Gladue v. Alberta (Attorney General), 2011 ABQB 183

Court of Queen ’ s Bench of Alberta Citation: Gladue v. Alberta (Attorney General), 2011 ABQB 183 Date: 20110322 Docket: 1003 10248 Registry: Edmonton Between: Brian Kurtis Gladue Applicant - and - Her Majesty the Queen in Right of Alberta as represented by The Attorney General of Alberta, Michael J. Boyd, Chief of Police of Edmonton Police Service, Brenda St. Germain, and the Attorney General of Canada Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Gladue asks for the return of his non-restricted long guns which were seized by the Edmonton City Police; the matter in relation to which the seizure was effected was resolved when the charge against Mr. Gladue was withdrawn. Mr. Gladue has a firearms possession and acquisition license. There is an existing amnesty from registration of non-restricted long guns. Mr. Gladue is an adherent to Treaty No. 6. Mr. Gladue has been denied the return of his firearms presumably because he has informed the police that he does not intend to register his long guns; Mr.

Gladue is of the view that the legislation requiring registration of firearms abrogates or derogates from his aboriginal and treaty rights and is therefore not binding on him.

[2] Mr. Gladue’s application is allowed; he is entitled to the return of his firearms. [3] In light of the view which the court has taken of the right of anyone in Mr. Gladue’s position, i.e. who has a firearmspossession and acquisition license and who is in possession of unrestricted long guns, to the return of non-restricted long guns while theamnesty is still in place, it is not necessary for the court to consider Mr.

Gladue’s arguments relative to his aboriginal and treaty status. [4] Once the prosecution withdrew the criminal charge, the responsibility for the seized property remained entirely with thepolice and not with the Crown, in this case, the provincial Crown. Cases and authority cited [5] By Mr. Gladue: Treaty No.6; Possession of Property Report R-6A and Possession of Firearms Report R-6F; FirearmsPossession Licence and Extension of Amnesty; R. v. Feeney, (SCC), [1997] 2 S.C.R. 13; R. v. TA.V., 2001 ABCA316; R. v. Zaba 2010 SKPC 85; R. v. Chuhaniuk 2010 BCCA 403; R. v. Merchant, 1991 ABCA 115 , [1991] A.J.

No. 344; R.v. Raponi, 2004 SCC 50 , [2004] 3 S.C.R. 35; R. v. Dagenais, 2009 SKPC 113; Municipal Government Act, R.S.A. 2000, c.M-26, ss. 610-11; Unclaimed Personal Property and Vested Property Act, S.A. 2007, c. U-1.5, ss. l(nn) and 4, General Regulation(Unclaimed Personal Property and Vested Personal Property Act) Alta. Reg. 104/2008, ss. 6, 7, 8; Vehicle Seizure and RemovalRegulation, Alta. Reg. 251/2006, s. 25; Neill v. Vancouver Police Department, 2005 BCSC 277; A.G. of Canada v. Acero 2006 BCSC1015; Butler v.

Canada (Attorney General), ; Firearms Act, S.C. 1995, c. 39; Aboriginal Peoples of CanadaAdaptations Regulations (Firearms), SOR/98-205; Quebec (Attorney General) v. Moses, [2010] l S.C.R. 557; Re Rizzo & Rizzo ShoesLtd., [1998] l S.C.R. 27; R. v. Sundown, [1999] l S.C.R. 393, paras. 5-6,10,14, 24-30; R. v. Simon, (SCC), [1985] 2S.C.R. 387; Vancouver (City) v. Ward, 2010 SCC 27 , [2010] 2 S.C.R. 28; Police Act, R.S.A., 2000, c. P-17, ss 2 and 3; Priscilla Kennedy, The Prosecutorial Power in Canada, unpublished Master’s thesis, University of Alberta, 1984. [6] By Edmonton Police Service: R. v.

Peacock-McDonald 2007 ONCA 127; R. v. Hudson, [2007] O.J. No. 2335 (S.C.J.); R.v. McCormack 2007 BCSC 1526. [7] By Attorney General of Canada: Alberta Rules of Court, Alta, Reg, 124/2010; Criminal Code, R.S.C., 1985, c. C-46;Firearms Act, S.C. 1995, c. 39; Order declaring an Amnesty Period (2006), SOR 2006-95; R. v. Badger, (SCC), [1996]1 S.C.R. 771; R. v. Morris, 2006 SCC 59; Treaty No. 6; R. v. Sparrow, (SCC), [1990]1 S.C.R. 1075; R. v. Sundown, (SCC), [1999]1 S.C.R. 393; Reference Re Firearms Act, 1998 ABCA 305; Reference re Firearms Act (Can), 2000 SCC 31; Constitution Act, 1982,

