Storage And Other CC S. 86(1) Cases

NFA BRIEFING DOCUMENT 1  VERSION 4

In what follows, “CC s.” means “Criminal Code section”;
“FA s.” means “Firearms Act section”;
“FAR p.” means “Firearms Act Regulations March 1998 page”; and
“CGII/132/20 p.” means “Canada Gazette Part II Vol 132 No 20 page”

A very high percentage of charges against firearms owners are “storage” charges; therefore, we will begin with “storage” law.

Orders in Council (OICs) have the same effect as laws.  They are “enabled” by legislation — that is, Parliament writes into the law power for the Governor in Council the power to make “regulations” with force of law.

OICs do not come into force until they have been published in Canada Gazette Part II.  New legislation changes and regulations appear in Canada Gazette Part I before they come into force.

Never trust any government publication to tell you what is in a law or a regulation.  Go directly to the law or regulation and read the original text.

It has been our experience that government “interpretations” that try to tell you about the laws and regulations “in simple language” are often dead wrong in what they have to say.

At this point, take a break and read the following items:

CC s. 86(1)1 and 86(2)2

FAR p. 85 to 96 inclusive3

CGII/132/20 p. 2734 sections 2 and 3.4,5
(These sections were extended in time to 31 Dec 00 by CGII/133/25 p. 2615 sections 1 (which alters the older section 1) and section 2 (which alters the older section 3).6 ,7

Today, we will deal with CC s. 86(1) only.

CC s. 86(1) says a “person [individual or corporate body] commits an offence” when that person “without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device, or any ammunition in a careless manner orwithout reasonable precautions for the safety of other persons.”

Let’s break that down, step by step.

Note well that “person” means either an individual or a corporation.

A business is usually a corporation.  A club or association is also a corporation.

CC s. 86(1) and (2) can be used to prosecute either form of “person.”

CC s. 86(1) says a “person [individual or corporate body] commits an offence” when that person “without lawful excuse…”

The term “without lawful excuse” is quite useful.  There is, in law, a principle known as “the doctrine of necessity.”  If you see smoke pouring out of a house, for example, it is quite legal for you to break and enter for the purpose of saving life — although the law says that breaking and entering is a crime.  You are innocent of that crime because the “doctrine of necessity” overrides the law.

The doctrine of necessity is often usable in “storage” cases, and even oftener on “handling” or “use” cases, in a wide variety of ways depending on the particular circumstances.

CC s. 86(1) says a “person [individual or corporate body] commits an offence” when that person “without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device, or any ammunition or prohibited ammunition in acareless manner or without reasonable precautions for the safety of other persons.”

Do you notice something about that wording?  That is not one offence. It is 6 X 6 X 2 offences, or 72different offences.  Each of the possible charges must contain one of 6 actions, one of 6 things, and one of two ways in which the offence was committed.

Each action is separated from all the other actions by the word “or.”  Each thing is separated from all the other things by the word “or.”  Each way is separated from all the other ways by the word “or.”

Therefore, each charge must consist of one action, one thing, and one way.

It is not possible to plan the defence until the defender know which of the 72 possible offences the accused is accused of. Did he transport a restricted weapon in a careless manner?  Did he use someammunition without reasonable precautions for the safety of other persons?  Exactly what did he do?

The accused has a right of disclosure.  That means that the Crown must supply, on request by the defence, all information it has about the case to the defence, including this detail of precisely what the charge is.

Crown Prosecutors frequently foul up when required to specify which of the 72 possible charges the accused is actually accused of violating.  Even if the Crown gets it right, requiring him to specify the offence before trial is very limiting for him during the trial.

Crowns often try to “fuzz up” the charge by wording it as something like: “did store a firearm unsafely” — which is a charge not known to law.  The Crown should never be permitted to begin the case in court with a charge that is imprecise, or is not known to law.  Such an error by the Crown should be attacked in court, not  questioned beforehand.  It is unwise to give the Crown an opportunity to correct his error before it is in front of a judge.

Having the charge nailed down by a disclosure document before it gets in front of the judge is also quite valuable.  It positively prevents the Crown from changing the charge in mid-trial when he sees that the original specific charge is not going to work.  If he tries to do it, the defence can point out that the Crown gave false information about the nature of the case to the defence in disclosure — or is the Crown mistaken now?  It can get quite nasty, with the judge often turning on the Crown because the Crown has demonstrated incompetence.  Judges do not like Crowns who waste the court’s time.

Regardless of what the charge is, if it is under CC s. 86(1), then Regulations are not relevant to prosecution of the charge.  A person can use, carry, handle, ship, transport, or store a firearm (or one of those other things) in a way that violates a Regulation but does not qualify as “in a careless manner” or “without reasonable precautions for the safety of other persons.”

If a Crown, while prosecuting for an offence under CC s. 86(1), tries to drag in a Regulation, the defence should immediately object that the regulation is not relevant to the charge as laid.  “Your honor, if my learned friend wants to talk about the Regulations, he should have laid a charge under CC s. 86(2), not CC s. 86(1).  The Regulations are irrelevant in this case.”

Note that the reverse is not true.  The fact that the accused stored firearms in exact accordance with a regulation can be used as evidence that the “storage” or “use” was not “careless.”

Once the specific charge has been nailed down, it is possible to look for viable defences.  Let us look at the commonest form:

The accused is charged with storing a firearm in a careless manner.

The Crown must prove, beyond a reasonable doubt, that the accused is guilty as charged.

The Crown must prove, beyond a reasonable doubt, that the firearm was a “firearm” as defined in CC s. 28 ; that the firearm was stored; and that the firearm was stored “in a careless manner.”

The Crown must first prove that the firearm is a “firearm” as defined by CC s. 2.  That requires at least an affidavit from an expert witness, or, better, the expert witness himself.

The Crown must then prove that the firearm was stored.  That is not as easy as it looks, and the NFA has several relevant decision transcripts that deal with this point.

A person can store a firearm in a way that is not “careless.”  He can then take the firearm out of storage to clean it, admire it, use it, or show it to a friend.  If the authorities discover the firearm at a moment in time when it has been taken out of storage, no “storage” law applies to it, because it is not in storage.

The NFA supplied that winning argument to the defence lawyer in the R v. Bowskill case9 , 28 Sep 94, Ontario Court (Provincial Division) Central East Region, available from the NFA.  Bowskill, a small-town druggist, had a loaded shotgun in the back room for personal protection.  Charged with both CC s. 86(2) and 86(3) [now 86(1), careless storage, and 86(2) storage in violation of a regulation], his lawyer pointed out that the shotgun was not in “storage.”  It was in use, for personal protection against armed robbers wanting to steal drugs.

The judge agreed with the defence argument, and found Bowskill innocent.

It is interesting that a charge under CC s. 86(1) may block a simultaneous charge under CC s. 86(2), because they are two charges based on the same set of facts.  An attempt should be made to persuade the Crown to choose one or the other if the Crown lays both charges.

A key point in that defence is that if the accused is present when the firearm is discovered, it is difficult to prove that the firearm was “in storage.”  The accused may have taken it out of storage for some particular purpose moments before.  If he was not present, then it is harder to argue that the firearm was “in use” at that moment in time.  However, see Regulation 5(2)3 and 5(3) below.

It can be quite difficult to prove that the firearm was “stored” at the moment it was discovered.  The Crown cannot force the accused to take the witness stand.  If the accused chooses to take the witness stand, he must answer all questions — Canadians have no “5th amendment” right to refuse to answer a question that might incriminate them.  A Canadian accused can only choose to stay out of the witness box — or take his chances in it.

If the accused stays out of the witness box, the Crown cannot ask him if the firearm was “stored” where it was found.  The Crown must prove that the firearm was “in storage” through other evidence — wife’s testimony, statement made to the police by the accused, etc.

