R. v. Payne, 2019 NLSC 60

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Payne , 2019 NLSC 60 Date : March 14, 2019 Docket : 201804G0174 george payne v. her majesty the queen Before: Justice Brian F. Furey On Appeal From: Two Decisions of the Provincial Court of Newfoundland and Labrador, File # 1317A00337 and File # 1317A00376, dated the 7th day of May, 2018 dealing with convictions and dated the 31st day of July, 2018 dealing with sentencing. Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: December 10, 2018 Date of Oral Judgment: January 24, 2019

Summary: The Appellant appealed against his conviction contrary to section 86(1) of the Criminal Code and the sentences imposed by the Provincial Court Judge on the conviction under section 86(1) as well as convictions under section 91(3) and section 445(1) (

a) of the Criminal Code .

Held: The Court dismissed the appeal. Appearances: Adam J. Sparkes, Q.C. Appearing on behalf of Her Majesty The Queen T. James Bennett Appearing on behalf of George Payne Authorities Cited: CASES CONSIDERED: R. v. Payne, 2018 NLPC 1317A00376; R. v. H. (J.J.M.), 2009 NLCA 27; R. v. Murphy, 2010 NSPC 4; R. v. S.(R.D.) (1997), (SCC), 118 C.C.C. (3d) 353, 151 D.L.R. (4th) 193 (S.C.C.); and R. v. Lacasse, 2015 SCC 64. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46.

REASONS FOR JUDGMENT Furey, J.: INTRODUCTION [1] In this matter, the Appellant appealed his conviction under section 86(1) of the Criminal Code, R.S.C. 1985, c. C-46 on May7, 2018, by the Provincial Court Judge in the Provincial Court of Newfoundland and Labrador sitting at Corner Brook. That decision isset out in R. v. Payne, 2018 NLPC 1317A00376, dated May 7, 2018. He has also appealed the sentences imposed on July 31, 2018 bythe Provincial Court Judge for the convictions under section 86(1), section 91(3), and section 445(1)(

a) of the Criminal Code. Thatdecision is set out in R. v. Payne, 2018 NLPC 1317A00376, dated July 31, 2018. background [2] On May 11, 2017, the Appellant shot and killed a dog in a residential area in Parson’s Pond, Newfoundland and Labrador. Asa result of the shooting of the dog, the Appellant was charged with the offences of careless use of a firearm under section 86(1),possession of a firearm without being the holder of a licence under section 91(3), and injuring a dog contrary to section 445(1)(

a) of theCriminal Code. The Appellant pleaded not guilty to these charges. A trial was conducted on May 2, 2018. [3] A number of witnesses testified on behalf of the Crown. The Appellant also testified at the trial. He conceded that he shot thedog and that he did not have a licence to possess the firearm that he used.

He also submitted that his use of the firearm was not carelessand that he did not believe that he required a licence to possess the firearm. [4] The Provincial Court Judge framed the sole issue he must decide as being whether the Crown had proven beyond areasonable doubt that the Appellant committed any of the offences for which he was charged. [5] On May 7, 2018, the Provincial Court Judge gave his decision orally. He also provided a lengthy written decision that isreferenced in paragraph 1 above.

The Provincial Court Judge concluded the Crown had proven beyond a reasonable doubt that theAppellant committed all of the offences with which he was charged. He reached this conclusion because the evidence presented at thetrial satisfied him beyond a reasonable doubt that the Appellant shot and injured the dog without legal justification or excuse and withouta colour of right; that he did not have a licence to possess the firearm that he used to shoot the dog, despite being aware that such alicence was necessary; and that his use of the firearm was careless. [6] Sentencing was adjourned to June 27, 2018.

On that date, the sentence hearing was set over to July 23, 2018. Crown counselsubmitted her submissions on that date. The matter was then adjourned to July 31, 2018 to allow the Crown to present evidence toestablish the loss that it was claiming was suffered by the owners of the dog. [7] On July 31, 2018, the veterinarian who treated the dog testified. She presented and explained the statement of account that

was given to the owners of the dog following the shooting on May 11, 2017. [ 8 ] After the veterinarian’s evidence, counsel for the Appellant provided his submissions on sentencing. The Provincial Court Judge stated that he wanted to consider what counsel had said prior to imposing sentence. [ 9 ] The hearing resumed later that morning. The Provincial Court Judge stated that he had an opportunity to consider the matter over the number of days since the trial. He outlined the sentence orally and also filed written reasons in a decision set out in R. v.

