Her Majesty the Queen - v. -, 2021 SKPC 7

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 7 Date: January 15, 2021 Information: 991087698 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Karl Lerat Appearing: Leona Andrews For the Crown Greg Wilson For the Accused TRIAL DECISION M. HINDS , J [ 1 ] The accused, Karl Lerat faces a total of 17 offences. In particular, Mr. Lerat is charged that on or about April 12, 2019 at or near Regina, Saskatchewan he did:

(1) Without lawful excuse store a firearm, to wit: a Mossberg 715T .22 calibre semi-automatic sawed off rifle in a careless manner, contrary to section 86(1) of the Criminal Code .

(2) Without lawful excuse store a firearm, to wit: a M1 carbine .30 calibre semi-automatic sawed off rifle in a careless manner, contrary to section 86(1) of the Criminal Code .

(3) Without lawful excuse store a firearm, to wit: a Crosman SSP250 modified pellet pistol in a careless manner, contrary to section 86(1) of the Criminal Code .

(4) Without lawful excuse store a firearm, to wit: Siminov SKS 7.62 x39mm semi-automatic sawed off rifle in a careless manner, contrary to section 86(1) of the Criminal Code .

(5) Have in his possession a weapon to wit a Mossberg 715T .22 calibre semi-automatic sawed off rifle for a purpose dangerous to the public peace, contrary to

section 88 of the Criminal Code .

(6) Have in his possession a weapon to wit: to wit: a M1 carbine .30 calibre semi-automatic sawed off rifle for a purpose dangerous to the public peace, contrary to

section 88 of the Criminal Code .

(7) Have in his possession a weapon to wit: a Crosman SSP250 modified pellet pistol for a purpose dangerous to the public peace, contrary to

section 88 of the Criminal Code .

(8) Have in his possession a weapon to wit: Siminov SKS 7.62x39mm semi-automatic sawed off rifle for a purpose dangerous to the public peace, contrary to

section 88 of the Criminal Code .

(9) Possess a firearm to wit: a Mossberg 715T .22 calibre semi-automatic sawed off rifle, knowing he was not the holder of a licence under which he may possess it, contrary to section 92(1) of the Criminal Code .

(10) Possess a firearm to wit: a M1 carbine .30 calibre semi-automatic sawed off rifle, knowing he was not the holder of a licence under which he may possess it, contrary to section 92(1) of the Criminal Code .

(11) Possess a firearm to wit: a Crosman SSP250 modified pellet pistol, knowing he was not the holder of a licence under which he may possess it, contrary to section 92(1) of the Criminal Code .

(12) Possess a firearm to wit: Siminov SKS 7.62x39mm semi-automatic sawed off rifle, knowing he was not the holder of a licence under which he may possess it, contrary to section 92(1) of the Criminal Code . Counts (13) to (20). Crown Prosecutor entered a stay of proceedings.

(21) Possess ammunition to wit: three cartridges of ammunition, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code .

(22) Possess a firearm to wit a Mossberg 715T 22 calibre semi-automatic sawed off rifle, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code .

(23) Possess a firearm to wit a M1 carbine .30 calibre semi-automatic sawed off rifle, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code .

(24) Possess a firearm to wit: a Crosman SSP250 modified pellet pistol, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code .

(25) Possess a firearm to wit: Siminov SKS 7.62x39mm semi-automatic sawed off rifle, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of The Criminal Code , contrary to

section 117.01(1) of the Criminal Code .

[ 2 ] For the following reasons I found Mr. Lerat guilty of Counts 4, 8, 12 and 25. Facts [ 3 ] On May 13, 2013, Judge Henning of the Provincial Court of Saskatchewan ordered that Karl Lerat was prohibited from having in his possession any firearm (not including a prohibited firearm or a restricted firearm ), cross-bow, restricted weapon, ammunition or explosive substance for life (Exhibit P-1). [ 4 ] On April 11, 2019, several members of the Regina Police Service (RPS) were involved in a surveillance operation regarding Karl Lerat. Karl Lerat was operating a dark Chevrolet half ton truck.

He was observed driving to Walmart on Prince of Wales Drive in Regina, Saskatchewan parking his truck and entering the store at 9:15 p.m. with a female. Mr. Lerat and the female left the Walmart store sometime later and got back into his truck and drove to Access Storage, a storage business located at 6050 Diefenbaker Drive, near the CTV towers in the east end of Regina. [ 5 ] Mr. Lerat was observed to pull up to a PIN pad located at a gated entrance to Access Storage at 10:43:58 p.m. and enter into the fenced storage facility at 10:44 p.m. Mr. Lerat subsequently left Access Storage at 10:48 p.m.

Police obtained video footage from several cameras situated at Access Storage. Mr. Lerat drove his truck to a spot near storage locker number 224. He got out of his truck unlocked storage locker number 224, opened the rear passenger door of his truck and took out a black hockey bag with white stripes. He walked a short distance and placed the hockey bag inside storage locker number 224. Mr. Lerat was not observed to open the hockey bag or handle any other items in the storage locker. [ 6 ] Pamela Dvernichuk is an employee of Access Storage.

