R. v. Bartolomeo Date:, 2017 BCPC 162

Citation: R. v. Bartolomeo Date: 20170607 2017 BCPC 162 File No: 95036-3B Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAMON BARTOLOMEO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: S. Lindstrom Counsel for the Accused: J. Grenier Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: March 1 and May 3, 2017 Date of Judgment: June 7, 2017

INTRODUCTION [ 1 ] Damon Bartolomeo (“Mr. Bartolomeo”) faces a charge of breach of a probation order. In particular it is alleged in single-count Information No. 95036-3B that on the offence date of November 19, 2016, Mr. Bartolomeo failed, without reasonable excuse, to comply with a “no weapons including knives” condition (the “No-Weapons-Including-Knives Condition”) in a probation order imposed upon him on May 26, 2016 (the “May Probation Order”). [ 2 ] In earlier and related proceedings, Mr.

Bartolomeo entered guilty pleas to a number of property offence and compliance charges asserted in Information Nos. 95036-1 and 95230-2C. The May Probation Order formed part of Mr. Bartolomeo’s sentence on: (

a) Counts 1 (possession of stolen mail), 4 (identity theft), 10 (breach of undertaking or recognizance) and 12 (identity theft) of Information No. 95036-1; and (

b) Counts 1 (possession of stolen property), 7 (breach of undertaking or recognizance) and 8 (breach of undertaking or recognizance) of Information No. 95230-2C. [ 3 ] The No-Weapons-Including-Knives Condition in the May Probation Order was worded as follows: You are not to have in your possession any weapons as defined by the Criminal Code , including any knives unless for the immediate preparation or consumption of food, or while at your place of lawful employment and for work purposes only. [ 4 ] As will be seen presently, much turns on the precise wording of that condition. [ 5 ] It is not disputed that Mr.

Bartolomeo had proper notice of all of the terms of the May Probation Order, including the No- Weapons-Including-Knives Condition. Neither is it disputed that he was bound by those terms on the offence date of November 19, 2016. Indeed, all the facts surrounding the alleged breach are largely uncontroversial. The issue that this case raises is whether, on a proper construction of the wording of the No-Weapons-Including-Knives Condition, the Crown can prove—to the criminal standard of beyond a reasonable doubt—that Mr. Bartolomeo’s actions on the offence date amounted to a breach of that condition.

THE UNCONTROVERSIAL FACTS [ 6 ] In the early morning hours on the offence date of November 19, 2016, Crown witness Jordan Bunkowski (“Mr. Bunkowski”) heard noises outside his home at 3227 Regina Street in Port Coquitlam, British Columbia. He went to his living room window to investigate and saw a male wearing a black jacket and black track pants on the boulevard, next to the sidewalk, peering into his brother- in-law’s car, trying its passenger door handle and “rustling around” in a dark bag on the ground beside him. Mr.

Bunkowski went down to the lower floor of his house, opened the front door and called out loudly to the male, saying something to the effect of “What are you doing?” The male responded by denying that he was doing anything wrong. There then ensued some back-and-forth between them during which Mr. Bunkowski yelled at the male to get off his property, following which the male began walking away, south on Regina Street toward Prairie Avenue. [ 7 ] I pause briefly here in this narrative of uncontroversial facts found to address the issue of identification.

Given the way this case was argued (where no mention at all was made by defence counsel of identification being an issue), I do not understand it to be in dispute that the male first observed by Mr. Bunkowski and later apprehended by police was Damon Bartolomeo. I note that Mr. Bunkowski identified Mr. Bartolomeo as the male he first observed prowling around his brother-in-law’s car. Cst. Mitchell Desjarlais (“Cst. Desjarlais”)—the police officer who arrested that male and dealt most directly with him (whose evidence as a Crown witness is summarised below)—also identified Mr. Bartolomeo.

