R v Barca, 2022 MBCA 80

Citation: R v Barca, 2022 MBCA 80 Date: 20221012 Dockets: AR21-30-09583; AR21-30-09638 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Karen I. Simonsen Madam Justice Lori T. Spivak BETWEEN : ) M. S. Bright and her majesty the queen ) A. D. Gingera ) for the Crown Appellant/Respondent ) ) P. F. B.

Cramer - and - ) for the Accused ) sven barca ) Appeals heard: ) January 14, 2022 ( Accused ) Respondent/Appellant ) ) Judgment delivered: ) October 12, 2022 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , these appeals were heard remotely by videoconference. On appeal from 2021 MBQB 40 beard JA I. THE ISSUES [ 1 ] Both the Crown and the accused have filed appeals in this matter. After a trial by judge alone in the Court of Queen’s Bench, the accused was acquitted of two counts of reckless discharge of a firearm under

section 244.2(1) (

b) of the Criminal Code , but he was convicted, on both counts, of the included offence of careless use of a firearm under section 86(1) of the Criminal Code . He was also convicted of careless storage of a firearm under the same section. All

section references herein relate to the Criminal Code , unless otherwise indicated. [ 2 ] The accused is appealing his two convictions for careless use of a firearm under section 86(1). As well, he is applying for leave to appeal and, if leave is granted, is appealing his global sentence of 18 months’ incarceration. [ 3 ] On his conviction appeal, the accused is challenging the trial judge’s factual findings and his conclusion that the offences under section 86(1) had been proven beyond a reasonable doubt.

On his sentence appeal, the accused argues that the trial judge erred by concluding that a conditional sentence was not appropriate and by failing to give adequate weight to the mitigating factors in sentencing him to a period of incarceration. [ 4 ] The accused filed a motion to admit fresh evidence in the conviction appeal; however, all of the matters, except one, were resolved by agreement.

[ 5 ] The Crown is appealing one of the acquittals of reckless discharge of a firearm. It alleges that the trial judge erred in his application of the facts to the law when he found that the legal standard for recklessness in

section 244.2(1) (

b) had not been proven beyond a reasonable doubt. II. THE FACTS [ 6 ] At trial, the Crown alleged that there were two separate incidents of discharging a firearm: one at 10:18 p.m. (the 10:18 p.m. firearm discharge) and a second, a few hours later, at 2:30 a.m. (the 2:30 a.m. firearm discharge). Both took place on the same rural residential property (the property). [ 7 ] On June 30, 2018, three RCMP officers were sent to the accused’s property to do a “well-being check” (at para 11), that is, to investigate a 911 “hang-up call”.

They were advised that, when the 911 operator called back, a male answered and said “what” (at para 8) in an agitated manner, before hanging up. [ 8 ] The officers arrived at the property in a marked police car at around 10:00 p.m., at the same time as a third RCMP officer, who was in a marked police SUV. Both vehicles had the emergency lights on as they arrived, and they parked in front of a locked gate at the end of the driveway, approximately 100 metres from the residence.

The headlights (but not the emergency lights) were left on and one vehicle was left running from the arrival of the officers until the arrest, as was the video recorder (dash cam) inside the police car. The dash cam was directed towards the residence and recorded an area that included the driveway and residence. The video recording from the dash cam was entered as an exhibit at the trial (the dash cam recording). [ 9 ] While the officers were still standing behind the gate, a woman approached them, walking down the driveway. The accused later identified her in the dash cam recording as his wife.

All officers described her as being under the influence of alcohol. The officers went around the gate to speak to the woman. A male was on the front porch of the residence, and he was yelling profanities at the officers. The woman turned back to the residence. The male went inside and immediately came back out, carrying what one officer identified as a long-barrelled gun or rifle. At least two of the officers saw the male holding a rifle in front of him, with the barrel pointing upward. [ 10 ] One of the officers yelled “gun, gun, gun”, and they immediately turned and ran for cover (at paras 15, 20).

As they were running back to the vehicles, a gunshot was fired. The officers’ reactions can be seen, and a faint pop can be heard, on the dash cam recording. This was the first discharge of a firearm, at 10:18 p.m. All three officers testified that they were running away when the gun was discharged. [ 11 ] The three officers decided to retreat to a safe distance and wait for backup.

They left the police car sitting in front of the gate with the headlights on, locked and running, including the dash cam, and they retreated with the SUV to an area approximately one kilometre away from the gate. [ 12 ] Some time later, six members of the RCMP emergency response team arrived at the area where the SUV was waiting, and two officers were sent to take up positions closer to the residence. One of those officers, Constable Crone, testified that he could see the residence but was lying prone on the ground by a grain silo, hidden from view, approximately 70 metres from the residence.

He testified that he heard a shotgun being readied, following which it was discharged. He said that pellets hit the ground approximately 10 metres to his left, following which he could hear the side door of the residence close, but he did not see who fired the shot. This second shot was fired at approximately 2:30 a.m. [ 13 ] Shortly after 3:00 a.m., an RCMP tactical armored vehicle approached the side door of the residence. A woman and a man came out of the side door and were arrested. The man, being the accused, was charged with several offences, including attempted murder.

He immediately stated, in reply to the charge, that “[i]t wasn’t attempted murder, I just shot above their heads to scare them off the property” (at para 37). [ 14 ] The accused later gave a video-recorded statement to the police (the video statement). In that statement, he admitted, and the trial judge found, that he and the woman were the only two people on the property. He said that he discharged the firearm once to scare coyotes that were on his property, but he denied shooting at the police.

He said that he was arrested after he shot over the top of the coyotes. [ 15 ] The accused called no evidence at the trial. Both the verbal comments and the video statement were entered as evidence in the trial. [ 16 ] As well, an agreed statement of facts was filed as evidence in the trial.

Those agreed facts that are important to the issues on appeal are that the accused discharged a firearm outside his residence at approximately 2:30 a.m. on July 1, 2018, and that the accused’s statements to the police, both at the time of his arrest and during the later video-recorded interview, were voluntary. [ 17 ] As already noted, on both counts, the trial judge acquitted the accused of reckless discharge of a firearm, but he convicted him of the included offence of careless use of a firearm. He sentenced him to 18 months’ incarceration for each conviction, to be served concurrently.

He sentenced him to a further six months’ incarceration for careless storage of a firearm, also to be served concurrently. He considered, but rejected, the accused’s submission for either a suspended or conditional sentence. III. ACCUSED’S CONVICTION APPEAL [ 18 ] The accused raises several grounds of appeal that, at their core, allege errors in the trial judge’s factual findings.

