Her Majesty the Queen - v. -, 2014 SKPC 133

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 133 Date: June 24, 2014 Information: 44086575 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - Richard Bruce Pulfer Appearing: Mr. Adam M. Breker For the Crown Mr. Michael R. Weger For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, Richard Bruce Pulfer, is charged that on May 27, 2013, he handled or used a firearm, a 22 calibre Ruger rifle in a careless manner, contrary to s. 86(1) of the Criminal Code . The issue is whether the accused’s actions constituted the offence of careless handling of a firearm. THE EVIDENCE

[2] Mr. Raymond Yung testified that he and his spouse live on a farm approximately five miles from Weyburn. The accused,Richard Pulfer, lives approximately 100 yards away. There is a treed lane way or roadway that connects the two properties. [3] On May 27, 2013, Mr. Yung and his spouse and their daughter arrived home in the early evening hours. It was still verylight out. Mr. Yung saw a bird that he described as a Drackle. He testified that these birds are a bit of a nuisance, so he got out his 22and took a few shots at them. In the course of doing this, he did kill one of the birds.

He testified that he was careful to shoot away fromthe accused’s property. [4] Just after having done this, he was showing his wife and daughter the bird that he had killed. At this time, he heard theaccused holler: “Hey Ray. Do you want to see some shooting?” Or “How about this shooting?” Mr. Yung said he turned around andsaw the accused approximately 100 yards away. The accused raised a firearm, pointing it over the heads of Mr. Yung and his family andquickly fired off approximately six or seven shots. Mr. Yung was cross-examined as to the direction of these shots.

He clearly statedthat the accused’s gun was pointed in their direction, but up at an angle so that the bullets would go over their heads. [5] Mr. Yung instantly became scared and angry and approached the accused. He and the accused argued, and they agreed thathe would call the police. He did that, and the police arrived shortly thereafter. [6] Under cross-examination, Mr. Yung agreed that he and Mr. Pulfer haven’t always got along, and have had at least oneheated discussion. He also agreed that during this argument with Mr. Pulfer, he told Mr. Pulfer that he “would shove that gun up Mr.Pulfer’s ass”.

He agreed that it was wrong to say that. [7] Shawna Yung also testified. In most respects, her evidence is quite similar to Mr. Yung’s. She too testified that the accusedfired off six or seven shots. She said it sounded like it came from a semi-automatic gun. She said that she too was very scared, andurged her husband not to go and approach the accused. [8] The Crown also called two witnesses on a voir dire, Cst. Sylvester and Cst. McIntosh. They testified that they weredispatched to this call and that they took statements from Mr. and Mrs. Yung. Thereafter, they approached Mr. Pulfer’s residence.

Mr.Pulfer was waiting for them outside, and took them into his home. Both testified that Mr. Pulfer smelled of alcohol and had beendrinking. He was very apologetic, and said he took shots into the neighbour’s yard. He said “it was a great mistake.” He also told Cst.McIntosh that if he had no guns and hadn’t been drinking, there would have been no problem. There is no defence evidence or argumenton the voir dire. All of the evidence from the voir dire was applied on the trial proper. No further Crown evidence was adduced in thetrial, and the defence called no evidence.

ANALYSIS AND DECISION [9] In the case of R. v. Creighton, (SCC), [1993] 3 SCR 3, the Court dealt with a case of manslaughter, but moregenerally addressed the legal requirements in what are sometimes referred to as penal negligence cases. In the headnote, the Court statedas follows: The objective test for criminal fault, which requires a “marked departure” from the standard of the reasonable person, should not beextended to incorporate a standard of care which varies with the background and predisposition of each accused.

Considerations ofprinciple and policy dictate the maintenance of a single, uniform legal standard of care for such offences, subject to one exception:incapacity to appreciate the nature of the risk which the activity in question entails. The principle that the criminal law will not convictthe morally innocent does not require consideration of personal factors short of incapacity.

The criminal law, while requiring mental faultas an element of a conviction, has steadfastly rejected the idea that a person’s personal characteristics can (short of incapacity) excuse theperson from meeting the standard of conduct imposed by the law.

The fundamental premises upon which the criminal law rests mandatethat personal characteristics not directly relevant to an element of the offence serve as excuses only at the point where they establishincapacity, whether the inability to appreciate the nature and quality of one’s conduct in the context of intentional crimes, or theincapacity to appreciate the risk involved in one’s conduct in the context of crimes of manslaughter or penal negligence.

