IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Tyrone Roderick Dumais (“Dumais”) and Cody Daniel Ferriere (“Ferriere”) are charged with a series of offences relating to an incident that took place at a McDonald’s restaurant in Vancouver on September 14, 2013.

[2]           As a result of the incident at the McDonald’s restaurant, Dumais and Ferriere have been charged with six offences. They are jointly charged with knowingly uttering threats to Scott Beintema (“Beintema”); using an imitation firearm while committing or attempting to commit the offence of threatening; using an imitation firearm while committing or attempting to commit the offence of assault; carrying or having in their possession an imitation firearm for a purpose dangerous to the public peace; carrying a concealed weapon, being an imitation firearm.

[3]           Dumais has also been charged with a single count of having in his possession a knife for a purpose dangerous to the public peace, or for the purpose of committing an offence.   

[4]           The Crown called four civilian witnesses who were involved in the incident at the McDonald’s restaurant.  The Crown also called four police officers who became involved in the incident essentially ex post facto.  There was also CCTV surveillance footage of the McDonald’s restaurant that partially depicted the unfolding of events at the McDonald’s restaurant during the incident.

[5]           Both Dumais and Ferriere admit an incident took place at the McDonald’s restaurant between the two accused and the four civilian witnesses. However, both accused submit that the evidence falls short of establishing proof of guilt beyond a reasonable doubt.

[6]           In particular, both accused challenge the reliability of the evidence of the four civilian witnesses and the evidence presented in the CCTV surveillance footage.

[7]           Tyler Vanderlind (“Vanderlind”), Trevor Vandelft (“Vandelft”), Beintema, and Dylan Kurik (“Kurik”) were out celebrating Beintema’s birthday in Vancouver on September 13, 2013. All four are in their early 20s.  They are good friends.

[8]           Their evidence relating to events leading up to the incident at the McDonald’s restaurant was not controversial.  Apparently the Beintema party had gone to a concert in Vancouver where, except for Vanderlind, various amounts of alcohol were consumed.

[9]           Between 12:30 AM and 1 AM on September 14, 2013, the Beintema party made their way to the McDonald’s restaurant situated in the southeast corner of Hastings Street and Cassiar Street.

[10]        From the CCTV surveillance footage, both Dumais and Ferriere can be seen at the counter of the McDonald’s restaurant apparently ordering some food.  Both accused are drinking from cans of beer.  Both accused appear to be in their early 20s.

[11]        The CCTV footage then shows the Beintema party enter the McDonald’s restaurant, and within a very short period of time some sort of altercation takes place between the two accused and the Beintema party.

[12]        Vanderlind testified that he had one beer through the evening.  He testified that when they were at the McDonald’s restaurant, he saw the two accused drinking from cans of beer at the counter of the restaurant.  He recalled seeing a knife in a sheath in the waistband of Dumais and the butt of a handgun in either Ferriere’s back pocket or waistband.

[13]        Vanderlind testified that there was some general conversation and joking that was struck up between his group and the two accused which shortly became unfriendly.  He recalled that the comments, and in particular a joke, that were made by the two accused were not appreciated by Beintema.

[14]        Vanderlind testified that Beintema approached the two accused and words were exchanged.  It was during this altercation that Vanderlind recalled seeing Dumais grabbing the handgun from the waistband or pocket area of Ferriere and saying words to the effect of: “I am not afraid to shoot you guys.”

[15]        Vanderlind testified that Ferriere then grabbed the gun back and concealed it in his waistband or pocket.  Vanderlind conceded that no gun was visible when he viewed the CCTV surveillance footage.

[16]        In cross-examination, Vanderlind appeared to modify his direct examination in relation to his observations of the alleged handgun by describing it with words along the lines of “we spotted a gun on the blond haired male (Ferriere).”

[17]        Vandelft testified that he had consumed approximately five beers that evening. He described the two accused at the McDonald’s restaurant as being somewhat aggressive toward each other.  He recalled hearing racist comments made by the two accused.  It was at this point that Vandelft recalled seeing the butt of the handle of a gun in the back area of Ferriere’s waistband.

[18]        Vandelft recalled that Beintema then got involved by asking the two accused to “calm down” at which time Vandelft had the impression that Dumais made a move toward the handgun.  It was at this point that Vandelft recalled Ferriere saying words to the effect of:  “We aren’t scared to carry anything out.  We aren’t pussies.”

