R v Navarro, 2024 MBPC 8

CITATION : R v Navarro , 2024 MBPC 8 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) A. Wood and B. Moen ) for the Crown – and – ) ) Jamie Navarro ) R. Campbell ) for the Accused ) ) ) Reasons for Decision ) Delivered January 23, 2024 ALLEN, P.J. [ 1 ] Jamie Navarro is charged with three offences: pointing a firearm, section 87(1) of the Criminal Code ; being the occupant of a motor vehicle while knowing that there was a loaded handgun in the vehicle, Criminal Code

section 94 ; and intentionally discharging a firearm while being reckless as to the life or safety of another person,

section 244.2(1) (

b) of the Criminal Code . [ 2 ] The Crown called a number of civilian and police witnesses. Mr. Navarro testified on his own behalf. The facts as indicated by the evidence are that on the evening of August 7, 2022, Jorge Torres hosted a bachelor party at his home in Winnipeg’s North Kildonan area. In attendance at that party was a man named Nelson Salazar who the host had invited. Mr. Salazar had asked the host if he could bring his friend Jamie Navarro. Mr. Salazar, Mr. Navarro and the approximate 10 to 12 other guests mingled in the back yard area of Mr.

Torres’s house, on his outdoor deck. [ 3 ] At some point after being there for approximately an hour, the accused left the party. Sometime after that a physical fight broke out between Nelson Salazar and some of the other guests. As a result of the fight, Salazar jumped a fence and fled. He then contacted the accused who agreed to return to pick him up. Mr. Navarro loaded his 9mm semi-automatic handgun, carried it with him and drove back to the location of the party. [ 4 ] When the accused arrived, he stopped his car in front of the Torres house and while still in his car fired nine shots from the handgun.

Three of these shots hit a car that was parked in front of Mr. Torres’s house, another bullet hit the host’s house, and another bullet went through the front window of the neighbour’s house and on into that house. It is agreed by way of an agreed statement of facts, that the shots were fired by Jamie Navarro from his gun. [ 5 ] Police found nine bullet casings and located five areas where bullets struck. One further live round was found in the back seat of the car that the accused had been driving. [ 6 ] There are areas of contention between the evidence of the Crown and the evidence of the defence.

The accused says that he left the party because he had overheard a conversation wherein several people said that they had pistols and were planning harm to Nelson Salazar. Mr. Torres says that Jamie Navarro was asked to leave the party because his aggressive search for a lost ring was upsetting the people at the party. [ 7 ] The defence says that when the accused had returned and was in his car in front of the Torres house there were people surrounding his car. The Crown disputes that contention. The defence says that Mr.

Navarro, when in his car in front of the Torres house, was approached by one of the people at the party, Brandon Escorcia, and that Escorcia raised his shirt, showed him a handgun in his waistband and reached for the gun. Mr. Navarro says that he was alarmed by the people around him and the threat posed by Mr. Escorcia, and as a result he pulled his handgun from a shelf in the car door beside him and fired warning shots into the air. He then says that Mr. Escorcia knocked his arm, which resulted in his hand coming down. He then says he just kept shooting.

The Crown disputes that the accused was surrounded by people or that Escorcia had a gun. The Crown agrees that Escorcia knocked Navarro’s arm, but the Crown says that his arm was knocked sideways, not down from an upward position. [ 8 ] Additionally, the evidence of Jamie Navarro was that Nelson Salazar had told him that he had been stabbed, that he was afraid that Nelson was “bleeding out” and that his friend was bleeding and covered with blood when he picked him up from the street, three doors down from the Torres house.

The Crown disputes that Salazar was badly hurt and offers as evidence to support that contention video footage played at trial, which the Crown says shows Salazar walking the hallway of the accused’s apartment building normally with no apparent abnormalities to his bare torso. The Crown through the evidence of Brandon Escorcia says that all the shots were fired after Mr. Escorcia “smacked the gun” (his words). The defence says four shots were fired prior to the contact from Mr. Escorcia. [ 9 ] In this case, credibility of the various witnesses and of the accused is at issue.

