R v Williams, 2023 MBPC 3

CITATION: R v Williams , 2023 MBPC 3 THE PROVINCIAL COURT OF MANITOBA WINNIPEG, Manitoba BETWEEN His Majesty the King ) T. Cannon, for the Crown ) ) - and - ) ) ) Darien Daniel Williams ) ) W. Marks, for the Accused ) Accused ) Reasons for Decision ) Delivered: January 13, 2023 C.A. DEVINE, P.J. Introduction Facts [ 1 ] On May 14, 2021 Mr. Jaimin Soni was carjacked at gunpoint. [ 2 ] He was sitting in the driver’s seat of his car in the Lot 88 Steakhouse restaurant parking lot near a McDonald’s restaurant in the south end of Winnipeg, scrolling through his phone.

Suddenly a masked man opened the passenger door, pointed a rifle at his chest and told him to get out of the car or he would shoot him. It was between 7:00 and 7:30 in the evening. [ 3 ] Mr. Soni got out of the car and the robber got in and drove off. Mr. Soni ran into the McDonald’s and called 911. [ 4 ] About four hours later in Selkirk, Manitoba, Mr. Soni’s car was driven into a power pole on Manitoba Avenue. The driver had fled. RCMP set up a containment area and deployed their K-9 Unit. Mr. Williams was apprehended by the police dog and arrested. [ 5 ] He had Mr.

Soni’s University of Winnipeg student identification card in the pocket of his pants, Mr. Soni’s iPhone was found in the car, and the mask that Mr. Soni described was either on his person or in the car. [ 6 ] The gun was never found. [ 7 ] Mr.

Williams was charged with robbery using a firearm and robbery with an imitation firearm (the carjacking), possession of property obtained by crime (the car), two counts of failure to comply with a release order (failing to abide by his curfew and failing to abstain from drugs and alcohol), obstruct police (belligerence and not cooperating with their efforts to get him medical attention) and uttering threats to the police. [ 8 ] Several police officers and two civilians testified for the Crown, including Mr. Soni.

There was also an Agreed Statement of Facts summarizing evidence from the civilian who witnessed the crash and the K-9 police officer handler. Some limited evidence of Mr. Williams’ grandmother was filed by consent. Mr. Williams testified in his own defence. [ 9 ] He testified that he had nothing to do with the carjacking. He left his grandmother’s home, where he was living at the time, at about the same time as the carjacking occurred, around 7:00 p.m. on May 14, 2021.

His grandmother’s apartment is approximately 60 meters from the Lot 88 Steakhouse parking lot where the carjacking occurred and can be seen clearly from the front door of the ground- level apartment. [ 10 ] Mr. Williams testified that he did not see the carjacking and had no knowledge of it. [ 11 ] He left the apartment to go to Selkirk, Manitoba and see his friend Justin Kitching.

He was going to take a Winnipeg transit bus as far as the north perimeter of Winnipeg and then Justin was going to drive down, pick him up and go back to Selkirk. [ 12 ] He testified that he noticed he was on the wrong number 18 bus part way through his journey and got off at Aberdeen and Main Street to catch the correct bus. He met a woman at the bus stop, and, finding her attractive, struck up a conversation with her. They walked to a place on Aberdeen where Mr. Williams and the woman, named Star, bought some cocaine and drank some alcohol, along

with another woman named Raven. A man named Johnny joined them at some point. When Mr. Williams explained that he was on his way to Selkirk by bus and that his friend was going to meet him at the perimeter, the man named Johnny offered to “rent” his car to Mr. Williams for $100.00. Mr. Williams took him up on the offer and testified that he e-transferred the money to Johnny. [ 13 ] He then left and drove to Selkirk in the car. It was Mr. Soni’s car. [ 14 ] Once in Selkirk, he went to McDonalds for something to eat and then picked up his friend Justin at a Shell gas station.

They bought some beer at a beer vendor and drank it at the harbour front. Then they bought some cocaine from someone in Selkirk. [ 15 ] After dropping Justin off at the same gas station, he was going to drive back to Winnipeg but he crashed into a tree. He fled the vehicle once he heard emergency sirens. He was apprehended by a K-9 officer shortly after that. Issues [ 16 ] The critical issue in this case is identity, that is, whether the Crown has proven beyond a reasonable doubt that it was Mr. Williams who robbed Mr. Soni at gunpoint and stole his vehicle. Because Mr.

