R. v. Meer, 2011 ABQB 8

Court of Queen ’ s Bench of Alberta Citation: R. v. Meer, 2011 ABQB 8 Date: 20110106 Docket: 080543575Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Jonathan David Meer Accused _______________________________________________________ Supplementary Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] I made an error in the decision I rendered in this matter on December 3, 2010 ( R. v. Meer , 2010, ABQB, #768).

The purpose of these Supplementary Reasons is to correct it. [ 2 ] The error relates to Counts 12, 13, 14, and 15 of the Indictment. [ 3 ] At paragraphs 14 and 425 of that decision I stated that during the trial the Crown had withdrawn Counts 12 and 13 of the Indictment. After Court adjourned on December 3, the Clerk brought to my attention that the Clerk’s records indicated that the Crown had in fact withdrawn Counts 14 and 15. This had occurred during the submissions of counsel after both the Crown and Defence cases were closed.

[ 4 ] In my December 3 Reasons I described the evidence relating to Counts 14 and 15 and found Mr. Meer not guilty on both counts. [ 5 ] No convictions, stays or acquittals have yet been entered in relation to the verdicts I announced on December 3, 2010 pending submissions of counsel as to the possible application of the Kienapple principle in this case. [ 6 ] On learning of my error I immediately contacted both counsel by e-mail and indicated that as I had found Mr.

Meer not guilty of the withdrawn counts and no convictions, stays or acquittals had yet been entered, I was of the view that my error was capable of correction by me. I proposed that I would correct it at the start of today’s proceedings. Both counsel agreed that would be appropriate in the circumstances. Counts 12 and 13 - Possession of Firearms without a licence [ 7 ] Counts 12 and 13 of the Indictment read as follows: Jonathan David Meer stands charged: 12.

On or about March 14, 2008, at or near Edmonton, Alberta, did possess a firearm, to wit: a Remington Sportsman 12 gauge shotgun, serial #W116062-M, without being the holder of a licence under which he may possess it, contrary to section 91(1) (

a) of the Criminal Code of Canada . 13. On or about March 14, 2008, at or near Edmonton, Alberta, did possess a firearm, to wit: a Ruger 10/22.22 calibre rifle, serial #126-25687 without being the holder of a licence under which he may possess it, contrary to section 91(1) (

a) of the Criminal Code of Canada . [ 8 ] Section 91(1) (

a) of the Criminal Code of Canada provides: Subject to subsections (4) and (5), every person commits an offence who possesses a firearm without being the holder of (

a) a licence under which the person may posses it . . . [ 9 ] The elements of the offences charged in Counts 12 and 13, each of which the Crown must prove beyond a reasonable doubt, are: 1. That Jonathan David Meer possessed the firearms identified in the count. 2. That Jonathan David Meer did not hold a licence to possess the firearms he possessed. [ 10 ] The evidence relating to these counts is: - evidence that the firearms identified in Counts 12 and 13 were located by police when they executed a search warrant at the Meer residence on March 14, 2008. They were found in a gun safe in the main floor den. Jonathan David Meer opened the safe at the request

of the police. He first located a piece of paper on which the combination he required to open it was written. - evidence of the Firearms Officer for the Province of Alberta, so designated under the Firearms Act , S.C. 1995, c. 39 by the Chief Firearms Officer of Alberta. This official has charge of the records of the Canadian Firearms Information System which maintains records of Possession Only Licences or Possession and Acquisition Licences issued under the authority of the Firearms Act since December 1, 1998. The official had conducted a careful examination of the records.

In affidavits of which the Crown had given the Defence the required notice under the Canada Evidence Act , he swore: I was not able to find any record of a valid Possession Only Licence or Possession and Acquisition Licence issued to the said Jonathan David Meer. I was able to find that Ms Meer [Loreena Meer] was issued a Possession and Acquisition Licence on March 30, 2007. It expires on October 18, 2012.

This licence allows her to possess and acquire non-restricted firearms and restricted firearms. - evidence of Loreena Meer that the guns in question were bought a long time ago from a policeman with whom “they” had been friends.

She had a licence to possess them and she considered them hers. [ 11 ] As noted in my December 3 decision, Jonathan David Meer was asked nothing about the firearms either in examination-in- chief or in cross-examination (except in cross when he was asked whether he had the guns to deal with “horses with broken legs” to which he answered, “no”). [ 12 ] Though in my decision issued on December 3, 2010 I rejected most of the evidence of Loreena Meer, her evidence that she had a licence is confirmed by the evidence of the Firearms Officer.

The existence of a licence in Loreena Meer’s evidence is some evidence that the firearms found by police in her house were possessed by her. [ 13 ] In the context of Counts 12 and 13 I am as unimpressed by an affidavit of the Firearms Officer in charge of firearms licence records that he “was not able to find any record” as I was unimpressed in the context of Counts 14 and 15 by the affidavit of the RCMP officer in charge of the Firearms Registry that he was “unable to locate any record of a valid registration certificate” (see para. 433 of my December 3 decision). [ 14 ] Where the evidence offered to prove non-compliance with the registration requirements is affidavit evidence on which it would be impractical for there to be cross-examination, evidence that the record keeper was not able to locate a record is weak.

The words of the affidavit appear to have been carefully chosen so as not to convey more certainty than the officer actually has. They do not convey sufficient certainty to establish beyond a reasonable doubt that Jonathan David Meer did not hold the required licence. [ 15 ] In these circumstances I find that the Crown has not proved the elements of these counts beyond a reasonable doubt.

I therefore find Jonathan David Meer not guilty in respect of Counts 12 and 13. [ 16 ] I observe as well, though it is not necessary to my decision, that the Crown’s theory in respect of these counts was that though Loreena Meer may have possessed the firearms, so did Jonathan David Meer since he knew the firearms were in the house and had access to them. He, as well as her, was therefore required to have a licence. I suggest that

interpretation of the firearms licensing requirements would be a surprise to many firearms licence holders, and, more particularly, to the members of their families who know of the existence of firearms in their homes and know how to gain access to them. Counts 14 and 15 - Possession of Unregistered firearms [ 17 ] Given my error as to which counts of the Indictment the Crown had withdrawn, I withdraw the verdicts of not guilty I announced on December 3 with respect to Counts 14 and 15 and record that the Crown withdrew Counts 14 and 15 during the trial.

Heard on 22 days between September 7, 2010 to October 20, 2010 inclusive, and on December 3, 2010. Dated at the City of Edmonton, Alberta this 6 th day of January 2011. Brian R. Burrows J.C.Q.B.A. Appearances: B. J. Holtby, Q.C. for the Crown A. Juneja for the Accused