R. v. Miller Date:, 2015 BCPC 95

Citation: R. v. Miller Date: 20150408 2015 BCPC 0095 File No: 36152 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TARA PATRICIA JEAN MILLER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: T. Patola

Counsel for the Defendant: M. Munro Place of Hearing: Port Alberni , B.C. Dates of Hearing: April 7, 8, 2015 Date of Judgment: April 8, 2015 [ 1 ] Ms. Miller is charged with attempted robbery, use of an imitation firearm while committing an offence, common assault and masking her face with intent to commit an indictable offence, contrary to sections 344(1) (b), 85(2) , 266 and 351(2) of the Criminal Code . She admits that she attempted a robbery, but denies that she used an imitation firearm, assaulted the victim of the robbery, or masked her face. Evidence for the Crown [ 2 ] Ms.

Yuka Nakamura owns a smoothie shop on 10 th Avenue in Port Alberni. Her daughter, Maho Nakamura works part-time in the shop when she is not in school. Maho Nakamura is 15 years of age. [ 3 ] On the afternoon of July 8, 2014, a young woman entered the shop and spent some minutes reading the menu board posted on the wall. She had a brunette ponytail, and was wearing a brown baseball cap with a Budweiser logo, a white t-shirt, knotted at the back, black yoga pants and sunglasses. She carried a large brown leather purse. Maho Nakamura was standing at the till. Yuka Nakamura was in the kitchen, making salad.

The young woman ordered a smoothie. Maho Nakamura rang the price into the till and asked for the money. The young woman unfolded a piece of paper which she had in her hand and placed it on the counter beside the till for Maho Nakamura to read. Maho Nakamura described the note as “very messy”, written in block capital letters in black ink. It was a demand for money. Immediately thereafter, the young woman took an imitation pistol out of her purse and displayed it for Maho Nakamura to see. It was immediately obvious to Maho Nakamura that the object was not a real pistol. It appeared to her to be a toy.

Yuko Nakamura emerged from the kitchen to find out what was going on. Having assessed the situation in a few moments, she walked out from behind the counter and took the young woman by the elbow to lead her from the store. As she did so, she reached up to remove the young woman’s sunglasses so that she could see her face. The young woman responded by raising her right hand abruptly, striking Yuko Nakamura on the left temple. The young woman ran from the store, pursued for some distance by Yuko Nakamura, who soon abandoned the chase.

The young woman ran across 10 th Avenue and into a wooded area on the other side, where she passed out of sight. [ 4 ] The police were summoned, but made no progress in their investigation on July 8. [ 5 ] Mr. Johnston is a local resident, who goes for a walk most mornings in the wooded area in which the young woman was last seen. He did not go for a walk on July 9, but did on July 10. He saw some discarded items of women’s clothing in the woods, which caused him concern.

He reported his discovery to the police, who attended the scene. [ 6 ] There is a grassy area bounded by 10 th Avenue very near the point where the young woman was last seen on July 8. A path leads into the woods from the grassy area. There is a public trash can beside the path where it leaves the grassy area. The articles of clothing found by Mr. Johnston were in the wooded area, near the path, a short distance from the trash can. They included a brown baseball cap with a Budweiser logo, a white t-shirt, knotted at the back, black yoga pants and sunglasses.

Also found were a pair of women’s sneakers and some brunette hair extensions. In the trash can, the police found a note, handwritten in block capital letters, in blue ink, which reads: BE QUIET SLOWLY GIVE ME ALL the MONEY B4 I SHOOT EVERYONE Maho Nakamura identified the articles of clothing (except the sneakers) as those worn by the young woman on July 8, and the note as the note shown to her by the young woman. [ 7 ] Ms. Miller’s fingerprints were found on the sunglasses, ball cap and t-shirt found in the wooded area. [ 8 ] The note is printed on the reverse side of an 8 ½ by 11 inch piece of paper.

On the obverse side is printed in typescript the curriculum vitae of Tara Miller, including a description of her skill-set, her employment history and her contact information. [ 9 ] On July 16, 2014, the police obtained a search warrant for Ms. Miller’s home. They attended at her home, arrested her and executed the search warrant. They observed that Ms. Miller had blonde hair, longer than shoulder length.

