Her Majesty the Queen - v. -, 2016 SKPC 71

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 071 Date: June 7, 2016 Information: 45442402 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Cody Brabant Appearing: C. Bliss For the Crown P. Tondevold For the Accused JUDGMENT M.M.

BANIAK , J [ 1 ] The accused, Michael Brabant, stands charged as follows: 1) on or about the 13 th day of November, A.D. 2015, at or near Saskatoon, Saskatchewan, did without lawful excuse store a prohibited weapon, to wit: a sawed-off Winchester shotgun, in a careless manner, contrary to s. 86(1) of the Criminal Code ; 2) on or about the 13 th day of November, A.D. 2015, at or near Saskatoon, Saskatchewan, did have in his possession a weapon, to wit: a sawed-off Winchester shotgun, for a purpose dangers to the public peace, contrary to s. 88 of the Criminal Code ;

3) on or about the 13 th day of November, A.D. 2015, at or near Saskatoon, Saskatchewan, did possess a firearm, to wit: a sawed-off Winchester shotgun, knowing that he was not the holder of a licence under which he may possess it, contrary to s. 92(1) of the Criminal Code ; 4) on or about the 13 th day of November, A.D. 2015, at or near Saskatoon, Saskatchewan, did possess a loaded prohibited firearm together with readily accessible ammunition capable of being discharged in the said firearm and was not the holder of an authorization or licence under which he may possess the said firearm in that place, contrary to s. 95 (

a) of the Criminal Code ; 5) on or about the 13 th day of November, A.D. 2015, at or near Saskatoon, Saskatchewan, did have in his possession a prohibited weapon, to wit: a sawed-off Winchester shotgun knowing that it was obtained by the commission in Canada of an offence, contrary to s. 96(1) of the Criminal Code ; 6) on or about the 13 th day of November, A.D. 2015, at or near Saskatoon, Saskatchewan, was without lawful excuse, in possession of a firearm, to wit: a sawed-off Winchester shotgun knowing that the serial number on it had been defaced, contrary to s. 108(1) (

b) of the Criminal Code ; 7) on or about the 13 th day of November, A.D. 2015, at or near Saskatoon, Saskatchewan, did possess a prohibited weapon, to wit: a sawed-off Winchester shotgun, while he was prohibited from doing so by reason of an order made pursuant to s. 109 of the Criminal Code , contrary to s. 117.01(1) of the Criminal Code ; and 8) on or about the 13 th day of November, A.D. 2015, at or near Saskatoon, Saskatchewan did possess ammunition, to wit: 22 caliber and 30-06 rifle rounds and 410 and 12 gauge shotgun shells, while he was prohibited from doing so by reason of an order made pursuant to s. 109 of the Criminal Code , contrary to s. 117.01(1) of the Criminal Code . [ 2 ] The trial was held on May 3, 2016.

Crown called six witnesses. Defence presented no evidence. Evidence [ 3 ] The Crown’s first witness was Constable Blake Atkinson, a ten year member of the Saskatoon Police Service. He testified that he received a dispatch at 1:29 p.m. on November 13, 2015, about a male with a shotgun in a suite with a child or children in it. He attended at 1914C, 20 th Street West, Saskatoon. He stated that his time of arrival was 1:38 p.m. [ 4 ] Police entered the suite and found a three year old child in the living room.

A cursory check of all the rooms in the suite revealed no other persons present. [ 5 ] Shortly after, the tenant of the suite arrived and gave consent to the police to search the suite. A search resulted in a sawed- off 12 gauge shotgun (Exhibit P-4) and various ammunition being found in one bedroom. Three 12 gauge shotgun shells and one .410 shotgun shell (Exhibit P-3) were found on a ledge in the bedroom.

A back pack (Exhibit P-5) confirmed various ammunition (.22 calibre shells, 30-06 rifle shells and more 12 gauge shotgun shells). [ 6 ] Constable Atkinson described the shotgun as being a pump action Remington 12 gauge and some of the rifle shells as .270 calibre rifle rounds. A closer examination of the exhibits revealed, in fact, that it was a 12 gauge pump action Winchester shotgun and the rifle shells were 30-06 calibre. Nothing hinges on this discrepancy.

