R v Robinz, 2023 ABKB 320

Court of King’s Bench of Alberta Citation: R v Robinz, 2023 ABKB 320 Date: 20230530 Docket: 210289369S1 Registry: Edmonton Between: His Majesty the King Respondent - and - Hunter Robinz Appellant _______________________________________________________ Reasons for Decision of the Honourable Justice John T. Henderson _______________________________________________________ I.

INTRODUCTION [ 1 ] On August 5, 2022, Hunter Robinz (the Appellant) was convicted after trial of careless use or storage of a firearm contrary to s 86(1) of the Criminal Code of Canada , RSC 1985, c C-46 ( Criminal Code ), but was acquitted of assault contrary to s 266 of the Criminal Code . The Appellant was sentenced to a fine of $1,000. The Appellant appeals both the conviction and the sentence.

II. FACTS [ 2 ] On March 13, 2021, the Appellant’s common-law wife, Madisen Miller (Ms. Miller), contacted Parkland RCMP to report an incident involving an alleged domestic assault that she claimed had occurred the previous day. In response to questions asked of her, Ms. Miller disclosed that the Appellant was employed by the Edmonton Police Service (EPS) and that he had an EPS issued firearm in his bedroom at his home in Stony Plain, Alberta. [ 3 ] Two RCMP officers (the officers) went to the Appellant’s home where they met Ms. Miller. The Appellant was not home at the time. Ms.

Miller showed the officers to the Appellant’s bedroom and, while looking in his closet, the officers found a large Pelican case that the officers recognized as being used for the storage and transportation of large firearms (the Pelican case). The Pelican case was unlocked. When the officers opened the case, they found a carbine rifle (the Carbine) and two magazines with live ammunition. The officers believed that the Carbine was being stored in an unsafe manner and they seized it. When the Appellant returned home later that day, he was arrested and charged with assault and careless storage of the Carbine. III.

ISSUES [ 4 ] With respect to the conviction, the Appellant argues that the Trial Judge erred when he found that the Crown had proven beyond a reasonable doubt that (1) the Carbine was a “firearm” as defined in the Criminal Code and (2) the Carbine was being stored in a careless manner. [ 5 ] With respect to the sentence, the Appellant submits that the sentence imposed was demonstrably unfit. [ 6 ] The Appellant argues that the appeal should be allowed and a verdict of not guilty should be substituted.

Alternatively, if the conviction is not overturned, the Appellant submits that a fit and proper sentence is a conditional discharge. [ 7 ] For the reasons that follow, I dismiss the appeal. IV. STANDARD OF REVIEW [ 8 ] Questions of law are reviewed on a standard of correctness: an appellate court is free to replace a trial judge’s conclusion with its own.

Findings and inferences of fact are reviewed on a standard of deference: an appellate court is not to reverse a trial judge’s factual findings or inferences unless it is established that the judge made a palpable and overriding error: Housen v Nikolaisen , 2002 SCC 33 . [ 9 ] Findings of credibility are questions of fact. An appellate court cannot interfere with a trial judge’s credibility assessments unless it is established that the trial judge’s findings cannot be supported on any reasonable view of the evidence: R v P(R) , 2012 SCC 22 , at para 10 .

Where a trial judge gives detailed reasons for judgment showing that he was alive to the “recurrent problems in this field of adjudication, the court of appeal brings no special insight to the assessment of the evidence...the fact that an appeal court judge would have had a doubt when the trial judge did not is insufficient to justify the conclusion that the trial judgment was unreasonable”: R v AG , 2000 SCC 17 , at para 29 ; R v Lofstrom 2020 ABCA 109 , at para 11 . [ 10 ] Sentencing decisions are entitled to a high level of deference on appeal.

Unless a sentence is demonstrably unfit or the sentencing judge made an error in principle that impacted the sentence, an appellate court must not vary the sentence: R v Parranto- Felix , 2021 SCC 46 , at paras 29 to 33 . V. GROUNDS OF APPEAL A. Was the Carbine a “firearm”? [ 11 ] To prove careless storage of a firearm, contrary to s 86(1) of the Criminal Code , the Crown must prove beyond a reasonable doubt that the Carbine is a “firearm” as defined in the Criminal Code .

A weapon is a “firearm” if it is a barrelled weapon from which any shot, bullet, or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person: Criminal Code s 2. [ 12 ] The Appellant submits that the Trial Judge erred in finding that the Crown had proven beyond a reasonable doubt that the Carbine was a “firearm” as defined by the Criminal Code . I disagree. [ 13 ] To prove that a weapon is a “firearm” as defined in the Criminal Code , the Crown can tender a Certificate of an Analyst pursuant to s 117.13(1) of the Criminal Code (the Certificate ).

