R. v. COWAN, 2017 MBPC 37

CITATION: R. v. COWAN , 2017 MBPC 37 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN HER MAJESTY THE QUEEN ) Carolyn Reimer, ) for the Crown - and - ) ) JOEY COWAN ) Michael Walker, ) ) ) for the Accused ) Judgment delivered: ) September 15, 2017 MARTIN, P.J. INTRODUCTION Background and Issues [ 1 ] This case deals with the storage and reporting obligations incumbent on a firearms owner. [ 2 ] Firearms owners are subject to various gun control measures aimed at enhancing public safety. These measures are set out in

Part III of the Criminal Code (the Code ), the Firearms Act (the Act ), as well as various regulations made pursuant to the Code and the Act, notably the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209 (the Regulations ).

This legislative framework not only prohibits certain uses of firearms it also governs the acquisition and storage of firearms and provides for licensing and reporting obligations. [ 3 ] To legally possess a firearm, an individual needs to complete the Canadian Firearms Safety Course (restricted and/or non- restricted, depending on the firearm), which consists of both classroom instruction and the Canadian (Restricted or Non-Restricted) Firearms Safety Course Manual (the Manual ), successfully pass the corresponding test (section 7 of the Act ) and then be issued a licence by the Chief Firearms Officer (CFO) (section 2 of the Act ). [ 4 ] The storage of all legally acquired and registered firearms is subject to the requirements set out in the Regulations .

In accordance with sections 5 and 6 of the Regulations , all firearms need to be stored unloaded and not readily accessible to ammunition. Additional storage requirements are mandated depending on whether the firearm is non-restricted or restricted. If the firearm is non- restricted, it must either be rendered inoperable by applying a secure locking device or removing the bolt or bolt carrier, or stored in a container, receptacle or room that is securely locked and constructed so that it cannot readily be broken open or into.

If the firearm is restricted, it needs either to be stored in a vault, safe or room specifically constructed or modified for secure storage of firearms and securely locked, or rendered inoperable by means of a secure locking device and stored in a container, receptacle or room that is securely locked and constructed so that it cannot easily be broken open or into. [ 5 ] Overarching all storage requirements is the obligation to ensure that storage is not done in a careless manner or without reasonable precautions for the safety of other persons (

section 86 of the Code ). Any loss or theft of a firearm must be reported with reasonable dispatch (

section 105 of the Code ). [ 6 ] At issue in this particular case are the types of containers purchased to store restricted firearms and the manner in which firearms were stored in the home. Also at issue is when the requirement to report the loss or theft of a firearm arises. [ 7 ] Joey Cowan (Cowan) was the owner of eight legally acquired and registered restricted and non-restricted firearms which he stored in his home. Those firearms were trigger locked and stored separately from any ammunition in storage cases that were padlocked.

All of the cases were stored behind Cowan’s computer desk downstairs in his home where there were upwards of six children under the age of eighteen, as well as a houseguest. The only time Cowan checked up on his firearms was when he retrieved them to go to a shooting range. The last time he did this was on March 11, 2015. [ 8 ] On June 10, 2015, the authorities in Winnipeg received information that one of Cowan’s restricted firearms was found in British Columbia. On June 17, 2015, a search warrant executed on Cowan’s home revealed that all eight of his firearms were missing.

None of them had been reported lost or stolen. The only thing found was some ammunition and the keys to the cases and trigger locks that had been stored in the combination locked safe. Cowan’s position is that he was unaware his firearms were missing. It is undisputed that he was both upset and concerned by their absence. The only items still found in Cowan’s home were the keys to the trigger locks

and padlocks, as well as the ammunition that was stored in a safe and in a combination lock storage case. Though Cowan was shown thisammunition case unlocked, it is unclear how that came to be and whether that might have occurred during the search. [9] Cowan was charged with both careless storage under section 86(1) and failure to report the loss of a firearm under section105(1)(

a) of the Code. The Crown proceeded by indictment. Cowan elected trial in Provincial Court. The trial was heard over four days.At the close of the case, I requested written legal briefs. [10] The issue at trial is whether the Crown has proven the offences against Cowan beyond a reasonable doubt. The determinationof that issue requires both factual and legal findings. Parties’ Positions and Witnesses [11] The Crown’s position is that Cowan is guilty of both offences. With respect to the charge of careless storage, she argues thatthe offence is made out in several respects.

First, Cowan’s choice of storage case did not comply with the legal requirement to have acontainer that is not readily broken open or into.

She also submits that Cowan’s choice of storage location, given the circumstancespresent within his home, and, the lack of regular monitoring of his firearms likewise make him guilty of careless storage. [12] As for the charge of failing to report, the Crown submits that because of Cowan’s careless storage, and in particular, his lack ofregular monitoring of the firearms, the loss of the firearms was undetected such that he did not report their loss with reasonable dispatch.As such, she argues that he is also guilty under section 105(1)(a). [13] The Crown called four witnesses - Erin Belanger (Belanger), Cowan’s former fiancée, with whom he lived at the relevant time;Jason Daeninck, the owner of the shooting range where Cowan bought his restricted firearms and practiced shooting; Detective SergeantPriestly (Priestly), a member of the Winnipeg Police Service (WPS) assigned to the National Weapons Enforcement Support Team(NWEST) at the relevant time; and, Corporal Hurley (Hurley), a member of the RCMP, also assigned to NWEST, the latter of whom wasqualified as an expert in the safe and proper storage, handling, and usage of firearms in Canada.

Cowan’s June 17, 2015 police statementwas also entered into evidence. [14] Defence counsel argues that this Court should find Cowan not guilty of both charges. He says that Cowan’s storage practicesnot only comply with all legal requirements, they are consistent with the standard practice of many firearms owners. [15] He also submits that Cowan cannot be found guilty under section 105(1)(

a) as he did not know about the loss or theft of hisfirearms and therefore, could not report it. [16] Defence called two witnesses – Cowan and David Brown, also an expert in the safe and proper storage, handling and usage offirearms in Canada, but also in the content of the Canadian Restricted Firearms Safety Course. [17] As can be readily gleaned from the foregoing

summary, the trial evidence focussed on Cowan’s firearm storage practices butalso, to a greater extent, the legal requirements for firearm storage. [18] Given the nature of the evidence with respect to the firearm storage practices and the fact that Cowan testified, this Court needsto assess that evidence in accordance with the principles enunciated in R. v. W.(D.), (SCC), [1991] 1 SCR 742 to makefactual determinations as to what exactly those practices were but more particularly, as to what circumstances existed in Cowan’s homeat the relevant time.

The Court will then need to assess the competing expert opinions to determine whether or not, based on thatevidence, the Crown has proven the offence of careless storage against Cowan. [19] As for the offence of failing to report the loss of a firearm, this requires both a legal determination of the mens rea requirementunder section 105(1)(

a) and a determination of whether, based on the Court’s factual findings, the Crown has proven the offence againstCowan beyond a reasonable doubt. [20] As will be explained below, I find that the Crown has failed to prove the offences of careless storage and failure to reportbeyond a reasonable doubt. EVIDENCE The Background and Factual Issues [21] Cowan comes before the Court with somewhat of a troubled past. He has a recent record for theft and fraud. He was also aparticipant in the methadone program. At the time of these events, Cowan was engaged to Belanger.

A divorced father of three, he metBelanger, also a parent of three children, several years prior. The two lived together in Belanger’s house. Their respective children,varying in ages at the relevant time of five to fifteen, also stayed with them when they were not otherwise living with their other parent. [22] Belanger and Cowan are no longer together. Shortly after the search warrant was executed and Cowan was charged, Belangerbroke off their engagement. It was clear from her evidence that this incident put a definite end to a relationship she was no longerinterested in continuing.

She described the relationship as consisting in going to work full-time and driving the children around. ThoughCowan agreed life was hectic with the children, he did not appear to see the relationship in such a negative light. Both agreed howeverthat their communication was not ideal. [23] This hectic lifestyle and lack of communication is important in this particular case as it plays a role in the reliability of theCrown’s evidence.