That officer compared the male’s appearance at scene with picture identification that Mr. Bartolomeo was carrying when he placed him under arrest and he was satisfied that he had arrested Damon Bartolomeo. The whole of the evidence satisfies me, beyond a reasonable doubt, that Mr. Bartolomeo is the person who was first observed by Mr. Bunkowski and who was later arrested by Cst. Desjarlais. Thus, identification is established. [ 8 ] I return now to the factual narrative. [ 9 ] Bringing with him a baseball bat for his own protection, Mr. Bunkowski followed Mr.

Bartolomeo as he made his way from 3227 Regina Street carrying a duffel bag or back pack after he had been disturbed in his activities in front of Mr. Bunkowski’s house. Mr. Bunkowski saw him turn west on Prairie Avenue and found him hiding behind a pickup truck parked on that street. By this time Mr. Bunkowski had contacted police by telephone to report the incident. He saw Mr. Bartolomeo continue west on Prairie until he reached and entered a short cul-de-sac that leads to the Birchland Elementary School grounds where he turned left (south). Mr. Bunkowski provided those details regarding Mr.

Bartolomeo’s whereabouts to the police by telephone and was then told by the dispatcher to return home. [ 10 ] A short while later Mr. Bunkowski, at police request, retraced the route he had reported Mr. Bartolomeo having taken, south on Regina, west on Prairie and south on the cul-de-sac, arriving eventually at the edge of the Birchland Elementary School grounds. There he found police dealing with Mr. Bartolomeo (who appeared to Mr. Bunkowski be under arrest). Subsequently Mr. Bunkowski gave the police a statement. [ 11 ] One of the officers who responded after police received and disseminated Mr.

Bunkowski’s report of a male behaving suspiciously in the area was Cst. Scott Gielen (“Cst. Gielen”). While en route to 3227 Regina Street he learned via his police radio that Cst. Desjarlais—who had also responded—already had a suspect who matched the description given by Mr. Bunkowski, in custody, at the north end of Birchland Elementary School. Accordingly, Cst. Gielen changed course and made his way directly to the cul-de-sac and found Cst. Desjarlais and Mr. Bartolomeo on the school grounds. Mr. Bunkowski met them there and recognised Mr.

Bartolomeo as the male who had been prowling around his brother-in-law’s car and whom he had followed out Regina to Prairie and then to the entrance to the cul-de-sac.

[12] While he attempted to evade arrest by running, at no time during their dealings with Mr. Bartolomeo did either Cst. Gielen orCst. Desjarlais find him to be resistant, violent or threatening in his words or behaviour. The same can be said of Mr. Bartolomeo’sconduct in his dealings with Mr. Bunkowski. In particular, at no time did Mr. Bartolomeo do or say anything to suggest that he had aknife in his possession or that he had any intention of using a knife, or any other such object, to kill, injure, threaten or intimidate Mr.Bunkowski, Cst. Desjarlais or Cst. Gielen. [13] Cst. Gielen conducted a search of Mr.

Bartolomeo, incidental to his arrest by Cst. Desjarlais. In the course of that search Cst.Gielen found on Mr. Bartolomeo’s person a small folding knife (the “Folding Knife”) attached to a keychain that also held a house key. (The Folding Knife itself was marked as Exhibit 2 at trial; a photo of it was marked as Exhibit 3.) [14] Cst. Gielen located the Folding Knife in a small, zippered pocket on the upper arm of Mr. Bartolomeo’s jacket. The officercould not recall whether the pocket was zipped shut, or not, at the time he made his search.

The photo marked as Exhibit 3 shows theFolding Knife with the blade extended and with a ruler next to it as a point of reference for length; it essentially confirms Cst. Gielen’sestimate that its blade is approximately 1½” to 2” long. [15] The evidence has satisfied me that the Folding Knife can be opened by holding its handle in one hand, gripping the exposed,non-cutting edge of its blade with the thumb and forefinger of the other, and pulling the blade upward until it locks into the openposition.

