2017 MBPC 31, 2017 MBPC 31

Cite #2017 MBPC 31 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Danielle Simard, for the Crown ) - and - ) ) ) Zilla Jones, for the Accused Lynette Paul ) ) Judgment delivered: ) July 17, 2017 CORRIN, P.J. THE INCIDENT [ 1 ] On November 15 th , 2015 at 2:53 a.m. the Winnipeg Police Service received a call from Patrick Bailey about an incident in progress at 426 Maryland Avenue. When police arrived, at about 2:56 a.m., they were flagged down by Patrick Bailey.

Bailey spoke with Constable Douglas McDill, advising him that “Those are the people I called about – they’ve got the gun.” Bailey pointed at a white Crown Victoria that was parked nearby. Police took immediate steps to detain the four occupants of the vehicle. Brandon McIvor and Lynette Paul, both cited as co-accused in relation to the aggravated assault charge before the court, were seated in the rear passenger seats – McIvor behind the driver, Brian Iverson, and Paul behind the front passenger, Ella Hudson.

A black handgun which was later determined to be an Airsoft BB pellet gun was found under the driver’s seat. [ 2 ] After arrest, Ms. Paul was taken to the Public Safety Building where she made a statement admitting to repeatedly, three times, firing the seized firearm in the general direction of Lionel Delorme, the tenant-occupant of the suite she had visited that night (the statement was ruled to be voluntary in a previous written decision made by the court during trial proceedings). [ 3 ] Ms.

Paul told police investigator Detective Joel Bertone, that she and the three other occupants of the Crown Victoria had attended to Delorme’s residence because he owed her money. There had been a telephone exchange between her and Delorme earlier in the day which led to the four driving to Delorme’s apartment block, that they had taken weapons – McIvor had a can of bear spray and Iverson had the firearm. She admitted taking possession of the gun after they had gained entry to the suite.

She told Bertone that an argument had ensued between her and Lionel Delorme, that she punched him, he punched her back and she had then punched him again; that McIvor had then joined the fray and also punched Delorme, then thrown him on the couch where he struck Delorme with the bear spray can in the face and head area. She told Bertone that she had then shot the gun in Delorme’s direction three times before giving the gun to McIvor, who fired the gun a “few” more times. Three of the BB pellets were later found on a blanket on the couch by a police investigator, Officer Susan Desender.

A fourth pellet was also found on the floor in the same room. Desender testified that she had also observed what she believed were blood stains on the couch. [ 4 ] Patrick Bailey testified that he’d been visiting Delorme when a female and two men had arrived at the Delorme suite, that the female came in first, got mad at Delorme and pointed a gun at him. He further testified that she’d told one of the men to take him to a back bedroom where he stayed for a length of time. During this period, he said he heard yelling and screaming from the living room.

After 20 to 25 minutes he “pushed” past the sentry male and made his way to the room’s door. The female with the gun had seen him emerge from the back room and pointed the gun at him and said “Get out of here, get back there.” He’d then turned and fled from the residence via a back door and ran to a nearby 7-Eleven convenience store where he’d phoned 911 for assistance. Bailey recollected that Lionel Delorme was standing against the back wall of the living room and hadn’t appeared injured at this time.

Court was told that when he next saw Delorme, when he was being escorted by paramedics from the apartment block after police had answered his call, he appeared injured; there was blood on his face and on his shirt. Bailey told court that he had subsequently visited Delorme at the hospital and was told that he had lost an eye and had a pacemaker installed. [ 5 ] Officer Desender also visited Delorme at the hospital and took photos that show Delorme lying in bed with a cervical collar around his neck, blood on his face and a circular eye patch or plastic disc taped over his right eye.

Delorme was not called as a prosecution witness at trial. Nor did the Crown present any medical evidence respecting his injuries. CHARGES − Aggravated assault contrary to

section 268 of the Criminal Code ; − Pointing a firearm x2 (at Bailey and Delorme) contrary to section 87(1) of the Criminal Code ; − Discharge of an air gun with intent to endanger life contrary to

section 244.1 (

b) of the Criminal Code ; − Carry a concealed weapon contrary to

section 90 of the Criminal Code .

