R. v. Vader, 2012 ABQB 288

Court of Queen ’ s Bench of Alberta Citation: R. v. Vader, 2012 ABQB 288 Date: 20120502 Docket: 100782598Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Travis Edward Vader Accused _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.M. Ross _______________________________________________________ I. Introduction .......................................................................................................... Page: 3 II.

Evidence ................................................................................................................ Page: 3 A. The Accomplices ....................................................................................... Page: 3 1. Melody Brisson............................................................................... Page: 3 2. Kayla Campbell.............................................................................. Page: 4

3. Common Elements of the Brisson and Campbell Evidence..... Page: 6 4. The Accomplice’s Cell Phones.................................................... Page: 6 B. Defence Witness Evidence ...................................................................... Page: 7 1. Donald Bulmer................................................................................ Page: 7 2. Wade Teszeri................................................................................. Page: 7 C. Other Witnesses ......................................................................................... Page: 8 D.

Firearms Experts ....................................................................................... Page: 8 III. Analysis - Evidence .......................................................................................... Page: 10 A. R. v. W.(D.) Defence Evidence Analysis .............................................. Page: 10 B. Accomplice Witness Credibility............................................................. Page: 11 1. Prior Conviction for Wrongdoing................................................ Page: 12 2. Confirmatory Evidence................................................................

Page: 13 3. Demeanor and Nature of the Witnesses................................... Page: 13 4. Inconsistent Evidence.................................................................. Page: 14 IV. Analysis - Offenses ........................................................................................... Page: 15 Count 1 : Possession of Stolen Property Valued at $5000 or Less ( Criminal Code , s. 355(b))...................................................................................................................

Page: 15 Counts 2 and 3 : Possession of a Firearm Without Being the Holder of a Licence or Certificate of Registration ( Criminal Code , s. 91(1))................................................. Page: 16 1. Legal Definition of a “Firearm”................................................... Page: 17 2. Possession of the Revolver........................................................ Page: 21 3. Is the Revolver a Working Restricted Firearm?........................

Page: 22 Counts 4 and 5 : Transporting a Firearm and Ammunition in a Careless Manner ( Criminal Code , s. 86(1))......................................................................................................... Page: 23 Count 6 : Possession of Ammunition Without Being the Holder of a Licence ( Criminal Code , s. 91(1))...................................................................................................................

Page: 24 Counts 7 and 8 : Breach of Recognizance by Breaching the Peace and by Possessing a Firearm and Ammunition ( Criminal Code , s. 145(3))........................................ Page: 24 Counts 9 and 10 : Theft and Possession of a Stolen Motor Vehicle Valued at ver $5000 ( Criminal Code , s. 334(

a) and 355 (a)) Page: 24 Count 11 : Possession of an Unloaded Restricted Firearm Together with Readily Accessible Ammunition that is Capable of Being Discharged in the Firearm ( Criminal Code , s. 95(1))................................................................................................................... Page: 25 Count 12 : Traffic in Methamphetamine or a Substance Held out to be Methamphetamine ( Controlled Drugs and Substances Act , s. 5(1) )......................................................

Page: 27 Count 13 : Breach of Recognizance by Driving ( Criminal Code , s. 145(3)) Page: 27 Count 14 : Theft of Cell Phone ( Criminal Code , s. 334(b))............................ Page: 27 V. Conclusion ......................................................................................................... Page: 27

I. Introduction [ 1 ] Travis Edward Vader is charged with 14 offences arising out of events alleged to have occurred on June 15, 2010. The charges include: 1. two charges for possession of stolen trucks ( Criminal Code , R.S.C. 1985, c.

C-46, ss. 354- 355 ), 2. one charge for theft of a truck ( Criminal Code , s. 334(a)), 3. six charges relating to possession and transport of a firearm and ammunition ( Criminal Code , ss. 86(1), 91(1) , 91(2) , 95(1) ), 4. one charge of trafficking in methamphetamine ( Controlled Drugs and Substances Act , S.C. 1996, c. 19, s, 5(1)), and 5. three charges for breach of recognizance ( Criminal Code , s. 145(3)). The Crown has invited dismissal on a charge of theft of a cell phone ( Criminal Code , s. 334(b)). II. Evidence A.

The Accomplices [ 2 ] The evidence about the events came primarily from two alleged accomplices to a number of the charges: Melody Brisson and Kayla Campbell. I will commence with a

summary of the evidence given by each of these witnesses. 1. Melody Brisson [ 3 ] In June 2010 Ms. Brisson was living with her mother in Blueridge, Alberta. On June 15 th , she was in that residence with her mother and Kayla Campbell, a friend who had been staying there for about a week because of a dispute with Ms. Campbell’s boyfriend. At about 4 a.m., Travis Vader came to the house. Mr. Vader was an acquaintance of Ms. Brisson’s: she had met him four or five times commencing in 2008. She had purchased crystal meth from Mr.

Vader on at least one occasion and used crystal meth provided by him without charge on other occasions. [ 4 ] When Mr. Vader came to the house, he brought drugs and the three of them - Ms. Brisson, Mr. Vader and Ms. Campbell - used the drugs that day starting in the early morning. Mr. Vader was brought to the house in a Ford Ranger driven by Robert Duncan, a friend of Ms. Brisson’s. Mr. Duncan did not stay, but Mr. Vader did. He was at the house for six to eight hours. Eventually, at around noon, Ms. Brisson, Mr. Vader and Ms.

Campbell left the house in a dark coloured Ford Ranger truck that was parked across the street from Ms. Brisson’s home. Ms. Brisson confirmed that the truck they left in was the same truck she was arrested in later that day. Ms. Brisson recalled that Ms. Campbell drove the Ranger.

[ 5 ] Mr. Vader had a back pack with him that he put in the back of the Ranger. Ms. Brisson knew that there was a gun in the back pack; she had seen it when Mr. Vader took it out of the pack while he was in her home and was cleaning it on the bedroom floor. Neither Ms. Brisson nor Ms. Campbell used the back pack at all. [ 6 ] Ms. Brisson, Mr. Vader and Ms. Campbell drove to Fort Assiniboine, with a plan to steal a red Ford truck. Ms.

Brisson had a set of keys to the red truck, as she and her friend Robert Duncan had stolen it previously. [ 7 ] They did not steal the red truck, and later left Fort Assiniboine and drove by a field where they saw a white Ford truck parked, and a semi-trailer truck parked nearby. They stopped to look, and Ms. Campbell saw that keys had been left in the white truck. She decided to take the white truck, and drove it away from the field, with Ms. Brisson following, driving the Ranger. Mr. Vader was in the Ranger with Ms.

Brisson. [ 8 ] The trio stopped at a field where there were some abandoned trailers, and took a tank and other items out of the box of the white truck so that it would be less noticeable to police. [ 9 ] Afterwards, they drove on back roads. Ms. Campbell and Mr. Vader were in the white truck, and Ms. Brisson followed in the Ranger. A police car drove by and flagged them down. Ms. Brisson stopped, while the others continued on in the white truck. [ 10 ] This stop eventually resulted in Ms.

Brisson’s arrest and a search of the Ranger that revealed the backpack containing, among other things, a handgun and ammunition. 2. Kayla Campbell [ 11 ] Ms. Campbell testified that in June 2010, she was “kind of” living in Whitecourt, but had no permanent residence as she had been evicted following a police raid on the home where she lived in with her boyfriend, Morgan Duncan. As a result, she had been staying with Ms. Brisson for a week or two. [ 12 ] She knew Mr. Vader, having met him in 2007 or 2008, and they had become friends over time.