All cases in Canadian courts where credibility is

at issue are governed by the guidelines provided by the Supreme Court of Canada in the case of R v W(D), (SCC),[1991] 1 SCR 742. Those guidelines set out that the trier of fact must determine: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [at para 28] [10] As further clarified latterly by the Manitoba Court of Appeal in R v RCRT, 2018 MBCA 139, it is required that the trial judge“consider the evidence of the accused in the context of the evidence as a whole” (at para 7). [11] In this case, the defence raises as a defence section 34(1) of the Criminal Code, which sets out what is known as the defence ofself-defence. [12] The accused says that he fired his gun to scare people away from him as he feared for his safety. [13] Section 34(1) of the Criminal Code reads: A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being madeagainst them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from thatuse or threat of force; and (

c) the act committed is reasonable in the circumstances. [14] Mr. Navarro when he testified, acknowledged that he became angry at the house party when he lost a “pinky ring”. He said thatwhile looking for his ring he was under the deck and overheard a conversation which included words to the effect of, “Let’s get thisguy.” He believed that this referred to Nelson Salazar. As a result of hearing this conversation, he claims he told Salazar about thethreats, but Salazar wanted to remain.

Jamie Navarro then left the party with the woman he was with. [15] Later, he says that he received a phone call from Nelson Salazar who told him that he had been “pistol whipped” and stabbed.He acknowledged that he told the police that Nelson told him that he had been jumped by ten people. Mr. Navarro testified that he thendrove back to the location where the party was, to pick up Nelson Salazar and that he took his loaded handgun “for his own protection”.He said that he stopped in front of the Torres house and that there were people surrounding his car and Brandon Escorcia thenapproached his car.

He said that Escorcia lifted his shirt; that he had a handgun in the waistband of his pants and that he was reaching forthe gun. [16] Mr. Navarro then said he pulled out his gun and let off warning shots into the air. He said his hand was pointed upwards butthat it was knocked down when his arm was knocked by Escorcia. [17] In assessing the accused’s credibility as to the first test in R v W(D), I found a number of contradictions in his testimony.

I alsofound some of his explanations not plausible and felt that at times his answers seemed to be rationalizations after finding himself indifficulty to explain an earlier statement. [18] I found the evidence of Jorge Torres to have been delivered in a straight-forward manner. I did not get the impression that Mr.Torres bore any form of animus towards the accused or that he was trying to sell the Crown’s version of events. [19] I accept Mr. Torres’s testimony that the gathering at his home was proceeding in a cordial manner until the accused lost hispinky ring and became agitated. I believe that Mr.

Torres did ask the accused to leave the party. I find it implausible that Mr. Navarrocould hear a conversation on the deck, with loud music playing and somewhere close to 15 to 18 people talking, while approximately 10feet from the mouths of the individuals on the deck. Mr. Navarro claims that these people were plotting violence against a friend of thehost of the party. He says he couldn’t see them because he was under the deck, yet he did not look to identify them when he came outfrom the deck.

Under these circumstances, I find it hard to imagine that anyone overhearing such a conversation would not make thatnatural step to lay eyes on them immediately. Mr. Navarro said he could not identify them nor could he say how many people wereinvolved. [20] I also find it implausible that individuals attending a bachelor party would then conspire to commit violence against a friend ofthe host. Additionally, even Mr. Navarro admitted that when he lost his ring multiple people from the party were helping him look for it. [21] Additionally, I find it unlikely that once Mr.

Salazar had been warned of the conspiracy, as Jamie Navarro testified that he had,that he would have remained at the gathering.

[ 22 ] I also find it notable that Jamie Navarro had been consuming alcohol before attending to the Torres home. He and Nelson Salazar had been drinking beer in a hot tub at Salazar’s shop. Mr. Navarro said he had a couple of beers. In his interview with police, he acknowledged that things were a bit hazy and he at one point said, “I don’t remember what I saw that night.” [ 23 ] As stated earlier, Jamie Navarro testified that Nelson Salazar had called him and said he had been pistol whipped in the head, stabbed and set upon by 10 people.