[19]        Vandelft described the whole incident as being very brief in duration and that he was approximately 5 feet away when he made the observations of the two accused in their interaction with Beintema.

[20]        Beintema testified that he consumed five or six bottles of beer throughout the evening.  He recalled the two accused at the McDonald’s restaurant talking “trash talk.”  It was around this point that Beintema recalled that Kurik became involved in an altercation with the two accused.

[21]        Beintema testified that it was during this altercation between the two accused and Kurik that he observed one of the two accused pass a handgun to the other accused.  He described the action of the handing of the gun between the two as taking a matter of seconds.  Beintema testified that when the handgun was being passed between the two accused, one of them said words to the effect of:  “we are not afraid to take action.”

[22]        Kurik testified that he had approximately six beers and six whiskeys during the evening.  From what he could remember, he heard one of the two accused at the McDonald’s restaurant joke about a gun, and during the course of that conversation one of the two accused said words to the effect of: “I have a 9.”  Kurik took that expression to mean that one of the two accused had a 9 mm pistol.

[23]        Kurik testified that there was an altercation between the two accused and Beintema, and that during the course of that altercation, he saw Dumais pointing a gun at Beintema.  Kurik described this pointing of the gun to take approximately 5 seconds.

[24]        After the altercation between the two accused and the Beintema party, the two accused left the McDonald’s restaurant with McDonald’s bags of food in hand. Apparently Vandelft had called the police after the altercation with the two accused, with police officers arriving on the scene within short order.

[25]        Constable MacPherson received a dispatch shortly after 1 AM relating to the altercation at the McDonald’s restaurant.  Both constables were in uniform and driving a marked police car.  As a result of information received, Constable MacPherson commenced a surveillance of the area near the McDonald’s restaurant and observed the two accused walking in the 600 block of Rupert Street carrying McDonald’s bags.

[26]        Constable MacPherson testified that he detained Dumais and observed that he was carrying a knife on the outside of his front right pants pocket.  Constable MacPherson could not recall whether or not this knife was in a sheath at that time.

[27]        Constable Inglis testified that when they came upon the two accused, Ferriere walked into a laneway adjacent to Rupert Street and proceeded approximately 25 feet into the lane.  Ferriere was ordered to stop, and following compliance with that command, Constable Inglis took Ferriere into custody.

[28]        Constable Inglis then performed a search of the laneway some 5 to 10 feet away from where Ferriere was taken into custody. During the course of this search, Constable Inglis found a handgun at the base of a utility pole in a small bush.  The handgun was determined to be an air gun.

[29]        Neither accused elected to call any evidence on their behalf in this trial.

[30]        Crown Counsel submits that the knife and the air gun meet the definition of a weapon.  Crown Counsel submits that the evidence would support a finding beyond a reasonable doubt that it was Dumais who was in possession of the knife.  Crown Counsel submits that both Dumais and Ferriere were jointly in possession of the air gun.

[31]        Crown Counsel submits that while the reliability of Kurik, Beintema, and Vandelft may be impacted by their consumption of alcohol, their observations relating to the air gun should be accepted.  In addition, Crown Counsel notes that Vanderlind had only consumed one bottle of beer that evening and that his testimony should be viewed as reliable.

[32]        Crown Counsel submits that while the CCTV surveillance footage does not show the display of the air gun, it does show that there was an altercation between the two accused and the Beintema party. Crown Counsel submits that it was at the point of the altercation that the air gun was produced.

[33]        Crown Counsel submits that the evidence would establish beyond a reasonable doubt that there were verbal threats made by either one or both accused and that those threats were backed up by either one or both accused producing or handling the air gun.

[34]        Crown Counsel submits that the actions of both accused in words used and gestures made, including producing the air gun, would establish proof beyond a reasonable doubt that Beintema was assaulted and threatened by both accused.

[35]        Crown Counsel submits that in the context of this case, Dumais wearing the knife and Ferriere partially concealing the air gun in a public place at a McDonald’s restaurant would establish that these weapons were designed to intimidate, thus establishing proof beyond a reasonable doubt that these weapons were for a purpose dangerous to the public peace.

