R. v. Arnaquq, 2015 NUCJ 21

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Arnaquq, 2015 NUCJ 21 Date: 20150721 Docket: 02-14-16 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Gary Arnaquq ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): Caroline Lirette Counsel (Accused): Kathryn Kellough Location Heard: Qikiqtarjuaq and Iqaluit, Nunavut Date Heard: February 18, 201; March 20, 2015; June 24, 2015 Matters: Criminal Code, s. 86(1) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Mr. Arnaquq has pled guilty to a charge of handling a weapon in a careless manner, contrary to Section 86(1) of the Canadian Criminal Code, RSC 1985, c C-46 [ Criminal Code ]. [ 2 ] Counsel put forward a joint submission on a sentence of one day in jail, followed by a period of probation. Both counsel stressed that rehabilitation should be a primary consideration in sentencing. II. BACKGROUND [ 3 ] Mr. Arnaquq was in distress on the evening in question and attempted suicide with a rifle. His common-law wife intervened and stopped him. [ 4 ] Mr.

Arnaquq is 33 years old and is from Qikiqtarjuaq. He had a difficult childhood. He enjoyed academic success in school, but only went to grade 10. He holds a prospectors license and has worked in geology camps. He also carves and has worked as an outfitter. He and his common-law wife of eight years have two young daughters. [ 5 ] Since the incident, Mr. Arnaquq has stopped drinking. He has had counselling by telephone on one occasion and is interested in attending intensive counselling in the south.

It seems he suffers from depression, which is currently being managed through medication. [ 6 ] As a result of this conviction, Mr. Arnaquq will be on a firearms prohibition. This will have a significant impact on his life as he spends considerable time on the land either hunting, outfitting, or with research groups. It will also have an impact on his family as it will limit their access to country food. [ 7 ] The joint submission put forward by counsel is reasonable. The sentence will be one day in jail, deemed served by attendance in court, followed by a period of probation for one year.

The terms of the probation order are to: 1. Keep the peace and be of good behaviour; 2. Appear before court when required to do so; 3. Notify the court or probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; 4. Report to the probation officer within 5 days of today and thereafter as directed; and to 5.

Take such counselling as directed by the probation officer, including residential treatment. [ 8 ] While the imposition of a firearms prohibition is discretionary pursuant to s. 110 of the Criminal Code , it is clearly called for given the circumstances. Mr. Arnaquq has a lengthy criminal record which includes convictions for offences of violence and for uttering threats. It is noteworthy that he was placed on a five year firearms prohibition order in 2005. Unfortunately, the improper use of firearms is becoming far too common in this jurisdiction, sometimes with tragic consequences.

There will be a firearms prohibition for 10 years. [ 9 ] There will be a victim of crime surcharge of $100.00. [ 10 ] The remaining issue is whether all of the firearms seized at the time of the incident should be forfeited or if only the firearm which was handled in a careless manner should be forfeited. III. FACTS

[ 11 ] On the evening in question, the Royal Canadian Mounted Police [RCMP] received a call from the common-law wife of the accused advising that he was intoxicated and had tried shooting himself with a rifle. She advised that she had tried to take the gun away from the accused and, in the course of doing so, had accidentally pulled the trigger causing the firearm to discharge. No one was injured. She requested that the police attend at the residence and remove all of the firearms. [ 12 ] The RCMP attended at the residence and seized six firearms and some ammunition, none of which were properly stored.

It is agreed that Mr. Arnaquq handled only one firearm in the course of the incident substantiating the conviction and that he is the lawful owner of all of the items seized. IV. POSITIONS OF THE PARTIES [ 13 ] The Crown takes the position that all of the firearms and ammunition which were seized should be forfeited pursuant to Criminal Code section 491(1) (b). [ 14 ] The Defence takes the position that only the firearm that was handled in a careless manner and discharged should be forfeited.