IS THE ACCUSED A PARTY TO THE ASSAULT OFFENCE? [6] The accused admitted in her statement that both she and her co-accused, Brandon McIvor, attended the Delorme residencebecause of a debt dispute that had taken place when she spoke to Mr. Delorme on the phone earlier the preceding day. They had broughtweapons – bear spray and the pellet gun. She clearly implicated both herself and McIvor as being involved in an attack on Delorme.

Shetold Detective Bertone that both of them had punched and shot Delorme, that McIvor had also struck him with the bear spray can.Bailey’s testimony is descriptive of a confrontation between Paul and Delorme. [7] The court is of the view that there is ample evidence of a common intention between Mr. McIvor and Ms.

Paul, some in theaccused’s statement and some to be found in Bailey’s testimony as previously described. [8] Section 21(2) of the Criminal Code states: “Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any oneof them, in carrying out the common purpose commits an offence, each of them who knew or ought to have known that the commissionof the offence would be a probable consequence of carrying out the common purpose is a party to that offence.” [9] The court agrees with the Crown that the context of the incident certainly suggests an objective foreseeability of bodily harm.After all, why else would Ms.

Paul and her two male confederates have armed themselves in relation to a debt dispute if they weren’tvisiting Delorme to forcibly collect money? The commission of a violent offence was obviously a probable consequence of carrying outtheir common purpose. If not, then why the weapons? [10] In R. v. Vang

(1999) Carswell Ont 66, the Ontario Court of Appeal considered whether a reasonable foreseeability of one partycommitting a violent offence was sufficient to found a conviction against the other party. The court determined such to be the case.Based on the preparations i.e. the bringing of the weapons and the actual nature of the assault, the punching and the shooting and theblows with the bear spray canister, it seems completely obvious that bodily harm of one sort or another was a probable if not certainoutcome of carrying out the unlawful partnership purpose.

To my mind there is no air of reality to the defence suggestion that theweapons were brought for self-defence. In my view McIvor, Paul and Iverson went to Delorme’s apartment with one purpose and plan: tocarry out the unlawful purpose of assaulting the victim if it were necessary in order to collect money, and to assist each other in doing so.With these determinations and this reasoning in mind I have therefore concluded that the accused, Ms. Paul, was a party to the assaultoffence.

Common Assault, Assault Cause Bodily Harm or Aggravated Assault? [11] The wording of the Information in the case at bar is as follows: 1) That BRANDON SCOTT MCIVOR and LYNETTE SUSAN PAUL on or about the 15th day of November in the year 2015 at theCity of Winnipeg in the Province of Manitoba did commit aggravated assault on LIONEL VICTOR DELORME contrary to

Section 268of the Criminal Code of Canada; [12] Aggravated assault as legislated in

section 268 of the Criminal Code of Canada reads as follows: Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [13] Exhibit 2 establishes as fact that the BB gun repeatedly discharged in Mr. Delorme’s residence was capable of “causing seriousbodily harm”. Ms. Paul admits to repeatedly discharging the firearm in the residence in Mr. Delorme’s general direction. There is furtherevidence that both co-accused were beating Mr. Delorme. Mr. McIvor was alleged by Ms. Paul to have struck Mr. Delorme with the bearspray canister and fired the pellet gun at him.

