R. v. Price, 2021 NLSC 6

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Price , 2021 NLSC 6 Date : January 13, 2021 Docket : 201906G0099 Her Majesty The Queen v. Harvey Murlin Price Before: Justice Katherine O'Brien Place of Hearing: Clarenville, Newfoundland and Labrador Date(

s) of Hearing: October 19 and 20, 2020 Date of Oral Judgment: January 13, 2021

Summary: The Court found the accused guilty of two counts of uttering threats and a number of firearms-related offences. Appearances:

P. Cory Binderup Appearing on behalf of the Crown Michael S. Ralph Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Price, 2020 NLSC 124; R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000SCC 40; R. v. Gagnon, 2006 SCC 17; R. v. H. (C.) (1999), (NL CA), 182 Nfld. & P.E.I.R. 32, 554 A.P.R. 32 (Nfld.C.A.); R. v. Neary, 2000 NFCA 22; R. v. K.P., 2019 NLCA 37; R. v. McRae, 2013 SCC 68; R. v. Agil, 2012 ONSC 5099; R. v. Copp,2009 NBCA 16; R. v. M.T., 2018 NLSC 131; R. v. Kerr, 2004 SCC 44; R. v. Whitehorn (2004), 63 W.C.B. (2d) 47, (N.L. Prov. Ct.); R. v.

Aeinechi, 2018 ONCJ 327; R. v. Innokie, 2011 NUCJ 33; R. v. Hannabury, (PE SCTD), [1970]P.E.I.J. No. 9, 1 C.C.C. (2d) 438 (S.C.); R. v. Villaroman, 2016 SCC 33; R. v. Finlay, (SCC), [1993] 3 S.C.R. 103; R. v.Critch (2012), 100 W.C.B. (2d) 949, 322 Nfld. & P.E.I.R. 126 (N.L. Prov. Ct.); R. v. Kienapple, (SCC), [1975] 1 S.C.R.729 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11; Storage, Display, Transportation and Handling ofFirearms by Individuals Regulations, SOR/98-209; Firearms Act, S.C. 1995, c. 39; Explosives Regulations, 2013, SOR/2013-211; REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] Mr. Price is charged with seven offences. Five of which are alleged to have taken place at or near Hatchet Cove,Newfoundland and Labrador on September 2, 2018. These are: i. That he did without lawful excuse use a firearm in a careless manner, contrary to section 86(1) of theCriminal Code, R.S.C. 1985, c. C-46; ii.

That he did without lawful excuse store ammunition and a firearm in a careless manner contrary to section86(1) of the Criminal Code; iii. That he did without lawful excuse point a firearm at Edison Avery contrary to

section 87 of the CriminalCode; iv. That he did without lawful excuse point a firearm at Christopher Neal contrary to

section 87 of the CriminalCode; and v. That he did carry a weapon, which was a firearm, for the purpose of committing an offence contrary tosection 88 of the Criminal Code. [2] He is charged with two offences that are alleged to have taken place at or near Hatchet Cove, Newfoundland and Labrador onor between July 25, 2018 and September 2, 2018. These are: vi. That he did knowingly utter a threat to Edison Avery to cause death to Edison Avery contrary to section264.1(1)(

a) of the Criminal Code; and vii. That he did knowingly utter a threat to Christopher Neal to cause death to Christopher Neal contrary to section264.1(1)(

a) of the Criminal Code. EVIDENCE [3] The Crown called five witnesses at trial. Additionally, it called one witness at a voir dire held prior to trial who gave evidencerelevant to the charge of improper storage of a firearm and ammunition, which evidence was agreed to be admitted for the purpose of thetrial. I will review the evidence relevant to whether the Crown has proven the charges against Mr. Price beyond a reasonable doubt. Edison Avery [4] Mr. Avery testified that Mr. Price is his brother-in-law and he has known him most of his life. He identified him in the

courtroom. At the time of these events, Mr. Avery and Mr. Price’s sister had separated and Mr. Avery’s partner was Christopher Neal. [ 5 ] Mr. Avery testified that approximately a month prior to the events of September 2, 2018, while he was at work in St. John’s, he received a call from Mr. Price. Mr. Avery called Mr. Price by name when he heard his voice and said it was good to hear from him. Mr. Avery testified that initially he thought it might be a sensible or good call. This was not the case, however, as Mr. Avery testified that Mr. Price said that he was going to kill Mr. Avery and his “bum buddy” if Mr.

Avery ever set foot in Hatchet Cove again. Mr. Avery recalled Mr. Price calling him a “fucking queer” and going off on a “tangent of gay swears.” Mr. Avery also recalled Mr. Price saying that if he didn’t kill Mr. Avery and his “bum buddy” he would make sure someone else did and that he would know if Mr. Avery ever set foot in Hatchet Cove again. Mr. Avery testified that he recalls saying to Mr. Price that this [the breakdown of his marriage] was a matter between him and Mr. Price’s sister and that it had nothing to do with Mr. Price or his parents. Mr. Avery then hung up and went home. [ 6 ] The next day Mr.

Avery attended the offices of the Royal Newfoundland Constabulary (“RNC”) in St. John’s and gave a statement about the call. He says he was advised by someone at the RNC to contact the Royal Canadian Mounted Police (“RCMP”). He testified that he called the RCMP in Clarenville but they were closed and he was told that it was “fine” that he had given a statement in St. John’s. On cross-examination, Mr. Avery was questioned as to whether he had previously stated that the RNC had advised him to contact the RCMP to get a Peace Bond or an Emergency Protection Order. He did not recall that. [ 7 ] Mr.

Avery testified that on September 2, 2018, in the mid-afternoon, he and Mr. Neal went to a cabin in Hatchet Cove that was owned by Mr. Avery and his wife, Mr. Price’s sister. Mr. Avery had heard that his wife or his wife’s family had removed all of the furniture from the cabin and he wanted to confirm if this was true and to get some patio lumber he had stored there. [ 8 ] Mr. Avery and Mr. Neal arrived at the cabin and went inside. Mr. Avery testified that he had time to look around and note that the furniture was gone. He then heard a vehicle driving up to the cabin.

