HER MAJESTY THE QUEEN V. LORRIE MILDRED FEDERUIK
Quote:
The undisputed evidence of the defendant was that she had been hunting between approximately 3:00 P.M. and 5:30 P.M. that day, and upon her return to her residence, had parked her vehicle in the driveway. Her vehicle, a 1990 Dodge Shadow, was a hatchback, that is, it had no trunk. She locked the rifle in the back of her car, wrapped up the rifle so that no one would see it, and put the magazine in the console. The gun was not loaded.
The defence argues that the defendant, having been hunting earlier in the day, was entitled to leave her firearm in the vehicle for a reasonable period, prior to returning it to the storage cabinet in the house. Additionally, the defence argues that the way that the gun was lodged in the vehicle was in compliance with regulations that deal with the storage and transportation of firearms, and further questions whether or not the firearm was “stored”, as charged, or “transported”, as also referred to in section 86.
The Crown argues that this is not a case of transportation of a firearm in a vehicle, as the defendant had ample time to put the firearm back into safe and secure storage. As well, the Crown argues that the manner in which the firearm was left in the vehicle was such as to be careless, based on the facts, and that therefore the charge is made out.
Each counsel takes the view that I can refer to the regulations (in this case, the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations SOR 98-209) as a framework to assist in determining an appropriate standard for storing or transporting firearms. That was the approach taken in Blanchard and is an approach that I will incorporate in deciding this case.
[16] Dealing firstly with whether or not the rifle was being “stored” or “transported”, I find that
the firearm was stored, albeit temporarily. The defendant’s evidence is that she was hunting earlier that day, and returned at approximately 5:30 P.M. The complaint to the police, made by the defendant’s daughter, was received at 9:22 P.M., almost four hours later. There was ample time in the interim for the defendant to take the firearm from the car, and return it to secure storage in the house. The fact that she elected to wrap the rifle in clothes, to make it less visible to passers-by, supports my view that she deliberately elected not to return the firearm to the house, opting instead to store the rifle in her vehicle.
[17] In R. v Carlos, 2002 SCC 35 (CanLII), [2002] 2 S.C.R. 411, the Supreme Court allowed a Crown appeal, and entered convictions on one count of careless storage of a firearm under section 86(1), and two counts of contravention of the regulations. In that case, the defendant had testified that he had taken three guns out of his safe to clean them, had loaded them, and was then interrupted by the arrival of the police, who were at his home to execute a search warrant. He hid the guns, and was acquitted at trial, an acquittal that was upheld on appeal, on the basis that he had not “stored” the guns. In allowing a further Crown appeal and entering convictions, the Supreme Court noted that “...there is no requirement that...the accused plan a long-term or permanent storage”. (see para 3). As Ryan, J.A. noted in the dissenting Court of Appeal judgment in Carlos:
A firearm has been “stored” when it has been put aside and the accused is not making any immediate or present use of it. There is no need to establish that the firearm has been put aside for a “lengthy period”. Such a requirement is ambiguous, and does not provide any guidance as to when “use” has ended and “storage” has begun.
[18] Was that storage careless? The regulations respecting storage of a non-restricted firearm (which this rifle is) state:
5. (1) An individual may store a non-restricted firearm only if
(a)it is unloaded;
(b)it is
(i) rendered inoperable by means of a secure locking device,
(ii) rendered inoperable by the removal of the bolt or bolt-carrier, or
(iii) stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into; and
(c)it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into.
[19] The relevant portion of the regulations dealing with the transportation of non - restricted firearms state:
10. (1) An individual may transport a non-restricted firearm only if
(a)except in the case of a muzzle-loading firearm that is being transported between hunting sites, it is unloaded; and
(b)in the case of a muzzle-loading firearm that is being transported between hunting sites, its firing cap or flint is removed.
(2) Subject to subsection (3), an individual may transport a non-restricted firearm in an unattended vehicle only if
(a)when the vehicle is equipped with a trunk or similar compartment that can be securely locked, the non-restricted firearm is in that trunk or compartment and the trunk or compartment is securely locked; and
(b)when the vehicle is not equipped with a trunk or similar compartment that can be securely locked, the non-restricted firearm is not visible from outside the vehicle and the vehicle, or the part that contains the non-restricted firearm, is securely locked.
[20] On the evidence, the defendant was not in compliance with the regulations as to storage. There is no evidence that there was any type of locking device on the rifle, and the evidence from each of Cst. Eagan and the defendant is that the bolt was not removed from the rifle. A vehicle is not any of a “container, receptacle or room”, and in any event, the vehicle was not securely locked and constructed so that it could not readily broken into; one could simply break the window of the vehicle to gain entry. The ammunition was readily available in the console.
[21] The defendant relies on that portion of the regulations that deal with transportation of a non-restricted firearm, but for the reasons given, I have concluded that the firearm was stored, with the result that section 10 of the regulations is not applicable. To the extent that section 10 can be relied on to objectively assess the standard of care exhibited by the defendant, I note that the vehicle could not in any event be “securely locked”.
[22] Unless I am satisfied that the conduct of the defendant exhibited a “marked departure” of the standard of a reasonably prudent person in the circumstances of the defendant, I must acquit her. In this case, the defendant knew that she had an operable firearm, and ammunition for that firearm, in a locked hatchback car. Whereas she did take some steps to conceal the firearm, a reasonable person, in assessing the potential risk of the vehicle being broken into, and the serious consequences that could arise if the firearm and ammunition were stolen, would have adverted to that risk, and returned the firearm to a safe location. Instead of doing that, the defendant started drinking almost immediately after returning from her hunting trip. On these facts, I am satisfied beyond a reasonable doubt that the conduct of the defendant displayed a marked departure from that of a reasonably prudent person in the circumstances, and I find her guilty of count 1.