The evidence before the court is that Mr. Delorme was hospitalized for some time after theincident for injuries sustained as a result of the beating and/or shooting. [14] The mens rea of both assault cause bodily harm and aggravated assault offences is objective foresight of bodily harm and doesnot require proof of an intent to maim, wound, or disfigure, only that an accused must be reckless or wilfully blind to the fact that avictim is not consenting to the application of such force (R. v. Williams

(2003) SCC 41 at paragraph 22 and R. v. Godin (1994) (SCC), 89 C.C.C. (3d) 574 (SCC). Cory, J., in Godin, at p. 575 stated: The mens rea required for s. 268(1) of the Criminal Code, R.S.C. 1985, c. C-46, is objective foresight of bodily harm. It is notnecessary that there be an intent to wound or maim or disfigure. The

section pertains to an assault that has the consequences ofwounding, maiming or disfiguring. This result flows from the decisions of the court in R. v. DeSousa (1992), (SCC), 76 C.C.C. (3d) 124, 95 D.L.R. (4th) 595, [1992] 2 S.C.R. 944, and R. v. Creighton (1993), (SCC), 83 C.C.C. (3d) 346, 105 D.L.R. (4th) 632, [1993] 3 S.C.R. 3. (emphasis mine). [15] The Crown maintains that it has proven significant injuries were sustained by Mr. Delorme beyond a reasonable doubt.

It isfurther of the view that it has proven both the mens rea and the actus reus of the aggravated assault offence charged in the Informationbefore the court. Defence does not agree. It is of the view that the Crown has failed to prove the actus reus of aggravated assault beyonda reasonable doubt because there is insufficient evidence that Mr. Delorme was wounded, maimed or disfigured or that his life wasendangered. [16] Defence submitted that the evidence before the court is insufficient to establish precisely what injuries Delorme suffered as aresult of the assault.

In such respect defence relied on paragraph 12 of R. v. DeFreitas

(1999) M.J. No. 69 (QL), a decision of theManitoba Court of Appeal: 12 The use of a weapon in an assault will almost always create a risk of the victim being wounded, maimed or disfigured or his orher life endangered. Yet the legislation does not place an assault with a weapon in the category of aggravated assault. For this to happen,

the risk must become reality. The victim must actually be wounded , maimed or disfigured or his or her life endangered. “Endangers the life of the complainant” is thus, in my view, intended to be as much a consequence of the assault as “wounds, maims or disfigures.” (emphasis mine) [ 17 ] Defence also contended that the evidence relied upon by the Crown in such respect, that of Patrick Bailey, should not be relied on by the court because it was inconsistent with his own statement to the police and generally unreliable due to inherent testimonial inconsistencies.

Amplifying examples were provided as follows: Inconsistencies between Mr. Bailey’s police statement and his trial testimony 1) He told police he had been staying with Mr. Delorme for three or four days, but at court, said on direct examination that he was only staying there for a couple of hours (p.2, lines 25-26). On cross-examination, he agreed that the police statement was correct (p.18, line 29 – p.19, line 13).

He also for the first time claimed on cross-examination that he had been asked to be there “for safety.” 2) He told police that he was in the back room when he heard a knock on the door, but he told the court at trial on direct examination that he was sitting in the kitchen at the time that there was a knock on the door (p.22, line 19 – p.23, line 8). When confronted with his police statement on cross-examination, he said “That can’t be right” (p.21, line 30).

He then stated that he was in the kitchen at the time (p.23, line 7). 3) He told the police that a woman named Nakota, whom he knew previously, and two guys came in. One guy walked straight up to Lionel and the other was in between the bathroom and the back room, trying to keep Mr. Bailey in the back room. He did not say what the woman did. At trial on direct examination, he said that the woman came in pointing a gun and told one of the guys to take him to the back room (p. 7, lines 12-15).

On cross-examination, when confronted with his police statement, he said “What happened to her?”, her being the woman named Nakota. He did not provide police with any information as to what she was doing when she entered the apartment and certainly never said that she was pointing a gun (p.46, line 34 – p.47, line 8). 4) He told police Mr. Delorme had a telephone conversation with someone before the individuals showed up, and that they came about 20 minutes after that conversation, but in cross-examination, he said it was a good hour, and could not remember which was correct (p.17, lines 32 – p.18, line 8).