Her uncontradicted evidence is that Michelle Lerat began renting Access Storage, storage locker number 224 on March 1, 2019. Ms. Dvernichuk testified that a tenant such as Ms. Lerat has a gate code (PIN) to open the gate to the Access Storage facility. Michelle Lerat indicated in the paper work she filled out with Access Storage that she permitted Karl Lerat, Rachel Lerat and Tyson Lerat to have access to storage locker number 224 [Exhibit P-4]. In order for others such as Karl Lerat to open the gate to the facility Ms. Lerat would have had to provide them with the gate code and a key to the locked storage unit.

Ms. Dvernichuk further testified that the Access Storage facility gate was opened at 10:44 p.m. on April 11, 2019 and confirmed that shortly thereafter storage unit 224 was accessed. [ 7 ] The access code of Michelle Lerat to the Access Storage facility was not used between 11 p.m. on April 11, 2019 and 7:00 p.m. on April 12, 2019. [ 8 ] The Regina Police Service obtained a search warrant for locker number 224 at Access Storage. The warrant was executed at 7:00 p.m. on April 12, 2019.

The black hockey bag which was previously observed to be placed inside storage locker number 224 by Karl Lerat on April 11, 2019 was located on the left side at the front of the storage locker [Exhibit P-5 photograph 14]. The police also found a black case on the right side at the front storage locker. In addition, police also found a Mossberg .22 calibre sawed off rifle in the back corner, right side of the storage locker [Exhibit P-5 photographs 2, 3 and 4 ]. [ 9 ] The hockey bag had a small lock on it.

The hockey bag was opened by police and the following items were seized: (1) a M1 carbine .30 calibre sawed off rifle [Exhibit P-5 photographs 5 and 6], (2) a Crosman SSP250 modified pellet pistol [Exhibit P5 photographs 7 and 8] and (3 ) Simonov SKS 7.62x39mm sawed off rifle with bayonet and clip [Exhibit P-5 photographs 9, 10 and 11]. [ 10 ] The black case was also opened by police and found to hold 325 bullets (rounds) [Exhibit P-5 photographs 12 and 13]. In particular the black case contained:

i) a Tapco clip with two live rounds (bullets fully intact) ii) a rifle clip which was empty iii) Military SKS amo grey in colour, 162 rounds

iv) SKS copper coloured, 64 rounds v) 303, 11 rounds vi) 30.06, 1 round vii) 270, 1 round viii) 300, 1 round ix) 3030, 1 round x) 25.06, 1 round xi) SKS green in colour, 18 rounds xii) 308, 1 round xiii) various .22 calibre rounds, 62 xiv) .22 calibre clip and xv) a white Samsung Phone [ 11 ] During the search of storage locker 224 Corporal Jay LaRocque was tasked with being the exhibit officer. He was in charge of taking possession of items seized during the search and assigning exhibit numbers to them.

He marked the M1 carbine .30 calibre sawed off rifle, which he described as a being a sawed off black rifle, as Police Exhibit Number 720-002. He marked the Simonov SKS 7.62x39mm sawed off rifle, which he described as being a rifle with a sawed off stock which was equipped with a bayonet, as Police Exhibit Number 720-004. Corporal LaRocque also marked the black case and all of the ammunition contained within it as Police Exhibit Number 720-005. [ 12 ] Constable Curtis Warnar works with the RPS Forensic Identification Unit.

He received an exhibit request from members of the RPS in regards to Police Exhibit 720 -004, the Siminov, model SKS rifle and three (3) calibre 7.62x39mm cartridges (Siminov SKS rifle ammunition) which he took from the black case (Police Exhibit 720-005) and marked as Police Exhibit 812-008.

Although Constable Warnar testified in-chief that he believed Exhibit 720-004 was labelled as an M1 army rifle on the property request, I find that he was mistaken and that Exhibit 720-004 is in fact the Siminov, model SKS rifle. [ 13 ] Constable Warnar first checked Exhibit 720-004 (Siminov, model SKS rifle) and Exhibit 812-008 (three live Exemplar rounds) for finger-prints and swabbed them for potential DNA evidence. He did not find Karl Lerat’s finger prints on either the rifle or ammunition. [ 14 ] Constable Warnar did some additional testing.

Constable Warnar was able to chamber an Exemplar live round taken from Exhibit 812-008 and a spent cartridge casing from an unrelated file into the chamber of the Siminov, model SKS rifle. [ 15 ] Constable Warnar submitted a lab request to the RCMP laboratory in Ottawa for biology testing on the swabs he had taken and a firearms and ballistic testing on the rifle and ammunition.

He received reports back from the lab regarding the submissions. [ 16 ] The swabs results came back indicating that there was DNA present but it was not suitable for DNA comparisons. [ 17 ] A Certificate of Analysis came back to Constable Warnar which was completed by Brian Milne, an analyst with the RCMP laboratory in Ottawa and tendered as Exhibit P-2 in these proceedings. Brian Milne received Exhibit 720-004 the Siminov SKS rifle and Exhibit 812-008 three caliber 7.62 x 39 Russian cartridges on September 29, 2019. Brian Milne examined and tested the rifle and cartridges.

