R. v. Argueta, 2011 ONCJ 576

COURT FILE NO.: St. Catharines - 2111-998-10-SR0126-01 DATE: 2011·07·15 Citation: R. v. Argueta , 2011 ONCJ 576 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DARVIN ARGUETA Before Justice A.J. Watson May 18, 2011 (Reasons for Judgment Released) and June 21, 2011 Reasons for Judgment released on July 15, 2011 A. Brown ................................................................................................................. for the Crown M.

Evans ................................................................................... for the accused, Darvin Argueta WATSON J.: [ 1 ] On May 18, 2011, Darvin Argueta was found guilty of several counts in a multi-count information regarding his participation as the “man with the gun” in a home invasion in Niagara Falls on October 5, 2009. [1] At issue is whether the Crown has proved beyond a reasonable doubt that the weapon brandished by the defendant during the home invasion was a “firearm” as defined by the Criminal Code . Both the Crown and defence made further submissions on this issue on June 21, 2011.

The gun used in this home invasion was never located during the course of the police investigation.

Furthermore, there was no evidence that it was fired during the course of the home invasion. “Firearm” is defined in s. 2 of the Criminal Code as: “firearm” means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm; The evidence called by the Crown describing the gun, the manner in which it was used and referred to by Darvin Argueta during the home invasion. [ 2 ] All three of the victims of the home invasion had a good opportunity to view the gun at least during portions of the home invasion.

The lighting in the apartment was good, the vision of all of the witnesses was good, and all had an unobstructed opportunity at one time or another to see the gun. All three provided descriptions of the gun, the manner in which it was used and the way in which the defendant referred to the gun during the course of the home invasion. The evidence of Sarah Smith [ 3 ] Sarah Smith identified the man with the gun as the defendant. She testified that the gun was pointed at her. The defendant had white socks or gloves on his hands.

The defendant pointed the gun at the heads of David Graham and William Viele when they were on the floor with their hands on their heads “execution style”. The defendant pointed it at her when she was in the kitchen and she put her hands on her head and lay down on the kitchen floor. She pleaded for her life. The defendant pumped the shotgun and said he was “not fucking around it was going to be a graveyard here.” The gun appeared to be a black sawed-off shotgun. It wasn’t a long barrel. There were little cartridges on the side. He was holding it with two hands. The whole gun was black from what she can recall.

The evidence of William Viele [ 4 ] William Viele described the shotgun as having a black handle and shaft. The pump was light brownish wood and there was electrical tape on the butt end. The barrel appeared to be black metal. It had a pump action. He saw the man with the gun pump it in the air when they were ordered to the dining room. He said, “You think I’m messing around. This is a real gun.” The gun made a

“chic chic” noise. It was a single barrel and the barrel was short and black maybe two feet in length. He has seen shotguns before and itwas shorter than a regular shotgun. He believed it was a sawed-off shotgun. He however had his doubts as to whether it was real and hefigured it was maybe a home-made gun, noting that it had electrical tape on it. He couldn’t tell if the gun was loaded, however the manwith the gun kept trying to show him where the cartridges go and said “See it’s loaded.” The shotgun was pointed at them when he andDavid Graham were told to get to the floor.

It was pointed about two feet close to their heads. [5] The man with the gun also used the f-word. For example, he said, “I’ll fucking shoot you.” [6] The man with the gun said to stop looking at him or he would shoot them. The evidence of David Graham [7] David Graham testified that he was in the living room when he saw the man with the gun down the hallway. He waspointing the shotgun at Sarah who was in her daughter’s bedroom. The gun was metal and wood. The metal was dark brown and thewood was a lighter brown. He testified that he did not know too much about guns but he knows that a shotgun is longer.

The barrel waseight to nine inches long. The man with the gun was holding it with his left hand forward and right hand back. He didn’t think it wascocked then because he cocked it as he was coming towards him later. His hand pumped upward back and forward and it made aclicking sound. He wondered if the gun was real or loaded or not. The man with the gun said, “Don’t think I won’t shoot youmotherfucker” as he was cocking it. He took this seriously. This male asked for “money”, “drugs” and for “Joe”. [8] The man with the gun used “slang” when he spoke.