Williams testified and told a very different story about how he came into possession of Mr. Soni’s vehicle, an assessment of the credibility and reliability of his evidence and that of Mr. Soni in particular, will largely be determinative of the issue. [ 17 ] There is also an issue about whether the words Mr. Williams spoke to one of the officers about him and other officers constituted uttering threats, in law. There is a further issue about whether the Crown can prove that the gun pointed at Mr. Soni was a firearm within the meaning of the Criminal Code definition of “firearm.” [ 18 ] Mr.

Williams has conceded that he was driving a stolen vehicle and the Crown has conceded that she cannot prove that its value exceeded $5,000. The Crown has also conceded that Mr. Williams did not commit the offence of obstruction of the police when he refused to get medical treatment. Mr. Williams has also conceded that he violated his release order by consuming drugs and alcohol and not being at home before his curfew. [ 19 ] The only issues to be determined are whether Mr. Williams robbed Mr.

Soni of his car at gunpoint, whether the gun was a firearm, and whether the words he spoke to the police constituted threats. The Evidence [ 20 ] Mr. Soni testified that the perpetrator of the carjacking was a youngish, white man between 25 and 30 years of age. He was between 5’6” and 5’10” tall with a skinnier build than Mr. Soni, who appeared to be a large, huskier young man. He could not remember if the man wore glasses or not. [ 21 ] Mr. Soni could not remember what the man was wearing, other than a white t-shirt.

The man had his face covered up to his eyes, with a black neck and face covering colloquially known as a “gator”. Mr. Soni recognized and identified the gator that was seized by the police and entered as an exhibit in these proceedings. The bottom part of the black gator had a white design of skeleton teeth on it. [ 22 ] Mr.

Soni testified at first that he could not remember if the man was wearing a hat, but after having an opportunity to review his written statement with police, he recalled that the man was wearing a black cap. [ 23 ] He testified that the gun was a rifle, silver, between two and two and one half feet long. The robber was holding it in the way that is customary from popular culture, cradling the barrel in his left hand, with his right hand on the trigger. Mr. Soni testified that it was very close, pointed right at his chest. The robber was partially in the car, with his foot on the passenger seat or door jamb.

He said, “Get out of the car, or I’ll shoot you.” [ 24 ] The evidence of civilian eye-witness Madison Hemminger, was that at approximately 10:25 p.m., she saw Mr. Soni’s vehicle cross directly in front of the vehicle in which she was a passenger and then crash into a tree on the north side of Manitoba Avenue in Selkirk, Manitoba. She had a brief conversation with the driver (Mr.

Williams has conceded he was the driver) and then he ran into the field towards the Home Hardware store. [ 25 ] She described the driver as at least 5’7”, with a skinnier build, not heavy, with shorter hair, in his teens or early 20s. [ 26 ] Constable Payjack of the Selkirk RCMP was assigned as the exhibit officer in Selkirk that night. He drove by the scene of the car crash on his way to the detachment for his shift at 11:00 p.m. All the seized exhibits were given to him, and he photographed, bagged and labelled them. [ 27 ] He observed the search of Mr.

Williams and the seizure of the items by his fellow officers Brauer and Girimonte, which occurred in the cell bay area of the police detachment. He was close to them and had a full view of the search. The following items were discovered and seized from Mr. Williams’ person : the university identification card of the victim, the skeleton mask/gator, Monster brand gloves, socks, a key ring and keys that did not include the key to the vehicle, a sweater, and various items of clothing. All of those items were photographed and the photographs were filed as exhibits in the trial.

Some of the physical items were also filed as exhibits, including the skeleton mask/gator, which had to be placed in a paper bag rather than a plastic bag because it was damp at the time of bagging. [ 28 ] Other items were seized from the vehicle by other officers and provided to Constable Payjack for photographing, bagging and

labelling, including Mr. Soni’s iPhone 12. The phone was subsequently returned to Mr. Soni. [ 29 ] Constable Payjack testified that while he was at the detachment, Mr. Williams was “extremely agitated” and in an “escalated” state. He was yelling profanity at the officers. He had just been bitten by the K-9 officer and was bleeding. Constable Payjack did not think Mr.