He certified that the Siminov SKS rifle was a firearm within the definition of

section 2 of the Criminal Code , in that it is a barrelled weapon from which any shot, bullet or other projectile can be discharged and that it is capable of causing serious bodily injury or death to a person. Brian Milne also certified that the cartridges are of a design suitable for use in the said rifle, Exhibit 720-004 (Siminov SKS rifle) and that they were discharged in said rifle and are ammunition within the meaning of section 84(1) of the Criminal Code in that they are cartridges containing a projectile designed to be discharged from a firearm.

[18] None of the other seized rifles, pistol or ammunition was submitted for analysis at the RCMP laboratory or elsewhere. Issues [19] There are several issues raised in this trial. They are as follows: 1) Did Karl Lerat possess any of the rifles, pistol and ammunition found by police in the storage locker? 2) If yes to question one, has the Crown proved any of the rifles and pellet pistol found by the police in the storage locker is a firearm ora weapon within the meaning of

section 2 of the Criminal Code? 3) If yes to question one, has the Crown proved the ammunition found by the police in the storage locker is ammunition within themeaning of

section 2 of the Criminal Code? 4) Did Karl Lerat carelessly store any of the rifles, pellet pistol and ammunition found by police in the storage locker? 5) Did Karl Lerat possess a weapon for a purpose dangerous to the public peace? Analysis [20] For many of the counts set out in the Information, the Crown must prove possession. The Criminal Code provides for threeforms of possession at section 4(3): personal possession, constructive, and joint possession. Section 4(3) of the Criminal Code providesas follows: Possession … (

a) person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [21] In R v Latimer, 2014 ABQB 325 [Latimer] police conducted surveillance on the accused who was observed to have accessed astorage locker from which she took two duffle bags. The police subsequently obtained a warrant to perform a surreptitious entry into thestorage locker and located several firearms and ammunition. I am of the view that Latimer provides a very helpful

summary of the lawrespecting possession as follows: [18] Since none of the items in question were found on the Accused's person, the Crown must establish the Accused was in constructivepossession under s 4(3)(b)(ii) [sic]. This requires the Crown to prove the Accused had knowledge of and a measure of control over theitem in the place it was found. The knowledge must extend beyond mere quiescent knowledge. Control means the Accused exercisedcontrol or had a right to exercise control over the item. See R v Pham (2005), (ON CA), 77 OR (3d) 401 (CA) atparas 15; R v Caldwell, 1972 ALTASCAD 33 , [1972] 5 WWR 150 (Alta.

C.A.) at para 21. [19] Knowledge for the purposes of finding constructive possession can be established in law by proof of wilful blindness, which I willdiscuss shortly. See R v Nguyen, 2009 ABQB 234, aff'd 2010 ABCA 145. [20] I note that for joint possession under s 4(3)(b), the requirements are similar. There must be knowledge, consent, and a measure ofcontrol on the part of the person deemed to be in possession. See R v Pham at para. 16; see R v Terrence, (SCC), [1983]1 SCR 357. [21] The Crown must establish each of the constituent elements of an offence beyond a reasonable doubt.

As is often the case withalleged constructive possession, the evidence here is largely circumstantial. To convict on circumstantial evidence, the court must besatisfied beyond a reasonable doubt that guilt is the only reasonable inference to be drawn from all the proven facts. In other words, theproven facts must be such that the constituent elements of possession are the only reasonable inferences to be drawn. See R v To (1992), (BC CA), 16 BCAC 223, citing R v Cooper (1977), (SCC), 34 CCC (2d) 18 (SCC) per Ritchie J at 33.

[22] More recently the Supreme Court of Canada in R v Villaroman, 2016 SCC 33 at para 20, [2016] 1 SCR 1000 [Villaroman] set outthe test to be applied when the Crown seeks to prove an element of the offence through circumstantial evidence. In such cases, the trierof fact must be satisfied beyond a reasonable doubt that the defendant's guilt is the only reasonable inference to be drawn from theevidence as a whole.

The Alberta Court of Appeal in R v Bjornson, 2018 ABCA 282, 365 CCC (3d) 175, offered a helpful application ofthe principles set out in Villaroman as follows: [22] When deciding whether the only reasonable inference is that the accused is guilty, the trial judge has an obligation to considerwhether there are "other reasonable possibilities" that are inconsistent with guilt: Villaroman at paras 36-37. This duty is not limited toconsidering only reasonable inferences that arise from proven facts.

"Requiring proven facts to support explanations other than guiltwrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed byconsidering all of the evidence": Villaroman at para 35. A gap in the evidence, or an absence of evidence, may support a reasonableinference other than guilt, if the inference is supported by logic, common sense and human experience: Villaroman at para 37.

Thus, atrial judge is required to consider whether any reasonable inferences other than guilt arise from the application of common sense andhuman experience to the evidence and the absence of evidence. (See also R v Dipnarine, 2014 ABCA 328 at para 24, 584 A.R. 138.) [23] Wilful blindness can substitute for actual knowledge whenever knowledge is a component of the mens rea.