Inconsistencies within Mr. Bailey’s trial testimony 1) Mr. Bailey initially told the court on direct examination that Mr. Delorme’s wife opened the door to these individuals and that he didn’t think he left the kitchen when the knock came (p.7, lines 1-2). He then said in cross-examination, “Maybe I went to the back room, opened the door” (p.24, lines 20-21) but that he couldn’t remember (p.24, lines 22-23). Later on cross-examination, he changed his story again and said that he went to see who was at the door and followed them back to the kitchen (p.31, lines 4-16).

He also said unequivocally that he did not open the back door (p.22, line 2). 2) Mr. Bailey initially stated that he was sitting in the kitchen when the individuals arrived, and maintained this position on cross- examination (p.23, line 7) but then said he was standing around the back door area (p.30, lines 8-17) and went back and forth as to where exactly he was and what exactly he was doing. I note that Ms. Paul said that she entered the apartment building first, which is the same thing Mr.

Bailey is saying, which would suggest that he answered the door or was in that area, but that then raises the question as to why he would have said something contrary to the police. 3) Mr. Bailey stated on direct examination that the female assailant, a person known to him as Nakota, was wearing a black sweater, and he didn’t know what else she had on. He then said that she also had on black pants (p.14, lines 10-14). On cross-examination, he said that she had a gun in her jacket (p.27, lines 23-24).

He had never said that she had a jacket on, and had earlier said he couldn’t remember what else she was wearing. 4) Mr. Bailey said that he was at the apartment for safety purposes, to watch over the building (p.9, lines 14-18). He then said that individuals came in to the apartment with bear spray and a gun, one of them took him to the back room, and he stayed there for a while. After several minutes, he went to see what was going on, saw a gun, and left the apartment.

He was able to push past the “guy” who was supposed to be keeping him in the back area and the “guy” did not follow him or attempt to stop him (p. 29, lines 14-19). This brings into question if the person was really keeping him in the back room, especially when Mr. Bailey claims he left while yelling that the drug dealing in the building had to stop, which would have drawn attention to him leaving (p.10, line 33 – p.11, line 4). 5) Mr. Bailey also said he was in the apartment for safety purposes, and left when he saw a gun pointed at himself.

As pointed out to him in cross-examination, it does not make sense that he would see a gun pointed at Mr. Delorme, who he claimed he was there to protect, and that he would not immediately take action. It makes more sense that the first time he saw the gun was right before he left the apartment to call police. Mr. Bailey’s response was that he didn’t know what she was going to use the gun for (p.27, lines 7-15 – p.28, lines 11-27). 6) Mr. Bailey said on direct examination that when police arrived on scene, he said to them that the people who did the shooting were in the white car (p.13, line 29-31).

On cross-examination, he agreed that at that point, he didn’t know that there had been a shooting and so he could not have said that (and in fact, police say he said something different) (p.34, line 10 – p.36, line 25). Examples of Mr. Bailey’s unreliability 1) Mr. Bailey claimed that he knew the woman who came into the apartment as “Nakota” and that he identified her to police as having got into a white car outside Mr. Delorme’s apartment building, through the driver’s side back door (p.12, line 14 – p.13, line 7). Police removed Lynette Paul from that vehicle and arrested her.

She was occupying the passenger side of the back seat. Mr. Bailey said that he identified the person he knew as “Nakota” as number 1 in the line-up (p.16, line 1). He told the court that he had seen Nakota three or four times in the week before the incident for about 20 minutes each time (p.20, lines 7-30). He also said that she had black hair that was medium or short and could have been short, and that she always wore a baseball cap (p.49, line 25 – p.50, line 4).

This raises concerns even without identity being in issue, as Ms. Paul put herself at the scene of the incident in her police statement. Firstof all, it brings Mr. Bailey’s reliability into question if he is unable to correctly identify a person he claims to have seen for that length oftime. Alternately, it may be that his claims of having seen her dealing drugs at the apartment are false. Secondly, the court was asked tonote that Ms. Paul had very short hair when she appeared in court on the day that Mr. Bailey testified, but had long hair down past herwaist in the police video made right after the incident.