By mid-2010 she had started obtaining meth from him; she bought it perhaps once, other times they together smoked meth supplied by Mr. Vader. [ 13 ] She recalled that in the early morning of June 15, 2010, she thought around 7 or 8 a.m., Mr. Vader came to Ms. Brisson’s home with Robert Duncan, in a green Ford Ranger driven by Robert Duncan. Mr. Vader was coming to the house to sell her and Ms. Brisson a bag of meth. She had texted him about that purchase earlier, and was expecting him. [ 14 ] At some point that morning, Mr. Vader and Mr. Duncan left for about a half hour to get a truck, and just Mr.

Vader came back in the same green Ranger. Ms. Campbell, Ms. Brisson and Mr. Vader together smoked some meth that Mr. Vader had brought with him. [ 15 ] Ms. Brisson wanted them to go to Fort Assiniboine to steal a red truck. This was a truck that Ms. Brisson had stolen before with Robert Duncan; she had the keys for it. They went to Fort Assiniboine and located the red truck, but did not take it because it was parked at a residence with a lot of other vehicles. [ 16 ] Ms. Brisson, Mr. Vader, and Ms.

Campbell drove around in the area of Fort Assiniboine and came across a field where a white truck and a semitrailer were parked. They drove into the field to check this out. The white truck had a tool box and a tank in the box. The white truck was unlocked with keys in the cup holder. The trio decided to take the truck. Ms. Campbell recalled that Mr. Vader was driving the white truck, and she was in it as well, and Ms. Brisson was following in the Ranger.

[ 17 ] They drove to an area where there were some abandoned campers and vehicles, and pulled out the tool box and tank from the back of the white truck, in order to make it look different. [ 18 ] Afterwards, when they were driving in the area of the Athabasca ferry, a police car drove past them. Mr. Vader sped up, but he and Ms. Campbell saw Ms. Brisson stop. As they were driving away from the police car, Mr. Vader said he forgot his backpack in the Ranger. Ms. Campbell did not know what was in the backpack. [ 19 ] After they lost track of Ms. Brisson, Ms. Campbell and Mr.

Vader decided to leave the white truck in some bushes in an effort to evade police. It was evening by this time and they ended up spending the entire night wandering around in the area. Ms. Campbell and Mr. Vader saw police cars coming and knew the truck had been discovered by police. By early the next morning the police cars had left, and Ms. Campbell and Mr. Vader returned to the area where they had left the white truck to find that it was still there. With some considerable effort, with Mr. Vader driving and Ms.

Campbell directing, they managed to get the white truck out of the bushes. [ 20 ] They returned to the town of McKay, where Mr. Vader was living. She dropped off Mr. Vader there, and picked up a friend named Rose. Ms. Campbell and Rose stopped at Ms. Brisson’s house in Blueridge, to pick up Ms. Campbell’s personal belongings. Ms. Brisson’s mother was on the phone, talking to Ms. Brisson who was in police custody and charged with, among other things, possession of the handgun that had been found in the backpack. Ms. Campbell spoke to Ms. Brisson, who asked her to try to raise money for bail, and Ms.

Campbell said she would speak to Mr. Vader about it. [ 21 ] Subsequently Ms. Campbell took the white truck and went to a laundromat, where her presence was reported to police and she was arrested. 3. Common Elements of the Brisson and Campbell Evidence [ 22 ] While there are some differences in these two accounts, for example in relation to whether Mr. Vader was driving, both of these versions are consistent in placing Mr. Vader with Ms. Brisson and Ms. Campbell during the events of June 15, 2010 that eventually led to each of them being arrested.

Their narratives are very similar, and significantly both witnesses have him: 1. present with them in two stolen vehicles, 2. present at the theft of the second vehicle, 3. assist with the attempts to alter the appearance of the second vehicle, and 4. provide crystal meth which the trio all smoked together. From the witnesses’ experience with the drug in the past and on that occasion they confirmed that the drug in question was methamphetamine. [ 23 ] Both these witnesses say Mr. Vader possessed and carried the backpack found by police in the Ranger.

That backpack contained a revolver and ammunition. [ 24 ] The Crown’s submission is that Ms. Brisson and Ms. Campbell’s evidence should be accepted and establishes the elements of the offences charged.

4. The Accomplice ’s Cell Phones [ 25 ] The police seized cell phones from Ms. Brisson and Ms. Campbell on their respective arrests, and photographed text messages sent and received from those phones. Ms. Brisson and Ms. Campbell acknowledged these were messages they had sent or received. This included a message sent by Ms. Campbell to Ms. Brisson, on the morning of June 16 th , when Ms. Brisson was in police custody, asking Ms. Brisson where she was. [ 26 ] There were also two messages to Ms. Brisson from her contact, “Vader”, who she confirmed was the Accused.

The first was sent June 15th at 10:53 a.m., and said “Hey thanks for letting me crash I needed that would you like to have a hoot.” Ms. Brisson recalled getting this message during the morning of June 15 th , before she and the others left her home. Mr. Vader and Ms. Campbell had fallen asleep in her room, and she let them sleep. When they awoke, Mr. Vader texted her. The invitation to have a hoot was an invitation to join them to smoke some methamphetamine. [ 27 ] There is another message on Ms. Brisson’s phone from the same contact, Vader, on June 16 th at 3:55 p.m. Ms.

Brisson did not receive this message as she was in police custody. The message stated: “Hey are you ok or what we had to sleep in the bush last night.” B. Defence Witness Evidence [ 28 ] The Accused presented three witnesses: one expert witness whose testimony I shall refer to later, and two additional witnesses, Donald Bulmer and Wade Teszeri. 1. Donald Bulmer [ 29 ] Donald Bulmer was Mr. Vader’s housemate in June 2010, and was called as an alibi witness. In direct evidence he testified that he believed he saw Mr. Vader in the morning and afternoon of June 15, 2010.

However, when work records were presented to him on cross-examination he acknowledged that he had his dates mixed up and it must have been another day that week that he recalled seeing Mr. Vader. [ 30 ] Counsel for the Accused concedes that no weight should be attached to Mr. Bulmer’s alibi evidence. Counsel for the Accused also submits that Mr. Bulmer’s confusion does not constitute evidence of an attempt to fabricate an alibi, and the failed alibi defence should not be held against the Defence. The Crown does not argue otherwise, and I accept the Defence submission in this regard. Mr.

Bulmer’s evidence is therefore irrelevant to my analysis and conclusions. 2. Wade Teszeri [ 31 ] Mr. Teszeri testified that, on June 15, 2010, he had been quadding in the Sandhills area near Fort Assiniboine. Police evidence established that this is the area where Ms. Brisson was arrested and where the white truck stolen by Ms. Campbell was temporarily abandoned. [ 32 ] Mr. Teszeri recalled returning to his own truck with his 10 year old son and seeing what he thought were three men leaving his truck and going to a white Ford F350 truck.

He later showed police the direction taken by the white truck and helped them locate the truck parked in some bushes. Mr. Teszeri acknowledged that his prime concern when he saw people leaving his truck was to ensure that his 10 year old son, who was very upset, did not get near the people leaving his truck, so he stayed well back and looked on from a distance. The whole event, from when his son first came to tell him that someone was in their truck, until when the white truck departed, took about a minute or a minute and a half. [ 33 ] Mr.

Teszeri was not close enough to be sure whether the people he saw were men or women. His focus was not on the people, but on his son.

C. Other Witnesses [ 34 ] Ms. Brisson’s mother, Mrs. Johnson, confirmed that Ms. Brisson, Ms. Campbell and Mr. Vader, who was known to her, were all at her home on the morning of June 15, 2010 and left together in a dark Ranger truck. Mrs. Johnson also confirmed that Ms. Campbell came to her house in a white truck on June 16, 2010, while Ms. Brisson was on the phone, and that Ms. Brisson and Ms. Campbell spoke on the phone about Ms.