The cabin has a long, tree-covered, gravel driveway. He suspected it was Mr. Price as he thought he had passed Mr. Price’s vehicle on the road earlier, but he was not sure. He said he ran out the back door of the cabin and saw what he recognized as Mr. Price’s truck driving up the driveway. He recalled telling Mr. Neal who it was and telling Mr. Neal to stay there (inside). He then walked back out to the truck to try to talk to Mr. Price and to ask him to leave. [ 9 ] Mr. Avery approached Mr. Price’s truck and started speaking to Mr. Price, asking him to leave. In the middle of speaking to him, while Mr.

Price was still in the truck, Mr. Avery saw, through the window, a gun on the backseat of the truck. Mr. Avery testified that he started to plead with Mr. Price not to do anything stupid, asking him to think about his family and not do anything he would regret. He testified that Mr. Price said he was there to kill him and his “bum buddy.” Mr. Price then jumped out of the truck and reached into the backseat to take the gun. [ 10 ] At this point, Mr. Avery recalls that Mr. Neal had joined him outside and that the two of them were on one side of the pan, or rear, of the truck and Mr. Price was on the other side.

He testified that Mr. Price was leaning across the pan of the truck pointing the gun at him and Mr. Neal, moving it back and forth between the two of them. He thought Mr. Price may have had two shots (cartridges) in his hand. He said Mr. Price looked scared and agitated and that he was cursing and called them “queers.” Mr. Avery recalled continuing to say things to Mr. Price like, “don’t do this,” ”what are you doing to yourself?” Mr. Price then raised the gun into a firing positon and Mr. Avery started shouting at Mr. Neal, “duck, duck, duck.” Mr. Avery went to the ground and heard two shots ring out.

He did not believe they were the shots he thought Mr. Price had in his hand because, in his estimation, Mr. Price did not have time to load the gun. Mr. Avery speculated that the gun had been preloaded. Before Mr. Price had time to reload, Mr. Avery testified that he jumped up with a handful of rocks. He said Mr. Price then got back aboard his vehicle and left. He recalls the truck wheels spinning out a bit. He recalled throwing rocks at the truck so that Mr. Price would not get back out of the truck. [ 11 ] Mr. Avery estimated that the whole interaction took no more than five minutes. He recalled he and Mr.

Neal running into the woods that surrounded the cabin and calling 911. He estimated the time they were there to be as long as 10 to 15 minutes while they made the necessary calls to make sure the RCMP in Clarenville knew their exact location as the cabin was secluded. He said the RCMP told them that if they thought it was safe, they should find refuge in the nearest property. That was a bed and breakfast just down the laneway from Mr. Avery’s cabin so that is where they went. They stayed there until the police arrived. At one point while there, Mr. Avery could see Mr.

Price’s truck across the harbor at his parents’ home so he called the police and told them. Mr. Avery did not go back to the cabin that day other than to walk up to the top of the hill with police so they could ask him and Mr. Neal a few questions about the scene. [ 12 ] Mr. Avery was unsure about the exact position of Mr. Price’s truck during these events. He expressed some uncertainty at first but ultimately he recalled that Mr. Price had driven up the driveway and turned his truck around, so that it was pointed down the driveway. He recalled that his own vehicle was closer to the cabin than Mr.

Price’s truck, but that Mr. Price’s truck was further up the driveway than was his car. On cross-examination, he acknowledged it was difficult for him to remember the exact location but he said he was certain about the general area. [ 13 ] Mr. Avery described the gun as a long-barreled gun. He recalled it may have had a camouflage print but he was not certain. Mr. Avery testified that he is a licensed gun owner and has hunted, but he does not hunt a lot.

He could not testify as to specifically what type of gun it was but under cross-examination he said “I know a shotgun when I see it and that was a shotgun.” [ 14 ] Mr. Avery testified that he did not remember any rocks being thrown at Mr. Price until after the shooting. On cross- examination, he acknowledged that at the preliminary inquiry he had testified that Mr. Neal started throwing rocks at Mr. Price prior to the shots being fired, however, Mr. Avery testified that was not his current memory. Mr.

Avery acknowledged that he has Post- Traumatic Stress Disorder as a result of the incident and said that there may be things he did not remember but he was adamant that Mr. Price “put a gun in” his face. Christopher Neal [ 15 ] Mr. Neal testified that on September 2, 2018, he and Mr. Avery drove to the cabin because they had heard it had been emptied out. He was not certain of the time, but believed it was around lunchtime. He recalled parking by the cabin and walking in. He said

there was no furniture left. A couple of minutes later, he recalled Mr. Avery telling him Murlin Price was coming onto the property. He said that Mr. Avery said it was the man, his brother-in-law, who had threatened to kill them 30 days prior. Mr. Neal recalls leaving the cabin behind Mr. Avery and picking up a rock. [ 16 ] Mr. Neal recalled Mr. Price jumping out of his truck. He recalls Mr. Avery telling Mr. Price not to do something stupid that he would regret. Mr. Neal recalls standing between Mr. Price’s truck and the cabin. Next to the cabin was a gazebo. Mr. Avery was near him and to their right was Mr.

Avery’s car. [ 17 ] Mr. Neal recalls Mr. Price reaching into his truck and pulling out a gun. He said that at the preliminary inquiry he had testified that he was not sure if it was in the front or backseat, but having thought about it, he said it was in the front because he only recalled Mr. Price opening one door on the truck. Mr. Neal reasoned that Mr. Price must have got the gun through the same door from which he had exited, the driver’s door. [ 18 ] Mr. Neal recalls Mr. Price holding up the gun and aiming at him and Mr. Avery. He says Mr.

Price was about six feet away, on the other side of the back of his truck. Mr. Neal did not recall much of what Mr. Price said. He recalled him saying something about “faggots” and saying a couple of “slurs” but he says he was in shock and did not know what was happening. Mr. Neal recalled Mr. Avery telling Mr. Price to go and then recalls Mr. Avery yelling “get down” and “duck.” At that point, Mr. Neal testified that he and Mr. Avery fell to the ground. He recalled the gun being fired twice. [ 19 ] During his direct testimony, Mr.