Payne , 2018 NLPC 1317 A00376, dated July 31, 2018. [ 10 ] The Provincial Court Judge concluded the case was not an appropriate one for a discharge. Rather, it was an appropriate case for a period of imprisonment.

The following sentences for the individual offences were imposed: a. for the offence of careless use of a firearm, a period of six months’ imprisonment; b. for the offence of possession of a firearm without being the holder of a licence, a period of one month of imprisonment; and c. for the offence of injuring and killing the dog, a period of three months of imprisonment. [ 11 ] He stated an overall sentence of six months’ imprisonment was an appropriate sentence. He also said that it was an appropriate case to allow the Appellant to serve the period of six months in the community under conditions.

A Probation Order of 19 months, upon completion of the period of imprisonment, was also imposed. The Probation Order contained a condition that the Appellant pay restitution in the amount of $1,887.88 to the owners of the dog. A victim surcharge of $100 for each offence was imposed. A weapon or ammunition prohibition for a period of five years pursuant to

section 110 of the Criminal Code was also issued. grounds of appeal [ 12 ] In his Factum at page 7, the Appellant set out the following grounds of appeal: 18. Did the factual errors made by the trial judge cause him to err in his decision that the appellant was guilty of careless use of a firearm? 19. Did the prosecution prove beyond a reasonable doubt that the appellant was guilty of careless use of a firearm? 20. Did the trial judge show bias in failing to properly consider the appellant’s sentencing submissions? 21.

If the trial judge demonstrated bias in the sentencing, must his trial decision now be reconsidered in light of that bias? 22. Did the trial judge impose a fit sentence, considering the Appellant’s advanced age, lack of a prior criminal record, positive presentence report and health issues? 23.

Did the trial judge err in making the restitution order given that the dog owners did not follow any prescribed process? the law [ 13 ] Section 86(1) of the Criminal Code states: 86(1) Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons. [ 14 ] This is a

summary conviction appeal brought pursuant to

section 813 of the Criminal Code . Section 822(1) of the Criminal Code states that where an appeal is taken under 813, sections 683 to 689 of the Code apply with such modifications as the circumstances require. [ 15 ] Section 686(1) of the Criminal Code sets out the powers of an appellate court in hearing an appeal against a conviction. That

section states, in part: 686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that

(

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; (

b) may dismiss the appeal where (

i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby; [ 16 ] Section 687(1) of the Criminal Code sets out the powers of an appellate court in hearing an appeal against sentence.

That

section states in part: 687(1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, (

a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (

b) dismiss the appeal. submissions Factual errors The Appellant [ 17 ] Counsel for the Appellant submits that the Provincial Court Judge made factual errors in his analysis of the events presented at the trial.

These errors related to the following: a. the location of where the Appellant shot the dog; b. the dog coming toward the Appellant and not running toward the Appellant; c. the location of where the nearest children were playing; and d. the Provincial Court Judge’s conclusion that the simple firing of the gun in a residential neighbourhood constituted an obvious danger. [ 18 ] With respect to [17]a., several witnesses testified to where the Appellant shot the dog. The Appellant testified to a different version.

Counsel suggested the Provincial Court Judge ruled the Appellant gave contradictory evidence and he chose to disbelieve the Appellant therefore impugning the Appellant’s credibility. [ 19 ] With respect to [17]b., counsel suggested that the Appellant testified the dog was coming toward him, he had time to take the case off the gun, and fire two shots at the dog. It was an error by the Provincial Court Judge to find that the dog was running toward the Appellant. [ 20 ] With respect to [17]c., the Appellant testified that the nearest children were about 500 metres away (he measured the distance later).

Counsel noted the Provincial Court Judge found that the children were playing in the area and were endangered.

[21] With respect to [17]d., counsel suggested the Provincial Court Judge misunderstood the evidence in reaching the conclusionshe did and he did not give clear reasons to support his conclusions. The Crown [22] Counsel for the Crown submits a careful review of the transcript of the trial shows the statements made by counsel for theAppellant are not accurate. The Appellant’s argument that the Provincial Court Judge made errors in factual matters related primarily inthe context of assessing the Appellant’s credibility. [23] Counsel noted that in R. v.

