R. v. Connell Date:, 2017 BCPC 123

Citation: R. v. Connell Date: 20170503 2017 BCPC 123 File No: 94759-C2 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TIMOTHY EDWARD CONNELL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: P. Ng Counsel for the Accused: L. Pippard Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: January 9-10, February 7 and March 6, 2017 Date of Judgment: May 3, 2017

INTRODUCTION [1] In the early afternoon of October 26, 2015, three people were gathered together in the kitchen of a residence located at 1039Stewart Avenue in Coquitlam, B.C. (the “Singh Residence”) when an incident occurred. One of those present was Crown witnessAndrew Singh (“Mr. Singh”), the primary resident at — though not the owner of — the house located at that address. Another wasCrown witness Jared Davidson (“Mr. Davidson”) and still another was the accused Timothy Edward Connell (“Mr. Connell”). Theincident involved the discharge of a firearm (a handgun) and in the course of it Mr.

Singh suffered a gunshot injury to his left ankle. Mr.Davidson, Mr. Singh and one other witness — namely, Barry Stewart (“Mr. Stewart”) — gave Crown evidence concerning the notedincident and the circumstances surrounding it. Mr. Connell elected to call a case and testified in his own defence, offering an account ofthe material events that differed markedly from the accounts given by the Crown witnesses. [2] While it is common ground between Crown and defence that Mr. Connell did not intend to shoot Mr.

Singh with the handgun,it is nevertheless alleged that in the lead-up to, during and following the incident (that is, from October 25-27, inclusive), Mr. Connellcommitted eight firearms offences as outlined in an Indictment No. 94759-C2. (For the sake of brevity and simplicity, the offencedescriptions set out below are paraphrased from the precise language found in the Indictment): (

a) Count 1: Possessing a prohibited/restricted or non-restricted firearm knowingly without a licence or registration certificate (contraryto s. 92(1) of the Criminal Code); (

b) Count 2: Occupying a motor vehicle knowing there was a prohibited/restricted or non-restricted firearm in the vehicle (contrary to s.94(1)); (

c) Count 3: Possessing a loaded, prohibited/restricted firearm without an authorisation or licence or registration certificate (contrary tos. 95(1)); (

d) Count 4: Without lawful excuse, carrying and handling a firearm in a careless manner (contrary to s. 86(1)); (

e) Count 5: Without lawful excuse, pointing a firearm, whether loaded or unloaded, at Mr. Davidson (contrary to s. 87(1)); (

f) Count 6: Possessing a handgun for a dangerous purpose or for the purpose of committing an offence (contrary to s. 88(1)); (

g) Count 7: Intentionally discharging a firearm at the Singh Residence, knowing or being reckless as to the presence of others there(contrary to s. 244.2(1)); and (

h) Count 8: Using a weapon, namely a handgun, while committing an assault upon Mr. Davidson (contrary to s. 267(a)). [3] It is plain, given the divergences between the factual accounts given by Messrs. Davidson, Singh and Stewart for the Crown,and that given by the accused Mr. Connell for the defence, that the court’s assessment of the credibility of all witnesses at trial will be aprominent factor in determining whether the Crown succeeds in proving, to the requisite criminal standard of “beyond a reasonabledoubt,” that Mr.

Connell committed some, none or all of the offences alleged in Indictment No. 94759-C2. [4] The law concerning the determination of credibility in cases, like the present case, where an accused calls exculpatory defenceevidence is well-settled. It is defined in the protocol set out by the Supreme Court of Canada in R. v. W.D., (SCC),[1991] 1 S.C.R. 742 as augmented by the B.C. Court of Appeal in R. v. H.(C.W.), (1991), (BC CA), 68 C.C.C. (3d)146 (C.A.). Applying that protocol to the case at bar, on each count: (

a) If I believe the exculpatory evidence of Mr. Connell (the only defence witness), I must acquit him; (

b) If, after a consideration of all of the evidence I am unable to decide whether to believe the exculpatory evidence of Mr. Connell, Imust acquit him; (

c) If I do not believe the exculpatory evidence of Mr. Connell but am left in reasonable doubt by it, I must acquit him; and (

d) Even if I am not left in reasonable doubt by the exculpatory evidence of Mr. Connell, I must ask myself whether — on the basis ofthe evidence I do accept — whether I am convinced beyond a reasonable doubt by that evidence of his guilt. [5] Finally in this introduction, before turning first to set out the Crown and defence theories of this case, I will candidlyacknowledge that in these Reasons for Judgment I have not made reference to all of the testimony given by the witnesses who werecalled, or to all of the documentary evidence that was received and marked.

I have, rather, referred to evidence that I consider itnecessary to mention in connection with my factual findings and the legal conclusions that flow from them. In places I have mademention of evidence that I have been unable to accept, and of the reasons why I have been unable to accept it. If evidence is notmentioned in this decision, both Crown and defence may take comfort that the omission is not the result of my not having taken note ofit. I have read all of the transcripts from end to end. I have done the same with all of the documentary exhibits.

If witness testimony ordocumentary evidence do not come up for specific mention in these reasons, that is because: (

a) The evidence was not relevant; (

b) The evidence is to the same effect as other evidence of which mention has been made; or (

c) The evidence was tendered in support of alleged facts I have not found and arguments that I have not accepted, having regard to thefacts that I have found and the arguments that are supported by those facts. [6] That it is an acceptable practice for a trial judge to confine him or herself, in Reasons for Judgment, to a compressed and

somewhat selective canvassing of the evidence heard at trial is well established on the authorities. The law is clear that where there is substantial support in the record for a trial judge's findings and the inferences drawn from them, the trial judge does not make a reversible error by failing to refer to every item of evidence that was adduced: see, for example, R. v. Tse , 2013 BCCA 121 at para. 56 ; R. v. Blacklaws 2012 BCCA 2017 at para. 50 (aff’d, 2013 SCC 8 ); and R. v. Dinardo , 2008 SCC 24 at para. 30 . THE CROWN’S THEORY [ 7 ] I begin by offering the following

summary of the Crown’s theory of the case against Mr. Connell based upon the evidence led at trial, mainly by Crown witnesses, and the opening statement and closing submissions of Crown counsel, Mr. Ng. [ 8 ] Shortly before the subject incident, Mr. Connell had experienced violence at the hands of others whom he considered were acting at the direction of, or under the influence of, one John Cliffe (“Mr. Cliffe”). Bad blood existed between Mr. Connell and Mr. Cliffe resulting from a business dispute some years earlier that led Mr. Connell to report Mr. Cliffe to police for theft. Mr.

Cliffe retaliated by driving his truck into Mr. Connell while he was walking on a sidewalk, causing him to suffer significant personal injuries. In an ensuing personal injury action he brought against Mr. Cliffe, Mr. Connell recovered a significant money settlement (approximately $160,000). Having denied coverage to Mr. Cliffe (given the criminal nature of the “accident” that had caused Mr. Connell’s injuries), ICBC had determined that it would pursue Mr. Cliffe to obtain reimbursement from him of the substantial sum owing to Mr.

Connell pursuant to his personal injury settlement. [ 9 ] Shortly before the incident giving rise to the present charges, the proceeds of Mr. Connell’s ICBC settlement were expected to arrive in his hands. Mr. Connell was fearful that this fact was known to Mr. Cliffe and that Mr. Cliffe might attempt to steal those proceeds from him. Indeed, Mr.

Connell was the subject of a robbery shortly before his ICBC settlement monies reached him (in the month before the incident that occurred at the Singh Residence), during the course of which he was subjected to considerable violence but which did not result in any money being taken. Some tools were stolen, however. Mr. Connell was eventually able to escape from his assailants but they vowed to return. He believed that persons associated with Mr. Cliffe were responsible for the robbery and he believed that they would strike again.

For that reason, he obtained an illegal, restricted/prohibited handgun from a drug-dealer friend in order to defend himself. [ 10 ] Crown witness, Mr. Davidson, was an acquaintance of Mr. Cliffe’s; he was also an acquaintance of Mr. Connell’s. He and Mr. Connell had done business together in the past (in the course of which Mr. Davidson had sold him some tools). Mr. Davidson had also asked Mr. Connell to lend him money once but Mr. Connell refused. Mr. Connell had mentioned the robbery to Mr. Davidson the day before the incident at the Singh Residence and he had a suspicion that Mr.