This evidence is inconsistent with the evidence of all of Jorge Torres, Brandon Escorcia and Georg Schwab – all of whom basically said that a fight started. According to Escorcia, it started after Nelson Salazar took a swing at someone known only as “Johnny”. Jorge Torres came out and saw several guests breaking up the fight.

Brandon Escorcia said: “Everyone else was trying to break them up.” No one describes anything similar to Salazar being jumped by 10 people, being pistol whipped or being stabbed. [ 24 ] Additionally, despite the accused testifying that when he picked up Salazar he was bleeding and covered in blood, there is no obvious evidence of blood or injury on the video footage, nor did police find blood in the accused’s car.

As Salazar had lost his shirt in the fight, it is clear that if he were bleeding in the torso or head, there would have been blood in the car. [ 25 ] For the above reasons, I do not believe that Salazar had been treated as badly as Jamie Navarro claimed, which means either Salazar grossly exaggerated what happened to him or the accused is not being truthful about this to justify his actions. [ 26 ] Further insight is provided by the apartment building video which shows Jamie Navarro and the woman he was with, returning to his car to return to the party.

The video shows them walking to the elevator and then from the elevator to his car. Jamie Navarro testified that after hearing the story of his friend being “jumped”, he went to get him as he was afraid his friend would “bleed out”. Yet in the video there is no urgency in his movements, body language or locomotion of the accused as he moves towards his car on the night in question.

As suggested by the Crown, “He looks like he’s going for milk.” [ 27 ] As to the seriousness of Salazar’s injuries: When he got back to Jamie Navarro’s apartment, he cleaned himself, received a shirt and sandals, and left within a few minutes. There was no mention of going to a hospital or bandages needed, etc.

When Jamie Navarro was asked why he didn’t call police or an ambulance for Nelson Salazar after receiving the call from him, he said, “I didn’t think they would help.” In my opinion that answer is not believable and is not consistent with what he said he believed had happened to his friend. [ 28 ] It also appears inconsistent that the accused thought that the situation was sufficiently serious to justify him taking a loaded handgun but nevertheless took along a woman passenger; notably a woman he barely knew and didn’t even know her real name. [ 29 ] Additionally, the accused testified that Nelson Salazar told him on the phone that he was hiding three doors down from the Torres residence.

Despite having that knowledge, and despite his concern that his friend might be “bleeding out”, he drove straight to the Torres residence. [ 30 ] Another contradiction in the testimony of the accused arises from his acknowledgment on cross examination that he told police about the people at the party – “they all had machetes and guns”.

When pressed on this point in cross examination, he then said, “I was referring to when I went back.” When further questioned as to whether he actually saw knives or guns on anyone other than Brandon Escorcia, he admitted that he hadn’t. [ 31 ] He acknowledged that he told police, “ They pulled them out”, as to the guns and knives. When faced with the Crown pointing out that “they” means plural or more than one, Mr. Navarro continued to rationalize and try to justify his earlier statements.

When asked by the Crown as to why, if he felt surrounded, he didn’t just drive away, he said he couldn’t do that because he was surrounded, but also admitted that he did not know if anyone was in front of his car. [ 32 ] Jamie Navarro also acknowledged under cross examination that he told police that Brandon Escorcia had “pulled out his gun”. At trial, he said Escorcia reached for a gun but didn’t pull it from his waistband.

After being faced with this discrepancy, he admitted that he had lied to the police. [ 33 ] Similarly, referring to the other partyers, he said to police, “They pulled them out.” Once again when faced with the contradiction between that statement and his version of what happened at trial he tried to rationalize what appears to have been a misleading statement. [ 34 ] I have difficulty accepting the accused’s statement that all of a handgun was visible in Brandon Escorcia’s pants except a relatively small part of the barrel.