The Supreme Courtof Canada in R v Briscoe, 2010 SCC 13 at para 21, [2010] 1 SCR 411, stated: [21] The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she seesthe need for further inquiries, but deliberately chooses not to make those inquiries. See R. v. Sansregret, (SCC), [1985] 1S.C.R. 570 ((S.C.C.)), and R. v. Jorgensen, (SCC), [1995] 4 S.C.R. 55 ((S.C.C.)).

As Sopinka J. succinctly put it inJorgensen (at para. 103), "[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyesbecause he knew or strongly suspected that looking would fix him with knowledge?" Did Karl Lerat possess any of the rifles, pellet pistol and ammunition found by police in the storage locker? [24] I shall first consider whether Mr. Lerat possessed the two rifles and pellet pistol which police found in the storage locker within ablack hockey bag. I will then consider whether Mr.

Lerat possessed the black case containing ammunition which police found on theright side of the storage locker. Finally, I will consider whether Mr. Lerat possessed the Mossberg sawed off rifle which police found inthe back corner, right side of the storage locker. M1 carbine .30 calibre sawed off rifle, Crosman SSP250 modified pellet pistol and Simonov SKS 7.62x39mm sawed off riflefound within the black hockey bag. [25] Mr. Lerat drove his truck on the evening of April 11, 2019. He went to Walmart on the east side of Regina at 9:15 p.m. AfterMr.

Lerat and his female companion left Walmart he was observed to drive his truck to the Access Storage compound. Mr. Leratobtained entry to the gate to the Access Storage compound at 10:44 p.m. His actions thereafter were deliberate and brief. Mr. Leratdrove his vehicle to a spot near locker 224, got out of his truck and unlocked a padlock on the locker. Mr. Lerat was observed to openthe rear passenger door of his truck from which he removed a black hockey bag and put it inside locker 224. He then closed and lockedthe storage locker, got back into his truck and left Access Storage at 10:48 p.m. Mr.

Lerat was in and out of Access Storage in fourminutes. [26] The PIN code of Michelle Lerat to the Access Storage facility was not used between 11:00 p.m. on April 11, 2019 and 7:00 p.m.on April 12, 2019. The black hockey bag remained where it had been placed in locker 224 by Mr. Lerat until the next day at 7:00 p.m.when police searched locker 224. The hockey bag had a small lock on it. Police opened it and found a M1 carbine.30 calibre sawed offrifle, a Crosman SSP250 modified pellet pistol and a Simonov SKS 7.62x39mm sawed off rifle with bayonet and clip. Mr.

Lerat’sfingerprints were not found on these items. [27] There is no evidence before the Court that Mr. Lerat placed anything else in locker 224 or touched and/or handled anything elsewithin locker 224, including the black case containing ammunition found on the right side at the front of the storage locker or theMossberg sawed off rifle found in the back corner, right side of the storage locker.

[ 28 ] In this case Mr. Lerat was one of four people who were permitted to access locker 224 which had been rented by his sister, Michelle Lerat on March 1, 2019. I am satisfied that Mr. Lerat had control over the black hockey bag prior to placing it in locker 224. I am satisfied beyond a reasonable doubt that the black hockey bag found by the police in locker 224 twenty hours later on April 12, 2019 at 7:00 p.m. is the same hockey bag that Mr. Lerat removed from his truck and placed in the locker on April 11, 2019 shortly after 10:44 p.m.

I am also satisfied that no one else accessed locker 224 during the next twenty hours. I am of the view that based on the whole of the evidence before me that it is a reasonable inference that Mr. Lerat knew what was in the black hockey bag or he was wilfully blind as to the contents of the hockey bag. [ 29 ] In this case there is no evidence to suggest that Mr. Lerat placed the hockey bag in the storage locker at the request of someone else, being unaware of its contents. Nor is there any evidence that anyone else gained entry to Access Storage using Michelle Lerat’s PIN number after Mr.

Lerat departed Access Storage. [ 30 ] To summarize, based on the totality of the evidence in this case including that provided by police, the video evidence with respect to Access Storage and the testimony of Pamela Dvernichuk, an employee of Access Storage, I find the Crown has established a strong link between the accused, Mr. Lerat, the hockey bag and the storage locker 224. I find the only reasonable inference is that Mr.

Lerat was in constructive possession of the hockey bag and its contents, being the M1 carbine.30 calibre sawed off rifle, Crosman SSP250 modified pellet pistol and Simonov SKS 7.62x39mm sawed off rifle on or about April 12, 2019. The black case containing ammunition and the Mossberg sawed off rifle [ 31 ] On April 12, 2019 the police found a black case on the front right side of the storage locker. When the police opened the black case they could see that it contained ammunition. The ammunition itself was not in plain view.

The police also found the Mossberg sawed off rifle in the back corner, right side of the storage locker. Unlike the hockey bag there is no evidence that Mr. Lerat touched, handled or even looked at the black case or the Mossberg rifle in the short time he was in the locker on April 11, 2019. There is no evidence before the Court as to how long the black case or Mossberg rifle had been in locker 224 or who placed it there. Others, including Michelle Lerat, Rachel Lerat and Tyson Lerat were also permitted to have access to locker number 224 and could have placed the black case and the Mossberg rifle there.

