R v Spence, 2023 ABKB 239

Court of King’s Bench of Alberta Citation: R v Spence, 2023 ABKB 239 Date: 20230426 Docket: 201134442Q2 Registry: Wetaskiwin Between: His Majesty the King Crown - and - Brian Daniel Spence Accused _______________________________________________________ Reasons for Judgment of the Honourable Justice D. J. Kiss _______________________________________________________ A

summary of this decision was delivered orally, with written reasons to follow I. Introduction [ 1 ] On October 16, 2020, Mr. Spence is alleged to have shot the complainant, Mr. Graham, with a pellet gun while purchasing gas from the Bluffton City General Store. [ 2 ] Mr. Spence was initially charged with nine counts relating to the incident. However, at the close of the Crown’s case, the Crown conceded that it had not proven three of the counts and invited the Court to dismiss counts 6, 7, and 9.

Similarly, at the close of the case for the Defence, the Defence conceded that the evidence supported convictions being entered against Mr. Spence on count 4 - failing to comply with the curfew in Mr. Spence’s release order pursuant to s 145(5)(

a) of the Criminal Code and count 8 - operating a

motor vehicle while prohibited from doing so pursuant to s 320.18. [ 3 ] As a result, the four remaining charges on the Indictment against Mr.

Spence are: Count 1 – s 239(1)(a.1) – attempted murder by discharging a firearm; Count 2 – s 344(1)(a.1) – robbery with a firearm; Count 3 – s 244(1) – discharging a firearm with intent to wound, maim, or disfigure; and Count 5 – s 145(5)(a) – failing to comply with a condition of his release order—i.e., possession of a firearm. [ 4 ] On Count 1, the Crown submits that, although the evidence does not support a conviction of attempted murder, it does support a conviction on the lesser, included offence of aggravated assault.

On all other remaining counts, the Crown argues that the elements of each of the offences have been proven beyond a reasonable doubt and seeks to have convictions entered. The Defence argues that the Crown has not met its burden of proof with respect to any of the remaining charges and requests that they all be dismissed. [ 5 ] I heard this matter from December 14 to 16, 2022 and reserved my decision. Counsel both requested the opportunity to provide written submissions, which I received January 6, 2023 from Defence and January 20, 2023 from the Crown.

The written submissions from Defence raised some additional legal arguments that had not been argued at trial. So, I subsequently invited counsel to comment on certain provisions of the Sale of Goods Act , RSA 2000, c S-2 and related cases, and both Crown and Defence provided further written submissions. II. Evidence [ 6 ] The Crown called three witnesses. The first two were Julie-Ann Graham and her husband Christy Graham, who are the owners and operators of the Bluffton City General Store. The third witness was RCMP Constable Caleb Davisson, who was the first officer on scene after the incident.

The Defence called just one witness, the Accused. [ 7 ] In addition to the testimonial evidence, the Court was also provided with video footage from two cameras at the Bluffton City General Store that captured some of the interaction between the Accused and the Grahams on October 16, 2020. Two Agreed Statements of Facts were entered as Exhibits at trial. Crown and Defence also made several further admissions during the trial and in their written submissions. A. Agreed Statements of Facts [ 8 ] The following facts, which are relevant to the remaining charges, are admitted by the Accused: i.

The Accused admits the essential elements of jurisdiction, identity, and date for each of the offences. ii. The Accused admits that for the purposes of Counts 1, 2, and 3, the pellet gun the Accused admits to shooting Mr. Graham with on October 16, 2020 is a “firearm”. iii. Video surveillance showing the events on the morning of October 16, 2020 at the Bluffton City General Store was seized by the RCMP. The Accused admits the continuity of the video surveillance and that the video fairly and accurately captured the events the morning of October 16, 2020. iv.

The Accused admits that the medical records of Christy Graham from the Rimbey Hospital that were entered as an exhibit accurately describe the injuries suffered by Mr. Graham on October 16, 2020. v.

On October 16, 2020, the Accused was bound by a Release Order made by the Provincial Court of Alberta which contained the following terms: You are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance; You shall observe a curfew and remain in your approved residence between the hours of 10 pm - 7 am and shall not be outside your residence unless you have written permission from the court in advance; vi.

On October 16, 2020, the Accused was disqualified from driving by virtue of a conviction under section 253(1)(

a) entered on February 20, 2013. vii. On October 18, 2020, a 2017 silver 4 door Kia Rio License Plate BYC 3186 was impounded at the EPS impound car lot in Edmonton, Alberta. On that same date Sgt Losness had the vehicle towed to a secure indoor towing facility at LL towing facility. viii. On Oct 19, 2020, Sgt Losness attended LL towing facility to execute a search warrant on the vehicle. Sgt Losness searched the interior and exterior of the vehicle and found the following. a. The rear passenger side door window was broken out. There was a sheet covering the window area. b.

The rear passenger side interior door handle pocket had broken glass on it. On top of the broken glass was what appeared to Sgt Losness to be a .22 caliber long rifle bullet.

c. The rear passenger side interior door handle had what appeared to Sgt Losness to be a .22 caliber long rifle bullet. d. Under the driver’s seat, Sgt Losness located what appeared to be a .22 caliber long rifle bullet. The bullet was stuck to a ball of tape. e. There was an open water bottle which was half full in the center console. At the bottom of the water bottle there was what appeared to Sgt Losness to be a .22 caliber long rifle bullet. f. No firearms or spent shell casings were located. B. Evidence of Julie-Ann Graham [ 9 ] Ms. Graham testified that she and her husband, Mr.

Christy Graham, are the owners and operators of the Bluffton City General Store. They work there seven days a week, and the store sells a bit of everything, including gas, groceries, hunting and fishing supplies, and knick knacks. [ 10 ] According to Ms. Graham, the Bluffton City General Store is situated in the Town of Bluffton, Alberta. Range Road 30 runs north/south just to the east of the store, and 50 th Street runs immediately south of the store. There are two gas pumps situated to the west of the store.

There is a customer entrance on the west side of the store by the gas pumps and another on the south side. [ 11 ] On October 16, 2020, Ms. Graham and her husband arrived at the store at about 5:45 a.m. to open up. At about 6:05 a.m., a small gray car drove up to the gas pumps. Ms. Graham was not sure but thought it was a 2-door. She observed two people in the car. The till faces the west door, which has a window in it, and there are two more windows beside the door. [ 12 ] The driver of the car, the Accused, got out and came into the store through the west door. Ms.

Graham did not know the Accused and had never seen him before. He said he needed gas, but he did not know how much gas the car would take, as it was his girlfriend’s car, and they had just got back from Kelowna. Ms. Graham told Mr. Spence that if he left his keys and debit card, she would start the pump, and he could come back and pay after. Ms. Graham indicated the pumps did not have the “pay at the pump” option. [ 13 ] Mr. Spence left his debit card but asked Ms. Graham why he had to leave his keys. She told him it was so he wouldn’t drive off. Mr.

Spence went back out to the car, got the keys, and brought them back in. Ms. Graham then started the pump. Mr. Spence filled up his car with gas. Ms. Graham has a machine in the store that is tied into the pumps and which confirms the amount and volume of gas once the hose is hung back up. She could see that Mr. Spence filled up with $42.71 of gas. [ 14 ] Mr. Spence then came back into the store and stated that he needed some snacks. Ms. Graham showed him where they were. Mr. Spence selected some snacks and drinks and then asked if she sold cigarettes. Ms.

Graham got him three packs of cigarettes and then ran up the total. It was now just over $101 including the gas. Mr. Spence stated, “holy shit”, then “ok”. He put his debit card into the machine and input his PIN. He pulled out his card too quickly, before the transaction was completed. The transaction was cancelled. He put his card back in and repeated the procedure. This time the machine indicated to Ms. Graham that the card was “declined”. Ms. Graham explained that the debit machine Mr. Spence was using would also have shown “declined”. [ 15 ] Mr. Spence told Ms.

Graham that he was sorry, that he had a Mastercard in the car, and he would go and get it. Ms. Graham kept the keys and the groceries while he went back out to the car. Up to this point, Ms. Graham said she did not notice anything unusual about Mr. Spence’s demeanor—she described him as a “regular person”. [ 16 ] Ms. Graham observed Mr. Spence walk back out to the car, open the door, and rifle around before coming back. Mr. Spence came back in through the west door and started screaming at her. According to Ms. Graham, Mr. Spence did not come closer than 10 feet to the till. He did not have anything in his hand.

