R. v. Frimerman, 2019 BCPC 169

Citation: R. v. Frimerman 2019 BCPC 169 Date: 20190729 File No: 26221-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. FELIKS FRIMERMAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: A. Bultz Counsel for the Defendant: B. Anderson, T. Armstrong, Articled Student Place of Hearing: Vancouver , B.C. Dates of Hearing: February 25, 26, 2019 Date of Judgment: July 29, 2019 A Corrigendum was released by the Court on August 2, 2019. The corrections have been made to the text and the Corrigendum is appended to this document.

INTRODUCTION [ 1 ] What started as a discussion regarding tenancy concluded with Mr. Frimerman producing a gun. Mr. Frimerman is now

charged with; assault by threatening to use a weapon or an imitation weapon contrary to s. 267 (

a) of the Criminal Code and possessing an imitation weapon, a Beretta air pistol, for a purpose dangerous to the public peace or for the purpose of committing and offence, contrary to s. 88 (1) of the Criminal Code . [ 2 ] Mr. Frimerman asserts he did not point a gun at anyone and that he produced it to prevent violence. [ 3 ] The task for the court is to consider all of the evidence and determine if the Crown has proved the allegations beyond a reasonable doubt, and if so satisfied, has the Crown disproved self-defence beyond a reasonable doubt. BACKGROUND [ 4 ] In January of 2018, Mr.

Frimerman was planning to travel to Russia. Not wanting to leave his apartment vacant, he placed an advertisement offering to sublet it. Mr. Alnajjar responded to the advertisement and an agreement was reached whereby Mr. Alnajjar was going to rent Mr. Frimerman’s apartment. [ 5 ] Mr. Alnajjar moved into the apartment and Mr. Frimerman left for Russia. Things did not go as planned. Mr. Frimerman returned sooner than expected and the building management began complaining that Mr. Alnajjar was much younger than the permitted occupancy requirement of 55 years or older. [ 6 ] As such, Mr. Frimerman decided to ask Mr.

Alnajjar to move out. This led to a discussion. Present during the discussion were, Mr. Alnajjar, Ms. Makortoff, Ms. Abdulquader and Mr. Frimerman. It was during this discussion that Mr. Frimerman produced a gun and when this occurred Mr. Alnajjar and Ms. Makortoff fled to an adjacent room and called the police. The police attended, arrested Mr. Frimerman and seized a Beretta pistol. EVIDENCE Ms. Makortoff [ 7 ] Ms. Makortoff, a friend of Mr. Alnajjar, was present in January of 2018, when he signed the tenancy agreement with Mr. Frimerman. Thereafter, Ms. Makortoff would visit Mr.

Alnajjar at the apartment where the incident occurred. [ 8 ] On the day of the incident, Mr. Alnajjar contacted Ms. Makortoff and asked if she would help him talk to Mr. Frimerman about difficulties with the tenancy. Ms. Makortoff agreed and the two met and made their way to the apartment. Once at the apartment, Mr. Alnajjar tried to open the door with his key but it did not work. [ 9 ] Mr. Alnajjar knocked on the door and Mr. Frimerman answered it. He invited Mr. Alnajjar and Ms. Makortoff into the apartment. As soon as Ms. Makortoff entered the apartment, she activated the recording feature on her phone.

She did this because she knew that there was going to be a discussion regarding tenancy. [ 10 ] Once inside, and after a brief discussion, Ms. Makortoff and Mr. Frimerman took Mr. Frimerman’s cat out to the balcony and trimmed the cat’s nails. Thereafter, Mr. Frimerman, Ms. Abdulquader and Ms. Makortoff went into the living room area to discuss matters. Mr. Frimerman sat on a swivel chair near the computer desk, Ms. Abdulquader sat in an armchair and Ms. Makortoff sat on the couch. Mr. Alnajjar did not sit down, rather, he moved around the immediate area. [ 11 ] Mr. Frimerman explained to Mr.

Alnajjar that the building management had complained about Mr. Alnajjar staying in the apartment. Mr. Frimerman went on to state that Mr. Alnajjar would have to move and that he would be losing his damage deposit. Ms. Makortoff told Mr. Frimerman that he could not do this and he responded by telling Ms. Makortoff to leave and to call the police. Ms. Makortoff reached down to get her phone and when she looked up, Mr. Frimerman was holding a gun and pointing it at her. [ 12 ] When Ms. Makortoff saw the gun she was terrified. She testified Mr.

