Her Majesty the Queen - v. -, 2013 SKPC 67

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 067 Date: April 17, 2013 Information: 24477995 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Barry Ian MacLeod Appearing: L. O’Connor For the Crown R. Saretzky For the Accused JUDGMENT I. J. CARDINAL , J I. INTRODUCTION [ 1 ] Mr. MacLeod is charged with three firearm related offences arising from an incident on May 15, 2012, near the conflux of the White Fox and Torch Rivers, in the White Fox District of Saskatchewan.

[ 2 ] The Crown alleges that Mr. MacLeod carried a firearm for a purpose dangerous to the public peace and that he used a firearm without reasonable precaution for the safety of other persons. The Crown advised during arguments that they are not seeking a conviction on the third charge, that he pointed a firearm at another person, and I dismiss Count 3. [ 3 ] The Crown alleges Mr. MacLeod discharged a firearm in close proximity to Josh Braun and Craig Mahoney while they were in a canoe on the river. Mr.

MacLeod admits he discharged the firearm, a .22 calibre rifle, but only did so after he had heard shots coming from the river area and simply wanted to warn people that he and his residence were in the area. While there is common ground as to what occurred to a point, the evidence as between MacLeod differs greatly from that given by the two men. II. EVIDENCE OF THE CROWN [ 4 ] On May 15, 2012, Josh Braun, 24, and Craig Mahoney, 22, decided to go hunting beaver and muskrat on the Torch River in a canoe.

The two friends drove to an area where the White Fox and Torch River meet, which is commonly referred to as the landing. They launched the canoe at approximately 5:30 p.m. and went hunting along the river for approximately two hours. Each had a 22 rifle with them and together they had fired about 20 times while hunting on the river. They were returning back to the landing when they heard gunshots. Mr. Mahoney testified he heard one shot, while Mr. Braun testified he heard a shot or shots. Neither of them saw anyone else around on either the land or water. Mr.

Braun testified he fired one shot into the water to warn people that they were coming around the bend, so they wouldn’t be shot in the canoe. [ 5 ] As they got closer to the landing, they saw a man standing on the bank with a rifle. He yelled something at them, but neither of them could understand what was said. Both testified that Mr. Braun asked him what he said. Mr. MacLeod replied with words to the effect that they had heard him. Mr Braun replied he had not, and and in return, Mr. MacLeod fired in the air and said “You hear me now?” [ 6 ] Both young men testified that Mr.

MacLeod was very angry and they couldn’t understand everything he was yelling at them. Both Mr. Mahoney and Mr. Braun admitted that they were upset with Mr. MacLeod for shooting. They were yelling at Mr. MacLeod and asking him what was going on. Both testified Mr. MacLeod was claiming that they were on his land, and as the canoe came closer he pointed the firearm at the bank to one side of the canoe and fired into it, and said words to the effect that “That’s my land”. He then moved the gun across in front of him, and across past the canoe, and shot on the other side into the bank and said “That’s my land”.

He was firing into the banks, which were approximately 20-30 feet away from the canoe, according to Mr. Mahoney, or 10-15 feet away according to Mr. Braun. [ 7 ] Mr. MacLeod was standing on top of a bank that was approximately eight to fifteen feet above the water, while the two men remained in the canoe back-paddling in the current to stay on the river, without getting any closer to Mr. MacLeod. Neither of the young men resorted to using their firearms at any time during the altercation with Mr. MacLeod. Mr. Braun testified their firearms were not pointing in the direction of Mr.

MacLeod. [ 8 ] After firing into the banks the parties continued to argue. Mr. Mahoney testified he believed Mr. MacLeod fired once into the water, about 20 feet from the canoe as he could see the water splash up. He could not recall if that occurred before or after Mr. MacLeod had shot into the banks. Mr. Braun stated he only saw three shots, being one in the air and the two into the bank. Mr. Braun testified that he was in the front of the canoe and Mr. Mahoney was in the back and he could not see everything that was happening around Mr.