It is also possible to cause the blade of the Folding Knife to deploy with just one hand by pressing one’s thumb into the hole inthe blade and then guiding it out of the handle, with the thumb, into the open position. [16] Once open with the blade locked into the open position, the Folding Knife cannot be closed unless a small button on the handleis pressed so as to unlock it and permit the blade to be pushed back into place in the handle. [17] It is common ground that the Folding Knife has no feature that would permit its blade to deploy through the application ofcentrifugal force, or through the application of pressure to a release button that, in turn, activates a spring mechanism.

CONSTRUCTION OF THE NO-WEAPONS-INCLUDING-KNIVES CONDITION IN CONTEXT OF

SECTION 2 OF THECRIMINAL CODE [18] Defence counsel argues that the Crown is incapable of proving, beyond a reasonable doubt, that Mr. Bartolomeo breached theNo-Weapons-Including-Knives Condition in the May Probation Order because it cannot prove that the Folding Knife falls within itsambit. To put the point slightly differently, it is contended on Mr. Bartolomeo’s behalf that the Folding Knife, though undoubtedly a“knife,” is nevertheless not a “weapon” as defined by the Criminal Code.

Recall that the prohibition in the May Probation Order wasagainst possession of “… any weapons as defined by the Criminal Code, including knives …”. [19] The argument defence counsel raises requires that the court give the definition of “weapon” in s. 2 of the Criminal Code a closereading. That definition reads as follows: weapon means any thing used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thingused, designed to be used or intended for use in binding or tying up a person against their will; [20] I agree with Mr. Bartolomeo’s counsel that, because of the wording of the prohibition in the May Probation Order, it is notenough that the Crown establish that on the offence date Mr. Bartolomeo had in his possession a “knife” as that term is commonlyunderstood.

The Crown must go further and prove beyond a reasonable doubt that the particular knife he possessed—that is, the FoldingKnife—belongs to that subclass of knives that are also “weapons” under the statutory definition found in s. 2 of the Criminal Code. Failure of the Crown to prove this essential element would be fatal to the breach of probation charge that Mr.

Bartolomeo now facesbefore me. [21] The analysis I must conduct involves the simultaneous consideration of the wording of the No-Weapons-Including-KnivesCondition itself and the statutory definition of “weapon” found in s. 2 of the Criminal Code that is incorporated by reference into it. Inconstruing these provisions I am guided by the reasoning of the Supreme Court of Canada in Marcotte v. Canada (Deputy AttorneyGeneral), (SCC), [1976] 1 S.C.R. 108 where Dickson J. (for the majority) stated: … It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake.

No authority is needed for theproposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting theliberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced… (emphasis added) [22] To a similar effect and with specific reference to uncertainties or ambiguities that might be discerned in the language ofprobation orders, see R. v. McFarlane, [2007] O.J. No. 5280 (Ont. C.J.) where P.N.

Bourke J. stated, at paras. 20-21, the following: … The Crown is quite correct when he stated to the defendant that it would have been better for him to have erred on the side of caution. But the Crown is asking me to impose a criminal liability upon the defendant for doing something, but for the terms of this specificorder, are not in themselves illegal. It is my opinion that where the

interpretation of the terms of a criminal requirement are confusing then I feel I must resolve suchconfusion in favour of the defendant. (emphasis added)

[23] Expressions of the principle articulated in the quotations above are also found in numerous British Columbia authorities,including the comments of Brecknell P.C.J. of this court in R. v. Bennell, [2004] B.C.J. No. 2921 at para. 38 (Prov. Ct.). [24] I begin the analysis in the case at bar by considering what has been held in cases like R. v. Murray, [1985] O.J.

No. 23 (C.A.)to be the objective aspect of the Criminal Code definition of “weapon”—that is, the part of the definition that addresses objects that havebeen “designed” to be used in causing “death or injury” or for the purpose of “threatening or intimidating” a person. As Robertson J.A.,speaking for the court, held in R. v. Arrance, [1971] B.C.J.