Frimerman pointed it at her and that he gestured with the gun by moving it between her and Mr. Alnajjar, who was standing behind her. Ms. Makortoff got up from the couch and Mr. Alnajjar pulled her into the bedroom where they locked the door and she called 911. While on the phone with 911, she could hear Mr. Frimerman calling 911. [ 13 ] According to Ms. Makortoff, Mr. Alnajjar did not threaten or insult Mr. Frimerman. She also testified that when the incident occurred, she was 5’11, and weighed 210 pounds and that Mr. Alnajjar was over 6 feet tall and weighed more than her. [ 14 ] During cross-examination, Ms.

Makortoff agreed that she was annoyed when speaking with Mr. Frimerman. She also confirmed her recollection was not perfect; however, she maintained that it was good. She agreed that her view of the gun was for about two seconds and then about three seconds as she was leaving the area. She also acknowledged that she did not know if Mr. Alnajjar was behind her when Mr. Frimerman was gesturing with the gun. Ms. Makortoff maintained that Mr. Alnajjar was frustrated because the locks had been changed and that he did not say anything during the discussion in the living room. [ 15 ] As for the audio recording, Ms.

Makortoff denied the suggestion that she had shut it off. She testified she was surprised to learn that her phone did not continue to record as she called 911. Ms. Makortoff believes the act of dialling 911 stopped the recording. Ms. Abdulquader [ 16 ] Ms. Abdulquader met Mr. Frimerman when she was working at a neighborhood restaurant. On April 10, 2018, Ms. Abdulquader was a guest at Mr. Frimerman’s apartment when a male and a female arrived. The evidence is clear that these persons were Ms. Makortoff and Mr. Alnajjar. [ 17 ] After the arrival of Ms. Makortoff and Mr.

Alnajjar there was some interaction with the cat. Thereafter, all of the parties went into the living room where there was routine conversation. During the conversation, Mr. Frimerman informed Mr. Alnajjar that there had

been a complaint from the management and that Mr. Alnajjar would have to leave. Mr. Alnajjar became angry and he started swearing and yelling. Ms. Abdulquader noticed that Mr. Alnajjar had an angry look on his face. Ms. Makortoff also started to yell. Throughout, Mr. Frimerman remained seated. At no time did he yell or swear. [ 18 ] Ms. Abdulquader then saw Mr. Frimerman remove a gun from the desk drawer and point it at the kitchen wall. He told Ms. Makortoff and Mr. Alnajjar to call the police and they left the room and went to the bedroom, at which point Mr. Frimerman called the police. According to Ms.

Abdulquader, Mr. Frimerman asked Ms. Makortoff and Mr. Alnajjar to leave the apartment before and after he produced the gun. Mr. Frimerman [ 19 ] In January of 2018, Mr. Frimerman was planning an extended trip, as such, he sublet his apartment to Mr. Alnajjar. Unfortunately, Mr. Frimerman’s trip was not as long as anticipated. Prior to returning to Vancouver, Mr. Frimerman contacted Mr. Alnajjar and told him that he would be coming back to Vancouver and that Mr. Alnajjar would have to find another place to live. This led to a discussion culminating in Mr. Frimerman granting Mr.

Alnajjar an extension of two or three months provided Mr. Alnajjar paid three months’ rent in advance. [ 20 ] Mr. Frimerman returned to Vancouver on April 3 with the intention of getting the advance rent from Mr. Alnajjar and performing a few errands. When he arrived, he went to the apartment and he observed that it was dirty and untidy. This disappointed Mr. Frimerman and he ultimately spent four days cleaning the apartment. [ 21 ] Mr. Alnajjar did not deliver the advance rent as promised, so on the morning of April 10, 2018, Mr. Frimerman telephoned Mr.

Alnajjar and told him that he was going to change the locks. He also told Mr. Alnajjar that the management asked Mr. Frimerman to have Mr. Alnajjar move out. Later that same afternoon the locks were changed. [ 22 ] In the late afternoon of April 10, 2018, Mr. Frimerman was at his apartment visiting with Ms. Abdulquader when he heard someone trying to open the front door. Mr. Frimerman went to the door and discovered that it was Mr. Alnajjar and Ms. Makortoff. Mr. Frimerman opened the door and Mr. Alnajjar and Ms. Makortoff entered. According to Mr. Frimerman’s testimony, he was surprised that Ms.