Notice in what has just been said above that the accused can blow his own case just by talking to the police.  If, at the time of discovery or later, he says that the firearm was always left in the place where the police found it, then it can be proved (by a police witness) that the firearm was “stored” in that way.  The fact that the accused was at home becomes unimportant.

If the firearm was unloaded, and the firearm was not locked away or fitted with a trigger lock or disassembled, it may still be stored in accordance with Regulation 5(2), below, of the “Storage…by an Individual” regulations, and that is evidence that the storage was not “careless.”

5. (2) Paragraph 1(b) [firearm rendered inoperable or locked away] does not apply to any individual who stores a non-restricted firearm temporarily if the individual reasonably requires it for the control of predators or other animals in a place where it may be discharged in accordance with all applicable Acts of Parliament and of the legislature of a province, regulations made under such Acts, and municipal bylaws.

If the firearm(s) in question were stored in accordance with that regulation, that is evidence that the storage was not “careless.”

Note the word “stores” in Regulation 5(2).  It implies that the firearm may be stored in that way, whether the person responsible for it is present or not.  The word “temporarily” has a variety of meanings.  Black’s Law Dictionary defines it thus:

Temporarily:  Lasting for a time only, existing or continuing for a limited time, not of longduration, not permanent…

The Oxford Concise Dictionary defines it as “lasting only for a limited period,” again without any attempt to set limits on that period.

Since the word “temporarily” is indefinite as to the length of time that fits within the word “temporarily,” by the rule of statutory interpretation that says the statute must be interpreted in the way most favorable to the accused, storage in accordance with Regulation 5(2) — of almost any duration — may be taken as “temporarily.”

Similarly, regulation 5(3) may apply

5. (3) Paragraph (1)(b) and (c) do not apply to an individual who stores a non-restricted firearm in a location that is in a remote wilderness area that is not subject to any visible of otherwise reasonably ascertainable use incompatible with hunting [emphasis added].

In using 5(2) and (3) as defence arguments, it should be noted that where the law can be taken as meaning two or more different things, it must, by a rule of statutory interpretation, be taken as meaning whatever is most favorable to the accused.

That brings us to a rule: SHUT UP!

More people are convicted because of what they say to the police than for any other reason.  Anyone who tries to talk himself out of trouble will, almost always, talk himself into deeper trouble.  An officer will often offer to make this problem “go away, if you can just explain what was going on here.”  What the officer is doing is gathering evidence.  If the accused gives him what he needs for conviction, the accused will be convicted.

Our legal system gives the accused person the right to silence.  It is a precious gift that can save him from conviction.  If he ignores that right, and talks his head off, he will almost certainly be convicted.

Proving that a firearm was stored “in a careless manner” can be rather difficult.

The Crown must prove that the accused acted without thinking about the problem of storage.  If, for example, the accused did consider the matter, and then came to a reasoned and careful decision (which might have been wrong-headed or the result of crass stupidity), that devotion of consideration to the matter may well have taken the “storage” out of the area of “careless.”

The Crown cannot rely on the ideas of someone else.  If the accused thought his storage method was safe, after considering the problem, then the accused lacks ‘mens rea’ (the guilty mind).  In one case, (R v. Duska, available from the NFA), the accused did not intend to be “careless.”  He considered the problem.  He came to a reasoned conclusion.  He acted on his reasoned conclusion — and that does not fit the word “careless” in the statute, so he was found innocent.  He may have acted “without reasonable precautions for the safety of other persons,” but the Crown had alreadyspecified that the accused was charged with “storing a firearm ­in a careless manner.”  So that specific charge backfired on the Crown.

A recent case (R v. Montagne, available from the NFA) dealt with another aspect of mens rea.  Lamontagne’s husband went to the US to work, leaving his firearms improperly stored in Lamontagne’s house.  They were found and she was charged.  The judge ruled that she had no intention of being in possession of the firearms, so she lacked mens rea and was therefore innocent of wrongdoing.

The single most important case in this area is R v. Finlay, a Supreme Court of Canada case10(available from the NFA).  It uses the “reasonable man” test to see if the action was in violation of the statute, and spells out the rules that prevent putting the accused on the witness stand against his will.

R. v. Finlay, Court of Appeal (1991), 64 CCC(3d) 557:  “[T]he express language of the predecessor section made it clear that the fault or culpability rested on a higher standard than mere negligence (p 561).”SCC: “In Gosset, I found that the proper interpretation of the fault element under s. 86(2) [now 86(1)] is conduct that constitutes a marked departure from the standard of care of a reasonably prudent person.  If a reasonable doubt exists either that the conduct in question did not constitute a marked departure from that standard of care, or that reasonable precautions were taken to discharge the duty of care in the circumstances, a verdict of acquittal must follow (p 15).”SCC:  “There is, however, no ‘reverse onus’ on an accused to establish on the basis of probabilities that he or she exercised due diligence in order to negate a finding of fault under 86(2) [now 86(1)].”

There are two major sets of regulations that apply to an individual in these cases — the “storage” regulations, Regulations 5 to 8 on FAR p. 88-90, and the “transportation” regulations, 10 to 14, on FAR p. 92-95.

They are different.

Therefore, they cannot both apply at the same time.

Regulations 10(2), 11(d), 12(e), and 14(2) all speak of “transportation” in “an unattended vehicle.”

Obviously, that terminology means that a firearm in a vehicle does not come under the “storage” regulations simply because the vehicle is not moving and is “unattended.”  It still comes under the “transportation” regulations — no matter how long it has been sitting there.

There is no point in time set in the law when that situation shifts from “transportation” to “storage.”  Therefore, at any time, the accused could well be convinced that he is in perfect compliance with the “transportation” regulations, and that that is all that is required of him.  He then lacks mens rea, the “guilty mind.”

Therefore, when the Crown charges that “storage” in a vehicle contravenes one of the “storage” regulations, the Crown has laid the wrong charge.  The accused has not committed that offence.  He is innocent of that charge.

There might be a feeling that a firearm “in an unattended vehicle” becomes a “stored” firearm at some point in time.   That can be fought by pointing out that the accused reasonably concluded that the Regulations did authorize him to do what he did, and can be read in that way by a reasonable person.  Therefore, under the rule of statutory interpretation that the statute must always be read in the way most favorable to the accused, the accused is innocent.

As well, the accused — by thinking that he is in perfect compliance with one Regulation — is innocent of violating another, by virtue of his lack of mens rea.

This area is too complex to try and explain every possible situation.  Use the examples given above as principles to sort out the particular problems of the particular accused in the particular situation.

THE PLEA-BARGAINING TRAP

This is an actual case recently dealt with by the NFA (name has been changed):

Joe was charged with illegal storage of his firearms.  The Crown offered a plea bargain: if Joe pleads guilty, his firearms will be returned to him.  In turn, he will be granted an absolute discharge, so he will not have a criminal record.  That was attractive, but Joe called the NFA first.  Here is what we told him:

  1. The judge cannot return your firearms if you plead guilty.  Criminal Code section 491 says that where “it has been determined by a court that…(b) a person has committed an offence that involves…a firearm, a crossbow [or] ammunition…and any such thing has been seized and detained…the thing so seized and detained is forfeited to Her Majesty and shall be disposed of as the Attorney General directs [emphasis added].
  2. Firearms Act section 5 says, “In determining whether a person is eligible to hold a licence…the [authority shall have regard to whether the person, within the previous five years, (a) has been convicted or discharged…of… (ii) an offence under [the Firearms Act] or Part III [the firearms sections] of the Criminal Code [emphasis added].11

Therefore, this offered plea bargain is not real.   A Crown may think he can do it, but CC s. 49112prevents the judge from ordering the return of the firearms.  He will lose them.  A person who pleads guilty also becomes ineligible for a licence.  His licence will be revoked by the firearms control bureaucrats.  They care nothing about what a Crown wanted to do.  He will not be eligible to hold a licence again until 5 long years have gone by, and may have to fight a court battle to get one even then.

