R v McGirr, 2022 MBPC 55

CITATION : R v McGirr , 2022 MBPC 55 THE PROVINCIAL COURT OF MANITOBA WINNIPEG BETWEEN His Majesty the King ) S. Smith, for the Crown ) ) - and - ) ) ) Curtis McGirr ) ) E. Pollock, for the Accused ) Accused ) Reasons for Decision ) Delivered: December 5, 2022 C.A. DEVINE, P.J. Introduction [ 1 ] Mr.

McGirr was arrested on December 22, 2021 on several charges: possession of property obtained by crime, the property being a catalytic converter; two charges of possession of a weapon dangerous to the public peace, one of the weapons charges relating to two orange flare guns, and one of the weapons being a starter pistol containing a spent brass casing of .22 calibre ammunition; two violations of firearm prohibitions relating to the ammunition found in Mr.

McGirr’s pocket and in the truck he was driving; violation of a recognizance from Alberta for being in the driver’s seat of a vehicle without a valid driver’s licence and registration; and possession of break-in instruments, those being two reciprocating saws. [ 2 ] Mr. McGirr admits to the recognizance breach, since he was driving an unregistered vehicle and did not have a valid driver’s licence on the evening he was arrested. [ 3 ] The Crown called two police officers as witnesses and Mr. McGirr testified on his own behalf. [ 4 ] It was conceded that the police officers’ testimony was uncontested.

Facts [ 5 ] On December 22, 2021 at about 6:00 p.m. the police stopped a white Chevrolet truck, which Mr. McGirr was driving, because it did not have a front plate and the rear plate belonged to a different vehicle. Mr. McGirr was the only person in the truck. Police activated their emergency lights and siren. Mr. McGirr did not stop immediately, but rather, drove some distance from Provencher Boulevard to La Vieille Gare restaurant along Rue des Meurons before turning into the restaurant parking lot.

As one of the officers testified, “Most people stop right away.” [ 6 ] Constable Gladish went to the passenger side of the truck and saw a reciprocating saw, referred to by him as a Sawzall, on the seat, pointing down to the floor. He testified that it is a reciprocating saw often used in the theft of catalytic converters, valuable for the precious metals in them, specifically titanium and platinum. [ 7 ] The truck had a bench seat and no back seat. [ 8 ] Constable Gladish alerted his partner Constable Leveille about the Sawzall and Constable Gladish asked Mr. McGirr to get out of the vehicle.

Constable Leveille also saw the Sawzall as well as a catalytic converter on the seat and some clothing in the truck. [ 9 ] Constable Gladish watched his partner Constable Leveille do a pat-down search for officer safety and locate two shotgun shells in the pocket of Mr. McGirr’s parka. Constable Leveille testified that he found one live shell in Mr. McGirr’s pocket. [ 10 ] Constable Gladish immediately arrested the accused for a firearms or ammunition offence and placed him in the police cruiser car. Computer checks revealed that Mr.

McGirr was the subject of two weapon and ammunition prohibitions, one for his lifetime and one for 10 years, as well as the above-mentioned recognizance. Mr. McGirr did not have a valid driver’s licence, the wrong plate was on the truck, and the plate had lapsed.

[11] At trial, the Crown filed as an exhibit a letter from Manitoba Public Insurance (MPI) advising that the plate belonged to avehicle owned by a person named Troy Pengelly and that it had been renewed April 3, 2021 and expired May 3, 2021. Mr. McGirr wasnot the registered owner of the vehicle on December 22, 2021. [12] After these checks, Constable Gladish arrested Mr. McGirr for the additional breach offences. [13] He was taken to the East District Station. The vehicle was also towed there. [14] Constable Leveille searched the vehicle and found the second reciprocating saw, a Dewalt, with a blade inserted.

The first onelocated, a Milwaukee brand reciprocating saw, did not have a blade attached, but there was a bundle of blades that fit into it nearby. TheDewalt also had three batteries beside it. The officer also located two flare guns and the starter pistol with a spent .22 calibre casing in it,which, the officer testified, is proof that it had been fired. Constable Leveille also seized the catalytic converter.

There was significantammunition found in the cab of the truck, including several loose .22 calibre rounds of ammunition in the driver’s side-door pocket,plainly visible, six 12-gauge shotgun rounds, a 30-30 round, and a ripper clip with five 562 rifle rounds. There were over 50 loose .22rounds and four boxes of .22 rounds of ammunition. Constable Leveille testified that the vehicle was messy, but he had seen messier. [15] Mr. McGirr testified that he was born in Thompson, Manitoba, has three children (although he hesitated for some time beforeanswering the question) and has been in a relationship for three years.