The Certificate is an evidentiary shortcut that avoids the need to call other evidence from which it may be inferred that the weapon is a “firearm.” In this case, the Trial Judge ruled that the Certificate was not admissible, because the Crown did not prove that reasonable notice was given to the Appellant of its intention to tender the Certificate . The Trial Judge, therefore considered other evidence to determine whether the Carbine was a “firearm.” [ 14 ] The evidence before the Trial Judge demonstrated that the Appellant was very familiar with the Carbine and with firearms generally.

He had significant firearms training. He joined the Canadian Forces Primary Reserve as soon as he finished high school and spent three years in the Reserves before switching to the Regular Force. He was deployed twice to Afghanistan. His specialty was maintaining firearms and other weapons. When the Appellant left the military, he spent one year with Alberta Corrections before

becoming a member of EPS. At the time of trial, he had been an EPS member for 7 years. [15] The Appellant testified that carbines are used by police in high-risk situations and that a carbine can be a very powerfulweapon. The Appellant referred to the Carbine as a “firearm” during direct examination. He testified that the Carbine was the property ofEPS and that he had stored it in his locker at an EPS facility. He later took the Carbine to his home, without EPS permission. [16] The Appellant acknowledged that the Carbine is in most situations a “firearm,” as defined in the Criminal Code.

However, theAppellant testified that when the Carbine was in his bedroom closet, the bolt from the Carbine had been removed and locked in a safe inhis bedroom, and the ammunition for the Carbine was stored in his duty bag in the garage.

The Appellant testified that the Carbine’s bolt“is the entire way the weapon functions.” The Appellant submits that at the time that the officers seized the Carbine, it was not a“firearm” as defined by the Criminal Code, because without the bolt, the Carbine was not capable of firing any “shot, bullet, or otherprojectile,” and therefore, not “capable of causing serious bodily injury.” [17] The Appellant’s evidence gave rise to an alternate theory that the Appellant left the Carbine safely stored, but by the time theofficers found the Carbine, the bolt had been installed and live ammunition had been placed in the Pelican case.

The inference that is saidto arise from this alternate theory is that Ms. Miller retrieved the bolt from the safe and the ammunition from the duty bag and placedthem in the Pelican case before the officers arrived. Specifically, with respect to the ammunition, the Appellant testified: Q: The photographs that follow that show the magazine and the ammunition, that was in the Pelican [case]? A: I don’t store them in there. In this picture, they are in there.

But they were not there when I stored it. [18] The Appellant’s submissions and the alternate theory are inconsistent with the credibility findings and the findings of factmade by the Trial Judge. The Trial Judge did not accept the Appellant’s evidence that he removed the bolt and placed it in the safe orthat the ammunition was stored in the duty bag. The Trial Judge explained: [The Appellant] attempts to avoid liability by saying that he was not responsible for storing [the Carbine] that way. I reject that defence.

Ido not believe him when he says those things, nor in my mind put in doubt by his evidence. [19] The Trial Judge’s credibility findings on this point are entitled to deference and are supported by the evidence. [20] The Trial Judge further noted that the alternate theory was not presented to Ms. Miller in cross-examination, and Ms.

Millersaid nothing in her complaint to police about the Carbine until she was specifically asked by the officers about the presence of anyfirearms in the home. [21] Reading the whole of the Trial Judge’s decision, it is clear that he was satisfied beyond a reasonable doubt that when theCarbine was seized by the police officers, the Appellant was responsible for the manner in which it had been stored. At that time, theCarbine had the bolt installed and magazines with live ammunition in the Pelican case.

There is no reviewable error in that finding. [22] There was no error made by the Trial Judge in concluding that the Carbine was a “firearm” within the meaning of that term ins 2 of the Criminal Code. [23] This ground of appeal is therefore dismissed. B. Was the storage of the Carbine “careless”? [24] To secure a conviction for careless storage of a firearm, contrary to s 86(1) of the Criminal Code, the Crown must provebeyond a reasonable doubt that the firearm was stored carelessly.

To establish carelessness, the Crown must prove beyond a reasonabledoubt that the conditions under which the firearm was stored constituted a marked departure from the standard of a reasonably prudentperson and that the accused had no lawful excuse: R v Creighton, (SCC), [1993] 3 SCR 3; R v Finlay, (SCC), [1993] 3 SCR 103. This involves an objective assessment of the evidence. [25] Cpl. Ald was one of the officers who attended at the Appellant’s home on March 13, 2021. He spoke to Ms. Miller whoshowed him into the Appellant’s bedroom. Cpl. Ald looked in the bedroom closet and saw the Pelican case.

