R. v. Myles, 2019 BCPC 87

Citation: R. v. Myles 2019 BCPC 87 Date: 20190415 File No: 40755-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NATHAN CLIFFORD KENNETH MYLES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: T. McFadgen Counsel for the Defendant: C. Hodson Place of Hearing: Duncan , B.C. Date of Hearing: April 15, 2019 Date of Judgment: April 15, 2019 Introduction [ 1 ] THE COURT: Nathan Clifford Kenneth Myles is before the court on a charge contained within Information 40755-1.

That charge is that on or about December 29th, 2018, at or near Chemainus, British Columbia, he did possess ammunition; namely a .22 calibre rimfire cartridge, while he was prohibited from doing so by an order under the Criminal Code or any other Act of Parliament. That is an offence contrary to s. 117.01(1) of the Criminal Code .

[ 2 ] The issue for this court is to determine whether or not Crown had proven all of the elements of the offence beyond a reasonable doubt. [ 3 ] The main issue is whether or not what was found in the possession of Mr. Myles meets the definition of ammunition as contained under s. 84(1) of the Criminal Code . Presumption of Innocence [ 4 ] The obligation is upon the Crown to prove all elements of each offence beyond a reasonable doubt. If that occurs then and only then can the court convict the accused person. Where a reasonable doubt exists on any element of the offence charged the Accused must be acquitted.

The burden of proof rests upon the prosecution throughout the trial and never shifts to the Accused person. The Evidence The Crown's Case [ 5 ] The sole witness called by Crown in support of its case is Constable Matthew Baines. Constable Baines has served with the RCMP as a police officer for some seven years; two and half of which has been spent in the Cowichan Valley with the North Cowichan/Duncan detachment. Constable Baines has previously owned and possessed firearms. In addition to his training with the RCMP, prior to his police service, he owned and possessed guns and was a member of a shooting club.

Constable Baines testified that in his shooting career he has fired several thousand rounds of ammunition similar to the ammunition that is the subject of the charge before this court. [ 6 ] Constable Baines was not qualified as an expert by Crown and therefore he was simply testifying in the context of his personal knowledge, again through his police service as well as his time spent using and possessing personal firearms. [ 7 ] The matters giving rise to these charges resulted from the execution of warrants against Mr. Myles, (who I will refer to hereafter as the "Accused").

The Accused was arrested by Constable Baines and another police officer at approximately 10:34 on the morning of December 29, 2018. [ 8 ] A search incidental to arrest occurred. Mr. Myles was Chartered and warned and transported to the North Cowichan/Duncan detachment of the RCMP. At that point a further search of Mr. Myles occurred. In the course of that search Constable Baines located what he described as a .22 calibre long gun cartridge in the front left pant pocket of the Accused. [ 9 ] Constable Baines then provided evidence about his observations of the item that was recovered.

He indicated that it was a cartridge and by that he indicated that it contained various components. First of all was the lead bullet or tip of the cartridge. Next was the brass cartridge and the final portion was the rimfire primer, which is the portion at the very end of the cartridge. With this particular cartridge Constable Baines noted that the rimfire primer had not been struck by a firing pin from a firearm.

Based on his further observations of the cartridge he noted that there was no indication that any attempt had been made to extract out any of the contents contained either in the primer portion of the cartridge or in the main brass portion. What possibly could be extracted would be the primer chemical and gunpowder from the main portion of the cartridge. [ 10 ] Constable Baines concluded that the cartridge was a live cartridge based on his observations.

He indicated that he did not in the course of his investigation nor did any other individual have the cartridge examined by an expert, nor were any steps taken in order to discharge the round in order to determine whether or not it was a live round of ammunition. [ 11 ] The evidence of Constable Baines is that the fact that the bullet tip portion was still attached to the cartridge and there was an absence of a rectangular dent on the rimfire portion of the cartridge also assisted him in making the conclusion that the cartridge was a live round. [ 12 ] Constable Baines also testified that the manufacturer of this particular cartridge was a manufacturer known as Federal.