Even with a baseball cap on, that amount of hair would need to be either in a longponytail hanging out of the cap or a large wad of hair causing the cap to bulge. The fact that Mr. Bailey was incorrect about hair lengthindicates a lack of reliability in his memory of events from that day, which is particularly relevant to things he never told the police. Italso could indicate an attempt to tailor his evidence to favour the Crown, as the accused in court had short hair. 2) Mr. Bailey clearly had difficulty remembering events and, as described above, flip-flopped on several facts.

He said he wasconfused when talking to police (p.25, lines 28-29), that he was scared and that made him confused, (p.39, lines 27-32), and that, whilehe was sober and not intoxicated by any drugs when he was speaking with police, he was tired from working all day and that could haveimpacted his memory (p.40, lines 20-23). 3) Mr. Bailey’s evidence does not match that of other witnesses. For example, police testified that they arrived on scene within aboutthree minutes of being dispatched, but Mr.

Bailey said that it took 15 minutes (p.43, line 32 – p.44, line 4). [18] The court agrees with defence’s submission on this point. As such, the court is unable to conclude that Mr. Delorme sufferedloss of his eye or any other serious injury as a consequence of the assault. It was the Crown’s position that there was neverthelesssufficient evidence to convict Ms. Paul of the included offence of assault cause bodily harm. The Crown argued that the evidence ofDelorme’s injuries as received at trial meet the requirements set out by the Manitoba Court of Appeal in R. v. Moquin, 251 Man.

R. (2d)160, 2010 MBCA 22. [19] The relevant sections of the Criminal Code are

section 127(

b) and

section 2, which state as follows: 267 Assault with a weapon or causing bodily harm – Every one who, in committing an assault, . . . . . (

b) Causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summaryconviction and liable to imprisonment for a term not exceeding eighteen months. 2.

Definitions – In this Act, “Bodily harm” means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merelytransient and trifling in nature”. [20] In Moquin, the Manitoba Court of Appeal, at paragraphs 23 through 25 effectively describe what constitutes bodily harm withinthe meaning of

section 2 and

section 267 as follows: 23 What constitutes bodily harm within the meaning of

section 267 and

section 2 was considered by Esson J.A. in Dixon, as follows(at paragraph 331-32): … The judge clearly found a number of facts. The victim suffered bruises on her arm and head and a laceration two to three inches inlength on the back of her head. That wound took “some 10 days to heal”. She was “all better within a matter of a month”. Having foundthose facts, the judge had to apply the Code’s definition of bodily harm. That required him to decide whether the hurt or injury interferedwith the victim’s health or comfort and whether it was more than merely transient or trifling in nature.

I leave aside the question whetherthere was interference with health because, if there was interference with comfort, that is enough. Transient, trifling and comfort are all words in common usage. The Shorter Oxford English Dictionary, 3rd ed., vol. II, defines “transient” at p. 2346 as: “Transient 1. Passingby or away with time; not durable or permanent; temporary, transitory; esp. passing away quickly or soon, brief, momentary, fleeting”.At p. 2362, it defines “trifling” as: “Trifling…3. Of little moment or value; trumpery; insignificant, petty”. At pp. 373-4, vol.

I, it defines“comfort” as: “Comfort… The condition or quality of being comfortable”. Clearly, as employed in s. 245.1(2) [now s. 267(b)], those words import a very short period of time and an injury of very minor degreewhich results in a very minor degree of distress. The findings that “there is no evidence of any interference with the victim’s health or comfort” and that “an injury that lasts no longerthan a month would fall within the definition of being transient and trifling” demonstrate, in my view, an absence of any reasonableregard for the ordinary meaning of the words.