Davidson may have been one of the people who were conspiring with Mr. Cliffe to injure or rob him in the future. This suspicion arose from things Mr. Connell had been told by others. [ 11 ] Crown witness, Mr. Stewart, was an acquaintance of Mr. Connell’s as well. Again, the connection was mainly a business connection with Mr. Connell occasionally purchasing scrap metal from him. Indeed, Mr. Connell and Mr. Stewart drove together in Mr. Connell’s truck to the Singh Residence on the day of the subject incident for the purpose of picking up some wire there. On the way, Mr. Connell showed Mr.

Stewart a handgun that he had tucked into his trousers, explaining that he had recently been the subject of a robbery and that he believed Mr. Cliffe or persons associated with him might attempt to hurt and rob him again. [ 12 ] Upon arriving at the Singh Residence to deal with the scrap wire, Mr. Connell and Mr. Stewart walked together into the front yard. Mr. Connell recognised Mr. Davidson among several people standing there and, walking more quickly and away from Mr. Stewart toward the house, he approached Mr.

Davidson and directed him around to the back yard and then into the kitchen of the Singh Residence through a back door. Once inside the kitchen that direction became physical with Mr. Connell guiding Mr. Davidson’s movements while having his hand on Mr. Davidson’s shoulder. While doing so he and Mr. Davidson were arguing. The kitchen was empty of other people when they first entered it and, with Mr. Connell guiding Mr. Davidson physically, they proceeded together to the back of it, near a hallway. There the argument continued, its subject matter being Mr.

Connell’s accusation — based on rumours he had heard — that Mr. Davidson was planning to rob him. [ 13 ] As they arrived at the back end of the kitchen, and while Mr. Connell had his left arm around Mr. Davidson’s left shoulder, he (Mr. Connell) pulled a gun out of his clothing with his right hand, brandished it and at times pointed it at Mr. Davidson. Mr. Connell went on to say in the course of their ongoing argument that if in fact he had any such plans, he would learn the hard way that Mr. Connell would not put up with such behaviour. Mr.

Davidson continued protesting loudly in return, denying that he would ever be involved in any such plan or conspiracy and asking Mr. Connell, incredulously, whether he was “crazy” or “nuts.” Heated words of the same kind continued to be exchanged between him and Mr. Davidson for a while longer, with Mr. Davidson raising forceful objections to Mr. Connell’s accusations, demanding to know who the source of the rumours was and saying generally that the way Mr. Connell was behaving was not the way to do things. As noted, during parts of the arguing Mr. Connell held the gun in his right hand. [ 14 ] In answer to Mr.

Davidson’s pressing questions about his sources, Mr. Connell attributed the rumours to a couple of persons with drug problems (a “Kenton” and a “Billy-Jo”). This made Mr. Davidson even more angry and his exchanges with Mr. Connell became louder — sufficiently so to attract the attention of Mr. Singh who then entered the kitchen. [ 15 ] At this point, Mr. Davidson and Mr. Connell were standing somewhat apart and Mr. Connell had the gun in his hand. Mr. Davidson then began to explain to Mr. Singh that he was being threatened by Mr. Connell and being accused falsely of planning to rob him. Coming to Mr.

Davidson’s defence, Mr. Singh joined in with him, arguing with Mr. Connell in an attempt to convince him to back off and settle down. Together they sought to persuade Mr. Connell that instead of continuing what he was doing with Mr. Davidson, he would be better advised to approach the whole matter differently and, perhaps, follow up with the persons — that is, Kenton and Billy-Jo — who were said to be the source of the rumours. However, when Mr. Davidson suggested that if he (Mr. Connell) were to take the matter up with the people spreading the rumours, it would be best if he did so without using a gun, Mr.

Connell became more agitated again and replied, “Fuck that,” pointing the handgun at the floor, saying “I’m going to do my talking with this!” at which point it discharged, leaving the impression that Mr. Connell had pulled the trigger as a means of lending emphasis to his statement with a dramatic, explosive exclamation mark.

[ 16 ] Immediately after the handgun was discharged it became apparent that Mr. Singh had been struck in the ankle with a bullet. Mr. Singh accused Mr. Connell of shooting him and Mr. Connell denied that he had done so. At that point Mr. Stewart came into the kitchen. There was general confusion as others entered. Mr. Connell apologised repeatedly to Mr. Singh, saying that he had not intended to injure him and soon thereafter Mr. Connell and Mr. Stewart helped Mr. Singh to Mr. Connell’s truck. Mr. Connell then, alone, drove him to the hospital after first stopping, briefly, at Mr.

Connell’s home to get rid of the handgun that had been involved in the incident. [ 17 ] Subsequently, and in the early hours of the morning following the incident at the Singh Residence, Mr. Connell was driving his truck accompanied by his spouse, Kim Collins (“Ms. Collins”) and Mr. Stewart when police pulled him over. Given the events of the preceding day, Mr. Connell was not surprised at being stopped by police. All three of the vehicle’s occupants were arrested and a search incidental to arrest turned up a restricted or prohibited firearm, namely, a 9 mm. Norinco pistol, in Ms.

Collins’ purse — the same handgun that was involved in the incident at the Singh Residence and caused the injury to Mr. Singh’s ankle. THE DEFENCE’S THEORY [ 18 ] I now offer a

summary of the defence’s theory of the case based mainly upon the evidence led at trial from Mr. Connell himself — the only defence witness — and the opening statement and closing submissions of defence counsel, Mr. Pippard. [ 19 ] The defence theory of the case does not differ markedly from that of the Crown with regard to the existence of bad blood between Mr. Cliffe and Mr. Connell dating back to Mr. Connell’s accusation that Mr. Cliffe had stolen from him years before. That accusation got Mr. Cliffe into serious trouble and he retaliated by running Mr.

Connell down with his truck, causing him significant injuries that ultimately led to a substantial ICBC settlement in Mr. Connell’s favour. ICBC then, in turn, began pursuing Mr. Cliffe to recover what it was obliged to pay out to Mr. Connell and he (Mr. Connell) was fearful that Mr. Cliffe would come after him to steal his settlement proceeds when they ultimately arrived in his hands. [ 20 ] Mr. Connell believed the reasonableness of his fears was confirmed when, not long before the incident that is at issue in this case, he was badly beaten and injured by some men in a robbery at his home.

It came a short time before his ICBC settlement proceeds were meant to arrive and, thus, the robbers left without taking that, or any, money (although they did steal some tools). However, the robbers threatened to return. Mr. Connell believed and believes that those robbers were people acting at the direction or under the influence of Mr. Cliffe and, in order to protect himself in the event of future attempts, after the robbery he obtained an illegal handgun from a drug-dealer friend, one Roy Atley (“Mr. Atley”).

He only kept that handgun at home to protect him and his wife there and did not ever have it in his possession outside his residence, either on the day of the incident giving rise to the charges in this case or at any other time. [ 21 ] On the alleged offence date, Mr. Connell attended at the Singh Residence to purchase some scrap metal. After loading it up in his truck, he went to the back yard where another pile of scrap wire was located and when looking through that wire he came across a satchel under the pile. He picked it up and because it seemed heavy, Mr.

Connell opened its zippered top to see what was inside and immediately recognised that it contained a handgun. After making that discovery he walked from the back yard through the back kitchen door of the Singh Residence and into the kitchen where Mr. Singh and Mr. Davidson were standing. He approached them with the unzipped satchel, saying words to the effect of “Hey, look, I found this in your yard,” spreading the satchel’s sides apart to reveal its contents. [ 22 ] Neither Mr. Singh nor Mr. Davidson reacted in a shocked way to the sight of the handgun. Rather, their reaction was to ask Mr.

Connell to pass the satchel containing it over to them, so they could see it — a reaction that Mr. Connell found “very odd”. At that point both men’s body language changed, Mr. Singh seemed to become angry and they both stepped toward Mr. Connell in a manner he considered aggressive, such that all three men were all standing very close together. Then Mr. Davidson and Mr. Singh began reaching for the satchel, with Mr. Davidson actually getting hold of it briefly. Mr. Connell resisted this by pushing him away by the neck, causing him to move backward. Mr.

Connell was thus able to regain a two-handed grip on the satchel, wrest it away from Mr. Davidson and throw it toward the corner of the kitchen near the cupboards, during the course of which manoeuvre the handgun discharged. [ 23 ] Immediately after the handgun discharged, Mr. Singh began yelling, complaining about a burning sensation in his foot. Realising that he (Mr. Singh) had been struck by a bullet, Mr. Connell began saying apologetic things to Mr. Singh and protesting that he had not intended to cause Mr. Singh’s injury. [ 24 ] Thereafter, chaos reigned. Mr. Connell got a towel and wrapped it around Mr.