He asked her why she was being such a bitch first thing in the morning. He did not make any attempt to pay. [ 17 ] Ms. Graham described Mr. Spence as having switched from a “normal” customer to someone “out there”. She did not yell back. Instead, she told him she just wanted him to pay. She estimated their conversation lasted between one and one and a half minutes before Mr. Spence turned around and walked back out. [ 18 ] Ms. Graham then went and got her husband from the office. She told Mr. Graham he had to come out as something was not quite right. Both she and Mr. Graham went back behind the till.

She could see Mr. Spence in the car moving around. She could not see what he was doing. [ 19 ] Mr. Spence drove the car away from the pumps to the south, and Ms. Graham thought he was driving away without paying for the gas. Mr. Graham went out the south door of the store to see if he could catch the license plate of the vehicle as it drove away so they could call in a “gas and dash” to the police. Ms. Graham remained at the south door. [ 20 ] Ms. Graham observed Mr. Spence’s vehicle pull up right to the post on the east side of the south door, with the front of the vehicle facing the store.

She saw two people in the car. Mr. Graham walked out the south door, and, when he was about 4 feet away from the vehicle, Mr. Graham held up his hands and said, “what the fuck man”. It was dark and snowing, and all she could see was about a foot of a dark gun barrel pointed out the driver’s window at Mr. Graham. She could not see the rest of the gun. The driver, Mr. Spence, was holding it with his left hand on the barrel and his right hand further back. She heard Mr. Spence ask, “do you want to get shot?”. She saw Mr. Graham take a step back and turn to the right, and then she heard a “pop”. Mr.

Graham was shot within 5-10 seconds of her seeing the gun barrel. [ 21 ] Ms. Graham indicated there was less than 30 seconds from the time Mr. Graham went outside to when he was shot. She said there was no other conversation between Mr. Graham and Mr. Spence. When he was shot, Mr. Graham grabbed his shoulder. Mr. Spence put the gun on the dash, backed up, pulled onto 50 th Street south of the store, and drove away. At the intersection, the car turned

south onto Range Road 30. [ 22 ] Ms. Graham testified that she had experience with guns. She sells pellet guns and pellets at the store and has fired a .22 caliber rifle about 50 times in her life. She said that this gun made the same sound as the .22 caliber rifles she had shot before. [ 23 ] After Mr. Graham was shot, and Mr. Spence left, Mr. Graham came back into the store. Ms. Graham immediately called 911. Mr. Graham was holding his shoulder, and there was blood visible. They took off his shirt and jacket, and Ms.

Graham observed a one- centimeter hole in his shoulder at both the front and the back, and it was bleeding profusely. Shortly thereafter, the ambulance and then the RCMP showed up, and Mr. Graham was transported to the Rimbey hospital. C. Evidence of Christy Graham [ 24 ] Mr. Graham also testified for the Crown. According to his evidence, Mr. Graham is 60 years old. He recalled having arrived at the Bluffton City General Store to open up sometime around 5:30 a.m. As is his usual practice, he headed into the office to check emails. Mr. Spence was their first customer of the day. When he arrived, Ms.

Graham went to the till, and Mr. Graham remained in the office. He was not paying much attention until Ms. Graham came into the office and told him he had better come out as the customer was “sketchy” and something was “off”. Mr. Graham had not overheard any of the interactions between Mr. Spence and Ms. Graham. Ms. Graham filled him in on how Mr. Spence had come in to pay and his card had been declined. Ms. Graham told Mr. Graham that Mr. Spence had gone out to get another card and then came back and yelled at her. [ 25 ] Mr. Graham went behind the till with Ms. Graham to “back her up” in case Mr.

Spence became more of a problem. He recalled that the groceries were still there. Mr. Graham observed a newer car, light coloured, at the pumps. He could see Mr. Spence in the car fidgeting around. About 15-20 seconds after he got to the till, the car started to drive off. The keys and Mr. Spence’s card were still on the counter. [ 26 ] Mr. Graham initially thought Mr. Spence was bolting, but, when he walked out the south door, the car had driven around to the front and was pulled in just to the right (west) of the south door. The passenger side of the vehicle was closest to Mr.

Graham as he came out the south door. Since the car had pulled in, Mr. Graham assumed that Mr. Spence was planning to come in again and pay. Mr. Graham noted that it is not unusual for customers to drive around from the pumps and park at the front of the store before coming in to pay. [ 27 ] Mr. Graham says he then pulled out a cigarette. He thought he lit it. Mr. Spence hollered at him. He thought Mr. Spence said, “do you want a shot?”. Mr. Graham responded, “no”. He thought maybe Mr. Spence was drinking and driving, because he saw him fidgeting under the dash. [ 28 ] Mr. Spence hollered again. Mr.

Graham said, “no, I’m good”. Mr. Graham walked around the car to the driver’s side and said, “pardon me”. Mr. Spence said, “do you want me to shoot you”. Mr. Graham said, “no”. Mr. Spence stuck something out of the window. Mr. Graham was about four to five feet from the vehicle when he saw something come out of the window. He wasn’t sure but thought about six inches stuck out of the window. It was pointed at him. [ 29 ] Mr. Graham didn’t think it was a gun. It was dark in colour, and he thought it was wrapped in something, maybe in a black case, like a pool cue case.

He thought he saw a round cap, but it all happened so fast. He testified that he has handled guns all his life and didn’t see any of the typical components—i.e., barrel, stock, firing pin. [ 30 ] When asked if he tried to reach out and grab whatever was pointed out the window, Mr. Graham stated that he didn’t believe so. It crossed his mind, but he was still five to six feet away, and, at the time, he didn’t even think it was a real gun. [ 31 ] According to Mr. Graham, Mr. Spence shot Mr. Graham about two seconds after asking him the third time. There was a loud bang. Mr.

Graham said he felt like he had been punched. Then, Mr. Spence asked Mr. Graham, “do you want another one?”, and Mr. Graham told him, “no”. Mr. Graham started to back away and told Mr. Spence to “fuck off and get the hell out of here”. He started to go back to the store as Ms. Graham was by the door, and he wanted to get her out of harm’s way. Mr. Spence then nonchalantly put the gun on the dash, backed out, and drove away east before turning south on the paved road. [ 32 ] The entire interaction outside took between 20-25 seconds. Mr. Graham was asked whether he had threatened Mr.

Spence at any time while outside the store or if he had raised his hands and stated “what the fuck man”, and his response was “I don’t believe I did”. When asked if he had assaulted Mr. Spence, Mr. Graham stated “no”. [ 33 ] Mr. Graham said it took him a minute or so to realize he had been shot. He was in shock, and then the pain set in. He told Ms. Graham to call the police and an ambulance. From that point, he does not remember much of what happened.

He could not recall whether the police or ambulance arrived first, he did not recall if he had x-rays at the hospital, he did not recall having photos of his injuries taken at the hospital, and he could not recall if Ms. Graham drove him back from the hospital. D. Evidence of Constable Caleb Davisson [ 34 ] RCMP Cst. Davisson also testified briefly. On October 16, 2020, he was employed as a general duty RCMP officer working out of the Rimbey detachment. Bluffton falls within that jurisdiction, as it is about a 10-minute drive from Rimbey. [ 35 ] On October 16, 2020, Cst. Davisson was at home but on call.

He received a call at approximately 6:25 a.m. advising that there had been a robbery at the Bluffton City General Store and that someone had been shot. [ 36 ] Cst. Davisson was the first officer to arrive at the scene at 6:45 a.m. The ambulance had already arrived, and Mr. Graham was lying on a stretcher just about to be loaded into the ambulance. Cst. Davisson spent only a brief period of time with Mr. Graham. He

noted that Mr. Graham appeared to be in shock and was having a difficult time remembering what had happened. [37] Cst. Davisson then spoke to Ms. Graham before reviewing the video surveillance. He sent a description of the vehicle, a 4-door silver car, to dispatch at 7:45 a.m. He was only able to see the vehicle from the driver’s side, so he could not give many details. [38] Cst. Davisson seized several items from the scene including an ATB pre-paid visa credit card with no name on it, a set of keyson a blue carabiner, and a grocery bag filled with items Ms. Graham had packed for the Accused.

He secured the scene for forensics andthe police dog. Cst. Davisson confirmed that no shell casings were located by either the police dog or the metal detector outside thestore. [39] Cst. Davisson took an audio recorded statement from Ms. Graham at 8:34 a.m. Ms. Graham told him she was “shaken up”,but he noted that Ms. Graham gave her statement in a clear, concise manner. [40] In cross-examination, Cst. Davisson was asked whether a .22 caliber firearm would normally eject a shell if fired. Heindicated that it would depend on the particular firearm. E. Evidence of Mr. Spence [41] Mr.