Given the weight of the handle of a handgun and the physical make-up of the object, it seems unreasonable to think that a handgun with only a few inches under a waistband would stay in place. [ 35 ] When the Crown questioned the accused as to his version of the contact with Brandon Escorcia and pointed out that based on that version, if he was shooting in an upward direction as he said he was, he would be shooting basically into Escorcia’s face. In response, the accused said, “He backed up a bit”.

Once again, a change to his testimony that in my opinion was an effort to explain a contradiction. [ 36 ] The accused admitted on cross examination that to fire a gun with Mr. Escorcia so close was reckless as to the safety of that person. [ 37 ] The accused testified that he fired the gun to get the people around him to back up. In my opinion, one shot would have been more than adequate to achieve that result. There is no possible explanation for the need to go further. [ 38 ] Additionally, the accused says he fired four shots into the air and then five more after Brandon Escorcia hit his arm.

He stated that after his arm was hit “it just kept going off”. Again, this behaviour is not consistent with his stated intention to intimidate the people outside that evening. Further, I find it unrealistic to think that Mr. Escorcia would have remained at the window of a car while a person within arms length fires four gun shots. I believe Mr. Escorcia’s evidence that he got away immediately is more likely and believable. I also find it highly unlikely that Mr. Escorcia would have deliberately knocked a gun that was pointed to the sky down so that it was

pointed level to him. [ 39 ] It is noteworthy that all three civilian Crown witnesses said that there were two people just behind Brandon Escorcia as he approached the Navarro vehicle. Mr. Escorcia and Mr. Torres said it was Julio Escorcia and his fiancé; Mr. Schwab didn’t know who the people were. Brandon Escorcia testified that the rest of the party group were on the other side of the road, on the green space across the street from the Torres residence.

None of the Crown witnesses put anyone on the road in front of the Navarro vehicle nor did they say that the group was converging on or surrounding that vehicle. Jorge Torres testified that after the shooting Julio Escorcia had glass from the shattered car window on his face, which speaks to his proximity to Georg Schwab’s car that was hit by three bullets. [ 40 ] For all of the above reasons, I did not find Jamie Navarro’s explanation plausible, and I did not find him to be a credible witness as to the events of that night and early morning. [ 41 ] The defence suggests that Mr.

Navarro’s actions were for the purpose of self-defence and that under section 34(1) of the Criminal Code he should be found to have acted out of a reasonable belief that force was about to be used against him. [ 42 ] As stated above, I did not find the accused to be credible. I accept the evidence of Jorge Torres that Mr. Navarro had been asked to leave the party. I do not accept Mr. Navarro’s evidence that he overheard some of the party participants conspiring to hurt Nelson Salazar. I accept the evidence of all three Crown civilian witnesses that there was a physical altercation between Mr.

Salazar and someone named Johnny. I also accept that Johnny’s brother was involved in the fight and that several others at the party tried to break up the fight. I also accept the evidence of the three witnesses that Mr. Salazar left the party without a shirt and that he hid somewhere in the proximity of the party house. [ 43 ] It is clear that the accused later returned to the Torres house and stopped his vehicle in front of that house.

I accept the evidence of Brandon Escorcia and Jorge Torres that the accused twice yelled, “Who fucked up Nelson?” [ 44 ] I found Brandon Escorcia to have given his evidence in a direct straight-forward manner. I did not find that he obviously embellished his answers nor did I feel that he was nervous or talking around suggestions made to him by counsel. [ 45 ] I accept Mr. Escorcia’s evidence that he approached the accused’s vehicle and that he saw a shiny gun and realized that it was sticking out of a rolled down window and was pointing at him.

I accept his evidence that he “smacked” the gun away from himself and then quickly went to the back of the car, jumped a fence and hid in the green space.