The following information is courtesy of Calvin Martin, Q. C. 13
Firearms – Careless Use – Careless Storage.
What is careless use or storage?

1.. Section 86(2) The Criminal Code.

 

1… 86(2)  Every one who, without lawful excuse, uses, carries, handles, ships or stores any firearm or ammunition in a careless manner or without reasonable precautions for the safety of other persons . . . ..

 

2.. When assessing carelessness, or negligence, the element of foreseeability and the duty one owes to others must be taken into account.

 

1… Regina v Derkosh, 254.

 

3.. Court did not disagree with trial judge on this but did disagree with trial judge’s view that the carelessness must be something more than ordinary negligence.  Regina v Derkosh, 254.  This set the standard until 1993 and R. v Gosset & R. v Creighton & R. v Finlay.

 

1… R. v Bludau.

 

4.. There must be a marked departure from the standard of care of a reasonably prudent person in the circumstances to constitute careless use or careless storage of a firearm.

 

1… Regina v Finlay
2… Regina v Creighton
3… Regina v Gosset

 

5.. Are you satisfied beyond a reasonable doubt that there was a danger to anybody in the way he stored this ammunition or this gun?6.. And even if you are satisfied beyond a reasonable doubt that  there was such a danger are you satisfied beyond a reasonable doubt that a failure to anticipate that danger was a marked departure from what a reasonably prudent person would have anticipated.7.. And even if you are satisfied beyond a reasonable doubt that there was a danger are you satisfied beyond a reasonable doubt that the way in which he stored the gun(s) was a marked departure from what a reasonably prudent person would have done.

8.. If a reasonable doubt existed either that the conduct in question did not constitute a marked departure from that standard of care or that reasonable precautions were taken to discharge the duty of care in the circumstances, a verdict of acquittal must follow.  There is no onus on the accused to establish on the balance of probabilities that he exercised due diligence in order to negate a finding of fault under s. 86(2).

 

1… R. v Finley

 

9.. All cases prior to R. v Gosset & R. v Creighton in 1993 had a much lesser requirement for the standard of care and must be read in the light of those cases.10.. The possibility that a firearm might be stolen does not amount to careless storage.

 

      1… First, if no evidence is lead about the probability of break ins.

2… Second, if no evidence is led about what a burglar would do with the firearm that would constitute a danger.

3… See R. v Baldwin, 22, 23, 24, 25

 

11.. Storing a loaded firearm is not necessarily careless storage.

 

1… R. v Chekov.
2… R. v Bludau.

 

12.. Careless where the prosecution can establish lack of a conscious effort, or desire, to exercise due care.

 

1… R. v Derkosh

 

13.. Failure to exercise due care where the manner of . . . has the appearance of irresponsibility, or has been thoughtlessly . . . or projects an attitude on the part of an accused of simply not caring.

 

1… R. v Derkosh

 

14.. Not careless where you put firearms out of sight so as not to be readily accessible and you train your children as to the hazards of firearms and ammunition just because some of your children deliberately seek out and use powder from some of your ammunition.

 

1… R. v Derkosh

 

15.. If you shoot close to someone although intending only to scare him, that is a careless use.

 

1… R. v Zimmer

 

16.. If your shooting scares people but you are not shooting in their direction and exposing them to harm, you are not using a firearm carelessly.

 

1… R. v Ross

 

17.. If you carry a shotgun down a deserted city street wrapped in a raincoat with the action closed, the safety on, no shell in the chamber but with shells in the magazine, that is not dangerous to the safety of other people.

 

1… R. v Pooke

 

18.. If you are drunk and discharge a firearm in an uncontrolled manner in a city or built-up area, that is dangerous to other people.

 

1… R. v McNeill

 

19.. Not always careless to discharge a firearm straight up into the air.

1… R. v Dale King

20.. Target practice within 100 feet of another person not found to be careless.

1… R. v Atkinson

21.. Where a man waited for burglars, asked them to freeze and fired 2 shots at a car, aiming at the radiator and fender to demobilize the vehicle it was held not to be careless.

1… R. v Thurlow

22.. Where burglars ran out of the accused’s pharmacy, jumped into their van, and the accused advanced to within 15 to 20 feet of the right rear wheel of the van and fired 2 shots at the right rear tire to stop the burglars the accused was not guilty of careless use.

1… R. v Bowskill

23.. Where a Saskatchewan farmer shot at the vehicle of 4 thieves who had just stolen gasoline from his farm and his shots were carefully aimed and designed to stop the thieves’ vehicle a jury acquitted him of charges of assault with a weapon and carrying a weapon for a purpose dangerous to the public peace.

1… R. v. Croal

24.. Where you shoot a rifle in the direction of people stealing your fish with the shots landing a few feet from the boat occupied by the thieves you are using a firearm carelessly.

1… R. v Budgell

25.. Storage in a manner contrary to regulation is not an included offence in a charge of careless storage.

1… R. v Chekov

26.. Not careless where the guns were secured by trigger locks.

1… Regina v Candelaria p4.
27.. Guns without trigger locks stored in a self made plywood closet under steps in the furnace room.  Padlock and & pins.  Key in the hall but not identified as the key to the padlock.  Police did not find the closet until the accused showed them.  No children.  No evidence of any break and entries or robberies.  No evidence that a burglar would have any greater success locating the weapons than did the police.  Not careless.
1… Regina v Candelaria pp 3,4,5,6.

Ammunition.

 

1.. Ammunition is not inherently dangerous in itself.2.. It would be very hard to envisage careless storage of ammunition except in relation to careless storage of firearms so that firearms would be available to the person who acquired the ammunition in circumstances where that person could be expected to use the ammunition in the firearms in a dangerous way.3.. Ammunition does not have to be in a locked container when it is in a locked vehicle.

1… Regina v Morton.  3.2… Regina v Nardi.  6.

4.. A danger to someone who may get into the car is too remote.  It would require entry into the car, finding the ammunition, and having a firearm (cm of that caliber).

1… Regina v Morton.  4.2… Regina v Nardi.  6.

5.. No evidence that ammunition without a firearm is of any danger.

1… Regina v Morton.  4.2… Regina v Nardi.  6.

6.. You cannot add hypothetical to hypothetical to prove the case.

1… Regina v Morton.  4.

7.. You would need evidence that the person who got the ammunition had a firearm of that calibre.

1… Regina v Morton.  5.

8.. Even in a high crime area, would the person who broke into the car have a firearm of that particular caliber.

1… Regina v Morton.  4.

9.. Not careless where the ammunition related to guns that were not carelessly stored.

1… Regina v Candelaria.  7.

10.. Not careless where the ammunition not in the same room as the guns.

1… Regina v Candelaria.  7.

11.. Sloppy storage or casual storage or loose ammunition or ammunition in the open and readily accessible does not amount to careless storage where there was no ready access to guns of that calibre.

1… Regina v Candelaria.  6,7,8.

12.. Canadian Firearms Centre Bulletin #12.

1… Store ammunition separately from your firearm.2… You do not have to lock up your ammunition but make sure it cannot be easily obtained to load the firearm.3… You can store ammunition with any firearm if you store the firearms in a securely locked container that cannot easily be broken into.

4… You can store ammunition with any firearm if you store the firearm in a vault, safe or room built or adapted for the secure storage of restricted or prohibited firearms.

5…  Calvin Martin:  be careful with this, see the regulations about the above mentioned room.  You may not be able to store ammunition in that room without storing it in a locked box.

 

Material time.