In her home, they found a number of copies of her curriculum vitae , identical to the copy found in the trash can (except for the handwritten note on the reverse) and another handwritten note, apparently from one intimate partner to another, in block capitals which are very similar to those of the note found in the trash can.

Ms. Miller’s Evidence [10] Ms. Miller admits that she entered Ms. Nakamura’s shop and presented the hold-up note to Maho Nakamura. She denies thatshe had in her possession a gun or anything resembling a gun. She admits that she was wearing sunglasses and a hat, as described by theNakamura’s, but denies that she wore them as a disguise. She says that she was wearing them because it was a hot sunny day. She saysthat, after she presented the note to Maho Nakamura, Yuka Nakamura emerged from the kitchen, came around the till into the publicarea of the store and took her by the arm. She says that Ms.

Nakamura then linked arms with her and reached up to remove hersunglasses. Ms. Miller responded by jerking her arm up and away from her to break Ms. Nakamura’s hold. In the course of doing so,she accidentally struck Ms. Nakamura with her hand. She then fled the store, and shed the clothing items described above in the woodsbecause she felt sullied by her actions. She was wearing shorts and a tank top underneath her yoga pants and t-shirt. She then walkedhome barefoot. [11] Ms.

Miller says that she was then in active drug addiction, and wrote the hold-up note on the spur of the moment on thesidewalk outside the smoothie store. Attempted Robbery [12] Ms. Miller admits her guilt for this offence, and I convict her of it. Using an Imitation Firearm [13] Maho Nakamura said that she recognized the object in Ms. Miller’s hand as a fake or toy from the outset. She was not deceivedfor a moment. Assuming her evidence to be true (which would be necessary to convict Ms.

Miller of this offence), it is necessary toconsider whether the offence can be committed by brandishing an object which is clearly not a firearm. Put another way, can it be saidthat an imitation which is clearly not a firearm, and could not be perceived as one even by a casual observer, is an “imitation firearm” asthat phrase is used in section 85(2) of the Criminal Code? [14] The leading authority is R vs Scott 2000 BCCA 220; [2000] BCJ No. 800. Separate concurring reasons were rendered byMcEachern, CJ and Braidwood, JA. Prowse, JA dissented.

Chief Justice McEachern’s reasons were adopted by the Supreme Court ofCanada in dismissing the appeal: 2001 SCC 73 , [2001] 3 SCR 425. At paragraphs 58 - 61, Chief Justice McEachern said(underlining added): In the context of s. 85(2), the word "imitation" is capable of more than one meaning.

Particularly relevant is the fact that it is sometimesused interchangeably with "looks like." See Shorter Oxford Dictionary, 3rd ed., vol. 1 p. 1024 where examples are suggested for imitate,such as "To mimic; ... to copy; . . . to make oneself like; to assume the aspect of, to simulate," and, for imitation: "Make (of cheapermaterial) in imitation of a real or genuine

article or substance." The 1996 New Oxford English Reference Dictionary, at p. 706 gives thisdefinition: "to be (consciously or not) like," and for "imitation" it suggests "fake." Thus, it seems to me, "imitate" has at least three possible meanings. The first, and probably the most accurate meaning ties the imitationto the real object (such as a gun) but not so closely that it is itself a gun because then it might not be an imitation. Second, a homemadegun could be an imitation of, say, a particular model of a make of gun such as a Winchester or Colt.

Third, an object that is not a gunmay look enough like a gun to mimic or copy or assume some of its qualities, such as appearance, and therefore be an imitation of a gun. I take some guidance from the French version of the relevant part of section 85(2) which, translated into English, reads: "Every objecthaving the appearance of a firearm, including a replica..." In my view, "imitation" in the English version of section 85(2) may usefullyand properly be read as making it illegal for a person to use an object that appears to be a firearm in the commission of an indictableoffence.