Makortoff came into the apartment, as she was not on the lease. [ 23 ] Once inside, Ms. Makortoff played with the cat and she helped Mr. Frimerman trim the cat’s nails. Thereafter, they went into the living room where Mr. Frimerman explained that he had been contacted by the management and that Mr. Alnajjar would have to move out. Ms. Makortoff took over the discussion and Mr. Frimerman told her that he did not want to discuss anything with her because she was not on the lease. [ 24 ] Mr. Frimerman did not like how Ms. Makortoff was talking or her aggressive body language, so he asked her to leave. Ms.

Makortoff lost her composure, and she told Mr. Frimerman that this was not how it worked in Canada and he informed her that this was how it worked and that she was trespassing and he asked her to leave. At this stage, Mr Alnajjar interjected and stated, “I’ll fuck you up if you don’t stop talking to my girl like that.” Mr. Frimerman responded by telling Mr. Alnajjar to call the police and that he was going to call the police as well. He then told Mr. Alnajjar that he needed to calm down, cool off, walk away, and pick up his things later. [ 25 ] Mr. Alnajjar and Ms.

Makortoff then went to the bedroom or the bathroom and while they were gone. Mr. Frimerman then noticed that Ms. Abdulquader was pale. He knew that Ms. Abdulquader had been through a lot and he did not want her to see any violence or fighting. Mr. Frimerman, therefore, reached up to the bookshelf that was attached to the computer desk and removed a gun. He then showed the gun to Ms. Abdulquader, and as he did this, he removed the magazine and placed it into the desk drawer. He did this because he wanted Ms. Abdulquader to know that the gun was not loaded. He then placed the gun in his lap. [ 26 ] Ms.

Makortoff and Mr. Alnajjar returned to the room and sat down. Mr. Frimerman then lifted the gun slightly from this lap and pointed it to his right toward the balcony. At no time did he point the gun at Mr. Alnajjar or Ms. Makortoff, nor did he gesture with the gun. Then and with the gun pointed at the balcony, Mr. Frimerman said, “I want you to leave now. Get the fuck out. I don’t want any fighting.” [ 27 ] As soon as Ms. Makortoff saw the gun, she shrieked and ran to the bathroom. Mr. Alnajjar followed and once in the bathroom they locked the door and called the police. Mr.

Frimerman then placed the gun on the desk and called the police. [ 28 ] Mr. Frimerman testified that he took the gun out because he felt threatened. He said this was because Mr. Alnajjar was much bigger and he knew that Mr. Alnajjar had bragged about fighting. Mr. Frimerman testified he did not want any violence and that he did not want things flying around with two women there. [ 29 ] According to Mr. Frimerman, Mr. Alnajjar was 6’2 - 6’3 and between 220 and 230 pounds. Mr. Frimerman knew that Mr. Alnajjar had experience fighting because he had told Mr.

Frimerman that he previously “punched a guy out.” The recording [ 30 ] Ms. Makortoff created an audio recording that captured much of what transpired in the suite. The recording is six minutes and thirty seconds in length. Below is a

summary of the salient points. [ 31 ] The recording starts with Mr. Frimerman and Ms. Makortoff talking about the cat. Thereafter, there are discussions regarding the cat’s nails and the voices appear to move away from the recording device. At this stage, Mr. Frimerman’s voice can be heard, but his words cannot be made out. [ 32 ] At 4 minutes and 16 seconds, Mr. Frimerman moves toward the recording device and he begins speaking to Mr. Alnajjar about the building management’s request that he move out.

[ 33 ] Mr. Frimerman then transitions to talking about Mr. Alnajjar’s damage deposit. In this regard, he stated that when he arrived, the apartment was filthy and that he spent five days cleaning it, as such, Mr. Frimerman stated he would be keeping the deposit. At this stage, Ms. Makortoff interjected stating that was not how damage deposits worked. Mr. Frimerman interrupted and told her that what she had to say was irrelevant because she was not on the lease, and if she continued to interrupt, he would have to ask her to leave. Ms. Makortoff informed Mr. Frimerman that it was Mr.

Alnajjar’s place because he had the tenancy. Mr. Frimerman told Ms. Makortoff to call the police and she responded “ok.” At this stage, there is some static on the recording and it sounds like the recorder (phone) was being moved. As this was occurring, Mr. Frimerman stated that his contract with Mr. Alnajjar was illegal. The recording then stops. ISSUES: a. Has the Crown proved beyond a reasonable doubt that Mr. Frimerman committed assault of Ms. Makortoff and Mr. Alnajjar, and if so, was Mr. Frimerman acting in self defence? b. Has the Crown proved beyond a reasonable doubt that Mr.