Schedule B to Canada Act, 1982 (UK); Aboriginal Peoples of Canada Adaptations Regulations (Firearms),SOR/98-205. [8] By the Queen in right of Alberta: R. v. McNeil 2009 SCC 3 , 2009 CarswellOnt 116 (SCC); R. v. McCarthy 2008CarswellAlta 29 (QB); R. v. Regan 2002 SCC 12 , 2002 CarswellNS 61 (SCC); R. v. Dore 2002 CarswellOnt 2373 (C.A.). [9] By the court: R. v. Merchant (1991), 1991 ABCA 115 , 117 A.R. 32, [1991] A.J. No. 344 (C.A.); R. v. Carloss2000 BCPC 19; R. v. Day, [2006] O.J. No. 3187 (Sup.Ct.J.); R. v. Dagenais 2009 SKPC 113, [2009] S.J. No. 604; R. v. K.G.S., [2011]Nu.J. No.4. Background [10] Mr.

Gladue holds a firearms possession and acquisition license which allows him to possess and acquire non-restrictedfirearms. The license is valid until 2013. [11] Mr. Gladue is a member of the Beaver Lake Cree Nation and an adherent to Treaty No. 6. Treaty No. 6 provides that Mr.

Gladue has the right to hunt within the treaty area in Alberta and Saskatchewan; the Natural Resources Transfer Agreement, 1930 extended this right to hunt to all of Alberta. As an adherent to Treaty No. 6, Mr. Gladue receives $1,200.00 annually in ammunition. [ 12 ] On November 2, 2009, the Edmonton Police Service seized all of Mr. Gladue’s guns: a model 348 Gamester 12 gauge shotgun, a Lee Enfield 30-30 rifle, and a Lee Enfield 30-06 rifle. Mr. Gladue was charged on December 1, 2009 with insecurely storing a Winchester Model 94 long gun beneath the rear passenger seat of a vehicle.

This charge arose out of the incident which occurred on November 2: the police had been warned of the possibility that Mr. Gladue might harm himself and, with Mr. Gladue’s consent and that of Mr. Gladue’s spouse, the police seized all of the firearms in Mr. Gladue’s possession. On or about March 25, 2010, the charge of insecurely storing a firearm was withdrawn. [ 13 ] On November 2, 2009, EPS also seized a blanket in which the Winchester had been rolled. That blanket was subsequently destroyed by EPS. Mr.

Gladue asserts that the blanket was a ceremonial blanket and asks for damages based on that characterization. At the February 3 hearing, the court ordered a trial of the issue of the value of the blanket, it being acknowledged by EPS that the blanket was wrongly destroyed by them. [ 14 ] The Government of Canada has issued an amnesty for some long gun owners. A Special Bulletin for Police No. 78 , issued by the federal government in March 2010 provides information to the police about the amnesty for owners of non-restricted rifles and shotguns.

That bulletin includes the following information: - under the amnesty, individuals may not incur criminal liability under the Criminal Code for unlawful possession of a non- restricted firearm.

Other offences pertaining to non- restricted firearms (for example, unsafe storage) continue to apply; - the amnesty has been extended until May 16, 2011; - Now that the amnesty remains in place, what should Police do when they receive a notice from the CFP Registrar indicating that a particular individual is in illegal possession of firearms because their license has expired and their registration certificates have been revoked? Police officers have certain discretion.

Here are a few things to keep in mind when deciding what action to take: . . . - individuals to whom the amnesty applies will not incur criminal liability for possessing a non-restricted firearm without a valid license or registration certificate. However, they are still in unauthorized possession of the firearm and Police have the authority to seize the firearm at their discretion. - You may wish to conduct a risk assessment.

In doing so, you could consider whether the person is of interest in your area, has prior convictions or arrests, and any other information that indicates there may be a public safety concern. - Your agency’s legal counsel may advise you further on what action to take if you still have questions. [ 15 ] EPS has not provided any information at this hearing that Mr. Gladue is, or may be, a public safety concern. 2. Should the police return to him the non-restricted long guns owned by Mr. Gladue in light of the long gun registration amnesty and the fact that Mr.

Gladue has a firearms acquisition license and is not a public safety concern? [ 16 ] Mr. Gladue is entitled to the return of his firearms.

[ 17 ] I accept, for the purposes of this hearing, that the seizure of Mr. Gladue’s weapons by the police was lawful: Peacock- McDonald . [ 18 ] In that event, the applicable

section of the Code with respect to the return of the weapons to Mr. Gladue is 117.04(2): see Dagenais . The disposition of weapons seized under that

section is governed by s.117.05. The decisions interpreting that

section indicate that firearms should be returned to the rightful owner where there is no further proceeding that justifies their detention: see Merchant . [ 19 ] If even the real risk of charges being laid should not, as our Court of Appeal held in Merchant , delay the return of firearms to their owners, all the more reason for the police to return those firearms when there is no risk whatever of charges being laid because of the amnesty.