Brisson’s bail. [ 35 ] The description of the field from which the white truck was stolen, and the presence of a semi-trailer truck in that location, is confirmed by the evidence of Daniel Wierenga, who observed and reported to police the theft of the truck. He also confirmed the presence of the keys in the white truck, and that the back of the truck contained a tank and tool box that both Ms. Brisson and Ms. Campbell testified were removed and dumped near some abandoned trailers. [ 36 ] The evidence of police officers who arrested Ms.

Brisson and located the white truck confirmed the description of the location and terrain where the trucks were being driven around, where Ms. Brisson was stopped and then arrested, and where the white truck was left overnight in the bushes. D. Firearms Experts [ 37 ] The revolver seized by police from the backpack found in the back of the Ranger is a .22 caliber Herbert Schmidt revolver [the “Revolver”]. When seized it was inoperable.

It was examined by two firearm experts: • Kara Hind of National Forensic Services, for the Crown; and • Alan Voth of Trigger Forensics, for the Defence. [40] The two experts who examined the revolver agreed that there were two problems that affected the capability of the revolver to discharge a projectile: 1. two screws that serve as the pivot points for the trigger and hammer were missing, 2. the “hand” that rotates the cylinder and ammunition was broken. [41] Ms. Hind, who examined the revolver in the state in which it was seized, additionally observed that the broken “hand” had become jammed in the cylinder.

The result that the cylinder would not rotate. Further, when she disassembled the revolver in order to remove and examine the jammed cylinder, she discovered that one of the screws that attached the two halves of the revolver was cross- threaded and had to be removed. [42] The weapon could not be operated in any way until the broken hand was removed as that jammed the cylinder and prevented loading of a cartridge into the cylinder.

Removal of the broken hand required disassembly of the revolver, including removal of the cross- threaded screw. [43] The experts agreed that optimal repair would require replacement of the two missing screws and the broken hand. Ms. Hind testified these parts were readily available from Internet vendors, and Mr. Voth testified that they were available from a local guns parts

dealer who sells to the general public. The hand would only be available from specialized parts dealers. However, the missing screwscould be replaced with ordinary bolts available from hardware stores and the revolver would still fire. [44] More limited repairs could also allow the revolver to fire. Replacement of the trigger and hammer screws, and removal of thehand would allow a single shot to be fired by squeezing on the trigger; additional shots would require the cylinder be manuallyrepositioned. [45] Ms.

Hind also testified that a cartridge could be loaded into the cylinder after the hand was removed, and then fired by placinga nail punch against the exposed cartridge primer, and striking the punch with an object such as a mallet or hammer. This alternativefiring scheme meant the trigger was not used, but, as Mr. Voth noted, would mean that the barrel of the revolver would have to be heldsecurely in place, for example, in a vice. [46] Even the minimum repair required that the operator disassemble the revolver and remove the broken hand. That step couldonly occur after the stripped screw was removed.

Trigger operation would require replacement trigger and hammer screws, or similarcommonplace part analogues. The experts agreed that various commonplace hardware alternatives could work in that role. [47] Ms. Hind characterized the repair of the revolver as easy, noting that repair manuals are readily accessible via Internet sourcesMr. Voth testified that diagnosis and repair to an even partially operational state would involve skills beyond those of the typical gunowner, and would require some training or research. Research materials would be available on-line. Mr.

Voth noted marks on therevolver that were suggestive of previous unskilled and unsuccessful efforts to repair it, but he could not say when or by whom thosemarks were created. [48] Ms. Hind testified that the Revolver is classified under the Criminal Code as a “restricted firearm”. [49] Ms.

Hind testified that ammunition found in the backpack with the revolver was the correct caliber for use in the revolver.Constable Fisler test fired this ammunition and determined that it worked properly. [50] There was no evidence that the Accused had special skills in relation to the repair of firearms generally or handgunsspecifically. However, his sister testified that he used to be a hunting guide, that their family owned firearms and she had seen theAccused with firearms, and that he repaired tractors, trucks and farm equipment. Mr.

Bulmer, the Accused’s roommate, testified that theAccused was able to effect significant vehicle repairs, for example, to replace a steering column. III. Analysis - Evidence A. R. v. W.(D.) Defence Evidence Analysis [51] As the Accused presented evidence in this trial, my approach to the evidence is governed by the Supreme Court of Canadadecision in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, as subsequently developed in R. v. Sheppard,2002 SCC 26, [2008] 3 S.C.R. 3, R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, R. v. J.H.S., 2008 SCC 30,[2008] 2 S.C.R. 152, and R. vR.E.M., 2008 SCC 51.

Where defence evidence, if believed, would mean the accused is not guilty of one or more offenses, the R. v. W.(D.) approach is applied to that evidence in three steps: 1. If I believe the evidence presented by the accused, and if this evidence is that the accused did not commit the offences charged, Imust find him not guilty. 2. Even if I do not believe this evidence, if it leaves me with a reasonable doubt as to his guilt, I must find him not guilty. R. v. W.(D.) provides in para. 27 that, when considering whether or not the accused’s evidence raises a reasonable doubt I must consider that

evidence in the context of the evidence as a whole. This is a matter of common sense. All evidence must be considered in context, theaccused’s evidence cannot be looked at it in isolation. 3. Even if I find that the Accused’s testimony does not raise a reasonable doubt, if, after considering all of the evidence that I doaccept I am not satisfied beyond a reasonable doubt of his guilt, I must acquit. [52] The evidence of two witnesses is particularly relevant. Donald Bulmer’s initial evidence would mean the Accused could nothave participated in the offenses. As I have previously explained, Mr.

Bulmer acknowledged his exculpatory evidence was incorrect.That evidence is therefore irrelevant. [53] The second defence witness is Wade Teszeri. Mr. Teszeri is certainly a credible witness, though the stress of the situation andthe other circumstances may have affected his perception and memory. Mr. Teszeri’s evidence does not directly relate to whether or notMr. Vader committed the offences charged; but it is relevant in that it is some evidence that there were three people in the white truck. [54] Mr. Teszeri’s evidence does not, on its own, raise a doubt.

He reports there were a number of people in a white truck that was,quite probably, the stolen white truck. Mr. Teszeri could not be certain of the gender, let alone the identity of those persons. Thiswitness’s observations, on their own, are neutral. They neither incriminate or eliminate Mr. Vader as a suspect. [55] Since I generally accept Mr. Teszeri’s evidence and it cannot raise a reasonable doubt on its own I move on to the final part ofthe R. v. W.(D.) procedure. The remaining issue is whether the Crown’s evidence, considered not only in the context of Mr.

Teszeri’sevidence but also in the context of the evidence as a whole, leaves a reasonable doubt as to whether the Accused committed the offencescharged. The incriminating narrative emerges from the testimony of Mr. Vader’s two accomplices. I will now focus on their evidence. B. Accomplice Witness Credibility [56] The Crown’s primary witnesses are alleged accomplices of the Accused. This fact affects how their evidence should beapproached and evaluated. [57] In R. v.

Vetrovec, (SCC), [1982] 1 S.C.R. 811, 136 D.L.R. (3d) 89 [“Vetrovec”], the Supreme Court ofCanada abolished the requirement that the evidence of an accomplice must be corroborated in a material particular that implicates theAccused. The Court held that there was no special rule of evidence for “accomplices.” An accomplice is treated like any other witnesstestifying at a criminal trial, supra at para. 24. As with any other witness, credibility may be the main issue in the trial.

