)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 7663

CITATION : R. v. Vahid Pashazahiri, 2013 ONSC 7663 COURT FILE NO.: 13-40000/05 DATE: 20131220 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – VAHID PASHAZAHIRI Defendant )) )) )) )) ) ) Frank Schembri, for the Crown Scott Reid, for the Defendant L.B. Roberts J. Ruling on the Defendant’s Motion for a Directed Verdict Introduction: [ 1 ] At the conclusion of the Crown’s case, Mr. Pashazahiri brought a motion for a directed verdict with respect to Count 2 in the Indictment dated January 25, 2013. [ 2 ] Mr.

Pashazahiri was charged with various robbery and other related offences arising out of the same factual circumstances. Count 2 reads that Mr. Pashazahiri stands further charged that he, on or about the 21 st day of January in the year 2012 in the City of Toronto, in the Toronto Region, did use an imitation firearm while committing the indictable offence of robbing Daniel Robert Romualdi, contrary to s. 85(2) of the Criminal Code . [ 3 ] On December 2, 2013, I allowed Mr. Pashazahiri’s motion for a directed verdict and dismissed Count 2 with reasons to follow. These are those reasons.

Relevant Facts: [ 4 ] The Crown alleges that, at around 1:49:05 in the morning of Saturday, January 21, 2012, Mr. Pashazahiri, masked and carrying an imitation firearm, along with two other men, entered the Flirt Spa, located at 1003 Finch Avenue West, and robbed Daniel Romualdi, Karen Hong, and Ekaterina Zeitsev, who were working at the Spa that morning. [ 5 ] With respect to the robbery of Mr. Romualdi, Mr. Romualdi was the only direct witness. The evidence of Mr. Romualdi, Ms. Hong and Ms. Zeitsev was that, on the video surveillance, Mr. Romualdi saw three men about to enter the Spa.

As a result, before the three men entered the Spa, Ms. Hong and Ms. Zeitsev went immediately to the back of the Spa to the dressing room in order to change their clothing. [ 6 ] Mr. Romualdi testified that the three men entered the Spa and that a black male, who was not wearing a mask, immediately stepped towards him and punched him in the face while asking him where the money was. Mr. Romualdi said that the punch knocked him off his chair and he fell backwards behind the desk to the ground where, he believes, the black male kept kicking and punching him while the black male searched the desk for money. [ 7 ] Mr.

Romualdi testified that, other than seeing, for what he described as a split-second, that the other two men entered with the black male and that they had masks on their faces, one full and the other three-quarters, Mr. Romualdi said that he did not know where the other two men went or what they were doing. Mr. Romualdi said that he was immediately dazed and in shock because of the punches and kicks to his face and had difficulty remembering much of what happened to him. He testified that he covered his head with his arms to try to protect it.

[ 8 ] Mr. Romualdi testified that he took a wad of money of about $500 to $700 from his pocket and waved it at the man who was assaulting him, while telling him to stop. Mr. Romualdi testified that the black man took the money and ultimately left the spa. Mr. Romualdi testified that he did not see any of the three men with an imitation firearm or any other weapon; he said that one of the men, he did not know who, was making a motion towards his waist, although he did not remember anyone referencing a weapon. [ 9 ] Ms. Hong and Ms. Zeitsev both testified that they did not see what happened between Mr.

Romualdi and any of the three men who entered the Spa but remained in the dressing room until after the three men had left the Spa. Ms. Hong and Ms. Zeitsev testified that while they were changing their clothes in the dressing room at the back of the spa, someone kicked the door violently open. [ 10 ] Ms. Hong testified that, in quick succession, three men came individually one after the other into the dressing room. She testified that the first man who entered was a lighter skinned black man, unmasked, and that, immediately after the first man had exited, a second man, also unmasked, entered the dressing room.

She said that neither of them had weapons. She testified that, immediately following the second man’s exit, a third man wearing a mask entered the room, pointing what appeared to Ms. Hong to be a gun, because she could see the front of the barrel, at her and Ms. Zeitsev, moving it back and forth between them, and, saying, like the others, “where the fuck is the money”. Other than saying that and waving the gun as she described, Ms. Hong said that the third man did not threaten them in any other way or say anything else to them. [ 11 ] Ms.