Spence is currently 30 years old. On October 16, 2020, he and his girlfriend, Clareen Nepoose, were travelling back fromKelowna. They had left Kelowna the previous day, on October 15, 2020, and had stopped in Banff that evening for drinks beforecontinuing on. [42] In the morning, they stopped at the Bluffton City General Store to get gas and to get Clareen some breakfast. At the time, Mr.Spence was under the influence of drugs (specifically methamphetamine) and alcohol. [43] When they arrived at the Bluffton City General Store, Mr. Spence grabbed his ATB debit card.

He tried the gas pump first tosee if he could pre-pay. When he could not, he walked into the store and asked the lady (Ms. Graham) to turn on the pumps. Ms. Grahamtold him he needed to pay first. Mr. Spence asked her how much gas the car would take, and Ms. Graham indicated she did not know.She asked him to leave his keys and card. [44] Mr. Spence went back out to the car to get his keys and brought them back in. He then went and pumped his gas. Mr. Spencecame back into the store and got some snacks. The total came to around $100, and, when he went to pay, he pulled out the card too fastthe first time.

The second time, it was declined. Mr. Spence then went out to the car again to get another card. He got his girlfriend’scard and went back into the store. He advised Ms. Graham it wasn’t his card but asked if he could try it. He tried another transaction, butit did not work. [45] According to Mr. Spence, there was no argument between himself and Ms. Graham. It was all “chill words” and noaggression. He denies asking Ms. Graham “why she was being a bitch”. They were just trying to solve the problem. [46] After the second card did not work, Mr. Spence went back out to the car again to get a Mastercard.

He also drove the cararound to park, since it was snowing, and he did not want to get wet. He pulled the car up to the front of the store, and he was going to goin and finish paying. A man came out of the store screaming and flailing his hands. He walked up to the car really fast. The man was astranger who looked and sounded aggressive. The man’s approach was a “fast walk”, an “angry walk”, and a “walk with a purpose”. Theman walked towards the driver’s side of the car. Mr. Spence rolled down the window. The man had his hands up, like he was talkingwith his hands and said, “what the fuck man” to Mr. Spence.

This man was Mr. Graham. [47] Mr. Spence got scared that Mr. Graham would hit him, and he reached for his pellet gun. It was in the back seat on the floorby the console. Mr. Spence indicated the pellet gun was about two years old, and he had purchased it from Princess Auto in Edmontonfor about $50.00. His girlfriend’s relatives had used it when they were in Kelowna. It was a pump barrel that did not require cartridgesand was manually loaded. It could be pre-loaded, so you didn’t know if it was loaded sometimes. Mr. Spence believed it to be a prettypowerful pellet gun. [48] Mr.

Spence put his pellet gun on the window to show it to Mr. Graham with the intention of having him back off and scaringhim, but Mr. Graham did not back off. Mr. Spence then opened his window and stuck the pellet gun out the window. It was sitting onthe door frame, pointed upwards. He was not really aiming at Mr. Graham. He asked Mr. Graham if he wanted to get shot. Mr. Grahamtried to reach for the pellet gun, so he pulled the pellet gun back, and the trigger went off. The entire incident between himself and Mr.Graham lasted only about 15 seconds. [49] Mr. Graham then told Mr.

Spence to “fuck off”, “leave”, “get out of here”. Mr. Spence was in shock, and he was scared, so hedrove off. Mr. Spence’s girlfriend dropped him off with relatives in Vegreville. He left the pellet gun there. III. Analysis [50] To obtain a conviction, the Crown must prove the guilt of Mr. Spence beyond a reasonable doubt. The burden remains on theCrown throughout the trial and never shifts to the Defence.

The Accused does not have to prove anything. [51] The Supreme Court of Canada in R v Lifchus, (SCC), [1997] 3 SCR 320 and R v Starr, 2000 SCC 40provided a workable explanation of what is meant by reasonable doubt. It means a doubt that: • is based upon reason and common sense; • is logically connected to the evidence, or the absence of evidence;

• cannot be based on sympathy or prejudice; • requires more than proof that the accused is probably guilty; • does not involve proof to an absolute certainty; and • does not require proof beyond any doubt, nor is it an imaginary or frivolous doubt. [52] In the following sections, I will address each of the four remaining charges separately: attempted murder by discharging afirearm; robbery with a firearm; discharging a firearm with intent to wound, main, or disfigure; and possession of a firearm in breach of acondition of a release order.

Count 1 – Attempted murder by discharging a firearm (s 239(1)(a.1)) [53] The Crown is no longer seeking a conviction for attempted murder but is seeking a conviction on the lesser, included offenceof aggravated assault under s 268. The Defence concedes that aggravated assault is a lesser, included offence to the one charged. A. Elements of the Offence – Aggravated Assault [54] For a conviction of aggravated assault, the Crown must prove that Mr. Spence intentionally applied force to Mr. Grahamwithout Mr. Graham’s consent and that Mr. Spence’s action wounded, maimed, disfigured, or endangered the life of Mr.

Graham: R vCuerrier (SCC), [1998] 2 SCR 371; R v Williams, 2003 SCC 41. [55] Simple assault becomes aggravated assault with proof of three additional elements: (1) the assault wounded, maimed,disfigured, or endangered the life of Mr. Graham; (2) the Accused’s conduct caused the wounding, maiming, disfigurement, orendangerment of life; and (3) a reasonable person would have realized that the Accused’s conduct would subject Mr.

Graham to the riskof bodily harm: Williams; R v Fontaine, 2011 BCCA 140. [56] To make a determination, it is necessary for me to assess the credibility and reliability of all of the witnesses. Credibilityrefers to the honesty of a witness while reliability refers to the accuracy of a witness’s evidence; in other words, the witness’s ability toobserve, remember, and recount the facts. The fact that a witness is credible does not necessarily make their testimony reliable.

Awitness must be both credible and reliable to be believed. [57] As the Accused elected to testify, I will conduct the assessment of his evidence in the manner directed by the Supreme Courtof Canada in R v W(D), (SCC), [1991] 1 SCR 742, as more fully explained in R v Achuil, 2019 ABCA 299 by theAlberta Court of Appeal. I am also mindful of the Court of Appeal’s direction in R v Ryon, 2019 ABCA 36 at para 24 that each trial isunique and that the W(

D) analysis is not a “one size fits all” solution. More specifically: • I must assess Mr. Spence’s evidence, along with any other evidence that can give rise to reasonable doubt, as I would assess thetestimony of any other witness. I may accept all, part, or none of Mr. Spence’s evidence. • When assessing Mr. Spence’s evidence, it is important that I not consider his evidence in isolation. Instead, I must consider hisevidence in the context of the whole of the evidence. • The burden of proof is on the Crown to establish Mr. Spence’s guilt beyond a reasonable doubt and that burden remains on theCrown so that Mr.

Spence is never required to prove his innocence or disprove any of the evidence led by the Crown. • In that context, if Mr. Spence’s evidence denying guilt (or any other exculpatory evidence to that effect) is believed, or even if notbelieved, if Mr. Spence’s evidence still leaves me with a reasonable doubt that it may be true, then I will be required to acquit. • While I must attempt to resolve conflicting evidence bearing on the guilt or innocence of Mr. Spence, a trial is not a credibilitycontest requiring me to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence, I am unable todecide whom to believe, then I must acquit. • Even if I completely reject Mr. Spence’s evidence, I may not simply assume the Crown’s version of events must be true. Rather, Imust carefully assess the evidence that I do believe and decide whether that evidence persuades me beyond a reasonable doubt that Mr.Spence is guilty. • The mere rejection of Mr. Spence’s evidence cannot be taken as proof of his guilt. [58] According to Mr. Spence, Mr. Graham came out of the store and approached the driver’s side of the car. Mr.

Spence rolleddown his car window. Mr. Graham appeared aggressive, had his hands up, and yelled “what the fuck man” at Mr. Spence. Mr. Spencereached for his pellet gun and put it out the window with the intent of scaring off Mr. Graham. He asked Mr. Graham “do you want toget shot?”. [59] Mr. Spence testified that he had the pellet gun pointed upwards and not directly at Mr. Graham. The evidence of both Mr.Graham and Ms. Graham differs on this point. Ms. Graham testified that she observed about a foot of the gun barrel pointed out the carwindow at Mr. Graham. Mr.