Whether or notcredibility is a significant issue will vary with the facts of the particular case: Vetrovec, supra at para. 21. [58] As explained in Vetrovec, supra at para. 24: To construct a universal rule singling out accomplices, then, is to fasten upon this branch of the law of evidence a blind and emptyformalism.

Rather than attempting to pigeonhole a witness into a category and then recite a ritualistic incantation, the trial judge mightbetter direct his mind to the facts of the case and thoroughly examine all the factors which might impair the worth of a particular witness.If, in his judgment, the credit of the witness is such that the jury should be cautioned, then he may instruct accordingly.

If, on the otherhand, he believes the witness to be trustworthy, then, regardless of whether the witness is technically an "accomplice", no warning isnecessary. [Emphasis added.] [59] Where credibility is in issue, the question arises whether there is independent evidence that bolsters the credibility of anaccomplice. This is what the Supreme Court refers to as the “common sense approach”: Vetrovec, supra, at paras. 25 and 37. [60] The “common sense” approach to independent evidence in Vetrovec is broad and flexible: R. v. Khela, 2009 SCC 4, [2009] 1S.C.R. 104 at para. 76.

Evidence which implicates the accused is not the only sort of evidence that will accredit the witness’ testimony:Vetrovec, supra at para. 31, 36. The judge or jury who is determining the facts of the case is entitled to accept “some other piece of

evidence which tends to convince [them] that [the witness] is telling the truth”: Vetrovec , supra at para. 31 . [61] The Supreme Court of Canada revisited the issue of confirmatory evidence in R. v. Kehler , 2004 SCC 11 , [2004] 1 S.C.R. 328. Justice Fish, speaking for a unanimous court, held at para. 15 that confirmatory evidence need not directly implicate the accused, even where the only disputed issue is whether the accused was a participant in the crimes alleged.

All that is required is that the confirmatory evidence be capable of “restoring the trier’s faith in relevant aspects of the witness’s account.” [62] It my view it is appropriate to look for confirmatory evidence in this case, as the evidence of the alleged accomplices is central to the Crown’s case. I have also had regard to the fact that these witnesses were in June 2010 habitual users of methamphetamine. This is a second reason why I should look for confirmatory evidence before deciding whether their evidence is sufficient to ground a conviction.

While it is my view that confirmatory evidence is important in this case, in assessing the nature and extent of required confirmation, I also have regard to the following facts. 1. Prior Conviction for Wrongdoing [63] The Crown witnesses in this case appear to have little incentive to lie regarding the involvement of the Accused in the charged offences. Both have been convicted and sentenced for offences arising from the events of June 15, 2010. Their statements implicate not only the Accused, but themselves and each other. They do not lay blame on the Accused with respect to their own involvement.

The sentences which they received appear appropriate for the offences which they admitted committing. [64] Both of them had minor prior records. Ms. Brisson pleaded guilty to possession of stolen property of a value of less than $5000 and possession of methamphetamine. She had spent three months in pre-trial custody, and received a suspended sentence and 12 months probation. Ms. Campbell pleaded guilty to possession of stolen property of a value greater than $5000, possession of methamphetamine, failure to appear, and unauthorized use of a credit card.

She, too, received a suspended sentence and 12 months probation. Both Ms. Brisson and Ms. Campbell testified that they were promised nothing by police in return for their testimony. 2. Confirmatory Evidence [65] The evidence in this case comes from not one but two alleged accomplices. Their evidence was consistent in most respects not only in relation to their own and each others’ involvement in the events of June 15, 2010, but also regarding the extent and nature of the Accused’s involvement. There is evidence that Ms. Brisson and Ms.

Campbell spoke to each other on only one occasion after the events of June 15th, and that was on Ms. Brisson’s mother’s telephone on June 16th, where the primary topic of conversation was Ms. Brisson’s bail. The evidence of each of these witnesses provides reciprocal confirmation for the evidence of the other on a large number of points, not only about what happened on June 15, 2010, but on how they came to know Mr. Vader and previous occasions had met and acquired drugs from him. [66] Their evidence is also confirmed by other evidence, particularly: 1. the report of Ms. Brisson’s mother, Mrs. Johnson, 2.

Daniel Wierenga’s description of the white truck, its location, and theft, 3. the Police reports of where and how the white truck was concealed in bushes overnight, 4. the cell phone messages, and

5. Ms. Brisson’s description of her arrest on June 15, 2010 and Ms. Campbell’s description of her arrest on June 16, 2010 are also consistent with the descriptions of the police officers involved. [67] The Supreme Court of Canada has indicated that confirmatory evidence does not need to relate specifically to the disputed involvement of the Accused, as long as relevant aspects of the witness’ testimony are corroborated. In this case there is confirmatory evidence of Mr. Vader’s involvement: the evidence of Mrs. Johnson that she saw him at her house with Ms. Brisson and Ms.

Campbell on the morning of June 15, 2010 and that she saw the three of them leave together in a Ranger truck, and the two texts on Ms. Brisson’s cell phone, one on the morning of June 15th that was received by Ms. Brisson in the circumstances she described, and a second that referred to a night in the bush, consistent with Ms. Campbell’s testimony. 3. Demeanor and Nature of the Witnesses [68] In addition to a substantial amount of confirmatory evidence, I have also had regard to the witnesses’ demeanour while testifying. Both Ms. Brisson and Ms.

Campbell testified that they have left behind their negative lifestyles. Ms. Brisson has been through a lot; she was paralysed in a motor vehicle accident very soon after her release from custody in 2010. Ms. Campbell has become a mother, and has a boyfriend who has helped her turn her life around. [69] Both were matter of fact about their own bad choices, and did not attempt to shift blame for those choices to Mr. Vader or others. They were clear and straightforward witnesses, who did not contradict themselves in any substantial way, with the one exception that Ms.

Brisson had told a different story to police when she was arrested on June 15, 2010. She admitted freely that she lied on that occasion, saying she was still high and ready to say anything to be released. [70] The Defence suggested that Ms. Brisson and Ms. Campbell were not reliable witnesses because their habitual use of methamphetamine may have affected their perception and memory. Ms. Brisson was also taking anti-depressants at the time. Both witnesses acknowledged that their memory for details and particularly for dates may have been affected.

But their memory for the events of June 15, 2010 is fundamentally clear. I consider drug impaired memory a minimal concern as the evidence I have received fundamentally illustrated their relevant memories were fine. Their narratives very largely aligned with each other and all other partial accounts. 4. Inconsistent Evidence [71] That is not to say that there were no points of disagreement, or apparent inconsistencies. There are discrepancies in the evidence of Ms. Brisson and Ms.

Campbell in relation to details including the colour of the Ranger truck (blue or green) and who was driving a specific vehicle at particular times. These are the types of inconsistencies that one would expect in relation to memories of events from almost two years ago. They do not affect my assessment of the credibility or reliability of either Ms. Brisson’s or Ms. Campbell’s evidence. [72] In this context, I must consider whether the evidence of the defence witness, Mr. Teszeri, that he saw three persons get into the white Ford truck raises a doubt as to the credibility or reliability of Ms. Brisson’s and Ms.

Campbell’s accounts. This is the third step of a R. v. W.(D.) approach where the accused’s evidence is evaluated in the context of the case as a whole. The accomplices agree that there were only two persons in the white truck, Mr. Vader and Ms. Campbell. [73] Mr. Teszeri acknowledged that he was some distance from the truck and concerned about his young son, these are factors that could affect his perception or memory. But more importantly, neither Ms. Brisson nor Ms. Campbell were asked about the incident described by Mr. Teszeri, involving a break-in by three persons to another truck.

