Her Majesty the Queen - v. -, 2012 SKPC 66

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 066 Date: April 23, 2012 Information: 33831344 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Manley James Pratt In the Matter of an Application by Allan Pratt Pursuant to s. 491(2) of the Criminal Code of Canada For Return of Firearms to the Rightful Owner. Appearing: M. Longworth For the Crown M. Simonot, Q.C. For the Applicant, Allan Pratt JUDGMENT S. C. CARTER , J I. INTRODUCTION

[ 1 ] On November 3, 2011, Manley James Pratt pleaded guilty to storing firearms and ammunition in a careless manner contrary to s. 86(1) of the Criminal Code . He also pleaded guilty to possessing firearms knowing that he was not the holder of a licence for that purpose, contrary to s. 92(1) of the Criminal Code . Fines and surcharges were levied against him. The offender’s brother, Allan Pratt, has applied under s. 491(2) of the Criminal Code for the return of the firearms to him as the rightful owner. II.

THE EVIDENCE [ 2 ] The applicant, Allan Pratt, testified that the firearms in question belonged to his father who was a hunter. His father wanted the firearms to go to his sons upon his death. The applicant testified that he was the executor of his father’s estate and that he recalled that the will mentioned the passing of firearms to he and his brother. The applicant was unable to locate a copy of the will for the purposes of the application. He said that from his point of view he and his brother, Manley, had “joint custody” of the firearms.

It was understood between them that upon the death of one the firearms would go to the surviving brother. Upon the death of his father the applicant took possession of one shotgun. His brother took possession of the rest. [ 3 ] From the time of his father’s death in 1985 to the date that the firearms were seized in June of 2011, the applicant never saw the firearms in his brother’s possession. He made no inquiry about them or their storage.

Although he holds the appropriate licence to purchase and possess firearms he never inquired as to whether his brother was also properly licenced. [ 4 ] Manley Pratt testified that he was going through a marriage break-up in the spring of 2011. He had moved from the home that he and his wife had shared to another home. He testified that although the firearms had been properly stored in his previous home, in the process of moving he had not properly stored them in his new home.

He agreed that at the time of the seizure of the firearms the police were acting upon a warrant to arrest a parole violator who was staying at his home. The police found one firearm in a soft case leaning in the corner of his bedroom. Another was in a hard case in a closet in a second bedroom. The last firearm was in two pieces contained in a dresser drawer. He testified that he was once the holder of what was then called a Firearms Acquisition Certificate but that he had not renewed his licence when the new laws came into effect in the mid 1990s. III. THE LEGISLATION [ 5 ]

Section 491 reads as follows: 491.

(1) Subject to subsection (2), where it is determined by a Court that (

a) a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence and that thing has been seized and detained, or (

b) that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and any such thing has been seized and detained, the thing so seized and detained is forfeited to Her Majesty and shall be disposed of as the Attorney General directs.

(2) If the Court by which a determination referred to in subsection (1) is made is satisfied that the lawful owner of any thing that is or may be forfeited to Her Majesty under subsection (1) was not a party to the offence and had no reasonable grounds to believe that the thing would or might be used in the commission of an offence, the Court shall order that the thing be returned to that lawful owner, that the proceeds of any sale of the thing be paid to that lawful owner or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.

(3) Where any thing in respect of which this

section applies is sold, the proceeds of the sale shall be paid to the Attorney General or,where an order is made under subsection (2), to the person who was, immediately prior to the sale, the lawful owner of the thing. IV. ANALYSIS [6] The first issue to be determined is whether the applicant is indeed the lawful owner of the firearms. He described he and hisbrother as having “joint custody” by which I assume he meant “joint ownership” of these firearms. However, this is not what hisevidence revealed. From his testimony the Court learned that his father wanted the firearms to “go to the boys”.

Both of the brotherstook the firearms that they wanted to have. It was understood that if one of them died then the firearms in the deceased brother’spossession would “go to” the survivor. The evidence reveals that neither brother had any control over the firearms in the other person’spossession. At best, all that can be said is that the applicant would one day be the lawful owner of the firearms upon the death of hisbrother.

I therefore find that Allan Pratt was not the legal owner of the firearms in question at the time of their seizure in June 2011. [7] In the event that I am wrong in my analysis of the question of ownership, the applicant would, in my view, not be successfulin having the firearms returned to him. That is because it cannot be said that he had “no reasonable grounds” to believe that the firearmswould or might be used in the commission of an offence such as improper storage or possession without the appropriate licence. He hadnot seen the firearms for 26 years.

He made absolutely no efforts to ensure that they were properly stored. He didn’t even ask hisbrother if he had the required licence to possess firearms. Ignoring these matters is not something that a reasonable, lawful owner offirearms would do. Particularly one who himself knows the law, and has a firearms licence. Turning a blind eye to the situation does not amount to lacking reasonable grounds to believe that your brother was committing firearms possession and storage offences.[1] V. DECISION [8] Allan Pratt’s application pursuant to s. 491(2) of the Criminal Code is dismissed.

The firearms, ammunition and otherexhibits connected with them are hereby forfeited to Her Majesty the Queen in right of the Province of Saskatchewan to be disposed ofas the Attorney General directs. [9] Dated at the City of Prince Albert, in the Province of Saskatchewan this 23rd day of April, A.D. 2012. _____________________________________ S. C. Carter, J [1] See: R. v. Brian Robinson, (NL PC).