Neal stated that he had reread his “statement from last time” and noted that he had said he had thrown multiple rocks. He testified that this was not correct. He had picked up one rock upon coming outside which he did not throw. He testified that he dropped that rock when he went to the ground. After he heard the shots, he and Mr. Avery got up from the ground and he saw Mr. Price getting into his vehicle. Then Mr. Neal picked up another rock and he threw that at Mr. Price’s truck. Mr. Neal testified that Mr. Price then took off, the truck tires spun, and rocks were flicked at him and Mr. Avery. He recalled Mr.

Avery saying to Mr. Price “what have you done?” and he himself saying to Mr. Price “you don’t even know me.” [ 20 ] When asked to describe how Mr. Price was holding the gun, Mr. Neal testified that Mr. Price was holding it as if he was going to kill a moose and the barrel of the gun was facing him and Mr. Avery. [ 21 ] Mr. Neal next recalls him and Mr. Avery calling 911 on their phones, not realizing that they were both on the line with 911 at the same time. When he realized, Mr. Neal hung up. When asked where he was when he called 911, Mr.

Neal said they were near the same area where they had been shot at, but they were in a panic going in circles, not knowing what to do, so he could not really say exactly where they were. He then recalls running down the lane to the closest property, where the woman let them come inside for shelter until the police arrived. Mr. Neal thought it was probably less than 5 minutes before they started going down the lane but he said they were in shock and he was not sure. Mr. Neal testified that he and Mr.

Avery were still in fear for their lives while waiting at the neighboring property where he felt they were for 20 to 30 minutes before the police arrived. [ 22 ] Mr. Neal was cross-examined about the manner in which Mr. Price drove away. He testified Mr. Price gave the truck too much gas, the tires spun for a split second, and then Mr. Price gained traction and took off. When asked if there were any marks on the ground, Mr. Neal was not sure but felt it was definitely possible. He was also questioned about his statement at the preliminary inquiry about throwing rocks prior to the shooting. Again, Mr.

Neal stated that the evidence at the preliminary inquiry was incorrect because he was now certain that he only threw one rock as Mr. Price was leaving. [ 23 ] Mr. Neal was cross-examined as to his surroundings at the time the shots were fired. He said he was about 10 to 20 feet from the cabin, that there is a gazebo next to the cabin, and a space between the gazebo and the cabin. He did not consider his testimony that the gazebo was also behind him to be inconsistent with his statement at the preliminary inquiry that the cabin was behind him. Mr.

Neal was also crossed-examined with respect to other statements he made at the preliminary inquiry. Darlene Smith [ 24 ] Ms. Smith is the owner of the Painted Fish, a bed and breakfast in Hatchet Cove. She testified about Mr. Avery and Mr. Neal coming to her property, visibly upset, and talking about what had just happened. A short time earlier she had seen their car drive up the lane towards Mr. Avery’s cabin. She recalled Mr. Avery and Mr. Neal waiting at her property until the police arrived. She did not see Mr. Price that day. Cst. Amanda Kennedy [ 25 ] Cst.

Kennedy is a general duty investigator with the RCMP in Clarenville and was the lead investigator on this matter. Cst. Kennedy testified at both the voir dire and the trial, but it is her trial evidence that is relevant to this decision. [ 26 ] Cst. Kennedy testified that on September 2, 2018, at around 4 p.m. the RCMP received a 911 emergency call regarding shots fired in Hatchet Cove. Edison Avery had reported that Murlin Price, his ex-wife’s brother, had fired shots at him and his current partner, Christopher Neal, and had left in a black truck. [ 27 ] Cst.

Kennedy and other officers prepared to go to the area. Cst. Kennedy called Mr. Avery and he told her he could see Mr. Price’s truck from the bed and breakfast where he was and it was at his mother’s, June Price’s, residence. Cst. Kennedy testified that her priority was to get Mr. Neal and Mr. Avery to safety. Because she was not overly familiar with the area, Cst. Kennedy called Mr. Avery again while en route to get directions. On the way to Hatchet Cove, she saw Mr. Price’s truck in his driveway in Hillview. She notified the other officers and they began to contain the area around Mr. Price’s home. Cst.

Kennedy continued on to Hatchet Cove where Mr. Avery and Mr. Neal were. [ 28 ] Cst. Kennedy located Mr. Avery and Mr. Neal at the Painted Fish Bed and Breakfast which she said was a couple of hundred meters down the road from the cabin. She testified that the two men were safe, uninjured, and very frightened. Cst. Kennedy testified that Mr. Avery showed her the cabin. At that time, Mr. Price’s location was unknown and Cst. Kennedy believed that if Mr. Price was

at the cabin, he would be able to see them. She thus wanted to get Mr. Avery and Mr. Neal to safety. Another police officer arrived and was tasked with transporting Mr. Avery and Mr. Neal from the area. Cst. Kennedy stayed near the cabin in case Mr. Price returned. [ 29 ] Cst. Kennedy maintained her position near the cabin until she received confirmation that Mr. Price was in custody. She then secured the scene of the cabin with the aid of another officer. That other officer, Cst. Walsh, took over security of the scene and Cst. Kennedy left to attend to other duties. [ 30 ] Cst.

Kennedy prepared a search warrant for Mr. Price’s truck, which was at his home in Hillview. She did other follow up activities on the file, including forwarding seized items to the forensics lab for analysis. Cpl. Steve Conrod [ 31 ] Cpl. Conrod is a forensic identification specialist with the RCMP. He attends and documents crime scenes to identify forensic evidence. Cpl. Conrod arrived at the cabin in Hatchet Cove the following morning. When he arrived the scene was being secured by another police officer. Cpl. Conrod proceeded to walk around the scene to note things of interest.

He then photographed the scene, laid down evidence markers, and photographed all evidence in situ. A book of photographs taken by Cpl. Conrod was entered into evidence. [ 32 ] Of note from Cpl. Conrod’s findings was a shotgun shell casing (an expended shotgun shell) located on the ground in the area on the passenger side of Mr. Avery’s car. Mr. Avery’s car was parked such that the driver’s side was closer to the cabin. Cpl. Conrod seized the shotgun shell casing.