He testified he has been working in Saskatchewan for MissingLink Carpentry, when they call him. [16] He testified that the truck was registered to his step-mother in Thompson and he bought it from her for $3,000. He did notregister it and he did not have a driver’s licence. He admitted to being bound by the recognizance condition not to be in the driver’s seatof a vehicle, and he could not provide an explanation for driving. He testified that he used the truck mostly for storage. Later he testifiedthat he was hardly ever in the vehicle and he did not know what was in it.

He also testified that he only drove it 15 times over thepreceding three months. He also testified that he did not drive it that much, because he had another vehicle, a Ford F-250 diesel truck. [17] Mr. McGirr testified that he was in the area at the time because he had just been repairing his Ford truck on Springfield Road. The day before the four studs sheared off and one of the tires fell off. He testified that he fixed the tire and was on the way to his homein St. Norbert when the police stopped him. [18] He testified that he was not aware of the two shotgun shells in his jacket pocket.

He testified that the jacket was not his. Hetestified that it was in the box of the truck when he bought the truck and that day he just grabbed it and put it on because it was windyoutside. He testified that he had worn it before. He just returned it to the box of the truck. [19] He also testified that he was not aware of any ammunition in the truck. [20] He testified that the cab of the truck was in “disarray.” When asked to expand on that he testified, “Clothes?

Maybe an extrasweater, random garbage, maybe on the seat.” On cross-examination he testified that maybe there was a spare tire in the truck as well,random clothes and some stereo components. When he was asked whose clothes, he paused and then answered, “I would have to saymine. Most likely.” He testified that in the three months he owned the truck he did not look in it once to see what was there. [21] He testified that he had seen the flare guns and the starter pistol, which he testified were “standard things that would be in mysister’s truck”. He explained that his sister feeds sled dogs outside of Thompson.

The starter pistol would be used when she is mushingthe dogs. The flare guns would be for the cabin. He testified that it was his sister’s truck but his mother registered it. He drove it fromThompson with his partner. He testified on cross-examination that the flare guns and the starter pistol were behind the seat in the cab ofthe truck and he had seen them. [22] He testified that he had the reciprocating saws because he had just removed the catalytic converter from his car.

He testifiedthat he had just bought the catalytic converter found by the police from Troy Pengelly, the owner of the Honda vehicle to which thelicence plate belonged. He testified that the catalytic converter was brand new. He did not suspect that it was stolen. He testified thatthe licence plate came from Troy Pengelly’s car. Then he testified he had the car because he bought it in 2020 or 2021, but he could notremember when. When he was asked how much he paid, he answered, “Four? Maybe four grand?” [23] He testified that the saws were in his truck because he was using them to repair the tire.

He was using them to cut off the benttire studs. He testified that he also does a lot of woodworking and hobby things around the house. [24] On cross-examination, Mr. McGirr testified that the reciprocating saws were already in the truck when he went the next day torepair the tire. He brought an “impact” to break loose the lug nuts. [25] Mr. McGirr testified to having an extensive criminal record with many convictions for dishonesty. He has four theftconvictions, 11 convictions for possessing property obtained by crime and one conviction for break and enter theft.

Issues [26] The issues in this case are whether the Crown can prove beyond a reasonable doubt that Mr. McGirr had knowledge of theseveral items in the truck that were seized, whether the catalytic converter was stolen, whether the two reciprocating saws were in hispossession for the criminal purpose of removing catalytic converters from vehicles, and whether the starter pistol and the flare guns wereweapons. Analysis of the Evidence and Findings of Fact [27] Because Mr.

McGirr testified, I have analyzed and weighed the credibility and reliability of the evidence I heard as instructedin R v DW, (SCC), [1991] 1 SCR 742 and R v Menow, 2013 MBCA 72, in order to determine if the Crown has proventhe offences beyond a reasonable doubt.

[ 28 ] Mr. McGirr was a hesitant witness who was unable to answer many questions, including questions that were critical to his defence; it seemed like even he was unsure of many of his answers. His testimony was riddled with inconsistencies, which sometimes caught him up. Overall his evidence was incredible and implausible and more consistent with his history of being dishonest. [ 29 ] For example, he testified that he had the reciprocating saws because he had just removed the catalytic converter from his car. Then he testified that he does a lot of woodworking.

He testified that he had the reciprocating saws in the truck that day to remove the studs from the wheel so he could put the tire back on. But he also testified that those items were already in the truck when he went there that day and the only item he took with him was an “impact”. [ 30 ] Initially he could not testify as to which of the saws he used, and where he put them and if he removed the blades from the Milwaukee saw after using it, if that is the saw he used.

When he was shown the police photo showing all items seized by the police, he stated, “Oh yeah, I remember those saws.” He then testified he used the “red one”, the “Milwaukee.” The Milwaukee saw did not have a blade in it. Mr. McGirr could not account for that. Nor could he remember where he put the saw. [ 31 ] He testified variously about how he used the truck. He testified initially that that he used it mainly for storage, but could not say with any confidence what he stored in the vehicle.