He also further noted that this cartridge could be fired from either a long gun, that is a rifle, or from a properly equipped .22 calibre handgun. [ 13 ] As part of his evidence Constable Baines also noted that if a cartridge has been fired that the lead bullet tip would have been separated from the brass casing. [ 14 ] In cross-examination Constable Baines indicated that with his experience and having fired off thousands of rounds of similar ammunition, he never had an occasion whereby a cartridge failed to ignite and discharge.

He did concede that there were minute possibilities that there was no gunpowder in this particular cartridge, but based upon his observations of the intact cartridge and no indication of any tampering or any modification having occurred with respect to this cartridge he emphasised that it was at best a minute possibility. [ 15 ] It is not an issue that at the time of the alleged offence that the Accused was subject to three mandatory prohibition orders made under s. 109(1) of the Criminal Code . These orders were made on May 8, 2013; May 6th, 2013; May 14th, 2018.

It is noteworthy that with respect to the prohibition order imposed on May 8, 2013, the actual document does not have a signature of acknowledgement signed by the Accused, but rather the words "refused to sign" have been inserted. With respect to the remaining two prohibition orders the words "left without signing" appear on each document without any signature from the Accused. Defence Evidence [ 16 ] No evidence was called by defence and no experts were tendered in connection with the arguments made by defence with respect to this matter. The Applicable Law and Applicable Provisions of the Criminal Code .

[ 17 ]

Section 117.01(1) of the Criminal Code reads as follows under the heading "Possession Contrary to Order", 117.01(1): Subject to subsection (4), every person commits an offence who possesses a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance while the person is prohibited from doing so by any order made under this Act or any other Act of Parliament. [ 18 ] Subsection (4) reads as follows: Subsection (1) does not apply to a person who possessed a firearm in accordance with an authorization or licence issued to the person as the result of an order made under subsection 113(1).

Subsection (4) is not applicable to the matter before this court. [ 19 ] Under the

interpretation

section or

Part 3 of the Criminal Code the s. 84(1) defines ammunition as follows: . . . "ammunition" means a cartridge containing a projectile designed to be discharged from a firearm and, without restricting the generality of the foregoing, includes a caseless cartridge and a shot shell . . . Crown's Position [ 20 ] Crown states that the narrow issue is whether or not what was seized by Constable Baines from the Accused during the search incidental to arrest on December 29th, 2018, being a cartridge, in fact fits the definition of ammunition contained under s. 84(1) of the Criminal Code .

In that regard Crown's position is that the definition of ammunition specifically makes mention of the phrase "a cartridge containing a projectile designed to be discharged from a firearm." In that regard Crown indicates that it is not necessary for Crown to prove that the cartridge in question could actually have been discharged, but rather Crown can rely on the fact that the commercially available cartridge, as indicated in the evidence of Constable Baines, makes it satisfactory to meet the definition of ammunition.

In other words, Crown asserts that because the ammunition produced by Federal is commercially available the reasonable inference is that it is designed to be discharged from a firearm. [ 21 ] Crown also indicates that our Court of Appeal in R. v. Singh , 2004 BCCA 428 and 2004 BCJ No. 1714 has dealt with the arguments being raised in this particular matter and that case should offer this court guidance in entering a conviction. [ 22 ] As part of its submission Crown points out that it is not necessary for the police to fire the cartridge in order to determine whether or not it meets the definition of ammunition.

Furthermore, that the thrust of the prohibition

section contained under s. 109 of the Criminal Code is to prevent individuals from having possession of ammunition as well as other related firearms and firearms apparatus and that the

section as written focusses on the possession and not whether or not the designed product or the projectile so designed to be discharged in fact can be fired or discharged through the use of a firearm. [ 23 ] Crown characterizes its position by saying that the requirements of the prohibition under s. 109 do not require the individual who is bound by the prohibition to actually know whether or not the ammunition is capable of being discharged, noting that at the point that if it is discharged then the whole purpose of the prohibition order has been lost. [ 24 ] Furthermore Crown submits that the other elements of the offence, including identity, jurisdiction, the existence of the prohibition orders, have all been satisfied by the evidence adduced by Crown or have been conceded to by defence.