 

1.. The only time that is material is that date and that time.

1… R. v Harris.  4.

2.. Without actual proof you cannot infer what the actual conditions of storage were previous to that date and time.

1… R. v Harris.  4.

5. Firearm not in storage.

1.. Crown must prove beyond a reasonable doubt that firearm stored.

1… R. v Bludau

2.. The plain meaning of the word store is to put away or set aside for future use.

1… R. v Bludau.

3.. Store must mean more than merely setting something aside temporarily.

1… R. v Bludau.

4.. If you are in the room with them or in the house with them you are not storing them.

1… R. v Stubbs. 6.
2… R. v Harris. 7.

5.. A loaded shotgun kept behind the dispensary in a pharmacy for self defence was not being stored.

1… R. v Bowskill.

Lawful Excuse

 

1.. Section 86(2) The Criminal Code.

1… 86(2)  Every one who, without lawful excuse, uses, carries, handles, ships or stores any firearm or ammunition in a careless manner or without reasonable precautions for the safety of other persons . . . ..

2.. Self defence or the defence of others.

1… R. v Thomas2… Regina v Taylor

3.. Storing a loaded firearm is not storing without lawful excuse if there is no authority raised to support the proposition that it is unlawful to have a loaded firearm in a residence.

1… R. Bludau.

4.. Enforcement of the law.

1… Section 25 Criminal Code.2… 25(1)  Every one who is required or authorized by law to do anything in the administration or enforcement of the law as a private person, as a peace officer or public officer in aid of a peace officer or public officer, or by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose,3… 25(3)  Subject to subsection (4), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless he believes on reasonable grounds that it is necessary for the purpose of preserving himself or any one under his protection from death or grievous bodily harm.

5.. Citizen arrest.

1… Section 494 Criminal Code.2… 494.(1)  Any one may arrest without warrant a person whom he finds committing an indictable offence;  or a person who, on reasonable grounds, he believes has committed a criminal offence, and is escaping from and freshly pursued by persons who have lawful authority to arrest that person.3… 494(2)  Any one who is the owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.

4… 494(3)  Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

5… Breaking and Entering – Section 348 Criminal Code.

6… 348. (1)  Every one who breaks and enters a place with intent to commit an indictable offence therein, breaks and enters a place and commits an indictable offence therein, or breaks out of a place after committing an indictable offence therein, or entering the place with intent to commit an indictable offence therein, guilty of an indictable offence . . . ..

7… 348. (2)  For the purposes of proceedings under this section, evidence that an accused broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein;  or broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after committing an indictable offence therein, or entering with intent to commit an indictable offence therein.

6.. Defence of dwelling or real property.

1… Section 41 Criminal Code.2… Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.3… 41(1)  Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

4… 41(2)  A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation.

7.. Use of force to prevent the commission of an offence.

1… S 27 Criminal Code.2… Every one is justified in using as much force as is reasonably necessary3… to prevent the commission of an offence for which, if it were committed, the person who committed it might be arrested without warrant, and that would be likely to cause immediate and serious injury to the person or property of anyone;  or to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

 

Authorities

 

1.. Section 86(2) The Criminal Code.

1… 86(2)  Every one who, without lawful excuse, uses, carries, handles, ships or stores any firearm or ammunition in a careless manner or without reasonable precautions for the safety of other persons . . . ..

2.. Regina v Harris.  Reasons.  Judge Inrig.  1/18/00.

1… The owner of the weapons and ammunition was present on the premises at the time of the investigation.  P4.2… The only time that is material is that date and that time.  Logic would produce a supposition or an assumption but we do not convict on suppositions or assumptions.  There must be concrete evidence of the condition of the guns and ammunition at other times, and that evidence is not present.  P4.3… An owner may do as he wishes with his property so long as he is present.  P7.

4… The important factor is that he be present when his collection is not secured.  P7.

5… The owner has lawful excuse to have his firearms and ammunition as it was found because he was present on that occasion.  P7.

6… The investigators should have waited until the accused had left the premises if they wanted evidence of the manner he stored his firearms and ammunition when he was not present.  P7.

3.. Regina v Morton.  Reasons.  Judge Knazan.  1/23/98.

1… Ammunition does not have to be in a locked container when it is in a locked vehicle.  P3.2… A danger to someone who may get into the car is too remote.  It would require entry into the car, finding the ammunition, and having a firearm (cm of that calibre).  P4.

3… No evidence that ammunition without a firearm is of any danger.  P4.4… You cannot add hypothetical to hypothetical to prove the case.  P4.5… You would need evidence that the person who got the ammunition had a firearm of that calibre.  P5.

6… Even in a high crime area, would the person who broke into the car have a firearm of that particular calibre.  P4.

4.. Regina v Nardi.  1/10/00.  Justice L. Feldman.

1… Ammunition in van.  At least one box on the floor in plain view through the driver’s window.2… There is no regulation prohibiting the carrying of ammunition in a vehicle where no firearm is present.  P7.3… My colleague Knazan J., in R. v. Mortin, unreported January 23, 1998, O.C.J., a case involving police discovery  of ammunition in two glove compartments in a motor vehicle found ammunition not to be inherently dangerous, in itself.  He concluded that any danger to someone who might enter the car to be too remote;  it would require the person, upon entry, both finding the ammunition and being in possession of, or having acces to a firearm of that caliber.  P6.

4… The charge was dismissed.  P6.

5.. Regina v Candelaria.  Reasons.  Judge Lane.  6/9/98.

1… Issues.
 

1…. Careless storage firearms.2…. Careless storage ammunition.3…. Charter argument – Morgentaler.

2… Careless Storage Firearms.

1…. Some rifles and handguns secured with trigger locks.  Could not be fired without removing the lock from the weapon with a hacksaw or some other kind of apparatus.  Not careless.   P4.2…. Other weapons did not have trigger locks.  Stored in a self made plywood closet.  Under steps in the furnace room in the basement.  Plywood doors locked with a padlock.  4” stainless steel pins.  Key kept in front hall.  Key not labelled or identified in any way.  Police entered on a gun call and were searching in the basement for weapons.  Did not find or notice the closet until shown to them by the accused.  PP 4,5.3…. Weapons not accessible to someone who did not know the house.  P5.

4…. No children ever in basement unsupervised.  No evidence of break and entries or robberies.  No evidence that a robber would have greater success than the tactical squad sent by the police.  P5.

5…. His storage facilities, although not up to ideal standards, nor perhaps even to the standards required by the regulations, in my view are quite distinguishable from the facts in R. v Blanchard.  P5.

6…. Applying the tests set out in R. v Finlay, I find that a reasonable doubt does exist that the conduct of the accused amounted to a marked departure from the standard of care of a reasonable person in the circumstances.  I have a doubt that reasonable precautions were not taken to discharge the duty of care in the circumstances.  Acquittal.

3… Careless Storage – Ammunition.

1…. The regulations indicate that if ammunition is in a room without firearms then there are no storage regulations that apply.  They do not have to be locked.  P6.2…. The regulations are silent as to how ammunition is to be stored if it is in a separate room.  P6.3…. Crown’s perspective.  Sloppy storage.  Live ammunition in the open and easily accessible.  Loose ammunition on the workbench.  P7.

4…. Not clear that the loose ammunition was linked to the guns that were seized.  P7.

5…. Some ammunition related to guns clearly secured by trigger locks.  P7.

6…. Other ammunition related to guns that were in the locked closet even though they did not have trigger locks.  P7.  Not satisfied that ammunition was linked to weapons in the same room.  P7.

7…. Note:

1….. None of the firearms were stored carelessly, some in trigger locks and others in the locked closet.2….. Ammunition stored casually but that is not contrary to the law.  PP 7,8.