[19] The accused argues that the trial judge made three erroneous factual findings, being (

i) that the accused was on thefront porch at the time of the 10:18 p.m. firearm discharge; (ii) that the words “I shot above their heads” referred to police officers andnot to coyotes; and (iii) that the accused knew that police officers were on the property at 2:30 a.m. [20] The standard of review of factual findings and inferences is that of palpable and overriding error. (See Housen vNikolaisen, 2002 SCC 33 at para 23; HL v Canada (Attorney General), 2005 SCC 25 at paras 64, 73-75; R v MacLeod (JM) et al, 2013MBCA 48 at para 16; and R v Kunicki, 2014 MBCA 22 at para 17.) The standard of proof beyond a reasonable doubt applies to theelements of an offence, not to individual factual findings or factual inferences, unless the factual finding is also an element of theoffence. (See R v Morin, (SCC), [1988] 2 SCR 345 at 354-55, 359-62; and R v McIvor, 2021 MBCA 55 at paras 43-46.) [21] The accused further argues that the trial judge’s factual errors led to errors in his legal findings; that is, he (iv) erred inconcluding that the elements of careless use of a firearm were proven; (

v) erred by failing to apply the appropriate standard of guiltbeyond a reasonable doubt; and (vi) erred in applying the facts to the law. (

i) The Accused Was on the Front Porch at 10:18 p.m. [22] The accused points out that, prior to the officers turning and fleeing at 10:18 p.m., the dash cam recording does notshow him on the front porch, or passing through the front door to the porch.

He notes the explanation of the officers that the dash camview of the porch was blocked by bug splatter on the windshield of the police car, but he argues that that explanation cannot realisticallybe accepted, or that the trial judge should, at least, have had a reasonable doubt as to whether the accused was on the porch. [23] As noted above, the question of whether the accused was on the front porch involves a factual finding, so the standardof proof beyond a reasonable doubt does not apply.

The question on appeal is whether the trial judge made a palpable and overridingerror in this factual finding. [24] The trial judge was aware of the accused’s argument in this regard, and he addressed it in his reasons (see paras 24-26). He referenced the other evidence that supported the finding that the accused was, in fact, on the front porch at that time, notwithstandingthe dash cam recording. All three officers testified that they saw a man on the front porch during that time. The evidence, including theaccused’s video statement, showed that only he and his wife were in the house during the incidents.

The officer provided an explanationfor the lack of clarity in the dash cam recording, which the trial judge accepted. [25] In my view, there was ample evidence to support the trial judge’s finding that it was the accused who was on the frontporch during that time, and he made no palpable and overriding error in so finding. (ii)

Interpretation of the Words “Their Heads” [26] The accused’s position on this issue is summarized in his factum as follows: . . .

Given the level of intoxication, given the discomfort that the [accused] was in, given that the fact that the [accused] had beenmanhandled, wrestled to the ground, handcuffed in an uncomfortable position and given that the [accused] suffers from a variety ofphysical ailments, it is an error at law to conclude beyond a reasonable doubt – as the Learned Trial Judge did -- that the [accused] wastalking about scaring police officers and not coyotes as it is impossible to be confident beyond a reasonable doubt as to what the[accused] was talking about. . . . [27] The trial judge found that he did not believe the accused’s explanation for discharging the firearm.

He said that theaccused “came up with the explanation, after the incidents occurred as part of his effort to minimize the severity of the matter after hewas arrested” (at para 55; see, also, para 52(e)). [28] The trial judge’s finding that the accused was referring to police officers and not to coyotes was a factual finding. Again, the standard of proof beyond a reasonable doubt does not apply; the issue on appeal is whether the trial judge made a palpableand overriding error in so finding. [29] The trial judge considered the accused’s argument at trial on this issue.

As he noted, the accused made this statement toCst. Johnson at the time of his arrest. The explanation about the coyotes only came up later, during the accused’s video statement. Constable Johnson explained that, prior to making this statement, the accused had been asking about why the police were on hisproperty and stating that they should not have been there, so Cst. Johnson was confident that the statement which followed aboutshooting “above their heads” was a reference to police, not to coyotes. Further, Cst.

Crone testified that it was a quiet night and he didnot hear any animal sounds or dogs barking during the time that he was lying beside the grain silo, before the 2:30 a.m. firearmdischarge. [30] The issues about the accused’s intoxication, discomfort after being handcuffed behind his back and his generalcondition following his arrest were all put to Cst. Johnson in cross-examination, and he responded to them.

Further, they were addressedby the trial judge in his reasons. [31] In my view, there was ample evidence to support the trial judge’s finding that the reference to “[shooting] above theirheads” was a reference to the police officers and not to coyotes, and he did not make any palpable and overriding errors in so finding.

(iii) The Accused Knew the Police Officers Were on the Property at2:30 a.m. [32] The accused argues that there was no evidence to support the trial judge’s finding that he knew that the police were onthe property at 2:30 a.m., and his finding was no more than speculation. [33] The determination of whether the accused knew that police officers were on the property at 2:30 a.m. is a factualinference.

Thus, as explained earlier, on appeal, it is reviewed on the standard of palpable and overriding error. [34] Having accepted that the accused’s statement that he “shot above their heads to scare them off [the] property” at 2:30a.m. was a reference to police officers (at para 52(e)), it follows that the accused must have believed that the police officers were on theproperty at that time; otherwise, the explanation makes no sense. [35] That inference is consistent with all of the other evidence that the trial judge accepted.

The accused knew that policeofficers were on the property at 10:15 p.m. to answer a 911 call. He saw the police vehicles at the gate at that time, with the headlightson. He saw them running from the area after he took a shot near them.

He knew that, when the officers left, the police car remained atthe gate, with the headlights on, and it was still there at 2:30 a.m. [36] In my view, there is ample evidence to support the finding that the accused knew, at 2:30 a.m., that police officers wereon the property, and the trial judge made no palpable and overriding error in so finding. (iv) Elements of Careless Use of a Firearm [37] The accused argues that, because he does not appear on the dash cam recording at 10:18 p.m., the trial judge shouldhave had a reasonable doubt that the actus reus of the offence regarding the 10:18 p.m. firearm discharge was proven; that is, the trialjudge should have had a reasonable doubt that the accused discharged a firearm at that time. [38] As explained earlier, the trial judge made no palpable and overriding error in accepting the testimony of the policeofficers, as otherwise supported by the dash cam recording, that the accused was on the front porch at that time, despite the fact that hecannot be seen on the dash cam recording.

The evidence was that there were only two people, apart from the police officers, on theproperty at the time. The accused agreed, in his video statement, that the dash cam recording shows, at one point in time, one of thepeople with a beard, and he identified both himself and his wife in that recording.

Thus, there is no basis for the argument that the trialjudge erred in finding, beyond a reasonable doubt, that the accused discharged the firearm at 10:18 p.m. and that the actus reus of theoffence of careless use of a firearm was proven beyond a reasonable doubt. [39] The accused argues that the trial judge erred in finding that the mens rea for the 2:30 a.m. firearm discharge offencehad been proven beyond a reasonable doubt because he erred in finding that the accused knew that police officers were present on theproperty at 2:30 a.m.