Singh’s foot to control the bleeding and then, together with Mr. Stewart, they helped him to Mr. Connell’s truck and drove him directly to the hospital without stopping anywhere on the way. While he did not stay with Mr. Singh, Mr. Connell knew that his licence plate number had been taken at the time he dropped Mr. Singh off to be treated for his gunshot wound and that he would likely be arrested in connection with the incident. [ 25 ] Subsequently, and in the early hours of the morning following the incident at the Singh Residence, Mr. Connell was driving his truck accompanied by his spouse, Ms. Collins, and Mr.

Stewart when police pulled him over. This was not a surprise to Mr. Connell, given the preceding day’s events and the fact that he had effectively identified himself, by license plate number, when he delivered Mr. Singh to the hospital. All three of the vehicle’s occupants were arrested and a search incidental to arrest turned up a restricted or prohibited firearm, namely, a 9 mm. Norinco handgun, in Ms. Collins’ purse. While that is the firearm that Mr. Connell had obtained for his own protection, it is not the handgun that was involved in the incident at the Singh Residence. It was Mr.

Connell’s practice to leave that handgun at home to guard against future robberies by the associates of Mr. Cliffe and Mr. Connell did not know that Ms. Collins had it with her in her purse when they were out driving with Mr. Stewart shortly after the incident when they were stopped and arrested. ANALYSIS [ 26 ] As should be plain, the two versions of the events that unfolded before, during and after the incident at Mr. Singh’s house in the early afternoon of the alleged offence date of October 26, 2015 comprising the Crown’s theory and the defence’s theory are irreconcilable and cannot both be true.

Indeed, it is possible that neither version is true. However, the court’s responsibility is not simply to choose between the Crown and defence theories or the bodies of evidence that support them. Rather, the court’s duty is to

determine whether the Crown has met its onerous burden of proof with respect to each of the charges Mr. Connell faces, having regard toall of the evidence adduced at this trial and the applicable law. Proof of the key facts that feature in the Crown’s theory beyond areasonable doubt would support conviction of some or all of the offences with which Mr. Connell is charged. For each count, however,if I believe the evidence that supports the defence’s theory, or even if disbelieving it I conclude that that evidence is sufficient at least toraise a reasonable doubt, then the Crown will not have met its burden and Mr.

Connell will be entitled to an acquittal. Should I Disbelieve Mr. Connell’s Alternative Explanation of the Subject Events? [27] The defence’s theory of what happened in Mr. Singh’s kitchen on October 26, 2015, is built wholly upon Mr. Connell’scontention, addressed in detail in his defence testimony, that he found the subject handgun in a satchel under a pile of scrap wire in theback yard, took it into the kitchen to show Mr. Singh and Mr. Davidson, and that it discharged as he threw the satchel into the corner ofthe kitchen when Mr. Singh and Mr.

Davidson surged aggressively toward him, trying to get hold of it. [28] Mr. Ng submits that I should reject the defence theory outright and that Mr. Connell’s testimony in support of it is whollyunworthy of belief. I hasten to repeat that both counsel recognise that even if I accept that submission and reject Mr. Connell’sexculpatory evidence as being wholly lacking in credibility, I must still — on the third and fourth branches, respectively, of theaugmented R. v.

W.D. protocol summarised earlier in these Reasons — consider whether that evidence still raises a reasonable doubt and,even if it does not, I must consider whether on the basis of the evidence I do accept I am persuaded of Mr. Connell’s guilt beyond areasonable doubt. [29] I will say now, for the reasons I am about to give, that I do indeed reject Mr.

Connell’s evidence about what happened in Mr.Singh’s kitchen as being not credible. [30] The first, and perhaps the most compelling, of the bases I cite for having reached that conclusion is the fact that no part of Mr.Connell’s alternative explanation figured in the warned statement he gave to police only hours after the events in question unfolded. [31] During his cross-examination at trial, Mr. Connell acknowledged that after his arrest in the early morning hours of October 27,2015, he gave a warned statement about the subject events to police.

He gave that statement after he exercised his right to speak withcounsel and was advised not to say anything until he spoke to his regular lawyer. Mr. Connell chose to proceed with the giving of astatement to police despite receiving that advice and moreover he concedes that that statement was voluntary and is otherwise not subjectto Charter challenge: see Exhibit 1, paras 1, 3 and 11. [32] Importantly, in his police statement Mr. Connell included detail about, for example, his concern about his safety and the threathe believed was posed to him by Mr. Cliffe.

But there was absolutely no mention made of the version of events that has now been raisedat trial as the central pillar of his defence to the charges he faces. That is, nothing was said by Mr. Connell about finding a gun in asatchel in Mr. Singh’s back yard. Nothing was said about taking the gun in the satchel into the kitchen to show it to Mr. Singh and Mr.Davidson. Nothing was said about the two men taking an unseemly interest in the handgun and surging toward him and grabbing for it. Nothing was said about the handgun discharging when Mr.

Connell threw it into a corner of the kitchen to keep it away from Mr.Davidson and Mr. Singh. [33] The missing content does not consist merely of points of minor detail. The missing content comprises the defining structuralelements of the entire defence theory of this case. [34] When asked about the omissions from his police statement, Mr. Connell contended that he held those aspects of the narrativeback, wanting to talk to his regular lawyer first before disclosing them: see Transcript, February 7, 2017, p. 68. [35] Mr.

Connell’s contention that he freely discussed with police the back story to the events that unfolded in Mr. Singh’s kitchen,but withheld the elaborate and exculpatory version of events he now offers to the court in evidence and argument at trial, is not credible. [36] Mr. Connell would have the court believe that, when speaking with police at the first opportunity, he chose to unburden himselfof some of the story but held back the part of it that has the greatest potential to exculpate him.

He asks the court to accept that, ratherthan simply stand silent (as the lawyer he first called advised), he chose to speak to police about everything but the part of the narrativethat has exculpatory significance, exposing himself to the argument later, when that part of his narrative did finally emerge, that it shouldbe taken to be a post facto concoction because it was not mentioned at the earliest opportunity. [37] In the language of the law, Mr.

Connell’s contention that he acted in a manner that is wholly and demonstrably inimical to hisown interests lacks harmony with "... the preponderance of the probabilities which a practical and informed person would readilyrecognize as reasonable in that place and in those conditions": Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354(C.A.) at 357. In the language of the ordinary citizen, Mr. Connell’s exculpatory explanation simply isn’t “plausible”; it doesn’t “makesense” in all the circumstances.

I am aware that Faryna is a civil case but the applicability, with appropriate caution, of its reasoning incriminal cases has often been acknowledged: see, for example, R. v. Wilder, [2003] B.C.J. No. 2884 (S.C.) at paras. 641-642 (aff'd[2006] B.C.J. No. 1 (C.A.)). [38] The inference that the explanation Mr. Connell gave at trial which now stands at the centre of the defence’s theory is anexplanation that he came up with after the fact to relieve himself of criminal liability for what occurred in Mr.

Singh’s kitchen is near toirresistible. [39] I have mentioned that there are other reasons why I am unable to accept as credible Mr. Connell’s evidence regarding thealternative explanation for how the handgun found its way into Mr. Singh’s kitchen and how it came to be discharged there. I shallmention only a couple of them. [40] It doesn’t make sense, in my respectful view, for Mr. Connell to contend that he brought the handgun he found in a satchel fromthe back yard into Mr. Singh’s kitchen for the express purpose of showing it to Mr. Singh and Mr.

Davidson and then claim to besurprised when they showed an interest in taking a look at what he had brought in to show them.

[ 41 ] Neither does it make sense for Mr. Connell to suggest, as he did in his testimony, that having swiftly developed a genuine fear of what might befall him if either of Mr. Davidson or Mr. Singh got hold of the handgun, he nevertheless threw it and the satchel containing it into the corner of the kitchen once he regained control of it. If, as he suggested, he truly had become anxious about his own safety when both men surged forward and Mr. Davidson grabbed for the handgun, then one would expect Mr.

Connell to do all he could to maintain the weapon within his own control, preserve the advantage that attached to his having it in his control, and keep control of it away from those (Mr. Davidson and Mr. Singh) whose actions led him to fear what might happen if they got control of it. Simply tossing the handgun into the corner of the room at a time of perceived, mortal danger does not impress as being a defensive manoeuvre that could have furnished any true, defensive or self-protective benefits to Mr.