[ 7 ] In cross-examination, Constable Atkinson testified that the shotgun was tested to determine that it was in fact an operable firearm. It was not tested for fingerprints. [ 8 ] Sergeant Kenneth Kane, the Crown’s second witness, testified that he went in to check on the welfare of the children. Ammunition and a 12 gauge shotgun were found in one of the rooms. When these items were shown to the tenants they appeared shocked and surprised. [ 9 ] Constable Tyson Holeha also entered the suite. He testified that he immediately found the .410 and 12 gauge shotgun rounds.

They were located on the top shelf of the closet “in plain view”. [ 10 ] He also found the sawed off 12 gauge shotgun. Two shells were in the tube magazine - and one in the chamber. A simple pull on the pump would propel a round from the magazine to the chamber. [ 11 ] Further search resulted in the discovery of what he described as a “black saddle bag” (Exhibit P-5), and which I would characterize as a back pack, which contained numerous .22 bullets;, 30-06 bullets and 12 gauge shotgun shells. [ 12 ] The Crown’s next witness was Diana Boisvert.

She had been the accused’s girlfriend for about four years prior to the incident date. Upon discovering that he had been unfaithful to her, she went to the suite to confront the accused and retrieve some items that she had purchased as gifts for him. The meeting did not go well. Mr. Brabant refused to let her in and advised her that if she persisted in attempting to get entry into the suite he would “beat her up”. [ 13 ] Angry and hurt, she called the police advising them that there were guns and kids in the house. “I was mad so I called the police.” [ 14 ] Later, during cross-examination, she stated: “I was mad.

Told police anything and everything. I wanted him put away.” [ 15 ] Ms. Boisvert testified that she did not know the tenants of the suite very well, but that she was in the suite before, perhaps on three occasions, to spend the night with Mr. Brabant. She indicated that Mr. Brabant was the sort of person who never stayed in one place very long. [ 16 ] During the time that she did spend in the suite, she testified that she saw the sawed off shotgun and a few shells.

She was able to describe the gun and the ammunition in some detail with respect to size and colour. [ 17 ] She testified that she never discussed the gun with the accused and never saw him handle it. She also sated that she never saw anyone else in that room except for a certain Justin White, who was in the suite on a couple of occasions - once she saw him sleeping on a couch. She also saw Justin handling the gun. She believed that Justin was a member of the street gang “Indian Posse”. Apparently, according to her, Mr.

Brabant was a past member of that gang. [ 18 ] Christopher Pratt and Janine Manitoken were the tenants of Suite C. Both testified. Their testimony differed in parts: Mr. Pratt did not think that the accused paid any rent and that he stayed in the suite for about a month “on or off”. Ms. Manitoken testified that Mr. Brabant, who is her cousin, stayed at the suite, had his own room and contributed towards rent. She said that she did not go into Mr. Brabant’s room or intrude on his privacy. [ 19 ] Neither of the occupants of the suite saw any firearm or ammunition. Ms.

Manitoken denied that her residence was a common meeting place where people came and went.

[ 20 ] On the day in question, they left their four year old son with Mr. Brabant while they went to run an errand. Mr. Pratt testified that they went to the store to get a few things; while Ms. Manitoken stated that they went to Mr. Pratt’s mother’s place to get a few things. Both were of the view that they were gone for abut ten minutes. I believe the time frame was probably somewhat longer. [ 21 ] At any rate, when they returned the police were at the residence and their son was in a police car. Mr.

Brabant was not around. [ 22 ] I will first deal with the counts that I find as unsupportable of a finding of guilt based on the evidence before me. [ 23 ] Count #5 of the Information alleges that the accused possessed a prohibited weapon, a sawed-off shotgun, knowing that it was obtained by the commission in Canada of an offence contrary to s. 96(1) of the Criminal Code . [ 24 ] There was no evidence to suggest that the accused was the de jure or even de facto owner of the sawed-off 12 gauge Winchester shotgun. There was no conclusive evidence that the accused even knew who owned the shotgun.

It would be improper and contrary to the evidence to conclude that he knew that it was obtained, by whomever, by a commission of an offence. [ 25 ] Knowledge cannot be imputed, beyond a reasonable doubt, on the mere chance or probability that he knew. More is required. Accordingly, I find Mr. Brabant not guilty on Count #5. [ 26 ] Count #6 alleges that Mr. Brabant had in his possession a firearm knowing that the serial number on it had been defaced. [ 27 ] I examined the shotgun (Exhibit P-4): the barrel, or what was left of it, did not have a serial number on it.

