R. v. Omik, 2019 NUCJ 1

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Omik, 2019 NUCJ 01 Date: 20190129 Docket: 11-18-70 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Brian Omik ________________________________________________________________________ Before: The Honourable Madam Justice Susan Cooper Counsel (Crown): Sarah Bailey Counsel (Accused): Ilan Neuman Location Heard: Iqaluit & Pond Inlet, Nunavut Date Heard: November 20, 2018; January 29, 2019 Matters: Conviction pursuant to Criminal Code , RSC 1985, c C-46 , ss 86, 87, and 270.01(1).

Application of Rule from R v Kienapple. REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Mr. Brian Omik is charged with two counts of pointing a firearm contrary to Criminal Code , RSC 1985, c C-46 [ Criminal Code ], s. 87 , two counts of threatening to use a firearm in the commission of an assault against a police officer contrary to s. 270.01(1) , one count of careless storage of a firearm contrary to s. 86(1) , and one count of assault contrary to s. 266 that was stayed before trial. II.

EVIDENCE [ 2 ] At trial the court heard from four witnesses. [ 3 ] On July 27, 2018, Royal Canadian Mounted Police [RCMP] in Pond Inlet received information from the spouse of the accused that she had been assaulted by him. Two RCMP officers went to the residence to arrest the accused. They went up the exterior stairs to the residence and knocked on the door. There was no response. The officers tried the door but it was locked. When the accused opened the door, he had a rifle.

Up to this point the police had not identified themselves. [ 4 ] One of the responding police officers testified that the accused initially held the rifle at a slightly downward angle, then he raised it to approximately waist level and pointed it at the officers. The officers immediately moved to the sides of the door, one to the left and one to the right, and yelled at the accused to put the rifle down. The officer testified that the accused was trying to work the action on the rifle. He was unable to say if the accused was loading or unloading the chamber.

The officers kept yelling at the accused to put the rifle down. [ 5 ] The incident ended when the accused slowly lowered the barrel of the rifle and put it down. The whole incident took about 30 to 60 seconds. The accused did not say anything at any point. [ 6 ] The accused was intoxicated. The officer testified that the accused had slurred speech and a strong odour of alcohol. [ 7 ] The sister of the accused testified. She was drinking with the accused that night. She testified that in her opinion the accused was “super drunk”. [ 8 ] The spouse of the accused testified.

She testified that she was home with the accused that night and that at some point he left the house. When he came back to the house she opened the door to let him in and could tell from his facial expressions that he was blacked out. She let him in the house and she went to bed. The accused came to bed, but did not go to sleep. He was agitated and swearing. She told him that if he kept swearing she would call the cops, which she did. She testified that he tried to hit her once and did actually hit her on the head once. She left the house and saw the police arrive.

She advised the police that the accused had assaulted her. [ 9 ] The accused testified that he was highly intoxicated. He testified as to the amount he had had to drink that evening, which was substantial. He recalls walking outside with his sister, at which point he blacked out. The next thing he recalls is waking up in RCMP cells. He has no recollection of the incident with the police and the rifle at the door to his residence. [ 10 ] The accused testified that he is a hunter and he normally keeps his firearms in the corner of his porch.

He has a lock for them, but he says that on that day he forgot to lock them. He testified that he does not store them loaded, but that he does keep his ammunition in the porch.

III. POSITIONS OF THE PARTIES [ 11 ] The Crown submits that the evidence establishes that the accused pointed the rifle at the police officers and that in raising the rifle to waist level, it is clear that he intended to do so. They submit that intoxication is not a defence to this charge. Further, the Crown submits that the brief duration of the incident is irrelevant to whether or not the charge is made out. [ 12 ] With respect the offence of threatening to use a firearm in the commission of an assault against the police, the Crown submits that the pointing of the rifle is an assault.

The Crown concedes that to be convicted of the offence the Crown must establish beyond a reasonable doubt that the accused knew the complainants were police officers. [ 13 ] The Defence concedes that the accused should be convicted of careless storage of a firearm. [ 14 ] The Defence submits that the offence of pointing a firearm is a specific intent offence and that the level of intoxication of the accused at the very least raises a reasonable doubt as to whether the accused had the specific intent necessary to commit the offence. [ 15 ] With respect to the offence of threatening to use a firearm in the commission of an assault against the police, the Defence submits that the level of intoxication again, at the very least, raises a reasonable doubt as to whether the accused knew the complainants were police officers.

IV. FINDING OF FACTS [ 16 ] Prior to embarking on a legal analysis, it is necessary for me to make findings of fact in relation to the evidence. [ 17 ] Much of the evidence is not in dispute. [ 18 ] I accept the evidence of the police officer regarding the incident that unfolded at the residence. I accept that the accused answered the door holding a rifle with the barrel pointed somewhat downwards, but towards the officers.