He further argues that the trial judge erred in finding that the reference to shooting over “their heads” referred tothe police officers and not to coyotes. I have already explained why, in my view, the trial judge did not err in these factual findings. As aresult, I am of the view that there is no basis for the accused’s argument that the trial judge erred in finding, beyond a reasonable doubt,that the accused had the required mens rea in relation to the 2:30 a.m. offence of careless use of a firearm and that the offence wasproven beyond a reasonable doubt. (

v) Failure to Apply the Appropriate Standard of Guilt Beyond a Reasonable Doubt [40] The accused argues that the trial judge failed to apply the appropriate standard of guilt beyond a reasonable doubt as aresult of making factual findings that were not supported by the evidence. This argument relates to the trial judge’s factual findingsregarding the meaning of the words “their heads” and whether the accused knew that police officers were on the property at 2:30 a.m.

He states that “it is a contravention of the [principle] of reasonable doubt to find that ‘their’ was a reference to the RCMP membersattending the scene on June 30 and July 1, 2018”. [41] As noted above, this argument reflects a misunderstanding of the application of the principle of proof beyond areasonable doubt. These two findings were factual findings. Neither of them was, by itself, an element of the offences or, alone,determinative of elements of the offences.

Rather, they were factual findings to be considered, together with all of the other facts, todetermine whether the elements of the offences had been proven beyond a reasonable doubt. Thus, neither of these facts had to beproven beyond a reasonable doubt. [42] The trial judge correctly understood that the accused was challenging the factual findings and inferences to be drawnfrom the evidence. He weighed the challenged evidence, together with all of the other evidence, to make factual findings and to drawconclusions or inferences as to the

interpretation of that evidence. Further, the trial judge correctly stated that he must “assess whetherthe Crown has proven the elements of the charges beyond a reasonable doubt” (at para 54). In my view, he did not err by failing to applythe appropriate standard of proof beyond a reasonable doubt in the manner alleged by the accused. (vi) Error in Applying the Facts to the Law [43] The accused argues that the trial judge misapplied the third step of the formulation in R v W(D),

(SCC) , [1991] 1 SCR 742 at 757-58, by accepting evidence as having been proven beyond a reasonable doubt when it was unreasonable to accept that evidence. [ 44 ] This argument is based on the earlier argument that the trial judge’s findings regarding the words “their heads” and the accused’s knowledge that the police were on the property at 2:30 a.m. were made in error. For the reasons set out above, in my view, the trial judge did not err in his factual findings.

As a result, there is no basis for this ground of appeal. (vii) Conclusion Regarding the Accused’s Conviction Appeal [ 45 ] For these reasons, I would dismiss the accused’s appeal from conviction. IV. THE ACCUSED’S SENTENCE APPEAL [ 46 ] The accused raises three grounds of appeal in relation to the sentences for the careless use of a firearm: (

i) the trial judge misapplied the law by concluding that a conditional sentence was not appropriate; (ii) the trial judge misapplied the law by failing to consider the unnecessary and unduly harsh pre-trial punishment resulting from the no-contact term of his bail conditions; and (iii) the trial judge failed to take into account the accused’s health challenges when sentencing him to a period of incarceration.

He also filed new evidence regarding events that occurred post-conviction, arguing that they would have impacted the trial judge’s sentence. [ 47 ] The Supreme Court of Canada has stated and re-stated the very high standard of review on a sentence appeal, being one of deference to the decision of the trial judge. (See R v Nasogaluak , 2010 SCC 6 at para 46 ; R v Lacasse , 2015 SCC 64 at paras 36-55 ; R v Suter , 2018 SCC 34 at para 23 ; R v Friesen , 2020 SCC 9 at paras 25-29 ; and R v Parranto , 2021 SCC 46 at paras 9-41 .) The standard is explained in R v Mazhari-Ravesh , 2022 MBCA 63 at paras 169-74 .

As was summarized in Mazhari-Ravesh , an appellate court can only interfere with a sentence that is demonstrably unfit, or where the sentencing judge commits an error in principle, fails to consider a relevant factor, or erroneously considers an aggravating or mitigating factor and such an error has an impact on the sentence.

If such an error is found, the appellate court can set aside the sentence and impose a fit sentence, but in so doing, it must defer to the sentencing judge’s findings of fact and aggravating and mitigating circumstances, unless they are affected by an error in principle (see para 170). [ 48 ] Before considering the accused’s grounds of appeal, I would note that this Court has stated that “[t]he jurisprudence clearly establishes that firearm-related offences are serious crimes . . . and that for these type of offences, denunciation and general deterrence are the most important sentencing considerations” ( R v McMillan (BW) , 2016 MBCA 12 at para 12 ). (See, also, R v Morrisey , 2000 SCC 39 at para 54 ; and R v Kennedy , 2016 MBCA 5 at para 60 .) This means that, “while factors personal to the accused remain relevant, they necessarily take on a lesser role” ( McMillan at para 12 ). (See, also, R v Nur , 2013 ONCA 677 at para 107 .) The trial judge correctly adopted and applied this direction in his weighing of the circumstances of the accused and those of the offences.

It is for this reason that less weight was given to the circumstances of the accused and more to the circumstances of the offences, which is in accordance with the law, rather than an error of law. (

i) Error in Failing to Impose a Conditional Sentence [ 49 ] The accused explains his position as “the [trial judge] erred at law in refusing to grant the [accused] a conditional sentence based on what appears to be the erroneous conclusion that Parliament wished to preclude persons in the [accused’s] position from receiving a conditional sentence.” He further argues that “common sense and the law dictate that a conditional sentence is the fit and appropriate disposition”, given his background and lack of criminal record. [ 50 ] The accused is not arguing that the trial judge applied the wrong law, being that set out in R v Proulx , 2000 SCC 5 ; his argument appears to be that he misapplied the law by interpreting it as precluding persons in the accused’s position, i.e., the accused’s circumstances, from receiving a conditional sentence.

I do not read the trial judge’s reasons as interpreting the law in this way. [ 51 ] After considering the four criteria relevant to granting a conditional sentence order, as stated in Proulx at para 46 , the trial judge found that the first three criteria were met and the application was to be determined on the basis of the fourth criterion, being that “a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2” ( ibid ). [ 52 ] The trial judge recognized that the primary sentencing principles applicable in this case were denunciation and deterrence, as set out in McMillan . (See McMillan at para 12 ; and para 48 herein.) He considered all of the aggravating and mitigating circumstances, including the accused’s personal circumstances, but, in the end, the fact that the accused was endangering police officers who were carrying out their duties, thereby jeopardizing their safety, was given significant weight. [ 53 ] He found that a conditional sentence order would not be consistent with the principles of sentencing because the offences involved conduct that jeopardized the safety of police officers acting in the course of their duty to conduct a well-being check.

He then found that “a suspended sentence or a conditional sentence order is not appropriate in the circumstances of this case”. [ 54 ] The accused’s argument really amounts to a challenge to the trial judge’s weighing of the aggravating and mitigating factors, including his personal circumstances. The trial judge’s weighing of the factors and circumstances is to be given significant deference on appeal (see Lacasse at para 49 ).