Hence Crown says that the offence has been proven beyond a reasonable doubt and the Accused should be convicted. Defence's Position [ 25 ] Defence also argues that the case turns on the narrow point as to the definition of ammunition. In its submissions Defence concedes that identity, possession of the cartridge, its recovery after a search, and the existence of the prohibition orders are not disputed.

Reliance is placed upon the evidence adduced by Constable Baines to the effect that he "believed" the cartridge to be ammunition and the fact that Constable Baines could not say with absolute certainty that the ammunition could actually have been fired.

It is Defence's position that the police should have taken additional steps in order to make that determination, either by referring the matter to a firearms and ammunition expert or by discharging the bullet with the use of an appropriate firearm. [ 26 ] Defence relies on various hypotheticals that were placed to Constable Baines as to whether or not it is possible that the cartridge could fail to discharge.

In that regard I am being asked to accept that the answers provided by Constable Baines left that possibility open and that based on that evidence Crown had failed to discharge its burden of proving that the cartridge seized from the Accused in fact is ammunition within the meaning of the Criminal Code . Analysis [ 27 ] The British Columbia Court of Appeal in R. v. Singh previously dealt with this issue, as I have noted above. The decision in Singh dealt with a conviction appeal.

The defendant in that case sought to appeal convictions on a number of charges, including possession of a firearm and possession of ammunition for which the defendant in that case was prohibited from possessing. [ 28 ] In the Singh case the defence raised an argument to the effect that the shotgun shells and bullets that had been located within a residence occupied by Mr. Singh were not proven by Crown to be ammunition as defined in s. 84 of the Criminal Code .

It was also defence's position that the Crown should have called expert evidence to demonstrate that the items fell within this definition. [ 29 ] In response to that position at paragraphs 15 and 16 Mr. Justice Hall on behalf of the court stated as follows, 15: The police officer who discovered the items in the bedroom described them as a .40 calibre bullet and a .22 calibre bullet. The officer who discovered the shells in the cardboard box described them as shotgun shells. Police officers are quite familiar with what ammunition

looks like. Having regard to the evidence given by the police witnesses who discovered these items, it seems to me that this was not acase in which there was any necessity for any additional evidence to be called from an expert to establish that these items wereammunition as that terminology is used in the Criminal Code. Paragraph sixteen: As Chief Justice McEachern pointed out in R. v. To (1992), (BC CA), 16 B.C.A.C. 223 at 230, a case where the issuewas possession, courts must approach cases with a certain degree of realism.

It seems to me that it is only common sense to hold thatwhen experienced police officers describe the items found as being bullets and shells, as they did in this case, that it is a fair inferencethat they are talking about the type of items that the Criminal Code definition of ammunition encompasses. Of course, evidence might beadduced to rebut such an inference. But as the evidence stood in the instant case, it seems to me that it was proper for the trial judge toconclude that these items were ammunition.

Accordingly, in my view, he did not err in convicting the appellant of the offence of havingin his possession this ammunition contrary to the order that was made in 1993 prohibiting him from possessing firearms and ammunition. [30] In this case I am of the view that police officer Baines who testified on behalf of Crown had the adequate knowledge andexperience and I might add perhaps better experience with the type of ammunition that was located at the time of the search. [31] I accept the direction of the Court of Appeal in Singh that I can rely upon that type of evidence in coming to an assessment andmy analysis of the evidence adduced by Crown. [32] I am satisfied that given the totality of the evidence presented by Constable Baines and the lack of any other evidence adducedthat would rebut the inference that the item seized from the Accused was in fact ammunition that I must therefore conclude that thecartridge that was seized and recovered was in fact ammunition as defined under s. 84 of the Criminal Code. [33] I want to emphasize that at all times the burden remains with the Crown to prove each of the essential elements of the defence. [34] My comments concerning the possible adducing of evidence to rebut the inference is not intended in any way to shift a burdento defence in this matter.

I simply note that the evidence that I have before me and can rely upon is the evidence that has been putforward by the Crown. Decision [35] I find that Crown has satisfied its burden and I therefore convict the Accused, Mr. Myles, with respect to this charge. [36] That concludes my reasons. (REASONS CONCLUDED)