Connell. [ 42 ] The incomprehensible nature of this intended exculpatory testimony was magnified, moreover, when Mr. Connell claimed to have had no further concerns about the handgun, about who might get hold of it and about how it might be used after it discharged when he tossed it into the corner of the kitchen. It was at that point, Mr. Connell said, that his attention shifted to looking after Mr. Singh’s ankle and that he did not have another thought about the risk that might befall himself or others should the handgun be picked up and used by Mr. Davidson, Mr.

Singh, or by any number of the other “unsavoury” people who were in and around Mr. Singh’s house on October 26th. The following extract from Mr. Connell’s cross-examination ( Transcript , February 7, 2017, at pp. 48-49) illustrates the problems Mr. Connell faced in presenting his own actions, as portrayed in his alternative account of the subject events, as being reasonable: “Q Okay. Okay. Before the gun goes off, and we're going to talk before the gun goes off, right, because this is important. I'm trying to figure out why it is that you have decided after finding a handgun in the backyard to go show to Mr.

Andrew Singh that when he moves towards you and says, hey, let's see it, hand it over, you feel threatened and you have to throw the gun rather than take the gun and leave. A You see, when you move towards somebody very, very quickly in a -- in an odd manner, very suddenly, and all this is going down and there's a handgun involved, you know, it crosses your mind very, very quickly, right, in a stressful time that, you know, you don't want to wrestle for this, get it gone. Q Right. A And that's exactly what I did. Q Right. And then after the gun discharges and you realize Mr.

Singh's foot is hurt, your reaction isn't to go pick up the gun, right? A His son came out. There's a bunch of people coming through the back door. The kitchen is full now. Andrew is screaming. I'm wrapping his foot. Whatever was going to happen, if there was anything that was going to happen, it's diffused now and he's being taken -- Q How was it diffused? You just shot Mr. Singh in the foot. People are rushing in. You're talking about this van that suddenly appears and people are rushing in. It's chaos, your words. How has it been diffused? A Too many people there.

Nothing's going to happen with all those people there and -- and his son there and -- I'm sure the neighbours called the police, right? Q Okay. So your -- your evidence is because of all these people who you don't know that show up, there are too many people there for anything to happen to you, and you feel safe now with all these people that are around. A No, I don't feel safe but I'm going to take him to the hospital and get out of there and that's what we were doing. Everybody was focused on Mr. Singh. Q You were primarily concerned about the safety of yourself and that's why you threw the gun. Yes? A Yes.

Q But then once the gun discharges and it's laying there, your immediate concern, despite all these people coming in you don't know and this chaos, your primary concern now isn't where the gun is; your primary concern is wrapping a towel around Mr. Singh's foot. A And getting out of there, yes.” [ 43 ] I do not consider that further examples are necessary for me to make the point. When he gave his voluntary, warned statement on October 27th, Mr. Connell did not mention anything to police about finding a gun in a satchel and bringing it into Mr. Singh’s kitchen, or about showing the gun to Mr. Davidson and Mr.

Singh, or about throwing it into the corner of the kitchen when Mr. Singh and Mr. Davidson surged forward, showing an unseemly interest in it. He did not mention these things because, in my considered opinion, they did not happen. It follows that my answer to the question I posed at the beginning of this

section of these Reasons — i.e. , “Should I disbelieve Mr. Connell’s alternative explanation of the subject events?” — is “yes”. To that I will add that neither does the defence evidence led in support of Mr. Connell’s alternative explanation of the relevant events raise a reasonable doubt concerning any of the charges he faces. On the Basis of the Evidence I Do Believe, am I Convinced Beyond a Reasonable Doubt of Mr. Connell’s Guilt? a. Some introductory comments [ 44 ] As is plain from the preceding

section of these Reasons, I have rejected as not being credible the alternative and exculpatory version of events which featured so prominently in Mr. Connell’s testimony and which serves as the touchstone of the defence theory of the present case. However, I have — due to limited extrinsic evidence of concoction — stopped short of treating Mr. Connell’s non-

credible evidence as constituting a fabrication which can be viewed as circumstantial proof of his actual guilt. In this regard, I ammindful of the exhortations in R. v. W.D. and other authorities that caution against conflating the concepts of the simple rejection of anaccused person’s exculpatory evidence (on the one hand) with a positive finding of fabrication which can then serve as circumstantialproof of that person’s guilt (on the other): see, for example, R. v. Edwards, (ON CA), [2004] O.J.

No. 3228 (C.A.) atpara. 33 et seq. and the cases cited therein on the issue of maintaining the Crown’s onus. [45] To move forward then, I will note at this point that, in contrast to my outright rejection of Mr. Connell’s alternative andexculpatory explanation of events in Mr.

Singh’s kitchen on October 26, 2015, I have (with certain exceptions and reservations)concluded that the essential facts contended for by the Crown in keeping with the Crown theory are largely established by the evidenceof its witnesses. [46] I have reached that conclusion despite some frailties that were revealed in the Crown’s evidence and, perhaps more importantly,despite the manifest frailties revealed in the character of each of the Crown witnesses. [47] The fact-finding process in the present case has been complicated by the unavoidable truth that every witness on either side ofthis case has been embedded in the criminal underworld in some manner.

Indeed, all of the Crown witnesses are “unsavoury” charactersas that term is sometimes used in the authorities. They all have criminal records; Mr. Davidson and Mr. Stewart each have fraudconvictions recorded in their criminal histories. And Mr.

Davidson, a drug user, conceded to have been using drugs around the time theincident in question in this prosecution took place. [48] Moreover, it was revealed at trial that all three Crown witnesses, to some degree, conferred with one another after the events inquestion in this prosecution unfolded and so they all had at least the opportunity to collude with one another and coordinate their stories. [49] There is also evidence to suggest that, in varying degrees, certain of the Crown witnesses bear some animus toward Mr.

Connelland thus may have a motive to inflict harm against him that could be actualised in the form of giving false testimony against him in theseproceedings. Mr. Singh in particular revealed in a very clear way his upset at Mr. Connell’s failure to take any concrete steps to makeamends for the pain and suffering he endured as a result of being shot unintentionally by Mr.

Connell (whatever the dynamics of theshooting may have been). [50] All of this makes it necessary that I perform a careful and critical review and assessment of the Crown’s evidence on all counts,quite apart from the fact that I have rejected the contrary evidence that Mr.

Connell gave concerning a wholly different version of whathappened in the kitchen at the Singh Residence on October 26th. [51] Had this been a jury trial, it is reasonable to surmise that all three Crown witnesses would quite likely have been the subject ofjury cautions of the kind associated with the decision of the Supreme Court of Canada in Vetrovec v. The Queen, (SCC),[1982] 1 SCR 811. I have, therefore, instructed myself of the need to proceed with caution if I am to accept, as proof meeting thecriminal standard, the testimony of those three Crown witnesses against Mr.

Connell regarding the various offences with which he ischarged. I must in particular be astute to the existence, or not, of “confirmatory evidence” that can assist me in overcoming anappropriate, common sense hesitation to believe Messrs. Davidson, Singh and Stewart, given what I know about the somewhat“disreputable character” of each as is reflected in the observations I have made about them above. In this regard, I have found theanalysis and approach summarised in paras. 36-45 of in Her Majesty the Queen v.

MacIsaac, 2017 ONCA 172, per Trotter J.A. (Weilerand Pepall, JJ.A., concurring) most helpful. [52] All of that said, it must also be acknowledged that criminal acts are not uncommonly committed by and against personsinvolved in the criminal underworld with only other persons in the criminal underworld present as witnesses. That does not mean that allprosecutions which confront such situations must necessarily fail and that all wrongdoers involved in such situations must necessarilyescape liability for their unlawful actions.

Thus, while accepting (of course) that the reasoning found in Vetrovec and the authorities thatfollow it must guide me, I must also not shrink from finding facts that support the Crown’s case against Mr. Connell (as I have beeninvited by Mr. Ng to do) if — looking critically at the entirety of what is before me — there is evidence that can give me “… faith in therelevant aspects of [Mr. Davidson, Mr. Singh and Mr.

Stewart’s] account[s]” (see MacIsaac at para. 38). [53] As I shall explain more fully below, I find that there is an inherent plausibility to the Crown’s case when regard is had to theuncontested facts concerning: a. Mr. Connell’s imminent receipt of a substantial ICBC settlement; b. Mr. Connell’s fears about being robbed by associates of Mr. Cliffe or Mr. Cliffe himself; c. The steps Mr. Connell took to arm himself as a result of being robbed once (he believed) by associates of Mr. Cliffe bent on gettinghold of his ICBC settlement monies; and d. Mr.