He also located and photographed what he described as a small tire scuff in the gravel on the ground in the area to the rear and to the right of the car. Cpl. Conrod testified that no tread impression was visible. He estimated it as less than half a meter long. [ 33 ] Cpl. Conrod had been told that a shotgun was alleged to have been fired in the area so he spent time looking for wadding that is ejected from a shot shell when a shotgun is fired. He did not find any wadding. He also looked for damage from a shotgun blast in the area, including around the car, the cabin decking, the gazebo and the nearby vegetation.

He did not locate any. He used a small metal detector as well, but he did not locate any shot. [ 34 ] After finishing with the scene, Cpl. Conrod was advised that a pickup truck that the accused was allegedly driving had been seized and was at the Clarenville detachment. Cpl. Conrod proceeded there, got a copy of the search warrant and the keys, and went to search the truck. Again, he took photographs of what he found. Cpl. Conrod located three unfired shotgun shells in the center console of the truck. He also found a single unfired shotgun shell in the back seat.

The shotgun shells were seized and photographed. [ 35 ] Cpl. Conrod testified to the photographs he took and the items that he seized. He identified the casing found on the ground as an expended 12-gauge shotgun shell, Federal brand, with a red plastic casing and a light gray brass head. Of the three shotgun shells found in the truck’s console, two were Federal brand and one was Game brand. All were for a 12-gauge and had red plastic casings and two had light gray heads. The head of the third was so rusted it is difficult to discern what colour it was originally.

The shotgun shell seized from the back seat was 12-gauge, Federal brand, red plastic casing and light gray head. All of the shells seized, including the spent one on the ground, showed signs of weathering. Cpl. Conrod testified that none of them were brand new shells. On cross- examination, Cpl. Conrod confirmed that he could not determine how long the expended shell had been on the ground. [ 36 ] A Forensic Science and Identification Services Laboratory Report (the “Forensic Report”) was entered into evidence for the truth of its contents through Cpl. Conrod with the consent of Mr. Price.

The Forensic Report was issued by Elissia Hillier of the Firearms and Toolmark Identification

Section of the National Forensic Laboratory Services in Ottawa. The Forensic Report identified the shotgun shells found in the truck as of a design for use in a shotgun and as ammunition within the meaning of section 84(1) of the Criminal Code . Cst. Roy Chappell [ 37 ] Cst. Chappell testified at the voir dire . I have already summarized much of his evidence in R. v. Price , 2020 NLSC 124 . In that decision, I found that Cst. Chappell conducted a warrantless search without valid authorization that was in breach of Mr. Price’s rights pursuant to

section 8 of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 . However, I did not exclude the evidence seized by Cst. Chappell as a result of that search. Consequently, the gun case and contents seized from the bedroom closet of Mr. Price’s home were admissible. These items were not entered into evidence but Cst. Chappell testified to what he found and seized. Additionally, these items were examined and reported on in the Forensic Report. [ 38 ] Cst. Chappell told Jackie Cooper, who said she lived at the residence with Mr. Price, that he wanted to search the house for firearms.

She told him that the guns would be in the bedroom and led him there. In a closet in the bedroom, Cst. Chappell found an empty soft fabric gun case with a camouflage pattern, and a hard black plastic gun case with a long gun and a magazine inside. The magazine contained three bullets and was next to the firearm in the case. It was not attached to the gun. Cst. Chappell testified that neither the bedroom door nor the closet door were locked. He could not remember if the closet door was capable of being locked. He also testified that the hard gun case was not locked.

The gun inside did not have a trigger lock nor a cable lock. Cst. Chappell opened the action of the gun and determined that there was no bullet inside the chamber. He left the action open for safety reasons. In the case with the firearm, Cst. Chappell found two hunting licenses one in the name of Murlin Price and one in the name of “M. Price.” Cst.

Chappell seized the hard gun case and its contents, and brought them to the RCMP detachment and placed them in the exhibit locker. [ 39 ] The Forensic Report identified the long gun as a Savage, model AXIS, .22-250 Remington calibre, bolt-action rifle that is a firearm within the meaning of

section 2 of the Criminal Code and a non-restricted firearm within the meaning of section 84(1) of the Criminal Code . As part of the forensic testing, the rifle was test fired. [ 40 ] The Forensic Report identified the three cartridges, commonly referred to as bullets, found in the magazine as designed for use in the rifle. During testing, “a representative sample” of the cartridges were discharged from the rifle. The Forensic Report concluded that the cartridges are ammunition within the meaning of section 84(1) of the Criminal Code and that the cartridge magazine is an

“uncontrolled device.” LAW AND ANALYSIS The burden and standard of proof [41] The onus is on the Crown to prove all the elements of the offences charged beyond a reasonable doubt. That onus never shifts(R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). The standard of proof beyond a reasonable doubt is closer to absolutecertainty than it is to the balance of probabilities (R. v. Starr, 2000 SCC 40). Credibility and reliability of witnesses [42] In R. v. Gagnon, 2006 SCC 17, the Supreme Court of Canada stated at paragraph 20: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. … [43] The demeanour of witnesses as they give their evidence, and particularly as they answer the often more difficult questions ofcross-examination, is one factor to consider. For example, the court may assess whether a witness appears forthright or evasive, overlyconfident or overly vague. Demeanour is only one factor, however. As noted by the Newfoundland and Labrador Court of Appeal in R.v.

H. (C.) (1999), (NL CA), 182 Nfld. & P.E.I.R. 32, 554 A.P.R. 32 (Nfld. C.A.), at paragraph 24: No authority need be cited to support the proposition that observing demeanour is a major tool in the kit of a trial judge when assessingthe credibility of a witness.

However, as important as it is, credibility of a complainant accepted on the basis of demeanour alone, is not asufficient basis to convict an accused where the allegations are credibly denied or there is other contradictory evidence. [44] It is possible that honest witnesses may convince themselves that an inaccurate version of events is correct and they may bevery persuasive in their testimony. Such witnesses are credible, but unreliable. There are also witnesses who are not credible, but whohave convincing demeanours.