In my view, the trial judge’s decision not to grant either a suspended sentence or a conditional sentence order was reasonable and, in fact, it was correct. (ii) The Failure to Consider Restrictive Pre-Trial Bail Conditions [ 55 ] The accused was arrested on July 1, 2018, and released on conditions on July 4, 2018. One of those conditions was that he not reside with his wife, which resulted in her moving out of their residence. The condition was imposed because the accused was charged on July 1, 2018 with assaulting her on June 30, 2018. The condition remained in effect until January 25, 2021.

[56] The accused’s position is as follows: . . . . . . As a result of [the] no-contact clause, [the accused’s wife] was not able to live at her home for a period of 30 months. This was aform of punishment that devastated both the [accused] and [the accused’s wife] and served no useful purpose and did not advance anyprosecutorial interest. The [accused] submits that the [trial judge] erred in law by not taking this punishment into account when hesentenced the [accused]. . . . [57] The effect of bail conditions on a sentence was explained by this Court in McMillan at paras 27-29.

The Court stated (atpara 28): . . . [B]ail is not jail. Unlike pre-sentence custody, there is no entitlement to a credit for time spent on bail. However, if there isevidence that stringent bail conditions resulted in a significant hardship, a judge can take it into account when determining the sentence. [58] The accused acknowledges that the condition was reasonable when it was imposed, but he argues that it becameunreasonable once the Crown did not pursue the assault charge at the preliminary inquiry on August 26, 2020.

The Crown’s positionwas that it was calling the accused’s wife as a witness on the firearms charges, so it refused to consent to the removal of the conditionuntil after it interviewed her and determined that she would not be a witness. [59] The trial judge was clearly aware of the non-contact condition, its effect on the accused, and this argument, as hereferenced them in his reasons.

This demonstrates that the trial judge took these circumstances into account in determining theappropriate sentence. [60] In my view, this is, again, an argument with the trial judge’s weighing of the accused’s circumstances, rather than anerror of law due to the failure to take those circumstances into account.

As already noted, the trial judge’s weighing of mitigatingfactors, like bail conditions, is reviewed on a deferential standard and, in my view, the trial judge did not err as alleged by the accused. (iii) Failure to Take Into Account the Accused’s Health Condition [61] Prior to sentencing, the accused filed an affidavit outlining his several serious health problems, which, he argued,militated in favour of a community-based sentence.

The trial judge was aware of this information, as it was specifically referenced in hisreasons, so he clearly took it into account when determining the appropriate sentence. [62] In my view, this is, again, a challenge to the trial judge’s weighing of the mitigating and aggravating factors and of thecircumstances of the accused and the offences, rather than a failure to take these circumstances into account.

I am of the view that he didnot err as is alleged by the accused. (iv) Post-Sentence Circumstances and Fresh Evidence [63] This issue arises from the accused’s proposed fresh evidence, which the Crown challenges as being inadmissible andunreliable.

Both parties agree, as do I, that the admissibility of this evidence is to be determined by the application of the test in Palmerv The Queen, (SCC), [1980] 1 SCR 759 at 775. [64] The accused argues that, had the trial judge known that his health would be jeopardized by a custodial sentence, asexplained in his proposed fresh evidence, he would have ordered a conditional sentence, rather than a custodial one. The Crown’sposition is that the evidence is not sufficiently reliable to be admitted and that, even if it is admitted, it is not sufficiently credible orreliable to be given any weight.

It argues further that there is nothing in the trial judge’s reasons to suggest that the post-convictioninformation would have impacted the sentence that was imposed. [65] The mistreatment at issue, as described in the accused’s proposed affidavit, consists of allegations that he was notprovided his prescription medication while in custody between his sentencing on June 23, 2021, and his release pending appeal on July8, 2021.

He says that this resulted in pain, discomfort and a deterioration in his physical condition. [66] In reply, the Crown proposes to file an affidavit affirmed by a nurse who had worked at both facilities at which theaccused was held, together with a transcript of her cross-examination by defence counsel. The accused challenged the admissibility ofthis evidence on the basis that it was opinion evidence and the witness had not been qualified as an expert.

The witness was testifying asto matters within her knowledge based on her training and experience as a registered nurse at the Winnipeg Remand Centre and as thehealth services supervisor at the Headingley Correctional Centre. In my view, it is admissible on that basis. [67] The Crown chose not to cross-examine the accused on his affidavit. While the Crown’s evidence provides institutionalinformation that challenges the accused’s evidence, in my view, the issue is really that of what weight should be given to the accused’sevidence, rather than whether it should be admitted.

Thus, I would grant the accused’s motion to admit fresh evidence in part and admit

the accused’s affidavit, together with the nurse’s affidavit and the transcript of the cross-examination. [68] While the accused alleged, in his affidavit, that he did not receive any of his medications, the nurse providedinstitutional records that indicate otherwise. The records show that the accused was seen by doctors following his admission, and thathis medications were ordered and administered on a daily basis.

The only exception relates to certain anti-inflammatory medication andanalgesics, which, according to the nurse’s evidence, are available but not, generally, in the same strengths as those prescribed to theaccused. Further, the nurse stated that the daily records at the institutions do not reflect the severity of the accused’s condition asdescribed in his affidavit. [69] The accused’s evidence is not supported by the institutional records, and, in my view, it is entitled to little weight.

Moreover, even if the accused’s allegations are true, the issue of the administration of medications is to be determined by the institution. The accused was in custody for a relatively short period of time, and there was insufficient information to establish that those issueswould not be resolved were he to be sentenced to a term of incarceration.

For example, a letter from the accused’s doctor to theinstitution regarding his medical condition and medications only arrived there on the date of the accused’s release, so it was notconsidered by the medical staff at the institution in relation to his treatment and care. [70] The trial judge took into account the accused’s “serious health problems” when sentencing him.

When the informationregarding the medication issues is considered in the context of the trial judge’s reasons for sentence, I am of the view that this evidencewould not have had sufficient impact to change the trial judge’s 18-month incarceratory sentences into either conditional or suspendedsentences. (

v) Conclusion—Sentence Appeal [71] For these reasons, I would grant the accused leave to appeal his sentence, but I would dismiss his appeal of thesentences of incarceration on the convictions for careless use of a firearm and of the trial judge’s refusal to grant either a conditional orsuspended sentence. V. THE CROWN’S APPEAL—RECKLESS DISCHARGE OF A FIREARM The Parties’ Positions [72] The Crown is appealing the acquittal on the charge of reckless discharge of a firearm under

section 244.2(1)(

b) relatedto the 2:30 a.m. firearm discharge. The Crown is not challenging any of the trial judge’s findings of fact.