Frimerman possessed an imitation of a weapon, a Beretta air pistol, for a purpose dangerous to the public peace? ANALYSIS Has the Crown proved the assault beyond a reasonable doubt? [ 34 ] Given the versions of evidence received, I will first consider the credibility and reliability of the witnesses, thereafter, I will make findings of fact. Credibility and Reliability: [ 35 ] Dealing with Mr. Frimerman’s evidence, I note it was inconsistent with Ms. Abdulquader’s evidence and the audio recording. I also observe he was evasive during cross-examination and he appeared to embellish Ms.

Makortoff’s demeanor. [ 36 ] With respect to inconsistencies, Mr. Frimerman went into detail about removing the magazine from the gun and showing this to Ms. Abdulquader. Remarkably, Ms. Abdulquader’s evidence was silent on this point. Further difficulties with Mr. Frimerman’s evidence include; he testified he retrieved the gun from the top of the bookcase, whereas, Ms. Abdulquader testified the gun came from the desk drawer. Additionally, Ms. Abdulquader testified that Mr. Frimerman pointed the gun toward the kitchen and Mr. Frimerman said he pointed it toward the balcony. A further inconsistency is that Mr.

Frimerman testified that Ms. Makortoff and Mr. Alnajjar were out of the room when he retrieved the gun. In contrast, Ms. Abdulquader’s evidence has Ms. Makortoff and Mr. Alnajjar leaving the room only when the gun is produced. [ 37 ] As for the audio recording, Mr. Frimerman’s testimony suggests, it was after he told Mr. Alnajjar about the management’s concerns that he asked Ms. Makortoff to leave. This was apparently followed by Mr. Alnajjar saying, “I will fuck you up if you do not stop talking to my girl that that.” Given that Mr.

Frimerman only mentioned the management’s concern on one occasion and that occasion was captured on the audio recording, if Mr. Alnajjar had made the comments attributed to him then the comments would then have been captured on the audio recording. Notably, Mr. Alnajjar’s voice was not heard on the audio. This lends to the conclusion that Mr. Alnajjar did not make the comment attributed to him. [ 38 ] As for evasiveness, there were times when the court had to give Mr. Frimerman direction to answer the questions posed by the Crown.

There were also times where he would ramble, thus, not answering simple questions. [ 39 ] In terms of Mr. Frimerman embellishing Ms. Makortoff’s demeanor, Mr. Frimerman testified he did not like how she was talking or her aggressive body language. He also said she lost her composure. Even with a generous

interpretation, the audio recording does not reflect that Ms. Makortoff lost her composure or that she was hostile. Her tone was measured, respectful, and in fact, she never interrupted Mr. Frimerman. [ 40 ] For all of the reasons above, I find that Mr. Frimerman’s evidence was not credible or reliable and I reject it. [ 41 ] As for Ms. Makortoff, I found her to be a responsive witness, she testified in a straightforward and consistent manner and she was not shaken on cross-examination. Her testimony was logical and it made sense. I conclude that her testimony was reliable and credible. [ 42 ] As for Ms.

Abdulquader’s evidence, I find portions of her evidence to be unreliable. In this regard, the audio recording does not support that Mr. Alnajjar was yelling and swearing, nor does it support Ms. Abdulquader’s suggestion that Ms. Makortoff was yelling. I also observe (as mentioned above) that her evidence differed from Mr. Frimerman on issues of where Mr. Frimerman retrieved the gun from, who was present when he got the gun and where he pointed it. As such, I reject those portions of Ms. Abdulquader’s evidence that differ from Ms. Makortoff’s and the audio recording.

Findings [ 43 ] After considering all of the evidence, I make the following findings. [ 44 ] On April 10, 2018, Ms. Makortoff and Mr. Alnajjar went to Mr. Frimerman’s apartment. When they arrived, they found that the lock on the front door had been changed so they knocked on the door and Mr. Frimerman opened it allowing them entry into the apartment. [ 45 ] Almost immediately after entering the apartment Ms. Makortoff activated the recording function on her phone. Thereafter, Mr. Frimerman and Ms. Makortoff spent a few minutes dealing with the cat.

[46] The group then went into the living room. Mr. Frimerman sat in the swivel chair by the computer desk and Ms. Makortoff saton the couch, with Mr. Alnajjar remaining in the immediate area. Mr. Frimerman then raised issues related to Mr. Alnajjar’s tenancy andthe damage deposit. During this discussion, Ms. Makortoff voiced her objection. In response, Mr. Frimerman told her to leave and to callthe police. Ms. Makortoff reached down and retrieved her phone and when she did this, Mr. Frimerman produced a Beretta pellet or BBgun. He pointed the gun at Ms. Makortoff and he gestured at her with it.