Neither had an opportunity to indicate whether they could offer any explanation for this. Because of this, and because of the very qualified nature of Mr. Teszeri’s evidence, that evidence does not in my view bring into doubt the evidence given by Ms. Brisson and Ms. Campbell as to the events of June 15, 2010 involving themselves and Mr. Vader. [74] The Defence noted another potential inconsistency with the evidence of Ms. Brisson and Ms. Campbell. Both described stopping at a gas station in or near Fort Assiniboine. Mr. Vader went inside to pay for gas. Ms. Brisson went inside as well, and stole a soda.

[75] Constable Peter Mills, following up on this information provided by Ms. Brisson, went to what he believed to be the gasstation in question, and looked at security video footage for what he believed was the relevant period. He testified he did not see a matchfor Ms. Brisson or the other suspects. [76] This evidence, or more precisely lack of evidence, does not cause me to have a doubt as to the evidence of Ms. Brisson andMs. Campbell.

There was some uncertainty as to the identity of the gas station where the alleged gas purchase and soda theft ccurred.There is also the question of whether the security camera would have captured anyone entering the station. [77] Finally, the Defence entered into evidence the criminal records of Robert Duncan, Ms. Brisson’s friend who brought Mr.Vader to her house, and Morgan Duncan, Ms. Campbell’s boyfriend at the time. While it is clear that these individuals have committedmany offences similar to the offences with which Mr.

Vader is now charged, there is no evidence that they were involved in the eventsof June 15, 2010. Ms. Brisson and Ms. Campbell freely acknowledged that their associates at that time were of a disreputable character.If anything, this simply confirms the need for confirmatory evidence in relation to the evidence of Ms. Brisson and Ms. Campbell, whichI have already considered. IV. Analysis - Offenses Count 1: Possession of Stolen Property Valued at $5000 or Less (Criminal Code, s. 355(b)) [78] This count refers to possession of the Ford Ranger truck. The evidence of the truck’s owner, Mr.

Meyer, establishes beyonddoubt that it was stolen. Ms. Brisson pleaded guilty to possession of this stolen truck. She was driving it when she was arrested, and shehad the registration document for it in her purse. The evidence of Ms. Brisson and Ms. Campbell establishes that Mr. Vader was, at least,a passenger in this truck. I infer that he knew it was stolen. No one had keys to the truck; when Ms. Brisson was stopped by police sheturned it off with a screwdriver. It has not been proven beyond a reasonable doubt that Mr. Vader drove this truck; Ms. Campbell andMrs. Johnson recalled that he did; Ms.

Brisson recalled that he did not. [79] “Possession” is defined in s. 4(3) of the Criminal Code as follows: (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [80] Possession, including constructive or joint possession, requires both knowledge and some measure of control: R. v. Terrence, (SCC), [1983] 1 S.C.R. 357, 147 D.L.R. (3d) 724. The requisite measure of control of a motor vehicle is demonstratedwhere the accused was the driver of the vehicle, or exercised control or authority over it in some other way, for example, by directing thedriver.

However, merely being a passenger in a stolen vehicle, even with knowledge that it was stolen, does not indicate a sufficientdegree of control to justify a conviction for possession. [81] Possession may also be established where a person is a party to an offence under s. 21 of the Criminal Code. Thus in Zanini

v. The Queen, (SCC), [1967] S.C.R. 715, [1968] 2 C.C.C. 1, the “getaway driver” who had formed a common intentionwith others to break and enter a house was properly convicted of possession of house-breaking instruments. The facts warranted theinference that the commission of the offence of possession of house-breaking instruments would be the probable consequence of carryingout the common purpose. Similarly, in R. v.

Steele, 2007 SCC 36, [2007] 3 S.C.R. 3 the accused who formed a common intention tocarry out a break and enter with knowledge that there was a gun involved was party to the offence of use of a firearm, although there wasno evidence that the accused was in physical possession of the weapon. [82] It has not been proven beyond a reasonable doubt that the Accused drove or otherwise exercised authority or control over theFord Ranger. However, it has been proven that he formed a common intention with Ms. Brisson and Ms.

Campbell to steal another truck.The trio went out together to steal a red truck in Fort Assiniboine, and eventually together stole a white Ford truck. Possession of theRanger, which the Accused knew was stolen, was the means by which this common intention was effected. I therefore find that theAccused was a party to the offence of possession of the stolen Ford Ranger.

Counts 2 and 3: Possession of a Firearm Without Being the Holder of a Licence or Certificate of Registration (Criminal Code, s. 91(1)) [83] The Crown filed the affidavit of Shirley Mack, Firearms Officer for the Province of Alberta, who attested that she hadsearched the records of the Canadian Firearms Information System and determined that Travis Vader was issued a licence that expired onJanuary 5, 2007, that allowed him to possess and acquire non-restricted firearms only. The licence did not allow him to possess restrictedfirearms, prohibited firearms or prohibited handguns.

There was no record that the Accused submitted an application to renew hisfirearms licence, and no record of a valid firearms licence for him as of June 16, 2010. [84] Pursuant to s. 117.11 of the Criminal Code, in proceedings under s. 91, the onus in on the accused to prove that he or she isthe holder of a licence or registration certificate. The Accused presented no evidence in this regard. 1. Legal Definition of a “Firearm” [85] If is not disputed that, if operational, the revolver is a “restricted firearm”.

The issue is whether it is a “firearm” as defined inthe Criminal Code, s. 2: “firearm” means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causingserious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adaptedfor use as a firearm. [86] Although the revolver was inoperable, the Crown argues that it comes within the firearm definition because it could havebeen repaired and made capable of firing. [87] Two Supreme Court of Canada decisions provide a foundation for the analysis of whether an inoperable firearm is within theCriminal Code definition.

In R. v. Covin, (SCC), [1983] 1 S.C.R. 725, 3 D.L.R. (4th) 558, two persons attempted to roba bank using a CO2 pistol that was inoperable. The pistol was missing some parts while others were damaged (at 727). Replacement ofthe damaged or missing parts would require 10-15 minutes for an experienced user (at 727). The question for the court was whether thedamaged pistol was a firearm, and the offenders therefore were liable to a longer sentence. [88] Justice Lamer noted that a firearm can be manufactured, with time, from a very wide variety of raw materials.

Therefore, thetime required to transform a collection of materials into a firearm is relevant, and that time ought to be correlated with the purpose of agiven criminal prohibition (at 729): In my view the acceptable amount of adaptation and the time required therefore for something to still remain within the definition isdependent upon the nature of the offence where the definition is involved. The purpose of each

section should be identified and theamount, nature and the time span for adaptation determined so as to support Parliament’s endeavour when enacting that given section.

[Emphasis added.] [89] The prohibition against use of a firearm during an indictable offense was to discourage the use of firearms during an offenceand the resulting potential risk of serious injury or death: at 729.

That meant the relevant time to reach ‘operational status’ would beduring the robbery itself (at 729-730): Therefore whatever is used on the scene of the crime must in my view be proven by the Crown as capable, either at the outset or throughadaptation or assembly, of being loaded, fired and thereby of having the potential of causing serious bodily harm during the commissionof the offence, or during the flight after the commission of that main offence, the hold-up. [Emphasis added.] [90] The time to operational status is that of an ordinary person, or the accused given his or her special skills: at 730.

The Crownhas the onus to prove that a firearm is operational within the relevant period: at 730-731. [91] The second case is R. v. Hasselwander, (SCC), [1993] 2 S.C.R. 398, 62 O.A.C. 285, which addresses themanner in which a court should evaluate a weapon that can be converted to operate in a different manner. Here a person presented afirearm for registration, and it was seized as prohibited and destroyed, per Criminal Code, s. 102(3). The owner was not charged withpossession of a prohibited weapon: Criminal Code, ss. 91-92.

