R v Ziegler, 2016 ABQB 150

Court of Queen ’ s Bench of Alberta Citation: R v Ziegler, 2016 ABQB 150 Date: 20160317 Docket: 121106843Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Kyle Valentine Ziegler Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ 1 ] Shortly before 10:00 a.m. on September 14, 2012, Kyle Ziegler shot Devin Schafers between the eyes. [ 2 ] The weapon was a Heckler & Koch flare gun that Mr. Ziegler had modified to fire a bullet. Mr.

Ziegler had fabricated the bullet from a primed .38 calibre bullet casing, some gunpowder, and the sawed-off tip of a rifle bullet. [ 3 ] Astonishingly, Mr. Schafers was not seriously hurt. The bullet cut his skin and caused some bleeding, his face was sprayed with metallic fragments from the flare gun’s discharge, and some fragments entered his left eye. The facial wound healed, and difficulties with his eye resolved within a few weeks. [ 4 ] The shooting occurred in a house in Edmonton owned by Mr. Schafers. Mr. Ziegler was a tenant in Mr. Schafers’ home. Mr. Ziegler had an upstairs room and Mr.

Schafers had a downstairs room. [ 5 ] It was not disputed that prior to September 14, 2012, Mr. Ziegler modified the flare gun and fabricated the bullet. On September 14, 2012, Mr. Ziegler went downstairs and walked to the closed door of Mr. Schafers’ room. When Mr. Schafers opened his door and began to come out of his room, he was shot. [ 6 ] Mr. Schafers fell back into his room. When he realized that he was still alive, he charged his assailant, who had remained outside Mr. Schafers’ room. Only after Mr. Schafers took his assailant to the ground did he see that it was Mr. Ziegler. Mr. Schafers released Mr.

Ziegler. Mr. Ziegler called 911 and was arrested shortly thereafter. [ 7 ] Mr. Ziegler faces a 5-count Indictment. The most serious charge is attempted murder contrary to s. 239 (

a) of the Criminal Code . The other charges are pointing a firearm contrary to s. 87(1) ; possession of a weapon for a purpose dangerous to the public peace

contrary to s. 88(1) ; storing ammunition in a careless manner contrary to s. 86(1) ; and possession of prohibited ammunition without a licence contrary to s. 91(2) of the Criminal Code . [ 8 ] I will review the facts that are not in dispute, consider the charges and elements of the charges other than attempted murder, then consider whether the Crown has established beyond a reasonable doubt whether Mr. Ziegler is guilty of attempted murder. At this point I will also consider the remaining elements of the charges other than attempted murder. Table of Contents I. Facts – Not In Dispute . 5 II. Other Charges . 6 A.

Count 5: Criminal Code s. 91(2) 6 1. Possession . 7 2. Prohibited or Restricted Weapon, Device, or Ammunition . 7 3. Verdict 9 B. Count 4: Criminal Code s. 86(1) 9 1. Stored Ammunition . 9 2. Marked Departure from the Standard of Care . 9 3. Verdict 10 C. Count 3: Criminal Code s. 88(1) 11 1. Private residence and the Public Peace . 11 2. “Possession” of the Flare Gun . 11 3. Whether the Flare Gun was a “Weapon” . 11 (

a) To be classified as a “firearm,” must a device not only satisfy the terms of the definition of “firearm” but also the design or intention criteria of the definition of “weapon”? . 13 (

b) Was the flare gun a “firearm” because it met the criteria in the first clause of the definition of “firearm”? . 15 (

c) Was the flare gun a “firearm” because it was a device that “can be adapted for use as a firearm”? 17 4. Defensive Purposes and Danger to the Public Peace . 19 D. Count 2: Criminal Code s. 87(1) 20 1. Firearm .. 20 2. Lawful Excuse . 20 3. Pointing . 21 III. Attempted Murder and Related Offence Elements . 21 A. Substantive Law .. 21 1. Attempted Murder, Criminal Code s. 239(a) 21 (

a) Statutory Provisions . 22 (

c) Actus Reus . 23 2. Self-Defence . 24 (

a) Prospective or Retrospective Application of Self-Defence Provisions . 24 (

b) Self-Defence Provisions in 2012 . 24 (

c) Current Self-Defence Provisions . 25 (

d) Common Issues . 26

3. Proof Beyond a Reasonable Doubt 27 B. Theories of the Crown and Defence . 29 1. Theory of the Crown . 29 2. Theory of the Defence . 29 C. Witnesses and Sources Of Evidence . 30 1. Police Witnesses and the Interview .. 30 2. The 911 call 31 (

a) Voir Dire . 31 (

b) Elements of the 911 call 35 3. Ross Shuliak . 36 4. Devin Schafers and Kyle Ziegler 38 5. Devin Schafers – Evidence of Good Character 40 D. The Evidence: What Occurred? . 42 1. Assessing Credibility . 43 (

a) Principles . 43 (

b) Credibility of the Witnesses . 45 (

c) Weight of Evidence . 46 2. Pre-shooting Events . 47 (

a) The Kitchen Table Conversation . 47 (

b) The Job . 47 (

c) The Flare Gun Purchase . 48 (

d) The Modification of the Flare Gun and the Fabrication of the Round . 49 (

e) Nemo . 52 (

f) The “Devin watch” and the Front Yard Incident 53 (

g) The Missing Rent Money . 54 (

h) The Kitten . 55 3. The Shooting . 56 (

a) Early Morning Events . 56 (

b) First Trip Downstairs . 57 (

c) Second Trip Downstairs . 57 (

d) Third Trip Downstairs – The Shooting . 59 4. Post-shooting Events . 63 (

a) The Conversation . 63 (

b) The 911 Call 64 (

c) The Ninja Sword . 64 5. Conclusions Respecting the Unfolding of Events . 65 E. The Evidence: What Did Mr. Ziegler Intend? . 66 1. The Admission . 66

2. Bains and the Common Sense Inference . 67 (

a) The “Common Sense Inference” . 67 (

b) The “Common Sense Inference” and Intention to Kill 69 3. Context 69 (

a) Condition or Alternate Intention . 69 (

b) Pre-shooting Events . 70 (

c) Post-shooting Events . 71 (

d) The Flare Gun and the Bullet 72 F. The Offences . 74 1. Acquittals . 74 2. Self-Defence . 74 3. Pointing a Firearm without Lawful Excuse, Count 2 . 75 4. Possession of a Firearm for Purposes Dangerous to the Public Peace – Count 3 . 75 5. Attempted Murder of Devin Schafers – Count 1 . 76 G. Further Issues . 77 I. Facts – Not In Dispute [ 9 ] The following facts are relevant to the counts faced by Mr. Ziegler. These facts were not in dispute and were established on the evidence. 1. The conduct forming the basis for the counts faced by Mr. Ziegler took place on September 14, 2012 in a bungalow owned by Mr.

Schafers in North-East Edmonton, Alberta. 2. Mr. Schafers’ then girlfriend and now spouse, Fernanda, was in Mexico. She and Mr. Schafers communicated by telephone and social media. 3. Mr. Schafers was a self-employed home renovator. His home was mortgaged. To help make ends meet, Mr. Schafers rented out three bedrooms on the main floor of the house. Mr. Schafers lived in the bedroom in the basement. 4. From the backdoor of the house, a short flight of steps led up to the main floor and a longer flight of steps led down to the basement. 5. Mr. Schafers had been working very hard.

He had suffered an economic set-back when a former friend ran up several thousand dollars on Mr. Schafers’ credit card. Mr. Schafers worked about 16 hours per day. 6. The home was pet-friendly. Renters could live with their pets. Mr. Schafers himself had a macaw and a cat. 7. In early April 2012, Mr. Ziegler responded to an offer to rent ad placed by Mr. Schafers on Kijiji. He rented an upstairs room from Mr. Schafers. Mr. Ziegler moved in with his two cats. 8. During the time in question, there were two tenants in addition to Mr. Ziegler.

Ross Shuliak became a tenant, along with his yellow Labrador retriever, a little later in April. Jordan Hill was the third tenant. Mr. Hill was attending classes at all material times and had no or no significant involvement with any of the events at issue. 9. Mr. Shuliak has one arm. He is robust, active, and capable. 10. Near the end of July 2012, Mr. Ziegler purchased a Heckler & Koch flare gun. He then modified the flare gun to fire .38 calibre rounds. Mr. Ziegler also acquired some .38 caliber casings with primers installed, some rifle bullets, and an AK-47 round. Mr.

Ziegler fashioned a bullet from a primed .38 caliber casing and a sawed-off head of a rifle bullet, using some gunpowder from the AK-47 round. 11. Mr. Ziegler had not been issued any licence for any firearm or ammunition. 12. On September 14, 2012, Mr. Schafers got home from work at about 4:00 a.m. Mr. Ziegler got up at about the same time. At around 8:30 a.m., Mr. Shuliak and Mr. Ziegler had a brief conversation. Mr. Schafers awoke at about 9:00 a.m. He remained in his room on his bed, paying bills. His bedroom door was shut. Sometime after 9:00 a.m., Mr.

Ziegler took the flare gun loaded with a round and went downstairs to Mr. Schafers’ room. At about 9:30 a.m., Mr. Schafers got up to retrieve a bill from a desk outside his bedroom. He opened his door. Mr. Ziegler was in front of him. The flare gun discharged and Mr. Schafers was shot between the eyes.

13. After Mr. Schafers recovered from the shock of being shot, he tackled Mr. Ziegler, took the flare gun from him, then tossed it aside. 14. In answer to his counsel’s question, “Who shot Devin Schafers; do you know?” Mr. Ziegler replied, “I did” (Transcript, TrialExcerpt, 18 and 19 January 2016, Testimony of Kyle Ziegler (TZ) 2.5-7). I have understood this as an admission that at the time that theflare gun discharged, it was being held by Mr. Ziegler alone. There was, then, no issue of identity. I did not consider Mr.

Ziegler’sdeclaration to otherwise be an admission respecting the actus reus or mens rea of any charged offence. 15. After the immediate aftermath of the shooting had resolved, Mr. Ziegler telephoned 911. He had retrieved the flare gun. 16. Mr. Ziegler was subsequently arrested without incident. 17. Following arrest, on scene, Mr. Ziegler was examined by EMS personnel. 18. Mr. Schafers was not seriously injured by the discharge of the projectile from the flare gun. He was in hospital only for two to threehours. Mr. Schafers received a small circular laceration on the bridge of his nose between his eyes.

He received no stitches. The woundwas bandaged. Small metallic particles were extracted from his left eye. Mr. Schafers could not see out of that eye for about 16 days, buthis vision cleared up within about 3 weeks. The medical records also noted that Mr. Schafers had small metal shrapnel fragments in theskin of his forehead (around the laceration and left eye). 19. Mr. Ziegler was diabetic. He required insulin injections. A more precise account of his health was not in evidence. 20. Mr. Ziegler was receiving AISH payments in at least July 2012. 21. There was no evidence that Mr.

Ziegler was at any time intoxicated by alcohol or any drug or drugs and no contention that Mr.Ziegler suffered from a mental disorder. 22. The flare gun was seized at the scene. The projectile that struck Mr. Schafers was found on the carpet by the door to his room. Continuity of exhibits was not contested. II. Other Charges [10] Numerous issues relating to the counts other than the attempted murder count involve the

interpretation and application ofstatute to facts that are not in dispute. I’ll address these issues in this part of my reasons. A. Count 5: Criminal Code s. 91(2) [11] Count 5 of the Indictment states that Mr. Ziegler stands charged that he, on or about the 14th day of September, 2012, at or near Edmonton, Alberta, did have in his possession a prohibited weapon (orrestricted weapon or a prohibited device or prohibited ammunition), to wit: various 22 caliber and 7.62 caliber ammunition without beingthe holder of a licence under which he may possess it, contrary to section 91(2) of the Criminal Code of Canada. 1.

Possession [12] Count 5 specifies that the items in Mr. Ziegler’s possession were “various 22 caliber and 7.62 caliber ammunition.” There wassome evidence that .22 caliber bullets were found in Mr. Ziegler’s room. These were kept in an “M&M” cylindrical candy container onthe desk in his room. He also testified to having had custody of the 7.62 caliber ammunition. This was a single AK-47 bullet. Mr. Zieglerused gunpowder from this bullet to fashion in own bullet. Mr. Ziegler had no licence authorizing him to possess these bullets. [13] I find beyond a reasonable doubt that Mr.

Ziegler was in possession of the bullets found in his room within the meaning of ss.4(3)(a)(

i) and 91(2) of the Criminal Code. There was a suggestion, which I will return to below, that some of the bullets were owned byMr. Shuliak and not by Mr. Ziegler. Regardless, the bullets were located in Mr. Ziegler’s private room and Mr. Ziegler consented toretaining them. There was no evidence that he objected to their presence or ever sought to return the bullets to Mr. Shuliak. Mr. Zieglerexercised control over his room. Mr. Ziegler knew that the objects were in his room and that the objects were .22 caliber bullets and anAK-47 round. Mr.

Ziegler’s possession of the bullets is established based on his knowledge of the existence and nature of the bullets, hiscontrol over their presence in his room, and his consent to their presence in his room: R v Chambers, (ON CA), 1985CarswellOnt 1388, [1985] OJ No 143, 20 CCC (3d) 440, Martin JA at para 14 (CarswellOnt); R v Chalk, 2007 ONCA 815 at paras 17and 18; R v Mohamad, , 69 OR (3d) 481, [2004] OJ No 279 (CA) at paras 60 – 63. [14] Nonetheless, the s. 91(2) offence is not established. 2.

Prohibited or Restricted Weapon, Device, or Ammunition [15] Subsection 91(2) refers to possession of a “prohibited weapon,” a “restricted weapon,” a “prohibited device” (other than areplica firearm), or any “prohibited ammunition.” Each of these terms is defined in s. 84 of the Criminal Code: “prohibited ammunition” means ammunition, or a projectile of any kind, that is prescribed to be prohibited ammunition;

“prohibited device” means (

a) any component or part of a weapon, or any accessory for use with a weapon, that is prescribed to be a prohibited device, (

b) a handgun barrel that is equal to or less than 105 mm in length, but does not include any such handgun barrel that is prescribed, where the handgun barrel is for use in international sporting competitions governed by the rules of the International Shooting Union, (

c) a device or contrivance designed or intended to muffle or stop the sound or report of a firearm, (

d) a cartridge magazine that is prescribed to be a prohibited device, or (

e) a replica firearm; “prohibited weapon” means (

a) a knife that has a blade that opens automatically by gravity or centrifugal force or by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, or (

b) any weapon, other than a firearm, that is prescribed to be a prohibited weapon; “restricted weapon” means any weapon, other than a firearm, that is prescribed to be a restricted weapon. The “prescription” referred to in these

definitions occurs under the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non- Restricted , SOR/98-462 (the Regulations). [ 16 ] Ammunition in .22 and 7.62 calibers, without more, does not fall within the

definitions of (a) “prohibited weapon,” including prescribed prohibited weapons under s. 4 and

Part 3 of the

Schedule to the Regulations ; (b) “restricted weapon,” as the Regulations do not contain a

Schedule prescribing weapons other than restricted firearms in

Part 2 of the

Schedule to the Regulations; (c) “prohibited device,” including prescribed prohibited devices under s. 5 and

Part 4 of the

Schedule to the Regulations ; or (d) “prohibited ammunition,” under s. 6 and

Part 5 of the

Schedule to the Regulations .

Part 5 of the

Schedule to the Regulations refers to 1 Any cartridge that is capable of being discharged from a commonly available semi-automatic handgun or revolver and that is manufactured or assembled with a projectile that is designed, manufactured or altered so as to be capable of penetrating body armour, including KTW, THV and 5.7 x 28 mm P-90 cartridges. 2 Any projectile that is designed, manufactured or altered to ignite on impact, where the projectile is designed for use in or in conjunction with a cartridge and does not exceed 15 mm in diameter. 3 Any projectile that is designed, manufactured or altered so as to explode on impact, where the projectile is designed for use in or in conjunction with a cartridge and does not exceed 15 mm in diameter. 4 Any cartridge that is capable of being discharged from a shotgun and that contains projectiles known as “fléchettes” or any similar projectiles. [ 17 ] While the ammunition in the possession of Mr.

Ziegler may have been “[cartridges] ... capable of being discharged from a commonly available semi-automatic handgun or revolver,” there was no evidence that any of the ammunition was capable of penetrating body armour, designed to ignite on impact, or designed to explode on impact. The ammunition in Mr. Ziegler’s possession was not established to be capable of being discharged from a shotgun and did not contain any projectiles that were or were similar to “fléchettes”. 3. Verdict [ 18 ] Hence, Mr. Ziegler’s possession of the ammunition did not constitute an offence under s. 91(2) of the Criminal Code .

Subsection 91(2) does not prohibit simple possession of non-prohibited ammunition without a licence. Mr. Ziegler is therefore acquitted of the offence alleged in Count 5 of the Indictment. B. Count 4: Criminal Code s. 86(1) [ 19 ] Count 4 of the Indictment states that Mr.

Ziegler stands charged that he, on or about the 14 th day of September, 2012, at or near Edmonton, Alberta, did, without lawful excuse, use (carry, handle, ship, transport or store) a firearm (or prohibited weapon, restricted weapon, prohibited device, ammunition or prohibited ammunition), to wit: various 22 caliber and 7.62 caliber ammunition in a careless manner, contrary to section 86(1) of the Criminal Code of Canada. [ 20 ] This count specifies that the “careless use” related, again, to the ammunition found in Mr. Ziegler’s room.

The Crown was bound by this specification of the means by which the s. 86(1) offence is alleged to have been committed. The Crown could not have asserted and did not assert that this count could apply to Mr. Ziegler’s use of the flare gun as a firearm or to the storage of the flare gun.

1. Stored Ammunition [21] I find that the ammunition was “stored” in Mr. Ziegler’s room. There was no contrary contention. [22] Unlike the s. 91(2) offence, this offence refers to conduct involving “ammunition” simpliciter. “Ammunition” is defined in s.84(1) as follows: “ammunition” means a cartridge containing a projectile designed to be discharged from a firearm and, without restricting the generalityof the foregoing, includes a caseless cartridge and a shot shell. The .22 caliber ammunition found in Mr. Ziegler’s room was “ammunition” within the meaning of this term in ss. 84(1) and 86(1).

BySeptember 14, 2012, the AK-47 round had been disassembled and gunpowder had been removed from it. I find that this round no longermet the definition of “ammunition” on the date alleged. The date on which Mr. Ziegler acquired this round and the date it wasdisassembled were not in evidence, save that the disassembly had occurred sometime before September 14. 2.

Marked Departure from the Standard of Care [23] According to Justice Charron in R v Gunning, [2005] 1 SCR 627, 2005 SCC 27 at para 21, The gravamen of the [s. 86(1)] offence is conduct that constitutes a marked departure from the standard of care of a reasonably prudentperson. If a reasonable doubt exists, either that the conduct in question did not constitute a marked departure from that standard of care,or that reasonable precautions were taken to discharge the duty of care in the circumstances, a person cannot be found guilty of theoffence: R. v. Finlay, (SCC), [1993] 3 S.C.R. 103, at p. 117.

In addition, in order to attract criminal liability, the person’sconduct must be without lawful excuse. See also R v Gosset, (SCC), [1993] 3 SCR 76, McLachlin J, as she then was, at 102; R v Creighton, (SCC), [1993] 3 SCR 3 at 59; R v Palahnuk [2000] OJ No 5771 (SCJ) at para 13; R v Roussel, 2014 ABQB 202 at 123 – 125. [24] An M&M container on a desk is not a secure and locked device. The door to Mr. Ziegler’s room could not be locked.However, the ammunition was in a private room. The ammunition was not open to public view. Only four adult males lived in the house.No children lived in or visited the house.

There was no firearm in the room or in the house that was capable of firing the .22 calibreammunition (the flare gun was not capable of firing this caliber ammunition).

There was no evidence that the ammunition was inproximity to any heat or chemical source or any device or object that could have caused the accidental discharge of the ammunition. [25] There was no argument that the standard of care could or should be informed by, for example, any of the provisions of theStorage, Display, Transportation and Handling of Firearms by Individuals Regulations (SOR/98-209) under the Firearms Act; and itappears that the storage in evidence would not have violated those regulations. [26] The Crown tendered no evidence on what would have constituted proper storage, i.e., on the applicable standard of care: seeR v Lychak, 2015 ABPC 61, Williams PCJ at para 82. [27] In R v Vader, 2012 ABQB 288, Justice Ross wrote as follows at paras 117 – 119: [117] The ammunition in this case was transported in a backpack in the back of an open bed truck.

There is no evidence that it was leftunattended in the truck.

The Crown called no expert evidence as to the standard of care regarding the transportation of ammunition andpresented no case law to the effect that this form of transport is a marked departure from the standard of care. [118] 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. [119] 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. [28] The Crown invited a dismissal on this count. 3.

Verdict [29] In all the circumstances, I find that I have a reasonable doubt as to whether Mr. Ziegler’s storage of the ammunition involveda marked departure from the standard of the reasonably prudent person. Mr. Ziegler is therefore acquitted of the offence alleged in Count4 of the Indictment. C. Count 3: Criminal Code s. 88(1) [30] Count 3 of the Indictment states that Mr.

Ziegler stands charged that he, on or about the 14th day of September, 2012, at or near Edmonton, Alberta, did have in his possession (or carry) a weapon (orimitation of a weapon or prohibited device or ammunition or prohibited ammunition), to wit: a flare gun for a purpose dangerous to thepublic peace (or for the purpose of committing an offence), contrary to section 88(1) of the Criminal Code of Canada. [31] To establish guilt for this offence, the Crown must prove, beyond a reasonable doubt, that (

a) Mr. Ziegler had possession of the flare gun;

(

b) the flare gun was a “weapon;” and (

c) Mr. Ziegler possessed the flare gun for a purpose dangerous to the public peace or for the purpose of committing an offence. [32] Mr. Ziegler’s purpose for which he possessed the flare gun is bound up with evidence relating to the attempted murdercharge. Consideration of his purpose must await the review of the evidence to follow. Three elements of this count, however, may beresolved at this point: (1) whether the occurrence of the events in a private residence prevents the events from constituting a danger to the “public peace;” (2) whether Mr.

Ziegler “possessed” the flare gun; (3) whether the flare gun was a “weapon.” 1. Private residence and the Public Peace [33] Possession in a private place does not preclude a finding of a purpose dangerous to the public peace: Stavroff v the Queen, (SCC), [1980] 1 SCR 411 McIntyre J at 418; R v Culleton, 2008 MBQB 315, Beard J at para 46; R v Persaud, 2009ONCJ 93 at para 125; R v Chonkolay, 2010 ABPC 365. 2. “Possession” of the Flare Gun [34] Mr. Ziegler unquestionably possessed the flare gun within the meaning of ss. 4(3)(

a) and 88(1) of the Criminal Code. It wasat all material times in his personal possession. On the day in question, it was stored in a box in a rubber tote, in his closet, in his room.He took it out of the box, put it in his pocket, and went downstairs with it. Immediately before the flare gun discharged he was holding itin his two hands. He knew that it was and what it was. He exercised physical control over it. He only lost possession of the flare gun afterit had discharged, when Mr. Schafers took it from him. See Beaver v the Queen, (SCC), [1957] SCR 531, Cartwright Jat 541- 542. 3.

Whether the Flare Gun was a “Weapon” [35] Whether the flare gun was a “weapon,” and more specifically whether it was a “firearm,” is an important issue. It is animportant element of the s. 88(1) count and count 2, the pointing a firearm charge under s. 87(1). Count 1 faced by Mr. Ziegler allegesthat Mr. Ziegler attempted to murder Mr. Schafers “while using a firearm.” Should there be a conviction on any relevant count, the use ofa firearm in the commission of the offence may, by statute, attract an elevated minimum penalty. [36] Paragraph 84(3)(

b) of the Criminal Code, it should be noted, has no bearing on the question in this prosecution. Under s.84(3)(b),

(3) For the purposes of sections 91 to 95, 99 to 101, 103 to 107 and 117.03 of this Act and the provisions of the Firearms Act, thefollowing weapons are deemed not to be firearms: .... (

b) any device that is (

i) designed exclusively for signalling, for notifying of distress, [or] for firing blank cartridges ..., and (ii) intended by the person in possession of it to be used exclusively for the purpose for which it is designed .... While the flare gun would have fallen under s. 84(3)(b)(i), the deeming provision does not apply to any charge figuring in thisprosecution. Regardless, s. 84(3)(b)(ii) imposes an important qualification on the availability of the deeming provision; but again, issueof Mr.

Ziegler’s intention will be considered below. [37] The question of whether the flare gun is a weapon, specifically a firearm, is complicated because of the “definitional loop”engendered by the definitional provisions (see R v James, 2011 ONCJ 125, Duncan J at para 7). The term “weapon” is defined in s. 2 ofthe Criminal Code. In September 2012, this definition read as follows: “weapon” means any thing used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm. “Firearm” is also defined in s. 2 of the Criminal Code: “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.

The difficulty is that “weapon” includes a “firearm,” which directs the reader to the definition of “firearm;” but a “firearm” is a barrelled“weapon,” which directs the reader back to the definition of “weapon.” The practical problem is whether, to count as a “firearm,” adevice must not only meet the criteria set out in the definition of “firearm” but must also meet the design or intention criteria in thedefinition of “weapon.” Put another way, the problem is whether a device may be determined to be a “firearm” regardless of an

accused’s subjective intention. Three sub-issues arise: (

a) to be classified as a “firearm,” must a device meet not only the terms of the definition of “firearm” but also the design or intentioncriteria in the definition of “weapon”? (

b) was the flare gun a “firearm” because it met the criteria in the first clause of the definition of “firearm”? (

c) was the flare gun a “firearm” because it was a device that “can be adapted for use as a firearm”? [38] The definitional loop problem implicit in sub-question (

a) is not of overwhelming significance in this prosecution since even ifthe design and intention criteria must be satisfied for a device to constitute a “firearm,” those issues can be addressed in connection withthe assessment of Mr. Ziegler’s intentionality pursued below. Nonetheless, it is important to get the statutory

interpretation right. (

a) To be classified as a “firearm,” must a device not only satisfy the terms of the definition of “firearm” but also the design orintention criteria of the definition of “weapon”? [39] The defence relied on a line of authority from the Ontario Court of Appeal to the effect that a device (particularly a pellet gun)“is not a weapon unless used or intended to be used for a dangerous purpose:” R v Labrecque, 2011 ONCA 360 at para 5; see also R vMcManus, (ON CA), [2006] OJ No 3175 (QL); 214 OAC 77.

That is, the Crown must establish the requisitesubjectivity of the accused before a device may be found to be a “firearm.” [40] The authorities relied on by the defence are incorrect and should not be followed, for the following reasons. [41] First, the decisions are wrong as a matter of statutory

interpretation. The definition of “weapon” establishes two alternativeroutes to a finding that a device is a “weapon.” On the one hand, a device may be a weapon if the design or intention criteria aresatisfied. If the subjective criteria are satisfied, “any thing” may be found to be a weapon – whether it is a pen, a drinking glass, awindow pane, or an object more intuitively classifiable as a weapon. On the other hand, the definition provides that a “firearm” is aweapon. “Firearm” receives its own definition. A firearm is a specific type of weapon. Its nature is not dependent on a user’ssubjectivity.

It has, as an object, characteristics or qualities that permit it to inflict harm. [42] A firearm is indeed a weapon, and the definition of firearm does not err in so describing it. But that recognition of the legalnature of a firearm does not mean that the broader route to characterization as a weapon must be followed to find that a firearm is aweapon. A firearm is a weapon because that is what it is, by itself and in itself.

That reality is recognized by the definition of “weapon.” [43] Justice Rosenberg arrived at the same conclusion, following a more thorough analysis incorporating a review of statutoryhistory, in R v Dunn, 2013 ONCA 539. Justice Rosenberg’s conclusions are found at paras 61 - 66: [61] The respondent submits that the grammatical or ordinary sense of the

definitions of weapon and firearm at least create anambiguity. I do not agree. Considered in context, the

definitions are consistent with a rational scheme and, thus, are not reasonablycapable of more than one meaning: Bell ExpressVu, at para. 29. I agree with the appellant that the way out of the alleged definitionalloop is to treat the term “weapon” in the definition of “firearm” as simply a descriptor rather than a formal element. [62] That Parliament must have intended this result is apparent from the concluding words of the definition of “weapon” itself: “and,without restricting the generality of the foregoing, includes a firearm”. This phrase would be meaningless if the object in question had tomeet the statutory

definitions of both “firearm” and “weapon” in order to be found to be a firearm. Such an

interpretation would beinconsistent with the presumption against tautology. As Ruth Sullivan explains in her text Sullivan on the Construction of Statutes, 5thed. (Markham, Ont: LexisNexis Canada, 2008) at p. 210, the effect of this presumption is that “courts should avoid, as much as possible,adopting

interpretations that would render any portion of a statute meaningless or pointless or redundant”. In my view, applying thispresumption assists in resolving any apparent ambiguity. [63] Treating the word “weapon” in the definition of firearm as a descriptor also avoids the problem that, otherwise, the term “firearm”becomes a component in its own definition.... [66] To conclude, in my view, there is no ambiguity in the definition of firearm in s. 2 when regard is had to the legislative history andthe context and scheme of the legislation. Barrelled objects that meet the definition of firearm in s. 2 need not also meet the definition inpara. (

a) or (

b) of weapon to be deemed to be firearms and hence weapons for the various weapons offences in the Code, such as theoffences charged against the respondent in this case. [44] Second, the authorities on which the defence relied have been rejected by the Ontario Court of Appeal itself. In Dunn, JusticeRosenberg wrote as follows at para 35: [35] The issues as framed in this case centred on whether McManus should be overruled .... [T]he subsequent decision from this court inLabrecque understood McManus as adopting an

interpretation of firearm and weapon that would require the Crown to prove that air gunsfall within paragraph (

a) or (

b) of the weapon definition even though they would otherwise meet the definition of firearm in s. 2. Sounderstood, it is my view, that McManus and Labrecque were wrongly decided. It does not appear that the issue was directly raised bythe parties in McManus and the court did not deal with either Felawka, Henry or Formosa. In other words, this appeal falls within the perincuriam exception to stare decisis identified in David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), (ON CA), 76 O.R. (3d) 161 (C.A.) at para. 111.

The decision in McManus meets the two conditions of the perincuriam exception: the panel deciding the earlier case did not refer to binding judicial authority, namely Felawka, Henry and Formosa,and it would have decided the case differently, given the binding nature of Felawka. [45] Third, as Justice Rosenberg stated, the

interpretation issue has been settled by the Supreme Court in R v Felawka, (SCC), [1993] 4 SCR 199, Cory J at 211 - 212:

The appellant contends, as did the minority of the Court of Appeal, that a firearm is not a weapon as defined by s. 2 unless it is used orintended for use in causing death or bodily injury or for threatening or intimidating. I cannot accept that contention .... In my view, a firearm must come within the definition of a weapon. A firearm is expressly designed to kill or wound. It operates withdeadly efficiency in carrying out the object of its design. It follows that such a deadly weapon can, of course, be used for purposes ofthreatening and intimidating.

Indeed, it is hard to imagine anything more intimidating or dangerous than a brandished firearm. A personwaving a gun and calling “hands up” can be reasonably certain that the suggestion will be obeyed. A firearm is quite different from anobject such as a carving knife or an ice pick which will normally be used for legitimate purposes. A firearm, however, is always aweapon. No matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to thosein its presence. The definition of “weapon” in s. 2 must include a firearm as defined in s. 84.

For example s. 88 of the Criminal Code provides thatanyone who, without lawful excuse, has a weapon in his possession while he is attending or on his way to attending a public meeting isguilty of an offence. The presence of a firearm at a public meeting would, in itself, present a threat and result in the intimidation of allwho were present. It really cannot have been the intention of the framers of the legislation that people would be permitted to brazenlytake their guns with them to public meetings provided that they did not use them or intend to use them to cause injury or to threaten orintimidate.

Indeed, to state the proposition reveals that a definition with such a result is unthinkable .... This makes it crystal clear that a firearm is, by definition, a weapon. Lastly, I am in complete agreement with the submission of the respondent that if the definition of “weapon” sought by the appellant wereto be accepted then the concluding words of the definition which refer specifically to firearms as defined in s. 84 of the Criminal Codewould be completely redundant. See as well the reasons of the Ontario Court of Appeal in R. v.

Formosa (1993), (ON CA), 79 C.C.C. (3d) 95, wherein the court also concludes that a firearm falls within the definition of a weapon set out in s. 2 of theCriminal Code. [46] Hence, if a device meets the criteria of the definition of “firearm,” it is a “firearm,” regardless of the design or intentions ofthe accused. (

b) Was the flare gun a “firearm” because it met the criteria in the first clause of the definition of “firearm”? [47] The flare gun did meet the criteria in the first clause of the definition of “firearm.” It was “a barrelled weapon from which anyshot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person.” The elementsof this first clause are that the device is (

i) a barrelled weapon, (ii) from which any ... projectile can be discharged, and that is (iii) capable of causing serious bodily injury or death to a person. [48] The flare gun was a barrelled weapon. It has a barrel. It has the external appearance of a hand gun. [49] A bullet or other projectile can be discharged from the flare gun. A projectile was discharged from the flare gun and struckMr. Schafers. (Firing is sufficient although not necessary to prove capacity to fire: see R v Robbie, 1989 ABCA 182; R v Osiowy, 1997ABCA 50 at para 20). This projectile was, or was part of, a bullet.

The term “bullet” is not defined in the Criminal Code. [50] The fact that the flare gun was modified to permit it to discharge bullets or other projectiles does not prevent it from beingclassified as a firearm. The definition refers to the fact that the barrelled weapon is capable of discharging bullets or projectiles.

Theapplication of the definition does not depend on whether the device was purpose-built or commercially available as a firearm. [51] But was the flare gun a barrelled weapon from which a bullet or other projectile may be discharged that is capable of causingserious bodily injury or death to a person? [52] Mr. Schafers was not seriously injured by the discharge of the projectile from the flare gun. That fact is not decisive. That factdoes not entail that the flare gun was not capable of causing serious bodily injury or death to a person. Any firearm may misfire. A bulletmay be defective.

Even if a firearm fires properly, the person shot may not, through luck, be seriously injured. [53] Mr. Ziegler testified that he intentionally constructed a “less than lethal” device. Recounting a description from anunidentified acquaintance, Mr. Ziegler referred to the flare gun as a “brass firing nerf gun” (TZ 27.20). Significant defence evidence wasgiven respecting Mr. Ziegler’s purposes and intentions respecting his modifications of the flare gun. That evidence is important and willbe returned to below.

At this point, in relation to the matter at issue, the inferences sought by the defence may be assumed to be true.This would make no difference. The question is not what an accused may have intended or believed, but whether the weapon was in fact“capable of causing serious bodily injury or death to a person.” [54] Expert evidence was provided through the testimony of Joseph Prendergast. Mr. Prendergast was qualified, by consent, inareas of firearm and tool mark examination and firearm ammunition. He has been an RCMP firearms and tool marks examiner since1991. He has testified in more than 150 cases.

He personally examined and tested the flare gun. He confirmed that the flare gun had beenmodified to fire a cartridge or bullet through the fabrication of a composite sleeve inserted into the barrel of the flare gun. The flare gunwas capable of firing .38 calibre bullets. Mr. Prendergast did five test firings of the flare gun using standard Winchester .38 specialrounds. He did velocity tests (the weapon is fired through a machine that measures velocity). The lowest speed was 218.24metres/second (716 feet/second). The highest speed was 255.1 metres/second (836.73 feet/second).

These speeds were lower than bulletspeeds of purpose-built firearms that usually travel about 304.8 metres/second (1000 feet/second). The reason for the lower speed wasthat barrel, even with the insert, remained oversized. There was not a good fit between the bullet and the interior of the barrel. Pressure,

then, was dissipated as the weapon discharged. Nonetheless, Mr. Prendergast confirmed in cross-examination that a bullet travelling at700 feet/second is travelling at high speed. This is a velocity that is capable of causing death. Mr.

Prendergast’s evidence was not shakenor qualified in any relevant way in cross-examination and no other evidence was tendered respecting the velocity of bullets fired from theflare gun. [55] In Osiowy, the Court of Appeal stated at para 20 that “Where [a purported firearm] was not fired, but is available for expertexamination, the Crown may adduce expert evidence that at the time of the offence the weapon was operable and if fired was capable ofcausing bodily injury or death.” [56] In R v Spreeman, 2004 ABPC 209, Judge JN LeGrandeur stated at para 18 that “I take judicial notice of the fact that ... aweapon that is capable of firing a .22 caliber shell is capable of causing serious bodily harm.” I would have been prepared to take judicialnotice that a weapon that is capable of firing a .38 caliber shell is capable of causing serious bodily harm.

However, I did not advisecounsel that I was contemplating this form of fact-finding and in fairness to Mr. Ziegler, I will not rely on judicial notice. In any event, Ineed not rely on judicial notice. [57] I find, beyond a reasonable doubt, based on Mr. Prendergast’s evidence, that the flare gun was capable of causing seriousbodily injury or death to a person. I further find that the flare gun was a barrelled weapon from which any shot, bullet or other projectilecan be discharged.

I find, beyond a reasonable doubt, that the flare gun was a “firearm” within the meaning of the definition of that termin s. 2 of the Criminal Code. It is therefore a “firearm” for the purposes of ss. 87(1) and 88(1) of the Criminal Code and for the purposesof proof of count 1 of the Indictment. [58] I note that Justice Rosenberg reported in Dunn at para 40 that [40] .... The evidence in this case was that a barrelled weapon is capable of causing serious bodily injury or death to a person if it firesa projectile at more than 214 ft./s.

This is the so-called pig’s eye test, which is a standard for determining the capabilities of a barrelledobject for causing serious death or bodily injury. The evidence was that if the velocity was 246 ft./s. the object would meet the “V50standard”, which is the speed required for the projectile to penetrate the eye 50 percent of the time. (

c) Was the flare gun a “firearm” because it was a device that “can be adapted for use as a firearm”? [59] The definition of “firearm” includes “anything that can be adapted for use as a firearm.” (It is not necessary that a devicesatisfy both this clause and the first clause of the definition to be a “firearm”.) The flare gun was adapted or modified. I have found that itwas a firearm and it therefore could be used as a firearm. [60] A further “adaptation” issue was this: When the flare gun was turned over to Mr. Prendergast, it could not immediately befired.

The sleeve inserted into the barrel was composed of a brass pipe, over which was wrapped some tape; these were themselvesinserted within a piece of PCV pipe, which formed the exterior surface of the sleeve. A piece of tape had been extruded from the sleeveat the breech. This prevented the flare gun from closing properly after a cartridge had been inserted, and prevented the flare gun fromfiring. There was not enough “pin protrusion.” [61] By way of explanation, the flare gun used a centre-fire firing pin mechanism to fire cartridges.

To insert a cartridge, the barrelof the flare gun had to be tilted down, exposing the chamber into which the cartridge was inserted. To fire the flare gun, the barrelcomponent had to be tilted back up and the breech closed. After the hammer had been cocked and the trigger engaged, the firing pinwould then strike the primer in the casing, causing the gunpowder in the casing to ignite, causing the bullet or other projectile to bedischarged from the casing through the barrel of the flare gun. [62] To allow the flare gun to close and to fire, Mr. Prendergast trimmed .21 inches of tape. Mr.

Prendergast surmised that the tapehad shifted when the flare gun had fired, but confirmed that he could not be certain when or how the tape shifted. [63] The need to trim the tape caused defence counsel to raise the issue of whether the flare gun could properly be found to be adevice that can be adapted for use as a firearm. Many things can be “adapted” for use as a firearm, given enough time and resources.

AsJustice Lamer, as he then was, observed in R v Covin, (SCC), [1983] 1 SCR 725 at 729, “[i]ndeed most pieces ofmetal, pipe or wood can, given time, tools and expertise, be said to be adaptable for use as a firearm, that is, becoming capable of beingloaded and fired in such a way as to cause bodily injury.” I note that no Charter notice was filed respecting the “overbreadth” of thedefinition of firearm: see Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, McLachlin CJC at para 112. Theissue is one of the

interpretation and application of the statutory provisions. [64] According to Justice Lamer in Covin at 730, the test is as follows: If inoperable, then, as regards s. 83, [a thing] is a firearm if, given the nature of the repairs or modifications required and the availabilityof the parts on the scene, whatever was used could, during the commission of the offence, have been adapted by an ordinary person or bythe accused if possessing special skills so as to be capable of firing and of causing serious injury.

Justice Lamer put the test in this way at 731: The Crown must prove, beyond a reasonable doubt, at the time and place of the offence or during the flight thereafter, to use the words of Hart J.A. in R. v. Haines (1981), (NS CA), 45 N.S.R. (2d) 428 at p. 436, ‘…the necessary ingredients for an operable firearm together with the ability to place it inoperable form’. See Vader at paras 106 – 107; R v Goard, 2014 ONSC 2215 at para 12; R v Grant, (Ont SCJ) at para 24. [65] In my opinion, the alteration performed by Mr. Prendergast was de minimis.

It was a very slight alteration, easilyaccomplished using readily accessible tools such as scissors or another sharp-edged instrument and without requiring any particularexpertise, and making no material or qualitative change to the nature of the device. I find, beyond a reasonable doubt, that the flare gun

was, even with the tiny bit of extruded tape, a device that “can be adapted for use as a firearm” and that it was a “firearm.” [66] I am fortified in this conclusion by the approach of Justice Cory to the definition of “prohibited weapon” in R vHasselwander, (SCC), [1993] 2 SCR 398. The then-statutory language under consideration was as follows: “any firearm... that is capable of firing bullets in rapid succession during one pressure of the trigger ....” [emphasis added].

Justice Cory found that“capable” did not mean “immediately capable.” Rather, “capable” in the context in question should be interpreted to mean “capable ofconversion to an automatic weapon in a relatively short period of time with relative ease:” at 416; further, “[w]here a weapon can bequickly and readily converted to automatic status, then that weapon must fall within the definition of ‘prohibited weapon:’” at 420[emphasis added].

In this case as in Hasselwander, the device could “in a short period of time, with relative ease” or “quickly andreadily” be altered to have the statutorily-contemplated functionality. [67] My findings that Mr. Ziegler had possession of the flare gun and that the flare gun was a “firearm” do not entail that hecommitted the s. 88(1) offence. The Crown must still establish, beyond a reasonable doubt, that he possessed the flare gun for a purposedangerous to the public peace or for the purpose of committing an offence. That element of the offence must be considered below. 4.

Defensive Purposes and Danger to the Public Peace [68] Mr. Ziegler relied on evidence to support the claim that he possessed the firearm for defensive purposes. If Mr. Ziegler’sevidence could at least raise a reasonable doubt about whether he armed himself for personal protection against threats posed by Mr.Schafers and confrontation with Mr. Schafers was unavoidable, Mr. Ziegler’s possession of the flare gun would not be dangerous to thepublic peace.

In R v Kerr, [2004] 2 SCR 371, 2004 SCC 44, Justice Bastarache wrote as follows at para 39: 39 The question arises as to the relevance of a finding that the accused actually used his weapon in a manner which constitutedjustifiable self-defence. Thus, in R. v.

Sulland (1982), (BC CA), 2 C.C.C. (3d) 68, the British Columbia Court ofAppeal held, at p. 71: In my view, one does not commit the offence with which we are concerned if one carries a weapon for self-defence that is an appropriateinstrument with which to repel, in a lawful manner, the type of attack reasonably apprehended and if the person carrying it is competentto handle the weapon and is likely to use it responsibly. In the absence of other circumstances, such as conduct calculated to provoke anattack, the purpose is unlikely to be dangerous to the public peace.

That an attacker might be repelled forcefully, and even injured, is nota danger that the

section refers to. In that case the attack, not the response to it, breaches the public peace. [Emphasis added.] Insofar as the B.C. Court of Appeal was referring, by the use of the phrase “in a lawful manner”, to justifiable self-defence, Jessup J.A.,dissenting in Nelson, supra, seemed to agree (at p. 36): Having a weapon for the sole purpose of abating a breach of the peace threatened to result from an attack on the possessor is not, in myopinion, a purpose dangerous to the public peace.

Self-defence, justifiable under the Code, is not confined to tooth and nail. [Emphasisadded.] And at para 52: 52 In my view, on this specific occasion, Kerr did not possess his weapons for a purpose dangerous to the public peace. I agree withthe trial judge’s finding that Kerr possessed his weapons on the day in question for the purpose of defending himself against an imminentattack by specific individuals. I find that his purpose was not, in all the circumstances, dangerous to the public peace, since the attackwas clearly unavoidable.

Kerr was subject to credible threats of an imminent assault, in an environment from which there was simply nopossibility to escape and in which, as found by the trial judge, it was futile to seek protection.

It is also particularly relevant that the trialjudge specifically found that Kerr’s actual use of the weapon constituted justifiable self-defence. [69] Four Justices concurred in the result in Kerr, but held that the test of “purpose” is subjective only, not subjective andobjective: R v Madood, 2015 ABQB 611, Hillier J at para 167. [70] At this point, I will not delve further into “possession for the purposes” doctrine, as it turns on whether Mr. Ziegler has atleast raised a reasonable doubt that he had a purpose that was not “dangerous” within the meaning of s. 88(1).

The assessment of Mr.Ziegler’s intentionality will follow. D. Count 2: Criminal Code s. 87(1) [71] Count 2 states that Mr. Ziegler stands charged that he, on or about the 14th day of September, 2012, at or near Edmonton, Alberta, did, without lawful excuse, point a firearm to wit: aflare gun at Devin Schafers, contrary to section 87(1) of the Criminal Code of Canada. [72] To establish guilt for this offence, the Crown must prove, beyond a reasonable doubt, that (

a) Mr. Ziegler performed

an act that constituted “pointing” at Mr. Schafers; (

b) the object that was pointed, the flare gun, was a “firearm;” and (

c) Mr. Ziegler did not have a lawful excuse for pointing the firearm at Mr. Schafers. 1. Firearm [73] The only element of this offence that can be established at this point concerns the status of the flare gun as a firearm. As I

found in connection with the previous count, the flare gun was a firearm. 2. Lawful Excuse [74] The “lawful excuse” issue, like the “purpose” issue figuring in the previous count, turns on a full review of the evidence. Anissue to be explored below is whether Mr. Ziegler pointed the flare gun at Mr. Schafers for defensive purposes. I can clarify now thatsince the type of “lawful excuse” that Mr. Ziegler will seek to rely on is self-defence, he does not bear any legal burden of proof and hebears no elevated standard of proof (e.g. on the balance of probabilities) relating to this lawful excuse. Mr.

Ziegler bears a tactical orevidential burden only (a burden to go forward with evidence to provide an air of reality to the contention of defensive purpose, shouldhe chose to put that matter in issue); the Crown bears the burden of disproving defensive purpose beyond a reasonable doubt. This resultfollows from R v Holmes, (SCC), [1988] 1 SCR 914, McIntyre J at 947 – 948: .... The words “without lawful excuse” do not encompass excuses or justifications that would exist if those words were omitted from thesection, and thus require proof by the accused.

Manifestly, if the words were omitted from the Code, general common law excuses, suchas duress or authorization by law, would continue to be available to the accused. The conclusion that these general common law excusesare not encompassed within the phrase “without lawful excuse”, entails the further conclusion that these excuses need not be proved on abalance of probabilities since they are not affected by the words “the proof of which lies upon him”.

Consequently, these excuses are,and have always been, with respect to this offence, available to an accused on exactly the same basis as they are in any other criminaloffence: as long as the accused can raise a reasonable doubt, he is entitled to an acquittal. 3. Pointing [75] The “pointing” issue too must rely on the full review of the evidence. This may seem odd: whether or not Mr. Ziegler pointedthe weapon might seem to be a straightforward factual issue, expressly or implicitly admitted by Mr. Ziegler. How else could Mr.Schafers have been injured, except by Mr. Ziegler pointing the flare gun at him?

It is true that the flare gun was in Mr. Ziegler’s handsand his hands, holding the flare gun, rose to the height of Mr. Schafers’ face, whereupon the flare gun discharged. In my view, however,the defence put in issue voluntariness relating to the pointing. The flare gun rose with Mr. Ziegler’s hands and arms, but that movementmay not have been voluntary. It may have been a form of startle reflex, engaged when Mr. Schafers unexpectedly opened his door whenMr. Ziegler had approached that door: see R v Mathisen, 2008 ONCA 747, Laskin JA at para 95.

That is, the “pointing” issue is boundup with the claim of “accident” advanced by Mr. Ziegler. Further, if the raising of his arms was reflexive, Mr. Ziegler would not haveintended to point the flare gun. He would lack the mens rea for the offence: see R v Wolfe, (ON CA), 1974CarswellOnt 1066, [1974] OJ No 868, 20 CCC (2d) 382 at para 3 (CarswellOnt). Accident may have both actus reus and mens reafeatures. Whether a doubt arises about the lack of either or both must await the full evidential examination. III. Attempted Murder and Related Offence Elements [76] Count 1 of the Indictment states that Mr.

Ziegler stands charged that he, on or about the 14th day of September, 2012, at or near Edmonton, Alberta did unlawfully attempt to murder Devin Schafers, whileusing a firearm, contrary to

section 239(

a) of the Criminal Code of Canada. [77] I will (

A) review the substantive legal principles governing the attempted murder charge, (

B) lay out the theories of theCrown and defence, (

C) review the witnesses and sources of evidence, (

D) set out my determination of the unfolding of events, (

E) setout my determination of Mr. Ziegler’s intention in the course of the unfolding of events, and (

F) provide my conclusions respectingwhether the Crown has established that Mr. Ziegler has committed attempted murder beyond a reasonable doubt, as well as whether theremaining offences have been proven by the Crown. Finally, I will (

G) refer to further matters that will require attention. A. Substantive Law [78] Three substantive legal areas relating to the attempted murder charge should be canvassed – (1) the doctrine of attemptedmurder, (2) the self-defence provisions, and (3) proof beyond a reasonable doubt. 1. Attempted Murder, Criminal Code s. 239(a) [79] I will describe (

a) the governing statutory provisions, (

b) the mens rea of attempted murder, and (

c) the actus reus ofattempted murder. (

a) Statutory Provisions [80] The following statutory provisions govern the offence of attempted murder: attempted murder 239(1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of theoffence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, toimprisonment for life and to a minimum punishment of imprisonment for a term of (

i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishmentof imprisonment for a term of four years; and (

b) in any other case, to imprisonment for life. homicide 222(1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(2) Homicide is culpable or not culpable.

(3) Homicide that is not culpable is not an offence.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being, (

a) by means of an unlawful act; (

b) by criminal negligence; (

c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or (

d) by wilfully frightening that human being, in the case of a child or sick person .... murder 229 Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; (

b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause hisdeath, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding thathe does not mean to cause death or bodily harm to that human being; or (

c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causesdeath to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being. attempt 24(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intentionis guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

(2) The question whether

an act or omission by a person who has an intent to commit an offence is or is not mere preparation tocommit the offence, and too remote to constitute an attempt to commit the offence, is a question of law. (

b) Mens Rea [81] The mens rea for attempted murder is straightforward and authoritatively established. In R v Ancio, (SCC),[1984] 1 SCR 225, Justice McIntyre stated at 250 that “that the mens rea for an attempted murder cannot be less than the specific intentto kill.” See also R v Pangan, 2014 ONCJ 229 at para 33; R v Bugnet, 2014 ABQB 457, Gill J at para 147.

Justice Holmes provided agood description of the mens rea for attempted murder in R v Ali, 2015 BCSC 2034 at paras 25 and 26: [25] The offence of attempted murder always requires proof beyond a reasonable doubt of a specific intent to kill, as the mental elementof the offence: R. v. Ancio … at 248.

This requirement places the offence of attempted murder in contrast to the offence of murder,which may be committed where, for example, the accused did not specifically intend to kill but meant to cause bodily harm that he or sheknew was likely to cause death and was also reckless whether death ensued or not (s. 229(a)(ii)). A specific intent to kill is always thenecessary mental element for the offence of attempted murder. [26] It is not necessary for the accused person to have set out to kill.

If his or her intention was initially different but changed to anintention to kill, even if only for a brief time, that intent will suffice to establish the mental element, so long as it coincides with thephysical element .... (

c) Actus Reus [82] The act element of attempted murder is “some step towards the commission of the offence attempted going beyond mere actsof preparation:” Ancio at 247. The Ontario Court of Appeal observed in R v Gordon, 2009 ONCA 170 at para 56 that “the actus reus ofan attempt may but need not be a crime or even a tort. Injury to the victim is not an essential element of the crime of attempted murder.”Under s. 24(1), impossibility of completing an offence is not a “defence”; impossibility does not entail that the actus reus cannot be

established: “Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence ” [emphasis added]. 2. Self-Defence [ 83 ] The doctrine of and evidence relating to self-defence plays several roles in Mr. Ziegler’s defence. Mr. Ziegler provided some testimony to support the inference that he feared that Mr. Schafers would injure him. That fear motivated him to arm himself with the flare gun. When Mr.

Schafers opened the door of his room, Mr. Ziegler perceived Mr. Schafers to move his arm in a threatening fashion. Whether or not the evidence supports the defence of self-defence, the evidence relates to aspects of self-defence and the evidence may rebut an inference that Mr. Ziegler intended to kill Mr. Schafers or that he was in possession of the flare gun for the purpose of killing Mr. Schafers. That is, Mr. Ziegler not only seeks to provide evidence of a non-culpable intention of preserving his personal safety but seeks to negate the inference that he intended to kill Mr.

Schafers. [ 84 ] Evidence relevant to self-defence also bears on the availability of “lawful excuse” under s. 87(1) (pointing a firearm, count 2) and on whether Mr. Ziegler possessed the flare gun “for a purpose dangerous to the public peace” under s. 88(1) (count 3). (

a) Prospective or Retrospective Application of Self-Defence Provisions [ 85 ] The self-defence provisions were amended on March 11, 2013, after the events in question. The current provisions differ from the provisions in place in 2012. Which provisions apply? [ 86 ] The weight of authority is that the 2013 provisions are prospective in effect only. The new provisions do not apply retrospectively to events that occurred prior to those provisions coming into force: R v Bengy , 2015 ONCA 397 , R v Evans , 2015 BCCA 46 , R v Carriere , 2013 ABQB 645 , Wakeling J, as he then was; R v Simon , 2013 ABQB 303 , Moreau J, para 22 (point 5). (

b) Self-Defence Provisions in 2012 [ 87 ] At the time of the events in question, the self-defence provisions read as follows: 34(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. 35 Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if (

a) he uses the force (

i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and (ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm; (

b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and (

c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose. (

c) Current Self-Defence Provisions [ 88 ] The self-defence provisions in force since March 11, 2013 are certainly less clumsy and confusing than their predecessor provisions: 34(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances

of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use offorce; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force andthe nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they arerequired or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act thatconstitutes the offence believes on reasonable grounds that the other person is acting unlawfully. (

d) Common Issues [89] The former and current self-defence provisions share some common features.

In Simon, Justice Moreau quoted Justice Fisherat trial in Evans (2013 BCSC 462) at para 11, who in turn referred to the Department of Justice’s March 2013 publication, Bill C-26(S.C. 2012 c.9) Reforms to Self-Defence and Defence of Property: Technical Guide for Practitioners: ...the new defences extract from the old provisions the common core elements of each defence, and codify those core elements in asingle simple framework that is capable of assessing a defence claim in any situation, thus facilitating jury instructions and allowingdecision-makers to come to conclusions more easily and simply.

Under the 2012 or current sets of rules, for the doctrine of self-defence to be engaged in circumstances of personal defence, there must beevidence (that supports at least a reasonable doubt) that the accused believed (subjectively) that he or she was being attacked or facedimminent attack and that belief had to be (objectively) reasonable. These conditions for the application of the doctrine are manifest in thecurrent s. 34(1): “they believe on reasonable grounds that force is being used against them or another person or that a threat of force isbeing made against them or another person” [emphasis added].