To guard against being overly influenced by a witness’ demeanour, a trial judge must assess the witness’evidence in light of the full record before the court and consider any inconsistencies in the evidence. A trial judge should be alive to anymotivation the witness may have to be untruthful. A trial judge should also consider the consistency, or lack of it, in statements made bythe witness when addressing the matter in the witness box and on other occasions (see H. (C.) at paragraph 23).

The importance ofconsidering a witness’ testimony in light of all of the evidence presented was also highlighted by the Court of Appeal in R. v. Neary,2000 NFCA 22 at paragraphs 26 to 28. [45] Finally, in assessing a witness’s testimony, the trial judge may accept all, some or none of their evidence (see R. v. K.P., 2019NLCA 37, at paragraphs 42 and 47). Assessment of the evidence of Mr. Avery and Mr. Neal [46] The Crown’s case for all charges, other than that of unlawful storage of the ammunition and firearm, primarily rests on thecredibility and reliability of Mr. Avery and Mr.

Neal. [47] I found both men to have credible demeanours. In giving their evidence, both were forthright and direct in their answers andacknowledged aspects of their testimony about which they were unsure. They were testifying to a traumatic event and, at times, I sensedthat both were experiencing strong emotions related to that day. [48] Counsel for Mr. Price has submitted that Mr. Avery was argumentative and at times embellished his evidence. I agree that Mr.Avery was a little argumentative on a few occasions, but this did not cause me to conclude that he was not telling the truth.

Rather, Iassessed his reaction as most likely a result of his feeling indignation or frustration when his evidence was challenged on cross-examination. I did not find that Mr. Avery embellished his evidence in any significant way. [49] There were some inconsistencies in the prior statements of each witness, but I did not find them to be significant enough toundermine the testimony of either. Nor did I did find that either of them was taking a careless attitude to the truth. In some instances, itwas questionable as to whether there was any inconsistency at all.

For example, in describing what was behind him when the shots werefired, I did not find Mr. Neal’s statement at trial to be inconsistent with what he said at the preliminary inquiry. In another instance, inrelation with why he and Mr. Avery had gone to Hatchet Cove that day, Mr. Neal had clarified his evidence at the preliminary inquiryand his testimony at trial was consistent with the clarification he had made. With respect to throwing rocks, Mr.

Neal was the first todraw his previous inconsistent statement to the court’s attention, quickly advising that his statement at the preliminary inquiry had beenincorrect. Mr. Avery was also forthcoming in differentiating his memories of the rock throwing at the trial from what he had said at thepreliminary inquiry. [50] None of the inconsistencies were with respect to significant matters and I did not find the number of inconsistencies to be morethan one might expect in relation to minor details of an event that happened over two years before.

Both men testified to being afraid fortheir lives and such a level of fear might reasonably cause some details to loom larger in the memory than others. On the details that Iwould expect them to be consistent with their previous statements, the material events of that day, they were consistent. [51] There were also some inconsistencies between Mr. Avery’s testimony and that of Mr. Neal. However, I found theseinconsistencies to be minor and readily explained by the surrounding circumstances and the passage of time.

For example, the witnesses’time estimates differed but I do not find this significant because assessing time is difficult to do in the most controlled circumstances.

The witnesses also gave different reports of what they said or what Mr. Price said. Some of the difference can likely be explained by where they were at the time. When Mr. Price first arrived on the scene, Mr. Avery went out to speak to him immediately, while Mr. Neal lagged behind. In some cases though, it was clear that they were both present and the differences are likely because they have slightly different memories of the events. Importantly, however, the topics and general meaning of the verbal exchanges they reported were the same.

If the witnesses had the exact same account of all of the details, then one might suspect that they had improperly reviewed their evidence together in advance of the trial. Mr. Avery and Mr. Neal were consistent in their reports of material events, such as: where they were in relation to each other, Mr. Price and Mr. Price’s truck; the way Mr. Price handled the gun; their reactions; the number of shots they heard; and how Mr. Price left the scene. [ 52 ] I have considered Mr. Avery and Mr. Neal’s evidence in light of the scene examination. In particular, Cpl.

Conrod found no evidence of fired shot and only one shell casing. These physical findings, however, do not contradict the eyewitness testimony. Neither witness reported seeing Mr. Price fire the shotgun. They heard shots, but those shots could have been fired in any direction and not in the area where Cpl. Conrod looked, which was generally behind where Mr. Avery and Mr. Neal had been. Additionally, finding one shell casing on the scene does not make two shots being fired impossible. A second casing could have been removed by Mr. Price or the found shell casing could be unrelated to these events.

The scuff in the gravel of the driveway could be considered consistent with both witnesses’ testimony that there was some spinning of tires when Mr. Price left, but there is no way to know when that mark was made or what it was made by so I did not find it to have any significant probative value. Overall, I found that the psychical scene examination was not inconsistent with the eyewitness testimony but that it provided little corroboration. [ 53 ] Having considered all of the evidence, I find Mr. Avery and Mr. Neal to be credible and their recount of the material events to be reliable.

Uttering Threats [ 54 ] The essential elements of a charge under

section 264.1(1)(

a) that the Crown must prove beyond a reasonable doubt are: (

i) the accused uttered or conveyed a threat to cause death or bodily harm; and (ii) the accused had an intention to threaten (see R. v. McRae , 2013 SCC 68 ). The actus reus of the offence requires proof that a reasonable person, fully aware of the circumstances in which the words were uttered or conveyed, would perceive them to be a threat of death or bodily harm. The mens rea requires proof that the threating words uttered or conveyed were meant to intimidate or to be taken seriously. The fault element is subjective.

To determine what the accused actually intended, the trier of fact may draw reasonable inferences from the words and the circumstances in which they were uttered or conveyed. The Crown does not need to prove an intent that the words be conveyed to the subject of the threat or that the accused intended to carry out the threat. [ 55 ] Mr. Price is alleged to have threatened to kill Mr. Avery and Mr. Neal on two occasions. The first is on the phone call with Mr. Avery that took place approximately one month before September 2, 2018. On that call, Mr. Avery reports that Mr. Price said he was going to kill Mr.