Mahoney. [ 9 ] After approximately a half hour of arguing with the two men, Mr. MacLeod put the firearm into his truck. He did not leave. Rather, he continued to argue with them for approximately another half hour while the two men remained in the canoe. Mr. Braun testified Mr. MacLeod called them on to fight and said something along the lines of “Come up on the bank and we’ll settle it”. The men were yelling at him that you don’t just shoot a gun at people and the accused responded that his grandpa was a sniper in the war, and if he had wanted to shoot them he could. Other comments were made by Mr.

MacLeod about their hunting practices as well. [ 10 ] The situation came to an end when Mr. MacLeod left the area in his vehicle and the two men then paddled to shore and left.

III. EVIDENCE OF THE DEFENCE [ 11 ] Mr. MacLeod is a 62 year old man who lives in the Rural Municipality of Torch River, about 30 kilometres straight north of Nipawin. He built a home in the area about three years ago and tendered Exhibit D-1 which shows a Google Map overview of the area including the Torch and White Fox Rivers. He testified that where the two rivers meet is on his land. [ 12 ] On May 15, 2012, at approximately 4:30 to 5:00 p.m. he was sitting on the riverbank and looked down the river and saw two men in a canoe. I accept he saw Mr. Mahoney and Mr. Braun.

He could hear them talking as he testified the acoustics in the area are amazing, but he could not understand what they were saying. He sat there for approximately one half hour, when he heard shots being fired from the river area. He heard between 10 and 20 shots. He testified this was pretty unusual as there are signs posted stating “No Hunting/Trespassing”, and he wondered what was going on. He took his dog, which looks like a coyote, back to his house as he was afraid someone may shoot it.

He then picked up a .22 firearm, drove three kilometres from the house back to the river, saw a vehicle and knew that this was probably the two men on the river in the canoe. [ 13 ] He testified he didn’t want them shooting as they may not know that he, his house and his dogs were in the area. Therefore, to get their attention, he loaded and shot into the bank of the river to his right, about 15 to 20 feet away, approximately 6 or 7 times. When he shot into the bank, he said he did not see anyone in view, and he was just trying to get their attention.

He testified he did not shoot into the water, nor did he shoot to the left as that was too rocky and dangerous as the bullets may ricochet. [ 14 ] The two men came around the corner in the canoe and they began arguing back and forth. Mr. MacLeod acknowledges that it was heated and both sides were upset. He testified the first thing he asked them was “Do you know where my house is?”, they said no. He said “I live over there”. He said they talked about hunting beavers, and he asked them why, because it’s a wildlife sanctuary and people live in the area.

He said he could see an animal in a box in the canoe, and found this disappointing as the beaver they had killed probably lived on his land. [ 15 ] He denied that he shot on each side of the canoe into the bank, and denied moving the gun across in front of them while it was pointed in their direction. He said it was possible he might have fired one shot as they came around the bend, but he didn’t think so. In cross-examination he was asked why he shot to get their attention when he testified the acoustics were good in the area.

He said it was the quickest way to get their attention, but he couldn’t say why he didn’t just yell at them. He agreed in hindsight that there were other ways he may have been able to get their attention, such as honking the horn on his vehicle. However, he could not offer any explanation as to why he drove home to get the firearm instead of using the other obvious options. [ 16 ] He testified he shot the gun to get their attention, and was not trying to scare them.

He testified he has 11 rifles and if he wanted to scare them, he could have used a different, more powerful weapon. [ 17 ] He testified he did not shoot on either side of the canoe, or swing the rifle in front of them. [ 18 ] He denied shooting into the water close to the canoe. At one point he testified he did not recall doing it and would not admit that it was even possible he shot on either side and swung the rifle in front of the two canoeists.

He testified that during the argument he was holding his rifle but then put it into his truck and resumed arguing. [ 19 ] Both of the Crown witnesses testified they believed the rifle he was carrying was a .22 calibre rifle due to the sound it made when discharged and their experience with firearms. Mr. MacLeod agreed that he had used a .22 calibre rifle and had that in his hands when speaking to the two men. [ 20 ] Mr. MacLeod acknowledges he told the young men his grandfather was a sniper.