Its position is that the trialjudge erred in law when applying those facts to the mens rea element of the offence in relation to the 2:30 a.m. firearm discharge, whendetermining whether the accused was reckless as to the lives and safety of others. [73] The accused’s position is that the trial judge did not err in the manner alleged by the Crown. [74] An error of law is reviewed, on appeal, on the standard of correctness (see Housen at para 8; R v DAI, 2012 SCC 5 atpara 89; R v Le, 2019 SCC 34 at para 23; R v Samaniego, 2022 SCC 9 at para 148).

The Trial Judge’s Decision [75] The essence of the trial judge’s decision, as it relates to the Crown’s appeal, is as follows (at para 78): Constable Crone’s evidence is that he was invisible in the area that he was stationed and it was dark. I accept that [the accused]knew that the police cruiser remained in the driveway 100 meters west of the porch on the [p]roperty with the lights on and that he knewthat the police would return to the [p]roperty at some point.

However, I am not satisfied beyond a reasonable doubt that [the accused]knew or appreciated there was a risk he was discharging his firearm in the direction of or near police officers or Cst. Crone when hedischarged the firearm at 2:30 a.m. In my view, the evidence is insufficient to prove beyond a reasonable doubt that [the accused’s]discharge of the firearm was reckless as to the life or safety of another person. The Law—Recklessness [76] The Crown’s appeal raises the question of whether the trial judge erred in determining that the accused was not recklesswithin

section 244.2(1)(b). While there is some appellate jurisprudence that considers the element of recklessness in this offence, thereis none that analyzes it thoroughly, so I will begin my analysis with a review of the general law regarding recklessness. This often startswith Dickson J’s decision in Leary v The Queen, (SCC), [1978] 1 SCR 29 (in the minority, but not on this point) (at pp34-35): . . . . . . The mental state basic to criminal liability consists in most crimes in either (

a) an intention to cause the actus reus of the crime,

i.e. an intention to do the act which constitutes the crime in question, or (

b) foresight or realization on the part of the person that hisconduct will probably cause or may cause the actus reus, together with assumption of or indifference to a risk, which in all of thecircumstances is substantial or unjustifiable. This latter mental element is sometimes characterized as recklessness. . . . Parenthetically, when the risk is substantial and unjustifiable, proof of recklessness necessary to constitute the mental elementessential to criminal responsibility may be readily satisfied. This is exemplified in the crime of rape.

The harm to be anticipated fromacting upon the mistaken belief that the woman is consenting is very great whereas that which may be lost in failing to act is slight. Therisk then is both substantial and unjustifiable.

The conscious creation of risk in these circumstances in acting with indifference to thepossibility of non-consent is compatible with recklessness constituting mens rea. . . . [77] There is a wide gap in the degree of risk between conduct that “will probably cause” and that which “may cause” aprohibited result (at para 34), but this seems to be addressed by the consideration of whether the risk is substantial or unjustified. Dickson J indicates that the mental element of recklessness will be more readily satisfied if the potential for harm is substantial andunjustified—in other words, “very great” (at para 35).

He concludes by finding that, for the offence of rape, the degree of risk that iscompatible with recklessness is that of a possibility that the prohibited result (non-consensual sex) will occur, which is a low degree ofrisk. [78] The most often-cited definition of recklessness is that found in Sansregret v The Queen, (SCC), [1985]1 SCR 570, which was another case of rape. McIntyre J, for the Court, stated (at p 582): . . . In accordance with well-established principles for the determination of criminal liability, recklessness, to form a part of thecriminal mens rea, must have an element of the subjective.

It is found in the attitude of one who, aware that there is danger that hisconduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk.

It is, in other words, theconduct of one who sees the risk and who takes the chance . . . . . . [emphasis added] [79] There is no discussion of either the degree of risk or “substantial or unjustifiable” risk (Leary at p 34), but the test of a“danger that [their] conduct could bring about the [prohibited] result” (Sansregret at p 582) (emphasis added) is consistent with thelower degree of risk of “may cause” or “possibility” in Leary at pp 34-35.

This would follow from the fact that both cases involved rape,which Dickson J found, in Leary, involved harm that was both substantial and unjustified. [80] In Regina v Buzzanga and Durocher (1979), (ON CA), 49 CCC (2d) 369 (Ont CA), the accusedwere appealing their convictions for wilfully promoting hatred.

The Ontario Court of Appeal found that recklessness denotes “thesubjective state of mind of a person who foresees that his conduct may cause the prohibited result but, nevertheless, takes a deliberateand unjustifiable risk of bringing it about” (at p 379; see also pp 386-87) (emphasis added). [81] In R v Czibulka (2004), (ON CA), 189 CCC (3d) 199 (Ont CA), leave to appeal to SCC refused,30621 (19 May 2005), Rosenberg JA, for the Court, recognized that the Sansregret definition of recklessness, while appropriate in thecontext of a sexual assault, was not consistent with the elements for murder under

section 229(a)(ii). This was because the statutorydefinition for murder required foresight of the “likelihood of death” (at para 67) arising from the conduct, which was not the same as the“danger” that the conduct could cause death (at paras 66, 68). [82] In R v Hamilton, 2005 SCC 47, the accused was charged under

section 464 of the Criminal Code with counselling thecommission of indictable offences not committed. The indictable offences all related to advertisements sent by the accused to specificemail addresses for the sale of automatic credit card number generators and instructions on how to make bombs, to break into a houseand to hack a Visa.

The issue was whether the counsellor (i.e., the accused) had to intend that the counselled offence be committed orwhether it was sufficient if they were reckless as to those consequences (see paras 2, 47). [83] Charron J, for the minority, was of the view that the mens rea requirement should not include recklessness, herreasoning being that the result of widening the scope of the offence to include recklessness risked encroaching on freedom of speech by“criminalizing” otherwise lawful behaviour like “legitimate forms of protest, advocacy or dissent and, arguably, even the reproductionand distribution, for historical or teaching purposes, of classic texts” (at para 79). [84] While finding that the mens rea did include recklessness, Fish J, for the majority, relied on Leary and adopted the“‘substantial and unjustified risk’ standard” (at para 28) for determining recklessness.

He stated that “the mens rea consists in nothingless than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling” (at para 29). He also adopted the higher degree of risk referred to in Leary, finding that the mens rea was knowingly counselling the commission ofthe offence while aware of the unjustified risk (i.e., danger) “that the offence counselled was in fact likely to be committed as a result ofthe accused’s conduct” (ibid) (emphasis added).

[ 85 ] Fish J recognized that this was a relatively demanding standard.

He noted the different standard in Sansregret and the academic commentary regarding the varying degrees of risk that have been applied, including “‘uncertainty, probability, likelihood (and) possibility’” (at para 32), but he rejected the opportunity to reconcile the jurisprudence or reconsider the governing principles (see paras 30-33). [ 86 ] Morris Manning & Peter Sankoff, Manning, Mewett & Sankoff: Criminal Law , 5th ed (Markham: LexisNexis, 2015), explain recklessness as an accused who “knew a prohibited consequence might be the result of their conduct and chose freely to act in that manner notwithstanding” (at para 4.75) (underlining added) and then raise the issue of the degree of risk (at para 4.76): However sound the approach [to recklessness] might be, it raises an important question about the degree of probability of certain consequences materializing that the accused believes will occur, which may range from certain — which will qualify as intentional — to almost certain, to possible but unlikely, to highly unlikely.