Keeping in mind that a Court should make every reasonable effort to uphold legislation, I have no difficulty concluding that somethingthat appears to be a gun, whether or not it is a gun, can nevertheless be an imitation of a gun for the purposes of s. 85(2). This isparticularly so when the object is used as a gun is commonly used, as in a robbery where it is used or displayed for threatening orcoercive purposes. [15] Assuming Maho Nakamura’s evidence to be true, the object brandished by Ms. Miller did not appear to be a firearm. Rather, itappeared to be a toy firearm. For that reason, Ms.

Miller could not be convicted of this offence even on the basis of the Crown’sevidence, and I acquit her of this charge. Assault [16] Maho Nakamura said that Ms. Miller struck Yuka Nakamura with Ms. Miller’s elbow. Yuka Nakamura said, during herevidence in chief, that Ms. Miller, using Ms. Miller’s right hand, struck Ms. Nakamura on Ms. Nakamura’s left temple. However, incross-examination, Yuka Nakamura said that, as Ms. Miller pulled her arm free from Ms. Nakamura’s grasp, Ms. Miller struck Ms.Nakamura with the back of her hand as Ms. Miller’s arm went out and up. Ms.

Miller’s evidence is consistent with the evidence givenby Yuko Nakamura during cross-examination. Given the inconsistencies in the evidence, one cannot be satisfied beyond a reasonabledoubt as to what, objectively, happened. Ms. Miller said that the blow was accidental. The evidence is insufficient to contradict thatassertion beyond a reasonable doubt. It follows that I must acquit Ms. Miller on this charge. Wearing a Mask [17] Section 351(2) of the Criminal Code provides that a person commits an offence if she has her face masked or coloured, or isotherwise disguised, with intent to commit an indictable offence.

In this case, the Crown alleges that Ms. Miller had her face maskedwith intent to commit the robbery which she admits. The Crown does not allege, in the indictment, that she was “otherwise disguised”. For that reason, I need not consider whether the hair extensions or the items of discarded clothing were intended by her to be a disguise.

[ 18 ] The Concise Oxford Dictionary offers the following definition of “mask”, as a noun (underlining added): mask (as a noun) covering , usually of velvet or silk for concealing face at balls, etc. or of wire, gauze, etc. for protection, e.g. of fencer, or worn by surgeon to prevent infection of patient, etc., or of any material as disguise ; respirator used to filter inhaled air or to supply gas for inhalation; hollow figure of human head worn by ancient Greek and Roman actors; likeness of a person’s face, esp. one made by acting a mould from face …. The following is the most applicable of the several

definitions offered by the same source of the word, as a verb: cover (face, etc.) with a mask; (in passive voice) be disguised with a mask Those

definitions don’t take me very far in relation to the questions in this case; i.e. whether sunglasses and a ball cap can be a “mask”, or whether a person wearing such items can be said to be “masked”. It is reasonably clear that a mask is a face covering. For that reason, a ball cap is not a mask, at least if worn in the conventional fashion. There is no suggestion in the evidence that Ms. Miller’s ball cap covered any part of her face. In ordinary English usage, a mask may cover part or all of the face.

For example, the masks worn at a masked ball are usually held before the face, supported by a vertical stick at one side of the mask which is held in one hand. Many such masks which I have seen are shaped rather like eyeglasses, although usually much larger and covering a much larger part of the face. It may be germane to note that, in its origin, the masked ball was intended to enhance the dancers’ experience by offering at least the illusion of anonymity. I think it right to say that, in the context of

section 85 of the Criminal Code , a face-covering is a “mask” if and only if it covers a sufficient proportion of the wearer’s face as to make identification difficult. [ 19 ] There are some sunglasses, favoured by Italian actresses in my youth, which would fall within such a definition. However, the sunglasses worn by Ms. Miller on the day in question are of lesser size, not significantly larger than an ordinary pair of eyeglasses. It is, to my mind, a matter of degree. While Ms.

Miller’s sunglasses were undoubtedly an hindrance to identification, and may well have been part of a disguise, I do not think that they covered enough of her face to call them a “mask”. [ 20 ] For that reason, I must acquit Ms. Miller of this offence. April 8, 2015 _____________________ T. Gouge, PCJ