H. (J.J.M.), 2009 NLCA 27, the Court of Appeal stated the following at paragraph 13: 13 It is useful to recall that, at its core, what the sentencing judge did was make findings of credibility. Regarding the assessment ofcredibility and the sufficiency of reasons, I would note the guidance provided in R. v. Gagnon, 2006 SCC 17 , [2006] 1 S.C.R.621, per Bastarache and Abella JJ.: [10] There is general agreement on the test applicable to a review of a finding of credibility by a trial judge: the appeal court must deferto the conclusions of the trial judge unless a palpable or overriding error can be shown.

It is not enough that there is a difference ofopinion with the trial judge. ... . . . [24] The Crown submitted that in relation to each of the improper findings of fact the Appellant alleges, there was sufficientevidence for the Provincial Court Judge to reach the conclusion he did. [25] With respect to [17]a., the Crown points out that several witnesses gave close to identical descriptions as to where the Appellantshot the dog. This evidence was corroborated by the police officer. The Appellant provided the police with one version of where the dogwas shot.

He then testified that the dog was shot in a different area contrary to the area given by the witnesses who testified on behalf ofthe Crown. Counsel submitted that on the issue of credibility and the factual findings made by the Provincial Court Judge, he was correctto make adverse findings against the Appellant. [26] With respect to [17]b., counsel submitted a proper review of the transcript shows the Appellant testified that the dog wasrunning at him.

Counsel pointed out that on cross-examination, the Appellant was asked “Was the dog running?” and he answered“Yes”. [27] With respect to [17]c., counsel noted the evidence regarding how close the children were to the Appellant when he shot the dogvaried but it was much closer than 500 metres as stated by him. Counsel suggested the Provincial Court Judge rejected the Appellant’sevidence in its entirety. He did not believe the Appellant’s description of the shooting. He accepted the evidence of the two witnesses inthe vicinity who stated the Appellant stood by a shed and shot the dog.

The shed was close to a residence and other residences. Childrenwere playing in the area, a residential street (see paragraphs 89 and 93 of the May 7, 2018 decision). [28] With respect to [17]d., the Crown argues that the Provincial Court Judge did not misunderstand the evidence. He madereasonable rulings based on the evidence. [29] Several witnesses testified the Appellant was about 25 metres from the nearest residence.

It was not only children who wereendangered but other residents. [30] Crown counsel concluded that when the evidence is looked at in its entirety, the Provincial Court Judge gave very thoroughreasons for the evidentiary conclusions that were made. When the entire evidence in the trial is considered, the findings of fact of theProvincial Court Judge are reasonable and should not be interfered with.

Conviction on careless use of a firearm – section 86(1) The Appellant [31] Counsel for the Appellant submitted that the factual errors made by the Provincial Court Judge as referenced above inparagraphs 17 – 21 caused the Judge to err in his conviction of the Appellant on the charge of careless use of a firearm. Counsel notedthe Provincial Court Judge stated the following: a. He did not believe the Appellant’s evidence; b.

He found the Appellant’s evidence nonsensical and blatantly false in relation to the gun registry and the Appellant’s evidence thathe thought the former Prime Minister’s comments meant all firearm licencing requirements had been abolished; c. He found the Appellant’s evidence to have been fashioned in an attempt to excuse his behaviour; and d. The evidence established that the Appellant walked through a residential neighbourhood with a loaded rifle. [32] Counsel asserted that the Crown must prove the careless use of a firearm beyond a reasonable doubt.

He suggested, citing R. v.Murphy, 2010 NSPC 4, shooting a dog in circumstances that poses “no risk of physical injury to any other person” is not careless use of afirearm.

The Crown [33] The Crown submitted that the Provincial Court Judge’s statement of the law, the standard of proof, and the legal test for aconviction for the charge of the careless use of a firearm are contained in his decision of May 7, 2018. [34] The Provincial Court Judge’s reasons are thorough and are supported by case law from appellate courts and the Supreme Courtof Canada.

The Crown submits that the Provincial Court Judge: a. accurately stated the onus of proof and the elements of the offence; b. made reasonable findings of fact; and c. applied these correctly in terms of the onus of the proof and the elements of the offence. [35] The result was the Provincial Court Judge determined a finding of guilt by the Appellant. [36] The Crown concluded that the conviction of the Appellant under section 86(1) of the Criminal Code should be maintained.