Graham testified that he was about four to five feet from the vehicle when Mr. Spence stuck something outthe window and pointed it at him. Mr. Spence asked Mr. Graham if he wanted him to shoot him. Mr. Graham responded “no”. Mr.Graham said he did not initially realize it was a gun and recalled it being wrapped in a black case, like a pool cue case. [60] Mr. Spence initially testified that Mr. Graham grabbed for the pellet gun, Mr. Spence tried to pull it back, and the trigger justwent off.

However, shortly thereafter he clarified that while he did not believe the gun was loaded, he wanted to hear the “click” sound

when he pulled the trigger as he thought that would scare off Mr. Graham. [ 61 ] Mr. Spence confirmed that he knew the pellet gun was “pretty powerful”, that he knew the gun could be preloaded, and that you might not be able to tell if it was loaded. Mr. Spence testified that he was aware of the damage that the pellets could cause and agreed that they could go through skin and muscle. Mr. Graham’s medical records confirm that he suffered a small puncture wound to his anterior right shoulder and a slightly larger puncture wound to his posterior right shoulder. [ 62 ] Mr.

Graham admitted that he experienced significant shock and trauma from this event. Constable Davisson, upon arriving at the scene, also observed that Mr. Graham appeared to be in shock and was having difficulty recalling what had taken place. I found Mr. Graham to be a very credible witness, although somewhat unreliable. In my view, Mr. Graham attempted to answer the questions asked of him honestly and when he could not recall or was unsure, admitted so. Mr. Graham also quite candidly stated that when his evidence differed from that of his wife, Ms.

Graham’s memory of the events was probably better than his because of the shock he experienced immediately after the event and the lingering effects he continues to experience to this day. [ 63 ] I also found Ms. Graham to be a very credible witness, and I did not have the same concerns with respect to the reliability of her evidence as I did with Mr. Graham. She recalled the events of that morning quite clearly and her version of events was, with the exception of one aspect, also consistent with the video footage. Constable Davisson also noted that Ms.

Graham had been able to give her statement to the police shortly after the incident in a clear, concise manner. [ 64 ] With respect to the interaction that took place between Ms. Graham and Mr. Spence the final time he entered the store, I accept Ms. Graham’s evidence that Mr. Spence became verbally abusive and that he did not attempt to pay for the gas again. Ms. Graham’s recollection was that Mr. Spence did not come closer than 10 feet from the till, and that evidence is contradicted by the video footage. The video confirms that Mr.

Spence came right up to the till again on this occasion. [ 65 ] However, I do not accept Mr. Spence’s evidence that he attempted to pay again. Ms. Graham noted that if Mr. Spence had tried to pay for the gas again, she would have had to move from the right side of the till to the left side where the machine was, as she did not have a tap function and had to punch in the entries manually. The video confirms that she remained at the right side of the till throughout this last interaction with Mr. Spence, and I accept her evidence on this point. [ 66 ] As well, the video shows that as soon as Mr.

Spence left the store for the final time, Ms. Graham left the till and headed towards the office. I accept Ms. Graham’s evidence that Mr. Spence’s change in behaviour had caused Ms. Graham to become concerned, and, as a result, she was looking to involve her husband. The minor inconsistency in her evidence about how close Mr. Spence came to the till does not in any way alter my overall assessment that Ms. Graham’s evidence was reliable and that she answered the questions honestly. [ 67 ] The Accused, on the other hand, was neither a credible nor a reliable witness. At the time of the incident, Mr.

Spence admits being under the influence of both alcohol and drugs. He stated that he “was not himself”. In cross-examination, he conceded that meth affects memory and can make a person unpredictable. [ 68 ] Mr. Spence’s evidence was at various times inconsistent and illogical. For example, although he initially indicated he pulled the trigger by accident, he later testified that he meant to pull the trigger so that Mr. Graham would hear the “click”. He testified that he did not know whether the gun was loaded but pulled the trigger thinking that the “click” of an empty gun would somehow scare Mr. Graham away.

This is illogical as the “click” would signal that the gun was not loaded and therefore, not a threat. Mr. Spence testified that he was scared when he saw Mr. Graham approaching his car but then chose to roll down his window. Again, this evidence defies common sense. I note as well that Mr. Spence has 2 prior convictions for fraud, in 2013 and again in 2021, which is right around the same time as this incident. The relevance of this is simply that fraud is a crime of dishonesty. [ 69 ] According to Mr. Spence, he asked Mr. Graham whether he wanted to get shot and testified that he intended to pull the trigger.

I do not accept Mr. Spence’s evidence that he asked Mr. Graham this question but then pointed the gun elsewhere. I accept the evidence of both Mr. Graham and Ms. Graham and find that the gun was pointed at Mr. Graham when Mr. Spence pulled the trigger. [ 70 ] I find that: • Mr. Spence intentionally applied force to Mr. Graham by pointing the gun at him and shooting it at him. • Mr. Spence applied this force without Mr. Graham’s consent. I accept that Mr. Spence asked Mr. Graham whether he wanted to get shot, and Mr. Graham responded “no”. • Mr. Spence’s actions wounded Mr. Graham.

The Defence specifically concedes that the Crown has proven the element of bodily harm (wounding) to the level of proof required by s 268. • Mr. Spence knew there was a risk that the gun was loaded and knew that the pellet gun was powerful enough to go through muscle and skin. He testified that he intended to pull the trigger and did so without checking whether the pellet gun was loaded. • A reasonable person would know that pulling the trigger of a loaded pellet gun would subject Mr.

Graham to the risk of serious bodily harm. [ 71 ] I am therefore satisfied that the elements of the offence of aggravated assault are established. However, the Accused submits that he should be found not guilty by virtue of s 34 of the Criminal Code , which is the provision that provides for the defence of a person, otherwise known as self-defence. B. Defence of Self-Defence [ 72 ]

Section 34 of the Criminal Code sets out the test for self-defence and provides as follows:

34(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances. [ 73 ] To be entitled to the defence of self-defence, the Accused must show there is an air of reality on each of the three parts of the test: R v Cinous, 2002 SCC 29 ; R v Effert , 2021 ABCA 388 .

This requires the Court to consider whether the evidence before it is such that, if believed, a properly instructed jury, acting reasonably, could base an acquittal on it: Cinous at para 47 . [ 74 ] If the Accused is able to establish an air of reality to all three requirements, then the Crown has the onus of disproving the defence, which it can do by disproving any one of the three elements beyond a reasonable doubt: R v Randhawa , 2019 BCCA 15 at para 34 ; R v McPhee , 2018 ONCA 1016 at para 15 ; R v Khill , 2021 SCC 37 at para 125 .

In the following sections, I will address each of the three elements of this defence. s 34(1)(a) – Did the Accused reasonably believe that force or threat of force was being used against him or someone else? [ 75 ] The first requirement for self-defence has both a subjective and an objective element. The Accused must subjectively believe that force or a threat of force was being used against him and that belief must be objectively reasonable: Khill at paras 52-53 .

This latter element requires the Court to assess the accused’s beliefs from the perspective of an ordinary person who shares the attributes, experiences, and circumstances of the accused, insofar as they are relevant: Khill at para 54 . The “ordinary person” should not share any characteristics of the accused that are contrary to public order.

Therefore, reasonableness must not be considered through the eyes of individuals who are overly fearful, intoxicated, abnormally vigilant, members of criminal subcultures or have personal prejudices or irrational fears towards an ethnic group or identifiable culture: Khill at para 56 . [ 76 ] The Accused testified that he observed Mr. Graham, whom he had never seen before, coming out of the store screaming and flailing his hands. Mr. Graham approached Mr. Spence’s vehicle with a “fast strut” or an “angry walk”. He seemed aggressive. Mr. Spence stated that he rolled down his window, and Mr.

Graham said, “what the fuck man”. Mr. Spence grabbed his pellet gun as he thought that would make Mr. Graham back off. Mr. Graham made a quick gesture towards his car, not really towards the car door, but more of a “grab gesture”. Mr. Spence stated that he was afraid he would get hit. He then explained that he was under the influence of meth at the time and stated, “you get panicked, you get scared of weird things”. He further noted that he probably should have asked Mr. Graham who he was and what was the problem, but he was scared. [ 77 ] For the reasons I have already provided, I find that Mr.

