Date Released: March 27, 1991 No. 36576
Kamloops Registry
In the Supreme Court of British Columbia
Between: )
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REGINA ) REASONS FOR JUDGMENT
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RESPONDENT ) OF THE HONOURABLE
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And: ) MR. JUSTICE HOUGHTON
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NORMAN CHARLES LEFURGEY )
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APPELLANT )
Appearances:
G. BARROW, ESQ.- Counsel for the Respondent Crown
ALEXANDER P. WATT, ESQ.- Counsel for the Appellant
Date of Hearing: March 11, 1991
This is an appeal from a conviction under s.86(1) of the Criminal Code of Canada of unlawfully pointing a firearm at another person.
The appellant raised two issues, the first, that the learned trial judge erred on the evidence in finding the Crown had proved beyond a reasonable doubt that Mr. Lefurgey had, in fact, pointed his gun at Mr. Tantrum. The second ground, that counsel for the defence at the trial was prevented from providing, or did not provide, Mr. Lefurgey with his full answer and defence was not pressed on the appeal.
I have reviewed the transcript of the evidence given at the trial and there is ample evidence on which the learned trial judge could find that the appellant did point the gun at Mr. Tantrum. He had before him witnesses that were referring to photographs. He heard the witnesses, and even on the transcript it would appear that Mr. Stephenson's recollection of the event was not as clear as Mr. Tantrum. The weighing of the evidence was a matter for the trial judge.
In R. v. Twist, 16 C.R. (3d) 94, Hinkson J.A., in giving the decision of the B.C. Court of Appeal briefly set out the law for this court to follow in considering the evidence and judgment of the trial court. At page 96 Hinkson J.A. said:
" In my view, in doing so the learned County Court Judge lost sight of the requirements imposed upon him by the decision of the Supreme Court of Canada in Corbett v. R., [1975] 1 S.C.R. 275, 25 C.R.N.S. 296, [1974] 2 W.W.R. 524, 14 C.C.C. (2d) 385, 42 D.L.R. (3d) 142. When the provisions of s.613(1)(a) of theCode are considered, and those he had to apply in the course of hearing the appeal, he could allow the appeal where he was of the opinion that the verdict should be set aside on the ground that it was unreasonable or could not be supported by the evidence.
Rather than doing that, as I have indicated, he concluded that the trial judge had not directed his mind to an issue of fact that was essential to sustaining a conviction, and on that ground allowed the appeal and directed a new trial.
In my view, the law in this area is clearly set forth in R. v. Bush, 53 B.C.R. 252, [1939] 2 W.W.R. 42, 71 C.C.C. 269, [1939] 1 D.L.R. 428, a decision of this court, where it was held that in the absence of anything appearing on the record to indicate otherwise __ and I interject to say that was the situation here__ it should be presumed that the learned trial judge did apply the proper principles. It seems to me that that has application here. "
I am satisfied that the verdict could be supported by the evidence and it was not unreasonable.
Whilst at page 30 of the proceedings the learned trial judge said;
" I have no hesitation in finding that he pointed the gun and there is no evidence that there was any lawful purpose and I find him guilty as charged. "
this was obviously following a submission by counsel, and I find that the omission of the learned trial judge to say, "He pointed the gun at Mr. Tantrum," does not indicate an error on the judge's part. It should be presumed that the learned trial judge applied the proper principles of law and found that the gun was pointed at Mr. Tantrum. There was ample evidence on which he could make that finding.
The appeal is dismissed.
HOUGHTON J.
Kamloops, B.C.
March 18, 1991