From the time of the assault at least until the medical treatment was completed, it is clearthat the victim must have been deprived of any sense of comfort which she might have had before being assaulted. The element ofinterference with comfort, which is all that the definition requires, must have continued for some time after that. The interference withcomfort resulted from a significant injury – one which cannot be described as trifling. There is no necessary connection at all between theduration of the injury and the question whether it is trifling – a life-threatening injury is often resolved in a short time.

Transient doesrelate to time but, in this context, it is simply insupportable to describe as transient an injury that “lasts no longer than a month”. There were errors as to the

interpretation of the language of the Code. … 24 This finding in Dixon has been applied in a number of appeal cases, including: R. v. K. (C.), 2001 BCCA 379 (B.C. C.A.); R. v.G. (T.), 1999 BCCA 512, 129 B.C.A.C. 148 (B.C. C.A.); and R. v. Van De Wiel (1997), (NS SC), 158 N.S.R. (2d)368 (N.S.S.C.).

25 Examples of injuries that have been found by courts of appeal to constitute bodily harm within

section 2 of the Code are asfollows: • scrapes, lacerations and bruises, especially around the eye and a large amount of hair which had been pulled out by the roots – thecourt observed that significant bruising will obviously cause discomfort and inconvenience for more than a brief and transitory period –R. v. Dorscheid, 1994 ABCA 18 , [1994] A.J. No. 56 (Alta C.A.); • superficial injuries, consisting primarily of bruising and abrasions, were found at trial to have interfered with the complainant’shealth and comfort, which decision was upheld on appeal – R. v. Rabieifar, [2003] O.J. No. 3833 (Ont.

C.A.); • a number of bruises to the neck and arms, a number of lacerations to the face, chest, shoulder and wrist which cleared up within aweek, difficulty speaking for three or four days as a result of choking and a scar on her forearm from a laceration – the court notes (1)that it was incorrect to find that an injury that would heal within a week could not constitute bodily harm, as life-threatening injuries canbe of short duration, and, (2) one must look at the overall effect of a number of injuries, each of which may be trifling, but taken togethermay be more than trifling and transient – Garrett; and • a sore neck that lasted for approximately one month – the court also noted that medical evidence is not required before making afinding of bodily harm – R. v .Giroux, 1995 ABCA 393 , [1995] A.J.

No. 900 (Alta. C.A.). [21] I am, on the basis of Moquin, satisfied that the evidence of the hospital photographs, Bailey’s description of Mr.

Delormewalking to the ambulance with blood on his face and shirt and having visited Delorme when he was staying at the hospital and havinginferentially then discussed Delorme’s eye injury with him, is cumulatively sufficient to meet the Crown’s burden respecting bodily harmi.e. that Delorme did in fact suffer injuries that interfered with his health and were more than trifling and transient in nature. [22] That being said, the court is not satisfied beyond a reasonable doubt that the Crown has proved that Mr. Delorme eitherpermanently lost sight in or lost his injured eye.

The court observes that it is possible that Mr. Delorme erroneously believed one or theother was or would be the final consequence of the assault but such an opinion was not consistent with the final outcome. It is the court’sview that a treating physician’s or hospital provided medical report or vive voce testimony would be necessary to provide conclusiveevidence on such matters absent the testimony of Mr. Delorme. I accordingly convict the accused of assault cause bodily harm and notaggravated assault. Has the Crown Proven that the Accused Discharged an Air Pistol with Intent to Endanger the Life of Mr.

Delorme Pursuant toSection 244.1 of the Criminal Code? [23]

Section 244.1 of the Criminal Code states as follows: 244.1 Every person who, with intent (

a) to wound, maim or disfigure any person, (

b) to endanger the life of any person, or (

c) to prevent the arrest or detention of any person, discharges an air or compressed gas gun or pistol at any person, whether or not that person is the person mentioned in paragraph (a), (b)or (c), is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. [24] The defence contends that the accused cannot be convicted of this charge because there is no evidence before the court that anair pistol with a muzzle velocity of the gun so employed can in fact endanger life.