I accept that he then raised the rifle to waist level, again, with the barrel towards the officers. [ 19 ] I also accept that the accused was highly intoxicated and has little to no recollection of the event. V. ANALYSIS [ 20 ]

An act is criminal only if there is a “guilty act” (actus reus) and a “guilty mind” (mens rea), both of which must occur or be present at the same time. [ 21 ] It is not a criminal offence to think about assaulting someone if one does not act on the thought. In such an instance there would be a guilty mind, but no guilty act. Conversely, it is not a criminal offence if a person trips and falls in to another person.

In such an instance there is the application of force to another person but there is no intention to apply the force as the person tripped and it was a true accident. [ 22 ] Criminal offences are categorized into “general intent” and “specific intent” offences. The distinction is an important one, as the onus on the Crown as to what it must prove is greater for a specific intent offence than it is for a general intent offence.

[ 23 ] The distinction is also important because intoxication may be a defence to a specific intent offence. It is not a defence to a general intent offence. [ 24 ] General intent offences require minimal thought and reasoning and no intent beyond the intent to do the act which constitutes the actus reus of the offence. [ 25 ] Specific intent offences require a more complex reasoning and thought process.

They require the formation of an ulterior motive or purpose or actual knowledge of a particular set of circumstances or consequences. [ 26 ] In R v Tatton , 2015 SCC 33 , [2015] 2 SCR 574 [ Tatton ] , the Supreme Court of Canada established the analysis to be undertaken when determining if an offence is one of general intent or one of specific intent. [ 27 ] The first step in the analysis it to determine what the mental element of the offence is. [ 28 ] The second step is to determine whether that mental element is one of general intent or specific intent. This is determined by first looking at the jurisprudence.

If the offence has been satisfactorily categorized as general or specific intent by existing jurisprudence, there is no need to go further in the analysis. [ 29 ] If the jurisprudence is unclear, the court should proceed to consider the importance of the mental element; that being, the complexity of the thought and reasoning process that make up the mental element of the offence. [ 30 ] The mental element of a specific intent offence may require actual knowledge of a particular set of circumstances.

An example of such an offence is possession of stolen property, where an accused must not only intend to possess the property, he must do so with knowledge that the property is stolen. [ 31 ] The mental element of a specific intent offence may require an intention to bring about a certain consequence. An example of such an offence is murder, where an accused must intend not only the physical act which harms the victim, he must intend to cause death or know that death is likely. [ 32 ] The mental element of a specific intent offence may require that the act be done to achieve an ulterior motive.

An example of this is assault with intent to resist arrest. The accused must not only assault the victim, he must do so with the intent that in doing so, an arrest might be evaded. [ 33 ] If an analysis of the mental element of the offence supports the proposition that the offence requires a heightened mental state than that of simply doing the physical act, then the court might conclude that the offence is one of specific intent. [ 34 ] If analysis of the mental element does not result in a conclusive categorization of the offence, then the court must proceed to policy considerations.

Such policy considerations are whether intoxicants habitually play a role in the commission of the offence, whether there is a lesser and included general intent offence, and whether there is wide discretion at the sentencing stage as opposed to a significant mandatory minimum penalty. VI. POINTING A FIREARM [ 35 ] In applying the Tatton analysis to the offence of pointing a firearm, I conclude that the offence is one of general intent. [ 36 ] I do not need to go far in to the analysis to reach such a conclusion, as the matter has been conclusively decided in existing

jurisprudence. [37] In R v Kelly, 50 Nfld & PEIR 106, [Kelly], the court dealt precisely with this issue in the context of an appealfrom acquittal on a charge of pointing a firearm. The acquittal was based on the trial court having classified the offence as one ofspecific intent and having found that the voluntary consumption of alcohol by the accused precluded him from forming the necessaryintent.

The appeal court overturned the acquittal and entered a conviction, holding that the offence of pointing a firearm is a generalintent offence. [38] In R v Goard, 2014 ONSC 2215, 310 CCC (3d) 491 [Goard], the court had before it an accused with multiple charges,including pointing a firearm. The court was required to consider whether intoxication was a defence to any of the offences. The courtstated: [107] To conclude this part of the intoxication analysis, Mr. Goard cannot rely upon the defence of extreme intoxication to negate thebasic intent for assault, being a constituent element of robbery.

Nor can it negate the basic or general intent for pointing a firearm, contrary to s. 87(1) of the Criminal Code. [39] This conclusion by the court in Goard does not appear to have been a matter of contention, and I expect this is because the partiesconsidered the law in this regard to have been well settled. [40] I appreciate that both Kelly and Goard predate the SCC decision in Tatton, however, I see nothing in Tatton that would lead me toreconsider their findings regarding the categorization of the offence. [41] Nonetheless, for the sake of completeness, I will proceed to analyse the offence through the lens of the Tatton analysis.