The weapon in question was a mini-Uzi, a kind of submachine gun thatcould be characterized as either a restricted or prohibited firearm. The critical issue was whether the mini-Uzi could fire in asemi-automatic or full-automatic configuration.

When presented for registration the firearm could only operate as a semi-automaticweapon. [92] At trial it was established that the mini-Uzi could be converted to full-automatic fire by removing a plate installed by themanufacturer, replacement of the trigger assembly, which was a readily available part, or even replacement of the trigger assembly witha non-firearm ‘toy’ mechanical duplicate (at 408-409). There was no evidence the owner had any of these replacement parts. [93] An automatic firearm is always a prohibited firearm: Criminal Code, s. 84(1)(“prohibited firearm”)(c).

An automatic firearmis defined by Criminal Code, s. 84(1)(“automatic firearm”): … a firearm that is capable of, or assembled or designed and manufactured with the capability of, discharging projectiles in rapidsuccession during one pressure of the trigger; [94] The mini-Uzi was manufactured to be a semi-automatic weapon. The issue was whether it was “capable” of firing in afull-automatic mode.

Cory J. for the majority concluded the meaning of “capable” should be investigated in a purposive manner, and todetermine whether the prohibition was intended to catch firearms that are “immediately capable” or “readily capable” of full-automaticfire. [95] Justice Cory adopted the R. v. Covin approach that the ‘time to reach operational status’ should flow from the purpose of theprovision that addresses a firearm. An automatic firearm is intended solely to kill and maim large numbers of persons. That is the dangerposed by these weapons, and the prohibition against that kind of weapon should account for that fact.

In light of that purpose, “capable”means “… a future possibility as opposed to just an immediate capacity.” (at 413-414). [96] Future capability requires some degree of ease (at 416): Yet, that potential aspect must be given some reasonable restriction. It is the proper role of the court to define the meaning of "capable"as it is used in the definition of "prohibited weapon" in s. 84(1).

In my view, it should mean capable of conversion to an automaticweapon in a relatively short period of time with relative ease. [Emphasis added.] [97] Cory J. approved of the conclusions in a number of ‘borderline’ firearm possession offenses scenarios (at 417-419):

[98] a disassembled prohibited firearm is a prohibited firearm: R. v. Haines (1981), (NS CA), 45 N.S.R. (2d)428 at 436, 6 W.C.B. 146 (N.S.S.C.(A.D.)); [99] a firearm that can be operated as a prohibited firearm with “minor alterations to its works” and that can be restored “in amatter of minutes” is a prohibited firearm: R. v. Haines, at 436; R. v. Global Armaments Ltd. (1990), 1990 ABCA 117 , 105A.R. 260, 10 W.C.B. (2d) 39 (Alta. C.A.); [100] a firearm that is not operational due to missing parts is not a firearm: R. v.

Haines, at 436; [101] a prohibited firearm that is not operational and is “difficult to repair” is not a firearm: R. v. Haines, at 436; [102] an inoperable prohibited firearm missing a key but readily available and easily added component was not a prohibited firearmfor the purposes of committing an offense using a firearm, but was a prohibited firearm for a prohibited weapon possession offense: R. v.Ferguson, at 262. [103] The firearm scenarios in R. v. Hasselwander indicate that the availability of a replacement

part is a relevant consideration, aswell as whether a repair is technically simple or difficult. [104] There are many examples of court cases applying the R. v. Hasselwander test of repair or conversion within “... a relativelyshort period of time with relative ease ...” which adopt a practical approach to the issue: 1. R. v. Sinclair, 2006 ABQB 438, 400 A.R. 281 - were four pistols sold as deactivated a non-firearms sufficiently easily repairableto be prohibited weapons? One pistol required three hours to remove various welds, bore out parts, and custom-manufacture anuncommon part.

The second pistol was repaired in about 10 minutes by removing welds and using available replacement parts. A thirdpistol was restored to operation in several hours but the result was not fully operational and occasionally malfunctioned. The final pistolincluded replacement parts that allowed its reassembly and operational status with 45 minutes work. All ‘reactivation steps’ wereconducted by highly expert gunsmiths. Bielby J. applied the “relatively short period of time with relative ease” criteria to identify which pistols could be ‘reactivated’ in thatperiod and were therefore firearms.

One pistol that was easily repaired by replacement parts was not a firearm because those spare partswere not readily available. The pistol which required a custom manufactured part was not a firearm. Restoration of another pistol hadrequired many machine tools, unusual techniques, and considerable expertise, therefore the pistol was not a firearm. The pistol providedwith replacement parts still required specialized knowledge and tools to break welds and incorporate the replacement parts; that too wasnot a firearm. 2. R. v. Grant, [2006] O.T.C. 214, 69 W.C.B. (2d) 345 (Ont. Sup. Ct.

J.) - was a person found carrying a concealed shotgun that hadno barrel in possession of a firearm? The defence led evidence that a replacement barrel would be difficult to obtain, as it is not availableas a separate part, and that purchase and delivery of an entire shotgun would take many months. An unproven “black market” source wasnot an adequate alternative. 3. R. v. Brefo, 2010 ONSC 1554 - was a revolver found in the possession of a person operational and therefore a restricted firearm?The revolver had a variety of defects (para. 54) that made it inoperative.

It could be restored in several hours with replacement parts(paras. 55, 59). The replacement parts were not commercially available (paras. 61-65), and therefore this weapon was not a firearm. 4. R. v. Brown, [2005] O.T.C. 930, 67 W.C.B. (2d) 623 (Ont. Sup. Ct. J.) - was a 120 year old and inoperational revolver a firearmbecause it could be fired in an unconventional manner, by striking the hammer with a mallet? The revolver was not a firearm because itsreplacement parts were not available, and the ‘mallet strike’ method was “... too remote to meet the test of adaptability” (para. 6).

5. United States of America v. Waddell (1993), (BC CA), 38 B.C.A.C. 1, 87 C.C.C. (3d) 555 (B.C.C.A.), leavedenied [1993] S.C.C.A. No. 565 - was a broken and modified semi-automatic rifle either a firearm or an automatic firearm? The weaponwas an AR-15, a semi-automatic version of the M-16 assault rifle. It was found with installed replacement parts from a conversion kitthat allowed full-automatic fire. However, one kit part was broken, and the weapon could not fire. A search of Waddell’s residence hadfound M-16 replacement parts that could be installed in 20 minutes to restore full operation.

One offense involved “time and place”, soas located the AR-15 was inoperable and not a firearm (para. 68). The necessary replacement parts were found at a residence 15 minutesaway, so the possession charge criteria were met (paras. 69, 75). 6. R. v. Barnes (1996), (ON CA), 27 O.R. (3d) 626,88 O.A.C. 29 (Ont. C.A.) - were firearms automatic firearmsand should be seized and destroyed? The 15 firearms had been designed to fire at a fully automatic rate, but were modified and only firedin a semi-automatic manner.

Conversion from semi-automatic to automatic fire was possible using handtools, without any other parts,and in 10 minutes each. The firearms were prohibited weapons. 7. Bertrand c. Registrar of Firearms, 2008 QCCQ 7827,EYB 2008-147527 - was a small pistol a prohibited firearm or aninoperable decorative item? The weapon was a small Walther PPK-S pistol (the ‘James Bond’ pistol). Its two key body components werethoroughly fused. The pistol was not a firearm due to the extensive changes and damage to its components.