No. 648 (C.A.), “One must, I think, start with the premise that a knife, beingan instrument that is universally used for utilitarian, peaceful purposes, is not prima facie designed to be used as a weapon…” (at para.15). [25] There is no doubt that the Folding Knife differs in appearance from, say, the kind of jack-knife that a boy scout might be issued,the kind of pen-knife that an elderly pensioner might carry in her purse or a Swiss Army knife. It could, perhaps, even be said to have—by comparison to those kinds of knives—a vaguely sinister appearance.

However, I cannot find beyond a reasonable doubt withoutevidence—and likely expert evidence—that, as a matter of design, the Folding Knife was created to serve the unlawful purposescontemplated by the definition of “weapon” within the Criminal Code.

As I have noted, it lacks many of the features (such as a bladethat deploys through the use of a spring mechanism or centrifugal force) that would likely be seen by an expert in these matters as beingindicia of a colourable design. [26] I acknowledge that in some other cases, courts have cited the fact that a knife requires two hands to be opened as a fact that isindicative, alongside other features, of a benign design: see, for example, Arrance at para. 15. However, the fact that the Folding Knifecan be opened relatively easily with one hand—established by the evidence of Cst.

Desjarlais—does not compel a contrary conclusion. The finding in Arrance that the knife at issue in that case could only be opened with two hands was not determinative in the court’sconclusion there that it was of a benign design. [27] I consider that it would require compelling expert evidence to bring the court to the conclusion that the Folding Knife in thecase at bar was designed to kill, injure, threaten or intimidate a person.

One can easily imagine, for example, that some workers orcraftspeople whose hands are both occupied while doing repetitive cutting work might find it convenient to employ a knife that isdesigned such that easy, one-handed opening and closing is possible. [28] On the evidence before me, where there is no expert or any direct evidence that speaks to the design of the Folding Knife, suchreasonable, alternative design explanations cannot be ruled out on common sense grounds. [29] Neither, in my view, can such reasonable, alternative design explanations be ruled out on the applicable law.

This is because, atthe end of the day, any suggestion in the case before me that the Folding Knife was designed to kill, injure, threaten or intimidate aperson could only be based on circumstantial evidence.

That being so, I must consider the inferences that can be drawn from theevidence (or lack of evidence) before me and ask myself whether the inference that the Folding Knife was designed to kill, injurethreaten or intimidate a person is the only reasonable inference that can be drawn from that evidence (or lack of evidence) or,alternatively, whether logically it is capable of supporting other reasonable inferences: see, for example, R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 at paras. 25-43 and R. v. Robinson, 2017 BCCA 6 , [2017] B.C.J. No. 33 at paras. 28-30(C.A.).

As can be seen, I have indeed been able to conceive of other reasonable and non-colourable inferences about the knife’s designand so any suggestion, rooted solely in circumstantial evidence, that the Folding Knife was necessarily designed to kill, injure, threaten orintimidate a person—that is, that objectively it is a “weapon” as defined by s. 2 of the Criminal Code—must fail. [30] This brings me to the subjective aspect of the definition of “weapon” in s. 2 of the Criminal Code. The subjective aspectrequires the court to assess the evidence of Mr.

Bartolomeo’s conduct on the offence date and then determine whether, in all thecircumstances, that evidence supports an inference that he possessed the Folding Knife with an intention to use it to kill, injure, threatenor intimidate a person. As McFarlane J.A. (for the court) expressed it in R. v. Blondell, [1972] B.C.J.

No. 645 at para. 9 (C.A.): Having regard to the time and place and to the manner in which the knife was being carried, the tribunal of fact must ask itself thequestion ‘with what intention or for what purpose would the [accused] be carrying the knife?’ … [31] Inasmuch as this reasoning process again has recourse only to circumstantial evidence, any inference that Mr. Bartolomeocarried the Folding Knife for the purpose of killing, injuring, threatening or intimidating a person must also be, effectively, the onlyreasonable inference that can be drawn in the circumstances: Villaroman and Robinson.[1] [32] If Mr.

