r v. Andr, 2013 QCCQ 6723

R. c. Lainis 2013 QCCQ 6723 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-062884-116 DATE: 2 April 2013 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v.

Andréas LAINIS Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] On 11 October 2011 a reliable source informed police that Mr. Lainis was in possession of firearms and intended to sell them. Late that afternoon he was placed under visual surveillance and, except for a period of two or three hours during that evening, he was under constant surveillance by police. An investigator, L.A., observed Mr. Lainis transfer a large black briefcase from one car to the trunk of another car.

She saw in, on or around that case something green. She also observed that Mr. Lainis laboured to carry this case due to its great weight. Shortly after 00h00 on 12 October 2011 the same investigator again established visual surveillance of Mr. Lainis as he drove the car into which he had earlier transported the case. She followed him to a gasoline station. Mr. Lainis was arrested there and in the trunk of the car that he had been driving police found a large black briefcase with a piece of green cloth. Inside the case were fifteen firearms, of which eight give rise to the five charges that Mr.

Lainis now faces. [ 2 ] These charges in the respective counts are: 1. Unlawful transportation of firearms ( Criminal Code , R.S.C. 1985, c. C-46, s. 86(2)); 2. Possession of eight firearms knowing their possession is unauthorised (Code, s. 92(1)); 3. Possession of eight prohibited or restricted weapons (Code, s. 91(1)); 4. Occupation of an automobile wherein there is a firearm (Code, s. 94(1)); and 6. Possession of eight firearms with intent to transfer (Code, s. 100(2)). [1] The weapons in question were properly identified and by affidavit the prosecution proved that Mr.

Lainis has no permit for them. [ 3 ] The evidence leaves no doubt that Mr. Lainis had possession of the black case and its contents. He was observed placing the case in the trunk of the car that he was driving to the moment of his arrest. It matches the description provided by the surveillance officer and this, in turn, is matched by the identification of the case at the time of its seizure. Moreover, these facts confirm the accuracy of the tip provided to police by the informant. Thus the uncontradicted evidence proves beyond reasonable doubt the actus reus of the second, third and fifth charges.

Further, the uncontradicted evidence proves beyond reasonable doubt the actus reus of the first and the fourth counts. As for the first, Mr. Lainis has no permit to possess and thus could not comply with the regulations governing lawful transport under

section 117 (

h) of the Firearms Act . [2] I repeat that the surveillance of Mr. Lainis establishes the element of transportation beyond reasonable doubt. As for the fourth count, Mr. Lainis drove the car in which the weapons were seized and at the same time he knew that the case and its contents were in the trunk of that car because he placed them there. The evidence proves beyond reasonable doubt that Mr. Lainis had knowledge and control of the presence of the black case. The actus reus of possession is thus proved on all counts.

I should add that on the first count the prosecution has proved beyond reasonable doubt the absence of a permit and thus transportation in compliance with the regulations is not a viable defence. I should also note with respect to the first and the fifth counts that in section 84(3) Parliament has defined “transfer” to mean “sell, provide, barter, give, lend, rent, send, transport, ship, distribute or deliver.” The uncontradicted evidence that Mr. Lainis placed the firearms in the car he drove proves beyond reasonable doubt that he transferred them within the meaning of this definition and did so with intent.

[4] This brings us to the element of fault in relation to the five counts. On an assessment of the whole of the evidence the onlyreasonable inference with respect to the second, third and fifth counts is that Mr. Lainis knew that the black case contained firearms. That is, he had knowledge and control not only of the things present in the trunk but knowledge of the nature of the contents in the blackcase in the trunk of the car he was driving. This is an element of fault required in all counts and it has been proved beyond reasonabledoubt.

As for the first count, assuming that it also requires a marked departure from the standard of reasonable care,[3] the prosecutionhas proved beyond reasonable doubt that Mr. Lainis had no permit for the firearms and thus the prosecution has proved, beyondreasonable doubt, the absence of any diligence on his part with regard to compliance with the relevant regulations. FOR THESE REASONS Mr. Lainis is found guilty as charged on Counts 1, 2, 3, 4 and 6. ____________________________________ PATRICK HEALY, J.C.Q.

Me Alexandre Arel For the prosecution Me Andreas Lainis For himself Date of hearing: 22 March 2013 [3] See, e.g., Gunning 2005 SCC 27 , [2005] 1 S.C.R. 627; Copp (2009) 2009 NBCA 16 , 243 C.C.C. (3d) 447(N.B.C.A.).