An attempt to restore thefirearm to operational status would more likely destroy its parts. 35 The object at issue cannot be converted into an operative weapon or readily modifiable unless considerable efforts and means areinvested, which the vast majority of individuals cannot do. [105] In

summary, R. v. Hasselwander and R. v. Covin indicate a three-step process, a court: 1. identifies the purpose of a particular Criminal Code prohibition on use or possession of a firearm or other weapon; 2. evaluates the relevant time and degree of difficulty for repair or conversion of a firearm, for example:

a) for use of a firearm in the commission of an offence, the firearm must be capable of repair or conversion during the commissionof the offence, and

b) for a possession offence, the firearm must be capable of repair or conversion in “a relatively short period of time with relativeease”; 3. determines whether either:

a) an ordinary person could repair or convert the firearm during that time, or

b) the accused could make operable or convert the firearm during that time. 2. Possession of the Revolver [106] I find that Mr. Vader was in possession of the Revolver and ammunition found in a backpack in the Ranger following Ms.Brisson’s arrest. I accept Ms. Brisson’s evidence that Mr. Vader placed the backpack in the back of the Ranger, and Ms. Campbell’sevidence that he admitted having left his backpack in the Ranger. I also accept Ms. Brisson’s evidence that Mr. Vader had removed therevolver from the backpack while he was at her house, and later replaced it. Clearly he was aware of the contents of the backpack and

had control over it. [107] The Defence noted that men’s clothing found in the backpack was sized “medium”. The Accused’s sister testified that he was over six feet tall and she believed he wore size “large”. The Accused’s sister has not lived with him for many years. While he is tall, the Accused does not appear to be a particularly large man. Clothing sizes of course vary depending on the item of clothing involved. This evidence as to the Accused’s supposed clothing size does not raise a doubt in my mind regarding the evidence of Ms. Brisson and Ms. Campbell that the backpack belonged to him.

There was nothing to connect either of these witnesses to the backpack; Mr. Vader was the only male and the only other person present during these events according to the evidence, and there was evidence from each of the witnesses directly connecting Mr. Vader to the backpack. 3. Is the Revolver a Working Restricted Firearm? [108] The remaining issue is whether the Revolver is a restricted firearm given its inoperable state when seized.

This is a possession offence, in which the purpose of the offence is to prevent the continuing danger posed by a weapon which is capable of causing serious bodily harm not only immediately, but also as a future possibility. Thus, the R. v.

Hasselwander test applies, and the Revolver is a restricted firearm if it was capable of repair to an operable state within “a relatively short period of time with relative ease.” [109] The relevant factors are: 1. the ease with which the necessary parts can be obtained, and 2. the technical ability and resources of the Accused to make the repairs. [110] The evidence establishes that replacement gun parts could be obtained on-line or from a local source.

Alternatively, the Revolver could be made operable using ordinary bolts found at a hardware store as replacement for the hammer and trigger screws. [111] The issue then is whether the Accused could make the Revolver operational. The experts identified a number of ‘operational’ states. Ms. Hind suggested that the Revolver could be fired in an unconventional manner, using a nail punch and a mallet. I agree with the decision in R. v.

Brown , at para. 6, that this method to fire the Revolver is “... too remote to meet the test of adaptability”. [112] The first step in an attempt to repair the revolver would be to remove the cross-threaded screw so that the revolver could be disassembled.

The tool used for that step is commonplace, and I am satisfied that a mechanically minded person like the Accused could make that preliminary step in the repair. [113] What remains is then to disassemble the revolver, observe that the broken hand was causing the cylinder to jam, remove the hand, then reassemble the revolver and replace the hammer and trigger screws. The experts agreed that the fact the trigger and hammer screws were missing was obvious from an external examination of the revolver. I am satisfied that a mechanically minded person like the Accused could replace those parts.

The fact the revolver could operate simply by removing the broken hand does not necessarily seem obvious, however that fact might be established through some degree of trial and error. Given the Accused’s experience as a mechanic, I am satisfied that he could effect this repair with relative ease. [114] I am mindful that Mr. Voth suggested the expertise to diagnose and repair the revolver would exceed that of an average gun owner. However, I am satisfied that the Accused’s mechanical aptitude exceeds that of the average gun owner. Ms.

Hind characterized the repair as easy, and in my view it could be accomplished by someone with the Accused’s skills with relative ease. [115] As to the time it would take to repair the revolver, Mr. Voth testified that it would take a couple of hours for a specialist to bring it into ideal operating condition, and less time to make it capable of firing ammunition. A non-specialist would presumably require some additional time, but I infer from the evidence that it would be a matter of hours once parts had been obtained.

In the context of the continuing offence of possession, this is, in my view, a relatively short period of time.

[116] I find that the elements of Counts 2 and 3 have been proven beyond a reasonable doubt. Counts 4 and 5: Transporting a Firearm and Ammunition in a Careless Manner (Criminal Code, s. 86(1)) [117] The Crown has invited dismissal of Count 4, and seeks a conviction on Count 5, transporting ammunition in a careless manner.I have concluded that Mr. Vader was in possession of the backpack and its contents. The backpack was clearly ‘transported’ during June15-16, 2008. [118] Under R. v.

Finlay, (SCC), [1993] 3 S.C.R. 103, 105 D.L.R. (4th) 699, careless storage requires “a markeddeparture from the standard of care of a reasonable person in the circumstances” (p. 114). The standard is also phrased as whether“reasonable precautions were taken to discharge the duty of care in the circumstances” (p. 117). [119] The ammunition in this case was transported in a backpack in the back of an open bed truck. There is no evidence that it wasleft unattended in the truck.

The Crown called no expert evidence as to the standard of care regarding the transportation of ammunitionand presented no case law to the effect that this form of transport is a marked departure from the standard of care. [120] In R. v.

Velez-Lau, 2011 ONSC 4805, at para. 7, an allegation of careless storage of ammunition was rejected where someammunition was stored loose in an unsecured container and the Crown advanced no expert evidence on ammunition storage. [121] In the absence of expert evidence, the Crown has not proven beyond a reasonable doubt that transporting ammunition in abackpack in the back of an open bed truck is a marked departure from the standard of care of a reasonable gun owner.

Count 6: Possession of Ammunition Without Being the Holder of a Licence (Criminal Code, s. 91(1)) [122] I have already found that the Accused was in possession of the backpack and its contents, including the ammunition. Theammunition was tested and proved to be working ammunition within the Criminal Code definition: “a cartridge containing a projectiledesigned to be discharged from a firearm”. [123] However, s. 91(1) does not prohibit the possession of ammunition without a licence.

Section 91(2) prohibits the possession ofprohibited ammunition without a licence, but there was not evidence that the ammunition in the backpack was prohibited ammunition. [124] The Crown has not proven this offence beyond a reasonable doubt. Counts 7 and 8: Breach of Recognizance by Breaching the Peace and by Possessing a Firearm and Ammunition (Criminal Code, s.145(3)) [125] These counts refer to recognizances given by the Accused on September 17, 2009 and January 28, 2010, certified copies ofwhich were entered into evidence at trial and shown by the endorsements thereon to be in effect on June 15, 2010.

Both required theAccused to keep the peace and be of good behaviour. The September 2009 recognizance also prohibited him from possessing anyweapon, firearm or ammunition. [126] The Accused possessed a firearm and ammunition, and committed a number of offences. The Crown has proven the elements ofthese offences beyond a reasonable doubt.

Counts 9 and 10: Theft and Possession of a Stolen Motor Vehicle Valued at ver $5000 (Criminal Code, s. 334(

a) and 355(a)) [127] These charges relate to the white Ford F350 truck. The evidence of Mr. Wierenga establishes beyond doubt that it was stolen.Ms. Campbell pleaded guilty to possession of this stolen truck. There is a conflict in the evidence as to who drove the truck away fromthe field: Ms. Brisson recalled that Ms. Campbell did; Ms. Campbell recalled that Mr. Vader did. However, both accomplices describedMr. Vader’s involvement in removing items from the back of the truck so that it would be less noticeable to police. Ms. Campbell alsodescribed how Mr.

