argument that the particularization of “brokenglass” was mere surplusage and maintained the acquittal entered at trial. In Katsiris, Donald, J.A., says as follows: …the Crown faces an insurmountable barrier in having failed to prove a material particular beyond a reasonable doubt.

As mentioned,the judge could not determine what the respondent held in her hand while striking the victim. Count 1 particularized the weapon asbroken glass. The Crown did not move at trial to amend the indictment to conform with the evidence. [11] In Katsiris, the Crown’s appeal of the aggravated assault acquittal was set aside and substituted with a conviction on the lesserincluded offence of assault simpliciter, but it is important to note that the aggravated assault count did not specify the use of broken glass.

ANALYSIS [12] It would appear that the basis for the decision to allege and then particularize the pellet gun arose from the damage to the frontof the house, including the window. There was reference in the evidence to “pellets”, which I can infer are the projectiles that comefrom a pellet gun. However, no description of those pellets was ever given, nor any evidence, expert or otherwise, to the expected soundthe pellet gun might make, or damage these pellets might cause. Indeed, I was only told that no pellets were located, despite efforts byboth Mr. B. and the police officer.

[ 13 ] I cannot simply take judicial notice of the workings and possible damage that would be caused by a pellet gun, even if I had such knowledge. While I might have considered lay opinion evidence on the issue, the evidence from the Crown witnesses, including the police officer, did not provide the court with anything to lead to a conclusion that Mr. W. had a pellet gun. As stated, neither Mr. B., nor his sister, had any knowledge of pellet guns. The police officer, who was in training, also offered no evidence with respect to a knowledge of pellet guns. Finally, no evidence came from the defence witnesses, Mr.

W. or Mr.

S., in that they claimed to have no experience with, or knowledge of, pellet guns. [ 14 ] In the end, notwithstanding the fact that a threat of a gun of any type, including an imitation, lies at the heart of the offence and underscores its seriousness, I am bound by the reasoning of the BCCA in Katsiris to conclude that the Crown was required to prove beyond a reasonable doubt that the weapon was a pellet gun, and that they have failed to do so with respect to both Counts 1 and 2 in the Information. [ 15 ] If I am wrong, and the reference to “pellet” was mere surplusage, then I must still consider if that surplusage prejudiced the Defence.

As stated, the position of the Defence was that there was no gun of any type in the possession of Mr. W. However, the Defence also focused its questions and argument, in part, on the fact that no pellets were located and that the alleged damage could have been caused by something other than pellets from a pellet gun. Therefore, I conclude that the Defence would be prejudiced by the inclusion of “pellet”, even if that were found to be mere surplusage. [ 16 ] With respect to Count 3, although this is an allegation of mischief by causing damage to the front of Mr.

B.’s house without the particularization of a pellet gun, it is also the case that the door was closed and no one was observed to directly cause any damage. Since both Mr. W. and Mr. S. were alleged to be there, and the cause of the damage is unclear in any event, I am left with a reasonable doubt. CONCLUSION [ 17 ] The Crown has failed to prove their case beyond a reasonable doubt with respect to all three counts in the Information. Therefore I enter an acquittal on all three counts. The Honourable Judge D. Sudeyko Provincial Court of British Columbia