R. v. G., D.

R. v. G., D. Collection Decisions of the Court of Appeal Date 1999-09-20 Docket numbers C31486 Judges Finlayson, George Duncan; Weiler, Karen Merle Magnuson; Moldaver, Michael James Subject Criminal Decision Content DATE: 19990920 DOCKET: C31486 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) –and– D. G. (A Young Person) (Appellant) BEFORE: FINLAYSON, WEILER and MOLDAVER JJ.A. COUNSEL: Paul Calarco, for the appellant Christine Tier, for the respondent HEARD: September 7, 1999 On appeal from the conviction imposed by Brownstone J. dated September 24, 1998. ENDORSEMENT [1] The appellant was charged that on or about November 8, 1997 he had a weapon in his possession for a purpose dangerous to the public peace. This weapon was a pool table ball in a sock. The same facts gave rise to a second charge of carrying a concealed weapon. [2] At the time of his arrest, the appellant was found to have had this item in his back pocket. He explained to the police officers that he held it for protection. [3] The trial judge found the appellant guilty of both offences and imposed a disposition of probation with community service. The appellant appeals conviction alone. [4] Accepting that a pool ball in a sock is capable of being a weapon, it is apparent from the reasons of the trial judge that he misperceived the appellant’s evidence as brought out in the statement of the police and in his testimony at trial as to his intention for having the item in his possession. Contrary to the reasons of the trial judge, the appellant did not testify that he was carrying the pool ball to intimidate nor did he state that that he had never lost a fight. To the contrary, the appellant testified that he had won a particular fight with the two specific youths and he was concerned that the two would return for revenge, perhaps with reinforcements. According to the evidence then of the appellant, the pool ball was being carried for defensive purposes. It was intended as a deterrent against possible reprisal, not as an offensive weapon as the trial judge held. [5] In the light of this misperception of critical evidence, the convictions cannot stand. The appeal is allowed, the convictions are set aside and a new trial is ordered. Signed: “G.D. Finlayson J.A.” “K.M. Weiler J.A.” “M.J. Moldaver J.A.”