While the black case was located a short distance away from the hockey bag and it appears at least three rounds of ammunition could be fired by the Simonov SKS rifle, I am of the view that I cannot conclude that the only reasonable inference is that Mr. Lerat was in constructive possession of the ammunition. I hold the same view respecting the Mossberg rifle which was further away from the hockey bag. While I have my suspicions that Mr. Lerat may have some links to the ammunition and the Mossberg rife found in locker number 224, that is not enough.

Had the police undertaken surveillance of locker 224 for a period of time following April 11, 2019 it is possible that such surveillance would have shed more light on who possessed the black case containing ammunition and the Mossberg sawed off rifle. Has the Crown proved the M1 carbine .30 calibre sawed off rifle, Crosman SSP250 modified pellet pistol and Simonov SKS 7.62x39mm sawed off rifle are firearms within the meaning of

section 2 of the Criminal Code ? [ 32 ]

Section 2 of the Criminal Code sets out the

definitions of firearm and weapon as follows: “firearm” means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm; “weapon” means any thing used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thing used, designed to be used or intended for use in binding or tying up a person against their will;

[ 33 ]

Section 84.(1) of the Criminal Code sets out the definition of 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; [ 34 ]

Section 117.13 (1) of the Criminal Code permits the evidence of an analyst to be presented by way of a certificate.

Section 117.13 reads as follows

(1) A certificate purporting to be signed by an analyst stating that the analyst has analyzed any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or any part or component of such a thing, and stating the results of the analysis is evidence in the proceedings in relation to any of those things under this Act or under

section 19 of the Export and Import Permits Act in relation to subsection 15(2) of that Act without proof the signature or official character of the person appearing to have signed the certificate.

(2) The party against whom a certificate of an analyst is produce may, with leave of the court, require the attendance of the analyst for the purpose of cross -examination .

(3) No certificate of an analyst may be admitted into evidence unless the party intending to produce it has, before the trial, given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the certificate. [ 35 ] Constable Warnar of the RPS sent the Siminov SKS rifle (Police exhibit 720-004) and three 7.62x39mm Russian cartridges obtained from the black case (Police Exhibit 812-008), to the RCMP laboratory in Ottawa for firearms and ballistic testing.

A Certificate of Analysis (Exhibit P-2) came back to Constable Warnar which was completed by Brian Milne, an analyst with the RCMP laboratory in Ottawa. Brian Milne examined and tested the rifle and cartridges. He certified that the Siminov SKS rifle was a firearm within the definition of

section 2 of the Criminal Code , in that it is a barrelled weapon from which any shot, bullet or other projectile can be discharged and that it is capable of causing serious bodily injury or death to a person.

Brian Milne also certified that the cartridges are of a design suitable for use in the said rifle, Exhibit 720-004 (Siminov SKS rifle) and that they were discharged in said rifle and are ammunition within the meaning of section 84(1) of the Criminal Code in that they are cartridges containing a projectile designed to be discharged from a firearm. [ 36 ] None of the other seized rifles, pistol or ammunition was submitted for analysis at the RCMP laboratory or elsewhere. [ 37 ] I am of the view that the Crown has proved beyond a reasonable doubt that the Siminov SKS rifle which Karl Lerat constructively possessed on or about April 12, 2019 is a firearm and a weapon as those terms are defined by

section 2 of the Criminal Code . Exhibit P-2 consisting of the Certificate of Analysis of Analyst Brian Milne dated September 20, 2019, the Certification of Appointment of Brian Milne as a Firearms Analyst dated May 13, 2015 and the curriculum vitae of Brian Milne support this conclusion. In this case the Crown made use of s ection 117.13 (1) of the Criminal Code which permits the evidence of an analyst, Brian Milne to be presented by way of a certificate. Mr.

Lerat consented to Exhibit P-2 being made an exhibit in this proceeding and did not seek leave of the Court, requiring the attendance of the analyst, Brian Milne for the purpose of cross-examination. Brian Milne’s evidence is uncontested. [ 38 ] The police did not send the M1 carbine .30 calibre sawed off rifle or the Crosman SSP250 modified pellet pistol for firearms testing.

Hence, the Crown cannot and does not rely on s ection 117.13 (1) of the Criminal Code to prove the M1 carbine .30 calibre rifle or the Crosman SSP250 modified pellet pistol are firearms. [ 39 ] The Crown submits that the circumstances of this case allow the Court to draw the inference that the M1 rifle and the Crosman modified pellet pistol are also firearms within the meaning of the Criminal Code .

The Crown relies on several cases in support of its position. [ 40 ] In R v Robbie , 1989 ABCA 182 , 96 AR 302 the accused beat his estranged wife, attacked her with a knife, and kidnapped her, holding her captive at knife and gun point for several hours before her escape. During her captivity, the wife had her wrists tied and a noose around her neck. The accused loaded his rifle with ammunition in front of his wife and their children present in the house and spoke of his own funeral arrangements and never seeing his children again. The accused was convicted of aggravated assault, and kidnapping.