The serial number that was defaced, and which was referred to in the testimony of Constable Atkinson, was directly above the pump and not readily discernible. [ 28 ] The only way for a person to notice, and, therefore, to know that the serial number was defaced on Exhibit P-4 would be to examine the shotgun closely; or to file the number off; or to be told that the serial number was defaced. There is no evidence to support any of these assertions. [ 29 ] Having regard for the above, I find Mr.

Brabant not guilty of Count #6. [ 30 ] The rest of the counts stand or fall on the basis of the Crown being able to prove beyond a reasonable doubt the accused being in possession of the firearm and the ammunition. Position of the Parties [ 31 ] The Crown posits as follows: - that the accused knowingly had possession of the firearm and ammunition; - that the firearm was prohibited; - that the firearm was stored carelessly;

- that the firearm was dangerous (especially since it contained two rounds in the magazine); and - that the accused was prohibited from possessing ammunition and firearms. [ 32 ] Moreover, the Crown submits that the accused, who paid rent for the room he was staying in, had control over it and could not have missed the presence of the shotgun and the ammunition, both of which were in plain view to anyone who occupied the room. [ 33 ] Defence submits that the Crown must establish, beyond a reasonable doubt, that the accused had knowledge and control with respect to the shotgun and ammunition. [ 34 ] Defence paints the suite where the accused’s room was located as being a more or less a come and go residence where people, even some with an unsavoury character, would frequent regularly. [ 35 ] The accused was an individual who never stayed very long in any one place; and, there was no evidence that he ever handled the shotgun.

Analysis [ 36 ] At the outset I find the following: 1) that the shotgun was a firearm and a prohibited weapon; 2) that the shells and bullets found on the premises were ammunition; 3) that the firearm was stored carelessly; and 4) that the firearm was dangerous. [ 37 ] Section 4(3) of the Criminal Code reads as follows: For the purposes of this Act; (

a) 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 on benefit of himself or of another person; and (

b) where one of two or more person, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [ 38 ]

Section 588 of the Code addresses ownership of property as follows: s. 588 The real and person property of which a person has, by law, the management, control or custody shall, for the purposes of an indictment or proceedings against any other person for an offence committed on or in respect of the property, be deemed to be the

property of the person who has management, control or custody of it. [ 39 ] The first part of s. 4(3) states that to be in possession of an item a person must have actual possession of the item and is in a position to exercise some control over that item. [ 40 ] Ownership of the item, or the place where the item is stored, are not necessary to establish possession as long as the accused knows what the item is and has a measure of control over it. [ 41 ] Secondly, the item does not have to be for the benefit of the accused exclusively - it may very well benefit another person. [ 42 ] Accordingly, it is not necessary for the Crown in this case to establish that the shotgun and the ammunition was owned outright by Mr.

Brabant. Similarly, the Crown need not establish that Mr. Brabant needed necessarily to benefit from having these items. [ 43 ] The Supreme Court examined the issue of constructive possession in R v Morelli [1] and concluded that constructive possession is complete where the accused (

i) has knowledge of the character of the object or item; (ii) he knowingly shares or keeps the item in a particular place, whether or not that place belongs to him; and (iii) intends to have the object in the particular place for his use or benefit or for the use or benefit of another person. [ 44 ] Applying these principles to the evidence which I accept, I find that Mr. Brabant knew that the shotgun and ammunition were in his room and that he understood the character of these items or objects. [ 45 ] The evidence from the police officers, and from Ms. Boisvert, is that these items were in plain view. Ms.

Boisvert testified that she even saw another person handling the shotgun. She was able to describe the shotgun and the shotgun shells quite accurately even though she was not a frequent visitor to the suite. [ 46 ] The police officers were also able to spot the shotgun and the ammunition upon entering the accused’s bedroom. [ 47 ] Therefore, the requirement of knowledge is satisfied. [ 48 ] The requisite element of control is satisfied by the fact that the shotgun and ammunition was in the accused’s room. He had access to it. He could handle it. He could use it.

Conversely, the other occupants of the suite, namely Mr. Pratt and Ms. Manitoken, testified that they did not go into the bedroom occupied by Mr. Brabant and that they had no idea that the shotgun and ammunition were stored there. [ 49 ] Sergeant Kenneth Kane testified that when the items were shown to Ms. Manitoken and Mr. Pratt “they looked shocked and surprised.”

[ 50 ] Having regard to all of the evidence, I find that accused guilty of counts 1, 2, 3, 4, 7 and 8. ___________________ M.M. Baniak, J [1] 2010 SCC 8 , [2010] 1 SCR 253