They submit that, although the other firearms and ammunition may have been improperly stored, that is not a charge for which the accused is being sentenced. V. ANALYSIS [ 15 ] Prior to the most recent amendments, the relevant provision of the Criminal Code was as follows: s. 491(1) Subject to subsection (2), where it is determined by a court that a weapon or ammunition was used in the commission of an offence or that a person has committed an offence under

section 91 with respect to a restricted weapon, and the weapon or ammunition has been seized and detained, the weapon or ammunition is forfeited and may be dealt with as the court that makes the determination directs. [ 16 ] The Criminal Code now provides as follows: s. 491(1) Subject to subsection (2), where it is determined by a court that (

a) a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence and that thing has been seized and detained, or (

b) that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and any such thing has been seized and detained, the thing so seized and detained is forfeited to Her Majesty and shall be disposed of as the Attorney General directs. [ 17 ] In R v Roberts, 2005 SKPC 88 , 199 CCC (3d) 442 [Roberts] , the accused had two loaded firearms in his vehicle and was convicted of transporting a firearm without reasonable precautions for safety. The firearms were forfeited pursuant to Criminal Code

section 491 (

b) as they were found to be the “subject matter” of the offence. [ 18 ] In R v Schreiner, 2008 SKPC 105 , 319 Sask R 72 [Schreiner] , the police attended a residence after being alerted to a suicide attempt in which a firearm was used. An improperly stored rifle was found in the residence and the owner was convicted of improper storage. The firearm was forfeited as it was found to be the “subject matter” of the charge.

[19] In R v Conway, [2009] OJ No 2581, (ON SC) [Conway], the accused was convicted of being in possession of afirearm without having a license to possess it. The firearm in question was forfeited pursuant to Criminal Code

section 491(

b) as it wasfound to be the “subject matter” of the charge. [20] Roberts, Schreiner, and Conway all dealt with firearms which were clearly the subject matter of the conviction and are therefore oflittle assistance to me in determining the discrete issue before the court in this case. There is no dispute that forfeiture under CriminalCode s. 491(

b) is mandatory, provided the criteria set out in that

section are met. The issue before me is whether those criteria wereindeed met in this case. In other words, were the accused’s firearms, other than the one that was discharged, involved in or the subjectmatter of the conviction? [21] The Queen v Montague, 2012 ONSC 2300, 101 WCB (2d) 466 [Montague], also stands for the proposition that forfeiture ismandatory, and that, accordingly, the court does not have any discretion under Criminal Code

section 491(

b) once the criteria under thissection are met. Interestingly, the accused in Montague was convicted by a jury of having stored ammunition in a manner “readilyavailable” to a prohibited or restricted weapon and, as a result, the Crown sought forfeiture of the ammunition. It was later determinedthat the ammunition was stored in compliance with the relevant regulations and the jury was not aware of this fact. The same set of factscould have supported a conviction for possession of a prohibited or restricted weapon without a license. Despite this, the court declinedto order forfeiture of the ammunition.

It was of the view that such a procedure lacked due process. [22] It is this aspect of the Montague case – the concern with due process – that is most relevant to the matter before me. The accusedhas not been convicted of improper storage of firearms. Thus, the Crown is essentially asking the Court to make a finding, in the contextof a process that is not a trial process, that the offence of improper storage of firearms has been committed. [23] In my view, such a process is contrary to fundamental principles of due process. An accused person must know the case they areexpected to meet prior to making pleas.

The approach put forward by the Crown calls upon an accused to defend a charge that is notbefore the Court. [24] In my view, support for the Crown's position cannot be found in the argument that such an

interpretation is necessary to ensurepublic safety.

Section 111 of the Criminal Code provides a process whereby a citizen can be prohibited from possessing a firearm for aperiod of up to 5 years, if such a prohibition is in the interest of public safety. This determination is made on a reasonable grounds basisand does not require that a criminal offence be committed or that a criminal conviction be entered. [25] Further, in circumstances such as this, where the accused has been convicted of a firearms related offence, it is likely that they willbe placed on a firearms prohibition.

Since any such accused would be unable to lawfully possess firearms, those firearms in the accused’spossession that fall outside the ambit of Criminal Code s. 491 could be transferred or sold to a third party. Such an approach wouldaddress the public policy concern of safety while avoiding an additional penalty of financial loss to the accused resulting from theforfeiture of property. VI.

CONCLUSION [26] Accordingly, I direct that only the “3030” rifle be forfeited to the Crown pursuant to Criminal Code s. 491(b). [27] The balance of the firearms may be released to a person eligible to possess a firearm, pursuant to a direction from the accused or hiscounsel. Dated at the City of Iqaluit this 21st day of July, 2015

___________________ Justice S. Cooper Nunavut Court of Justice