He testified that herecognized the Pelican case as being identical to the cases used by RCMP to transport rifles in police vehicles and described it as a largeplastic box with foam inserts to permit the firearms to be secured snuggly and to prevent them from banging around. [26] Cpl. Ald testified that the Pelican case did not have a lock on the outside of the case. When he opened the Pelican case, hesaw the Carbine and two magazines, each of which was loaded with approximately 20 rounds of live ammunition. These magazines weremuch larger than what is permitted for use by the general public.

The Pelican case also contained a magazine for a pistol, but thatmagazine was not loaded. Cpl. Ald found the Carbine’s safety switch in the “off” position, there was no bolt plug in the injection port,and there was no trigger lock. In Cpl. Ald’s view, this rendered the Carbine unsafe. He took the Carbine out of the Pelican case andrendered it safe by switching the safety switch to the “on” position before turning it over to his partner, Cst. Turcot for seizure andprocessing. [27] Cst. Turcot testified that the Carbine was similar to those used by the RCMP.

These types of carbines are manufactured onlyfor law enforcement agencies and are used for scene containment when there is an active shooter or when suspects have long guns orother firearms. It was not common practice for police officers to bring carbines to their homes. [28] The Appellant was specifically asked about the storage of the Carbine. The Appellant conceded that he had taken the Carbinefrom the EPS storage locker and that he stored the Carbine. The Appellant was asked whether he had taken steps to make the storagesafe. His evidence was:

Q: So Mr. Robinz, on March 13, of 2021, did you believe your firearm was properly stored safely? A: Yes, I did. Q: Can you tell us why? A: Because I store it in the same way I always do, in a room that can lock in a locked case with the bolt carrier unit which is the entireway the weapon functions was stored in the safe next to it. [29] The Trial Judge did not believe the Appellant’s evidence on this point.

The Trial Judge rejected the Appellant’s defencewhich was premised on him having taken steps to safely store the Carbine by removing the bolt and locking it in the safe, and by placingthe ammunition in his duty bag in the garage. After rejecting the Appellant’s evidence and finding that it did not raise a reasonable doubt,the Trial Judge drew an inference that Appellant had conceded that the Carbine was being stored carelessly when it was seized by police.The Trial Judge said: The first inference I naturally draw from that testimony is that Mr.

Robinz concedes that the evidence I have from the police officersshows that at the time the police officers seized the firearm it was stored carelessly. [30] The Trial Judge agreed with the concession on carelessness at the time that police seized the Carbine. [31] The Trial Judge did not expressly make a finding of a “marked departure” from the conduct expected of a reasonable person,which is the test that must be met to conclude that there has been carelessness.

While it would have been preferable for the Trial Judge tohave specifically addressed this test, the failure to do so is not fatal to his conclusion regarding carelessness. A similar situation arose inR v Bird, 2020 ABCA 236, where the accused was charged with an offence under s 86(1) of the Criminal Code. The arguments at trialfocused on the issue of possession of the firearm and whether the accused knew that the motor vehicle had been stolen. The trial judgedid not make a finding of a “marked departure” in the accused’s handling of the firearm.

The Court of Appeal concluded that while therewas no express finding of a “marked departure,” on the facts disclosed on the record, the standard was nevertheless met. [32] In this case, the facts disclosed on the record are sufficient to conclude, on an objective assessment, that the “markeddeparture” test has been met. [33] The Appellant argues that even accepting the findings of fact made by the Trial Judge, the Appellant’s conduct in storing theCarbine was not a “marked departure” from the conduct expected of a reasonable person.

The Appellant submits that the Carbine was: • in a closet which only the Appellant used; • in a Pelican case that was capable of being locked; • in a hard non-transparent Pelican case that was under clothing; • in a bedroom that was capable of being locked; • in a house that was capable of being locked. [34] The Appellant submits that in these circumstances, the Carbine was safely stored because there was no reasonable risk thatanyone could be harmed by the Carbine.

Alternatively, even if there was a marked departure from the conduct expected of a reasonableperson, the Appellant took reasonable precautions to discharge his duty in the circumstances. [35] In support of his submissions, the Appellant cites several cases in which firearms have been found in homes or vehicles, andwhere no finding of carelessness has been made. I have reviewed those cases and conclude that all are distinguishable from the presentcase for a variety of reasons. Some involve situations in which no ammunition was in the immediate area. Some involve loaded firearmswhich were locked in compartments.