Vader with great difficulty drove the truck out of the bushes on the morning of June 16, 2010. The relativelyinaccessible location of the truck was attested to by police who saw it the night before. I am satisfied that Mr. Vader did drive the whitetruck at least when getting it out of the bush. [128] The truck was not proven at trial to have a value over $5000; Mr. Wierenga was not sure of its value. Thus the offences underss. 334(

a) and 355(

a) have not been proven; however the offences of theft and possession of a motor vehicle valued at $5000 under ss.334(

b) and 355(

b) are included offences. [129] The Crown has proven beyond a reasonable doubt that Mr. Vader was a party to the offence of theft of a motor vehicle of avalue of $5000 or less and was in possession of a stolen motor vehicle of a value of $5000 or less. The conviction on the latter offence isstayed pursuant to the principle in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, 44 D.L.R. (3d) 351.

Count 11: Possession of an Unloaded Restricted Firearm Together with Readily Accessible Ammunition that is Capable of BeingDischarged in the Firearm (Criminal Code, s. 95(1)) [130] Section 95(1) has two relevant components: a firearm, and ammunition capable of being discharged in it. The Revolver and theammunition in the backpack were compatible. The Revolver was unloaded when found. However, to be discharged in the Revolver, theammunition would have to be loaded into it.

Thus in my view s. 95 implicitly requires that the firearm is loadable, or can be madeloadable. [131] The Revolver as found is potentially a firearm as it may be repaired. However, the issue of time to bring the firearm intoloadable and operable condition must be considered in relation to the purpose of s. 95: R. v. Hasselwander and R. v. Covin. [132] The purpose of s. 95 has been commented on in recent Ontario cases. In R. v. Ferrigon, [2007] O.J. No. 1883 at para. 25 (QL), (Ont. Sup. Ct. J.), Molloy J. describes the immediate threat posed by loaded restricted and prohibited firearms: 25 Guns are dangerous.

Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person wholoads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerousperson. Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shootanother human being with it. Otherwise there would be no need to have loaded it. That person is dangerous.

He is dangerous to thosewith whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of hiscommunity; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets.

And equallyimportantly, he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled - a wayof life that respects the rule of law to ensure the peace and safety of those who live here. [Emphasis added.] [133] This passage and conclusion has been cited with approval in subsequent cases including R. v. Reid, 2009 ONCJ 582 at para. 22;R. v. Bacon, 2010 BCPC 325 at para. 75; R. v. Smickle, 2012 ONSC 602 at 51; R. v. Nur, 2011 ONSC 4874 at para. 70, 275 C.C.C.(3d) 330. [134] Similarly, in R. v.

Frohock, 2008 BCSC 735, 77 W.C.B. (2d) 728, affirmed 2009 BCCA 227, 270 B.C.A.C. 294 Arnold-BaileyJ. stressed the immediate threat posed by a loaded firearm to other persons and law enforcement personnel. [135] The Alberta Court of Appeal in R. v. Chin, 2009 ABCA 226 at para. 12, 457 A.R. 233 also characterizes a loaded firearm as an

imminent threat: ... Keeping it loaded, or with ammunition nearby, means that it is to be used for more than intimidation . Simply put, carrying a loaded restricted or prohibited firearm is an extremely dangerous act for which there is absolutely no justification. [Emphasis added.] [136] As the prohibition of possession of a loaded or loadable firearm is intended to reduce the risk of immediate use of a firearm, the time required to bring the firearm into loadable and operable condition must be short. This conclusion is also a logical consequence of the requirement that the ammunition be “readily accessible”.

The firearm must be loadable and operable in the situation in which the ammunition is “readily accessible”. [137] There is little question that the Accused could not repair and load the Revolver in a short period so that the weapon was an immediate risk. Both experts testified that the Revolver could not be loaded or operated in any way until it was disassembled and the broken hand was removed. Without those steps the cylinder could not be accessed and a cartridge added. [138] Both experts agree that the stripped screw required mechanical assistance to remove. Ms. Hind used a “Dremel” power tool for that task.

The Accused could not disassemble the Revolver and start an effort to restore its function without ready access to a tool with that kind of capacity. There was no such tool available with the Revolver when it was seized. Bringing the Revolver to a state in which the ammunition could not only be loaded but also discharged would also require replacement hammer and trigger screws or bolts as a substitute.

No replacement parts were found with the Revolver and ammunition. [139] I conclude that the Crown has not proven that the Revolver could be rendered an operable firearm during the relevant Criminal Code , s. 95(1) period, nor was it ‘loadable’, an implicit requirement for a s. 95(1) conviction where a person is found with an unloaded restricted weapon and compatible ammunition.

Count 12 : Traffic in Methamphetamine or a Substance Held out to be Methamphetamine ( Controlled Drugs and Substances Act , s. 5(1)) [140] I am satisfied beyond a reasonable doubt that the Accused gave a substance represented or held out by him to be methamphetamine to Ms. Brisson and Ms. Campbell, when he brought it to Ms. Brisson’s home and the three of them smoked together. Methamphetamine is a

Schedule III substance under the Controlled Drugs and Substances Act . The definition of “traffic” includes giving a substance: s. 2(1). [141] The Crown has proven the elements of this offence. Count 13 : Breach of Recognizance by Driving ( Criminal Code , s. 145(3)) [142] The September 17, 2009 recognizance referred to in relation to Counts 7 and 8 prohibited the Accused from “sitting behind the steering wheel of any motor vehicle in Alberta”. It has been proven that the Accused drove the white Ford truck, at least on the morning of June 16, 2010.

While the indictment refers to June 15, 2010, this minor inconsistency in dates is not material and not prejudicial. [143] The Crown has proven the elements of this offence. Count 14 : Theft of Cell Phone ( Criminal Code , s. 334(b)) [144] I dismiss this charge pursuant to the Crown’s invitation.

V. Conclusion [145] I find the Accused guilty of: 1. Count 1: possession of stolen property, the Ford Ranger truck, valued at $5000 or less: Criminal Code , s. 355(b), 2. Counts 2 and 3: unlawful possession of a firearm, the Revolver: Criminal Code , s. 91(1), 3. Counts 7 and 8: breach of recognizance by breaching the peace and possession of a firearm, the Revolver, and ammunition: Criminal Code , s. 145(3), 4.

Count 9: theft of a stolen motor vehicle valued at over $5000, the white Ford truck: Criminal Code , ss. 334(a), 5 Count 12: trafficking in methamphetamine, a controlled substance: Controlled Drugs and Substances Act , s. 5(1), 6. Count 13: breach of recognizance by driving: Criminal Code , s. 145(3). [146] My conclusion is that the Crown has not proven beyond a reasonable doubt the charges that Mr. Vader: 1. Counts 4 and 5: transported a firearm and ammunition in a careless manner, 2. Count 6: unlawful possession of ammunition, 3.

Count 11: possession of a restricted firearm with readily accessible ammunition, 4. Count 14: theft of a cell phone. [147] Counts 10, possession of a stolen motor vehicle, is stayed. Heard on the 2 nd - 5 th days of April, 2012. Dated at the City of Edmonton, Alberta this 1st day of May, 2012.

J.M. Ross J.C.Q.B.A. Appearances: Michelle C. Doyle Alberta Justice Edmonton rural and Regional Response Office for the Crown Daniel Mol Mol Advocates, Barristers and Solicitors for the Accused