6.. Regina v Derkosh (1979) 52 C.C.C. (2d) 252

1… Alberta Court of Appeal.2… When assessing carelessness, or negligence, the element of foreseeability and the duty one owes to others must be taken into account.  254.3… Court did not disagree with trial judge on this but did disagree with trial judge’s view that the carelessness must be something more than ordinary negligence.  254.

4… But now see (16) & (17) S.C.C.

5… It is axiomatic that in construing a stature all common words are to be given their plain and ordinary meaning as commonly understood.  Accordingly, the word “careless” ought to be construed with the bounds of tha general rule.  254.

6… A duty is imposed on the possessor of firearms and ammunition, to ensure he is not careless in the manner in which he causes them to be stored, having regard to all of the circumstances.  In positive words, there is a duty to take due care because these are potentially dangerous articles and a measure of safety is necessary.  254.

7… Where the manner of storing has the appearance of irresponsibility, or has been thoughtlessly selected, or projects an attitude on the part of an accused of simply not caring, then the failure to exercise due care can be said to have been established.  255.

8… Careless where the prosecution can establish lack of a conscious effort, or desire, to exercise due care.  255.

9… Failure to exercise due care where the manner of . . . has the appearance of irresponsibility, or has been thoughtlessly . . . or projects an attitude on the part of an accused of simply not caring.  255.

10… Custodial son and visiting son decided to make a home made rocket.  They used gunpowder from 10 to 15 shotgun shells which they removed from a linen closet.

11… In my view, the evidence in this case not only falls short of supporting the allegation of “careless manner” but, if anything, established that due care was indeed exercised by the respondent in an active way.  255.

12… Firearms in Kelley’s room had been rendered inoperative.

13… The other firearms had been stored away out of sight so as not to be readily accessible and attractive to the curious and the uninformed.

14… Each child through training was aware of the hazards attached to the handling of firearms and ammunition.

15… The unfortunate mishap was not caused by any careless conduct of the respondent but was induced by the deliberate act of his sons in seeking out and removing ammunition from its place of storage.

7.. R. v Gosset 20 W.C.B. (2d) 445, 1993 3 S.C.R. 76

1… The case involved manslaughter and 1 of the essential ingredients was the degree of carelessness under s. 86(2).2… See reference in Regina v Creighton.3… The applicable legal principles were set out in the judgment in Regina v Creighton.

4… It was open to the jury here to find that the conduct of the accused constituted a marked departure from the standard of care of a reasonable prudent person in the circumstances.

5… The determination of what constitutes “in a careless manner” or “without reasonable precautions for the safety of other persons”, within the meaning of s. 86(2) was to be assessed on an objective standard.

6… What must be proven in that regard was conduct that constituted a marked departure from standard of care of a reasonable prudent person in the circumstances.

7… A personal factor relevant to defining the standard of care was the accused’s membership in a group characterized by training or specially superior knowledge, indicating that a higher standard of care than that which would be expected of the untrained or non-specialist reasonable person was appropriate.

8… If the jury should find the accused’s use of the firearm here met the threshold of a marked departure from the standard of care of a reasonable prudent police officer in the circumstances … then the accused must be convicted.

8.. Regina v Finlay 83 C.C.C. (3d) 513, 1993 3 S.C.R. 103

1… The proper interpretation of the fault element under s. 86(2) is conduct that constitutes a marked departure from the standard of care of a reasonably prudent person.  If a reasonable doubt exists either that the conduct in question did not constitute a marked departure from that standard of care, or that reasonable precautions were taken to discharge the duty of care in the circumstances, a verdict of acquittal must follow.  17.

9.. Regina v Creighton 83 C.C.C. 346 (S.C.C.), 1993 3 S.C.R. 3

1… Accused injected cocaine into the arm of the consenting victim.  Charged and convicted of manslaughter.2… The prosecution must demonstrate a marked departure from the standard of a reasonable person;  rather it is the determination of what is reasonable that the skill and expertise of the accused may be considered.  361.3… Reference to R. v Gosset.

4… The reasonable person will be invested with any enhanced foresight the accused may have enjoyed by virtue of his or her membership in a group with special experience or knowledge related to the conduct giving rise to the offence.  For example in Gosset the accused police officer’s experience and training in the handling of firearms is relevant to the standard of care under s. 86(2) of the Criminal Code concerning the careless use of firearms.  360.

5… Objective mens rea, on the other hand, is not concerned with what the accused intended or knew.  Rather, the mental fault lies in failure to direct the mind to a risk  which the reasonable person would have appreciated.  Objective mens rea is not concerned with what was actually in the accused’s mind, but with what should have been there, had the accused proceedeed reasonably.  382.

6… Moreover, the constitutionality of crimes of negligence is also subject to the caveat that acts of ordinary negligence may not suffice to justify imprisonment.  382.

7… To put it in the terms used in Hundal:  The negligence must constitute a “marked departure” from the standard of the reasonable person.  The law does not lightly brand a person as a criminal.  For this reason, I am in agreement with the Chief Justice in R. v Finlay, that the word “careless” in an underlying firearms offence must be read as requiring a marked departure from the contitution norm.  383.

10.. R. v Bludau [1994] O.J. No. 2537, 25 W.C.B. (2d) 330

1… Police seized loaded shotgun from kitchen.2… Accused had loaded it to use against animals he found rummaging in his garbage.3… Not stored.

4… Crown had to prove beyond a reasonable doubt that the accused had stored the firearm.

5… Plain meaning of the word “store” was to put away or set aside for future use.

6… ”store” must mean something more than merely setting aside something temporarily.

7… Not careless.

8… A finding that the accused had stored a firearm carelessly required that the accused’s conduct constitute a marked departure from the standard of care of a reasonably prudent person in the circumstances.

9… On any objective test the risk of harm must be foreseeable.

10… The risk of any harm materializing here was minimal.

11… Temporary keeping of a loaded shotgun in the kitchen.  Risk of harm was minimal.  Acquitted of careless storage.  See R. Baldwin, 21.

11.. R. v Baldwin, January 30, 1996 Judge J.M. Bordeleau

1… There must be a marked departure from the standard of care of a reasonabley prudent person in the circumstances.  4, 12.2… In all the situations where convictions have arisen the Crown has been able to introduce evidence of a present risk of harm, rather than a potential risk for harm.  5.3… The remoteness of Mr. Baldwin’s actions from any real or actual risks of harm to anyone leaves me more than having a reasonable doubt.  5.

12.. R. v Bowskill, September 28, 1994.

1… On the charge of careless use of a firearms:2… Burglars jumped into their van after running out of accused’s pharmacy.3… He advanced to within 15 to 20 feet of the right rear wheel and by thumb cocking for each shot, fired 2 shots at the right rear tire.  The burglars drove away but eventually had to abandon the van and were apprehended.

4… He was familiar with firearms and knew the capabilities of both the revolver and himself.

5… All police officers called said they could have hit the tire in those circumstances.

6… The prosecution must prove beyond a reasonable doubt that the conduct of the accused constituted a marked departure from the standard of care expected of a reasonably prudent person in the circumstances.  4.

1…. R. v Finley.2…. R. v Gosset.3…. R. v Creighton.

7… From the evidence before me, the possibility of any person being killed or injured by Mr. Bowskill’s actions were so remote as to be virtually non-existent.  6.8… On the charge of storage not in accordance with the regulations, the accused had a loaded shotgun behind his dispensary.  8.9… Was the shotgun stored?

10… He had the gun for his protection and to defend himself as a result of what he had done to the burglars.  8.

11… He said he was not storing it.

12… Websters:  “To leave or deposit in a store, warehouse or other place for keeping, preservation or disposal, something that is stored or kept for future use.”

13… Random House:  “To supply or stock with something as for future use.  To deposit in a storehouse, warehouse or other place for keeping.”