Sentencing The Appellant [37] Counsel notes the sentencing hearing took place over the period from June 27, 2018 to July 31, 2018. [38] On the first day, the Appellant was not in attendance. The Provincial Court Judge would not proceed in his absence. On thesecond day (July 23, 2018), Crown counsel presented her sentencing submissions.

The hearing was then postponed to allow Crowncounsel time to present evidence concerning the amount of restitution being claimed. [39] On the third day (July 31, 2018), the veterinarian who had provided services to the dog confirmed the amount of theoutstanding account to be $1,887.88. Counsel for the Appellant then made his sentencing submissions. The Provincial Court Judge statedhe wanted to consider the submissions and adjourned the hearing. Counsel for the Appellant suggested the adjournment was for 45minutes.

He noted when the court returned, the Provincial Court Judge gave his decision and provided the parties with a written decisionof 46 pages. [40] Counsel submits that it defies reason that a 46 page sentencing decision that relied on 60 cases could be properly prepared in 45minutes.

He suggested this leaves the distinct impression that the Provincial Court Judge had made his decision as to sentencing afterhearing submissions from the Crown on July 23, 2018 but before considering the submissions of the Appellant’s counsel which werecompleted less than an hour earlier. [41] Counsel continued that this process of the filing of the written decision raises the possibility of bias on the part of theProvincial Court Judge. He suggested bias denotes a state of mind that is in some way predisposed to a particular result or closed withregard to certain issues. Counsel referred this Court to R. v.

S.(R.D.) (1997), (SCC), 118 C.C.C. (3d) 353, 151 D.L.R.(4th) 193 (S.C.C.), a decision of the Supreme Court of Canada which discussed a reasonable apprehension of bias arising from commentsof the judge in the reasons given. [42] Counsel suggested that if this Court were to find a reasonable apprehension of bias in the sentencing decision, it must alsoconsider the issue of bias in the guilty verdict as it relates to the offence of the careless use of a firearm.

The Crown [43] Counsel pointed out the standard of review this Court (sitting as an appeal court) should follow in reviewing a trial judge’ssentence was outlined in R. v. Lacasse, 2015 SCC 64. Wagner, J. (as he then was) stated at paragraph 11: [11] This Court has on many occasions noted the importance of giving wide latitude to sentencing judges.

Since they have, inter alia, theadvantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to thecircumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in thisregard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.

Ultimately, exceptwhere a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may notvary the sentence unless it is demonstrably unfit. [44] He also stated at paragraph 39: [39] This Court has reiterated on many occasions that appellate courts may not intervene lightly, as trial judges have a broad discretion toimpose the sentence they consider appropriate within the limits established by law: s. 718.3(1) of the Criminal Code; see also R. v.Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46; R. v.

L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14; R. v.L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, at para. 25; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 43-46. [45] Counsel noted the Provincial Court Judge provided a written decision citing multiple authorities. He suggested the Appellant’ssentence falls within the range of sentences given for the offences in question.

Noting that the Provincial Court Judge also considered theAppellant’s age and his antecedents accurately, counsel concluded that the sentence is not demonstrably unfit and does not warrantintervention by this Court. [46] Counsel submitted the fact that the Judge had already commenced writing a decision on sentencing is not evidence of bias. Hesuggested there is no authority that states a judge cannot begin some preliminary work on a decision until submissions are heard. Henoted the fact that the Provincial Court Judge reserved for an additional 45 minutes after hearing the submissions of the Appellant’s

counsel illustrates that he further contemplated the matter in light of the submissions from the Appellant’s counsel. Counsel submitted that the evidence of bias is non-existent and this ground of appeal should be rejected. Restitution The Appellant [ 47 ] Counsel questioned the imposition of the Restitution Order by the Provincial Court Judge. [ 48 ] He noted Form 34.1 in the Criminal Code (following from

section 737.1 ) provides a mechanism for a victim to seek restitution. He suggested a victim must acknowledge that he or she is responsible for providing a court with all necessary documents, including bills and receipts, in support of the claim for restitution. He pointed out that the owners of the dog did not come to court and did not file anything to show a financial loss. He stated that Crown counsel filed a statement of account setting out the amount owing to the veterinarian who treated the dog.