Williams was intoxicated on alcohol or drugs. [ 30 ] Constable Brauer, an RCMP officer for approximately two years at the time, was dispatched at 11:00 p.m. at the beginning of his shift to help provide containment around the Selkirk Recreation Centre and the nearby Home Hardware, the area where the suspect was last seen. There was no foot traffic in the area, but some vehicular traffic. [ 31 ] The accused was arrested by other officers, and Constable Brauer followed them back to the detachment. He testified that he assisted in the search of Mr. Williams down to one layer of clothing.

He was also trying to arrange for medical care, because Mr. Williams was bitten by the police dog and was bleeding. [ 32 ] He testified that Constable Payjack directed taking items from the suspect and giving them to him, Constable Brauer . He further testified that he and Constable Payjack split up the duties of seizing the items from Mr. Williams. [ 33 ] He also testified about the University of Winnipeg student identification being found in the pocket of the accused’s clothing. He could not remember which item of clothing, but he thought his jeans. [ 34 ] He testified that Mr.

Williams had a call with legal counsel and the police called EMS but Mr. Williams did not agree with paramedics treating him, so Constable Brauer and other officers took him to the hospital for treatment. [ 35 ] Mr. Williams was very upset and threatened Constable Brauer , his family and other officers. Constable Brauer testified that Mr. Williams was “looking me in the eyes” and said he knew what vehicle he drives, where he lives and stated that he and his family are “going to get yours”. In his narrative he had written that Mr. Williams said, “Watch your backs.” Mr.

Williams was in cuffs at the time, but Constable Brauer testified that he took the threat seriously, because of Mr. Williams’ demeanor when he said it, and how he said it, as something that could happen after Mr. Williams was released. [ 36 ] He did not think that Mr. Williams was intoxicated; he could not smell any alcohol on him. [ 37 ] Constable Brauer testified that Mr. Williams was obstructing them from trying to get him medical treatment. He was not obstructing anything other than the medical treatment.

Verbal abuse of the officers continued and extended to medical personnel at the hospital. [ 38 ] Constable Rivard of the Winnipeg Police received the vehicle and exhibits that were seized from the vehicle and the accused from the Selkirk RCMP. He was assigned the tasks of also searching the vehicle, taking photographs of the vehicle and contents, and obtaining possible fingerprint and DNA material for testing. He testified that the vehicle had extensive passenger-side front end damage. He took one suitable fingerprint impression from the front driver’s door; there was no match.

A swab taken from the deployed air bag was submitted for DNA testing however did not contain sufficient genetic information to make a comparison. No ammunition or firearms were found. [ 39 ] Detective Sergeant Young of the Winnipeg Police Service has been a police officer for over 15 years and was in Major Crimes at the time of this incident. He and his partner went to Mr. Williams’ court-ordered address at the time, that of his grandmother, and received consent from the grandmother to search his bedroom.

Detective Sergeant Young testified that the location of the carjacking was in direct line of sight of the front door of Mr. William’s home, about 60 metres distance. He found several items in Mr. Williams’ bedroom: a rifle case, some batteries, a charging cord that could be used for charging an airsoft gun, an empty box of Winchester .22 long rifle ammunition and three bullets and three shell casings on the floor, bed and near the window.

The bedroom window screen had holes in it consistent with bullet holes, and the stop sign outside the window had white marks consistent with it being fired on for target practise. The rifle case is similar to that used by the Tactical Support Unit. The bullets and shell casings appeared to be .22 calibre. [ 40 ] Mr. Williams testified that he was not in a good mood that day because he had a fight with his ex-girlfriend; he was upset. He had two drinks before leaving his grandmother’s place, around “seven’ish”. He crossed Pembina Highway to catch the bus and transferred at Osborne Street.

He ran to catch the number 18 which would take him up north Main to Riverbend, but he caught the wrong number 18, the Jefferson bus. At some point he realized his error and got off the bus at Main and Aberdeen. [ 41 ] A young woman was also at the bus stop; he found her attractive and they were smoking and having a chat. He asked if she like to party, which he testified is code in his social circle for drinking and doing cocaine. The woman’s name was Star. She said yes and made a call and they walked to an address on Aberdeen where they met with a woman named Raven, and they drank and did cocaine.

