Jerome Moore was acquitted after a judge alone trial in the Superior Court. The indictment specifically charged that he “did, while armed with a firearm, to wit: a handgun, rob Steve Howland, contrary to Section 344 of the Criminal Code.” In light of the limited opportunity of the witness to observe the accused, the trial judge was not satisfied beyond a reasonable doubt that Moore pointed the firearm or was even armed and on this basis acquitted him of the charge.

In R v Moore, 2012 ONCA 770, the Court of Appeal confirmed that the Criminal Code does not actually create an offence of armed robbery. Rather, s.343 creates an offence of robbery and describes the four ways that robbery may be committed. In order to engage the mandatory minimum provisions, the Crown is simply required to prove, as mater of sentence that the accused used a firearm in the commission of the robbery.

The Court held that the trial judge erred in elevating use of a firearm to the status of an essential element of the offence. As such the acquittal was overturned and a new trial was ordered. The inclusion of the word “while armed with a firearm, to wit: a handgun” is simply for the purpose of putting the accused on notice that if convicted and satisfactory proof is made of a firearm, he will be subject to the mandatory minimum punishment.

In this brief endorsement, the Court noted that the way the indictment was worded citing s.344 of the Code (the punishment provision), it was open to the Crown to prove the respondent’s guilt in any of the four ways described in s. 343. This is, in my view, the widely preferred manner of charging the offence of robbery.

BCH