When this occurred, Mr. Alnajjar was in the immediate area.Ms. Makortoff and Mr. Alnajjar became afraid and they fled to the bathroom where they called the police. [47] The police recovered a Beretta pellet or BB handgun. Position of the Parties [48] Counsel for Mr. Frimerman argues the evidence of Ms. Abdulquader and Mr. Frimerman demonstrates that the gun was neverpointed at Ms. Makortoff or Mr. Alnajjar. Counsel also argues that assault by threatening cannot be established without evidence fromMr. Alnajjar, specifically, there must be evidence that he, Mr. Alnajjar, believed that Mr.

Frimerman had the immediate ability to carryout the threat. [49] The Crown argues, an assault of Ms. Makortoff is made out on her evidence and a conviction can occur without Mr. Alnajjar’sevidence. ANALYSIS [50] Assault is defined in s. 265 of the Criminal Code and it reads: 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe onreasonable grounds that he has, present ability to effect his purpose; or … [51] In the circumstances, I find that Mr. Frimerman’s production and the pointing of the gun at Ms. Makortoff while Mr. Alnajjarwas in the immediate area, constitutes a threat by act and gesture. Specifically, there was no reason to produce the gun at the moment hedid, unless he wanted to threaten Ms. Makortoff and Mr. Alnajjar. This is the only rational conclusion that can be drawn from theevidence. [52] As for evidence of Ms.

Makortoff’s and Mr. Alnajjar’s thoughts regarding Mr. Frimerman’s ability to effect his purpose,although no direct evidence on this point, I find the circumstantial evidence satisfies me beyond a reasonable doubt that they believedthat Mr. Frimerman had the present ability to effect his purpose. My finding is based on, the context within which the gun was produced,the realistic appearance of the gun, how the gun was produced, and how Ms. Makortoff and Mr. Alnajjar reacted. Specifically, they bothran, they locked themselves in a room, and they called the police.

Such response leads to the only rational conclusion that theyreasonably believed that Mr. Frimerman had the present ability to effect his purpose. [53] As for whether the gun was a weapon, I find that the Crown has proved beyond a reasonable doubt that the manner in whichMr. Frimerman produced and brandished the gun in the context of the events, converted what was an item of target shooting to a weapon. [54] On the issue of self-defence, I find that there is not an air of reality to Mr. Frimerman’s professed concern. Specifically, I do notfind that Mr.

Alnajjar was yelling or swearing or that he indicated that he would “fuck up Mr. Frimerman”. Further, there is no evidenceof aggressive movements, words, or actions. There is simply nothing. [55] Implicit in my findings is, I do not accept Mr. Frimerman’s or Ms. Abdulquader’s evidence, nor do those portions that I acceptraise a reasonable doubt, or leave me with any doubt. [56] Accordingly, I find Mr. Frimerman guilty of count 1. [57] As for the weapon charge, a. Has the Crown proved beyond a reasonable doubt that Mr.

Frimerman possessed an imitation of a weapon, a Beretta air pistol,for a purpose dangerous to the public peace? [58] In the circumstances, the Crown has proved beyond a reasonable doubt that Mr. Frimerman possessed a Beretta pistol. Beyondthat, they have failed to establish beyond a reasonable doubt that the Berretta involved was an air pistol or an imitation weapon.Following the reasoning in R. v. Rackham, 2012 BCPC 46 , 2012 BCPC 046 and R. v. J.S.W, 2017 BCPC 47, I find the Crownhas failed to prove the charge as particularized. I therefore find Mr.

Frimerman not guilty on count 2. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia CORRIGENDUM – Released August 2, 2019

[1] Paragraph 9 should read: Mr. Alnajjar knocked on the door and Mr. Frimerman answered it. He invited Mr. Alnajjar and Ms. Makortoff into the apartment. As soon as Ms. Makortoff entered the apartment, she activated the recording feature on her phone. She did this because she knew that there was going to be a discussion regarding tenancy. [2] Paragraph 14 should read: During cross-examination, Ms. Makortoff agreed that she was annoyed when speaking with Mr. Frimerman. She also confirmed her recollection was not perfect; however, she maintained that it was good.

She agreed that her view of the gun was for about two seconds and then about three seconds as she was leaving the area. She also acknowledged that she did not know if Mr. Alnajjar was behind her when Mr. Frimerman was gesturing with the gun. Ms. Makortoff maintained that Mr. Alnajjar was frustrated because the locks had been changed and that he did not say anything during the discussion in the living room. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia