R. v. Kulcsar, 2018 BCPC 334

Citation: R. v. Kulcsar 2018 BCPC 334 Date: 20181205 File No: 65848-2-C Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JASON JOHN KULCSAR ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. YOUNG Counsel for the Crown: J. Lester Counsel for the Accused: M. Dillon (agent for B. Jessop) Place of Hearing: Chilliwack , B.C. Dates of Hearing: November 21, 22 & 23, 2018 Date of Judgment: December 5, 2018

[1] THE COURT: Mr. Kulcsar is charged with the following counts: Count 1, possession of a .25 calibre palm revolver, while notbeing the holder of a licence; Count 2, possession of a firearm knowing that he was not the holder of a licence; Count 3, careless use of afirearm; Count 4, possession of a loaded prohibited or restricted firearm; Count 5, possession of a firearm while prohibited. [2] The accused came to the Chilliwack General Hospital on January 21, 2017 with a bullet wound in his hand.

He brought thesubject of these charges, a palm revolver, with him and ultimately turned it over to the hospital security. The accused was cooperativewith hospital security and with the police, who arrived shortly thereafter. [3] He has testified that he found the revolver when he took his dog for a walk, picked it up and then it went off accidently,causing a bullet to go through his hand. He chose to take that same firearm into the hospital. [4] There is the underlying issue of the accused's credibility and I am mindful of the test set out in R. v.

W.(D), (SCC), [1991] 1 SCR 742. [5] There are the further two issues in this trial. Firstly, what are referred to as the innocent possession line of authorities whichrecognize a public duty defence. As for example, here it is argued the accused found the firearm, foolishly picked it up and it then wentoff, causing significant damage to this hand. He went to the hospital and turned the firearm over to the authorities prior to his obtainingtreatment.

He volunteered he had the revolver. [6] The second issue regarding Count 3, is whether or not the accused had a lawful excuse to carry, handle or transport the firearmto the hospital in the manner he did and thus carry, handle or transport the firearm in a careless manner or without reasonable precautionfor the safety of others. [7] The defence submits here that the accused did have a lawful excuse and refers, in essence, to innocent possession caseauthority. [8] The Crown submits that possession is not the issue with respect to Count 3, that it is the careless use, carry, handle, transport orstorage of the firearm. [9] The Crown, while not conceding its position with respect to the other counts, submits that the innocent possession offence maywell raise a reasonable doubt with respect to Counts 1, 3, 4 and 5. [10] I find that the Crown has taken a most fair position with respect to these other counts.

However, the Crown seeks a convictionmost especially with respect to Count 3, given how the accused came to bring the firearm back to his residence, then in his friend'svehicle en route to the hospital then came into the hospital with a loaded revolver. [11] The police discovered three live rounds inside the revolver, so thus the real issue in this matter is whether or not Mr. Kulcsarhad a lawful excuse to carry a firearm to and into the hospital in the manner he did. [12] I would like to briefly go over the evidence.

Dealing first with the Crown evidence. [13] Firstly, counsel made admissions of fact regarding the accused being prohibited from possessing any firearm at the relevanttime. The affidavit of Allan Leung is to the effect that the accused did not possess the requisite authorization to transport or to carryfirearms. [14] The hospital receptionist, Ms. Bury, was working in the hospital when the accused approached her desk. He had an injury tohis hand and she could see blood. He was calm.

After initial discussions, the accused said he had shot himself and she then asked him ifhe still had the gun on him and he said yes. She was terrified. The accused then took the gun out of his pocket and put it on her desk. [15] Shortly thereafter security arrived. She testified she took the gun and handed it over to a co-worker. They then put the gun intoa plastic bag and into a green bucket prior to the police arriving. She testified the gun looked like an antique gun. [16] The accused then went into the emergency ward to receive treatment to his hand. The police arrived about an hour later.

Theaccused did not show any signs of intoxication. He was not high on drugs. He was calm. [17] In cross-examination, Ms. Bury testified that the accused retrieved the gun from his person and slid it through on the desk underthe glass. She then placed it into a bag. I note that her evidence is just the opposite to that of the security officers, who testified that theaccused handed the gun to them in the waiting area. The accused told Ms. Bury he had shot himself and she then asked him if he stillhad the gun. She did not take any notes of the conversation.

She did not remember the accused saying he had the gun on him, rather thatshe asked him if he still had the gun. [18] Mr. Bennie worked for security at the hospital. The incident occurred at 3:35 a.m. on the 21st of January. He and hiscolleague received a radio call of an urgent nature to attend the hospital triage area. They did so. It took them about 20 seconds torespond to the call and they speak with Ms. Bury, who told them there was an issue with respect to a gun and Mr. Kulcsar. [19] He and his partner approached the accused, who was seated in the waiting area. They approached him cautiously.

He reachedwith his right hand into his clothing and Mr. Bennie told him to do so slowly. The accused grabbed something out of his pocket, as hewas seated. He pulled the revolver out of his jacket with his right hand. Mr. Bennie did not want any sudden movements because he wasconcerned with people being in the ER. [20] Mr. Bennie saw that the firearm was smaller, and he described it as an old-style revolver. The accused pulled out the revolveracross his body and placed it into a bag. Mr. Bennie described how there were other patients in the emergency ward.

He described therebeing between one and three other persons seated in the area.

[ 21 ] His partner placed the gun into a green can in the reception area. The police arrived minutes later and seized the revolver. Mr. Bennie then saw the accused receiving treatment for his hand. Mr. Bennie did see blood on the floor beside the chair where the accused had been seated. Mr. Bennie said he was shocked about someone having a gun in the hospital. [ 22 ] He testified the call for assistance came at 3:06 a.m. He testified that he found the accused to be cooperative.

After the witness directed him to move slowly and not to make any sudden movements, he recalled the accused is reaching into a hoodie or a jacket in order to retrieve the firearm, and the accused was the one who put the object into a clear plastic bag. [ 23 ] Mr. Bath is the other security officer who assisted. He testified that the accused had come into the hospital with a gunshot wound and was being seen at the registration desk. The registration desk advised Mr. Bath and his partner that the person had a firearm on them and that he was willing to turn it over to them. [ 24 ] Mr.

Bath saw that the man's hand was injured and bleeding. The man was seated in a chair. The man placed the firearm into a plastic bag which Mr. Bath was holding. [ 25 ] Mr. Bath testified he was not stressed at the time by the appearance of a firearm but in hindsight, he would not have taken the gun from the man. [ 26 ] They waited for the police to arrive and Mr. Bath described the revolver as being small. He testified that they tried to ensure that if the gun went off, that they had it facedown the whole time they were in possession of it. They touched it as little as possible. [ 27 ] In cross-examination, Mr.

Bath agreed that the accused was cooperative with the guards and he followed their instructions. [ 28 ] Cst. Sidhu arrived at the hospital at about 3:43 in the morning. He went to the emergency room and he was directed to a garbage can, which contained a revolver. There is no issue with respect to continuity. [ 29 ] The officer spoke with Mr. Kulcsar, who was being treated. The accused gave his name and date of birth and address without any problem. His left hand was bandaged. Cst.

Sidhu arrested him for breach of his firearms prohibition. [ 30 ] The accused did see a video recording that had been made in the hospital. The video showed the interaction of the accused with staff at the front counter. The accused was seated in front of the glass partition. Then two guards approached him. The man reached into his hoodie pocket and pulled out an object and put it into a bag which one of the security officers was holding. [ 31 ] Cst. O'Keefe received a call to attend the hospital with respect to a man with a self-inflicted gunshot wound to his hand. He observed Cst.

Sidhu present beside a small bin in which was a handgun. Cst. O’Keefe did unload the handgun. He found that there were three live rounds and one spent round in the cylinder of the gun. He observed five chambers in total in the cartridge. He could not say if the bullets were lined up so that the bullet would go down the barrel. Once he unloaded the handgun, he placed it in his police vehicle. [ 32 ] George Preston was qualified to give an expert opinion in the identification, recognition and classification of firearms and ammunition. He prepared a report.

He gave exhaustive evidence with respect to how this particular handgun operates and its history. [ 33 ] In his report, Mr. Preston described the revolver as being a prohibited revolver. He classified it as a Velo Dog pistol. This a pocket revolver created in France that was marked for use by a cyclist as a defence against animals. [ 34 ] Mr. Preston also examined the three rounds of ammunition removed from the revolver.

He also examined the empty .25 ACP cartridge case, which had been found inside the cylinder. [ 35 ] The Velo Dog revolver was a 6.35 millimetre calibre handgun, which in turn makes it a prohibited weapon. The cylinder is capable of holding five cartridges. The cylinder is removed by pulling the pin out of the centre crane and sliding the parts out. The revolver barrel measured 43 millimetres and the overall length was 150 millimetres. The trigger was foldable and moved forward to lay flat when it was not in use.

The live rounds were .25 ACP cartridges and the fired cartridge was also a .25 ACP. [ 36 ] He test-fired the handgun using one of the loaded cartridges from the exhibits that had been given to him. It functioned as a firearm and a weapon under s. 2 of the Criminal Code . [ 37 ] He concluded that the Velo Dog revolver is a .25 auto-calibre and has a barrel that is 43 millimetres in length. It is both a firearm and a prohibited firearm if one considers the definition in s. 84(1) of the Code . [ 38 ] This particular firearm was designed to be stored in the pocket of a person's clothing. Mr.

Preston referred to this weapon as a palm revolver. In other words, it will fit into the palm of a person's hand given its small size. He described how the firearm would be fired by pulling the trigger back towards the handle. He measured the trigger pull using a gauge and concluded that it would take 12 to 14 pounds of pressure to pull the trigger. [ 39 ] His opinion is that this particular revolver had a heavy trigger pull. Also, the trigger will hold up flat under the frame so that it could not be fired. The trigger stroke is about 4.5 centimetres in length.

That is the distance that the trigger needs to go back in the direction of the handle, that is, before it is fired. [ 40 ] Mr. Preston also concluded that this particular weapon is an unsafe revolver in that the cylinder rotates easily and that the holes in the chamber are not lined up. The bullets could hit the frame and cause the firearm, in essence, to explode. The weapon had worn parts given its age and thus, this looseness had rendered the revolver unsafe. [ 41 ] Mr. Preston described the ammunition found with the revolver as being of more modern or recent origin.

The ammunition worked when the officer fired the one live round. He gave a low-dollar figure for the value of the revolver given its worn parts, however as a collector's item it might fetch about $300.

[ 42 ] I want to turn to the defence evidence. Mr. Kulcsar is 30 years of age and he explained his background. He opened a tattoo studio on Vedder Road in Chilliwack, which is where he was on the evening of this incident. The accused admitted he has one prior conviction for uttering threats in 2012. He received a suspended sentence and probation plus a five-year firearm prohibition. [ 43 ] Mr. Kulcsar was working in his studio. He had his dog with him. He went to his studio for a few hours and then his friend, Devan Bertrand, arrived and spent time with him. The two played an Xbox game.

They did not drink alcohol or use any illicit drugs. They played video games for about two hours. He then took his dog for a walk and Mr. Bertrand remained behind in the tattoo studio. [ 44 ] Mr. Kulcsar described how he left the studio, went down Wells Road and arrived at a gravel pull-out area beside the road. It was about a five-minute walk. As he arrived in this particular area, he saw something metal on the ground. It looked like a firearm. He thought it looked like a cap gun, which he remembered from childhood.

He did not think the object looked intimidating, so he picked it up. [ 45 ] He picked it up with his right hand and had it sitting in the palm of his right hand. He had it cradled with both hands and he demonstrated in court how he had cradled the weapon with this right hand over his left hand, palms facing upwards. [ 46 ] Then after having picked up the revolver, his dog bolted her leash. He clenched the firearm as it started to fall out of his hand and when he grabbed the firearm, it went off, sending a bullet through the palm of his left hand and into his left wrist.

So he ended up with a wound that ran right through his hand at an angle. [ 47 ] He described his dog's leash was over his left arm and that the dog jerked the leash. The firearm was in his hand about five seconds when it discharged. [ 48 ] Initially Mr. Kulcsar was not in a lot of pain. He picked up the revolver and put it in his hoodie pocket and ran back to his studio. He was then in a lot of pain and found he could not run quickly.

He placed the revolver in his right hoodie pocket and he put the firearm in his pocket because he intended to bring it to the authorities at the hospital. [ 49 ] He put the leash over the wound and walked with his hands up. He returned to his studio and he told Mr. Bertrand to take him to the hospital as he had shot himself. He then drove to the hospital in Devan Bertrand's vehicle. Mr. Kulcsar left his dog behind in the studio. It did not take him more than about seven minutes to get to the hospital.

It was about 15 minutes in total from the incident to the time of his arrival at the hospital. [ 50 ] He chose not to call the police as his intention was to speak with the security at the hospital about the weapon. He was dropped off by Devan Bertrand, who did not come into the hospital with him. Mr. Kulcsar described himself as being calm and that he did not need Mr. Bertrand's help at that point. [ 51 ] Mr. Kulcsar went to the reception desk, sat down and spoke with the receptionist, Ms. Bury.

He described sitting down in a chair and told her that he had shot himself and that he had the firearm on him, and he asked her if she could have security take it. He described how they did not want the weapon on him while he was talking with the hospital staff. [ 52 ] He described how Ms. Bury appeared to be in shock and asked him, "Do you have it on you now". The accused told her, "Yes". Ms. Bury then called security who came immediately and spoke with her. It all occurred in a matter of seconds. [ 53 ] He then went to the right pocket of his hoodie, to retrieve the weapon and security told him to go slow.

The accused grabbed the firearm with two fingers and placed it in a plastic bag. [ 54 ] The medical personnel then took him into the emergency room and dealt with his wound. The police approached him while he sat in the bed. He confirmed who he was and the officer then arrested him for a breach and possession of a firearm. He spoke with a lawyer and also went to the police station. [ 55 ] He described how the bullet went into his hand. It hit two bones and then exited.

His hand was in a cast for about four to six months. [ 56 ] He described how his intention was to bring the firearm to the hospital, to a safe place, as he thought there would be security present to whom he could hand it over. The accused agreed he did not have a licence to possess this particular firearm. He denied that anyone shot him that evening. [ 57 ] He testified he did not want to leave the weapon at his studio as it would not have been safe to leave it there in his view.

It also did not cross his mind to leave it on the ground where he had initially found it. [ 58 ] In cross-examination he admitted that he thought his firearms prohibition had expired and he agreed he did not have the requisite firearms certifications. He acknowledged he had been sentenced in November of 2012 so that the prohibition was in place at the time of these alleged offences. He thought that someone had simply discarded the firearm or misplaced it in the area of Wells Road. [ 59 ] He testified he has not owned a revolver but that he had been to a gun range on a couple of occasions.

He agreed that as part of his attendance at the gun range, he was instructed as to how to handle a revolver in a safe manner. That meant being careful around the trigger. [ 60 ] He testified that the trigger was not in the lower position when he found it, but then his dog jerked the leash when he was holding the weapon. Thus, he had handled the firearm with his dog being on the leash, in the process of tugging. The dog was a 60- pound pit bull.

He agreed that he would have pulled the trigger in order for it to fire into his hand. [ 61 ] He did not know if there were more live rounds inside the handgun but he understood it to be a real firearm at the time it fired. He then put it in his hoodie pocket and took it to the studio in that pocket.

[62] He did not tell his friend that he still had the revolver. When he returned to his studio, he told his friend he had shot himself andthat they needed to go to the hospital. He was not aware of the position of the trigger while the gun was in his hoodie. He testified hehad no idea that the revolver had further live rounds. [63] He testified that it was his intention to bring the revolver to the police or security at the hospital and to get out of this position assoon as he could rather than leaving it behind at his studio.

He did not want to leave it at his studio as he was concerned that the policewould then attend his residence in order to look for it. He did not want that to occur. [64] He agreed there were patients waiting to get attention, and that the firearm could be loaded. He testified that Ms. Bury askedhim if he had brought the gun with him. He says “yes” but only after he had indicated he had shot himself. [65] The accused agreed he had made the decision to get into Mr.

Bertrand's vehicle, to travel to the hospital with the gun which waspotentially still loaded, but that his focus was more on his hand and getting medical attention. He agreed that he put the pistol into aplastic bag at the direction of the security guard. [66] The next witness, Mr. Bertrand, is 22 years of age. He has known the accused for about five years or so, and on the evening inquestion, he had gone over to the accused's studio to visit him. The accused was there drawing late into the evening and when hearrived, the two men played Xbox.

They played for a couple of hours and did not drink or do illicit drugs. [67] The accused then took his dog for a walk and when he returned, he was bleeding from his hand. The accused stated that theyneeded to go to the hospital. Mr. Bertrand was in shock trying to figure out what had happened. The accused told him that he had founda gun on the ground and that it had gone off when he picked it up. [68] The accused appeared to be in shock and in pain. The accused left his dog at the studio and Mr. Bertrand drove the accused tothe hospital. Mr.

Bertrand tried to ensure that the accused was alright and asked him how he felt. He did not ask the accused anyquestions about the gun. He was also not aware that the accused still had the gun on his person. [69] Mr. Bertrand dropped off his friend at the hospital and did not accompany him inside. The accused said he would be okay. Mr.Bertrand then went home. Mr. Bertrand denied that he had ever seen the revolver in question.

He thought that the accused had left thestudio to take his dog for a walk for about five minutes, which is less time than what was actually stated by the accused, but Mr.Bertrand went on to say he did not really remember the time that the accused was walking his dog. It was a short time that the accusedwould go for a walk with his dog. [70] I want to turn to submissions. Both counsel have turned my attention to the innocent possession line of authorities, which pointsout that some of the innocent possession cases recognize a public duty defence.

For example, as here, that the accused took possession ofthe revolver in order to deliver it to the authorities at the hospital. The innocent possession authorities recognize an absence of ablameworthy state of mind or blameworthy conduct and the authorities to which counsel have referred are the following: R. v. Chalk, 88OR 3(d) 448; R. v. Gossett, (SCC), [1993] 3 SCR 76; R. v. Creighton, (SCC), [1993] 3 SCR 3; R. v.Gollan, [1999] CJ No 3848; R. v. Ali, 2018 OJ No 2952; R. v. York, 2005 BCCA 74 , 2005 BCJ No 250; R. v. Gibson, 2011 OJNo 2664; R. v.

Adedokun, 2018 OJ No 1733. [71] Defence counsel referred to the public duty defence overview found at paragraph 23 of R. v. Adedokun, the decision of theOntario Superior Court of Justice. In that paragraph, the court quotes Justice Green in R. v. Loukas, 2006 ONCJ 219 at paragraph 12 asfollows: The notion of “public duty” is somewhat ambiguous. At narrowest, it suggests that the exemption (if such it is) from criminal liabilityapplies only to those, such as the police and court officers, who are required to occasionally possess legally prohibited items in theexecution of their professional responsibilities.

However, the facts in Hess [(1948), (BC CA), 94 C.C.C. 48(B.C.C.A.)] suggest a broader application. As explained by the Ontario Court of Appeal in R. v.

Ormerod (ON CA),[1969] 4 C.C.C. 3, at 16: “The concept of ‘public duty’ in the Hess case ... relates to the handling of things only for the purpose ofturning them over to the police, and not with even any momentary intention of keeping or using them.” Subsequent jurisprudence hasfurther enlarged the compass of this defence to include, at its most expansive, those situations where control over the unlawful goods isexercised solely for a worthy public purpose and without any intention of keeping, using or otherwise personally benefiting from theproperty.

In these circumstances, and consistent with the values enshrined in s. 7 of the Charter, the law is not prepared to infer acriminally blameworthy state of mind or, put otherwise, to punish the “morally innocent”. [72] The discussion continues at paragraph 24 where the court referred to Doherty J.A. writing for the court in R. v. Chalk, 2007ONCA 815 at paragraph 25 as follows: I agree with the analysis described above. There are cases where an individual has the requisite control and knowledge, but cannot besaid to be in possession for the purpose of imposing criminal liability.

These cases will include cases in which a person takes control ofcontraband exclusively for the purpose of immediately destroying the contraband or otherwise placing it permanently beyond thatperson’s ability to exercise any control over the contraband. In such cases, the intention is solely to divest oneself of control rather thanto possess. Like the other appellate courts whose discussions are referred to above, I do not think that criminal liability should attach tothat kind of brief, “innocent” possession: see eg., R. v. Glushek, supra; R. v.