He had three Rockstar vodka drinks which he did not pay for. He had $20, and he and Star paid $20 each for a half-gram of cocaine and they snorted it. Fifteen or 20 minutes later a man arrived and they visited. As Mr. Williams was talking about his plans to go to Selkirk on the bus and then have his friend pick him up at the perimeter, the man offered to lend Mr. Williams his car for $100 and he was told to return it the next day. Mr. Williams decided to take him up on the offer. He testified that he knew the car was likely stolen, otherwise no one would “lend” it to a complete stranger.

He testified that he e-transferred the man, known only as “Johnny” the $100. Johnny gave Mr. Williams the keys to the car. [ 42 ] Mr. Williams left and drove the car straight up Main Street to Selkirk, Manitoba. He went to McDonald’s and had a burger. He messaged his friend Justin Kitching who was not yet ready, because he was looking after his child and the mother of the child was not yet home. [ 43 ] He started searching the vehicle for money, a wallet and things of value he could use to obtain more drugs.

He stated that he noticed the gloves on the passenger seat because it was summer time, as well as a couple of jackets and the gator-style face mask, which he picked up and put on the passenger seat, and some Gatorade bottles. He took bank cards and the identification card, that is, the University of Manitoba student card, from the wallet. He testified that he took the student card because he was “interested”. He testified

that there was “a little cash” in the wallet, but he did not take it. He testified that he put the wallet in the centre console and the ID andcard under it. [44] He picked up Justin at the Shell station and then the two went to a beer vendor and bought four king cans (710 mL size) ofbeer. They went to the harbour front and drank the beer, he drinking three of them. They then bought some cocaine and did the cocaine,splitting the one gram they bought. [45] He testified that he took the gloves because “it is a little chilly in the evening”, and he also took a jacket.

He mistook thestudent card for the bank card and put it in his pocket. [46] He testified that he was wearing a grey, long-sleeved t-shirt, with a teal sweatshirt over it, and the jacket. [47] He did not locate Mr. Soni’s phone. [48] He testified that by the time he was leaving Selkirk his level of intoxication was approximately 5/10, such that he was slurring abit and his mind “wasn’t there”, but he uses cocaine to “straighten out”, making him less drunk and more clear.

Nonetheless, when hewas driving down Manitoba Avenue towards Winnipeg, he swerved and lost control of the vehicle, because he “wasn’t paying attention”and crashed into a tree. [49] He testified that he got out of the car to assess the damage and ascertain whether he could still drive it. A woman stopped andasked it he was okay, then called the fire department. He became frantic because he knew he was impaired and had just crashed avehicle. He grabbed what he thought was the bank card, the jacket and gloves so he could get a taxi.

He testified that he took the glovesbecause it was evening and a little bit chilly. [50] He did not testify about evading the police and his apprehension by the police dog. He testified that he was taken to thehospital by the police and was agitated and refusing treatment. He testified that his level of intoxication was about 6/10 at that time,because of the additional beer and cocaine he had consumed, but the cocaine was wearing off, so his mind was getting fuzzy, he wassloppy, angry and not processing things as well.

He could not remember but stated it was possible that he uttered threats to the police. [51] As for the items found in his bedroom, Mr. Williams testified that the rifle case was for his airsoft gun, which he had soldabout a year before. He testified that the batteries were from the airsoft gun, as was the charging cord; he supplied one charging cord tothe buyer and kept one. He testified that he found the ammunition box containing the bullets and casings in the McDonald’s parking lotand thought it was “cool”.

He testified that he put them on the desk in his room and then accidentally knocked them over. [52] He testified that he put the holes in his bedroom window screen with a cigarette. Analysis of the Evidence and Findings of Fact [53] Because Mr. Williams testified, I have analyzed and weighed the credibility and reliability of the evidence according to themethodology recommended by the Supreme Court of Canada in R v W(D), (SCC), [1991] 1 SCR 742 and the ManitobaCourt of Appeal in R v Menow, 2013 MBCA 72. [54] At the end of the analysis, I must be satisfied beyond a reasonable doubt that Mr. Williams robbed Mr.