Avery and his “bum buddy” if Mr. Avery ever set foot in Hatchet Cove again. Mr. Avery also recalled Mr. Price saying that if he didn’t kill them, he would make sure someone else did. The second is on September 2, 2018, when Mr. Avery says Mr. Price used similar words. [ 56 ] I have already indicated that I found Mr. Avery to be a credible witness and I am satisfied beyond a reasonable doubt that, on both occasions, Mr. Price uttered a threat to kill Mr. Avery and Mr. Neal. The incidents cannot be viewed in isolation as they are related.

On the phone call, the threat was, in essence, “if you return to Hatchet Cove I will kill you both or have someone else do it.” The second incident was upon Mr. Avery’s return to Hatchet Cove. During the second incident, Mr. Price was carrying a shotgun and, considering the whole of the circumstances, I am satisfied beyond a reasonable doubt that Mr. Price intended his words to intimidate and be taken seriously. Although Mr. Price did not name Mr. Neal directly, in light of his pointing the shotgun at Mr. Neal on September 2, I am satisfied that by using the words “bum buddy” Mr. Price was threatening Mr.

Avery’s partner, Mr. Neal. Mr. Avery certainly understood the reference to be to Mr. Neal and I have no doubt that Mr. Price intended it that way. It does not matter that Mr. Neal did not report hearing the threat uttered to him directly, as the Crown does not need to prove direct communication to the subject of the threat (see McRae at paragraph 2 ). I thus find Mr. Price guilty of both counts of uttering threats. Pointing a firearm [ 57 ] The essential elements of a charge under section 87(1) that the Crown must prove beyond a reasonable doubt are: (

i) the accused pointed a firearm; (ii) the accused pointed the firearm at another person; and (iii) the accused had no lawful excuse for pointing the firearm. [ 58 ] A firearm is defined in

section 2 of the Criminal Code as a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person. To point a firearm means to direct or aim it, intentionally, not accidentally, absent-mindedly, or simply by chance. Pointing involves a choice, an intentional act of directing the weapon towards a person or object as a target.

The firearm does not have be loaded. [ 59 ] Typically, when a firearm is recovered by the police, it is physically examined and tested by an expert who then testifies or provides a report stating that it is a real gun capable of firing a shot, bullet or other projectile. No such evidence or report was presented in this case. However, this is not the only way that something can be proven to be a firearm. Sometimes, an inference can be drawn from the totality of the evidence that a particular item is a firearm. [ 60 ] In R. v.

Agil , 2012 ONSC 5099 , the court provided a good review of a number of cases on this subject commencing at paragraph 50 (citations omitted): 50 In R. v. Richards , the accused was convicted at trial of robbery with a firearm. An object appearing to be a gun was brandished in the course of the robbery, but was not fired and was never recovered. The Court of Appeal upheld the trial judge's conclusion that this had been a firearm within the meaning of the Criminal Code . The Court of Appeal took into account the manner in which the gun was

used, what was said by the perpetrator, and the fact that he had access to guns. The Court held, at para. 4: It was unwise of the Crown to abandon a count in the indictment relating to the use of an imitation weapon in the commission of a robbery.

Nevertheless, having regard to the description of the gun given by the witnesses, the circumstances surrounding the use of the gun — namely that the witnesses were ordered to get down on the floor, had a gun pressed to the head, were threatened, and the modus operandi indicating that the appellant had ready access to guns called up from different locations prior to the subsequent robbery — it was open to the trial judge to come to the conclusion that the gun used by the appellant was a firearm. The appeal as to conviction is dismissed. 51 A year later, the Court of Appeal reaffirmed this position in R. v.

Carlson , in which an accused was convicted of pointing a firearm in the course of a bank robbery. The defence argued on appeal that there was no evidence before the jury as to the operability of the item used by the robbers and that it could not, therefore, be said to be a firearm. However, the Court of Appeal held that the cumulative effect of what the gun looked like, how it was used, what was said by the robber, and the fact that the robber had ready access to guns supported the conclusion that it was a handgun. The Court held, at para. 16: In accordance with this court's decision in R. v.

Richards , [2001] O.J. No. 2286 , we are satisfied that taken cumulatively, the following items of evidence could reasonably support a finding that the hand gun in issue was a firearm: During the course of the robbery, the appellant brandished the gun, waved it around and eventually pointed it at the back of an employee's head, all the while screaming that this was a "hold-up" and demanding money. Various witnesses described the gun as "small" and "black" with a 6 to 8 inch muzzle.

The fact that the appellant had ready access to guns according to the combined testimony of his accomplice Grannas and his common- law spouse Ms. Ryynanen. 52 Similarly, in R. v. Charbonneau , the Ontario Court of Appeal held that the way a gun is handled and what is said can be a basis for concluding that it is a firearm, particularly in the complete absence of evidence to the contrary. The Court held, at para. 3: It is true that the complainant was equivocal on the question of whether she could tell for certain whether the gun was real or fake.

However, the trial judge also had before him the evidence of the complainant's clear belief that it was a gun, her description of the object, the appellant's conduct in relation to it and his use of it together with the appellant's threat to shoot while holding it. Moreover, there was a complete absence of evidence to the contrary. Taken together, this is a sufficient foundation for the trial judge's finding that it was a handgun. 53 In R. v. Ranieri , the Ontario Court of Appeal took into account threats of violence and aggression in relation to a gun in concluding that it was a real firearm.

Again, the absence of any evidence to the contrary was accepted as relevant to a determination that the gun was real.

The Court stated, at paras. 2-3: In our view, there was sufficient evidence upon which the trial judge could make the requisite finding, including: (1) the description of the gun offered by the victim and his friend; (2) the description by the victim and his friend of the loading of the gun; (3) the circumstances of aggression and the appellant's threats and violent behaviour; and (4) the appellant's statement that he would return in several days and shoot the victim and his friend and/or their property.

In these circumstances, absent any evidence from the appellant, [we are] satisfied that the trial judge was entitled to find that the gun in question was a firearm.