I accept his evidence that as he was leaving the side of the car he heard what he estimated to be 5 to 10 gun shots, and that he heard glass breaking in the Yaris automobile that had been parked on the street just behind him and slightly to the side when he confronted Jamie Navarro. [ 46 ] I also accept his evidence that Julio Escorcia and his fiancé had been standing behind him in front of the Yaris parked on the street at the time when he approached the window of the accused’s vehicle. [ 47 ] Accordingly, I find that the accused fired nine shots from the silver handgun shown in exhibit two, and that three of those shots hit the Yaris parked on the street, one hit Jorge Torres’s house and one hit the neighbour’s house. [ 48 ] Turning to an examination of the criteria under section 34(1) of the Criminal Code . [ 49 ] The accused says that his belief that force was threatened against him resulted from people surrounding his vehicle and because Brandon Escorcia had a gun and was reaching for it. [ 50 ] In this regard there is no evidence that anyone else at the party, other than Brandon Escorcia, had approached his car.

Mr. Escorcia had testified that “mostly everyone else was on the other side of the street except Julio and his fiancé”. Even the accused when asked if anyone was in front of his car admitted that he did not know. [ 51 ] As to the gun, I do not accept that Mr. Escorcia had a gun. I find the accused’s explanation that the gun was in the belt of Mr. Escorcia with the majority of the gun visible and being retained by a few inches of the barrel unlikely. [ 52 ] In any event, even if Escorcia did have a gun, Mr. Navarro could clearly have driven away.

The accused claims that he was prompted to go for his gun when he saw Brandon Escorcia reaching for his gun. Despite that imminent danger, the accused says he had time to reach down into the door shelf, find the gun, take off the safety – all before Escorcia could get his gun out.

As well, even if the accused’s version of what happened is accepted, he nevertheless has no explanation why he fired nine times, particularly after acknowledging that everyone scattered after the gun originally fired. [ 53 ] Accordingly, under the circumstances of the events as I accept them, I do not accept that the accused had reasonable grounds to believe that force was being used against him. [ 54 ] In my opinion, if he legitimately went there to pick up his friend, then he would not have gone directly to the Torres residence. [ 55 ] I do not believe that Mr.

Navarro firing a gun in the direction of people, a car and houses, was a reasonable response to any threat to himself that he perceived. I believe that a more reasonable response to any perceived threat in these circumstances would have been to drive away and call the police. [ 56 ] The defence argues that Mr. Navarro’s purpose in firing the handgun was to “scare people off”. Given the contradictions discussed above, I do not accept that the accused loaded his handgun and took it with him that evening for the purpose of self-defence.

He had received a call from his friend asking that he be picked up, indicating that he was three doors down from Jorge Torres ’s house. Even if that friend had told him that he had been beaten, it would not be appropriate for the accused to take a loaded handgun. If he was legitimately concerned as to his or his friend’s safety, he would have immediately called the police. He, when asked why he did not call police said, “I didn’t think they would help.” This is not a reasonable explanation for not calling police, and loading a handgun is not a reasonable alternative.

[ 57 ] As to “scaring off” anyone around his car, there is no other evidence that anyone other than Brandon Escorcia approached his car and Mr. Navarro on cross examination, admitted that he didn’t know where the other people on the street were. When asked why he didn’t drive off, he said he didn’t know if anyone was in front of his car. [ 58 ] He said he was intimidated and frightened by Escorcia approaching him yet when cross-examined as to how his bullets wouldn’t have gone directly into Mr.

Escorcia’s head if he was where he said he was, he replied, “He backed up a little bit.” If Escorcia was backing up, then it would seem that any threat felt by the accused should have been negated. [ 59 ] Further, if the accused was legitimately acting to scare off the other people present, one shot would be reasonably adequate to that purpose. Any more than one would be unnecessary.

Even the accused acknowledged that immediately upon hearing shots the people scattered. [ 60 ] Under the circumstances of the evidence before the court, I do not believe that it was reasonable for the accused to believe that force was being used against him or against Nelson Salazar, who at the time of the shooting was apparently somewhere else and in no danger. I do not accept the accused’s testimony that Brandon Escorcia had a gun in his pants or that he was an immediate threat to the accused’s safety. I do not believe that Mr.

Navarro’s act of firing a handgun nine times was reasonable in these circumstances. [ 61 ] The defence argues that the credibility of the Crown witnesses suffers from some contradictions. An example pointed to, that Brandon Escorcia and Georg Schwab’s evidence differed as to how the fight at the party started.