Indeed, although I had some concerns about the consistency of Cowan’s evidence generally, the Crown’s evidencewas unreliable or lacking to the point that this Court was unable to outright disbelieve all of Cowan’s evidence or find that the Crownestablished the facts required for a finding of guilt beyond a reasonable doubt. [24] I turn now to a review and consideration of the evidence.

The Acquisition of Firearms [ 25 ] On May 18, 2013, after having completed the Canadian Restricted Firearms Safety Course and having read the Canadian Restricted Firearms Safety Course Manual (the Manual ), Cowan took and passed the Canadian Restricted Firearms Safety Exam. He then challenged and passed the Canadian Non-Restricted Firearms Safety Exam on June 11, 2013.

His Possession and Acquisition Licence (PAL) was issued on August 18, 2014. [ 26 ] Over the course of the next three months, between September and December, 2014, Cowan purchased the following eight restricted and non-restricted firearms: Restricted • Norinco 9 mm Luger semi-automatic handgun purchased on September 19, 2014; • 5.56 mm black Forge semi-automatic rifle purchased on October 7, 2014; • 9 mm Luger GI COMM E semi-automatic handgun purchased November 7, 2014; • 9 mm Luger Girsan semi-automatic handgun purchased December 11, 2014; • 44 automatic Ruger semi-automatic handgun purchased December 11, 2014; • 357 Magnum ALFA project revolver purchased on December 11, 2014.

Non-restricted • Rifle and Shotgun – the manufacturer, calibre and purchase date are unknown. [ 27 ] Cowan purchased his non-restricted firearms from a well-known hunting and fishing store (the “Store”). All of his restricted firearms were bought and financed through the shooting range he was a member of – Xtreme Gun Shooting Center. Each of the restricted firearms was duly registered to his home address. The Storage of the Firearms [ 28 ] To transport and store all of his firearms, Cowan purchased trigger locks, padlocks and storage cases .

There is no issue with respect to the trigger locks or padlocks either as regards their quality or the manner in which they were applied to the firearms or the storage cases. As for the storage cases themselves, the majority were purchased online, the remainder from the Store. All of the storage cases were what can best be described as carrying cases, meaning that they were of a size and weight that allowed them to be picked up with one hand and carried from one destination to another.

The particulars of each case are as follows: • Plano 10164 Gun Guard SE Four Pistol Case which held the 357 Magnum ALFA project revolver, 9 mm Luger Girsan semi- automatic handgun, 44 automatic Ruger semi-automatic handgun, and the 9 mm Luger GI COMM E semi-automatic handgun; • Plano SE Series Single Pistol Accessory Case which held the Norinco 9 mm Luger semi-automatic handgun; • Plano 108420 Gun Guard AW Tactical Case which held the 5.56 mm black Forge semi-automatic rifle; • Plano Pillared Take Down Gun Case which held the shotgun; and • Safari Double rifle Case which held the rifle. [ 29 ] Together with ammunition and a variety of gun-related paraphernalia, the sum total of all of Cowan’s firearm related purchases was well over $4000.00. [ 30 ] Cowan’s evidence is that he purchased the above storage cases as he was of the view that not only did they comply with the storage requirements set out in the Regulations , but that after making inquiries at the Store and researching online, that they were good quality cases that would ensure the safe storage of his firearms. [ 31 ] The manufacturer’s product description of the firearm cases found online or on the product tag is as follows: • Plano 10164 Gun Guard SE Four Pistol Case: “This Gun Guard four pistol case has a rugged look and solid protection for the beginning sportsman.

Gun Guard SE Series cases feature contoured recessed latches, padlock tabs for added security and strong, rigid ribbed construction. Case will accommodate up to four long barreled handguns. Product dimensions: 17.1 – inch long x 18.86 – inch wide x 5.75 – inch high.

Features: holds up to four long barreled handguns; padlock tabs for added security and airline travel; contoured recessed handle; protective high-density foam interior; steel hinge pins for added durability”; • Plano SE Series Single Pistol Accessory Case: “Wide, Recessed, Snap-Over Latches Designed for Travel, Steel Hinge Pins for Maximum Durability, High-Density Foam, Centered Padlock Locations Safely Secure Contents”; • Plano 108420 Gun Guard AW Tactical Case: “Designed for the most extreme conditions, is designed to hold an AR-15 style rifle up to 43” long.

The Gun Guard AW series is the ultimate shield against the elements, featuring a continuous Dri-Loc seal that ensures the case is watertight, airtight and dust proof. Its rugged construction is engineered to keep your firearm safe. Product exterior dimensions: 46” long x 16” wide x 5.5” high/ Product interior dimensions: 43” long x 13” wide x 5”high.

Features: Lockable, weatherproof, hard-sided gun case carries an AR-15 style rifle up to 42 inches long; Dual stage, spring loaded lockable latches with padlock tabs, high strength pinned hinges; Continuous Dri-Loc seal for weatherproof protection; High-density foam interior, thick – wall

construction, integrated press-release valve; Designed to withstand extreme conditions, Lifetime warranty against defects”; • Plano Pillared Take Down Gun Case: “Plano Pro-Max PillarLock Gun Cases provide the ultimate in firearms protection! These crush resistant gun cases feature the patented PillarLock system which uses molded contact points that meet when the case is closed to form pillars for superior crush resistance. Cases feature thick walled construction soft foam and ergonomic molded in handles. Heavy- duty latches and padlock tabs keep guns safe and secure in the case. Airline approved. Made in USA.

Features: Pillar-Lock system for superior crush resistance; Thick wall construction; Lockable; Airline approved; comfortable ergonomic molded-in handle”; • Safari Double rifle Case: “Impact resistant foam; Protective rubber feet; Two combination locks and key locks; Deluxe carrying handle; Approved for airline travel; Sleek, hard-body construction with aluminum trim.” [ 32 ] Though not readily apparent from the manufacturer’s product description, all of the above cases appear to be made from black hard plastic with the exception of the Plano 108420 Gun Guard AW Tactical case that was also framed in silver. [ 33 ] The uncontradicted evidence is that each of the firearms was stored trigger locked inside the storage cases which were padlocked.

The keys to the locks were placed in a combination locked safe. [ 34 ] The firearms, thus stored, were hidden in Cowan’s home, consistent with where he legally registered them. The evidence is that all of the firearms were hidden in the basement behind Cowan’s computer desk and storage unit. [ 35 ] That desk and storage unit were located in the far left corner of the basement relative to the basement stairs and a television sitting area.

Though the desk and storage unit were visible from the stairs and the sitting area, the bottom portion of the desk was obscured by a significant pile of personal effects, furniture and building equipment. To access and see the entire unit and desk, it was necessary to walk around that pile. [ 36 ] Cowan testified that he hid the four gun cases behind the desk and storage unit. The Plano Pillared Take Down Gun Case was placed vertically, closer to the edge of the storage unit.

The Safari Double rifle Case and the Plano 108420 Gun Guard AW Tactical Case were placed perpendicular to the Plano Pillared Take Down Gun Case, one on top of the other. They were placed behind the computer desk and halfway behind the storage unit. The Plano 10164 Gun Guard SE Four Pistol Case and Plano SE Series Single Pistol Accessory Case were placed on top the S afari Double rifle Case and the Plano 108420 Gun Guard AW Tactical Case, side by side. For the most part, they were behind the computer desk.

Underneath the desk was the computer chair and various items, such that, in Cowan’s view, the cases were not visible. [ 37 ] As for the ammunition, it was stored either in a safe, where the keys to the various locks were also stored, or in a separate combination locked storage case. [ 38 ] The evidence before this Court is that Cowan was the only person in the house that went near the storage unit and desk. Though Cowan went downstairs and in and around the desk and storage unit relatively frequently, it was not his practice to ascertain that the firearms were still stored in their hiding place.

He would only check up on them when he retrieved them to practice shooting at the gun range. Pass code records from Xtreme Gun Shooting Center indicate that Cowan went to the range six times in September, 2014, three times in October, 2014, one time in November, 2014, two times in December, 2014, and three times in March, 2015. The last time Cowan attended the range and checked on his firearms was March 11, 2015. [ 39 ] Sometime between that date and June, 2015 when one of Cowan’s restricted firearms was located in British Columbia, the firearms were removed from Cowan’s basement.