54 Finally, although not binding on me, I find the reasoning of Sparrow J. in R. v. O. (T.) to be very persuasive. The facts before thecourt were very similar to the situation before me. The police had seized a cellphone on which there was a video of the accused holdingwhat appeared to be a gun and stating, among other things, "this can kill you." The issue was whether this was a real gun, or merely animitation or replica. The expert witness called by the Crown (Officer Michael Press) testified that the features of the gun in the videomatched those of a real gun and that the serial number had been ground off.

Sparrow J. took this into account along with the wordsspoken by the accused while handling the gun and concluded it was a real firearm. […] [61] I am satisfied beyond a reasonable doubt that Mr. Price pointed a firearm as defined by

section 2 of the Criminal Code at Mr.Avery and Mr. Neal. In coming to this conclusion, I have considered: Mr. Avery and Mr. Neal’s descriptions of what they saw in Mr.Price’s hands and how he handled it; Mr. Price’s words and actions on that day, including the threats he made; and that Mr. Neal and Mr.Avery both reported hearing two shots fired. I also find that Mr. Price pointed the firearm intentionally and that he had no lawful excusefor doing so. I note that neither man was armed nor threatening Mr. Price and he had come on Mr. Avery’s property uninvited. I thusfind Mr.

Price guilty of both counts of unlawfully pointing a firearm. Careless use of a firearm [62] To establish this offence, the Crown must prove beyond a reasonable doubt that: (

i) the accused used a firearm; (ii) the accusedused the firearm in a careless manner; and (iii) the accused had no lawful excuse for using the firearm in this way. Here, the careless usealleged against Mr. Price is his handling the firearm by pointing it at Mr. Avery and Mr. Neal. [63] In R. v. Copp, 2009 NBCA 16, the court found that careless use of a firearm is not an included offence to the charge ofunlawfully pointing a firearm. The court reasoned that pointing a firearm at a person will not, in all cases, necessarily involve its carelesshandling or use.

In the facts of this case, I have no hesitation finding that Mr. Price’s pointing a shotgun back and forth between Mr.Price and Mr. Avery, at close proximity, and then firing it in their vicinity, was careless use, in that, it was reckless and a markeddeparture from the standard of care of a reasonably prudent person in the circumstances. A similar finding was made by Stack J. of thisCourt in R. v. M.T., 2018 NLSC 131. I thus find Mr. Price guilty of careless use of a firearm.

Carrying a firearm for the purpose of committing an offence [64] Section 88(1) of the Criminal Code states: Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunitionor prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence. [65] The mens rea component of section 88(1) was considered by the Supreme Court of Canada in R. v. Kerr, 2004 SCC 44. Amajority of the court agreed on the outcome of the appeal, but for different reasons.

Gorman J. of the Provincial Court of Newfoundlandand Labrador provides a good review of Kerr in R. v. Whitehorn (2004), 63 W.C.B. (2d) 47, (N.L. Prov. Ct.) atparagraphs 75 to 82. There is no doubt from Kerr that section 88(1) is a specific intent offence and that the trier of fact must determinethe accused’s purpose for carrying the weapon on a subjective basis. There was a difference in Kerr between how the judges dealt withthe mens rea requirement for the purpose being dangerous to the public peace.

Bastarache J., with whom Major J. agreed, concludedthat it was an objective determination, while LeBelle J., with whom Arbour J. agreed, concluded that it was subjective. [66] Kerr considered a charge of carrying a weapon for the purpose dangerous to the public peace. In the present case, Mr. Pricehas been charged with carrying a weapon for the purpose of committing an offence. Although this second branch of the charge has notreceived much judicial consideration, I am satisfied that the reasoning of Kerr applies (see R. v. Aeinechi, 2018 ONCJ 327 and R. v.Innokie, 2011 NUCJ 33). [67] As such, to find Mr.

Price guilty of a breach of section 88(1) the Crown must prove beyond a reasonable doubt that: (

i) Mr.Price carried a weapon; and (ii) he carried it for the purpose of committing an offence. [68] I have already found that Mr. Price had a firearm, which is a weapon as that term is defined in

section 2 of the Criminal Code. I find that he had the firearm accessible in his truck and that he removed it from the truck and lifted it in his arms. This establishescarrying the weapon (see R. v. Hannabury, (PE SCTD), [1970] P.E.I.J. No. 9, 1 C.C.C. (2d) 438 (S.C.)). This leavesfor consideration whether the Crown has established Mr. Price’s purpose for carrying the firearm. [69] The charge does not particularize the offence that Mr. Price is alleged to have intended to use the firearm to commit. Consequently, the Crown does not have to prove that he possessed it to commit any particular offence.

Any offence would do, but theintent to commit an offence is required (see Aeinechi at paragraph 76). Although neither counsel spent much time on submissions withrespect to this charge, Crown counsel submitted that the offence Mr. Price intended to commit was pointing the firearm at Mr. Avery andMr. Neal. I am not limited by this submission of Crown counsel, however, and I must look at all of the evidence to determine whetherMr. Price’s purpose has been established. [70] There is no direct evidence as to Mr. Price’s intention.

The Crown thus relies on circumstantial evidence and I am required toconsider whether Mr. Price’s guilt is the only reasonable conclusion available on the totality of the evidence and the absence of evidence,assessed logically, and in light of human experience and common sense (see R. v. Villaroman, 2016 SCC 33). Following the guidance ofKerr, the determination of Mr. Price’s subjective purpose may involve a consideration of objective indicia.

While the use to which theweapon was put does not establish that the weapon was carried for that purpose, that use is one factor to be considered. [71] Considering the whole of the evidence, I am satisfied beyond a reasonable doubt that Mr. Price carried the firearm for thepurpose of committing an offence. There is no evidence that Mr. Price was threatened or that he was carrying the shotgun for defensivereasons. He came on Mr. Avery’s property on his own volition with the firearm.

It was a residential property and thus not a suitableplace for hunting or target practice or any other sensible use of a gun that I can conceive of. He had previously threatened to kill Mr.