The man with the gun stated “this place is going to be agraveyard.” [9] David Graham stated he was fearful for his life. He stated he focussed on the hole on the barrel of the shotgun. Hestated he did not get a good look at either of the two males. The Law [10] Madam Justice Pringle in R. v. Willis, 2007 ONCJ 605 , [2007] O.J. No. 5691 (O.C.J.) provides a

summary ofthe relevant law at paras. 31 and 32 as follows: 31 I agree with Mr. Genua's submission that where a firearm is not recovered, the case law requires more than just a reference inconversation to a gun, or a mere depiction of one in an image, in order to come to a reasonable conclusion that the gun is an operablefirearm. Other factors such as the circumstances of its use, its description, the conversation or images surrounding its possession, or anyexpert evidence tendered must permit a jury to conclude beyond a reasonable doubt that it was a real firearm.

In short, the totality of thecircumstances and evidence must be taken into account. In this regard, I have considered the following cases provided by the Crown anddefence: R. v. Charbonneau, (ON CA), [2004] O.J. No. 1503 (C.A.); R. v. Richards, (ON CA),[2001] O.J. No. 2286 (C.A.); R. v. Abdullah, [2006] O.J. No. 3936 (C.A.); R. v. Carlson, [2002] O.J. No. 1884 (C.A.); R. v. Fakomi etal. (unreported decision of Hackett J., Ontario Court of Justice, released February 28, 2007) and upheld on review by Trafford J. in R. v.Campbell, [2007] O.J. No. 2578 (S.C.J.); R. v. Wilson, [2006] O.J.

No. 3065 (O.C.J., Lipson J.); R. v. Mills, [2001] O.J. No. 3675(S.C.J.); R. v. Guzzo, (ON SC), [2007] O.J. No. 3306 (S.C.J.); R. v. Sibbeston, (NWT SC),[1991] N.W.T.J. No. 85 (S.C.); and R. v. Osiowy, [1997] A.J. No. 98 (C.A.). 32 I agree with Lipson J. in the Wilson case that the principle which emerges from the case law was succinctly stated by Eberhard J. inR. v.

Mills when he said: Where all the circumstances lead to an inference that the item looking like a firearm is a firearm, it is open to the trier of fact to drawsuch an inference. 33 In this case, I believe that there was evidence upon which a jury could conclude that the gun held by Mr. Wilson in the Rap SheetDVD was a real firearm based upon the following: Although he could not positively determine the make and model of the gun held by Mr. Wilson in the Rap Sheet, SpecialConstable Press was able to identify it with reasonable precision.

Based on his extensive knowledge and experience of firearms, and afterviewing the DVD numerous times, Officer Press identified the gun as a silver revolver with a large calibre, possibly a 44MAG; Officer Press also testified that based on his observation of the way Mr.

Wilson handled the gun, with his finger off thetrigger, he was of the opinion the gun was "live" or real; Other evidence suggesting the guns in the DVD were real operable firearms included the fact that in almost all instances, theholders had their fingers off the trigger; in one instance, the holder racked the gun open, revealing ammunition and loading the gun so itwas ready to fire. Officer Press testified that this indicated to him the gun was fully operable; Sgt.

Bobbis testified that the lyrics surrounding the display of guns in the Rap Sheet clearly suggested a gang lifestyleinvolving the sale of drugs, with guns used to protect drug territory;

After the Rap Sheet was made, Mr. Wilson was intercepted in numerous communications that indicate he was committing real crimes in relation to drugs and guns. (These communications are analyzed in more detail below, as is the evidence indicating that Mr. Wilson was involved in a criminal organization.) 34 In my view, the totality of this evidence would permit a jury to find beyond a reasonable doubt that Mr. Wilson was in possession of a firearm in counts 10 and 11. [ 11 ] In the case before me both the Crown and the defence have referred to many of the cases set out above by Pringle J. in the Willis decision.