A. Tatton Analysis [42] The mental element of the offence of pointing a firearm is the intent to bring the barrel of a firearm in line with a person. This doesnot require complex reasoning. This need not be done for any ulterior purpose, it need not be done for the purpose of bringing aboutcertain results, and it does not require any particular circumstances which the accused must be aware of. [43] Further, an analysis of social policy considerations also leads to the conclusion that the offence of pointing a firearm is one ofgeneral intent. These types of offences are frequently alcohol related.

As stated in Tatton, this mitigates against a finding that theoffence is one of specific intent, as it would be counter-intuitive to permit accused persons to rely on self-induced intoxication as adefence to offences that are often committed while intoxicated. [44] The thrust of the Defence argument is that the barrel of a firearm must be pointing in some direction. If that direction happens tobe towards a person, without the accused having deliberately directed the barrel, there cannot be a conviction.

I agree with thisproposition, however, I find that it is not applicable to the facts in this case. [45] In this case, the accused opened the door in response to a knocking sound. He had to have known that there were people on theother side of the door. Nonetheless, when he opened the door he had the barrel of the rifle directed towards where those people wouldbe. [46] While the incident did not last long, the accused did not immediately change the direction of the barrel. Instead, he brought it up tohis waist, still pointed in the direction of the officers.

He worked the bolt, while the barrel was still in the direction of the officers. [47] I find the accused guilty of pointing a firearm.

VII. THREATENING TO USE A FIREARM IN THE COMMISSION OF AN ASSAULT AGAINST A PEACE OFFICER [48] I will now consider the offences of threatening to use a firearm in assaulting a peace officer. [49] The offence as charged requires that the accused know that the victim is a police officer.

This particular circumstance which theaccused must have knowledge of places this offence in the category of specific intent. [50] The evidence of intoxication, including the evidence led by those who know the accused and know what is like both sober andintoxicated, and the evidence regarding the amount of alcohol consumed, establish that the accused was highly intoxicated. I amsatisfied that the level of intoxication of the accused raises a reasonable doubt as to whether he was aware that the people at his doorwere police officers.

Accordingly, he cannot be found guilty of the offence as charged. [51] Assault is a lesser and included offence of the offence as charged. Assault is a general intent offence. [52] A person commits an assault when he threatens, by

an act or gesture, to apply force to another person, if he has or causes that otherperson to believe upon reasonable grounds that he has, present ability to effect his purpose. [53] Pointing a firearm at a person is

an act or gesture that threatens the application of force. On this basis, the accused is also guilty ofassault. VII. APPLICATION OF THE RULE FROM R V KIENAPPLE [54] I must consider whether a judicial stay should be entered on some of the charges so that we do not run afoul of the rule againstmultiple convictions, as set out in R v Kienapple, [1975] 1 SCR 729, (SCC). [55] Clearly, there is a factual nexus between the charges of pointing a firearm and the assaults.

The same actions form the actus reusof each of the offences. [56] There is also a legal nexus between the offences; the convictions clearly engage the same matter or delict. [57] I find that the accused cannot be convicted for both pointing a firearm and threatening to use a weapon in an assault. The issuethen becomes, which charges should be stayed? [58] There is case law which supports the proposition that convictions should be entered on the “most serious” charges.

There can bedifficulties with this approach. [59] The most obvious manner of determining which charges are the most serious is to look at the available penalties. However,pointing a firearm, proceeded with summarily, carries a maximum penalty of six months. Threatening to use a weapon in the course ofan assault, proceeded with summarily, carries a maximum penalty of 18 months. Application of this approach would result in pointing afirearm charges being stayed. [60] In my view, this approach may be the appropriate when the facts of the case equally support convictions for either offence.

I donot view this matter as such a case. In my view, it is important to enter convictions that most accurately and fairly represent theoffending conduct.

[61] It is important to work from the basic principle, which underlies the rule against multiple convictions, namely that the court willexercise its power to enter a stay in those instances where the Crown is overreaching and seeking multiple convictions on the samematter. [62] As stated in R v Robinson, 2018 ONCJ 322 at para 19: When the “most serious” issue cannot be determined by a comparative analysis of the multiple convictions’ legal elements, a court mustthen turn to the “factual” elements with a view to determining which of those multiple convictions fully and fairly reflects the offender’smoral blameworthiness for the single criminal act.

Proportionality is the fundamental principle of sentencing. As the Supreme Court ofCanada emphasized in R. v. Nasogaluak: … the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender'ssentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thusconverge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary. Proportionate sentencing was the animating purpose behind the emergence of the Rule in Kienapple.

Proper application of theproportionality principle begins with fair labelling of the offender’s criminal conduct. [Emphasis in Original]. [63] Based on this approach, the accused should only be convicted of two counts of pointing a firearm. [64] There will be a conviction on the charge of careless storage of a firearm. [65] There will be judicial stays on the two counts of threatening to use a weapon in the course of an assault against a Peace Officer. Dated at the City of Iqaluit this 29th day of January, 2019 ___________________ Justice S. Cooper Nunavut Court of Justice