Soni by pointing sometype of gun at him. If I believe Mr. Williams’ story about how he came into possession of Mr. Soni’s vehicle, I must acquit him of therobbery. If his story raises a reasonable doubt, I am acquit him of the robbery. If I do not believe his story, and it does not raise areasonable doubt, I must still be satisfied that the evidence is sufficient to convict him of the robbery with a firearm or imitation firearm. [55] This matter will be resolved at the first two stages of the inquiry. [56] There were some inconsistencies in Mr.

Williams’ evidence, but the bigger issue is that his story is unbelievable. The Crown’scase is circumstantial, but strong. Mr. Williams explanation for being in possession of Mr. Soni’s vehicle is far-fetched and defiesbelief. Much of his evidence was tailored to “explain” evidence pointing to his guilt. [57] His evidence about money was inconsistent and problematic. He testified that he was not working at the time; he had lastworked two weeks before.

When he was asked how he had money to purchase alcohol, drugs and the car rental, he testified that he had“just gotten a loan from a financial institution” and he had $20 in his pocket and later he went through the victim’s wallet and took cash. This information was provided for the first time during his cross-examination. [58] He had earlier testified that he did not take any cash from the wallet. Later he testified that he paid for the beer in Selkirk withthe cash from Mr.

Soni’s wallet. [59] He could provide no explanation for why two women he had never met would give him three Rockstar vodka cans that costapproximately $5 each without charge. He testified that he paid for the cocaine in Winnipeg with the $20 from his wallet. [60] He testified that Mr. Soni’s debit card did not work, but later testified that after the accident, he grabbed what he thought wasthe debit card so he could get a taxi. [61] He “borrowed the cocaine” which cost $100, from someone else he knows in Selkirk. [62] Mr.

Williams did not testify about any ability to pay for anything through employment income, a bank loan or otherwise duringhis direct-examination. The answers he provided on cross-examination are concoctions. [63] There are several questions and overarching implausibility about Mr. Williams’ evidence, leading me to reject his story. [64] It is not consistent to accept that if he was really intending to abide by his 10:00 p.m. curfew, he would he begin the venture to

Selkirk on a bus at 7:00 p.m. and then later, make arrangements to meet his friend in Selkirk for 9:00 p.m. [ 65 ] It is unusual that he would keep the airsoft rifle bag when he had sold the rifle a year before.

It becomes implausible when his further evidence is that he had the rifle bag at his recent, court-appointed address, when it appeared to be an item that was useless to him, unless he actually had a gun in it. [ 66 ] Similarly, I do not accept that he would keep a rechargeable battery and charger if he did not still have the gun. [ 67 ] He testified that the holes in the window screen were made from a burning cigarette. Police testified the holes did not look consistent with being burned. I agree. In looking at the photos, it does not appear that the material of the screen is melted nor singed.

The holes appear to have been made by something punching through or passing through the screen. [ 68 ] Mr. Williams had it in his ability to produce evidence confirming his “rental” of the stolen car from “Johnny”, but made no attempt to do so. I am mindful of the cautious use to which the absence of such evidence can be put. It is the Crown’s onus throughout to prove all the elements of the offences charged beyond a reasonable doubt.

When the defence chooses to call evidence, he cannot be faulted or punished for an absence of evidence or the quality of the evidence. “An adverse inference is a tool to evaluate evidence, nothing more” as stated by Justice Mainella recently in R v McLean , 2022 MBCA 60 (at para 45 ). In this case, I am making the inference to assist me in evaluating Mr. Williams’ credibility. There was no evidence of him having a bank account, nor any bank or phone records confirming an e-transfer in the amount of $100 for the “rental” of the car.

Although there are many reasons that a witness or other evidence is not called, and in this case, I can appreciate why the witness “Johnny” could not be called to testify, the same cannot be said for records within Mr. Williams’ possession and control. There was no explanation provided for the absence of evidence confirming this financial transaction. Although Mr.