The Provincial Court Judge adjourned the matter on the second day set for sentencing and allowed Crown counsel the opportunity to present evidence to establish the amount. Counsel for the Appellant noted that on July 31, 2018, the owners of the dog were not present and had not made a claim using Form 34.1 to indicate the loss. The veterinarian was present. She identified the amount owing for the treatment of the dog on March 11, 2017. [ 49 ] The Provincial Court Judge then made a Restitution Order when he gave the details of the sentence imposed on the Appellant.

Counsel submitted this Order appears to fly in the face of the regulation. He suggested this issue should be dealt with in a civil court which I understood him to mean through the small claims court. He asked that the Restitution Order be set aside. The Crown [ 50 ] Counsel submitted that Form 34.1 is one manner in which a court can receive evidence of a request for restitution. It is an option that avoids the victim having to testify as to the restitution he or she is seeking. Counsel submitted that

section 737.1 does not restrict restitution claims from being made in other ways and allows a trial judge’s discretion to control the process. [ 51 ] The Provincial Court Judge required more information than what Form 34.1 provided. He required the Crown to prove through viva voce evidence the exact amount of the loss. Therefore, the veterinarian was required to testify and confirm the amount owing for the treatment of the dog. Counsel submitted that the Provincial Court Judge’s ruling was reasonable and consistent with the law.

He ruled the loss was readily ascertainable and subsequently concluded it was incurred. Counsel submitted there was no reason for this Court to deviate from the ruling of the Provincial Court Judge on this issue.

Conclusion The Appellant [ 52 ] The Appellant requested the Court make the following orders: a. that his conviction for careless use of a firearm pursuant to section 86(1) be reversed and an acquittal entered; b. that his conviction for possession of a firearm without a licence pursuant to section 91(3) be set aside and a discharge granted; c. that his conviction for unlawfully injuring and killing an animal pursuant to section 445(1)(

a) be set aside and a discharge granted; d. that the Probation Order be set aside; and e. that the Restitution Order be overturned. The Crown [ 53 ] Crown counsel requested that the appeal on both conviction and sentencing be dismissed in its entirety. analysis [ 54 ] The Appellant is seeking a complete reversal of the decisions of the Provincial Court Judge on his conviction of the offence of a careless use of a firearm and on the sentences imposed.

The Crown is requesting that the appeal on both the conviction and the sentences be dismissed. [ 55 ] With respect to the Appellant’s argument that the Provincial Court Judge made factual errors, I find that he did not. The evidence given by the witnesses called on behalf of the Crown regarding the location where the dog was shot was, in my view, more credible than that of the Appellant. The Appellant did state that the dog was “coming” toward him. On cross-examination, he did confirm that that the dog was running. The Provincial Court Judge did not err in his assessment of this issue.

The dog was shot within a residential area of Parson’s Pond. Several of the witnesses stated the Appellant was only about 25 metres from the closest residence when he fired the gun to shoot the dog and that children were playing in the street at a farther distance. The Appellant testified that the children were 500 metres from him and that the nearest house was 45 to 50 metres away. I find that the Provincial Court Judge did not err in rejecting the Appellant’s evidence on this issue. The children were clearly visible to all the witnesses.

The residences were very near to the area where the Appellant fired the gun. [ 56 ] In his decision of May 7, 2018, the Provincial Court Judge outlined the onus and standard of proof required in the prosecution of a criminal offence. He reviewed the elements of the offence of careless use of a firearm and canvassed case law regarding this offence (see paragraphs 44 – 59 in Payne ). In entering a conviction on the charge under section 86(1) of the Criminal Code , the Provincial Court Judge was satisfied the Crown had proven all elements of the offence. He stated the following at paragraph 101:

101 I am satisfied that the evidence presented establishes that Mr. Payne’s use of the firearm on May 11, 2017, constituted a marked departure from the standard of care of a reasonably prudent person in the circumstances. A reasonably prudent person would not have fired a .22 caliber rifle in a residential area, close to houses and children playing in the street, because of the obvious danger involved. I also conclude that a reasonable person in the position of Mr.