If the criminal law is to avoid punishing the morally innocent, surely there must be a point on the sliding scale from inevitability to possibility below which it is not appropriate to impose criminal liability because the risk of a particular consequence occurring is not sufficiently foreseeable. [ 87 ] In Deslauriers c R , 2020 QCCA 484 , the Court was considering the mens rea of recklessness in the context of

section 244.2(1) (

b) and a shooting by a police officer. Chamberland JA, for the Court on this point, referenced two different

interpretations of recklessness, one being that the justification for the risk was included in the mens rea , and the other being that it was to be raised as a separate defence. In that case, the accused had raised the separate defence of justification under

section 25. Chamberland JA described the two

interpretations of recklessness as follows (at paras 14-15): . . . For some authors, the mens rea , which is one of general intent, is double-barrelled, comprising a subjective component and an objective component. The accused is aware that there is a risk his conduct could bring about the prohibited result (subjective) and he nevertheless runs the risk without doing so being justified in the circumstances (objective). In short, there is awareness of the risk that the conduct may bring about a prohibited result and, in addition, the risk taken is unjustified in light of the circumstances. . . .

For other authors, there is mens rea when the accused is aware that there is a risk his conduct could bring about the prohibited result and he nevertheless runs the risk.

The fact that his conduct is justified in light of the circumstances forms part of the defences the accused could raise, such as self defence or, as in the case at bar, the defence of justification codified in s. 25 [of the Criminal Code ]. [italics added] [ 88 ] In the end, he found that he did not have to resolve the divergent views because the trial judge had addressed the issue of justification in her reasons, albeit as a defence. [ 89 ] These issues have recently been considered by the Supreme Court in R v Zora , 2020 SCC 14 , in the context of determining whether the applicable mens rea for failing to comply with bail conditions under section 145(3) of the Criminal Code was subjective or objective (see para 3).

Martin J, for the Court, found that it was subjective and included recklessness, being an awareness of the risk that the prohibited result could arise from their actions and of the underlying facts that give rise to the risk. [ 90 ] Martin J adopted the definition of recklessness in Sansregret (see Zora at para 117 ) and then stated (at para 118): Given that s. 145(3) can operate to criminalize otherwise lawful day-to-day behaviour, I would conclude that knowledge of any risk of non-compliance is not sufficient to establish that an accused was reckless.

Instead, the accused must be aware that their continued conduct creates a substantial and unjustified risk of non-compliance with their bail conditions. This Court has previously adopted this standard of risk in describing recklessness for certain offences ( see [ Hamilton ] at paras. 27-29 ; [ Leary ] at p. 35 (per Dickson J., dissenting, but not on this point)). . . . [ 91 ] She went on to explain the criteria of “substantial” and “unjustified” as follows ( ibid ): . . . The risk cannot be far-fetched, trivial, or de minimis .

The extent of the risk, as well as the nature of harm, the social value in the risk, and the ease with which the risk could be avoided, are all relevant considerations (Manning and Sankoff, at p. 229). Although the trial judge will assess whether a risk is unjustified based on the above considerations, because recklessness is a subjective standard, the focus must be on whether the accused was aware of the substantial risk they took and any of the factors that contribute to the risk being unjustified.

[92] Manning & Sankoff state that the determination of whether the risk was “unjustifiable” is determined on an objectivestandard and does not take into account the accused’s view of whether the risk was worth taking (at paras 4.79-4.80; see also Deslauriersat para 14). They explain the advantages of this approach as follows (at para 4.81): . . . The approach recognizes that some form of risk-taking may be extremely low in terms of likelihood of occurrence, butnonetheless be reckless because of the potential gravity of harm being posed.

A test that takes a combination of factors into account canconsider all relevant matters. [93] The approach that recognizes an inverse relationship between the gravity of the harm and the likelihood of theoccurrence of the harm (i.e., the degree of risk, or likelihood, that the outcome will materialize) is found in other contexts, so that, forexample, there is endangerment even if the risk of the harm actually occurring is slight when the gravity of the potential harm is great. (See, for example, R v Thornton, (ON CA), 1991 CarswellOnt 6040 at paras 26-27 (CA), aff’d (SCC), [1993] 2 SCR 445; and R v Mabior, 2012 SCC 47 at para 92.) [94] Zora was considered by a five-member panel of the Quebec Court of Appeal in Narinesingh c R, 2021 QCCA 396, inthe context of the accused’s appeal of two convictions under the Controlled Drugs and Substances Act, SC 1996, c 19, for importingheroin.

Two of the issues were whether the accused had to know that the illegally imported drug was heroin (as particularized in thecharge) or whether it was sufficient if she knew that she was importing an illegal substance (see para 5); and whether knowledgeincluded recklessness. In a unanimous decision, the Court explained Zora as follows (at paras 53-55): In Zora, the Supreme Court characterized recklessness differently within the context of the offence of failing to comply with bailconditions, by attributing a greater level of intensity [i.e., a higher level of recklessness] to it.

Recklessness thus requires that the personbe “aware that their continued conduct creates a substantial and unjustified risk of non-compliance with their bail conditions . . .”: [Zoraat] para. 118. However, Martin, J., speaking for the Court, specified that “these reasons should not be interpreted as changing the general principlesof recklessness as a fault element set out in Sansregret, as my description of recklessness is specific to the offence under s. 145(3)”:[Zora at] para. 119.

In Hamilton, Fish J., writing for the majority of the Supreme Court, observed that, in Sansregret, the Court did notset out the degree of risk identified in that case and required to attract the criminal sanctions: [Hamilton at] para. 32. As applied to the possession of illegal drugs, recklessness must be understood to refer to the fact that the individual is aware of therisk that he or she may be in possession of illegal drugs but perseveres notwithstanding this risk.

Provided the risk is not far-fetched,trivial, or de minimis, but rather “substantial and unjustified”: [Zora at] para. 118, it can lead to the inference that the accused has theknowledge required within the meaning of McClelland [McClelland c R, 2020 QCCA 324] and Rathod [R c Rathod, 1993 CarswellQue387 (CA)]. [emphasis added] [95] McClelland c R, 2020 QCCA 324; and R c Rathod, 1993 CarswellQue 387 (CA), determined that the requiredknowledge was that the substance being imported was illegal drugs, but not the exact nature of the illegally imported drugs—i.e., heroin(see Narinesingh at paras 35-39). [96] From these cases, I would draw the following conclusions: - Generally speaking, the recklessness would require that the accused was aware of the danger (i.e., risk) that his conduct, incircumstances known to him, could have brought about the result prohibited by the criminal law, but proceeded with that conduct,despite the risk—this is the Sansregret definition. - A modification to the definition of recklessness may be required by the definition of the offence.