Circumstances Surrounding the Storage of the Firearms [ 40 ] Between September, 2014 and June, 2015, several events were occurring in the Belanger-Cowan household. In addition to the six children, Cowan was undertaking extensive renovations throughout the home, including the basement. As he was not working, other than to attend an occasional speaking engagement, he spent most of his days doing these renovations.

Added to this, was the presence of a houseguest (the Guest) who Cowan had met at the methadone program he attended. [ 41 ] The Crown submits that the presence of children and the Guest in the home necessitated better storage practices by Cowan. She says that the children had full and unsupervised access to the basement which created a potentially dangerous situation, necessitating a different storage location for the firearms.

She also says that given Cowan’s concerns about the Guest, which will be detailed below, he should have checked regularly on his firearms to ensure their whereabouts. [ 42 ] Defence submits that the children would never have had access to the firearms and that regardless of any concerns Cowan may have had about the Guest, his storage practices were in compliance with the law. [ 43 ] Given these differences in position, it is important to determine the circumstances surrounding the children and the Guest in the home as well as who knew about the location of the firearms.

The adequacy of the storage cases will be dealt with under the heading, The Experts. The Circumstances of the Children in the House [ 44 ] Given the custody arrangements for Belanger’s and Cowan’s respective children, there was a varying number of children in the home at one time. At the relevant time, the two youngest and the two middle children each shared a bedroom. Cowan was renovating the basement to build two bedrooms for the eldest children, a bathroom and a laundry room. Cowan testified that most of the downstairs

renovations were completed in January, 2015 such that the two eldest children were able to move into them at that time. [ 45 ] Cowan testified that during the first part of the downstairs renovations in the fall of 2014, the children were not allowed downstairs for safety reasons. Once the majority of those renovations were done, he did allow the children to play downstairs but only for approximately two weeks as they were creating a mess and damaging building materials.

He did not agree to allow them back downstairs until about the spring of 2015. [ 46 ] Belanger at first testified that the children were generally always allowed access downstairs as there was little other room in their modest home. She added that there were some intermittent times when the basement was off limits due to the renovation materials but that other than those times, the children would play the Wii and watch television.

In cross-examination however, Belanger conceded that the two middle children generally spent time in their own rooms and the younger ones were not allowed downstairs without supervision. As for the older children, she testified that she believed they moved downstairs at the beginning of 2015. [ 47 ] Photographs of the basement taken during the June 17, 2015 search show a basement living area where there is a couch, a chair, a coffee table and a television. The area is tidy but shows a water bottle and a television remote on the coffee table, consistent with recent usage.

There is however no evidence as to who would have left those items there. Further, no toys were depicted. [ 48 ] Given this evidence, I accept that the children were rarely allowed access to the basement during the relevant time, and that when they were allowed access, the young children were generally supervised. Though not clearly canvassed in the evidence, I infer, given the downstairs bedrooms for the eldest children, that they were not supervised. There is however, no evidence that any of the children ever saw the firearms, knew of their existence in the home or ever had them in their possession.

The Circumstances of the Guest in the House [ 49 ] Some time between the summer and fall of 2014, the Guest was also staying in the Cowan-Belanger home. The evidence about exactly when and for how long is not clear. The evidence is also not clear about how much of a concern the Guest was for Cowan and Belanger as a result of some allegedly dishonest behaviour. [ 50 ] Cowan’s evidence is that he met the Guest in about 2014 at the methadone program. When he learned the Guest had nowhere to live, Cowan offered to have him to stay at his house.

Cowan testified that the Guest first stayed with them in the fall of 2014 when Cowan and Belanger took their family on a two week trip to visit Belanger’s family. Cowan testified that this would have happened in about October, 2014. Belanger on the other hand, testified that she believed it was in July or August, 2014, given that it was a family trip and the children would have likely needed to be out of school. Cowan testified that the Guest slept in his and Belanger’s bedroom during this time.

There was no evidence from Belanger on this point. [ 51 ] Cowan testified that upon their return from their trip, the Guest left, but returned in about November, 2014 as he still had nowhere to live. He stayed until just before March 11, 2015. [ 52 ] Belanger’s evidence differed on this point. In addition to her evidence that the Guest stayed with them beginning in about July or August, 2014, she testified that she believed he left before Christmas, deducing that this must have been the case as she could not remember buying a gift for him, something she likely would have done.

She did explain however that generally she was not good with dates or recollecting what happened, or when. [ 53 ] Cowan agreed with Belanger that the Guest was not at their home during Christmas but testified that was because he had asked the Guest to leave for that period so that Cowan could spend the Christmas holidays alone with his family. The Guest then returned and left again sometime before March 11, 2015 when Cowan last saw his firearms. During this second stay, the Guest slept on the downstairs couch by himself until the children moved downstairs.

No questions were asked of Belanger about the Guest’s sleeping arrangements or his general functioning in the home. [ 54 ] Cowan’s evidence is that the Guest turned out to be a very dishonest individual. He testified that the Guest betrayed his trust on multiple occasions, characterizing him as a liar and someone who took advantage of him and Belanger, and put his family at risk. [ 55 ] Cowan testified that the first instance of dishonesty was in relation to their van. He and Belanger gave money to the Guest to have their van repaired.

Despite taking the money and telling them he had taken care of it, it appeared that no repairs were ever done and that the Guest had simply pocketed their money. He also testified that the Guest left drugs in their van and when it was impounded, the Guest asked him to provide a false name to police. Cowan also testified that he personally noticed items missing from his house, such as money and belongings and that the Guest was being dishonest about where he was spending his days.

He testified that he did not share these incidents with Belanger but that as a result of the Guest’s behaviour, he personally decided to ask him to leave as he was “no longer prepared to potentially have [his] family put at risk by an individual who was so dishonest.” He explained that his departure was fairly confrontational and he asked him to open his bags. Inside were several of Cowan’s personal belongings. [ 56 ] This testimony appears to be contradictory to Cowan’s June 17, 2015 statement to the police.

In that statement, Cowan advised the police that the Guest’s departure was precipitated by a phone call from the Guest’s parole officer telling them that they should have him leave immediately and that Belanger was livid. When this contradiction was pointed out to him, Cowan testified that the parole officer had called after, not before the Guest’s departure, and that it was to insist that they not allow the Guest back in.

The parole officer was not called by the Crown. [ 57 ] Cowan testified that when he kicked the Guest out he asked for the house key, only to be left with the impression that it had been left in their impounded vehicle. It was only later, when he got the vehicle back from impoundment and he realized the house key was not there, that he decided to change the locks to the house. However, as he was busy, this did not happen for approximately six weeks, roughly around the end of April, 2015. In the meantime, the Guest had continued to come to the house when only the children were home.

It is unclear when Cowan learned of this. When questioned in cross-examination about the time it took him to change the locks in these circumstances, Cowan added that the house was alarmed but then went on to explain that the alarm was not always set. This information about the alarm, as well as his evidence about not finding the house keys in the impounded vehicle were not provided to

the police in his June 17, 2015 statement. [ 58 ] Belanger testified to having no knowledge of any issues with the Guest. On cross-examination she did however acknowledge several of the situations Cowan mentioned in his testimony. She conceded that their vehicle was impounded after they let him use it. She also conceded that they gave him money to fix their van but that it still seemed like it had not been repaired so they assumed he had pocketed the money for himself.

She also acknowledged that the Guest’s parole officer called the house and spoke to Cowan though she had no knowledge of what that conversation was about. No evidence was elicited as to when these events occurred. [ 59 ] As for the Guest’s departure, Belanger testified that it was she who was insisting that he needed to leave, not because of any dishonesty, but because of his lack of financial contribution to the household.

She was not present when Cowan had the conversation with the Guest when he ultimately left. [ 60 ] Belanger testified that based on a conversation with Cowan, she was under the impression the Guest never had a key to the house at any point in time. She acknowledged however that Cowan probably did change the locks to the house after the Guest left.