Payne would have been aware of the risk of shooting a rifle in such circumstances because it was obvious. . . . [ 57 ] I find that the Provincial Court Judge did not err in his assessment of and conclusion regarding this conviction. [ 58 ] The Appellant questioned the sentence imposed by the Provincial Court Judge for the convictions on the three offences. He suggested that the Provincial Court Judge had made the decision on sentencing even before considering the submissions of the Appellant’s counsel.

Counsel argued that the immediacy of the Provincial Court Judge’s decision on sentencing brought into question the possibility of bias on the part of the trial judge. [ 59 ] The Crown referred to R. v. Lacasse which pointed out the standard of review this Court (sitting as an appeal court) should follow in reviewing a trial judge’s decision on sentence.

The Crown asserted that the sentence was not demonstrably unfit and there was no evidence of bias on the part of the Provincial Court Judge. [ 60 ] The written decision, dated July 31, 2018, of the Provincial Court Judge on sentencing is very detailed and thorough. It summarizes his conclusion on each offence, his decision, the principles of sentencing, the positions of the parties, the statutory regime, the range of sentence, sentencing precedents on the three offences, his analysis, and the imposition of the sentence.

That sentence included the conditional period of imprisonment, probation, restitution, a victim surcharge, and a weapon/ammunition prohibition. I note that the Provincial Court Judge did review the submissions of the Appellant’s counsel in paragraphs 36 – 43 of his decision. He also reviewed and commented on the Criminal Code ’s discharge provision in paragraphs 44 – 53 of the decision.

That review was obviously in response to the Appellant’s counsel’s request for the imposition of three conditional discharges. [ 61 ] I find no merit in the Appellant’s argument that the Provincial Court Judge had made his decision before considering the submissions of the Appellant’s counsel. There is, in my respectful view, nothing to indicate in the sentencing decision any element of bias by the Provincial Court Judge.

Some judges have an innate ability to present a comprehensive and well-reasoned decision in a short period of time. [ 62 ] These were serious offences from a public safety point of view that the Provincial Court Judge was dealing with. I reiterate that the sentencing decision was very thorough. I find that, based on the facts in this matter, the sentence imposed on the Appellant was not demonstrably unfit. [ 63 ]

Section 737.1 of the Criminal Code requires a court to consider making a Restitution Order if an offender is convicted. The Crown sought an Order that the Appellant reimburse the owners of the dog for the veterinary costs they incurred. The Appellant’s counsel objected to that because the owners of the dog had not paid the veterinarian’s account. There was no readily ascertainable loss and they had not completed Form 34.1. The Provincial Court Judge stated that

section 737.1(4) contained the words “victims and other persons may indicate whether they are seeking restitution by completing Form 34.1”. He found that the completion of the prescribed Form was not a mandatory pre-requisite to a Restitution Order being issued. [ 64 ] The use of Form 34.1 is not the only way for victims to indicate they are seeking restitution. The wording of

section 737.1 is broad enough to allow a victim to express this indication in some other way that is acceptable to a court. [ 65 ] In this matter, the Provincial Court Judge allowed the Crown to subpoena the veterinarian who treated the dog after the shooting. The veterinarian appeared in court and identified the amount owing for the treatment of the dog. That was acceptable to the Provincial Court Judge and provided him with the appropriate information – the victims’ readily ascertainable loss – to allow him to make the Restitution Order that he did. [ 66 ] I agree with the Provincial Court Judge’s

interpretation of the processes permitted under

section 737.1 of the Criminal Code . He heard evidence which satisfied him that there was a readily ascertainable loss and that a Restitution Order should be granted. [ 67 ] I find that this was a reasonable way in which to proceed and that the Provincial Court Judge did not err in imposing a Restitution Order. [ 68 ] I have carefully reviewed the transcript, the two written decisions of the Provincial Court Judge dealing with the convictions and the sentencing, the written submissions of counsel, the oral submissions of counsel on December 10, 2018, and my notes from those submissions.

As I have noted above, the two decisions are very detailed, thorough, and clearly laid out. [ 69 ] I find that: a. There was sufficient evidence to justify the conviction of the Appellant for the offence of careless use of a firearm; and b. The sentence imposed on the Appellant for the three offences was not demonstrably unfit in light of the range of sentences available. [ 70 ] Therefore, the appeal from conviction on the offence of careless use of a firearm is dismissed. The appeal from sentence is also dismissed.

_____________________________ Brian F. Furey Justice