York, supra. [73] As stated at the outset, the Crown, while not conceding Counts 1, 2, 4 and 5, quite fairly points out that the accused's version ofwhat occurred and likely handed the revolver over to the authorities at the hospital, may well raise a reasonable doubt based on the publicduty defence authorities. [74] I would like to turn first to the submissions of the defence and then the Crown. [75] Firstly, the defence invites me to accept that the accused stated to Ms. Bury at the counter rather than what Ms. Bury stated wassaid at the outset. Counsel submits that Ms.

Bury was mistaken at best about how she handled the firearm when in fact it was the

security guards who seized the revolver from him in the waiting room. Also, Ms. Bury did not have benefit of notes or a statement so that she was unable to say with any detail exactly how the transaction unfolded. [ 76 ] The accused stated that he told Ms. Bury he had shot himself, that he still had the gun on him and would like to hand it over to her. Defence invites me to accept the accused's version of what was said. [ 77 ] Defence counsel points out that the accused was cooperative with the security guards. He wanted to turn in the firearm to the authorities at the hospital.

Defence further submits that his evidence is inconsistent with his having possession of a revolver for an unlawful purpose. He then drew my attention to some of the authorities quoted above. [ 78 ] Defence submits that I must put the accused's explanation into context. In other words, that he had suffered from a serious gunshot wound, he was in need of medical attention, he was cooperative, and handed over the revolver without any difficulty. The accused did not have much time to reflect on the situation. He was in pain.

He was also sober at the time and did what he thought was best, although there were other routes he might have followed.

Counsel submits that the accused's explanation falls squarely within the public duty defence and furthermore, that his explanation does provide a lawful excuse with respect to Count 3, commonly referred to as the careless use of a firearm. [ 79 ] Defence submits that if I find the accused's possession was morally innocent, in that he turned the revolver over to the authorities, then it would be inconsistent for the court to find that he did not have a lawful excuse to possess the firearm in the manner described in Count 3.

Accordingly, defence invites the court to acquit the accused with respect to all five counts. [ 80 ] Turning to Crown submissions, the Crown submits there is sufficient evidence for the court to convict with respect to Count 3, the careless use of a firearm. The Crown submits that the accused had some experience with guns, having been to a gun range on two prior occasions. He had just suffered from a gunshot wound after picking up the revolver.

He chose to return to his residence and rather than leave the handgun at his residence, then call the police, he chose to transport it in his friend's vehicle to the hospital. [ 81 ] The accused confirmed that he did not know whether or not the revolver was loaded. Indeed it was loaded with three further live rounds. He agreed he was not trained in firearms and so he did not have any information on the dismantling of the firearm. Also, he had only one hand to use as the other one was injured.

So he did not have the ability to function, nor the knowledge, in order to make the gun safe even if he knew how to dismantle it. [ 82 ] The Crown submits that the accused's behaviour did amount to a marked departure from a reasonable standard of care in all the circumstances. [ 83 ] The Crown refers to the Ali decision and submits that while the facts are different in Ali than here, that the reasoning in Ali might be helpful when looking at the law in the area of the public duty defence as it relates to the issue of mens rea . [ 84 ] The Crown submits that there is a higher standard, however, when considering the careless use of a firearm.

A person who is in possession of a firearm must exercise a high standard of care to ensure that the public are protected. The Crown submits that the accused did not have a lawful excuse as set out in Count 3. The accused chose to leave his dog in the studio and could have made the same decision regarding the firearm. In other words, leave the revolver behind and proceed to the hospital. [ 85 ] He knew that the revolver had fired a bullet into his hand. He had not taken any steps to ensure that it would not be fired again.

He stated that the trigger had been in the up position when he found it and yet it still fired into his hand. The only evidence regarding how he transported the firearm to the hospital is that it was in his hoodie. [ 86 ] The security guards were careful about how the weapon was handed over to them. They testified that other people were in the waiting room at the time. The accused did not make the gun safe by pulling out the pin and thus, the cartridge, before arriving at the hospital.

So the accused could have chosen to leave the revolver where he found it rather than taking it to his studio, then in his friend's vehicle and lastly, into the hospital. [ 87 ] The accused could have chosen to call the police to advise them of the location of the firearm if he had left it on Wells Road rather than taking it with him. He could have taken a number of steps to ensure that the weapon was safe vis-à-vis the public. In fact, as retired Staff Sergeant Preston pointed out, this was a firearm that had the potential to explode if a bullet did not discharge properly.