Williams was in custody, he was represented by legal counsel and appears to have a supportive sister and mother who may have been able to assist in obtaining this information. [ 69 ] I am limiting my use of the adverse inference to the first question in WD , that is, whether I believe Mr. Williams’ evidence, and not as positive evidence of his guilt on the robbery of the vehicle (para 54, McLean ). [ 70 ] Confirmation that he “rented” Mr. Soni’s car, as opposed to robbing him of it at gun point is obviously critical to Mr. Williams’ defence. The evidence would have assisted in lending credibility to Mr.

Williams’ otherwise incredible tale replete with coincidences. [ 71 ] Mr. Williams was on a release order with a Promise to Pay of $1,500, made just over two weeks prior to this incident, on April 27, 2021. There were several conditions comprising the order, including that he abstain from alcohol and drugs, possess no weapons, guns or ammunition and that he abide by a curfew of 10:00 p.m. every night. He was flaunting all those conditions, conceding in his testimony that he violated all those conditions.

Although he argued that conceding these matters shows him to be credible, I believe that they demonstrate underlying dishonesty. [ 72 ] Mr. Williams’ memory has also been affected by the passage of time, and possibly also the consumption of drugs and alcohol and the trauma of the car crash and subsequent apprehension by a police dog and arrest. For example, when he was questioned about his behaviour towards the police at the hospital, he could not remember whether he received stitches from the dog bites. [ 73 ] Mr. Soni was a credible witness.

He testified about the robbery in a very straightforward manner, with no embellishment or embroidering. He had a good memory of the event, but if he did not remember something, he did not attempt to fill in the gaps in his memory or otherwise make things up. For example, h e had told police the man was wearing his black cap backwards, but at trial Mr. Soni could not remember if it was worn backwards. This was an example of his credibility – it might have been very easy to tell the Court that now he remembered the robber wearing his cap backwards, but he did not. [ 74 ] Mr.

Soni testified that he was very “nervous”. That is an example of Mr. Soni’s tendency not to exaggerate. He was in fact off work a month after this occurred because he was so affected. He lost between $4000.00 and $5000.00 in earnings because he was considered self-employed. [ 75 ] Constable Payjack was a credible and reliable witness. He had contemporaneous notes. He gave his evidence in a professional, clear manner and did not appear to be motivated by any agenda, other than to provide his information and exhibits to the court. He was pressed to agree that some of the items he testified to coming from Mr.

Williams’ person were actually found in the car by other officers. His evidence remained consistent however; he testified that he was present and made notes of the items that came from the person, not the vehicle. But he was in no way argumentative, and conceded that it was “possible” that an officer erred in thinking a particular item may have come from the vehicle rather than Mr. Williams’ person. [ 76 ] Constable Rivard’s testimony was not contested.

He provided clear and succinct evidence. [ 77 ] Constable Brauer’s evidence was somewhat inconsistent with that of Constable Payjack about who played what role in the search of Mr. Williams’ person. I prefer Constable Payjack’s evidence. He is a more experienced officer and presented his evidence in a more dispassionate and professional manner. He testified that he was assigned the role of Exhibit Officer. He had notes, took photographs, bagged and labelled the exhibits. He was therefore acting in a specialist role or capacity at the time, whereas Constable Brauer was acting in more of a generalist capacity.

I accept Constable Payjack’s evidence that he observed the physical search, but that it was Constable Brauer and Constable Girimonte who actually conducted the search. Constable Brauer did not have notes that were ever provided to the defence; he testified that he had a “few notes” but did not note any comments made by the accused. [ 78 ] Detective Sergeant Young’s evidence was credible and reliable and, as with much of the police evidence, largely uncontested. He provided brief, clear evidence about the physical location of Mr.

Williams’ front door in relation to the robbery, his bedroom, the rifle case, bullets and casings, the holes in the window screen and corresponding marks on the stop sign. His evidence was tested on cross-examination but remained consistent and clear and was assisted with photographs. Circumstantial Evidence and Findings of Fact

[79] Much of the Crown’s case for the robbery with a firearm or imitation firearm is based on circumstantial evidence, requiringthat an inference be drawn that Mr. Williams, who crashed Mr. Soni’s car and as arrested in Selkirk, Manitoba, is the same person whooriginally robbed Mr. Soni of the car at gunpoint in Winnipeg approximately four hours earlier. [80] The leading case with respect to circumstantial evidence is R v Villaroman, 2016 SCC 33.