Zeitsev testified that she believed that two to three men, one black man and one to two masked men entered the room together, and that they were all masked. Ms. Zeitsev testified that she did not see any weapons. Ms. Zeitsev testified that she saw one of the men put his hand in his pocket and that she was terrified that she would be stabbed and closed her eyes, but testified that she saw no weapons pulled out or used. Ms. Zeitsev agreed that, if one of the men had pulled out a gun and pointed it at Ms. Hong and her, she would have remembered it. [ 12 ] No imitation firearm was found in Mr.

Pashazahiri’s possession when he was arrested and searched at around 6:13 a.m. on January 21, 2013. No imitation firearm related to these events was made an exhibit or ever found by the police. [ 13 ] P.C. Vyacheslav Mihalatyuk testified that, when he searched Mr. Pashazahiri at around 6:13 a.m. on January 21, 2013, he found in Mr. Pashazahiri’s possession the following items: a black balaclava, which, P.C. Mihalatyuk testified, Mr. Pashazahiri was wearing at the time of his arrest and which Mr. Romualdi, Ms. Hong and Ms.

Zeitsev identified as being similar to the mask or masks worn by the men who robbed them; $860.00; a pink wallet, containing Ms. Hong’s identification and bank cards, a pink iPod nano, and a Canadian commemorative dollar, in a plastic case, with the name “Mika” on it, all of which were identified by Ms. Hong as her property; and a black Samsung cellphone, later identified as belonging to Emily MacKinnon, another Spa employee, whose video statement was played at trial.

Analysis: [ 14 ] The test for a directed verdict is whether there is sufficient admissible evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt. [1] [ 15 ] In deciding this question, the court must not determine the case on its merits or assess the evidence in terms of its credibility or reliability. [2] [ 16 ] Where the Crown’s case depends on circumstantial evidence, the court should engage in some limited weighing of the evidence in the sense that the judge must assess the reasonableness of the inferences to be drawn from the circumstantial evidence to determine whether a reasonable jury, properly instructed, could return a verdict of guilty. [3] [ 17 ] The court must only determine whether there are inferences that may rationally be drawn from the circumstantial evidence in support of the Crown’s case on which a properly instructed jury could return a verdict of guilty on the counts in issue.

It is not my task to determine whether those are the only inferences that can be drawn or whether there are competing inferences. [4] Moreover, where more than one inference can reasonably be drawn from the evidence, only the inferences that favour the Crown are to be considered in determining whether there is sufficient admissible evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt. [5] [ 18 ] The consideration of reasonable inferences does not include a consideration of inferences based upon speculation.

An inference which does not flow reasonably and logically from established facts cannot be made, and amounts only to conjecture and speculation. [6] [ 19 ] With those principles in mind, I turn to the question of whether there is sufficient admissible evidence in the record upon which a properly instructed jury could rationally conclude that Mr. Pashazahiri is guilty beyond a reasonable doubt of the offence under s. 85(2) of the Criminal Code as set out in Count 2 of the Indictment. [ 20 ] S. 85(2) of the Criminal Code provides as follows: Every person commits an offence who uses an imitation firearm

(

a) while committing an indictable offence, (

b) while attempting to commit an indictable offence, or (

c) during flight after committing or attempting to commit an indictable offence, whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm. [ 21 ] The Crown submits that there is the following sufficient admissible evidence in the record which would permit a properly instructed jury to rationally conclude that Mr. Pashazahiri is guilty beyond a reasonable doubt of using an imitation firearm while committing the robbery of Mr. Romualdi: i. Mr. Romualdi saw one of the three men motion towards his waistband; ii. Ms.

Hong saw what she believed to be a firearm pointed at her and Ms. Zeitsev; iii. The video surveillance camera shows the three men entering and then leaving the Spa between around 1:49:05 to around 1:50:38 in the morning of January 21, 2012; iv. Mr. Romualdi, Ms. Hong and Ms. Zeitsev testified that they and their co-workers’ money and property were stolen by the three men. v. P.C. Mihalatyuk testified that some of the stolen property, identified by Mr. Romualdi, Ms. Hong and Ms. Zeitsev, and a black balaclava were found on Mr.