Once again, there was no evidence as to when or how long after the Guest’s departure that happened, nor was there any questioning as to the existence of an alarm or the Guest’s attendance at the home after he left. [ 61 ] In these circumstances, not only is it difficult to determine with any degree of certainty when the Guest stayed with Cowan and Belanger but also whether his behaviour was dishonest to the point that Cowan should have exercised greater caution with respect to the storage of his firearms. [ 62 ] Since June 17, 2015 when the firearms were discovered missing from his home, Cowan has pointed to the Guest as the likely perpetrator behind the missing firearms.

In his statement to the police on that day, he provides a great deal of information about the Guest, including the difficulties he had with the Guest while staying at his home. As noted previously, there were differences between Cowan’s statement to the police and his testimony in Court.

In addition, more details were provided in cross-examination that had not previously been provided such that Cowan appeared to be trying to “sell” this theory that the Guest must have been the one. [ 63 ] The difficulty is that despite these concerns, the Crown’s evidence either did not address the seeming discrepancies or was not reliable enough.

Added to this lack of clear evidence about the Guest’s dishonest behaviour, is the evidence from Priestly that the Guest was never charged in relation to the missing firearms. [ 64 ] Given the foregoing, this Court finds that the Crown has not proven beyond a reasonable doubt that Cowan should have been more vigilant about the storage of his firearms. The location of the firearms [ 65 ] These same comments pertain to the location of the firearms. [ 66 ] There was extensive examination about the location of the firearms as it relates to both their visibility and knowledge by the Guest or Belanger.

Cowan’s evidence about how he stored his firearms means that there would have been an approximately five to six inch gap between the storage unit and the wall, which means that the storage cases could have been visible. [ 67 ] Photographs of the basement taken after the search warrant was executed appear to show that the storage unit was not flush with the wall, though, admittedly, this is difficult to say with any certainty given the angle of the pictures taken that were admitted into evidence.

There was no picture taken straight on that would show whether or not there was a gap or whether the storage unit was at a straight angle or on a diagonal. [ 68 ] Unfortunately, neither Priestly nor Hurley could remember the exact presentation of the storage unit in relation to the wall, even though they did think it was flush to the wall. Both testified that prior to their entry in the home, the tactical team entered and secured it. They thought it unlikely anyone would have moved the storage unit or computer desk while searching the residence but could not say for sure.

They both conceded that Cowan either told them or could have told them that he stored his firearms behind the computer desk and storage unit. [ 69 ] Cowan was not questioned about the side visibility of the storage cases. I do note however that Cowan’s evidence is that the Plano Pillared Take Down Gun Case was stored the closest to the exterior of the storage unit and that both that case and the storage unit are black. [ 70 ] As noted previously, these is no evidence the children ever noticed the firearms stored behind the storage unit and computer desk.

As for the Guest and Belanger, there is no clear evidence that either knew about their exact location. [ 71 ] Cowan testified that no one except himself knew about the exact location of his firearms.

Although it was pointed out to him on cross-examination that he told the police in his June 17, 2015 statement that other than Belanger, the Guest was the only one who knew the firearms were there as he had taken him to the range, and that the Guest was the only person that had both the knowledge and opportunity to steal them, Cowan explained that what he was trying to say in this statement was that both Belanger and the Guest knew the guns were in the house, not their exact location.

I have some concerns with this explanation as it is contrary to his acknowledgement in evidence that he had left Belanger with the impression that he had taken the guns out of the house and stored them at the shooting range. [ 72 ] The issue once again, is that there is no clear evidence as to the Guest’s general functioning within the home and in particular whether he had an opportunity to see or take the firearms. Though this is Cowan’s stated suspicion, the firearms did not go missing until after the Guest left the home.

Cowan testified that the Guest returned to the house after his departure when only the children were home, but there was no evidence from the children, Belanger or the police that either this happened or could have happened. [ 73 ] As for Belanger, her evidence is that she never even knew there were firearms in the home, suggesting that she never saw them

hidden behind the storage unit and computer desk. She testified she knew that Cowan had obtained his PAL and purchased several firearms but that she was clear that they were not to be kept in the home. She testified that she and Cowan had gone to the Store to look at gun safes for what she thought was only going to be rifles and shotguns but as the price was prohibitive, there was no further talk about storage of the firearms at home.

Instead, she was under the distinct impression that Cowan’s firearms were being stored at Xtreme Gun Shooting Center. [ 74 ] Belanger testified that other than rifles, which she was comfortable with having grown up with them, she did not like guns. She testified she had gone with Cowan to the shooting range in an effort to be supportive of his new hobby, but it was clear that she neither liked that activity nor did she understand the attraction to firearms. She testified that the first time she went to the shooting range with Cowan she was certain that he did not bring any firearms with him.

The last time that she attended with him at the beginning of 2015, she could not be certain whether or not Cowan brought a gun with him as she did not pay particular attention. [ 75 ] Cowan’s position and evidence differs from Belanger’s. He testified that Belanger knew that he was storing his firearms in the home and that it was not until in around January, 2015 that she expressed her discomfort with them being in the house. It was at this point that he offered to see if Xtreme Gun Shooting Center would store them for him.

He testified that he did make inquiries but was under the impression that it was not allowed. Interestingly, in his June 17, 2015 statement, Cowan advised that he told Belanger he would look into it but never did, clarifying quickly that he did but that he just never removed them from the home. Daeninck, owner of Xtreme Gun Shooting Center, testified that he remembered Cowan very well as he had damaged the shooting range when firing shots and had never paid him back.

Daeninck’s evidence was that Cowan never asked him about storing his firearms but that if he had, he would have gladly stored them for a price. [ 76 ] Cowan’s insistence that Belanger knew about the presence of firearms in the home and his acknowledgement of later dissembling their continued presence in the home from her is interesting as it does not do much to advance his defence.

Though on the one hand it could be suggested that Belanger’s knowledge of the existence of firearms in the home enhanced his safety precautions, on the other hand, he casts himself in a derogatory light and negates any positive steps in firearms safety. [ 77 ] In considering the evidence, I accept that Belanger was unaware of the presence of firearms in the home. However, whether this was because Cowan never told her or because she simply did not pay any attention to what he did tell her is unclear.

What is obvious however, is that Belanger did know Cowan was purchasing firearms, including restricted firearms, and they did look at gun safes together, such that she should have been alive to the issue. [ 78 ] In all of the circumstances there is no clear evidence that anyone either knew about or was able to see the firearms that were hidden behind the storage unit and computer desk. What this suggests is that the firearms were well-hidden.

The Experts [ 79 ] The experts called to testify as to Cowan’s storage practices – Hurley and Brown – are both experts in the safe and proper storage handling and usage of firearms in Canada. Brown, however, is also an expert in the content of the Canadian Restricted Firearms Safety Course. [ 80 ] Both experts agree on the applicable legislative framework for the storage of firearms.

Where they differ is with respect to whether the particular cases purchased by Cowan to store his restricted firearms were sufficient and whether the circumstances present in the home required Cowan to exercise additional caution in his storage practices. Corporal Hurley [ 81 ] Hurley has been a member of the RCMP since 1987 and a member of NWEST since 2002. Hurley testified that NWEST was created to assist front line policing in firearms investigations nationally.

It is an organization that helps with the drafting of applications for judicial authorizations, providing advice on charging offences, helping with investigations, examining firearms, as well as liaising with the CFO and other Firearms Officers from the Canadian Firearm Program.

Though he has in-depth knowledge of the Canadian Restricted Firearms Safety Course Manual, he personally has never instructed the Course. [ 82 ] It was Hurley’s opinion that Cowan’s storage practices were careless for several reasons: he stored his firearms in receptacles that could easily be broken open or into; he stored his firearms in a location that was potentially accessible to children; and, he did not regularly check on their whereabouts.

In Hurley’s opinion, this latter omission led to Cowan not reporting the loss of his firearms with reasonable dispatch. [ 83 ] Hurley testified that in his opinion, based on the thrust and scheme of the entire Canadian Firearm Program, which is safety, there is a social and moral responsibility of all firearms owners to adhere to a high standard of the prudent and responsible firearms owner as to the whereabouts and safekeeping of their firearms, adding that this is particularly the case in a home with young children.