Connell’s motivation to get the word out that he was armed and ready to protect himself against all comers. [54] That plausibility, juxtaposed against the implausibility of Mr. Connell’s account of what happened in Mr. Singh’s kitchen onOctober 26, 2015, has contributed to the “faith” I have in the “relevant aspects” of the Crown evidence (to echo the words used byPeppall, J.A. in MacIsaac at para. 38). [55] That does not mean, of course, that I accept all of the Crown evidence.

Just as can be said of the defence’s theory in this case,the Crown’s theory consists of a constellation of alleged facts, some but not all of which are core facts that go to essential elements of theoffences in issue. The distinction between core facts and peripheral ones is an important one, particularly in cases like the one at barwhere credibility looms large and discrepancies and inconsistencies are cited to the court as a basis for reasonable doubt. [56] Much has been said in final submissions by Mr. Pippard about discrepancies and inconsistencies in the testimony of Crownwitnesses, Messrs.

Davidson, Singh and Stewart. I do not deny that some of the discrepancies and inconsistencies to which he points do

exist in the record but, with certain exceptions, in my view they were often concerned with matters that are peripheral. When it comes to core facts, I consider that the divergences are fewer and, to my mind, largely (though not entirely) inconsequential. In this regard I find support for my approach to the evidence before me in the reasoning of Caldwell J.A. (for the court) of the Saskatchewan Court of Appeal in R. v. Asapace , [2011] S.J. No. 711 (C.A.) .

There his Lordship made the following observations at para. 74 about conflicting evidence in an appeal of a conviction for sexual assault: “… In conclusion, rather than a list of irreconcilable inconsistencies and contradictions, the record indicates a few minor inconsistencies in the complainant's evidence, none of which specifically go to the credibility of her testimony about the sexual assault.

The minor inconsistencies in the complainant's testimony were not in respect of the core facts needed to establish the elements of the offence of sexual assault …” [ 57 ] That reasoning comes from a sexual assault case where the inconsistencies were mainly noted in the complainant’s evidence, whereas here the inconsistencies highlighted by Mr. Connell are noted in the testimony of three Crown witnesses (including Mr. Singh as a de facto complainant). Nevertheless, I consider the reasoning to apply, mutatis mutandis , to the somewhat multifarious evidence adduced in the case at bar.

Other authorities to a similar effect include R. v. Fatunmbi , [2014] M.J. No. 157 (C.A.) at paras. 59-63 (leave to appeal refused, [2014] S.C.C.A. No. 355); R. v. A.C. , [2008] O.J. No. 1218 (Ont. S.C.J.) at paras. 29-33 ; R. v. M.J.B. [1999] O.J. No. 2235 (Ont. S.C.J.) at note 2; and R. v. Roper , [2011] B.C.J. No. 2040 (Prov. Ct.) at paras. 148-161 . [ 58 ] The core facts of the case at bar are principally these: (

a) Prior to and then on October 26, 2015, Mr. Connell carried an unlicensed, prohibited/restricted handgun with him for his protection, given certain fears he had about coming to harm at the hands of Mr. Cliffe or his associates. He had that handgun in his possession when he drove on October 26th in his own truck with Mr. Stewart to the Singh Residence in Coquitlam, British Columbia; (

b) Upon arriving at the Singh Residence on October 26, 2015, Mr. Connell recognised Mr. Davidson there and, believing on the basis of rumour that Mr. Davidson may be planning to rob him, he (Mr. Connell) physically manoeuvred Mr. Davidson, against his will, to the far side of Mr. Singh’s kitchen; (

c) A voluble argument occurred between Mr. Connell and Mr. Davidson in Mr. Singh’s kitchen and, upon hearing it, Mr. Singh entered and joined it, questioning Mr. Connell’s accusations and actions toward Mr. Davidson; (

d) While he was arguing with Mr. Davidson (and later with Mr. Davidson and Mr. Singh), Mr. Connell brandished a handgun and at times he pointed the weapon at Mr. Davidson; and (

e) At a certain point toward the end of the argument, Mr. Connell fired the handgun and, after ricocheting, the bullet that issued from it unintentionally struck Mr. Singh in the foot. [ 59 ] On most of these core facts I am satisfied that there is essential agreement among the versions of events given by the Crown witnesses. Indeed, on some of those core facts Mr. Connell’s own evidence lines up with that of the Crown witnesses. [ 60 ] I say again that, of course, it is the case that the Crown witnesses did not give testimony that concurred in every detail.

There were discrepancies about, for example, whether Mr. Singh entered the kitchen from the back yard or from another room in the Singh Residence immediately before the incident occurred. Not all of the Crown evidence was perfectly aligned on the question of what was said by who to whom as the argument progressed. There were inconsistencies about whether Mr. Connell pulled the handgun out of the waistband of his trousers, or his coat or something in the nature of a pouch or holster suspended from his shoulder. Crown evidence diverged on precisely where Messrs.

Connell, Davidson and Singh were standing in the kitchen as events unfolded there. The evidence of the Crown witnesses was not perfectly consistent on the questions of what kind of clothing Mr. Connell was wearing, and of whether, shortly before the gun discharged, he had his arm around Mr. Davidson’s shoulder or his neck. [ 61 ] It was entirely proper for Mr.

Pippard to point out these divergences in the evidence comprising the Crown’s case against his client but, as I say, in my view, when viewed in context, they are comparatively minor and do not go to the essential features and elements of most aspects of the Crown’s case against Mr. Connell. The existence of those inconsistencies also assisted me in concluding that the Crown witnesses did not jointly fabricate and coordinate their evidence.

Had they done so, I believe that their stories would have been much better coordinated with one another. [ 62 ] Moreover, in evaluating the importance of the discrepancies and inconsistencies that have featured so prominently in defence submissions, I must also not lose sight of the fact that, on either theory of what actually happened in the course of the incident in Mr. Singh’s kitchen on October 26, 2015, it is common ground that matters unfolded rapidly. Tensions and emotions were running high. A handgun was present and, ultimately, it discharged, causing Mr. Singh to suffer a grievous gunshot injury.

Something less than perfect concordance between and among all Crown witnesses in their individual recollections is to be expected as, more than two years later, they were called upon to revisit what happened in slow-motion retellings of the subject events from memory. [ 63 ] Having made those preliminary observations, I turn now to my assessment of what has and has not been proven, beyond a reasonable doubt, on each of the counts on Indictment No. 94759-C2. b. Count 1 [ 64 ] Under count 1, Mr.

Connell is charged with possessing a prohibited/restricted or non-restricted firearm knowingly without a licence or registration certificate (contrary to s. 92(1) of the Criminal Code ). The dates and location, respectively, of that alleged possession are October 25-27, 2015 and Coquitlam, B.C. [ 65 ] Mr. Connell made admissions under cross-examination that, not long before the events in issue here, he acquired a handgun from Mr. Atley at a time when he was fearful that he may be the victim of another attack by people whom he believed were operating at the instigation of Mr.

Cliffe and intent upon stealing his ICBC settlement proceeds. His acquisition of the handgun resulted, without

doubt, from an illicit transaction with Mr. Atley. Mr. Connell claimed he did not know “at the time” he acquired it that the handgun was stolen but neither did he care to inquire: Transcript , February 7, 2017, pp. 30-31. [ 66 ] Mr. Connell also made an admission during his direct examination that that same handgun was found in the purse belonging to his spouse, Ms. Collins, when he, his spouse and Mr. Stewart were all arrested after Mr. Connell’s truck was pulled over in the early morning hours of October 27th in Coquitlam by police officers investigating the incident that occurred in Mr.

Singh’s kitchen ( Transcript , February 7, 2017 at pp. 24-25, emphasis added): “Q Now, I understand at some point, a handgun's found. A Yeah, there was one found in my wife's purse. Q And -- and where was the purse? A It was on the floor of the truck in the front, I believe. Q Now, driver's side or passenger's side? A Passenger's side. Q Okay. Were -- were you aware that the hand -- that the handgun was in your -- in your wife's purse? A No, I didn't. I thought it was at home in the bedroom . MR. PIPPARD: Okay. Okay. I have no further questions.” [ 67 ] Mr.

Connell has formally admitted that the handgun located in his spouse’s purse during the investigation following the traffic stop was a 9 mm. Norinco pistol that was a restricted or prohibited weapon for which he had no license: Exhibit 1, para. 6. [ 68 ] I am satisfied, given the foregoing, that the Crown has tendered proof beyond a reasonable doubt that Mr. Connell committed the firearm possession offence with which he has been charged on count 1. c. Count 2 [ 69 ] Under count 2, Mr.