[36]        Crown Counsel submits that the circumstances surrounding the arrest of Ferriere in the laneway off of Rupert Street, and the location of the air gun some 5 to 10 feet away from where Ferriere was taken into custody, would prima facie establish that this is the air gun that Ferriere had in his possession at the McDonald’s restaurant.

[37]        Dumais submits that the evidence falls short of proof beyond a reasonable doubt in relation to all charges.  In particular, if indeed the air gun was ever produced, then that would have been observed on the CCTV surveillance footage.

[38]        Dumais further submits that each of the civilian witnesses gave different versions of the events that took place in the altercation with Dumais.  Dumais submits that these differing versions of events were not clarified by the CCTV surveillance footage and, therefore, the core reliability of their evidence would be in doubt.

[39]        Dumais submits that while the court could find that he was in possession of a knife, the circumstances surrounding that finding would not establish that it was in his possession for a purpose dangerous to the public peace or for the purpose of committing an offence.

[40]        Ferriere submits that the court should find a reasonable doubt as to whether Beintema was the person being threatened, as there was evidence that that it was Kurik who was being threatened in the altercation with the two accused.

[41]        Ferriere submits that the evidence of the civilian witnesses was vague, inconsistent, and ultimately unreliable in relation to the key features in this case.

[42]        In large measure, I conclude that it is the credibility and reliability of the evidence presented in this trial that is of critical importance.

[43]        It is established that in assessing the credibility of any witness, the Court is required to weigh the general integrity and intelligence of any witness, his or her power to observe, his or her capacity to remember, and the overall accuracy of his or her observations: (R. v. Formales, 2011 BCPC 257 at paragraph 98).

[44]        As to the meaning of credibility, it is necessary to separate the truthfulness of a witness, sometimes referred to as “credit”, from the factual accuracy of his or her evidence, sometimes referred to as “reliability”, or the potential for error: (Formales at paragraph 99).

[45]        In approaching the assessment of the reliability of the evidence presented in this case, Peter McWilliams in his authoritative textbook, McWilliams Canadian Evidence, 4^th Series, at page 27:2 proposed a useful approach to this inquiry as follows:

[46]        I have no hesitation in finding that Vanderlind, Vandelft, Beintema, and Kurik were all trying to be truthful. However, I cannot find that their versions of what took place in the McDonald’s restaurant are ultimately reliable in determining what threats were made by either accused; whether the air gun was ever produced by either accused; and whether the knife worn by Dumais was carried in a manner that was dangerous to the public peace or for the purpose of committing an offence.

[47]        The consumption of alcohol by Vandelft, Beintema, and Kurik throughout the course of the evening ultimately impacted the reliability of their evidence.  Vanderlind had only consumed one beer through the course of the evening, so the consumption of alcohol did not ultimately impact his reliability to the extent that it impacted his friend’s reliability.  That said, I am unable to reconcile the differing versions of events that took place during the course of the altercation with the two accused.

[48]        While the CCTV surveillance footage is reliable in establishing that there was an altercation between the two accused and the Beintema party, it is equally reliable in establishing that at no time can one observe the air gun being produced by either accused.  I find the CCTV surveillance footage to also be reliable in establishing that the whole altercation happened rapidly in close quarters between the two accused and the Beintema party.

[49]        However, in relation to events leading up to the actual altercation with the two accused, I accept the evidence of Vanderlind as reliable, and ultimately credible, when he testified that he observed the butt of what he believed to be a gun in the area of Ferriere’s back pants pocket. He was not undermined in cross examination with respect to that testimony. From the CCTV surveillance footage, I find that he would have a good view of the backside of both accused at the order counter as he came into the McDonald’s restaurant.

[50]        To rebut the presumption of innocence, the Crown must prove guilt beyond a reasonable doubt in relation to all elements of a criminal charge. A reasonable doubt is not a far-fetched or frivolous doubt. It is a doubt based on reason and common sense; one that logically arises from the evidence or the lack of evidence. Proof beyond a reasonable doubt is something more than probable guilt, though it is not, however, requiring proof to an absolute certainty: (R. v. Starr, 2000 SCC 40 (CanLII)).

[51]        In this case, there is circumstantial evidence that it was Ferriere who was in possession of the air gun located in the laneway off of Rupert Street.