Spence’s evidence is, for the most part, highly unreliable. I accept Mr. Spence’s evidence that as Mr. Graham was approaching his vehicle, Mr. Spence rolled down the window, pointed the gun at Mr. Graham and stated, “do you want to get shot”. However, I do not accept Mr. Spence’s evidence that he was scared of Mr. Graham. If that had been the case, it would make absolutely no sense for Mr. Spence to roll down his window upon observing a large, unknown male walking quickly and aggressively towards his vehicle. I do not accept Mr. Spence’s evidence that he subjectively believed that Mr.

Graham was threatening the use of force against him. [ 78 ] However, even if I was prepared to accept that Mr. Spence subjectively believed that Mr. Graham was using force or threatening to use force against him, I find that this belief was not objectively reasonable. [ 79 ] Both Ms. Graham and Mr. Spence testified that Mr. Graham raised his arms and said something like “what the fuck” to Mr. Spence. Mr. Spence indicated that Mr. Graham was not wearing anything that would have connected him to the store (i.e., uniform or identification badge) and, from his position seated in the vehicle, Mr.

Graham appeared to be a very large man. However, Mr. Spence did not observe Mr. Graham to have any type of weapon or anything else in his hands as he approached, and Mr. Graham did not make any contact with either the Accused or his vehicle. Mr. Spence does not allege there were any verbal threats made by Mr. Graham other than him stating “what the fuck”. In my view, there was nothing in Mr. Graham’s conduct which would lead a reasonable person to believe that Mr. Graham was about to use force against Mr. Spence. [ 80 ] I find that the Crown has proven beyond a reasonable doubt that Mr.

Spence did not believe on reasonable grounds that a threat of force was being made against him. This first requirement is not met, and Mr. Spence’s self-defence argument fails. s 34(1)(b) – Was the subjective purpose of the Accused in committing the act to defend or protect himself or others? [ 81 ] Despite my finding that Mr. Spence’s self-defence argument fails, as it does not meet the first requirement, I will consider the remaining two requirements. For the second requirement, I must try to ascertain Mr.

Spence’s state of mind and determine whether he discharged the gun for the purpose of defending or protecting himself: Khill at para 59 . There must be no ulterior motive. [ 82 ] The Accused’s stated reason for discharging the gun was to scare Mr. Graham. Therefore, even if I accepted Mr. Spence’s evidence, which I do not, shooting Mr. Graham was an offensive, rather than a defensive act.

Therefore, I find that the second requirement for self-defence is not met. s 34(1)(c) – Was the act committed by the Accused objectively reasonable in the circumstances? [ 83 ] The inquiry under this final requirement is guided by s 34(2). In determining whether the act committed by the Accused is reasonable, the Court must consider the relevant circumstances of the Accused, the other parties, and the act itself. Section 34(2) sets out

a non-exhaustive list of factors the Court must consider insofar as they are relevant. The question is not the reasonableness of each factorindividually but the relevance of each factor to the ultimate question of whether the Accused’s act was reasonable in the circumstances. [84] In carrying out this analysis, the Court must assess and weigh the factors listed in s 34(2) and anything else that is relevant todetermine whether the act was reasonable. This is a global, holistic exercise, and no single factor is necessarily determinative of theoutcome: Khill at para 69.

The focus of the analysis is on what a reasonable person would have done in comparable circumstances: Khillat para 65. [85] I will address each of the factors listed in s 34(2). Subsection (a) – the nature of the force or threat [86] The Accused argues that being approached by a tall, large stranger, waving his arms and saying, “what the fuck man” isobjectively a moderate threat as there is a large “unknown factor”. [87] I disagree. Mr. Spence was in a vehicle. Mr. Graham was outside the vehicle, had no type of weapon visible, and did not makeany contact with either the Accused or his vehicle.

There was no force, and any threat of force would be at the low end of the scale. Subsection (b) – the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force [88] The Accused submits that the threat was imminent as Mr. Graham was approaching the vehicle rapidly and in an aggressivemanner. The Accused argues that the only other response available to him would have been for him to exit the vehicle and engage in afist fight. [89] I disagree. The Accused had a number of other responses available to him.

He could have remained in his vehicle with thewindow rolled up. He could have locked his car door. He could have driven a short distance away. The ability to retreat is a relevantconsideration when determining whether an Accused had no other option to preserve himself: R v Abdalla, 2006 BCCA 210 at para 24citing R v Proulx (1998), (BC CA), 127 CCC (3d) 511 (BCCA); see also Khill at paras 78, 82. [90] I find that a reasonable person in the Accused’s circumstances would have availed themselves of these other options beforeshooting a firearm at Mr. Graham through the car window.

Subsection (c) – the person’s role in the incident [91] A person’s role in the incident covers their role in the whole course of events leading up to the actual application of force and,specifically, what the person did to bring about the conflict or to avoid it: Khill at para 123. This includes, but is not limited to, anybehaviour that created, caused, or contributed to the confrontation.

The relevant conduct can be lawful or unlawful, provocative or non-provocative, and blameworthy or non-blameworthy, so long as it relates to whether the Accused’s act was reasonable in thecircumstances: Khill at para 124. [92] The Accused argues that, from the perspective of the Accused, he had done nothing wrong and was not acting in an aggressiveor threatening fashion. [93] However, by the time of the incident, the Accused had made several unsuccessful attempts to pay for the gas. The evidence ofMs.

Graham, which I accept, was that the Accused had also become quite aggressive and screamed at her the last time he had entered thestore, and this is why she asked for assistance from her husband, Mr. Graham. Further, the Accused had driven away from the gas pumpsand moved his vehicle to the south side of the store. I find that Mr. Spence ought to have expected to be asked questions about what hewas doing at this point. Subsection (d) – whether any party to the incident used or threatened to use a weapon [94] The Accused does not allege that Mr. Graham threatened or used a weapon. This factor is not relevant.

Subsection (e) – the size, age, gender, and physical capabilities of the parties to the incident [95] The Accused acknowledges that the size, gender, and physical capabilities of Mr. Graham and himself appear to be equal. Mr.Graham was considerably older than the Accused. Subsection (f) –the nature, duration, and history of any relationship between the parties to the incident, including any prior use or threat of force and thenature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident [96] There was no prior relationship between the Accused and Mr. Graham.

There was also no prior interaction or communicationbetween the Accused and Mr. Graham. These factors are not relevant. Subsection (g) – the nature and proportionality of the person’s response to the use or threat of force [97] The Accused argues that his intended response was just to scare Mr. Graham by shooting the firearm over his head, not tostrike and injure him, and that this response was proportionate to the threat of force perceived. [98] I disagree. The Accused admitted using this firearm to kill animals; he was aware of the firepower of the weapon; and he didnot know whether it was loaded.

He chose to use it in response to Mr. Graham raising his arms over his head and asking, “what the

fuck”. I am of the view that the Accused’s decision to point a firearm at Mr. Graham out the window and pull the trigger was completely disproportionate to any perceived threat. Subsection (h) – whether the act committed was in response to a use or threat of force that the person knew was lawful [ 99 ] This factor is not relevant. [ 100 ] After considering all of the factors listed under s 34(2), I conclude that none of them support a finding that Mr. Spence’s actions were reasonable in the circumstances. His response was simply not proportionate to the actions taken by Mr. Graham.

As a result, the Crown has disproven the third requirement for self defence beyond a reasonable doubt. [ 101 ] I therefore conclude that the Crown has proven beyond a reasonable doubt that Mr. Spence did not act in self-defence when he shot Mr. Graham with the pellet gun. Accordingly, Mr. Spence’s defence of self-defence fails. [ 102 ] On Count 1, I find Mr. Spence guilty of aggravated assault. Count 2 - Robbery with a firearm (s 344(1)(a.1)) [ 103 ]

Section 343 of the Criminal Code provides that everyone commits robbery who: (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person; (

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof. [ 104 ] The Defence argues that the actus reus for the offence of robbery has not been proven by the Crown. Specifically, the actus reus requires proof of stealing (s 343(a), (b), or (d)) or of an intention to steal (s 343(c)). Defence argues that the Accused and Ms. Graham entered into a civil law agreement to provide security for payment for the gas when the Accused provided Ms. Graham with a credit card and his car keys.

The Accused submits that ownership of the gas therefore passed to him when he pumped it into the tank in accordance with their security agreement. [ 105 ] The Crown disagrees and submits that a theft occurred because the Accused did not pay for the gas and the Accused did not have the right to the gas he put into his vehicle. The Crown argues there was an implicit contract between the Accused and Ms. Graham that the Accused would not leave without paying for the gas. The Crown suggests that Ms.