None are reasonably comparable to the present case. [36] It is important to note that at the time that the Appellant took the Carbine, EPS had relieved the Appellant of possession of hisEPS side arm as a result of an unrelated investigation. Further, the Carbine was property of EPS. The Appellant took the Carbine fromhis EPS locker knowing that EPS did not consent to his possession of the firearm. The Appellant admitted that he was surprised that EPShad not asked him about the Carbine and that the Carbine was a high-powered firearm that could cause substantial harm to persons andproperty.

Given all of those facts, a reasonable person would take appropriate steps to ensure that the Carbine was stored in a fashion thatwould have eliminated or greatly reduced the risks associated with the Carbine. [37] The Trial Judge made no error in concluding that the Appellant took no such steps. [38] The Appellant was very familiar with precautions that could be taken to safely store the Carbine.

He testified that the Carbinecould have been placed in a locked room or in a locked safe or case, that it was common to have some sort of a cable lock on riflessimilar to a bike lock, and that removing the bolt would render the weapon inert. [39] Despite his knowledge of the precautions that could be taken, none of these steps were taken here. While the Pelican casewas capable of being locked, it was not locked when the officers found it. While the house and the bedroom were capable of beinglocked, they were not locked at the time of the investigation. Even if the house and bedroom had been locked, Ms.

Miller had easyaccess to the home and the bedroom, and provided that access to police. [40] Carelessness can be proven even if only one person is put at risk in relation to the firearm: R v Cannon, (ON CA), 37 CCC (2d) 325 (Ont CA) at para 5. When police seized the Carbine, the safety was not engaged, there was no trigger lock,there was no bolt plug in the injection port, and there were two magazines loaded with live ammunition in the Pelican case with theCarbine. Ms. Miller resided in the home. The Appellant testified that Ms. Miller had a serious alcohol problem that made her more

vulnerable to the risks associated with having a high-powered police carbine rifle in the home. Even more significantly, the Appellant’s child visited the home every second week. [ 41 ] The record discloses that there was a “marked departure” from the conduct expected of a reasonable person and that the Appellant failed to take reasonable precautions. Therefore, there was no error in the Trial Judge’s conclusion that the Appellant was careless in the storage of the Carbine. [ 42 ] This ground of appeal is therefore dismissed. C.

Was the sentence imposed demonstrably unfit? [ 43 ] The Appellant argues that the Sentencing Judge erred in concluding that a conditional discharge was not appropriate in this case. [ 44 ] The Appellant complains that the Sentencing Judge denied his request for a pre-sentence report. After a finding of guilt, pre- sentence reports are often requested by the Defence so that appropriate information regarding an offender can be put before the sentencing judge. However, pre-sentence reports are not mandatory, and a sentencing judge has discretion to decline to order such a report.

Where an offender is not in jeopardy of receiving a custodial sentence, pre-sentence reports are often not ordered. Instead, the sentencing judge relies on counsel to obtain background information regarding the offender to assist with sentencing. A decision to not order a pre-sentence report is an exercise of judicial discretion which should not be lightly interfered with on appeal. [ 45 ] In this case, there was no error in the Sentencing Judge’s decision to not order a pre-sentence report. The Sentencing Judge had sufficient and detailed antecedent information about the Offender from counsel.

The Sentencing Judge considered this information when he imposed sentence. [ 46 ] More substantively, the Appellant submits that a conditional discharge should have been granted. A sentencing judge can impose a conditional discharge pursuant to s 730(1) of the Criminal Code , if it is in the best interests of the offender and where it is not contrary to the public interest.

Conditional discharges should be granted sparingly because “one of the strongest deterrents to criminal activity, particularly in the case of those who have no records, is the fear of the acquisition of a criminal record: R v MacFarlane , 1976 ALTASCAD 6 [ MacFarlane ], at para 13 . [ 47 ] There is no error in the Sentencing Judge’s reasons for declining to impose a discharge. The Sentencing Judge did not specifically refer to all six factors outlined MacFarlane (paras 15 – 20 ), but he did assess those factors that he considered most applicable.

The Sentencing Judge concluded that the offence was planned and not impulsive. He concluded the seriousness of the offence argued against the public interest component because a carbine is “potentially very very dangerous to the public,”. He also concluded that the conviction should be a matter of public record. The Trial Judge made no error in this assessment. [ 48 ] The sentence imposed is not demonstrably unfit. This ground of appeal is therefore dismissed. VI. CONCLUSION [ 49 ] For the above reasons, the appeal is dismissed. Heard on the 11 th day of May, 2023.

Dated at the City of Edmonton, Alberta this 30 th day of May, 2023. John T. Henderson J.C.K.B.A. Appearances: R. Ziegler for the Respondent A. Juneja and A. Chadi

for the Appellant