Ultimately, I must be satisfiedbeyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused isguilty. [81] Underlying the rule about the use of circumstantial evidence is a central tenet of Canadian law, that guilt must be establishedbeyond a reasonable doubt. The standard is always the same. A doubt is based on “reason and common sense”, and is not “imaginary orfrivolous”. It does not involve proof to an absolute certainty.

It is logically connected to the evidence or absence of evidence (R vLifchus, (SCC), [1997] 3 SCR 320; cited in Villaroman at para 28). [82] I am mindful of the danger of “filling in the gaps” or “jumping to conclusions” when assessing the evidence, especially thegaps in direct evidence (Ibid at para 29). [83] Any number of inferences may be drawn from circumstantial evidence, however, only reasonable inferences are considered. “If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonabledoubt” (Ibid at para 35).

As Justice Cromwell stated further in Villaroman, I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere factthat it arises from a lack of evidence. As stated by this Court in Lifchus , a reasonable doubt “is a doubt based on reason and commonsense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidencemay result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence of evidence,assessed logically, and in light of human experience and common sense. (Ibid at para 36) [84] Only one other theory or possibility has been tendered by the defence in this case, that is, that Mr. Williams came intopossession of Mr. Soni’s vehicle not by robbing him, but rather through a contractual transaction with “Johnny”.

It is not an inference,but rather, direct evidence from the defence. [85] I do not accept it however as reasonable. [86] I am satisfied that in considering all the evidence, including my determination that Mr. Williams cannot be believed on muchof his evidence, that the Crown has negatived this alternative explanation for coming into possession of Mr. Soni’s car. It is notplausible; at best it is speculative. [87] The inference the Crown has invited me to make is reasonable and is strong. [88] I have rejected Mr. Williams’ explanation for the following reasons. [89] Mr.

Williams left the apartment at the same time and place as the robbery. That coincidence raises great difficulty for thedefence. The robbery took place not only at the same time, but at the same place as Mr. Williams’ address as he was leaving thataddress. He had an empty rifle case in his bedroom. The case was of a sufficient size to hold the two to two and a half foot-long rifleMr. Soni described. There were bullets and spent casings strewn about his bedroom and bullet holes in the window screen. I find as afact that he did not find the bullets in the McDonald’s parking lot earlier.

I find as a fact that they were already in his bedroom. I makethis finding because I do not believe much of what Mr. Williams has testified to. It is an example of tailoring his evidence to theevidence of the Crown. I also make this finding of fact because of the bullet holes made in the window screen. [90] Although his grandmother’s evidence was that she saw him when he left the house that evening, she did not see a gun. I am notconvinced that he did not have a gun. He provided significant evidence that he did not tell his grandmother quite a bit about hisactivities. He was accustomed to hiding things from her.

She was watching a television show when he left. It would have been easy forhim to hide the gun from her as he was leaving. [91] He was in a bad mood. [92] The physical description of the robber is consistent with that of Mr. Williams. The evidence matching Mr. Williams is that therobber was between 25 and 30 years of age, between 5’6” and 5’10” tall, and was “skinnier” than Mr. Soni. This matches the descriptionof Mr. Williams. Although Mr.

Soni testified that he could not remember if the man was wearing glasses or not, I find that is becausemost of the robber’s face up to his eyes was covered with a gator and a black hat. Mr. Soni also described and identified the mask foundeither on Mr. Williams’ person or in the car, the gator with the skeleton teeth pattern. [93] Mr. Soni was either mistaken about the robber wearing a white t-shirt, which could be accounted for by fear, although it ismore likely, Mr. Williams changed out of the shirt.

He testified that he had been wearing the grey long-sleeved shirt, but that does notappear to have been found on his person. He also was wearing several layers of clothing and gloves, despite it being mid-May. Although Mr. Williams testified that he put the gloves and jacket on because it was chilly, I find he put them on because he was trying tohide his identity. [94] Also as part of the Agreed Statement of Facts is the evidence of the K-9 officer’s handler, Corporal Estrada.