In his view, this high standard means that firearms owners should know the whereabouts of their firearms at all times. He testified that this expectation came from his own personal firearms ownership and experience but was candid that he was uncertain as to whether that requirement was actually in the Manual .

He did however point to several sections in the Manual that clearly state that firearms under the care and control of a firearms owner are their responsibility twenty-four hours a day, and that firearms users often exceed the legal storage requirements. [ 84 ] Hurley was also critical of two of the Plano cases Cowan purchased to store his firearms in – the Plano 10164 Gun Guard SE Four Pistol Case and the Plano SE Series Single Pistol Accessory Case. Though he thought these two Plano cases were suitable for transportation, it was his opinion they were not suitable for storage at home.

Hurley explained that the difference lay in the degree of monitoring or control over the firearm. He explained that during transportation, a firearm is with you at all times. At home it is not, such that the integrity of the receptacle storing the firearm at home needs to prevent others from accessing or moving it. [ 85 ] Hurley testified that he purchased the two Plano cases in issue and tested them to determine whether they could easily be broken open or into. He found that they could in several manners: by pulling the sides apart with his hands; removing the hinge pin with

a pair of pliers and prying the case open; stepping on it and cracking the case open; or, cutting into the plastic case with a knife. In each instance, the firearm within the case could be extracted with little effort. Given the relative ease with which he could break open and into these Plano cases and extract a firearm, it was Hurley’s opinion that they were not suitable cases for storage. He acknowledged however, that the tests he performed on the two cases were not tests that a person would do at the Store.

He also conceded that to his knowledge, no such prior testing had been done by any organization in Canada, nor had there been any warnings that the two cases were not suitable for storage. In fact, he testified that at present, there is no certification or approval process in Canada with respect to firearm storage cases.

Nonetheless, it was his view that firearms owners should exercise a degree of common sense and do some research as to an adequate storage case. [ 86 ] As for the Plano 108420 Gun Guard AW Tactical Case, Hurley testified that this was a far more robust case and he would have great difficulty prying it apart. As such, he opined that this case, as well as the cases in which the non-restricted firearms were stored, would meet the requirements for storage.

He was however, still critical of Cowan’s means of storage – behind a computer desk and storage unit – given that it was in an open basement with children in the house. [ 87 ] Hurley was not able to provide a time within which a firearm owner should know when their firearms are missing but added that he would like to think they would know immediately or very shortly after their disappearance as

section 2.3.1 of the Manual indicates that “a firearm owner should know where their guns are twenty-four hours a day.” [ 88 ] Hurley was challenged about his opinion given the wording of the Regulations and the Manual . He agreed that the Regulations do not provide any guidance or description as to what is meant by a “container that is constructed so that it cannot be readily broken open or into”. He also agreed that the Regulations do not prescribe different storage requirements if there are children in the home where the firearm is stored.

Hurley further acknowledged that the Manual is no clearer, with its use of the phrase “easily broken open or into” and that Figure 52 shown in the Manual under the heading “Lockable carrying/storage case” which appears to depict a storage case similar in appearance to the ones Cowan purchased, could lead to confusion and be open to

interpretation. Hurley shared that he had brought concerns of this nature to the CFO on several occasions since the incident at bar. It was his belief that more clarity needed to be provided as to what would constitute an appropriate storage container. He noted that the RCMP use portable cases but made of thick steel such that they cannot be readily broken into.

In Hurley’s words: “...we have brought up those concerns just to have a better product, or better information to...people that...have firearms...” David Brown [ 89 ] Brown is a professional firearms instructor and firearms safety specialist and certified Master Instructor of the Canadian Firearms Safety Course Program. He helped design both the Canadian Firearms Safety Course and the Canadian Restricted Firearms Safety Course. He also helped to write the Manual and train instructors in these courses. [ 90 ] Brown’s opinion is that Cowan stored all of his firearms in compliance with the Regulations .

He testified that the Regulations set out the requirements all firearms owners must comply with in terms of storage, display, handling and transportation. [ 91 ] Brown agreed with Hurley that the Regulations do not define a “container that is constructed so that it cannot readily be broken open or into”.

He did however indicate that the Manual contained both a description of the type of construction a lockable carrying/storage case should have, that being a locked container that “cannot be easily broken open or into”, as well as a diagram of a container, namely Figure 52, previously referenced, which he testified would be acceptable for both the transportation and the storage of restricted firearms. [ 92 ] Brown testified that the course material for the Canadian Restricted Firearms Safety Course does not suggest a different manner of storage depending on where the firearm is stored.

He added however that instructors are told to always encourage students to use higher standards than the minimum legal requirements set out in the Regulations but that they would never suggest that a person who used only the minimum legal standards would be irresponsible. [ 93 ] As for the frequency at which an owner should check on their restricted firearms, Brown noted that there are no guidelines in the Manual.

It was his evidence that firearms owners often do not check on their firearms and that there is no legal requirement to do so. [ 94 ] As for the Plano cases Cowan stored his restricted firearms in, and which Hurley was critical of, Brown testified that they are “very, very commonly used by firearms owners in Canada” to both transport and store their firearms in.

He added that a very similar make and model of the Plano cases is used during the Canadian Restricted Firearm Safety Course as well as during the practical test needed to pass the course. [ 95 ] Brown was however candid that the Plano cases were certainly not the best quality cases that are available on the market. Nonetheless, it was his opinion that they complied with the Regulations , in the sense that they are not easily broken open or into. Brown opined that any case could be broken open or into given enough force or tools.

He added that the advice given to instructors teaching the course, should the question arise as to what “easily broken open or into” means, would be to invite consideration as to whether an eight year old child could easily access a handgun inside the case without requiring tools or damage to the case itself. [ 96 ] As for Hurley’s demonstration in Court as to his ability to break or pry open the Plano cases, Brown pointed out that he was not a technical expert in the security of gun cases but added that given the measurements of a typical handgun with a trigger lock applied, he felt it would be a little more difficult to remove the firearm from the case by simply splitting it apart with your hands. [ 97 ] Brown also confirmed that there is currently no certification process with respect to firearm storage cases. [ 98 ] As for where Cowan stored the firearms, including the fact that there were children in the home, and the fact that he did not check on their whereabouts between March 11 and June 17, 2015, Brown testified that once again, it was his view that Cowan complied with the Regulations and in some cases, exceeded the requirements under those Regulations .

It was also his opinion that Cowan’s manner of storage was not a marked departure from what the average prudent and safe gun owner would do, noting that he came to that opinion based on having taught many gun owners over the years, as well as his own personal standards.

[99] Brown was challenged on cross-examination both with respect to the quality of the storage cases and Cowan’s storagepractices. He acknowledged that even though the Regulations do not define the quality of the storage case, except as it regards a readyability to break it open or into it, the ultimate responsibility lies with a firearms owner to ensure that his or her own storage cases meetthat requirement.

He conceded that the presence of children should require that a higher standard than that provided in the Regulations.That said, it was his opinion that hiding firearms under or behind furniture would be considered a suggested additional step in ensuringsafety.

As well, although firearms owners are taught during the course to share firearms safety to members of the household, he clarifiedthat this point is not elaborated on because every situation is different. [100] Brown also conceded on cross-examination that a higher standard of storage would be prudent for a responsible firearms ownerif that owner were to learn that their houseguest was a drug addict with a criminal past that was stealing from you.

That said, Browndisagreed that this specific fact scenario would require the firearms owner to check on the whereabouts of his firearms, stating that hedoes not “consider checking on firearms on a regular basis to be part of reasonable precautions that an average gun owner would do.” Headded that “with no evidence that the firearms had been misplaced, removed, moved or stolen” he personally would not check on thefirearms, noting once again that there is no legal requirement to check on your firearms on a regular basis.