For example, under section229(a)(ii), an accused must mean “to cause . . . bodily harm that . . . is likely to cause . . . death”, so an accused must be aware that hisconduct is likely to cause death; being aware that there is a danger that his conduct could bring about death is not sufficient. (SeeCzibulka at paras 66-68). - Where the conduct at issue is lawful day-to-day behaviour, knowledge of any risk that that conduct could cause the prohibitedresult is not sufficient to establish recklessness.

The accused must be aware that his conduct creates a substantial and unjustified risk ofcausing that result. (See Hamilton; and Zora.) - Whether the risk is substantial and unjustified is determined on an objective basis, although the accused must have knowledgeof the facts that make it so. (See Manning & Sankoff; Deslauriers; and Zora.) - Substantial risk is defined as not “far-fetched, trivial, or de minimis” (Zora at para 118). Whether the risk is unjustifiedrequires a consideration of the extent (degree) of risk, the nature of the harm, the social value in the risk, and the ease with which the risk

could be avoided. (See Zora.) [97] Whether the criteria of “substantial and unjustified” apply in all cases where recklessness is at issue has been raised inthe jurisprudence, but not determined. I, as well, would decline to determine that larger issue. [98] Examples in the jurisprudence help to explain the application of these principles. In Leary, Dickson J stated that theharm from acting (having intercourse) upon the mistaken belief that a woman is consenting is very great, while the result of failing to actis slight.

He concluded that the risk was both substantial and unjustified, so that consciously acting to create risk with indifference to thepossibility that the harm would materialize would be compatible with recklessness. [99] In Zora, Martin J stated that, when required to answer the door, an accused would not be reckless for taking the minimaland justified risk of having a shower, but could be reckless for disconnecting the doorbell or wearing earplugs (see para 119). [100] Manning & Sankoff explain that there may be a minimal risk of hitting someone by shooting at him from 500 metersaway while fooling around, but the nature of the risk is extremely high and there is no value to the activity, so the conduct may be foundto be reckless.

If the shooter believed that the target was a tree, he had no belief of risk at all and would not be reckless, no matter howgrave the risk. (See paras 4.80-4.81, 4.84.) [101] To prove recklessness, Martin J, in Zora, reminded us that (at para 120): . . . Courts may infer subjective fault for failure to comply charges, whether or not the accused decides to testify.

After consideringall the evidence, the trier of fact may be able to conclude beyond a reasonable doubt that the accused had the state of mind required forconviction based on the common sense inference that individuals “intend the natural and probable consequences of their actions” (R. v.Seymour, (SCC), [1996] 2 S.C.R. 252, at paras. 19 and 23; Docherty [R v Docherty, (SCC), [1989] 2SCR 941], at p. 958; Loutitt [R v Loutitt, 2011 ABQB 545], at para. 18). . . . (See, also, R v McRae, 2013 SCC 68 at paras 19-23.)

Section 244.2 of the Criminal Code [102]

Section 244.2(1) states: Discharging firearm—recklessness 244.2(1) Every person commits an offence (

a) who intentionally discharges a firearm into or at a place, knowing that or being reckless as to whether another person ispresent in the place; or (

b) who intentionally discharges a firearm while being reckless as to the life or safety of another person. [103] The elements of the offence in

section 244.2(1)(

b) are: (

i) that the accused discharged a firearm; (ii) that the accused intended to discharge the firearm; and (iii) that in doing so, the accused was reckless as to the life or safety of another person. (See R v Vaillant, 2019 BCSC 2385 at para 66; and R c Lévesque, 2020 QCCQ 2373 at para 218.) [104] There is a significant body of jurisprudence that addresses legislation related to firearms, the use of firearms, and thedangerousness of firearms. [105] In Morrisey, Gonthier J, for the majority, quoting from R v Felowka, (SCC), [1993] 4 SCR 199 at 211,stated (at paras 43, 53): . . . [A] firearm always “presents the ultimate threat of death to those in its presence”. . . .

Firearms are not toys. There is no room for error when a trigger is pulled. If the gun is loaded, there is a sufficient probability

that any person in the line of fire could be killed. . . . [106] McLachlin CJC stated, in R v Nur, 2015 SCC 15, that “[g]un-related crime poses grave danger to Canadians” (at para 1)and “[f]irearms are inherently dangerous and the state is entitled to use sanctions to signal its disapproval of careless practices and todiscourage gun owners from making mistakes” (at para 83). [107] This Court noted in R v Harper (J), 2016 MBCA 64 (at para 39): Jurisprudence is replete with statements as to the dangerousness of firearms, which has supported Parliament’s increasingly stringentmeasures over the years to deal with offenders where such weapons are involved, including by prohibiting the possession and use ofsome firearms and ammunition, by setting up firearms registration regimes for other firearms and by enacting separate firearms offenceswith mandatory minimum sentences. (See, for example, Attorney General of Canada v Pattison (1981), 1981 ABCA 98 , 30 AR83 (CA); McGuigan v The Queen, (SCC), [1982] 1 SCR 284; R v Schwartz, (SCC), [1988] 2 SCR 443;R v McDonald (C) (1998), (ON CA), 111 OAC 25; Reference re Firearms Act (Can), 2000 SCC 31, [2000] 1 SCR783; [Morrisey]; and R v Wust, 2000 SCC 18, [2000] 1 SCR 455). . . . [108]

Section 244.2 is part of those legislative measures to control gun use that include sections 86(1) and 244. It is arelatively new offence, having come into effect in October 2009 pursuant to Bill C-14,

An Act to amend the Criminal Code (organizedcrime and protection of justice system participants), SC 2009, c 22 (the Act). [109] According to the then Minister of Justice and Attorney General of Canada, the main goal in enacting the

section was to“target drive-by and other intentional shootings involving reckless disregard for the life or safety of others” (House of Commons Debates(Hansard), 40-2, vol 144, No 29 (12 March 2009) at 1687 (Hon Rob Nicholson). He explained that, because the already-existing section244 (discharging a firearm with intent) required proof that the accused discharged a firearm at a particular person with a specific intent tocause bodily harm, there had been difficulties in convicting offenders in circumstances where the accused discharged a firearm into abuilding or fired wildly without a particular target.

As a result, the Crown often had to accept convictions for the lesser, negligence-based offence of careless discharge of a firearm (under section 86(1)), which did not capture the seriousness of discharging a firearm incircumstances where it clearly would jeopardize the life or safety of another person.