He was acquitted on a charge of using a firearm while committing an indictable offence as the trial judge found there was a lack of positive evidence at the time of the offence or by test afterwards to prove the rifle was capable of being fired. The Alberta Court of Appeal determined that proof of firing during the commission of the offence or a test firing afterwards is not the only way to prove that a device is a firearm as then defined by

section 84 of the Criminal Code . The Alberta Court of Appeal held that whether a device is capable of being fired can be proved by direct evidence or by the inferences to be drawn on all of the evidence. The Court of Appeal

found that the accused used the rifle as an instrument of intimidation. He owned it, and relied on it, continuing to use it for many hours. He loaded it and spoke of his own funeral arrangements. The Court of Appeal concluded the inference was open that the accused knewit was capable of being fired, and on the whole of the facts there was an unmistakable inference that the rifle met the definition in section84.

As the Crown’s prima facie case remained unanswered, the accused was convicted on the firearm charge. [41] In R v Neil, 2019 BCSC 1153 [Neil] the accused broke into the home of a complainant who owed him money. He demandedmoney from the complainant and threatened to kill the complainant. He was also accused of robbing the complainant of three handgunsand three long guns, gun parts and ammunition. The accused was also charged with being in possession of firearms. The only evidencewhich the Crown adduced to establish the stolen guns were firearms was the testimony of the complainant.

The complainant testified herecently purchased the guns and that he fired one of the long guns and none of the hand guns, although he believed they were capable ofbeing fired. In Neil the Court considered the decision in R v Gordon, 2017 ONCA 436, 348 CCC (3d) 426 which involved a gun beingused in the course of a robbery. The victim in that case thought the gun was real and the robbers acted as if it was real, pointing it at thevictim and threatening to shoot.

The Ontario Court of Appeal found there was ample evidence from which a trial judge could infer that agun used in a robbery was a real gun capable of firing bullets. In Neil the Court found the evidence stronger, as the complainant was acollector of guns and very knowledgeable about them. The complainant purchased the guns shortly before they were stolen and paid asignificant amount of money for them. He examined the guns and he believed they were operational. He found their firing pins intact.

The Court stated as follows at paragraph 108: “Surely if the court can draw the inference from the conduct of the robber, then the courtcan rely on the testimony of the gun owner.” The Court concluded that the three handguns and the three rifles were firearms as definedby the Criminal Code. [42] In R v Thomson, 2020 SKPC 39 [Thomson] police were dispatched to investigate a report of an individual firing a rifle once inthe air which occurred outside the accused’s residence. There was an added concern that children were around when this occurred. Theshooter went back into the house.

One of the police officers knew that the accused and his family were hunters and the accused had alicence to possess and acquire firearms. After police arrived they called for the shooter and others to come out of the residence. Theaccused came out of the house and initially confronted the police. The accused told the police there were children in the house and theshooter had left. The accused was detained and placed in the back of a police vehicle. The police then approached the home and weremet by three young children. The children told the police the shooter had left and there were firearms in the house.

The police searchedthe house for the shooter and firearms. A total of 31 firearms were seized from the residence. The shooter was not found in the house. The shooter was found later returning to the house and was arrested. One of the firearms was tested by the RCMP National ForensicLaboratory Service and found to meet the Criminal Code definition of firearm. The shooter testified at trial to having shot a firearm inthe backyard on the date in question to scare away stray dogs. He also identified several of the firearms which were seized as guns heused for hunting.

In Thomson, Judge Beaton stated as follows at paragraphs 19 and 20: [19] The Crown can prove that an object is a firearm by evidence that the firearm could be or was discharged or through reasonableinferences drawn from the evidence. For example, courts have drawn these inferences when an accused brandished an object that lookedlike a firearm and used it in a threatening manner that made complainants believe that it was operational: R v Charbonneau, (Ont. C.A.), R v Gordon, 2017 ONCA 436, 348 C.C.C. (3d) 426 (Ont.

C.A.). [20] In the case before me, there is evidence that one gun had been fired on the date in question and the RCMP tested the firearmlocated in Aiden Thomson’s bedroom. There is also evidence that one gun had recently been scoped for use. Several others were storedwith ammunition and were easily accessible for use. Others had been used for hunting in the past. These circumstances allow me todraw the inference that they were working firearms.

I find that the firearms identified by the police as Exhibit 5, 6, 8,12, 32, 34, and 36met the Criminal Code definition of a firearm. [43] Based on my review of the case law I am of the view that the Crown has several ways it can prove that an object is a firearm. One way is for the Crown to provide direct evidence of an individual handling what appears to be a firearm and firing or discharging aprojectile from it. A second way is to have the object tested at a forensic firearm testing facility by a Firearms Analyst and submit aCertificate as per

section 117.13 (1) of the Criminal Code. A third way is for the Crown to adduce evidence and invite the court toconclude through reasonable inferences drawn from the evidence as a whole that an individual had possession of a barreled object fromwhich a projectile could be fired or discharged. [44] In this case the Crown invites the court to draw an inference that the M1 rifle and Crosman modified pellet pistol are firearmsbased upon on the following evidence: (1) the fact that the M1 rifle and the Crosman modified pellet pistol were found stored in thesame locked hockey bag as the Siminov SKS rifle which it has proven is a firearm,

(2) Constable Ethier and Corporal LaRocque are bothexperienced officers were involved in the search of the storage unit. They both testified there were firearms and a zip gun found in thehockey bag. (3) a black case containing 325 rounds of ammunition was located near the hockey bag in the storage locker. (4) policefound the Mossberg rifle in the back of the same storage unit and (5) the photographs of the M1 rifle and the Crosman pellet pistol(Exhibit P-5 page 6 and pages 7 and 8 respectively). [45] I am of the view that the following evidence supports drawing an inference that the M1 rifle and the Crosman modified pellet

pistol are firearms: (1) the fact that these objects were located in the same locked hockey bag as the Siminov SKS rifle which the Crown has proved is a firearm (2) two experienced police officers thought these two objects were firearms.