The subjective/objective nature of the accused’s perception of threat isclear under the former s. 34(2): see R v Pétel, (SCC), [1994] 1 SCR 3, Lamer CJC at 12; and has been confirmedrespecting the former s. 34(1): see R v Baxter, (ON CA), 1975 CarswellOnt 54, [1975] OJ No 1053, 27 CCC (2d) 96,Martin JA at para 45 (CarswellOnt). [90] Further, the act of self-defence, the response to aggression, also has subjective and objective aspects. The act must be intendedto be a response to the aggression and must be a reasonable response to the aggression. The subjective/objective approach is clear in thenew ss. 34(1)(

b) and (

c) and the former s. 34(2)(b).

The “no more than necessary” standard under the former s. 34(1) has beeninterpreted to entail a subjective/objective approach: see, respecting similar language in the former s. 39(1), R v Szczerbaniwicz, [2010] 1SCR 455, 2010 SCC 15, Abella J at paras 17 and 21; and Baxter at para 45. [91] It should be noted, contrary to the approach that defence counsel seemed to take at points in his argument, that the factorslisted in the current s. 34(2) (which would doubtless be relevant in applying the former provisions as well) relate to whether the actperformed in response to the threat was reasonable, not or not necessarily to the issue of whether the accused reasonably believed that heor she was facing a threat. [92] The elements of self-defence are cumulative.

If evidence supporting the reasonable belief in threat is lacking, the defence isnot available. [93] To secure an acquittal, an accused need only raise a reasonable doubt as to whether the defence of self-defence is available onthe evidence. [94] Rather than elaborate further on self-defence doctrine at this point, I shall defer discussion pending my determination ofwhether there is at least a reasonable doubt as to whether Mr. Ziegler subjectively feared that Mr. Schafers would use force against himat any material time and whether that fear was reasonable. 3.

Proof Beyond a Reasonable Doubt [95] I must remind myself before embarking on an assessment of the evidence and the application of the law to the evidence thatunder s. 11(

d) of the Canadian Charter of Rights and Freedoms, any person charged with an offence has the right to be presumedinnocent. The presumption of innocence has two main features. First, the prosecution has the burden of proving the guilt of the accusedand the accused does not have the burden of proving his or her innocence. Second, the prosecution must prove guilt beyond a reasonabledoubt. The requirement that the Crown prove its case “beyond a reasonable doubt” entails that the evidence relied on by the prosecutionmust leave no reasonable inference, no reasonable possibility, that the accused is innocent. The standard is not one beyond “any” doubt –

it is not a standard of absolute certainty – but the standard is one that excludes all “reasonable” doubts about innocence, doubts that arenot mere speculation, or imaginary or frivolous, or based on sympathy or prejudice: R v Lifchus, (SCC), [1997] 3 SCR320, Cory J at para 31.

In this case, for the Crown to succeed, it must prove the elements of the various offences, including andparticularly the critical intention to kill mens rea element of attempted murder, beyond a reasonable doubt. [96] Some principles must be borne in mind respecting the Crown’s burden of proving its case beyond a reasonable doubt. [97] When deciding whether the Crown has proven its case beyond a reasonable doubt, the evidence must be considered as awhole: R v Morin, (SCC), [1988] 2 SCR 345, Sopinka J at 361 – 362.

With some exceptions, the assessment of evidencerelating to particular issues or the evidence of particular witnesses should not be isolated from the assessment of all of the evidence in thecase: Morin at 354. [98] A reasonable doubt may be derived from the evidence or the absence of evidence: Lifchus at para 36. [99] All, some, or none of the evidence of a particular witness may be accepted: R v JHS, [2008] 2 SCR 152, 2008 SCC 30, BinnieJ at para 10. [100] If credibility is an important issue in a case, the reasonable doubt standard must be applied to credibility: R v W(D), (SCC), [1991] 1 SCR 742, Cory J at 757.

This is an application of the proof beyond a reasonable doubt standard. A reasonabledoubt may arise from factors relating to the sincerity or reliability of the testimony of Crown witnesses, undermining the Crown case. Areasonable doubt may arise from factors relating to the sincerity or reliability of an accused, preventing his or her narrative from beingwholly rejected. Of course, a reasonable doubt may emerge from other evidential sources in the trial as well. And of course, an accusedmay be believed. His or her evidence may be accepted not only as raising a reasonable doubt, but as being true or likely true.

We reachthe

summary of the conclusions a trier of fact might reach following its assessment of all of the evidence in the case provided by JusticeCory in W(

D) at 758: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [101] Another step in the exposition of possible findings was approved in JHS. This step follows the second W(

D) step: “If, after acareful consideration of all the evidence, you are unable to decide whom to believe, you must acquit:” JHS at para 12. This stepconfirms the reasoning of Justice Martin in R v Nimchuk, (ON CA), 1977 CarswellOnt 980, 33 CCC (2d) 209 (OntCA) at para 7 (CarswellOnt): In our view, the trial judge in concluding that in order to acquit the appellant he would have to find that Mrs. Vanka was “framing him”,in effect, placed the burden of proof upon the appellant.

The trial judge appeared to think that he was confronted with a choice betweentwo alternatives, either accepting the evidence of the accused, and finding that Mrs. Vanka framed him, or accepting the evidence ofMrs. Vanka, which required a conviction. There was, of course, a third alternative, namely, if a reasonable doubt existed, in view of theconflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal [emphasis added].

In R v Hogg, 2013 PECA 11, affd 2014 SCC 18 Justice McQuaid provided a similar explanation at para 134: [134] The third conclusion might result in there being a conflict in the evidence of the Crown and the evidence of the accused whichthe trial judge finds difficult to resolve. In other words, the trial judge is not sure at the end of the trial where the truth lies. For example,the trial judge might not believe the evidence of the accused while at the same time harboring some concerns about the evidence of theCrown where it conflicts with the evidence of the accused.

If the trial judge cannot resolve the conflict in the evidence, the trial judgemust acquit because all the evidence, including that of the accused, has obviously raised a reasonable doubt as to the guilt of the accused. [102] As for the third step of W(D), Justice McQuaid commented as follows in Hogg at para 133: [133] …. A complete rejection of the evidence of the accused does not mean the guilt of the accused is established.

The trial judgemust look to the remainder of the evidence he or she does believe in order to be satisfied the Crown has discharged the burden of provingthe elements of the offence beyond a reasonable doubt. If this evidence does not so prove, the trial judge would be left with a reasonabledoubt and an acquittal would have to be entered. See also paras 143 – 144. [103] The point of Nimchuk, W(

D) and subsequent elaborations is, as explained by Justice Binnie in JHS, “that lack of credibility onthe part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt:” JHS at para 13 [104] In this case, credibility is important. The evidence of Mr. Ziegler conflicts on important points with the evidence of Mr.Schafers and with the evidence of Mr. Shuliak. Moreover, Mr. Ziegler is the only reporter respecting his state of mind at stages in theprogress of events. B. Theories of the Crown and Defence 1. Theory of the Crown [105] The Crown’s theory was expressed succinctly as follows:

On September 14 th of 2012, the accused quietly crept downstairs where sometime after 9 a.m. he waited at the door of Devin Schafers’ bedroom. Mr. Schafers would undoubtedly have heard the accused unless the accused was in fact trying to be quiet, especially three times as Mr. Ziegler claims. When … Mr. Schafers approached his door … he opened it to see the accused in a hoodie standing directly on the other side of the doorframe. His stance was squared, and the accused had two hands on the gun, and the gun was leveled directly at Mr. Schafers’ head. And it was there leveled before the door was opened.

It was not a situation where once the door was opened Mr. Ziegler reacted and leveled the gun. As Mr. Schafers instinctively reeled back from the hooded figure, Mr. Ziegler deliberately pulled the trigger after the hammer was already cocked, and the projectile struck Devin Schafers directly between the eyes. Mr. Schafers realizing he was in fact not dead, tackled the accused and saw for the first time who had shot him. At this point and in panic realizing that, in fact, his intention and his plan had failed, Mr.

Ziegler offered a stream of various excuses, none of which are objectively logical (Transcript, Trial Excerpt, 22 January 2016, Final Submissions (TF), 28.2-17). Th

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