Connell is charged with occupying a motor vehicle knowing there was a prohibited/restricted or non- restricted firearm in the vehicle (contrary to s. 94(1) of the Criminal Code ). The dates and location, respectively, of that alleged occupation are October 25-27, 2015 and Coquitlam, B.C. The focus of this charge which distinguishes it from the others is possession of a firearm in a vehicle. [ 70 ] Notwithstanding the contrary assertions of Mr. Connell in his testimony, I find beyond a reasonable doubt that when he drove in his own truck to Mr.

Singh’s Coquitlam house in the early afternoon of October 26, 2015, he had in his possession a handgun and that that handgun was the restricted, 9 mm. Norinco pistol that is the subject of the admissions set out in Exhibit 1, paras. 6 and 7. [ 71 ] Mr. Stewart gave convincing testimony that when he rode as Mr. Connell’s passenger en route to the Singh Residence on October 26, 2015, Mr. Connell withdrew a handgun from the waistband of his trousers and showed it to him. Mr. Pippard addressed that testimony in his cross-examination of Mr.

Stewart but his questioning did not shake that important evidence; rather, during cross- examination Mr. Stewart simply confirmed his evidence on direct: Transcript , January 10, 2017, at pp. 51-52. And while Crown counsel, Mr. Ng, pre-emptively raised with Mr. Stewart the fact that he had not mentioned in his police statement that Mr. Connell had shown him the handgun while the two men drove together to the Singh Residence on October 26th, Mr.

Stewart provided a reasonable explanation for that omission, namely, that when being interviewed by police his thoughts were concentrated on the dramatic events that had unfolded in Mr. Singh’s kitchen and not what had transpired earlier in the day: Transcript , January 10, 2017, at p. 13. That explanation was not shaken during Mr. Stewart’s cross-examination and I consider it to be a truthful one. [ 72 ] It was Mr. Stewart’s evidence that in the course of showing the handgun to Mr. Stewart, Mr.

Connell made reference to his worries about being the subject of a follow-up robbery and violence at the hands of persons associated with Mr. Cliffe: Transcript , January 10, 2017, pp. 55-57. Those were fears and concerns that Mr. Connell acknowledged many times in his testimony, given the imminent pay-out of his ICBC settlement proceeds. Indeed, those were the fears and concerns that he conceded led him to acquire a firearm from his friend Mr. Atley in the first place. [ 73 ] Mr.

Connell sought to persuade the court that it was his invariable practice to leave his handgun at home in order to provide him with a source of protection there. He offered that testimony, in part, to refute the Crown’s contention that he brought the handgun with him when he and Mr. Stewart drove to the Singh Residence shortly before the subject incident occurred. [ 74 ] I found that evidence to be lacking in credibility. [ 75 ] Mr. Connell emphasised in direct that his home was where he experienced a “home invasion” at the hands of Mr. Cliffe’s associates during which he was badly beaten and had tools stolen.

This, he testified, occurred not long before the incident in Mr. Singh’s kitchen. However, on cross-examination Mr. Connell conceded that he was in fact attacked “half a block” away from his residence, outdoors, and was led back there during the “home invasion,” making it plain that his vulnerability was not linked solely to being at his home residence: Transcript , February 7, 2017, pp. 36-38. [ 76 ] Applying the Faryna v. Chorny logic, Mr.

Connell’s insistence that he always left the handgun he obtained for his own protection at home while he made his way around and about Coquitlam and its surrounding communities makes no sense. He conceded that he continued his dealings with often unsavoury characters, buying and selling scrap metal; he conceded that he needed to be wary around the people with whom he consorted; he was expecting a large infusion of money and he believed the threat of another violent

encounter with Mr. Cliffe and his associates was ever-present. He admitted he was carrying a substantial amount of money ($1,400) on his person on the day he attended at the Singh Residence when the incident occurred. The suggestion that, after going to the trouble of obtaining a handgun, he left it at home in a drawer when he was out and about simply doesn’t withstand scrutiny. To the contrary, it was plain to me after hearing all of the evidence (and I find as a fact) that Mr. Connell was frightened of Mr.

Cliffe and his associates and that one way he dealt with his fears was to arm himself to guard against another robbery and beating, wherever those events might occur. Moreover, the evidence of Mr. Connell’s actions in showing his handgun to Mr. Stewart and telling him about his worries about Mr. Cliffe while they drove together to the Singh Residence, coupled with that of his behaviour toward Mr.

Davidson when they arrived there, combine to show clearly that he was keen to get the word out that he was ready to defend himself against future attacks with determination and force. [ 77 ] As I have noted above in relation to count 1, I have already found that the handgun that was ultimately seized from Ms. Collins when she, Mr. Connell and Mr. Stewart were all arrested by police officers investigating the incident that occurred in Mr. Singh’s kitchen only hours later, was the same one Mr. Connell had obtained from Mr. Atley for reasons of protection. That is the restricted/prohibited 9 mm.

Norinco pistol that is the subject of the admissions found in Exhibit 1, para. 6. [ 78 ] All of this evidence propels me to find, beyond a reasonable doubt, that while driving his truck to the Singh Residence on October 26, 2015, Mr. Connell knowingly had actual possession of a prohibited/restricted firearm and that that firearm was the aforementioned, 9 mm. Norinco pistol. d. Count 3 [ 79 ] Under count 3, Mr. Connell is charged with possessing a loaded, prohibited/restricted firearm without an authorisation or licence or registration certificate (contrary to s. 95(1) of the Criminal Code ).

The dates and location, respectively, of that alleged possession are October 25-27, 2015 and Coquitlam, B.C. The focus of this count is the loaded state of the handgun. [ 80 ] I have stated previously in these Reasons that “I have (with some exceptions and reservations) concluded that the essential facts contended for by the Crown in keeping with the Crown theory are largely established by the evidence of its witnesses”. In particular, and for the purposes of this and other counts, I find as a fact that in the course of an argument with Mr. Davidson in the kitchen of the Singh Residence on October 26th, Mr.

Connell brandished the prohibited/restricted 9 mm. Norinco pistol he brought with him to the residence — the same handgun which, as I have found earlier, he obtained from Mr. Atley for his own protection and which he showed to Mr. Stewart while en route , explaining to him that he feared he may be robbed and injured by associates of Mr. Cliffe. [ 81 ] I have already noted that I am persuaded by the evidence that Mr.

Connell, contrary to his contrary assertions, routinely carried the above-noted handgun with him at the time, even whilst outside his residence, given the fears he had that he may suffer further violence at the instance of Mr. Cliffe or his associates. I am similarly persuaded that on October 26th he had the handgun with him for that reason when he guided Mr. Davidson into Mr. Singh’s kitchen, believing (on the basis of a rumour) that Mr. Davidson was a specific source of risk to him. I was assisted in reaching the latter conclusion by the fact that Mr. Davidson’s direct testimony to the effect that Mr.

Connell accused him of planning to rob him, based on a rumour, while standing in the kitchen of the Singh Residence was not shaken (or even specifically challenged) on cross-examination. [ 82 ] It is not in dispute that in the course of the interaction between Mr. Connell, Mr. Davidson and Mr. Singh in the kitchen of the Singh Residence, a handgun was discharged, causing Mr. Singh to suffer an injury to his foot. The evidence to this effect includes a formal admission: see, inter alia , Exhibit 1, para. 7. [ 83 ] All of the foregoing leads me to find, beyond a reasonable doubt, that it was the handgun which Mr.

Connell brought to the residence and brandished in the course of his argument with Mr. Davidson which ultimately discharged, causing Mr. Singh to suffer a gunshot injury to his ankle. That handgun could not have discharged if it had not been loaded and any suggestion that Mr. Connell did not know the weapon that he brought with him to the encounter was loaded defies common sense. (Mr. Stewart testified that when he saw Mr. Connell withdraw the handgun from the waistband of his trousers and then return it there while the two men drove together on the offence date to the Singh Residence, he was fearful that Mr.

Connell was at risk of shooting off his penis. For Mr. Stewart to have that concern, something must have passed between Mr. Connell and him during their conversation that conveyed the fact that the handgun was loaded.) [ 84 ] In the result, I am satisfied that the Crown has proven all of the essential elements of count 3 beyond a reasonable doubt. e. Count 4 [ 85 ] Under count 4, Mr. Connell is charged with, having no lawful excuse, carrying and handling a firearm in a careless manner (contrary to s. 86(1) of the Criminal Code ).