He mentioned that again in his examination-in-chief, indicating that he had learned to hunt and shoot a firearm from his grandfather, whom he considered an expert, as he was a sniper in World War I. IV. ANALYSIS

[21] It is trite law that the Crown must prove its case beyond a reasonable doubt. It is also well known that in assessing credibility the Court must be guided by the Supreme Court of Canada decision R. v. W. D.[1] If I believe the accused I must acquit him. If I do notbelieve the accused, but his evidence leaves me with a reasonable doubt, I must acquit him. Even if the evidence of the accused does notleave me with a reasonable doubt, I must be satisfied on all the evidence I do accept that the accused is guilty beyond a reasonable doubt. [22] I accept the evidence of Mr. Mahoney and Mr.

Braun and where it conflicts with the evidence of Mr. MacLeod, I reject theevidence of Mr. MacLeod. [23] Both Mr. Mahoney and Mr. Braun gave their evidence in a straightforward manner, without embellishment and without anyanimosity towards Mr. MacLeod. Their evidence did not line up as between the two of them in all aspects, but I do not find thatdiminishes their testimony. For example, Mr. Mahoney testified the accused fired a shot into the water, but Mr. Braun did not provideany such evidence. These were two young men who did not know the accused until they encountered him on the riverbank. [24] Mr.

MacLeod, however, was less than forthright in his evidence. He tended to go on at length about matters that were notrelevant and for which he was not being questioned. For example, in cross-examination, he was darting around Crown counsel’squestions and trying to change the subject concerning his behaviour by deflecting to evidence concerning when the police came to talk tohim about the incident. [25] Mr. MacLeod had control of the firearm and knew what he was doing. There is no evidence of intoxication on the part of Mr.MacLeod.

There was no evidence of self-defence or defence of property raised on the evidence or by counsel for Mr. MacLeod. [26] I will now turn to a discussion of each of the two remaining counts. Count 1: Carry a weapon, to wit: a firearm, for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code. [27] Mr. MacLeod does not dispute he was carrying a firearm and that it is a weapon within the meaning of s. 2 of the CriminalCode. The only question is whether he carried the firearm “for a purpose dangerous to the public peace” as it is understood withinsection 88 of the Code. [28] In R. v.

Cassidy, (SCC), [1989] 2 S.C.R. 345 (S.C.C.) Lamer J. (as he then was) confirmed the mens rearequirements of possession of a weapon for a purpose dangerous to the public peace at paragraph 9:

Section 85 requires proof of possession and proof that the purpose of that possession was one dangerous to the public peace. Theremust at some point in time be a meeting of these two elements. Generally, the purpose will have been formed prior to the taking ofpossession and will continue as possession is taken. That is the case before us. Assuming that the appellant was capable of forming therequisite intent notwithstanding his intoxication (a matter dealt with under the third issue), he intended to use the shotgun to expel thepolice officers from his mother's house.

This is evident from his shouting "You get out, or I'll get you out". He then took possession ofthe gun. At that point in time, the offence was complete. [29]

Section 88 is an offence of specific intent. In R. v. Kerr, 2004 SCC 44 , [2004] 2 S.C.R. 371, a divided SupremeCourt of Canada approached the mental element in different ways, but agreed in the result. The majority set out a hybrid subjective-objective approach in para. 25: 25 ... By this approach, the trier of fact must first determine what was the accused person’s purpose; this is a subjective determination.The trier of fact must then determine whether that purpose was in all the circumstances dangerous to the public peace; this is anobjective determination.

[30] Justices Arbour and LeBel, approached the mental element as being purely subjective, rather than resorting to the hybridsubjective-objective approach. They believed that defining the meaning of “dangerous to the public peace” would assist the trier of factfrom slipping into a purely objective approach, and provided this definition at para. 86 and 88: 86. In my view, a danger to the public peace is one that is potentially harmful to persons or property. A “purpose dangerous to thepublic peace” needs to be given concrete content.