Defence argues that since the count in the Informationwas narrowly drafted and not amended, and as such did not include the other ways the actus reus of the offence may be committed i.e.by maiming, wounding or disfiguring, that the court cannot convict the accused. Defence relied on the dicta contained in R. v. Sweeney;R. v.

Kirton, 2003 MBCA 46 at paragraphs 9 and 10 in such respect: 9” Here, instead of leaving all of the elements named in the Code for the consideration of the court, the drafter of the indictmentschose to significantly narrow the charge to the single allegation that each accused “did unlawfully endanger the life” of the victim.“Wounding”, “maiming,” or “disfiguring” were omitted as elements of the offence.

Once the trial judge found that there was noevidence of endangering life, the only conviction that she could have imposed was guilty of assault simpliciter.” 10” The issue to be resolved in these motions would not likely have arisen if the original indictments had charged the accused byusing the all-inclusive words with which s. 268(1) of the Code begins (that is, that each did “commit an aggravated assault”).

It wasneither necessary nor useful for the Crown to isolate only one of the four possible components of the offence and thereby restrict thescope of the allegation to an assault which “endangers the life” of the victim. It eliminated “wounding,” “maiming,” and“disfiguring” as elements of the offence. Therefore, when the judge concluded that there was no evidence that life has beenendangered, the only other conviction that could have been imposed by her was guilty of assault simpliciter.” (emphasis mine) [25] The court agrees with defence’s submission and therefore acquits the accused of this charge.

The court concurs that the words“wounding”, “maiming” and/or “disfiguring” were not contained in the count as originally pled and the Crown did not move to amendsame prior to the conclusion of its case or for that matter, at any time. Has the Crown Proven that the Accused Pointed a Firearm at Lionel Delorme Pursuant to Section 87(1) of the Criminal Code? [26] Defence argues that Ms. Paul’s disclosure to Detective Bertone didn’t reference shots fired by her at Mr. Delorme, shots thatwould require her to have pointed her pistol at him. Ms.

Jones takes the position that the only evidence of such ‘pointing’ was to befound in the testimony of Mr. Bailey, and that he was an unreliable witness and as such, one whose testimony could not be the basis for a

conviction. [ 27 ] I disagree with defence’s submission. In my view Ms. Paul’s police statement incriminates her in this respect. She described Delorme being repeatedly hit in the face and head by the co-accused, McIvor, after being thrown on to the couch by the co-accused. She then confirms that this is the point when she started firing the gun, according to her at least three times.

She tells Bertone that she’s unsure if she shot Delorme or McIvor or both; this is presumably because they were very close together and both likely moving to some extent in the course of McIvor’s assault (see page 55, lines 3-8 of transcript). The court infers that the accused must have pointed the gun at Delorme, her intended target, prior to pulling the trigger. Accordingly, I convict the accused of this offence.

Has the Crown Proven that the Accused Pointed a Firearm at Patrick Bailey Pursuant to Section 87(1) of the Criminal Code ? [ 28 ] I agree with defence that I can only find the accused guilty of this offence if I accept the evidence of Mr. Bailey in this respect as it is the only evidence available to the court respecting this charge. The defence characterized Bailey as an unreliable and inconsistent witness. As I have previously discussed, I generally concur with defence’s opinion in this respect. For this reason I do not feel safe relying on Bailey’s uncorroborated evidence on such point.

For this reason I possess and declare a reasonable doubt about the accused’s guilt in this regard. Accordingly, I must acquit her with respect to this charge. Has the Crown Proven that the Accused Carried a Concealed Weapon Pursuant to

Section 90 of the Criminal Code ? [ 29 ] The Crown itself referred to the evidence as being “somewhat equivocal”, essentially admitting that its case is weak, that there may be insufficient evidence to ground this charge. Police located both weapons, the pellet gun and the bear spray inside the vehicle. Neither were seized from the accused’s person. For these reasons I acquit the accused of this, the final charge. “Original signed by:” CORRIN, P.J.