The dates and location, respectively, of that alleged possession are October 25-27, 2015 and Coquitlam, B.C. The focus of this charge is the alleged careless carrying and handling of the handgun. [ 86 ] I have already found as a fact that Mr. Connell knowingly carried with him the loaded handgun — the 9 mm. Norinco pistol that he had obtained from Mr. Atley to protect himself from Mr. Cliffe and his associates — when he and Mr. Stewart drove together to the Singh Residence on October 26, 2015.

I have also found, based in part on the admission found at para. 7 of Exhibit 1, that it was that loaded handgun that discharged in the course of the incident that unfolded in Mr. Singh’s kitchen and injured Mr. Singh in the foot. [ 87 ] The evidence also establishes that before the incident occurred in Mr. Singh’s kitchen, Mr. Connell was aware that the loaded handgun he brought with him for protection to the Singh Residence was prone to discharging easily and possibly unexpectedly. Specifically, he knew that the handgun had earlier gone off inside his house when Mr. Atley and Ms.

Collins were doing nothing more than moving it. Mr. Connell testified that, upon learning that, he was “quite upset”: Transcript , February 7, 2017, at pp. 31-32. [ 88 ] In order to establish that Mr. Connell, without lawful excuse, “use[d], carr[ied] and handle[d] a firearm in a careless manner or without reasonable precautions for the safety of other persons,” the Crown must prove that in dealing with the loaded 9 mm. Norinco pistol that I have found he brought with him to the Singh Residence on October 26, 2015, Mr. Connell’s conduct amounted to a “marked

departure from the standard of care of a reasonable person”: R. v. Gosset, (SCC), [1993] 3 S.C.R. 76. I consider that it isvirtually incontestable that in carrying a loaded handgun — and a fortiori one that he knew had a history of discharging unexpectedlywhen being moved and nothing more — and then holding that very handgun and brandishing it in the course of a heated argument withMr. Davidson (and secondarily Mr. Singh), Mr.

Connell’s conduct departed markedly from what would be expected in the circumstancesof a reasonable person. [89] For the foregoing reasons I am satisfied that the evidence led at trial constitutes proof, beyond a reasonable doubt, of all of thefacts necessary to found a conviction on count 4. f. Count 5 [90] Under count 5, Mr.

Connell is charged with, having no lawful excuse, pointing a firearm, whether loaded or unloaded, at Mr.Davidson (contrary to s. 87(1) of the Criminal Code). [91] On this count the Crown faces difficulties of proof that are greater than it faces in all but one other of the counts that appear onIndictment 94759-C2. While there is evidence before the court from all three Crown witnesses that, in the course of the altercation thatoccurred in Mr. Singh’s kitchen, Mr. Connell brandished the handgun he had brought with him in a threatening way, the evidence that hepointed it at Mr.

Davidson’s body is less convincing. [92] I find that Mr. Stewart’s evidence in this particular regard is of no assistance to the court; that testimony seemed uncertain andchanged somewhat in the tellings and re-tellings. This, perhaps, is not surprising, given that his vantage point for the relevant events wasfrom outside the kitchen in the back yard. [93] As to those Crown witnesses who were in the kitchen and best able to observe — that is, Mr. Davidson and Mr. Singh — thereare important divergences between the accounts given by them as to where the gun was pointed. Mr.

Singh’s testimony was that Mr.Connell “had the gun to [Mr. Davidson’s] temple” (Transcript, February 7, 2017, pp. 4-5). Mr. Davidson’s own testimony, throughout,was that the gun was pointed at his chest (see, for example, Transcript, January 9, 2017, p. 13). Those are not trivial differences. [94] Beyond that, however, I am most troubled by the conflict that has been identified between Mr. Singh’s testimony at trial —namely, that he clearly recalled Mr. Connell pointing the handgun at Mr. Davidson’s temple — and his statement to police given shortlyafter the events in question unfolded. In that statement, Mr.

Singh made no mention of seeing Mr. Connell pointing a gun at anyone;indeed, confusingly, he told police both that he didn’t realise that a gun was present in the kitchen until it discharged: Transcript,February 7, 2017, pp. 5-8; and that he saw the gun immediately before it discharged: Transcript, February 7, 2017, pp. 8-11. [95] I have previously noted that wide and unexplained divergences between what Mr. Connell told the police and what he said attrial gave me great concern about the evidence he gave of certain, key facts. I must approach the evidence of an important Crownwitness like Mr.

Singh with the same, wary caution. The divergences in the Crown evidence — as between the accounts of Mr.Davidson and Mr. Singh, and as between what Mr. Singh said at trial and what he said in his statement to police — cannot, like someother divergences and inconsistencies, be relegated to the category of the unimportant. The heterogeneity of the Crown evidence in thisarea — some of it inculpatory and some exculpatory — goes to the fundamentals of the charge on count 5. [96] Accordingly, while I disbelieve Mr.

Connell’s version of events, I find that when considering the Crown’s evidence in theround I am left with a reasonable doubt as to whether, during the course of the incident that occurred on October 26, 2015, in Mr.Singh’s kitchen, Mr. Connell went beyond brandishing his handgun and pointed it at Mr. Davidson. g. Count 6 [97] Under count 6, Mr.

Connell is charged with possessing a handgun for a dangerous purpose or for the purpose of committing anoffence (contrary to s. 88(1) of the Criminal Code). [98] On the facts I have found and to which I have adverted earlier in these Reasons for Judgment, on the offence date Mr. Connellcame to the Singh Residence, armed with a loaded, 9 mm. Norinco pistol. I have found that he had equipped himself with that handgun,and generally carried it around with him, in order that he might have it available for use to defend himself if he were to be made subjectto another attack by Mr. Cliffe or his associates.

Also on the facts I have previously found, Mr. Connell believed (based on a rumour)that Mr. Davidson was a source of risk to him as a result of his affiliation with Mr. Cliffe, and when he found Mr. Davidson at the SinghResidence, he seized the opportunity to inform him that he was armed and prepared to deal decisively with anyone who might be mindedto mount another attack or robbery attempt against him. Mr. Connell brandished the loaded handgun during the course of the interactionhe had with Mr. Davidson in Mr. Singh’s kitchen — part of which interaction was observed by Mr. Singh. [99] In R. v.

Chalifoux, [1973] B.C.J.

No. 791 (C.A.) it was held that “proof [of possession of a firearm for a dangerous purpose]may be supplied by the manner in which the weapon is used, circumstances and statements surrounding its use or intended use andrational inference to be drawn from the proven facts” (at para. 13). [100] Applying that reasoning to the case at bar, I consider that when a person arms himself with a loaded firearm and carries it on hisperson as he moves about in public and private spaces so that he can, in the moment, respond to a perceived threat of violence from anenemy by using the firearm to repel the enemy, proof of those facts supports an inference that that person possesses the weapon inquestion for a purpose “dangerous to the public peace”.

Similarly, I consider that where having possession of a firearm in thosecircumstances, the person employs it to bring home to a potential enemy — by uttering threatening words while brandishing thehandgun — the lethal consequences that might befall him if the perceived threat of violence is acted upon, then proof of those facts alsosupports the inference that the person possesses the weapon in question for a purpose “dangerous to the public peace”. [101] I consider the facts just mentioned to have been proven by the Crown beyond a reasonable doubt and that the inferences I havedrawn from them, in accordance with the reasoning in Chalifoux, are irresistible.

The methods of self-help, DIY, private lawenforcement that were adopted by Mr. Connell were wholly misguided, are not tolerated by our criminal law and have no place in a

civilised society governed by the rule of law. [102] Lastly, while the point was not argued before me, there can, in my view, be no exception relieving Mr. Connell of culpability forhis above-described behaviour made out on the basis of the law of self-defence insofar as the threat he said he perceived was not, at anymaterial time, either imminent or inescapable: R. v. Kerr, 2004 SCC 44 , [2004] 2 S.C.R. 371. [103] For all of these reasons I am satisfied that the Crown has proven, beyond a reasonable doubt, that on the offence date Mr.Connell possessed the handgun in question for a dangerous purpose. h.