It was a dangerous weapon. [ 88 ] The accused did not know if there were more rounds in the chamber. He simply chose to transport the revolver in his clothing into a public place, being the hospital. [ 89 ] In particular, the Crown relies on R. v. Ali . In Ali , the accused tried to dispose of an unregistered pistol. The court in Ali found that the accused's evidence that he disposed of the weapon in order to prevent someone from getting shot, was credible and accepted and, thus, that his possession of the handgun was innocent.

However, the court went on to find the accused's disposal of the firearm, albeit in a panic, was careless. [ 90 ] The Crown submits the accused was capable of appreciating the risk inherent in his actions and that the situation was inherently dangerous. The accused did not take reasonable steps to ensure the safety of others. He knew the revolver had fired. He had handled guns in the past, so he had some basic knowledge of firearms.

However, here he chose to take no precautions with respect to, what in essence was, a loaded revolver. [ 91 ] The Crown submits that the mens rea has been established with respect to Count 3 and for the same reasons as set out in R. v. Ali . As I have stated, the Crown does not press a conviction with respect to the balance of the counts given the totality of the Crown and defence evidence. [ 92 ] With respect to Counts 1, 2, 4 and 5, I find the accused has successfully raised what is oft referred to as the public duty defence.

I accept his explanation as to how he found the revolver, how it discharged into his hand and how he returned to his tattoo studio and asked his friend to drive him to the hospital keeping the revolver on his person the entire time. [ 93 ] I accept his explanation as to what he said to Ms. Bury at the emergency counter. I accept his explanation that he advised her that he had shot himself and that he had the firearm on him. Further, I accept his explanation that he did not want the weapon on his person while he was talking with the staff, that Ms. Bury asked him if he had it on him and that he then said “yes”.

Ms. Bury then called security who attended and the accused removed the revolver from the pocket of his hoodie. He placed the revolver into a bag, held by Mr. Bath. The accused was cooperative throughout his dealings with the authorities at the hospital. [ 94 ] I also find that the revolver falls within the definition of a firearm. I find the reasoning found in the public duty defence cases to be persuasive and especially the reasoning set out in R. v.

Adedokun , which sets out the overview of the public duty defence. [ 95 ] Accordingly, I acquit with respect to the four possession charges, being Counts 1, 2, 4 and 5. However, I disagree with the defence analysis with respect to Count 3, that the accused's explanation provides a lawful excuse. [ 96 ] I do not find that the public duty defence authorities apply to the circumstances with respect to Count 3.

The accused did make the choice to use then carry, handle, and transport in a motor vehicle, as well as store in his hoodie, the revolver in question. [ 97 ] He knew the revolver had fired one shot into his hand, yet he chose to return it to the studio without calling the police. He chose to transport it in a motor vehicle driven by his friend. He chose to enter the emergency at the Chilliwack General Hospital with the revolver in his pocket. He did not know much about guns, although he had been to a firing range on a couple of occasions.

He did not make any attempt to ensure that there were no further live rounds in the firearm, in indeed there were live rounds in the firearm. [ 98 ] There is evidence there were other persons in the hospital. Other patients were waiting and staff were present. The accused was also bound by a prohibition pursuant to s. 110(1) of the Criminal Code , such that he was prohibited from possessing a firearm or ammunition. [ 99 ] I accept that the accused advised the authorities at the hospital he was carrying a firearm and that he was cooperative in turning the firearm over to them.

His possession of the revolver was thus innocent, as I have found, however this behaviour of returning to his studio with the firearm, arranging for his friend to transport him to the hospital, and entering the hospital with the firearm in his hoodie, was careless. [ 100 ] I do not find that the public duty defence applies to all the circumstances of this case.

I do not find that the accused had a lawful excuse to carry, use, carry, handle, transport or store the firearm such as would be the case with police in their possession of service revolvers. [ 101 ] Also the accused made no diligent effort to ensure there were no further live rounds in the revolver. He did not know this particular revolver. He had found it on the ground and he chose to carry it without further precautions. He could have chosen to leave it by the roadside or at his studio.

He chose instead to transport it to a public place, the hospital. [ 102 ] Accordingly, I find the Crown has proven Count 3 beyond a reasonable doubt and convict the accused of that count. (REASONS FOR JUDGMENT CONCLUDED)