Pashazahiri’s person when he was arrested at around 6:13 a.m. on January 21, 2012. [ 22 ] Without making any determination as to its credibility or reliability, this evidence is sufficient, if accepted by the jury, for the jury to reasonably conclude pursuant to ss. 21 (1) (

b) and (

c) and (2) of the Criminal Code that Mr. Pashazahiri was one of the three men who entered the Spa and participated at least as a party to all three of the robberies in accordance with a common agreement to rob the occupants of the Spa and to reasonably conclude that an imitation firearm was used in the actual commission of the robberies of Ms. Hong and Ms. Zeitsev. As a result, there is no question that Counts 1 and 3 to 7 should be left to the jury. [ 23 ] With respect to Count 2, however, there is no evidence from which a jury acting reasonably could infer that Mr.

Pashazahiri actually carried out the robbery of Mr. Romualdi or that an imitation firearm was used in the actual commission of the robbery against Mr. Romualdi, that the imitation firearm was used to restrain or prevent Ms. Hong or Ms. Zeitsev from coming to Mr. Romualdi’s assistance while he was being robbed, or that it was used during the flight of the three men from the Spa. [ 24 ] Mr. Romualdi described the man who beat and robbed him as being a black male, without a mask, who spoke with a Jamaican accent and used Jamaican slang, and who was about his height, that is, five feet and five inches. Ms.

Hong also identified the first male who came through the door of the dressing room as being an unmasked lighter skinned black male who was about five feet eight inches in height. Crown counsel sensibly advised that he would not suggest to the jury that Mr. Pashazahiri actually committed the robbery of Mr. Romualdi. Based on the evidence, no jury acting reasonably could infer that the black male who actually committed the robbery of Mr. Romualdi is Mr. Pashazahiri who is about six feet three inches tall, fair skinned and of Persian descent. [ 25 ] The Crown argues that, under s. 21(1) (

b) or (

c) of the Criminal Code , Mr. Pashazahiri could be found guilty of using an imitation firearm in the commission of the robbery of Mr. Romualdi, even if he did not actually commit it, if there was evidence from which a jury could reasonably infer that he used the imitation firearm for the purpose and with the intention of assisting or encouraging the black male to actually commit the robbery of Mr. Romualdi. [ 26 ] To establish criminal liability under s. 21(1) (

b) or (

c) of the Criminal Code , the Crown must prove beyond a reasonable doubt that an accused subjectively adverted to the specific objective of aiding or encouraging the principal in the commission of the offence. [7] It is not sufficient to establish liability as an aider or abettor that an accused’s conduct had the effect of aiding or abetting the principal to commit an offence; an accused is only liable if he or she intended to assist or abet the principal to commit an offence. [8] [ 27 ] As noted by the Supreme Court of Canada in Dunlop & Sylvester v.

The Queen : Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender;

an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or

an act which tends to prevent or hinder interference with the accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit. [9] [ 28 ] Mr. Pashazahiri’s case is different from the factual circumstances in R. v. C.S.H. [10] , which serves as an example of the kind of act that has been held to aid or abet the principal offender, as referenced in Dunlop & Sylvester , supra . In C.S.H. , the accused intentionally diverted a search party who was looking for the victim of his friend’s sexual assault.

As C.S.H. did this for the purpose of assisting his friend to assault the victim, C.S.H. was found guilty as a party to the assault. [ 29 ] In Mr. Pashazahiri’s case, there is no evidence from which a jury acting reasonably could make the inference and conclude that Mr. Pashazahiri used an imitation firearm to assist in or encourage the robbery of Mr. Romualdi; the only inference to be reasonably drawn from the evidence of Ms. Hong is that the imitation firearm was used to commit the robberies of Ms. Hong and Ms.

Zeitsev. [ 30 ] The Crown submits further that, pursuant to the provisions of s. 21(2) of the Criminal Code , if Mr. Pashazahiri is found to have used an imitation firearm in the robberies of Ms. Hong and Ms. Zeitsev, that is sufficient to establish liability under Count 2 because Mr. Pashazahiri would have been using an imitation firearm in furtherance of the common purpose of committing all of the robberies that took place at the Spa.