Corporal Estradaarrived with the K-9 officer, Erlo approximately 30 minutes later, at approximately 11:00 p.m. to the outdoor compound of the HomeHardware. Erlo indicated outside the fence of the compound and then tracked Mr. Williams into a park area, where he apprehended Mr.Williams hiding in some undergrowth of a large tree. Erlo also located a grey sweater. Although the Agreed Statement does not indicatewhere the sweater was located, it does not state that it was located on Mr. Williams’ person. Therefore, I infer he was not wearing it.

[ 95 ] I was concerned about the lack of black hat and the lack of the gun, however I am satisfied when considering all the evidence that Mr. Williams got rid of these items prior to his apprehension. This could have occurred anytime in the four hours between the robbery and his arrest. He removed the grey sweater sometime between the time of the crash and being apprehended. [ 96 ] He knew he was driving a stolen vehicle as a result of a carjacking and that the police would be looking for that car. He was out of the vehicle and being visible in several locations in Selkirk.

It would be wise to change his clothing and get rid of the gun. [ 97 ] Mr. Williams testified that he wore a blue medical COVID mask on the transit bus and that it was left by him in the car. It was not located by the police. I find that there was no such mask because he was never on a transit but that night. The only mask he had was the gator with the skeleton teeth pattern, seized from him at the time of his arrest. [ 98 ] Mr. Soni testified that the robber was white. Although Mr.

Williams is undoubtedly of mixed African and Caucasian heritage, given his light skin tone, his own evidence about his light skin and the appearance of his sister and mother, I am satisfied that he could have been mistaken for “white” that evening by Mr. Soni. Mr. Soni is of Indian heritage and has a darker skin tone. Almost all of Mr. Williams’ face was covered, as was his hair. It is easy to understand that he could be identified as white in those circumstances. [ 99 ] I find as a fact that Mr. Williams was in a bad, upset state of mind that evening.

He drank alcohol and then grabbed a gun from his bedroom and walked out the door of his grandmother’s apartment. Seeing Mr. Soni in the car who was not paying attention to his surroundings, Mr. Williams made a decision to obtain the car. He opened the door, pointed the gun at Mr. Soni’s chest and took his vehicle upon threat of shooting him. He drove the stolen car and consumed more drugs and alcohol perhaps some of it on Aberdeen Avenue, and certainly some of it in Selkirk. He got rid of the white t-shirt he was wearing, and the gun.

He became increasingly intoxicated and as he was going to make his way back to Winnipeg he lost control of the vehicle and crashed into a tree. Conclusion [ 100 ] I am satisfied that the Crown has proven the robbery with an imitation firearm beyond a reasonable doubt. I am declining to convict on the charge of robbery using a firearm, because there is not sufficient evidence proving that the gun was a “firearm” within the definition of the Criminal Code . The gun was never found and therefore could not be examined or tested.

Although there is law allowing for a conviction to be entered when there is no firearm found, there must be some evidence to support that it was a firearm, which there was not in this case ( R v Richards , 2001 CarswellOnt 2098 (CA) ; R v Charbonneau , 2002 CarswellOnt 5848 (CJ) , aff’d 2004 CarswellOnt 1457 (CA) ). For example, Mr. Soni was not able to testify that he was familiar with firearms and provide detailed evidence about the firearm. There is sufficient evidence from Mr.

Soni about a rifle being pointed at his chest and the threat to shoot him to satisfy me beyond a reasonable doubt the robbery was committed with a gun of some type. [ 101 ] I am also satisfied that the words Mr. Williams spoke to the police were threats within the meaning of the law. Mr. Williams conceded he may have uttered those words and he was very upset and intoxicated at the time.

In the context of his belligerent, angry, aggressive and escalated behaviour, I accept that looking Constable Brauer in the eyes and telling him that he knew what vehicle he drives, that he knew where he lived and that he and his family are “going to get yours” and “watch your backs” were intended to be threatening and were received as threats. [ 102 ] Mr.

Williams is convicted of committing robbery while armed with an imitation firearm (s. 343(d)) and using an imitation firearm while committing an indictable offence (s. 85(2)(a)), two counts of violations of his release order, that is, being in violation of his curfew and being in possession of drugs and alcohol, possession of property obtained by crime under $5000.00, and uttering threats. Original Signed by Judge Devine C.A. DEVINE, P.J.