Within the meaning of s. 88(1), it is the possession of a weapon with the intention ofdoing harm to persons or property, or showing a reckless disregard for harm to persons or property. 88. ... Criminal liability under s. 88(1) thus applies not only to an accused who intends to do harm to persons or property, but also anaccused who is aware of a risk of harm to persons or property and persists with his or her intention despite that risk.

It does not establishan objective standard of dangerousness however. [31] Regardless of the approach adopted, both approaches require the court to consider all of the circumstance surrounding thematter to determine the purpose the accused intended and whether that purpose was dangerous to the public peace. [32] Mr. MacLeod’s actions on May 15, 2012 were clearly “dangerous to the public peace” within the definitionestablished by Kerr, supra. [33] I reject Mr. MacLeod’s evidence that he did not shoot anywhere other than in the bank to his right. I accept the evidence ofboth Mr. Mahoney and Mr. Braun that Mr.

MacLeod shot on each side of them, while angrily telling them they were on his land andtrespassing. I accept the evidence of Mr. Mahoney that Mr. MacLeod fired one shot into the water near the canoe. While Mr. Mahoneyadmitted it was quite an emotional situation, his evidence was clear that he observed the water splash up from a shot. [34] Mr. MacLeod’s unlawful purpose began when he decided to return to his residence and obtain a firearm.

It continued as hedrove back to the landing area, exited his vehicle with the firearm and shot it into the banks within a few feet of each side of thecanoeists and into the water near them. It went on for over a half hour as he stood there with the firearm in his hands yelling at the twoyoung men. It ended when Mr. MacLeod finally put the rifle in his vehicle and drove away. [35] His actions showed “a reckless disregard for harm to persons” and I find he was aware of the risk of harm to the canoeists butpersisted with his intention despite the risk. [36] Many options were available to Mr. MacLeod.

However, rather than do the rational thing, I find as a fact that Mr. MacLeoddecided to go home, get a firearm, and use it to make his point and intimidate the canoeists. I find as a fact he fired into the banks oneach side of the canoe in order to make his point that the river was his land and they were trespassing and he did not want them there. He was very upset they were hunting in the area near his house and property.

I find as a fact that he fired one shot into the water in aneffort to intimidate or scare the two young men from ever coming back to the area to hunt. [37] I find the Crown has proven its case beyond a reasonable doubt and find the accused guilty of Count 1. Count 2: Without lawful excuse use a firearm, without reasonable precaution for the safety of other persons, contrary to s. 86(1)of the Criminal Code. [38] The seminal case concerning

Section 86 is R. v. Finlay, (SCC), [1993] 3 SCR 103 where at page 114 theCourt stated: The fault requirement of this provision is, therefore, to be assessed objectively, which, following this Court’s holding in R. v. Hundal, (SCC), [1993] 1 S.C.R. 867, at p. 883, consists of conduct that is a marked departure from the standard of care of areasonable person in the circumstances.

[39] The evidence clearly establishes that Mr. MacLeod’s actions in discharging the firearm into the bank a few feet from thecanoe and then moving the firearm in front of him in the direction of the two canoeists to shoot into the other bank a few feet from thecanoe was conduct that is a marked departure from the standard of care of a reasonable person in the circumstances. So too is the firingof the rifle into the water within a few feet of the canoe and close to Mr. Mahoney. [40] It is of no assistance to Mr. MacLeod that he is familiar with firearms and learned to handle them from a young age.

Noreasonable person would use a firearm in the manner as did Mr. MacLeod. His conduct in using the firearm showed a complete lack ofprecaution for the safety of the two canoeists and was unreasonable in all of the circumstances. [41] I find the Crown has proven its case beyond a reasonable doubt and I find the accused guilty of Count 2. Dated at Nipawin, in the Province of Saskatchewan this 17th day of April, A.D. 2013. _____________________________ I.J. Cardinal, J [1] R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742.