ANALYSIS Careless Storage The Law [101] Section 86(1) provides that it is an offence to store a firearm in a careless manner or without reasonable precautions for thesafety of other persons: 86

(1) Every person commits an offence who,without lawful excuse, uses, carries, handles,ships, transports or stores a firearm, a prohibitedweapon, a restricted weapon, a prohibited deviceor any ammunition or prohibited ammunition in acareless manner or without reasonableprecautions for the safety of other persons. 86

(1) Commet une infraction quiconque, sansexcuse légitime, utilise, porte, manipule, expédie,transporte ou entrepose une arme à feu, une armeprohibée, une arme à autorisation restreinte, undispositif prohibé, des munitions ou desmunitions prohibées d’une manière négligente ousans prendre suffisamment de précautions pour lasécurité d’autrui. [102] Section 86(1) creates a criminal negligence-based offence. (See: R. v. Creighton, (SCC), 1993 CarswellOnt 115,[1993] 3 S.C.R. 346, [1993] 3 S.C.R. 3, [1993] S.C.J.

No. 91, 105 D.L.R. (4th) 632, 157 N.R. 1, 17 C.R.R. (2d) 1, 20 W.C.B. (2d) 435,23 C.R. (4th) 189, 83 C.C.C. (3d) 346; R. v. Gosset, [1993] 3 S.C.R. 76, ; R. v. Finlay, (SCC), 1993CarswellSask 348, [1993] 3 S.C.R. 103, [1993] 7 W.W.R. 513, [1993] S.C.J. No. 89, 105 D.L.R. (4th) 699, 113 Sask. R. 241. See alsothe following cases regarding more generally objective liability: R. v. Wholesale Travel Group Inc. (1991), (SCC), 8C.R. (4th) 145 and R. v. Hundal (1993), (SCC), 19 C.R. (4th) 169), R. v.

Naglik (1993), (SCC), 83C.C.C. (3d) 526). [103] The gravamen of the offence is conduct that constitutes a marked departure from the standard of care of a reasonable person inall the circumstances. It is an objective test: 78 The foregoing analysis suggests the following line of inquiry in cases of penal negligence. The first question is whether actus reusis established. This requires that the negligence constitute a marked departure from the standards of the reasonable person in all thecircumstances of the case.

This may consist in carrying out the activity in a dangerous fashion, or in embarking on the activity when inall the circumstances it is dangerous to do so. 79 The next question is whether the mens rea is established. As is the case with crimes of subjective mens rea, the mens rea forobjective foresight of risking harm is normally inferred from the facts. The standard is that of the reasonable person in the circumstancesof the accused.

If a person has committed a manifestly dangerous act, it is reasonable, absent indications to the contrary, to infer that heor she failed to direct his or her mind to the risk and the need to take care. However, the normal inference may be negated by evidenceraising a reasonable doubt as to lack of capacity to appreciate the risk. Thus, if a prima facie case for actus reus and mens rea are madeout, it is necessary to ask a further question: did the accused possess the requisite capacity to appreciate the risk flowing from hisconduct?

If this further question is answered in the affirmative, the necessary moral fault is established and the accused is properlyconvicted. If not, the accused must be acquitted. (R. v. Creighton, supra, paragraphs 78 – 79) [104] As explained by McLachlin.

J., as she then was, in Creighton, as adopted by the majority in Finlay, the objective test isconcerned with what should be in a reasonable person’s mind given the nature of the activity engaged in: 44 By way of background, it may be useful to restate what I understand the jurisprudence to date to have established regarding crimesof negligence and the objective test. The mens rea of a criminal offence may be either subjective or objective, subject to the principle offundamental justice that the moral fault of the offence must be proportionate to its gravity and penalty.

Subjective mens rea requires thatthe accused have intended the consequences of his or her acts, or that knowing of the probable consequences of those acts, the accusedhas proceeded recklessly in the face of the risk. The requisite intent or knowledge may be inferred directly from what the accused said orsays about his or her mental state, or indirectly from the act and its circumstances. Even in the latter case, however, it is concerned with"what was actually going on in the mind of this particular accused at the time in question": L'Heureux-Dubé J. in R. v.

Martineau, supra,at p. 655, quoting Stuart, Canadian Criminal Law: A Treatise, 2d ed. (Toronto: Carswell, 1987), at p. 121. 45 Objective mens rea, on the other hand, is not concerned with what the accused intended or knew. Rather, the mental fault lies infailure to direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with whatwas actually in the accused's mind, but with what should have been there, had the accused proceeded reasonably.

[105] In cases of criminal negligence, the objective standard ensures that the same standard of care applies to those who partake incertain regulated activities: 50 The debate about the degree to which personal characteristics should be reflected in the objective test for fault in offences of penalnegligence engages two fundamental concepts of criminal law. 51 The first concept is the notion that the criminal law may properly hold people who engage in risky activities to a minimumstandard of care, judged by what a reasonable person in all the circumstances would have done.

This notion posits a uniform standard forall persons engaging in the activity, regardless of their background, education or psychological disposition. 52 The second concept is the principle that the morally innocent not be punished (Reference re s. 94(2) of the Motor Vehicle Act(British Columbia), (SCC), [1985] 2 S.C.R. 486, at p. 513; R. v. Gosset, S.C.C., No. 22523 [reported (1993), (SCC), 23 C.R. (4th) 280], reasons of Lamer C.J.C. at p. 20 [p. 296]).

This principle is the foundation of the requirement ofcriminal law that the accused must have a guilty mind, or mens rea. (Creighton, supra) [106] As succinctly summarized in R. v. Blanchard, (YK TC), [1994] Y.J. No. 135, 1994 CarswellYukon 6, 103C.C.C. (3d) 360, 29 W.C.B. (2d) 317: 10 From the various judgments in the quartet, along with the decision in their direct antecedent, R. v. Hundal, certain conclusionsabout objective liability are evident: 1. The fulcrum of objective liability is the marked departure from the standard of care of a reasonably prudent person: see R. v.

Hundalsupra, at 104; also per Lamer, C.J.C. in Finlay, supra, at 521 and Gosset, supra, at 505 2. The standard of the reasonably prudent person: (

a) does not vary with the personal characteristics of the offender: see McLachlin, J. In Creighton, supra, at 387-89 and Naglik, supra, at546; (

b) but, it is based on the particular activity undertaken by the accused: see McLachlin, J., in Creighton at 392 and Naglik, supra, at 546; 3. Any personal characteristic of the accused which amounts to an incapacity to appreciate risk is relevant: see McLachlin, J. inCreighton, at 389-91; and 4.

The accused's conduct must be assessed "in all the circumstances of the case, including unforeseen events and reasonably acceptedmisinformation": see McLachlin, J. in Creighton, at 390. [107] According to the objective test of a marked departure from the standard of care of a reasonably prudent person, “[i]f a reasonabledoubt exists either that the conduct in question did not constitute a marked departure from that standard of care, or that reasonableprecautions were taken to discharge the duty of care in the circumstances, a verdict of acquittal must follow.” (Finlay, paragraph 33) [108] As such, a court must first determine what the objective standard is in the circumstances of the case, then consider if theaccused’s actions constitute a marked departure from that standard.

If they do, the court must then determine whether the accusednonetheless took reasonable precautions to discharge his duty. [109] The elements of the offence of careless storage and the standard of proof are dealt with in R. v. Roussel, 2014 ABQB 202, asreferred to, in part, in R. v. Lychak, 2015 ABPC 61, [2015] A.J.

No. 437, 2015 CarswellAlta 698 at paragraph 76: 122 Section 86(1) of the Criminal Code states that "[e]very person commits an offence who, without lawful excuse ... stores a firearm... in a careless manner ...". 123 To establish a contravention of s. 86(1) the Crown must prove beyond a reasonable doubt that the conditions under which thefirearm was stored constitutes a marked departure from the standard of care of a reasonably prudent person and, if it does, the accusedhad no lawful excuse. The Queen v. Creighton, (SCC), [1993] 3 S.C.R. 3, 59; The Queen v. Finlay, (SCC), [1993] 3 S.C.R. 103, 117 & The Queen v.