Graham kept the Accused’s keys and debit card as an anti-theft measure, not as security, as these items had no independent value to Ms. Graham. [ 106 ]

Section 2 of the Criminal Code defines “stealing” as committing theft. To commit theft, a person must take or convert to his use the property of someone else: s 322. For this reason, the law of theft, and, by extension, the law of robbery, is connected to the civil law that governs property rights. In the words of Winifred H. Holland, “[s]ince the basic purpose of the law of theft is to prevent harm to property interests, it is simply impossible to conceive of theft without addressing issues of civil law”: The Law of Theft and Related Offences (Scarborough, Ont: Thomson Canada, 1998) at 43.

To determine who owned the gas in Mr. Spence’s tank, it is therefore necessary to look to the civil law to characterize the transaction that took place between Ms. Graham and Mr. Spence. [ 107 ] A purchase of goods, like gas, is a fundamental example of a contract formed between two people in the course of their every day commercial transactions. Legally, the civil law allows for this type of contract to be entered into in relatively informal circumstances.

Specifically, under the Sale of Goods Act , RSA 2000, c S-2 , s 5, a contract for the sale of goods can be in writing, by word of mouth, or implied by the conduct of the parties. That Act defines “goods” to include all chattels personal other than things in action or money, so gasoline from a service station qualifies as “goods”: s 1(h). [ 108 ] The Sale of Goods Act also sets out rules for when the title of property in goods transfers from a buyer to a seller.

Under s 18, when there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer until the goods are ascertained. Under s 19, when there is a contract for the sale of ascertained goods, the property in those goods transfers to the buyer at such a time as was intended by the parties to the contract. Where the parties have not demonstrated a clear intention about when title passes, s 20 sets out the rules that apply. That

section provides, in part: 20(1) Unless a different intention appears, the rules set out in this

section are the rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.

(2) When there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment or the time of delivery, or both, be postponed. …

(6) When there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract either (

a) by the seller with the assent of the buyer, or

(

b) by the buyer with the assent of the seller, the property in the goods passes on that appropriation to the buyer.

(7) For the purpose of subsection (6), (

a) the assent may be expressed or implied and may be given either before or after the appropriation is made, and (

b) if pursuant to the contract the seller delivers the goods to the buyer or to a carrier or other bailee, whether named by the buyer ornot, for the purpose of transmission to the buyer and does not reserve the right to disposal, the seller is deemed to have unconditionallyappropriated the goods to the contract. [109] In this case, the goods were clearly not ascertained until Mr. Spence put the gas into the tank, since it was not possible todetermine which gas or how much gas he was going to buy until that point. So, under the Sale of Goods Act, title to the gas could nothave transferred to Mr.

Spence prior to the time when Mr. Spence pumped the gas into the tank: s 18. Past that, s 20(6) specifies that thetitle to unascertained goods sold by description passes when the goods are unconditionally appropriated to the contract by one of theparties with the consent of the other, unless the parties had a contrary intention. [110] Since this is a criminal trial, the onus is on the Crown to prove each of the elements of the offence, which means that the Crownmust prove beyond a reasonable doubt that title did not pass to Mr. Spence, either because he and Ms.

Graham agreed to something otherthan what is set out in the Sale of Goods Act or because the goods were never appropriated to the contract. On the evidence, I cannot findthat the Crown has met this onus. [111] In my view, there is no doubt that Mr. Spence and Ms. Graham entered into legal relations for Mr. Spence to purchase gas fromMs. Graham based on an oral agreement, as well as their conduct at the service station. Both Mr. Spence and Ms. Graham gave similarevidence about what happened when Mr. Spence first entered the store. Ms. Graham testified that Mr.

Spence said he needed gas, but hedidn’t know how much gas the car would take as it was his girlfriend’s car. In response, Ms. Graham told Mr. Spence that if he left hiskeys and debit card, she would start the pump, and he could come back and pay after. Ms. Graham confirmed the pumps did not have the“pay at the pump” option. According to Ms. Graham, Mr. Spence left his debit card but asked her why he had to leave his keys. She toldhim it was so he wouldn’t drive off. Mr. Spence went back out to the car, got the keys, and brought them back in. Ms. Graham thenstarted the pump. [112] Similarly, Mr.

Spence testified that when he first arrived at the pumps, he grabbed his debit card. He looked at the gas pumpfirst to see if he could pre-pay. When he could not, he walked into the store and asked Ms. Graham to turn on the pumps. Ms. Grahamtold him he needed to pay first. Mr. Spence asked her how much gas the car would take, and Ms. Graham indicated she did not know.She asked him to leave his keys and card. Mr. Spence went back out to the car to get his keys and brought them back in. He then wentand pumped his gas. [113] On this evidence, I have no doubt that Mr. Spence and Ms.

Graham entered into a purchase transaction for gasoline. However,during their transaction, Mr. Spence and Ms. Graham did not explicitly set out all of the terms of the agreement. Importantly, they didnot explicitly agree on when Mr. Spence would acquire ownership of the gas. [114] I cannot find that there is any evidence, direct or circumstantial, which would suggest that Ms. Graham and Mr. Spence evenconsidered the question of when title to the gas would pass to Mr. Spence. The Crown argues that the parties implicitly agreed that Mr.Spence would pay before he left.

However, this does not determine the issue of when title to the gas passed to Mr. Spence. Therefore, asthe Crown has not established beyond a reasonable doubt that the parties agreed to terms different than those specified in the Sale ofGoods Act, title to the gas passed to Mr. Spence when it was appropriated to the contract, per s 20(6). In my view, the fact that Mr.Spence testified that he still thought he had to pay for the gas does not change this result. There is no question that Mr.

Spence still oweda civil debt to the service station for the gas. [115] In coming to this conclusion, I reject Defence’s submission that Mr. Spence and Ms. Graham entered into a security agreementwhen Mr. Spence gave his keys and debit card to Ms. Graham to secure payment for the gas. This would mean that the parties intendedMs. Graham would be able to sell the keys and credit card to recover any money owing to her for the sale of the gas: see PersonalProperty Security Act, RSA 2000, c P-7, s 1(1)(tt).

The circumstances surrounding the transaction suggest instead that the partiesintended a bailment to secure payment. Ms. Graham took possession of the keys and debit card and was under no obligation to give themback to Mr. Spence until he paid for the gas: Barron’s Canadian Law Dictionary, 6th ed, sub verbo “bailment”. In either case, the legalcharacterization of what happened does not determine the point at which title to the gas passed. Put more clearly, the fact that Ms.Graham and Mr.

Spence came to an arrangement to ensure he would pay for the gas after he took possession of it does not legally decidewhen title to the gas transferred. [116] With respect to the issue of whether the goods were appropriated to the contract, the evidence of both Mr. Spence and Ms.Graham is that Mr. Spence put the gas into the tank with Ms. Graham’s consent. Under the Sale of Goods Act, title to the gas passed toMr. Spence at this point. I am therefore satisfied that, on a civil law analysis, title to the gas passed to Mr.

Spence at the point when itwas pumped into the gas tank. [117] However, the analysis does not end there. In R v Milne, (SCC), [1992] 1 SCR 697 [Milne], the Supreme Courtconsidered how the law of property applies to the law of theft and held that, in some cases, the intricacies of the civil law should not bestrictly applied in the criminal context. In that case, the accused was paid twice for the same work he had done: ibid at 4. When hereceived the second payment, he knew he had already been paid, and he used the money to write cheques from the company’s account tohimself personally: ibid at 4-5.

For doing so, he was charged with theft. [118] In the decision below, the Alberta Court of Appeal carried out a careful analysis of the civil interests of the respective partiesand found that the payment was voidable rather than void, because the mistake was not about the subject matter or the recipient of thetransfer: R v Milne, 1990 ABCA 323 at para 17. Following the principles of civil law, this meant that the property interest in the money

had transferred to the accused when the complainant made the second payment, and therefore he had not committed theft. [119] However, on appeal, the Supreme Court held that a civil law analysis should not completely govern the criminal law when itcomes to the actus reus of theft. The civil law of property that relies on whether a contract is void or voidable to decide if title transfers isfocussed on protecting innocent third parties who subsequently acquire the property: Milne at 12.

By contrast, the criminal law has nopower to bind the rights of third parties and, instead, is focused on the guilt or innocence of the accused: ibid. So, for the purposes of thecriminal law, the determination of whether property transferred should be made based on principles relating to the guilt of the accusedrather than the interests of third parties: ibid. In particular, to determine if the title to property transferred, the focus should be on theknowledge of the accused about whether the transfer was mistaken: ibid.