I have reviewed those cases and other cases to which I have been referred. [2] Unlike the evidence before me, Justice Pringle had before her visual evidence of a gun in a Rap Sheet video wherein the defendant Mr. Wilson was seen holding a gun on five different occasions. Justice Pringle also had expert evidence to assist her in coming to the conclusion that there was some evidence which would permit a jury to find beyond a reasonable doubt that Mr. Wilson, one of the defendants, was in possession of a firearm as defined by the Criminal Code .

There was no expert evidence called in the case before me on the firearm issue. Conclusion [ 12 ] I find that after a careful consideration of all of the evidence in this case, I am unable to find beyond a reasonable doubt that the gun brandished by the defendant was a “firearm” as defined by the Criminal Code . In doing so I have considered the following: 1. No gun was ever located during the course of the investigation. 2. The opportunity for the victims to observe the gun was good and I have considered their descriptions of it.

I have also considered the manner in which it was brandished by the defendant, the words he used to describe the gun and the use that he would potentially make of the gun. 3. I have considered that both William Viele and David Graham had some doubt as to whether the gun was real or not. William Viele has had some experience with guns. He had his doubts based upon the duct tape on the butt end of the gun. Recognizing that their doubts are not determinative of the issue, I have considered their doubts in my assessment of the totality of the evidence. [3] 4.

Although the defendant referenced the gun as being real and acted as if it was real during the course of the home invasion, this evidence is unequivocal in my view on the whole of the evidence. I find that his repeated references that the gun was real could have been because the gun was real or it could also have been an attempt on his part to bolster this belief in the mind of the victims of this home invasion. 5. There was no evidence called that the defendant had ready access to guns. 6.

In my experience in the courts, it is not uncommon to be advised of imitation firearms that appear to be real that have been used in the commission of violent crimes. Although the gun was cocked once, and cartridges were seen by at least one victim, and one victim indicated the defendant attempted to show him where the cartridges were, absent expert evidence, I am unable to draw any definitive conclusions from this evidence as to the nature of the firearm on the totality of the evidence.

In other words, I lack the experience or expertise to say that imitation weapons cannot be cocked or have cartridges or that it would be unusual to find an imitation weapon with the appearance of a sawed-off shotgun that could be cocked and have cartridges in the world of crime and guns. Expert evidence would have been helpful at this trial in determining this issue.

I note that had there been such evidence before me from an expert firearms officer that it would be a rare occurrence that imitation weapons used in crimes could be cocked and/or have cartridges and/or a rare occurrence that an imitation weapon used in crimes would have the appearance of a sawed-off shotgun, this would have affected the outcome of my findings as to the nature of the weapon brandished by the defendant. [ 13 ] Although I am not satisfied that the Crown has proved that the gun used in this home invasion was a firearm as defined by the Criminal Code , the evidence is overwhelming that the gun used was at least an imitation firearm that looked like it could have been real.

The victims of this offence had every reason to believe, as they did, that the gun could have been real and that their lives were in jeopardy. Verdicts Rendered [ 14 ] Accordingly, the defendant will be found not guilty on counts 2 and 3, namely pointing a firearm contrary to s. 87(2) and possessing a firearm without being the holder of a license and registration certificate contrary to s. 91(3) of the Criminal Code .

Counts 2 and 3 are therefore dismissed. [ 15 ] The defendant will be found guilty and convictions will register for the offence of robbery on each of counts 9 and 10. [4] [ 16 ] The defendant will further be found guilty and convicted on count 12.

I find that the defendant was in possession of ammunition as defined in s. 84(1) which includes a “cartridge containing a projectile designed to be discharged from a firearm and, without restricting the generality of the foregoing, includes a caseless cartridge and shot shell.” Sarah Smith saw the cartridges and William Viele testified that the defendant was attempting to show him the cartridges. The defendant was in breach of his recognizance prohibiting such possession. [ 17 ] Convictions on all other counts were registered following the delivery of the written judgment released on May 18, 2011.

Released: July 15, 2011 Signed: “Justice A.J. Watson”

_______________________ Justice A.J. Watson