The Crown’s factum suggested that the respondents may not now have valid permits to possess some of these firearms, while the respondents reply that if any permits lapsed, that it is because of the long gap in possession. We decline to go into that. If the respondents want to run the risk of being charged with possession, or if the Crown wants to run the risk of laying of such charges, they may.

We will not, and have not the material to, rule on such issues now. [ 20 ] A situation which is somewhat similar to the facts in this case, at least insofar as the way in which the police initially came into possession of the firearms arose in Carloss . The police officer who subsequently refused to return the firearms was ordered either to return the guns to the rightful owner or to apply, on notice to the owner, for an order to destroy the guns.

Since the police officer did neither, he was ordered to immediately return the guns to the owner. [ 21 ] In Day , a justice of the peace had ordered that an individual be prohibited from possessing weapons while within the municipal boundaries. The Superior Court concluded that the only basis for refusal to return a firearm to its rightful owner in the circumstances of the case that we are facing was if there were “legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners.” As indicated above, no such evidence was presented in relation to Mr. Gladue.

The type of evidence that would be required is discussed in Peacock-McDonald . The necessary weight of such evidence is illustrated by the Dagenais decision. [ 22 ] In

summary, Mr. Gladue is entitled to the return of his firearms since they are not being held in relation to any pending procedure, the return of the firearms to Mr. Gladue does not present a public safety concern, and the possession of the firearms by Mr. Gladue without registration cannot be subject of charges until May 16, 2011. 3. Mr. Gladue’s status as a Treaty No. 6 adherent is not relevant to his entitlement to the return of his firearms [ 23 ] In light of the clear obligation at this time of the EPS to return his firearms to Mr. Gladue, the court will not embark on an analysis of whether Mr.

Gladue’s aboriginal and treaty rights will continue to entitle Mr. Gladue to the return of his firearms if the long gun amnesty is not further extended beyond May, 2011. Such an analysis would be moot at this time. In the court’s view, it would not be appropriate to exercise its discretion to proceed with the analysis of that moot question in view of the fact that the legislative framework within which such an issue would have to be determined, including for example the Aboriginal Peoples of Canada Adaptations Regulations (Firearms ), SOR/09-205, could be amended if the amnesty were terminated: K.G.S. 4.

The Queen in right of Alberta has neither status nor liability on the issue of the return of the long guns to Mr. Gladue [ 24 ] While the Crown and the police are indivisible for the purpose of disclosure under the Stinchcombe rules, the two are generally separate and independent entities: McNeil, McCarthy . [ 25 ] Upon the termination of a prosecution, the police, not the Crown, are in care and control of the exhibits: Dore .

By analogy, where firearms have been seized, the police are responsible for the appropriate disposition of the firearms. [ 26 ] The Police Act in force at the relevant time merely states that the Government of Alberta is responsible for ensuring that adequate and effective policing is maintained throughout Alberta: s. 3. That is not equivalent to saying that a municipal police force such as Edmonton Police Service and the Crown in right of Alberta are indivisible for the purpose of responsibility for

seized property. The nature of the responsibility of the Crown for municipal police forces is illustrated by s. 27 of the Police Act . Municipal police services 27(1) A municipality that has assumed responsibility for establishing a municipal police service under section 4(2)(

d) or (5)(

c) shall establish and maintain an adequate and effective municipal police service under the general supervision of a municipal police commission.

(2) A municipality maintaining a municipal police service shall not withdraw from providing that service except with the prior approval of the Minister. RSA 2000 c. P-17 s. 27 ; 2005 c. 31 s. 13 . In other words, the government’s responsibility with respect to policing is to see that adequate policing is provided to the citizens of Alberta. That political responsibility for ensuring servicing does not translate into a responsibility for the actions of individual police services with respect to the treatment of seized property. 5. Ms. St. Germain [ 27 ] The court recognizes that Ms. St.

Germain is the owner of a Winchester Model 94 shotgun, serial number 394....... and the 303 British rifle, serial number C94...... which were collected by the police as presumed property of Mr. Gladue. Mr. Gladue has acknowledged that these firearms are Ms. St. Germain’s property. Ms. St. Germain has indicated her intention of obtaining the required firearm and acquisition certificate and to register her long guns. EPS has indicated its intention of returning Ms. Germain’s firearms to her on the presentation of the certificate and registration. 6.

Costs [ 28 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 3 rd , 9 th and 15 th days of February, 2011. Dated at the City of Edmonton, Alberta this 18 th day of March, 2011. J.B. Veit J.C.Q.B.A. Appearances:

Appearances: Priscilla Kennedy, Davis LLP for Mr. Gladue Martine Sallaberry for Edmonton Police Service James Shaw, for Justice Canada Lisa Farion, Alberta Justice Civil Law - Litigation for Alberta Justice Brenda Germaine, on her own behalf