[52]        When Constable MacPherson and Constable Inglis came upon the two accused when they were walking along Rupert Street, it was Ferriere who broke away and went into the laneway. After he complied with Constable Inglis’s command to stop in the laneway, the area within 5 to 10 feet of Ferriere’s position was searched by Constable Inglis and the air gun was located.

[53]        The approach I must take towards assessing circumstantial evidence was discussed by Madam Justice Fisher in R. v. Benham, 2008 BCSC 1531 (CanLII), at paragraph 11 as follows:

[54]        Ferriere did not testify in this trial.  It is a rule of law that the presumption of innocence does not require that an accused person testify.  Indeed, an accused person in criminal proceedings need not prove anything, as the onus is on the Crown throughout to prove guilt beyond a reasonable doubt.  In the discharge of that burden, it is for the Crown to establish proof and the silence of the accused should not be used against him or her in building a case for guilt: (R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 SCR 874).

[55]        However, if the Crown establishes a prima facie case against an accused, there may come a time in the trial where a judge can draw an adverse inference against an accused in any event: (R. v. Johnson, 1993 CanLII 3376 (On CA)).

[56]        I accepted the evidence of Vanderlind at paragraph 49 when he testified that he saw the butt end of what he believed to be a gun partially concealed in the back pocket of Ferriere’s pants at the McDonald’s restaurant.  Within a very short time, both accused were observed walking along Rupert Street carrying McDonald’s bags.

[57]        I accept the evidence of Constable Inglis that Ferriere broke away from Dumais and walked into the laneway off Rupert Street when the Constables proceeded to take steps to detain both accused.  I find this action taken by Ferriere to be spontaneous and reactive to the police becoming involved with him.

[58]        The air gun was located by Constable Inglis in a small bush at the foot of a utility pole some 5 to 10 feet away from where Ferriere was detained.

[59]        It is clear that no adverse inference can be drawn against Ferriere if there is no case to answer. Weighing all of the circumstances in this trial, I find that the evidence prima facie establishes beyond a reasonable doubt that Ferriere was in possession of the air gun and it was this air gun that was observed partially concealed in his back pants pocket by Vanderlind at the McDonald’s restaurant. Ferriere’s silence, while not inculpatory, is indicative of the absence of an exculpatory explanation: (The Queen v. Karas, 2009 ABCA 362 (CanLII) at paragraph 68).

[60]        I have concluded that the evidence is unreliable, and ultimately not credible, in establishing that the two accused uttered threats to Beintema to cause death or bodily harm; or that they used an imitation firearm while committing or attempting to commit the offence of threatening; or that they used an imitation firearm while committing or attempting to commit the offence of assault; or that had in their possession an imitation firearm for a purpose dangerous to the public peace, and accordingly they must be acquitted of those four charges.

[61]        Dumais has also been charged with possession of a knife for a purpose dangerous to the public peace or for the purpose of committing an offence. I am not satisfied that the evidence in this trial would establish that purpose beyond a reasonable doubt, and accordingly he must be acquitted of that charge.

[62]        Ferriere and Dumais are jointly charged with carrying a concealed weapon being the air gun.  I am satisfied beyond a reasonable doubt that the air gun found in this case was the same air gun concealed or partially concealed on Ferriere when he was at the McDonald’s restaurant.  I am further satisfied beyond a reasonable doubt that the concealment or partial concealment of the air gun was done by Ferriere to prevent the air gun from being readily observable or coming to the notice of others.

[63]        I am also satisfied that Ferriere’s conduct in the McDonald’s restaurant supports the inference that he was carrying the air gun to intimidate and not for a peaceful purpose:  R. v. Huete, 2008 BCSC 1694 at paragraphs 10 through 12.

[64]        I am satisfied beyond a reasonable doubt that the air gun seized in this case meets the definition of a weapon as a defined in s. 2 of the Criminal Code.

[65]        I find that the Crown has established beyond a reasonable doubt that Ferriere was in possession of the air gun and that the airgun was either concealed or partially concealed on Ferriere at the McDonald’s restaurant.  Accordingly, I find Ferriere guilty of carrying a concealed weapon.

[66]        I do not find that the Crown has established beyond reasonable doubt that Dumais was either a principal or a party in relation to Ferriere’s possession of the air gun.  Accordingly, I find Dumais not guilty of carrying a concealed weapon.