He inconsistently testified that the jacket in the back of the truck was not his, but also testified that he had worn it more than once. He testified that he hardly ever drove the truck, but testified he drove it about 15 times, which, if it is true that he owned it for three months, as he testified, would be about 5 times a month, or more than once a week. He testified that the contents of the truck were in disarray as a partial explanation for why he was not aware of the ammunition. And yet he testified to knowing exactly where the starter pistol and flare guns were. They were behind a seat.

Much of the ammunition was in plain view, dozens of individual rounds and several boxes of rounds. [ 32 ] The Crown asked that I draw an adverse inference from the fact that Mr. McGirr did not call his sister or his mother to testify about the starter pistol and flare guns in the truck, and Troy Pengelly about the sale or gift of the brand new catalytic converter. There was no explanation given for Mr. McGirr not producing this evidence and it was clearly relevant to the issues of whether the guns were weapons and the catalytic converter was obtained by crime.

I believe the conditions were met for the exceptional and cautionary employment of drawing adverse inferences ( See R v McLean , 2022 MBCA 60 at paras 29-55 ), but it is not necessary for me to draw the inferences in this case. [ 33 ] I do not believe that Mr. McGirr did not know that there was ammunition in his pocket, several rounds of .22 ammunition in the side pocket of the driver’s side door and ammunition strewn throughout the vehicle. His evidence about the contents of the truck was inconsistent, hesitant and not credible.

On the one hand, he testified that the vehicle was in disarray and he did not know what was in it. On the other hand, he testified that he used the vehicle mainly for storage.

And he also testified that he only drove it about 15 times. [ 34 ] It is not plausible that he would keep a heavy jacket in the box of the truck in the dead of winter in Manitoba where it could blow away, be snowed on and be of little value to keep him warm. [ 35 ] He testified reluctantly or hesitantly about many of the items in the cab of the truck, including his clothes, the reciprocating saws and stereo components, and claimed not to know what and where anything was.

Except for some inexplicable reason he testified to knowing precisely where the starter pistol and flare guns were, which he claims belonged to someone else for a non-criminal purpose. [ 36 ] I find that Mr. McGirr had knowledge of the ammunition in the pocket of the jacket he was wearing, and some, if not all, of the ammunition in the cab of the truck. He had had the vehicle for three months. He used it at least once a week, either to drive, or, as he testified at one point, for storage. [ 37 ] I find that Mr. McGirr had the reciprocating saws in the truck for the purpose of cutting off catalytic converters.

Although he had a story about needing them to repair the tire on the truck, the saws were already there, he could not state which reciprocating saw he used until he was shown the exhibit photo, he could not say where he left the saw after use and he had no explanation for why the saw did not have a blade in it. Moreover, there were two reciprocating saws, one with a blade in it and one which had a bundle of blades for it.

I also find that the catalytic converter was stolen, given the existence of the saws and the implausible story that the converter was an “extra” given or sold to him by the owner of the Honda Accord. There was no explanation for why he would need an extra catalytic converter. He was not sure when he purchased the vehicle, he could only say it was in 2020 or 2021, nor did he know how much he paid for it. The registered owner of the vehicle, Troy Pengelly, did not testify.

He was the last owner on record from MPI and the insurance had expired May 3, 2021. [ 38 ] The leading case with respect to circumstantial evidence is R v Villaroman , 2016 SCC 33 . Ultimately, I must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt ( see Villaroman at para 35 ).

None of the other inferences for the existence of the reciprocating saws and the catalytic converter are reasonable in the overall circumstances and in light of the adverse credibility finding I have made against Mr. McGirr. I cannot trust his evidence. [ 39 ] I find that the starter pistol was possessed for a purpose dangerous to the public peace, that is, as a weapon. This is because it had a spent .22 caliber round in the chamber.

There were starter pistol caps there, but it also had a .22 in it and it had been fired. [ 40 ] I am not convinced beyond a reasonable doubt however, that the flare guns were in his possession to be used as weapons. He expected they were used for the cabin. I accept that. He and his family are northerners and, as one of the officers testified, flare guns are safety devices that he too carries when he is on the water in the summer. Conclusion [ 41 ] I am satisfied that the Crown has proven all the offences beyond a reasonable doubt except for the s. 88 Criminal Code charge relating to the flare guns.

I am not satisfied beyond a reasonable doubt that the flare guns were in the truck for use as weapons.

[ 42 ] Mr. McGirr is convicted of possession of a weapon for a dangerous purpose relating to the starter pistol; violations of both firearm prohibitions for the ammunition he was in possession of; possession of break-in tools, those being the reciprocating saws; possession of property obtained by crime, being the catalytic converter; and, violation of the Alberta recognizance. He is acquitted of one count of possession of a weapon, the charge relating to the flare guns. C.A. DEVINE, P.J.