Count 7 [104] Under count 7, Mr. Connell is charged with intentionally discharging a firearm at the Singh Residence, knowing or beingreckless as to the presence of others there (contrary to s. 244.2(1) of the Criminal Code). [105] This, like count 5, is a count that raises difficulty for the Crown. [106] To begin, as I have noted, while (

a) the subject firearm discharged in the course of a confrontation between Mr. Connell on theone hand, and Mr. Davidson and Mr. Singh on the other hand, in Mr. Singh’s kitchen; and (

b) the bullet that was fired from the handgunwhen it discharged caused injury to Mr. Singh’s foot; it is nevertheless common ground between the Crown and defence that Mr.Connell did not intend to shoot Mr. Singh. [107] There is also uncontroverted evidence to support the factual finding I made earlier in these Reasons for Judgment that the 9 mm.Norinco pistol that Mr. Connell brought, loaded, to the Singh Residence and then into the kitchen there just prior to the incident givingrise to the subject charges had, in effect, a “hair trigger”.

That is to say, the evidence adduced at trial proves that that handgun hadpreviously discharged, unexpectedly, in Mr. Connell’s home when it was being moved, and nothing more, by Ms. Collins and Mr. Atley:Transcript, February 7, 2017, at pp. 31-32. [108] The aforementioned evidence raises the spectre of an inadvertent or unintended firing of the handgun at the time of the incidentat the Singh Residence. That evidence militates, to some degree, against the Crown’s contention that Mr. Connell intentionally pulled itstrigger during the course of the confrontation in Mr. Singh’s kitchen at which he, Mr.

Davidson and Mr. Singh were all present. [109] Other Crown evidence on this important point is equivocal. [110] Mr. Davidson’s testimony was to the effect that Mr. Connell quite purposely fired the handgun at the floor after warning himthat he was going to deal with people who might be minded to injure or rob him forcefully and with his firearm — lending emphasis, as itwere, to his warning statement with a dramatic, explosive “exclamation mark”: Transcript, January 9, 2017, at pp. 17-18. [111] Mr. Stewart did not see the gun being fired so his evidence neither confirmed nor contradicted Mr.

Davidson’s account. [112] But Mr. Singh’s account differed quite markedly from Mr. Davidson’s and, again, from the statement he gave to police. Histestimony at trial was to the effect that after brandishing it angrily, Mr. Connell was attempting to return it to a kind of pouch or holsterwhen it discharged: Transcript, January 10, 2017, p. 70. However, as I have noted above, that evidence conflicts, in turn, with thestatement he made to police in which, variously, he said that he didn’t know there was a handgun present until it discharged (seeTranscript, February 7, 2017, pp. 5-8) and that he saw Mr.

Connell pointing the handgun downward toward the floor shortly before itdischarged (see Transcript, February 7, 2017, pp. 8-11). The following quotations, the first two taken from Mr. Singh’s examination-in-chief by Mr Ng (Transcript, January 10, 2017, pp. 58-59 and 64-65) and the third taken from Mr. Pippard’s cross-examination of him(Transcript, February 7, 2017, pp. 10-11), well demonstrate how confusing and unreliable Mr. Singh’s evidence on this particular pointproved to be: “… So you know, now I'm getting a little flustered and upset and, you know, I said put that away, put that away.

You know, this is f'ingcrazy. I'm not going to go in it word for word because it's going to take me forever to explain the whole thing but short story -- or longstory short is Tim agreed -- he came around to me and he was still mad. He was going, "I mean f'ing business." As he went to put itaway, he was saying, "I mean business," and you know, then he pulled it out again for some reason, out of the holster. And I -- I guesshe was really trying to, you know, scare Mr. Jaredson (sic) [Mr. Davidson] and let him know that he was serious and did not want him tosay more things.

And -- and then at that point, he proceeded to put it away into his pouch around his shoulders and it discharged. I mean, all I heard wasa big -- well, a bang and I thought oh, my goodness. And then I thought, okay. What -- you know, like what happened. And then I got aburning sensation almost instantly in my left ankle and I -- it was obvious that, you know, the bang was the gun fired and the burningwas my foot.” (emphasis added) “… Well, I mean, the gun was there and he had it like, you know, kinda like going like this like, you know I mean business and, youknow. I mean what I say and you, you, this and that.

Word for word I don't know but he was, you know, going on about certain thingsand, you know, I was – [Mr. Davidson]'s like saying what are you doing and I'm like freaking out, you know, put that away. So -- andthen he did. He -- he stopped, walked away towards me and stood beside him -- me and, you know, he turned to Jared and he goes and Imean f'ing business. I don't -- you know. I'm like hey, you know, as he was putting the revolver into the pouch. He then took it outagain and said, "I mean what I fucking say" and, you know, and then I'm like hey, man.

And then of course he went to put it away andas it was going in, that's when I heard the bang. I said -- and you know, in shock, shocked.” (emphasis added) “Q You heard the bang and then you say you see the gun pointed downwards. A Well, I saw the gun initially in his hand after he pulled it out again, okay? Q But he -- no, I mean in this statement -- in this statement, you're saying that you only saw the gun after it went off.

A Well, I saw the gun as it was in his hand. At that point, when I said I only saw the gun after it went off, I mean -- no, I saw thegun in his hand. Q Okay. But in the statement, you -- you tell the police -- A I know in that statement what I -- what I probably said, yes, but -- Q -- you only see the gun pointing downward after the gun goes off. A Well, that's what I said in that statement but obviously I saw the gun being waved around. So at that point, I'm not sure why Isaid that. You know, who knows?

I had a gunshot wound –“ (emphasis added) [113] A conviction on count 7 requires proof beyond a reasonable doubt that Mr. Connell intended to discharge his firearm whilestanding in Mr. Singh’s kitchen arguing with Mr. Davidson and Mr. Singh. It requires proof that Mr. Connell pulled the trigger, causingthe gun to fire, as his own, volitional act. Evidence of a reckless or accidental discharge of that firearm does not suffice as to mens reafor a conviction under s. 244.2(1)(a). That can be gleaned from a simple reading of the

section where the essential requirement that theimpugned act be intentional is stated clearly. [114] While I disbelieve Mr. Connell’s version of events, nevertheless on the evidence as a whole, given the possibility that the hair-trigger firearm in issue could have been caused to discharge inadvertently through simple movement, and given further the importantlydivergent testimony of Mr. Davidson and Mr. Singh regarding Mr. Connell’s actions at the time the weapon discharged, I am left with areasonable doubt as to whether, during the course of the incident on October 26, 2015, in Mr.

Singh’s kitchen where all three werepresent, Mr. Connell intentionally caused the handgun in question to discharge. i. Count 8 [115] Under count 8, Mr. Connell is charged with using a weapon, namely a handgun, while committing an assault upon Mr.Davidson (contrary to s. 267(a)). [116] Based upon the evidence that was adduced at trial (some of which has already been discussed above in detail), I find that uponseeing him there, Mr. Connell directed Mr. Davidson from the yard outside the Singh Residence to the kitchen and then into it. Onceinside, the guidance became physical with Mr. Connell placing his hand on Mr.

Davidson’s shoulder and directing his movements. Ashe did so the two men could be heard arguing and, in particular, Mr. Davidson could be heard volubly protesting Mr. Connell’saccusation. Mr. Connell maintained a measure of physical contact with Mr. Davidson for some of the time they were in the kitchen, andas well brandished a handgun, as he guided and detained Mr. Davidson and accused him of planning to rob him. The evidence of thosefacts satisfies me, beyond a reasonable doubt, that Mr. Connell applied intentional physical force to Mr.

Davidson without his consent,and that while doing so he carried a handgun — facts that establish, in law, the commission of the offence of assault with a weapon. CONCLUSIONS AND DISPOSITION [117] Based upon all of the foregoing, I find Mr. Connell guilty of counts 1, 2, 3, 4, 6 and 8, and not guilty of counts 5 and 7, onIndictment No. 94759-C2. [118] Invoking the reasoning outlined in R. v. Holt, [2014] B.C.J. No. 2848 (S.C.) at para. 2; R. v. Grant, (ONCA), [2006] O.J. No. 2179 (C.A.) at para. 81 and note 1 (var’d on other grounds, 2009 SCC 32 , [2009] 2 S.C.R. 353); and R. v.Reid, 2013 ONSC 2342 , [2013] O.J.

No. 5929 (Ont. S.C.J.) at paras. 52-53; I consider that the offences set out in counts 1 and3 of the Indictment arise out of the same delict, namely, possession by Mr. Connell of a firearm without authorisation. Accordingly,upon the authority of R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, I order a conditional stay of count 1 as against Mr.Connell. [119] Orders accordingly. _____________________________ Thomas S. Woods, P.C.J.