However, I note that it may have been helpful for the two experienced police officers to testify about their experience and familiarity with firearms, whether they actually examined either of these objects, and if they did so, whether or not they found a firing pin intact on each and any other basis for concluding they were operational. [ 46 ] I am not convinced that the following evidence supports drawing an inference that the M1 rifle and the Crosman modified pellet pistol are firearms.

First of all, while the black case found nearby the hockey bag contains 325 rounds of ammunition, I have previously determined that despite its proximity to the hockey bag, Mr. Lerat did not constructively possess the black case. In addition, there is no evidence that any of the 325 rounds of ammunition actually could be fitted into or used in either the M1 rifle or the Crosman modified pellet pistol. Secondly, while the police found the Mossberg rifle in the same storage unit, I have previously determined Mr. Lerat did not constructively possess the Mossberg rifle.

Lastly, I am at a loss how anyone could infer the M1 rifle and the Crosman pellet pistol were operable based on the photographs set out in in Exhibit P-5 pages 5, 6, 7, and 8 respectively. [ 47 ] While I have strong suspicions that the M1 rifle and the Crosman modified pellet pistol are firearms, based on the whole of the evidence before me I am not convinced beyond a reasonable doubt. Has the Crown proved the Mossberg sawed off rifle is a firearm within the meaning of

section 2 of the Criminal Code ? [ 48 ] Unlike the M1 carbine rifle and Crosman modified pellet pistol which were found in the hockey bag with the Siminov SKS firearm, the Mossberg sawed off rifle was found tucked in the back of the storage locker. The Mossberg rifle was not found in close proximity to the black case which contained ammunition. For similar reasons to those that I have set out in paragraphs 44 and 45 I am not convinced the evidence supports drawing an inference that the Mossberg rifle is a firearm. While I have strong suspicions that the Mossberg sawed off rifle is a firearm, based on the whole of the evidence before me I am not convinced beyond a reasonable doubt.

Summary regarding firearm and weapon determination [ 49 ] I have determined that the Crown has proved beyond a reasonable doubt that the Simonov SKS 7.62x39mm sawed off rifle is a firearm within the meaning of

section 2 of the Criminal Code . I also find that the Crown has proved beyond a reasonable doubt the Simonov SKS 7.62x39mm sawed off rifle is a weapon within the meaning of

section 2 of the Criminal Code . Conclusion on bulk of Counts [ 50 ] Based on my determinations as set out above I find the accused guilty of the following Counts:

(12) Possess a firearm to wit: Siminov SKS 7.62x39mm semi-automatic sawed off rifle, knowing he was not the holder of a licence under which he may possess it, contrary to section 92(1) of the Criminal Code .

(25) Possess a firearm to wit: Siminov SKS 7.62x39mm semi-automatic sawed off rifle, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code . Count 4 Carless storage of firearm – Siminov sawed off rifle [ 51 ] Count 4 states that Karl Lerat did without lawful excuse, store a firearm, to wit: Siminov SKS 7.62x39mm semi-automatic sawed off rifle in a careless manner, contrary to section 86(1) of the Criminal Code .

[52] In R v Payne, (NL Prov Ct) Judge Gorman undertook a comprehensive review of the case law respectingthe criminal offence of use of a firearm. Judge Gorman came to the following conclusion at paragraphs 58 and 59: [58] In

summary, in order to obtain a conviction pursuant to section 86(1) of the Criminal Code the Crown must prove that the accused: 1. carried, handled, shipped, transported or stored a firearm, a prohibited weapon, a restricted weapon, a prohibited device or anyammunition or prohibited ammunition (the actus reus), 2. in a careless manner or without reasonable precautions for the safety of other persons. A modified objective test applies.

Thisrequires proof of conduct that constitutes a marked departure from the standard of care of a reasonably prudent person in thecircumstances (the mens rea). [emphasis added] [59] However, if a reasonable person in the position of the accused would not have been aware of the risk or would not have been ableto avoid creating the danger, an acquittal must ensue. Finally, it is also open to the accused to establish that she or he acted pursuant to alawful excuse (see section 794(2) of the Criminal Code). [53] I adopt this statement of the law. [54] In this case I find that the Crown has proved Mr.

Lerat stored a firearm (the Siminov SKS semi-automatic sawed off rifle) in astorage locker. While the firearm was located inside a locked hockey bag which had been placed in a locked storage locker which wassituated within a gated storage compound, the evidence before me reveals the firearm was operable, ammunition which could be used inthe firearm was located nearby in an unlocked black case and would have been readily accessible to Mr. Lerat and other individualsincluding his sister, Michelle Lerat who rented the locker and permitted Rachel Lerat and Tyson Lerat to access to the locker.