Avery if he ever came back to Hatchet Cove. I find that Mr. Price went to the property to threaten and intimidate Mr. Avery and Mr.Neal and that he carried the firearm for that purpose. His further threat to kill the men and his actions of pointing the gun at themsupport this finding. I thus find Mr. Price guilty of carrying a firearm for the purpose of committing an offence. Careless storage of firearm and ammunition [72] This offence relates to the rifle and bullets seized from Mr. Price’s bedroom closet.

The Crown has also submitted that theoffence may also be made out by the storage of the shotgun shells in Mr. Price’s truck. I will deal with the rifle and bullets from thebedroom closet first. [73] Crown counsel referred me to section 5(1) of the Storage, Display, Transportation and Handling of Firearms by IndividualsRegulations, SOR/98-209, made under the Firearms Act, S.C. 1995, c. 39. Section 5(1) states: 5

(1) An individual may store a non-restricted firearm only if (

a) it is unloaded; (

b) it is (

i) rendered inoperable by means of a secure locking device, (ii) rendered inoperable by the removal of the bolt or bolt-carrier, or (iii) stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken openor into; and (

c) it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in a containeror receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into. [74] Mr.

Price is not charged with a breach of the Storage, Display, Transportation and Handling of Firearms by IndividualsRegulations, however, he is charged with a breach of section 86(1) of the Criminal Code which states as follows: Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibitedweapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or withoutreasonable precautions for the safety of other persons. [75] In R. v.

Finlay, (SCC), [1993] 3 S.C.R. 103, the Supreme Court of Canada considered the proper

interpretationof the fault element under section 86(1) (section 86(2) at the time) and held that proof is required that the accused’s conduct constitutes amarked departure from the standard of care of a reasonably prudent person.

The Supreme Court also held that even if a markeddeparture is established, section 86(1) allows for “the existence of a reasonable doubt as to either the sufficiency of the precautions takenby the accused to avoid the creation or risk, or the capacity of the accused to meet the standard of care of a reasonably prudent person inthe circumstances” (see paragraph 35). [76] Section 86(1) was considered by Gorman J. of the Provincial Court of Newfoundland and Labrador in R. v. Critch (2012), 100W.C.B. (2d) 949, 322 Nfld. & P.E.I.R. 126 (N.L. Prov. Ct.).

After reviewing Finlay and a number of other cases, he summarized the lawas follows at paragraph 33: In

summary, in order to obtain a conviction pursuant to section 86(1) of the Criminal Code the Crown must prove that the accused: 1. carried, handled, shipped, transported or stored a firearm, a prohibited weapon, a restricted weapon, a prohibited device or anyammunition or prohibited ammunition (the storage can be of a temporary nature (see Carlos)), 2. in a careless manner or without reasonable precautions for the safety of other persons.

A modified objective test applies (see Beatty).This requires proof of conduct that constitutes a marked departure from the standard of care of a reasonably prudent person in thecircumstances (see Finlay). If a reasonable person in the position of the accused would not have been aware of the risk or would not havebeen able to avoid creating the danger, an acquittal will ensue (see Tayfel ). [77] Mr. Price has not argued that his identity has not been established. He testified at the voir dire in relation to his arrest assummarized in R. v. Price.

By agreement of counsel, his evidence at the voir dire can be used for the purposes of the trial. Most of Mr.Price’s evidence is not relevant to the substantive charges against him. However, at the voir dire, Mr. Price confirmed that he lived inHillview in the house where he assisted the police in securing his ATV. He said he lived there alone. This is the house where the gunand ammunition were located in the bedroom closet. Mr. Price challenged the search of the house based on it being his residence.

Cst.Chappell testified that he found two hunting licenses in the case with the rifle and bullets, one in the name of “Murlin Price” and one inthe name of “M. Price.” I found Cst. Chappell to be a credible witness and I accept his evidence. Although the evidence iscircumstantial, I am satisfied beyond a reasonable doubt that Mr. Price is responsible for the storage of the ammunition and firearm inthe bedroom closet. [78] I also find that the storage was done in a careless manner and without reasonable precautions for the safety of others. The riflewas stored in an unlocked bedroom closet, in an unlocked case.

The gun itself not secured in any way. The Forensic Report concluded

that the rifle is a non-restricted firearm as per the Criminal Code and was capable of firing the ammunition that was stored with it. Although Mr. Price testified that he lived alone, on the day in question Ms. Cooper was in the house without him so, regardless ofwhether she lived in the house with him, it is clear that at least one other person had access to the bedroom and knew were the gun waskept. [79] Mr. Price had hunting licenses.

A hunting license is a privilege and it is reasonable to expect that a person who has soughtand been granted that privilege be aware of the dangers of storing firearms in an unsecured fashion and take steps to avoid the danger. Iam satisfied that Mr. Price’s conduct in storing an unsecured, functioning rifle, with ammunition, in an unlocked bedroom accessible toat least one other person is conduct that constitutes a marked departure from the standard of care of a reasonably prudent person in thecircumstances. As such, I find Mr.

Price guilty of unlawfully storing a firearm and ammunition in a careless manner. [80] With respect to the shotgun shell casings found in Mr. Price’s truck, the Crown has not adduced sufficient evidence to establishthat the storage of this ammunition was careless or posed a risk to the safety of others. Although Crown counsel pointed me to theExplosives Regulations, 2013, SOR/2013-211, he did not allege that any specific

section had been offended by the storage. The shellswere not readily visible in the truck. Three of them were in the console among a lot of other items and one was buried among a lot ofitems on the floor of the back seat. The Crown did not strenuously assert its case with respect to the shotgun shells and I will notconsider it further. DISPOSITION [81] I am satisfied beyond a reasonable doubt that Mr. Price is guilty of all seven offences alleged against him. [82] In R. v.

Kienapple, (SCC), [1975] 1 S.C.R. 729, the Supreme Court of Canada ruled that an offender cannot beconvicted of two criminal offences on the same or substantially the same elements. This rule is frequently referred to as the Kienappleprinciple. I am reserving my consideration of the applicability of the Kienapple principle to the offences until I have had the benefit ofsubmissions of counsel on the subject. _____________________________ Katherine O'Brien Justice