Gosset, (SCC), [1993] 3 S.C.R. 76, 94 & 102. 124 The first element involves an objective assessment.28 The Queen v. Finlay, (SCC), [1993] 3 S.C.R. 103, 114. It isthe product of three discrete determinations. First, the prosecution must prove to the criminal standard that the accused had a firearm inhis possession and that he stored the firearm. The Queen v. Carlos, 2002 SCC 35 , [2002] 2 S.C.R. 411, 412. Second, the Crownmust prove, again to the criminal standard, the conditions under which the firearm was stored. The Queen v. Carlos, [2002] S.C.R. 411,412.

Third, the prosecution must establish beyond a reasonable doubt the standard of care a reasonably prudent person would adhere tounder the circumstances. The Queen v. Gosset, (SCC), [1993] 3 S.C.R. 76, 94. 125 Once the Court makes these three determinations, it must then ask whether the conditions under which the firearm was storedconstitute a marked departure from the measure - the standard of care a reasonably prudent person would adhere to.

This is a legal issueand a contravention is not proven unless the court is satisfied beyond a reasonable doubt that the conditions under which the accusedstored the firearm did not comply with the standard and that the deficit constitutes a marked departure from the standard. [110] The method of determining what the relevant standard of care is has been discussed in several cases, notably Blanchard andLychak.

Those cases make it clear that it is “the circumstances of the activity, narrowly defined, that will determine the appropriatestandard of care” keeping in mind that “with respect to storage of firearms, "the legislative target of s. 86(2) is to limit the risks whichmight arise from guns coming into the hands of the inexperienced, irresponsible, undisciplined or criminal." (Lychak, paragraph 85) Asnoted by the Supreme Court of Canada in Finlay:

30 By enacting s. 86(2), Parliament has seen fit to impose on all people owning or using firearms a specific and rigorous duty of care.It is a basic tenet of the principles of fundamental justice that the state not be permitted to punish and deprive of liberty the morallyinnocent. Those who have the capacity to live up to a standard of care and fail to do so, in circumstances involving inherently dangerousactivities, however, cannot be said to have done nothing wrong.

The Law Reform Commission of Canada emphasized this point in thefollowing passage from Workplace Pollution, Working Paper 53 (1986), at pp. 2-73: Certain kinds of activity involve the control of technology (cars, explosives, firearms) with the inherent potential to do such seriousdamage to life and limb that the law is justified in paying special attention to the individuals in control.

Failing to act in a way whichindicates respect for the inherent potential for harm of those technologies, after having voluntarily assumed control of them (no one hasto drive, use explosives, or keep guns) is legitimately regarded as criminal. [Emphasis in original.] 31 This Court has, in the past, acknowledged Parliament's rationale in enacting gun control offences.

Writing for the majority in R. v.Schwartz, (SCC), [1988] 2 S.C.R. 443, at p. 483, McIntyre J. stated the following: The Code has included provisions for the control, use and possession of firearms since the enactment of the 1892 Criminal Code, S.C.1892, c. 29, s. 105. That

section prohibited the possession of pistols and air guns at other than specific places and, as well, provided forexemptions from the operation of the section. Since that time, there have been successive amendments which without exception havestrengthened the controls upon possession and use of firearms. ... It is evident that the strict control of handguns has been and remains an essential feature of the Canadian gun control laws. It is clear that the overall intent of Parliament in enacting

Part II.1 of the Criminal Code was to prohibit the acquisition and use ofweapons save in accordance with the strict controls it prescribed. (Finlay, supra) [111] In addition to the legislative purpose behind the firearm provisions, courts have ruled that guidance as to the appropriatestandard of care can be gleaned by reference to the Regulations as well as from expert opinions as to training or instruction provided toindividuals engaged in a certain activity, as well as the expected level of care. (See: Blanchard, paragraphs 22 - 23 where Manson Terr.Ct.

J. details cases where evidence was adduced as to the applicable standard of care given the activity engaged in by the accused. Forexample, in R. v. Sokolowski, [1994] O.J. No. 728, where evidence was led from experienced police officers who train recruits as to whatis expected of officers making gunpoint arrests; and R. v. Antunes, (BC CA), [1994] B.C.J.

No. 656, 43 B.C.A.C.200, 23 W.C.B. (2d) 147, where evidence was adduced from a conservation officer with twenty-two years of hunting experience as to therequisite safety measures in the particular circumstances of the activity undertaken by a hunter.) Application to the Case at Bar [112] In the case before this Court, it is undisputed that Cowan complied with the law by storing all of his firearms unloaded, triggerlocked and in padlocked cases, separate from any ammunition.

Based on the evidentiary findings, namely the hidden nature of thefirearms, the limited access the six children had to the basement, the children’s and Belanger’s lack of knowledge about the whereaboutsof the firearms, and the presence of a Guest, the issue becomes the standard of care in these circumstances and whether Cowan met thatstandard. [113] As I will explain below, though the legislative purpose, Regulations and Manual prescribe a regimen of safety and precautionand set out what is considered to be a rigorous duty of care, the finer details of the required storage standards are imprecise, vague andseemingly discretionary. [114] The proper storage of firearms is part of a larger legislative scheme to regulate the acquisition, transfer and use of firearms so asto promote public safety by addressing the misuse of firearms, whether by illegal gun trade or gun shootings. (See:

section 4 of the Act;Reference re Firearms Act (Canada), 2000 SCC 31, paragraph 19 and following) Given this underlying purpose of the legislation, it ismy view that the specific provisions on the storage of firearms should be read in the same light. [115] The specific provisions on the storage of firearms is dealt with in the Regulations. As is apparent from a reading of theRegulations, only the storage requirements of the firearm itself are regulated, not the circumstances in the home.

The provisions of theRegulations which are pertinent to this case, are those that describe the container, receptacle or room that a firearm can be stored in. Theentire provision has however been reproduced below: STORAGE OF NON-RESTRICTEDFIREARMS ENTREPOSAGE DES ARMES A FEU SANSRESTRICTIONS

(1) An individual may store a non-restricted firearm only if (

a) it is unloaded; (

b) it is (

i) rendered inoperable by means of a secure locking device, (ii) rendered inoperable by the removal of the bolt or bolt-carrier, or (iii) stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into; and (

c) it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into. 5

(1) Le particulier ne peut entreposer une arme à feu sans restrictions que si les conditions suivantes sont respectées : (

a) elle est non chargée; (

b) elle est, selon le cas : (

i) rendue inopérante par un dispositif de verrouillage sécuritaire, (ii) rendue inopérante par l'enlèvement de son verrou ou de sa glissière, (iii) entreposée dans un contenant, un compartiment ou une pièce qui sont gardés bien verrouillés et qui sont construits de façon qu'on ne peut les forcer facilement; (

c) elle ne se trouve pas à proximité de munitions, à moins que celles-ci ne soient entreposées — avec ou sans l'arme à feu — dans un contenant ou un compartiment qui sont gardés bien verrouillés et qui sont construits de façon qu'on ne peut les forcer facilement. STORAGE OF RESTRICTED FIREARMS ENTREPOSAGE DES ARMES A FEU A AUTORISATION RESTREINTE 6 An individual may store a restricted firearm only if (

a) it is unloaded; (

b) it is (

i) rendered inoperable by means of a secure locking device and stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into, or (ii) stored in a vault, safe or room that has been specifically constructed or modified for the secure storage of restricted firearms and that is kept securely locked; and (

c) it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in (

i) a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into, or (ii) a vault, safe or room that has been specifically constructed or modified for the secure storage of restricted firearms and that is kept securely locked. 6 Le particulier ne peut entreposer une arme à feu à autorisation restreinte que si les conditions suivantes sont respectées : (

a) elle est non chargée; (

b) elle est, selon le cas : (

i) rendue inopérante par un dispositif de verrouillage sécuritaire et entreposée dans un contenant, un compartiment ou une pièce qui sont gardés bien verrouillés et qui sont construits de façon qu'on ne peut les forcer facilement, (ii) entreposée dans une chambre forte, un coffre-fort ou une pièce qui ont été construits ou modifiés expressément pour l'entreposage sécuritaire des armes à feu à autorisation restreinte et qui sont gardés bien verrouillés; (

c) elle ne se trouve pas à proximité de munitions, à moins que celles-ci ne soient entreposées, avec ou sans l'arme à feu : (

i) soit dans un contenant ou un compartiment qui sont gardés bien verrouillés et qui sont construits de façon qu'on ne peut les forcer facilement, (ii) soit dans une chambre forte, un coffre-fort ou une pièce qui ont été construits ou modifiés expressément pour l'entreposage sécuritaire des armes à feu à autorisation restreinte et qui sont gardés bien verrouillés. [ 116 ] As is clear from a reading of the Regulations , if a firearms owner chooses to store his firearms in a container or receptacle, that container or receptacle must be constructed so that it cannot readily be broken open or into. [ 117 ] The phrase “readily broken open or into” is unfortunately not defined in the Regulations .