14… Butterworths:  “These are common English words with no very precise or exact signification.  They have a somewhat kindred meaning and cover very much the same ground and seem to import a notion of warehousing , depositing for safe custody or keeping.”

15… All denote a notion of future use in warehousing as opposed to immediate or present use.  9.

16… Any ambiguity found in the Act or Regulations must be interpreted in favour of the accused.  9.

17… Bowskill told the court why the shotgun was there and that he did not store the gun at the pharmacy and I have no reason to disbelieve him.  A fair reading of the dictionary meaning of the work ‘store’ used in this context would lead any reasonably prudent person the same conclusion and the charge will be dismissed.  9.

13.. R. v Stubbs, April 12, 1995, Newmarket.  Oral.  Judge T. O’Hara.

1… Accused in his house.2… Found 17 firearms in his room in a locked glass case.  Separate rifle lying on the floor in an unlocked case with no trigger lock.  The gun on the floor was purchased that morning.3… The room was locked.

4… If he is there it is not stored.  4.

5… In my view if you are in the room with them or in the house with them you are not storing them.  6.

14.. Regina v Sokolowski.  Oral Reasons Watt J.  2/7/94.

1… reasonable prudent police officer in the circumstances.  37.2… Provincial legislation, as well current teaching about gunpoint arrests, are not determinative of the issue of liability.  They are, however, factors to consider in determining whether the accused’s conduct fell below the standard which the law requires.  37.3… Comment.  This point deals with the police officer and the particular training, skills and knowledge which the police officer should have.  In other words this applies only to a reasonable prudent police officer in the circumstances.

4… Comment.  It is clear that this officer was careless.  He should not have been tussling around with the person while he held a loaded revolver in his hand with his finger on the trigger.

15.. R. v Chekov, (1994) 26 W.C.B. (2d), 84 (Ont. Ct. Gen. Div.)

1… 86(3) is not an included offence in 86(2).2… Thomson OCJGD.3… Summary conviction appeal.

4… Charge of storing a handgun carelessly.

5… Locked gun cabinet in the house.  Could not open it at the scene.  Took it to the station.  Accused came to the station and opened it with a key.  Loaded handgun inside.

6… Trial judge found that firearm not stored in a careless manner contrary to 86(2).  Because it was in a locked steel cabinet.  Appeal judge agrees.  No one had easy access to it.  p. 14, 15.

7… ”Further, it does not follow that storing a handgun in a loaded condition is, of itself, capable of being interpreted as storing it in a ‘careless manner’ absent some additional information regarding carelessness.  For instance, if the door were unlocked; or the keys were hanging next to the cabinet; or there was a note in the kitchen or recreation room for all to see indicating that the key for the lock was in the kitchen drawer.  Any of these scenarios would surely indicate carelessness in the extreme.

8… The offence in section 86(2) requires proof of conduct showing a marked departure from the standard of care of a reasonable prudent person in the circumstances.  Locking a gun cabinet in order to establish a high degree of difficulty in obtaining entry or to maintain safety, does not depart in a marked way from the standard of a reasonably prudent person in the circumstances.”  p 15.

9… ”Is section 86(3) an included offence?  In my view it is not.  R. v. Morrison (1991) 66 C.C.C. (3d) 257 (B.C.C.A.) indicated that subsection 2 was not an included offence within section 86 (1).  In other words careless handling is not the charge where one points a firearm at another person.

10… In this case, section 86(3) makes the storing of a loaded firearm an offence even if the gun is virtually impossible to access in a gun cabinet.  A conviction under this subsection does not mean an offence is made out under section 86(2).

11… Therefore, I do not conclude that section 86(3) is an included offence within section 86(2).”

12… Storing a loaded firearm, no matter how secure the case, was not an offence with the wording of s. 86(2), absent some additional information regarding carelessness – The offence in s. 86(2) required proof of conduct showing a marked departure from the standard of care of a reasonable purdent person in the circumstances.

13… Locking a gun cabinet in order to establish a high degree of difficulty in obtaining entry did not depart in a marked way from the standard of a reasonably prudent person.

14… Comment.  The regulations cannot be the standard or a minimum standard for careless storage.  A finding that a regulation has been breached does not mean that there is careless storage.

16.. Regina v Pooke (1976) 6 W.W.R. 57

1… Charge of carrying a firearm in a manner dangerous to the safety of other persons.  s. 86(b).2… Accused had wrapped an unloaded shotgun in a raincoat and was carrying it to the police station in the morning on a virtually deserted city street.3… There were shells in the magazine but no shell in the chamber.

4… In my opinion the word “manner” is used in s. 86 in its ordinary meaning given in the Shorter Oxford Dictionary as:  “The way in which something is done or takes place;  mode of action or procedure”.  60.

5… The danger contemplated by s. 86(b) is, moreover, a present danger which is more than a mere potential for harm.  60.

6… In this case there was no possibility of accidental discharge;  deliberate action would be required.  61.

7… In my opinion there was no evidence from which it could be found that the shotgun was being carried in a manner dangerous to the safety of others.  61.

17.. Regina v Wasylyshyn 10 W.C.B. 343

1… Careless storage.2… Child care worker.  Disturbed children on a canoe trip.  Rifles used on trip.  Disturbed boy shot another with a rifle following an argument.3… Required some form of inadvertence either as actual intent or through advertent recklessness.  It could not be said that a reasonable person in the circumstances would have adverted to the risks existing in the circumstances.  The boys were familiar with bush life and the necessity for protection in the wild required the presence of the loaded guns.  The accused was involved in training the children in responsibility, which training required trust and some risk by the accused.  It could not therefore be said that the accused had been careless.

18.. R. v Lowe, 21 C.C.C. (2d) 193

1… Charge of dangerous driving.2… Such fault may be found in the departure from the standard of care that a prudent driver would have exercised having regard to all the circumstances.  198.

19.. R. v Thomas, [1973] 1 W.W.R. 530

1… Charge of having in possession without lawful excuse, a firearm in a manner dangerous to the safety of other persons.  Section 86(b).2… In my view, the possession of a firearm in a dangerous manner in the context of Code s. 86(b) involves, on the part of the accused, as an essential ingredient of the offence, in the words of Cartwright C.J.C., “something more than mere inadvertence or mere thoughtlessness or mere negligence or mere error of judgment”, that is, “knowledge or wilful disregard of the probable consequences or a deliberate failure to take reasonable precautions”.  538.3… The accused created a situation of peril.  540.

4… He did not have the defence of self defence or defence of others and therefore acted without lawful excuse.  541.

20.. R. v Roberge, (1981) 64 C.C.C. (2d) 78

1… Charge of using a firearm in a careless manner.2… There was negligence on the part of the respondent in using his firearm and in light of the circumstances no lawful excuse was established.  86.

21.. R. v Wright, (1984) W.W.R. 92

22.. R. v Ross, July 9, 1979

1… Careless use of a rifle.2… Firing into the air with a rifle.3… Whether the manner of use, that is firing the rifle into the air, enhanced the inherently dangerous characteristice of the firearm in so far as others in the area are concerned.

4… I do not find that there was any more than the merest potential for harm.

5… Under the particular circumstances of this case I am not satisfied beyond a reasonable doubt, that the accused used the Winchester rifle in a careless manner as section 84(2) should be contemplated.

23.. Regina v Cannon (1977) 37 C.C.C. (2d) 325

1… Previous section 86(b).2… Every one who, without lawful excuse,3… uses, carries or possesses any firearm or ammunition in a manner that is dangerous to the safety of other persons,

4… Officer taking an intoxicated man away.  Man reached for a shotgun.  Officer took it away from him before it was pointed at him.  It was not loaded and man did not have any shells with him.

5… Man did not have possession of the shotgun in a manner dangerous to others.  327.