If the accused had this knowledge, then for criminal lawpurposes, the transaction is void and the property did not transfer to the accused: ibid at 14-15. [120] The holding in Milne has not been applied in a significant number of reported decisions. However, two decisions from theOntario Court of Appeal have set boundaries on the application of Milne to cases other than a mistaken transfer of property.

First, in R vSmith (1992), (ON CA), 77 CCC (3d) 182 (ONCA), aff’d (SCC), [1993] 3 SCR 635, the OntarioCourt of Appeal extended the holding in Milne from a mistaken transfer of property to a fraudulently induced transfer of property. In thatcase, the accused entered into an agreement to purchase coffee beans from the complainant: Smith at 187-88. According to the terms ofthe agreement, the accused would make a deposit, the complainant would ship the beans, and then the accused would make theremaining payment: ibid.

Following the terms of the agreement, the accused sent the complainant the deposit, and the complainantshipped the coffee beans. However, three weeks later, the cheque for the deposit was returned marked “account closed”, and the accusednever made the final payment: ibid at 188. The evidence showed that the accused had only opened that account a few days before, and itnever contained more than a nominal amount of money: ibid. [121] Relying on Milne, the Ontario Court of Appeal held that questions of civil law relating to the transfer of title in property have noapplication to the charge of theft: Smith at 188.

Instead, the only question is if the transferor has a right of recovery from the transferee.Put otherwise, the mens rea for theft by conversion is that the accused knew the transferor mistakenly transferred the property andretained it anyway: ibid at 189. In Smith, the accused knew that the transfer was induced by his own fraud, so the title to the property didnot transfer: at 190.

This effectively extended the holding in Milne to transfers induced by fraud in addition to mistaken transfers. [122] Subsequently, in R v Nelson (1997), (ON CA), 120 CCC (3d) 1 (ONCA), the Ontario Court of Appealconsidered a commercial transaction where the complainants hired the accused’s company to build a boat: at para 3. In exchange, thecomplainants gave the accused their old boat to sell: ibid at paras 4-5. However, since the old boat was worth more than the cost ofbuilding the new boat, the accused agreed to return the difference to the complainants after selling the old boat.

In the course of things,the accused sold the old boat, put the proceeds into a general bank account, and wrote the complainants a cheque for the difference: ibidat para 7. However, after that, the new boat was never built, and the business went bankrupt: ibid at paras 12-13.

The accused wascharged with theft by conversion for the value of the new boat for putting the proceeds from the sale of the old boat, less the differencepaid to the complainants, into the company’s general account. [123] In its decision, the Ontario Court of Appeal started out with a civil law analysis of the contract between the complainants andthe accused before looking to the principles set out in Smith and Milne: see Nelson at para 32.

In the result, the Court of Appealdistinguished both of those cases on the basis that there was no mistake behind the transaction and the accused had intended to carry outthe bargain when it was made, so the contract had not been induced by fraud: ibid at para 44. As a result, the civil law principlesgoverned, and the title to the money rested with the accused, because the contract did not create a property interest in favour of thecomplainants: ibid at para 35.

In coming to this conclusion, the Ontario Court of Appeal underscored that not every case where a contractfalls apart will cause the Court to decline to recognize a transfer of property for the purposes of the criminal law: ibid at para 45. [124] In this case, I agree with the analysis of the Ontario Court of Appeal in Nelson. I do not think there was any mistake involved inthe transaction between Ms. Graham and Mr. Spence. I also cannot find, beyond a reasonable doubt, that Mr. Spence had a fraudulentintention when he initially spoke to Ms. Graham about buying gas. The first time Mr.

Spence went into the store, he asked Ms. Grahamhow much gas she thought the vehicle would take. Ms. Graham could not give him an amount. However, in my view, the fact that Mr.Spence asked how much it was going to cost supports his claim that he intended to pay for the gas. Mr. Spence then left his debit cardwith Ms. Graham and went back to get car keys to also leave with her while he was gassing up. This also suggests to me that Mr. Spenceintended, at least initially, to pay for the gas. After gassing up, Mr.

Spence then tried to pay with the debit card before indicating hewould go out to the car again and get his girlfriend’s credit card to pay. The Crown has not established, beyond a reasonable doubt, thatMr. Spence induced Ms. Graham to enter into the contract to sell him gas though fraud. Accordingly, I find that the holding in Milne andSmith does not apply, and, instead, the civil law analysis of the property transfer governs. [125] The limited case law that considers the transfer of title at a gas station has come to the same conclusion.

In other words, it hasadopted the civil law analysis under the Sale of Goods Act and held that the property in gas transfers when it is put into a tank. In R vBadger (1982), (SK KB), 19 Sask R 316 (QB), the accused pulled up to the pump, and the attendant started to fill thetank before getting distracted with other customers. The accused honked his horn several times, but the attendant did not return to takehis payment, so the accused drove off.

The Court upheld the trial decision, which found the accused’s intention when he got the gas wasinnocent, so the property transferred when it was put into his tank. [126] In the subsequent case of R v Pratt (1983), (SK KB), 26 Sask R 268 (QB), the same Court came to theopposite conclusion and found the accused was guilty of theft of gas for filling up his tank and leaving without paying. However, in thatcase, the trial judge had found that the accused never intended to pay for the gas, so the case can be distinguished on the basis that theaccused did not have an innocent intention when he got the gas.

These cases predate the decisions in Milne, Smith, and Nelson; however,it is notable that they align in principle with those decisions. [127] This is also the approach that has been taken in the English case law, which has relied on the English Sale of Goods Act—onwhich the Alberta Sale of Goods Act is based—to find that the property in gas transfers when it has been put into the gas tank, absent afraudulent intention by the accused: R v Greenberg, [1972] Crim LR 331; Edwards v Ddin, [1976] 3 All ER 705.

Practically, thisapproach also recommends itself by recognizing that it would not be easy to remove the gas once it is in the tank, especially if it has

intermingled with other gas. [128] In conclusion, I find that the Crown has not met its onus of proving beyond a reasonable doubt that the property in the gas takenby Mr. Spence belonged to someone else. Instead, under the Sale of Goods Act, the title to the gas passed when Mr. Spence put it into thetank. Accordingly, the property he took was his own, and the actus reus of the offence of robbery is not made out. [129] On Count 2, I find the Accused not guilty of robbery. Count 3 - Discharge a firearm with intent to wound, maim, or disfigure (s 244(1)) [130] The Crown argues that if the evidence of Mr. and Ms.

Graham is believed, the Accused should be found guilty of this offence.However, even if the evidence of the Accused raises a reasonable doubt, the Crown submits that the Accused can still be convicted of thelesser, included offence of pointing a firearm without lawful excuse under s 87(1) of the Criminal Code: R v Colburne (1991), (QC CA), 66 CCC (3d) 235 (QCCA) at para 72. [131] The Defence argues that the Crown has failed to prove beyond a reasonable doubt that the Accused intended to wound Mr.Graham.

Further, the Accused submits that the defences of accident and mistake apply under the circumstances, triggered by a right toself-defence. [132] There is no dispute that the external circumstances of the charged offence have been met. The Accused concedes that the pelletgun he used to shoot Mr. Graham is a “firearm” for the purposes of this section. Further, the pellet gun was discharged by the Accusedand did wound Mr. Graham. [133] The only issue is whether the Crown has proven the mental element of the offence. The Crown must prove that the Accusedactually intended to wound Mr.

Graham: R v Foti, 2002 MBCA 122 at para 24. It is not sufficient to have an intention to scare, threaten,or frighten someone, nor is it sufficient to objectively foresee that there is a risk of harm: ibid. In determining whether the Accusedformed the requisite intention to wound, the Court can infer such intention from circumstantial evidence: ibid at para 25. In doing so, it isacceptable for the Court to consider that a person generally intends the natural consequences of his actions: ibid. [134] However, the evidence against the Accused must not only be consistent with the fact that he shot at Mr.

Graham with intent towound, it must be inconsistent with any other rational conclusion: ibid at para 26. If the evidence against Mr. Spence is equallyconsistent with the inference that he fired the shot, not at Mr. Graham, but at the ground or in the air in an effort to scare him, then Mr.Spence should get the benefit of the doubt: ibid. [135] Mr. Spence testified that Mr. Graham came out of the store screaming and flailing his hands. Mr. Graham walked up to the carreally fast. Mr. Spence had never seen Mr. Graham before, and he looked and sounded aggressive. Mr. Spence rolled down his window.Mr.