[ 31 ] As already noted, there is evidence on the record from which a jury could reasonably find that the three men were engaging in the common enterprise of robbing the occupants of the Spa that morning and that an imitation firearm was used in the robberies of Ms. Hong and Ms. Zeitsev. That evidence, however, cannot establish liability for the use of an imitation firearm in the robbery of Mr. Romualdi, because there is no evidence that an imitation firearm was also used in the actual commission of the robbery of Mr. Romualdi. [ 32 ] In R. v. Ingraham [11] , the Ontario Court of Appeal expressly held that a person cannot be convicted of an offence under s. 85’s predecessor

section in the Criminal Code unless a firearm had been used in the actual commission of the robbery. The Court of Appeal set aside Ingraham’s conviction because no firearm was used in the underlying offence of robbery. [ 33 ] The factual circumstances of the Ingraham case were that a man called Abbott used a firearm to compel one Shawn O’Driscoll and the accused, Ingraham, to participate in a bank robbery. In particular, Abbott threatened O’Driscoll with a firearm and forced him to rob a bank while Abbott and Ingraham remained in a nearby car.

O’Driscoll did not use a firearm in the commission of the bank robbery. [ 34 ] The Court of Appeal concluded that, “It would be illogical, to say the least, to find Abbott and through him the appellant guilty of the use of a firearm in the commission of an indictable offence when the indictable offence (in this case robbery) with respect to which the firearm was said to be “used” was in fact committed by a person (O’Driscoll) without the use of a firearm.” [12] [ 35 ] Applying to the present case the reasoning of the Court of Appeal in Ingraham , it would be illogical for a jury, properly instructed, to find Mr.

Pashazahiri guilty of using an imitation firearm in the commission of the robbery of Mr. Romualdi when there is no evidence from which a jury could reasonably conclude that an imitation firearm was used at all in the actual commission of the robbery of Mr. Romualdi. As already noted, Mr. Romualdi testified that he did not see any weapons and that no weapons were referenced. [ 36 ] Mr. Pashazahiri’s case is distinguishable from the circumstances in R. v.

Steele [13] , where the offenders were found to have used a firearm within the meaning of s. 85(1) of the Criminal Code because they had repeatedly referred to a firearm in their physical possession or readily at hand in order to facilitate the commission of the indictable offence of break and enter. In the present case, while Mr.

Romualdi testified that he saw one of the three men making a motion towards his waistband, he said that he never saw any weapons nor were any weapons referenced by any of the men. [ 37 ] In Steele , Fish J., for a unanimous Supreme Court of Canada, reviewed relevant case law concerning the meaning of the words, “uses a firearm”, in s. 85 of the Criminal Code . In particular, Fish J. referenced Dickson J.’s explanation (discussing s. 85 ’s predecessor), for the majority of the Supreme Court of Canada in R. v.

McGuigan [14] , that s. 85 is concerned with the actual use of a firearm, as opposed to its mere physical possession; and he highlighted the Supreme Court of Canada’s decision in R. v. Krug that “possession alone could not support a conviction under s. 85 .

And it has at least since then been settled law that carrying a concealed weapon while committing an offence is not “using” a firearm within the meaning of s. 85(1) ” [15] . [ 38 ] Fish J. gave the following definition of “uses a firearm” in Steele : “In the absence of a statutory definition, I would therefore hold that an offender “uses” a firearm, within the meaning of s. 85(1) , where, to facilitate the commission of an offence or for purposes of escape, the offender reveals by words or conduct the actual presence or immediate availability of a firearm.

The weapon must then be in the physical possession of the offender or readily at hand.” [16] Fish J. also clarified that any threat that refers to a firearm is not “use” for the purposes of s. 85 of the Criminal Code , but is no more than a threat, which is not captured under that section. [17] [ 39 ] Mr. Romualdi’s evidence of seeing one of the three men make a motion towards his waistband, without more, is not sufficient evidence from which a jury properly instructed could reasonably conclude that an imitation firearm was being used in the commission of the robbery of Mr. Romualdi.

As no imitation firearm was seen or mentioned, the man’s movement towards his waistband, if anything, could only be seen as a threat, which, according to R. v. Steele , is not captured under s. 85 of the Criminal Code . Conclusion: [ 40 ] Accordingly, for these reasons, Mr. Pashazahiri’s motion for a directed verdict with respect to Count 2 is allowed and Count 2 is dismissed. L.B. Roberts J. Released: December 20, 2013 CITATION : R. v. Vahid Pashazahiri, 2013 ONSC 7663 COURT FILE NO.: 13-40000/05 DATE: 20131220

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – VAHID PASHAZAHIRI Defendant ruling L.B. Roberts, J. Released: December 20, 2013