I felt that there were only small differences between the testimony of the Crown witnesses and that the discrepancies were understandable given the passage of time and the normal divergence of different people’s recitations of events in the past. [ 62 ] I find that the accused has not established that his actions meet the criteria of section 34(1) of the Criminal Code . I do not find that he fired his handgun in self-defence. [ 63 ] Returning to the R v W(

D) criteria, I do not believe the evidence of the accused and his evidence does not raise a doubt in my mind. The final W(

D) criteria requires that I assess the evidence which I do accept and determine whether the Crown has proven the guilt of the accused beyond a reasonable doubt. [ 64 ] Looking first at count one. This charge alleges that the accused did without lawful excuse point a firearm at person or persons unknown contrary to

section 87 of the Criminal Code . [ 65 ] In this case, I accept the evidence of Brandon Escorcia that a handgun was pointed at him.

As it is conceded that the accused was in possession of the handgun at all relevant times during the events in question, I am satisfied that the accused was the person holding the gun and pointing it at the chest of Brandon Escorcia. [ 66 ] I am satisfied beyond a reasonable doubt that the Crown has proven this charge, and I find the accused guilty of this charge. [ 67 ] Count two alleges that Jamie Navarro was an occupant of a motor vehicle in which he knew that there was a firearm in the vehicle. [ 68 ] I find that the evidence before the court establishes that Jamie Navarro was aware of the loaded handgun in his car.

Mr. Navarro is convicted of this charge. [ 69 ] Count three alleges that the accused intentionally discharged a firearm while being reckless as to the life or safety of another person, contrary to

section 244.2(1) (

b) of the Criminal Code . [ 70 ] In this case, Mr. Navarro discharged his handgun when Brandon Escorcia was in close proximity. As well, Julio Escorcia and his fiancé were only a few feet away from the discharging gun. As evidence of how close they were, Julio Escorcia had broken glass from the Yaris’s windows on his face after the shooting. The evidence on cross examination established that the accused knew that there were multiple people at the party and that they were in the immediate vicinity of the car he was shooting from.

The evidence from the trial established that one shot hit the home where the party had been held; another shot hit the neighbouring house. In the early morning hours it is logical to assume that there would be people in those houses. Mr. Navarro acknowledged that he knew there were people from the party out in front of the party house. [ 71 ] On cross examination, the accused acknowledged that firing the gun so close to Brandon Escorcia was reckless as to Mr.

Escorcia’s safety. [ 72 ] The Manitoba Court of Appeal in R v Barca , 2022 MBCA 80 , said the following as to the definition of recklessness (at para 122): [T]he Crown must prove the following: - that the accused knew the facts and circumstances being relied upon to establish the recklessness; and - that the accused knew that there was a risk that his conduct, in those circumstances, could cause the prohibited result of endangering the life or safety of other people and acted with indifference to that risk. [ 73 ] In my opinion, given that the accused was aware of the people on the street that night and Mr.

Navarro’s acknowledgment that he didn’t know if there were people in front of his car, I believe his actions put everyone present that night in danger, particularly Brandon and Julio Escorcia and Julio’s fiancé – all of whom were close to him and in the line of where some of the shots hit. It is notable that the police forensic witness testified that the trajectory of the bullet found on the office floor of the neighbour’s house was consistent

with having been fired from a car on the road. [ 74 ] Accordingly, I am satisfied that Jamie Navarro knew that there were people about the area, and particularly close to him and in front of him. I am satisfied that he knew that by firing a gun in those circumstances, that there was a significant risk that by-standers or people in the houses would be hurt. I am satisfied he fired his gun nine times despite this risk to the life or safety of other persons in the area. [ 75 ] Accordingly, I am satisfied that the Crown has proven this charge beyond a reasonable doubt, and I find Mr. Navarro guilty of count three. Original signed by Judge Allen H. LAWRENCE ALLEN, P.J.