6… The danger to the safety of others from the use or possession of firearms which the section seeks to prevent is the danger represented by the nature or characteristics of fire-arms which make them inherently dangerous instruments.  The paragraph to prevent such danger proscribes their misuse and requires proper care to be taken with respect to their use and possession.  327, 328.

7… To illustrate:  using an unloaded gun as a club might endanger the safety of persons within reach of the club, but the danger from that use would not be the danger which the paragraph seeks to prevent, even though such use of the fire-arm might attract liability for assault, unless justified.  328.

8… It is also possible to imagine circumstances in which the misuse of an unloaded firearm, not known to be unloaded, might foreseeably create a panic or reaction endangering the safety of others.  328.

9… In the circumstances, the subjective alarm which the respondent’s actions created in the officer did not supply the necessary ingredient of the charge that the possession of the gun endangered the safety of Constable Phillips.  328.

24.. Regina v McNeill (1977) 5 W.W.R. 757

1… Charge under 86(b).2… Accused intoxicated.  Took his rifle to parking lot beside his hotel.  Placed butt on ground and intentionally fired one shot into the air.3… Onus on the crown to prove a present or actual danger to other persons.  760.

4… The danger that arises from a discharge of a firearm is only limited by the trajectory of a bullet and in fact it is reasonably foreseeable that a bullet discharged from a firearm at one end of a city or built-up area could strike someone on the other side of the same city or built-up area.  Similarly, when a firearm is pointed at the ground a bullet is capable of ricocheting and travelling a considerable distance.  761.

5… I am consequently of the opinion that any firearm discharged in an uncontrolled fashion in a built-up area constitutes an actual or present danger to any of the persons living in that built-up area.

6… The operative word in “manner” and where a firearm is fired in an uncontrolled manner in a built-up area and where it is reasonable foreseeable that the bullet could strike other persons within that built-up area, in my view the case has been made out that there is a present or actual danger to those other persons.  761.

25.. Regina v Zimmer (1981), 60 C.C.C. (2d) 90

1… Use a firearm in a careless manner.2… Shot round near Stanchfield which hit the trees above his head.3… Zimmer intended to scare Stanchfield.

4… Held that this was careless use even though there was no intent to do more than scare.

5… Careless means to do something without care.

26.. R. v. Allan [1972] 3 W.W.R. 79, 6 C.C.C. (2d) 143 (B.C.)

1… The omission of the words “without lawful excuse” rendered the conviction null.

27.. Regina v Taylor (1970), 73 W.W.R. 636 (Y.T.)

1… Accused acquitted because he acted in self defence, not acting without lawful excuse.2… Section 86(b) The Criminal Code.3… Every one who, without lawful excuse,

4… uses carries or possesses any firearm or ammunition in a manner that is dangerous to the safety of other persons,

28.. Regina v Dale King 13 W.C.B. 250

29.. R. v Payne 22 W.C.B (2d) 350

1… Accused had fired a high powered rifle into the air when celebrating a local marriage.  Towards the open sea at a high angle.  No reasonable prudent person would use a firearm in such a manner as some thought must be given to the inherent danges for aircraft, persons and property outside of the view of the firearm user.

30.. Regina v Atkinson 14 W.C.B. 239

31.. R. v Hummel 1 Y.R. 67

32.. R. v Thurlow (1989), 9 L.W. 916-016

1… Accused saw 2 men break into a hotel.  He loaded his rifle and called to them to “freeze.”  They started to drive away.  He fired 2 shots at the car aiming at the radiator and fender to demobilize the vehicle.  He hit the radiator and alternator.  Car stalled and police arrested the men.2… Charged with careless.3… Not guilty.

4… No evidence that the bullets could have hit the 2 men.

5… He had a reasonable excuse to load the rifle since the 2 men were in the process of breaking and entering with intent to commit an indictable offence.

33.. Regina v Budgell 17 W.C.B. 72

1… Fisherman who had suffered thefts of fish.  Saw people stealing the fish.  Fired shots in their direction with shots landing a few feet from the boat occupied by the thieves.  Found to be careless use.

34.. R. v Rutkowski (1990) 112 A.R. 183

1… Avid gun collector.  Knowledgeable about guns.2… 36 weapons and 4700 rounds of live ammunition in his bedroom.3… Most weapons in a gun rack in a metal cabinet.  No lock.

4… Handguns unsecured on top shelf of cabinet.

5… Shotgun under bed.

6… Suitcase of loose ammunition.

7… All weapons clean and well maintained.

8… The cases concern themselves with loaded weapons or at least inferentially in situations where the firearm and ammunition is in close proximity.  193.

9… The cases concern themselves with the presence of children.  193.

10… The degree of carelessness necessary is not simply carelessness in the civil sense but rather carelessnes of sufficient gravity to lift it into that of the Criminal Code.

1…. R. v  McKay.

11… Firearms not loaded.

12… No evidence that children were ever in the home.

13… The only other people in the house were his father and mother and both of them were knowledgeable about firearms.

14… Cannot find that the circumstances would or might easily be expected to result in some danger to others by means of the inherently dangerous characteristics of firearms or ammunition.  193.

35.. R. v Grimard.

1… A firearms collector who stored his firearms and ammunition casually in his bedroom.  Acquitted of careless storage.  See R. v Baldwin, 18.

36.. R. v Pawlivsky D.C. Cr. Ap. No. 57

1… Loaded pellet pistol in car.  Visible.  Window partly open.  Car door could be opened.  Careless.2… There is a duty upon every possessor of a firearm to guard against the possibility of it being used, deliberately or accidentally, in a manner which would, except in lawful circustances, endanger the lives or safety of other persons.

37.. R. v Stephen Andrew Faasse [1981] B.C.D. Crim. Conv. 6167-01

38.. R. v Warren Kirchhofer [1981] B.C.D. Crim. Conv. 6167-01

1… Storage not careless since there would have needed to be a whole series of deliberate acts somewhat of a criminal nature before the firearms could inflict any harm.2… R. v Baldwin, 193… The fact that the firearm might be stolen was not relevant.

4… R. v Baldwin, 22

39.. R. v Pamela Jean Picco 13 W.C.B. 16 13:0028

1… Stored a loaded rifle on which the safety catch had not been engaged under a chesterfield in a private apartment did constitute the storage of that firearm without reasonable precautions for the safety of others.

40.. R. v Robert George Cousins 5 W.C.B. 508

1… Here, storing a loaded shotgun in full view in a room to which people are invited from time to time shows a lack of conscious effort or desire to exercise due care and falls within the prohibition in s. 84 of the Criminal Code.

41.. R. v Kenneth William McKibbon

1… Unloaded rifle and shotgun leaning against the wall in the bedroom.  Ammunition and charged magazines in a drawer.  Court found no evidence that children would have access to the bedroom of that objectively, anything in particular would have created a risk to human life or safety in these circumstances.

2… R. v Baldwin3… The regulations cannot be regarded as proscribing standard of care which would need to be taken in order not to be in violation of 86(2).4… R. v Baldwin, 23

5… R. v Steven P. Holborn

6… Accused left a number of firearms unattended in one area of the house and unlocked while he had lunch and worked on other firearms elsewhere on the premises.  Did not have to be kept under lock and key in those circumstances.

7… R. v Baldwin, 20

42.. R. v McKay (1981) 61 C.C.C. (2d) 321, 326

1… The law takes no cognizance of carelessness in the abstract.  It concerns itself with carelessness only  where there is a duty to take care and where failure in that duty has caused damage.  In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence.  325, 326.2… Was there any evidence before the learned acting Provincial Court Judge amounting to more than mere inadvertence or mere thoughtlessness or mere negligence or mere error of judgment?  326.3… No evidence of when it was discharged.