Graham had his hands up and said, “what the fuck man” to Mr. Spence. [136] Mr. Spence claims he got scared that Mr. Graham was going to hit him, so he reached for his pellet gun that was in the backseat on the floor by the console. Mr. Spence put his pellet gun on the window to show it to Mr. Graham with the intention of having himback off and scaring him. He claims the pellet gun was sitting on the door frame, pointed upwards and that he was not really pointing itat Mr. Graham. He asked Mr. Graham if he wanted to get shot and then Mr. Graham tried to reach for the pellet gun. Mr.

Spenceinitially testified that the pellet gun went off by accident when he pulled it back into the car when Mr. Graham grabbed for it. However,he later testified that he pulled the trigger, because he wanted to hear the click sound, but he did not think it was loaded. [137] Mr. Graham said that when he first went outside, he pulled out a cigarette. He thought he lit it. Mr. Spence hollered at him. Hethought Mr. Spence said, “do you want a shot?”. Mr. Graham responded, “no”. Mr. Spence hollered again. Mr. Graham said, “no, I’mgood”. Mr.

Graham said he then walked around the car to the driver’s side and said, “pardon me”. Mr. Spence said, “do you want me toshoot you”. Mr. Graham said, “no”. Mr. Spence stuck something out of the window. Mr. Graham was about four to five feet from thevehicle when he saw something come out of the window. He wasn’t sure but thought about six inches stuck out of the window. It waspointed at him. [138] According to Mr. Graham, Mr. Spence shot Mr. Graham about two seconds after asking him if he wanted to get shot the thirdtime. There was a loud bang. Mr. Graham said he felt like he had been punched. Then, Mr.

Spence asked Mr. Graham, “do you wantanother one?”, and Mr. Graham told him, “no”. Mr. Graham started to back away and told Mr. Spence to “fuck off and get the hell out ofhere”. He started to go back to the store as Ms. Graham was by the door, and he wanted to get her out of harm’s way. Mr. Spence thennonchalantly put the gun on the dash, backed out, and drove away east before turning south on the paved road. [139] Mr. Graham estimated that the entire interaction outside took between 20-25 seconds. Mr. Graham was asked whether he hadthreatened Mr.

Spence at any time while outside the store or if he had raised his hands and stated, “what the fuck man”, and his responsewas “I don’t believe I did”. When asked if he had assaulted Mr. Spence, Mr. Graham stated “no”. [140] The video footage is of some assistance. The footage is all time stamped, although the parties agree that the time stamp isapproximately 2 hours fast. So, for example, where the time stamp on the video indicates 8:00 a.m., the actual time was 6:00 a.m. I willrefer to the actual time to avoid confusion. [141] At 6:17:26, the video from outside the store shows Mr.

Spence driving away from the gas pumps on the west side of the store.At 6:17:38, the video from inside the store shows Mr. Graham walking slowly out of the door on the south side of the store. At 6:17:44,Ms. Graham follows Mr. Graham out the south door. At 6:17:50, Ms. Graham re-enters the store through the south door. Finally, at6:17:53, Mr. Graham comes back into the store through the south door holding his shoulder. Therefore, the entire interaction betweenMr. Graham and Mr. Spence that resulted in Mr. Graham being shot was completed in approximately 15 seconds. [142] I accept the evidence of both Ms.

Graham and the Accused that when Mr. Graham exited the store, he approached Mr. Spence’s

vehicle with his arms up and stated, “what the fuck” or something similar to Mr. Spence. The video footage confirms that Mr. Graham was only outside the store for a total of approximately 15 seconds. All parties agreed it was snowing. There would not have been enough time for Mr. Graham to stop, light a cigarette, and engage in a question-and-answer exchange with Mr. Spence twice before finally walking over to Mr. Spence’s vehicle to clarify what Mr. Spence was asking him. As well, the video confirms that Ms. Graham exited the store just a few seconds after Mr. Graham. She would have observed Mr.

Graham with a cigarette and overheard these earlier interactions between Mr. Graham and Mr. Spence if they had taken place before Mr. Graham approached the vehicle. [ 143 ] I have already found that as Mr. Graham approached the vehicle, Mr. Spence rolled down the window, pointed the gun at Mr. Graham and stated, “do you want to get shot”. However, I have not accepted Mr. Spence’s evidence that he was scared of Mr. Graham. [ 144 ] Given the brevity of their entire encounter, I am satisfied that Mr. Spence must have had his gun “at the ready” when he parked the vehicle on the south side of the store.

There simply would not have been time for Mr. Spence to assess the situation once Mr. Graham started to approach, then reach into the back seat of the vehicle, open the window, and point the gun out at Mr. Graham, as Mr. Spence claims. [ 145 ] Mr. Spence testified that when he asked Mr. Graham whether he wanted to get shot, Mr. Graham reached for the pellet gun and that is when he pulled trigger. When Mr. Graham was asked if he had reached for the gun, he indicated he didn’t believe so.

He stated that it had crossed his mind, but he was still five or six feet away at the time, and he didn’t even really think it was a real gun at that point. Ms. Graham’s evidence was that she observed Mr. Graham stepped back and start to turn to the right before she heard a “pop” sound. [ 146 ] Regardless of whether Mr. Graham actually believed that Mr. Spence had a real gun, when Mr. Spence specifically asked Mr. Graham if he wanted to get shot, it would be reasonable to expect that Mr. Graham would either retreat or make some attempt to protect himself. The evidence of Ms. Graham suggests that Mr.

Graham may have started to retreat however, the evidence of both Mr. Graham and Mr. Spence is that he did not. [ 147 ] Despite the concerns that I have previously identified with respect to the reliability of the evidence of both Mr. Graham and Mr. Spence, given the fact that it was dark and snowing at the time Ms. Graham made these observations, I find that I am still left with a doubt as to whether Mr. Graham reached for the gun and therefore, whether Mr. Spence intended to wound Mr. Graham when he pointed the pellet gun at him and pulled the trigger, or just to threaten or scare Mr. Graham.

Therefore, I find that the Crown has not proven the mens rea of this offence beyond a reasonable doubt. [ 148 ] However, I am satisfied that the elements of the lesser, included offence under section 87(1) of the Criminal Code of pointing a firearm without lawful excuse have been proven by the Crown beyond a reasonable doubt. The Defence concedes that the Accused’s pellet gun is a firearm for the purpose of this offence. The firearm must have been pointed “at” the complainant.

In R v Spencer , 2003 BCSC 805 at para 46 , rev’d 2006 BCCA 81 on other grounds, aff’d 2007 SCC 11 on other grounds the Court noted: [46] When one considers these

definitions, against the mischief Parliament must have intended to address, coupled with a common sense approach, the word “at” must be interpreted as synonymous with “towards”, “in the direction of” or “in the general vicinity of”. [ 149 ] Even on Mr. Spence’s version of events, the firearm was pointed in the direction of, or in the general vicinity of, Mr. Graham. [ 150 ] I have already rejected the Defence’s argument that Mr. Spence was acting in self-defence, as well as the argument that Mr. Spence accidentally pulled the trigger on the gun.

I therefore find that the Crown has proven beyond a reasonable doubt that the Accused pointed a firearm at Mr. Graham without lawful excuse pursuant to section 87(1) of the Criminal Code and is guilty of this offence. Count 5 – Possession of firearm in breach of condition of Release Order (s 145(5)(a)) [ 151 ] The Accused concedes that he was on a Release Order at the time of the alleged offence that prohibited him from possessing a firearm.

However, the Accused notes that for the purpose of certain enumerated offences, s 84(3) of the Criminal Code provides that a pellet gun that does not fire more than 500 ft/sec is deemed not to be a firearm. [ 152 ] The Accused’s evidence at trial was that he believed his pellet gun had a velocity of 495 ft/sec, and, therefore, he submits that the Crown has not proven the requisite mens rea for this offence.

Alternatively, the Defence argues that when the Accused possessed the pellet gun, he had no intention to use it other than for shooting grouse, squirrels, etc., and, therefore, it did not fall within the definition of a firearm under s 2 of the Criminal Code . [ 153 ] It is clear that s 145(5)(

a) is not one of the enumerated provisions in s 84(3). Therefore, the definition of firearm set out in s 2 applies. On the Accused’s own evidence, he possessed a firearm as defined by s 2, on October 16, 2020, and he shot Mr. Graham with it. [ 154 ] In R v Zora , 2020 SCC 14 at para 109 , the Supreme Court outlined what must be proven by the Crown to establish the necessary mens rea for this offence: Therefore, subjective mens rea under s. 145(3) can be satisfied where the following elements are proven by the Crown: 1. T

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