The Manual is of no further assistance. Though it provides for alternative language to “readily”, using instead “easily”, it neither defines what that means nor does it provide any examples:

8.3 Storage a. A restricted firearm may be stored, only if it meets the following conditions: It is unloaded; and • Rendered inoperable by using a secure locking device (see Figure 49) and stored in a securely locked container, receptacle or room that cannot be easily broken open or into, or • Stored in a securely locked vault (see Figure 50), safe or room specifically built or adapted for the secure storage of restricted firearms; … 8.3 Entreposage a.

Un particulier ne peut entreposer une arme à feu a autorisation restreinte que si les conditions suivantes sont remplies: • Elle est non chargée, et • Elle est, selon le cas : - Rendue inopérante par un dispositif de verrouillage sécuritaire (voir la figure 49) et entreposée dans un contenant, un compartiment ou une pièce bien verrouillé et qui est construit de façon qu’on ne peut le forcer facilement, ou - Entreposée dans une chambre forte (voir la figure 50), un coffre-fort ou une pièce qui a été construit ou modifié spécifiquement pour l’entreposage sécuritaire des armes à feu à autorisation restreinte et qui est garde bien verrouillé; et… [ 118 ] The Manual does however provide Figure 52 entitled “Lockable carrying/storage case” which Brown testified to being representative of an acceptable storage case.

Though Hurley did not dispute this, he found that the particular cases used by Cowan were not of good enough quality. [ 119 ] The lack of definition and guidance in either the Regulations or the Manual , including the lack of any certification process for firearm storage, is problematic as can be seen by the evidence before the Court. Two highly qualified experts who deal with firearms disagree as to what constitutes a container or receptacle that cannot readily or easily be broken open or into. For Brown, the test is one of the average eight year old child.

For Hurley, the test is whether he can physically break into the container or receptacle without much difficulty using his hands, feet or a tool. [ 120 ] These particular sections of the Regulations do not appear to be judicially considered, nor does there appear to be any case law where the type of storage case was at issue. [ 121 ] The term “readily” was considered in the case of R. v. L.(S.J.), 2005 BCSC 117 , at paragraph 67 , where the British Columbia Superior Court considered what “readily” meant in regards to section 42(2)(

e) of the Youth Criminal Justice Act which provides that a Youth Court Judge may only impose a restitution order where the amount of the loss or damage is “readily ascertainable”. In referring to the Shorter Oxford English Dictionary the court accepted the meaning of “readily” as “quickly, without delay; also without difficulty, with ease or facility.” I note that the Canadian Oxford Dictionary, 2d ed., defines “readily” as “easily, promptly; without difficulty.” These

definitions are consistent with the Manual’s use of the word “easily” instead of “readily”. [ 122 ] I would note that the entire phrase references a container or receptacle that is constructed so that it cannot “readily be broken open or into” , such that the focus is on the construction itself of the container or receptacle and the ease with which it can be broken open or into. The phrase itself is also preceded by a requirement that the container or receptacle be securely locked such that the container, when securely locked, must be of a construction that does not permit someone to break it open or break into it easily, promptly or without difficulty. This

interpretation is, in my view, consistent with the French version of the phrase “ construits de façon qu'on ne peut les forcer facilement ”. [ 123 ] In my view, while I accept that it appears as though most, if not all, storage cases for firearms could be broken into given a certain degree of force, I have some concern about introducing the standard of an eight year old child when determining whether a storage case can be readily or easily broken open or into.

This type of standard risks watering down the legislative provisions and being inconsistent with the underlying purpose of the provision, namely public safety. [ 124 ] The issue then becomes whether the particular storage cases used by Cowan could be “readily” or “easily” broken open or into.

Hurley’s opinion is that both the Plano 10164 Four Pistol and the Plano SE Series Single Pistol cases are constructed in a manner in which they can readily be broken open or into. [ 125 ] Hurley’s demonstrations in court were certainly remarkable, particularly given the speed and ease with which he was able to pry open the cases. It must be remembered however that Hurley tested the cases on his own beforehand to determine if and how he could break into them. It is unclear how much time that took him to figure out and how many other methods he tried before figuring out how to do so.

It must also be remembered that these tests were done without a trigger locked firearm inside. In this regard, I accept Brown’s caution with respect to Hurley’s demonstrations. [ 126 ] It is also problematic that Hurley’s opinion was that only these two Plano cases could be “readily broken open or into” and not the others. What this means, once again, is that there is a significant degree of discretion as to which case may or may not be “readily broken open or into”.

This discretion leads to uncertainty when deciding which case that may be, especially without a certification process or an ability to conduct tests on the cases prior to purchasing them, and with manufacturer product information which could at first blush appear to suggest adequate storage. [ 127 ] Both the Plano 10164 Four Pistol and the Plano SE Series Single Pistol cases do, on inspection, appear to be constructed of a much thinner and pliable plastic than the other Plano cases.

However, these cases are consistent not only with the diagram shown in the Manual, but also with the cases used during the Canadian Restricted Firearm Safety Course and the practical test needed to pass the

course. In addition, I accept Brown’s evidence that many firearms owners buy the Plano cases at issue. Not only is Brown more likely to gather this information as a result of his line of employment, but his evidence is consistent with the availability of the cases for purchase at a major retailer such as the Store. [ 128 ] As a result of the foregoing, I am unable to find that the use of the two Plano cases, in and of themselves, constitute careless storage. [ 129 ] As for where the firearms were stored in the house given the circumstances in the home, the Regulations provide no guidance.

The Manual seeks to provide some guidance to a firearms owner by indicating that firearms owners have social responsibilities and that while many safety practices have been incorporated in the Act and Regulations, experienced firearm users often exceed those requirements by following some or all of the safety practices recommended in the Manual. The recommendations set out in the Manual and which are pertinent to this case, under

section 2.3.1. are as follows: • Firearms under your care and control are your responsibility 24 hours a day; • Firearms are safer when stored under lock and key. Examples include trigger or cable locks and securely locked containers; • Keep firearms and ammunition out of sight during storage. This will reduce the chances of theft. It will also prevent unqualified or unauthorized persons from using them. Ammunition and firearms must be kept away from unsupervised children. • Store firearms unloaded. Store ammunition separately. Lock the firearm and the ammunition separately when storing them. [ 130 ]

Section 7 of the Manual deals with the social responsibilities incumbent on the firearms owner. It explains that the main purpose of the course is to promote the safe use and handling of firearms, noting that increased safety awareness helps prevent both the accidental and deliberate misuse of firearms. Several examples are provided of real-life situations where firearms were used in homicides, suicides and accidental deaths. Sub-section 7.4 deals with secure storage. Under this sub-section, several points are relevant: • Secure firearm storage is the best way to limit theft and deliberate misuse of firearms.

It should not be easy for unauthorized users to get firearms and ammunition. • Do not leave the key or combination to the firearm storage area or container lying around. Do not given them out to others. Also, do not let it become widely known that you have firearms. • Locking up firearms and ammunition is important and, in many case, required by law. • Make access to firearms and ammunition difficult. • Secure storage of firearms and ammunition may act as a deterrent to easy theft by criminals. Remember: you are responsible for your firearms 24 hours a day. This is both a legal and a moral responsibility.

It is wise to store them safely and securely when you are not physically in control of them. This may cause some inconvenience, but it may also save a person from death or serious injury. [ 131 ]

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