While the legal duty of the accused is not particularized by his or her personal characteristics short of incapacity, it is particularized inapplication by the nature of the activity and the circumstances surrounding the accused’s failure to take the requisite care. The questionis what the reasonably prudent person would have done in all the circumstances. The legal standard of care is always the same - what areasonable person would have done in all the circumstances.

The de facto or applied standard of care, however, may vary with theactivity in question and the circumstances in the particular case. [10] I interpret all this to mean that in each individual case, the Court must interpret and determine what a reasonable person woulddo in all of the circumstances. The accused’s conduct must be judged against that standard. Any marked departure or failure to meetthat reasonable person standard, may result in a conviction.

Foreseeability of particular consequences, such as scaring a particularindividual, endangering an individual or causing bodily harm are not relevant to the particular inquiry. Simply stated, conduct that failsto meet the standard of care will found a conviction, whether or not an accused foresaw or intended the consequences of that action. Inmy view, this

interpretation is entirely consistent with the British Columbia Court of Appeal decision in R. v. Zimmer (1981), (BC CA), 60 C.C.C. (2d) 190. In the Zimmer case, the trial judge found as a fact that the accused had intentionallydischarged a firearm with the intention of scaring the victim. The trial judge also concluded that there was no actual endangerment ofthe victim. The British Columbia Court of Appeal unanimously determined that on these facts, the offence of careless use of a firearmwas made out.

Further, that the focus of the inquiry must be on the accused’s actions, and the Crown was not required to establish anyactual endangerment of the victim. I specifically go through this to say that I prefer the judgment of the British Columbia Court ofAppeal in Zimmer to that of the Yukon Territories Supreme Court in the case of R. v. Hummel (1986), 1 YR 67. In that case, the Courtfound that there was no evidence that the accused intentionally fired off his gun to scare any individual, and concluded the charge ofcareless use of a firearm was not made out.

In my view, based upon the Creighton and Zimmer decisions, it was not particularlyimportant or relevant that the Court determine the accused intended to scare anybody. [11] I turn now to an examination of the particular duty of care that should be applied in this case and to examine the accused’sactions. I begin by confessing that I don’t own any guns, and they scare me. However, when I have discussed such matters with friendsand associates who do own guns, I am advised of the rigours of safe gun practices and rules and that guns are quite safe when very safelyand properly handled.

I go through this to say that in my view, the standard of care to be utilized by an individual handling a firearmmust be relatively high. I believe this to be so because of the inherent danger of guns. Also however, some of the Criminal Codeprovisions generally resemble safe gun handling practices. For example, s. 86, careless handling of a firearm, seems to be sort of ageneral restatement of the rule that one should always be careful and never handle a firearm in a careless manner.

Section 87, pointing afirearm, seems to be a general restatement of the rule that one should never point a firearm at any person.

Before leaving the issue ofsafe gun handling practices, my understanding is that there is a general principle or rule that one should not handle or use a firearm inany fashion after having consumed any alcohol. [12] As a result of the Supreme Court of Canada statements in the Creighton decision and these general observations, I wouldconclude that generally speaking, handling a firearm in a safe and reasonable manner as directed in gun safety courses, will meet therequisite standard of care and will not be subject to criminal sanction.

However, any marked departure or marked failure to meet thatstandard may run afoul of provisions such as s. 86 and s. 87 of the Criminal Code. [13] In this case, the evidence is conclusive and indeed undisputed, that the accused fired his firearm several times, in the generaldirection of the victims. In doing so, he held the firearm at an angle so that the shots went well over their heads. Mr. Weger said there isno evidence that the victims were in any physical danger.

Further, that the accused intended to get their attention, but did not intend toscare them. [14] In my view, there is little or no distinction between the accused attempting to get the victims’ attention and attempting to scarethem. In this case, undoubtedly he did both, got their attention and scared them. More importantly however, the nature of the accused’sintention in this regard is not relevant.

In my view taking a firearm as the accused did in this case, after he had been drinking, pointing itin the general direction of the victims and firing several shots over their heads is a marked departure from the safe and reasonableconduct expected of a reasonable gun owner. Mr. Pulfer has failed to meet the requisite standard of care, and as a result by definition hashandled a firearm in a careless fashion. Accordingly, I find him guilty of the charge under s. 86 of the Criminal Code. [15] Dated at Weyburn, Saskatchewan, this 24th day of June 2014.

D. Kovatch, J