4… No evidence of who the family members were who were in the house to the knowledge of the accused.  326.

5… No evidence to show that the accused before he loaded the rifle know that there was anyone else in the house.  326.

6… No evidence about the rifle, safety catch, hair trigger etc.  326.

7… The learned acting Provincial Court Judge appears, in my respectful view to have improperly imported the civil doctrine of res ipsa Loquitur – the thing speaks for itself – into this criminal proceeding.  326.

8… A higher degree of carelessness required than in instances of civil negligence.

9… R. v Baldwin, 21

43.. R. v McKibbon [1994] B.C.J. No. 2240

44.. R. v Morrison, (1991), 66 C.C C. (3d), 257 (B.C.C.A.)

1… Charge of pointing a firearm dismissed.  No mens rea.2… Crown argued that a charge of careless under 86(2) was in included offence to a charge of pointing under 86(1).3… I cannot agree that by pointing a firearm a person must necessarily use or handle that firearm in a careless manner.  260.

4… A conviction under 86(3) does not mean an offence is made out under 86(2).  See R. v Baldwin, 24.

45.. R. v Wright, (1984) W.W.R. 92

46.. R. c Horvat [1995] A.Q. no 7 November 25, 1994

1… Accused had been broken into and robbed 3 days earlier.2… He saw the man again and fired his shotgun up in the air to scare the thief.3… Chief Justice Lamer was of the view that the proper test for negligent conduct nder s 86(2) is whether that conduct constitutes a marked departure from the standard of care of a reasonably prudent person.

1…. R. V Finlay.

4… Did the appellant’s conduct constitute a marked departure from the norm so as to render him criminally responsible for his conduct?

5… Fired 1 shot straight up.

6… An intruder is bound to cause some fear of harm.

7… No danger that he hit anyone above him.

8… Pellets must come down but the risk of harm to anyone from the fall-out of these pellets was quite remote compared to the risk of another break-in to appellant, his family and his property.

9… In the circumstances of this case, where there was an immediate threat of a break-in to appellant’s residence, the limited and careful use that was made of the shotgun did not, in my view, contravene s 86(2).

47.. R. v Baxter, February 8, 1985, Judge D. McWilliam

1… Charge of careless storage of 1 .45 calibre handgun.2… Found under the mattress of the accused’s bed.  Magazine in the gun and 7 cartridges in the magazine.  Could not see the gun without lifting the magazine.  4.3… Family quite familiar with guns.  6.

4… Weapon under mattress in a home where the persons were very safety conscious.  It was not in plain view, inviting anyone to move or play with it so as to come in harms way.  Most guns are probably stored in a closet.  Here the accused kept it under his mattess.  It is equally or better hidden under the mattress.  7.

5… In my view, this is not such storage which might reasonably be expected to result in some danger to others by reason of the inherently dangerous characteristics of firearms and ammunition.  8.

6… Baxter acquitted.  8.

48.. Regina v Halliday.

1… This is an analysis based on the reported decision and the factums filed in the Court of Appeal.2… There, both ammunition and firearms were in a steel locker in the basement.  There was a credibility issue over whether the accused had left the firearms side of the locker locked. It was clear that the ammunition storage side of the locker was not locked.  It was also clear that the key for the locker was kept on a nail in one of the storage beams so that the children could not reach it.  Since the court had decided that the trial judge erred in how he rejected the credibility of the accused it is likely that they made their determination on the basis that the firearms side of the locker was locked.3… The trial judge had decided that even if the firearms side of the locker was locked, it was careless storage.

4… In those circumstances the court decided that expert evidence was required to determine whether the storage was careless.  The court decided that the police officer was not a properly qualified expert.

5… Comment.  Officer had just said such storage was careless without saying why.

49.. Regina v Blanchard 103 C.C.C. (3d) 360

1… Hotel parking lot.  Unlocked truck.  Window open.  .303 rifle leaning against front seat.  In a cloth cover.  Loaded .303 magazine on the floor.2… Comment.  Enough right there to apply the reasonable person test.  Do not need any help with that standard just as cases in the past had not needed any help.3… Comment.  Chekov in Ontario OCGD which rejects the regulations in a careless charge.

4… ”Objective liability offences do not require contemplated consequences.  This remark, however, suggests that one can appreciate the nature of the applicable standard of care by assessing the scope of potential consequences.  That appears to be what is meant by the ‘risk of harm to which their conduct gives rise’.  With respect to the storage of firearms, the legislative target of s. 86(2) is to limit the risks which might arise from guns coming into the hands of the inexperienced, irresponsible, undisciplined, or criminal.”

5… ”can a standard be applied when no evidence has been adduced by the Crown as to the appropriate standard?”

6… Highway Traffic Act rules.

7… ”While a breach of those rules cannnot by itself give rise to criminal responsibility, it is my view that they provide the standard from which a marked departure can be measured.”

8… Comment.  See Chekov where the regulation standard breached.  Loaded gun in a cabinet.  Not careless.

9… Comment.  Breaches of HTA sections do not necessarily have anything to do with dangerous driving.  Probably only as they relate to what other drivers reasonably expect of you.

10… ”I conclude that the federal firearm storage regulations are relevant in determining the appropriate standard for those who are transporting or storing guns to the same degree that the rules of the road would be relevant in determining the basic standard of conduct for drivers.  Accordingly, in the circumstances of this case the court can commence the analysis of the accused’s conduct even without any evidence establishing the appropriate standard.”

11… Comment.  The regulations the judge dealt with were not even storage regulations.  They were transport regulations.

12… Comment.  To the same degree in the regulations..  There are many regulations which have nothing to do with the safety of anybody.

13… Comment.  And they are not included offences.

14… Comment.  Trial judge erred in his analysis of the ammunition part of the transport part of the regulations.  There are no ammunition rules in the transport part of the regulations except that the firearm cannot be loaded.

15… Held that there was a departure from the standard of conduct of a reasonably prudent gun-user.  373.

16… Comment.  In the circumstances he could have done this without resorting to looking at the regulations.  Courts before and after this decision have not had any difficulty applying the test to the facts without referring to the regulations.  Just as in negligence standards of care.  The concept of the reasonable person has been with us for a long time in law.

17… Marked Departure?  374.

18… Gross departure.  Markedly below the aceptable standard of care.  Must manifest a significant deviation from that norm of conduct expected in the circumstances.  Cannot be a marginal default or simply substandard behaviour.  Sufficiently distinct from mere civil negligence to warrant the imposition of a criminal sanction.

19… Lamer in Gosset.  The sufficiency of the departure was determined by examining the conduct and the risk of harm generated by it.  Did the conduct create a significant risk that the contemplated consequences or dangers might occur.

20… Comment.  This is the real test as the leading cases say.  No problem with analysing the standard in those leading cases without resort to regulations.

21… ”Given the extent of the risk that the firearm might fall into irresponsible, inexperienced, undisciplined or criminal hands in these circumstances, I have no doubt that it constituted a marked departure.”

50.. R. v. Morrison 66 C.C.C. (3d) 257, BCCA.

1… Charged with pointing a firearm at another person.  Convicted.2… In a summary conviction appeal decided that the accused did not have the mens rea to be guilty of pointing but substituted a conviction for careless use under 86(2).3… Question is whether pointing a firearm at another person without lawful justification will, in all cases, necessarily involve its careless handling or use.  p9.

4… Pointing will constitute an offence even where the firearm is unloaded.

5… ”I am satisfied that an accused might successfully argue that he cannot be convicted of an offence under s. 86(2) for pointing an unloaded firearm at a person in circumstances where no one else is present and both parties know the gun to be unloaded.  In that situation the Crown could not, in my  view, establish beyond a reasonable doubt that the handling was careless…”  pp 12, 13.


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