I am ofthe view that the Crown has proved that storage of this sawed off semi-automatic firearm constitutes a marked departure from thestandard of care of a reasonably prudent person under these circumstances. I find the firearm was stored in a careless manner. I also findthat a reasonable person in the position of Mr. Lerat would have been aware of the risk posed by storing the firearm in this manner. Lastly, I have determined that Mr. Lerat has not established that he acted pursuant to a lawful excuse. [55] I find Mr. Lerat is guilty of Count 4.

Count 8 Possession of a weapon for a purpose dangerous to the public peace [56] Count 8 states that Karl Lerat was in a possession of a weapon, the Siminov sawed off rifle for a purpose dangerous to the publicpeace, contrary to

section 88 of the Criminal Code. I have previously fond that Karl Lerat was in possession of a firearm/weapon, theSiminov sawed off rifle. The only remaining question is whether Mr.

Lerat’s possession of this weapon was for a purpose dangerous tothe public peace. [57] In R v Maurice, 2019 SKQB 112 Justice McMillan-Brown had occasion to summarize the law respecting an offence pursuant tosection 88 of the Criminal Code as follows: [25] In R v Kerr, 2004 SCC 44 (S.C.C.) at para 23, [2004] 2 SCR 371 (S.C.C.) [Kerr], the Supreme Court adopted the two-part test thatmust be satisfied in order to convict an accused alleged to have carried or possessed a weapon for a purpose dangerous to the publicpeace contrary to s. 88. The court stated: [23] In R. v.

Cassidy, (SCC), [1989] 2 S.C.R. 345, at p. 351, this Court set out the two elements which the Crown mustprove in order to establish guilt on a charge of possession of a weapon for a purpose dangerous to the public peace:

Section 85 requires proof of possession and proof that the purpose of that possession was one dangerous to the public peace. There mustat some point in time be a meeting of these two elements. Generally, the purpose will have been formed prior to the taking of possessionand will continue as possession is taken.

[26] In terms of the required mens rea for the offence, the Supreme Court in Kerr at para 25 made it clear that a determination of"purpose" has both objective and subjective elements that must be considered against the backdrop of all of the circumstances of thecase. It is a hybrid objective/subjective test. [25] There is some confusion in the jurisprudence about the proper test to be applied in the determination of purpose. In my view, thecorrect approach — a hybrid subjective-objective test — was adopted by the Ontario Court of Appeal in Nelson, [(1972), (ON CA), 8 CCC (2d) 29 (Ont CA)].

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 tothe public peace; this is an objective determination. [27] Thus, in order to convict, the Crown must prove beyond a reasonable doubt that an accused possessed a weapon and that thepurpose in possessing the weapon was one that is dangerous to the public peace. [28] Breaking the second element — that of purpose — down even further, the court must decide: 1. what was the accused's subjective purpose in possessing the weapon; and 2. in all the circumstances, was that purpose objectively dangerous to the public peace? [58] I adopt this statement of the law. [59] In this case I do not know what Mr.

Lerat’s subjective purpose was in possessing the weapon. He did not testify. I must look tothe surrounding circumstances to determine whether Mr. Lerat’s purpose was objectively dangerous to the public peace. In my view,Mr. Lerat possessed no ordinary firearm/weapon. The Siminov rifle was equipped with a bayonet. It fires high calibre ammunition,7.62x39mm. It is also concerning that this rifle is semi-automatic and the stock of the rifle is sawed off to reduce its length. Thisenables the weapon to be more easily handled in one hand rather than two.

It also enables the weapon to be more easily concealed andmoved about. It fit nicely within the hockey bag. For a period of time on April 11, 2019 this weapon was within Mr. Lerat’s truck as itdrove around the city of Regina. At 10:44 p.m. Mr. Lerat entered Access Storage and very quickly deposited the hockey bag and theSiminov sawed off rifle within it in storage locker 224 and it was very close to ammunition which could be fired from the rifle. Underthese circumstances I consider Mr. Lerat’s possession of the weapon to be for a purpose dangerous to the public peace. I find Mr. Leratis guilty of Count 8.

Conclusion [60] For the reasons given, I find Mr. Lerat guilty of the following Counts:

(4) Without lawful excuse store a firearm, to wit: Siminov SKS 7.62x39mm semi-automatic sawed off rifle in a careless manner,contrary to section 86(1) of the Criminal Code.

(8) Have in his possession a weapon to wit: Siminov SKS 7.62x39mm semi-automatic sawed off rifle for a purpose dangerous to thepublic peace, contrary to

section 88 of the Criminal Code.

(12) Possess a firearm to wit: Siminov SKS 7.62x39mm semi-automatic sawed off rifle, knowing he was not the holder of a licenceunder which he may possess it, contrary to section 92(1) of the Criminal Code.

(25) Possess a firearm to wit: Siminov SKS 7.62x39mm semi-automatic sawed off rifle, while he was prohibited from doing so byreason of an order made pursuant to

section 109 of the Criminal Code, contrary to

section 117.01(1) of the Criminal Code.

_____________________________ M. Hinds, J