Bartolomeo had actually used the Folding Knife in any of his interactions with Mr. Bunkowski or with officers Gielen orDesjarlais on the offence date to kill, injure, threaten or intimidate them, then evidence of that conduct would compel an inference ofpossession of it for those purposes as the only reasonable inference in the circumstances. There is, however, no evidence that Mr.Bartolomeo did any of those things.

To the contrary, the Folding Knife reposed uneventfully in the possibly unzipped, but neverthelesszippered, pocket on the sleeve of his jacket until it was found and seized during the search of his person that Cst. Gielen conductedincidental to arrest. [33] I am mindful of the fact that in the early morning hours on November 19, 2016, Mr. Bartolomeo was behaving suspiciously. The evidence describing his conduct suggests that he may have been bent on committing property offences—perhaps by stealing the carbelonging to Mr. Bunkowski’s brother-in-law or some of its contents.

He was dressed in dark clothing, carrying a duffel bag or backpack that he was “rustling around” in when trying the car’s passenger doors before he was interrupted. It would not be unreasonable forthe court, or anyone, to infer provisionally from this evidence that Mr. Bartolomeo was up to no good and that he may have armedhimself with the Folding Knife to fend off others if he were to be disturbed in the course of attempting to commit theft offences. [34] But having regard to all of the circumstances I cannot conclude that that is the only reasonable inference that can be drawn.

TheFolding Knife is, unquestionably, a comparatively small knife. While it is plainly capable of being used in an intimidating and evenharmful way, its power to intimidate and harm is demonstrably less than that of a larger, more sinister and more sophisticated bladedobject. Similarly, Mr. Bartolomeo did not once reach for or touch the Folding Knife at any point during the events of November 19,2016—not when he was interrupted in his questionable “casing” of the car parked in front of Mr. Bunkowski’s home, not when Mr.

Bunkowski chased him away and pursued him south on Regina and west on Prairie before he entered the cul-de-sac, and not when he was pursued and ultimately taken into custody by Cst. Desjarlais. These are the times when one would expect Mr. Bartolomeo to have at least pulled out and brandished the Folding Knife if his intention in possessing it on the offence date was to threaten and intimidate, or more, those who got in the way of planned criminal activities. He did not do so. [ 35 ] Neither does the location of the Folding Knife on Mr. Bartolomeo’s person support an inference of guilty intent.

If it were a true “weapon,” might Mr. Bartolomeo not have carried it on his person in a place more convenient than a zippered pocket on the sleeve of his jacket in the event that he needed to pull it out and use it on short notice? It is a fair question. His counsel points to the fact that the Folding Knife was attached to a house key by a small chain at the time it was seized, saying that it had and has the appearance of something possessed for wholly innocent and utilitarian purposes. I agree with Mr.

Bartolomeo’s counsel that, on the evidence before me, that inference cannot be excluded. [ 36 ] Thus, once again, the law governing inferences to be drawn from circumstantial evidence stands between the Crown and conviction of Mr. Bartolomeo, this time in relation to the subjective aspect of the statutory definition of “weapon” in the Criminal Code . As I have explained, I am able to form reasonable and non-colourable inferences regarding Mr.

Bartolomeo’s conduct in possessing the Folding Knife on the offence date—inferences other than that he possessed it with an intention to use it to kill, injure, threaten or intimidate a person. That being so, proof by circumstantial evidence of possession for those unlawful purposes cannot be made out. [ 37 ] It follows that the Folding Knife has not been proven, on either the objective or the subjective bases, to be a “weapon” under s. 2 of the Criminal Code . The possession of it by Mr.

Bartolomeo on the offence date was for that reason not prohibited by the No- Weapons-Including-Knives Condition of the May Probation Order as it is worded and, accordingly, Mr. Bartolomeo’s possession of the Folding Knife does not amount to a breach of that order. DISPOSITION [ 38 ] For all of the foregoing reasons I find Mr. Bartolomeo not guilty of the charge of breach of probation alleged against him in Information 95036-3B. [ 39 ] Order accordingly. ______________________________ Thomas S. Woods, P.C.J.