Minister Nicholson explained that these provisionswere not, however, solely targeted at gang shootings, but were also meant to capture “any shooting which involves consciously recklessbehaviour” (at p 1688) (emphasis added). [110] In R v Itturiligaq, 2020 NUCA 6, Schutz JA, for the Court, was addressing the legality of the mandatory minimumsentences under

section 244.2, and she explained the legislation as follows (at paras 47-48): . . . At the time, [the Act] was colloquially referred to as the “gang bill” enacted in response to gang violence, and more specifically,drive-by shootings in larger Canadian cities. Its purpose was to create an offence that prohibited the intentional discharge of a firearm incircumstances where the shooter turned their mind to the fact that firing the gun could put the life or safety of other persons at risk.

The new provision was aimed at filling a gap in the Criminal Code regime, where previously drive-by shootings or the like couldonly be prosecuted under s 86, a negligence-based careless use of a firearm offence, or s 244, discharging a firearm with intent requiringproof the firearm was discharged at a particular person with intent to cause bodily harm (and which also carries a four year mandatoryminimum sentence).

The mandatory minimum punishments prescribed under s 244.2 were Parliament’s response not only to organizedcrime, but were targeted at the deliberate and dangerous conduct of firing a gun into an open space or place (building, structure, vehicleor the like) knowing, or being reckless at to whether, others may be present. (See, also, R v Oud, 2016 BCCA 332 at para 33; and R v Hills, 2020 ABCA 263 at paras 32-35.) Recklessness Under

Section 244.2(1)(b) [111] As noted earlier, this is a relatively new section, so there are no appellate decisions that have thoroughly analyzed itselement of recklessness in the provision and only two that have considered it. Most trial court decisions involve pleas and deal withsentencing. There are two things to keep in mind when reading the jurisprudence. First, many of the appeals are Crown appeals ofacquittals, so the trial judge’s fact findings must be respected, whether or not they are correct. Second, many of the decisions makecomments about this

section in the context of dealing with charges under

section 244.2(1)(a). The elements of the two sections aredifferent, so the decisions must be read with care. [112] In R v Côté, 2018 QCCA 1153, the accused was acquitted of reckless discharge of a firearm under

section 244.2(1)(b). The Court stated (at para 15): [TRANSLATION] . . . The judge reviewed the respondent’s state of mind and his testimony and concluded that he knew he could

discharge his gun into the sand, knowing that the projectiles could not ricochet. [113] It then cited the facts, as found by the trial judge (at para 17): [TRANSLATION] . . . After analyzing all the photos showing the scene, the Court is convinced that the place where the accused fired the rifle is an isolatedplace, even inaccessible. The accused knows that there cannot be people on the right or on the left or he shoots in front of the garage. His field of vision is clear. No evidence to the contrary has been made and presented to the Court on this aspect.

The only version wehave is that of the accused and the father which allows the Court to conclude that the accused fired three (3) shots from inside the garagetowards a specific place, the sand near a tree, a place chosen by the accused because of his knowledge of the handling of weapons. This is not a place where others could be, the accused knows that he is the only one, that his parents are in the house. He made severalround trips from the house to the garage. He masters the places and the environment. He knows who is on the field.

It appears from thetestimony of the accused and his parents that he is not dangerous and that he had no intention of hurting or harming others that day. . . . [emphasis added] [114] While the Court found that the accused had not been reckless, the decision is based on specific facts that are significantlydifferent from those in the current case. [115] In Neth c R, 2018 QCCA 560, the Court rendered a short decision at the hearing, with little detail as to the facts at trial. The few facts that were referenced were that the accused saw people on a road who were running into the woods.

He stopped his vehicleand went into his trailer to get his gun, loaded the gun and then fired into the woods. There is no indication as to the time lapse,distances or other details. The trial judge had acquitted the accused on the charge under

section 244.2(1)(b), finding that the accused didnot know that there was a person in the woods when he fired, he convicted him of having possession of a gun for a dangerous purposeunder section 88(2) and careless use of a firearm under section 86(1). [116] The accused appealed his convictions, but the Crown did not appeal the acquittal. The Quebec Court of Appeal was leftwith the factual finding that the accused did not know that there were people in the woods when he fired (see para 5).

It found that thesame factual finding should apply to all of the charges, so it entered acquittals in place of the sections 88(2) and 86(1) convictions. There was no legal analysis of the element of recklessness in

section 244.2(1)(b). These are, again, not the facts in this case. [117] The trial judge in the present case referenced two decisions in his analysis of

section 244.2(1)(b), being Regina v Zimmer(1981), (BC CA), 60 CCC (2d) 190 (BCCA); and R v Breese, 2020 ONSC 6272. Zimmer pre-dated the enactment ofsection 244.2(1)(b), so it did not include any analysis of that offence. The fact that the accused in Zimmer was convicted of careless useof a firearm for shooting to scare the people does not mean that he would not also have been guilty of reckless discharge of a firearm, hadthat offence existed at the time.

Thus, that case is of little assistance in determining whether the accused had the required mens rea forreckless discharge of a firearm in the present case. [118] In Breese, the accused discharged a firearm inside a bank that he was robbing, in the presence of 10 or more people. Thetrial judge adopted the definition of recklessness in Sansregret and convicted the accused under

section 244.2(1). The analysis in Breeseon the issue of recklessness was very conclusory, and the facts are significantly different from those in the present case. Thus, it, as well,is of little use in determining whether the accused, in the very different facts in this case, was reckless. [119] My analysis will begin with the application of the underlying principles regarding recklessness, as set out earlier. [120] Under

section 244.2(1)(b), the Crown must prove, beyond a reasonable doubt, that, in intentionally discharging a firearm,the accused was reckless as to the life or safety of another person. Applying Sansregret, the Crown must prove that the accused knewthat there was a risk that his conduct (intentionally discharging the firearm in the circumstances known to him) could bring about theprohibited result (danger to the life or safety of another person) and he proceeded despite that risk. [121] There is nothing in the definition of the offence in

section 244.2(1)(

b) that requires a modification to the generaldefinition of recklessness in Sansregret. [122] Thus, applying the Sansregret definition of recklessness, the Crown must prove the following: - that the accused knew the facts and circumstances being relied upon to establish the recklessness; and - that the accused knew that there was a risk that his conduct, in those circumstances, could cause the prohibited result ofendangering the life or safety of other people and acted with indifference to that risk.

[ 123 ] Whether the risk was substantial and unjustified is determined objectively, although the accused must be aware of the factors that made it so. [ 124 ] If the substantial and unjustified criteria are applicable to

section 244.2(1)(b), the Court would apply the factors in Zora at para 118 to determine whether the risk of danger to the life or safety of another person caused by discharging the firearm, in the circumstances known to the accused, was substantial and unjustified. [ 125 ] In this case, the risk almost materialized, as the trial judge accepted that the pellets landed about 10 metres away from Cst. Crone. Thus, the risk of danger to the life or safety of another person was not far-fetched, trivial or de minimis .

Applying the Leary and Zora analyses, the harm to be anticipated from acting on the belief that one is discharging a firearm into the dark to scare police officers off the property and not knowing where they are situated is the harm of actually shooting one of them. This is clearly extremely serious or, to use the words in Leary , “very great” (at p 35). Doing so has no social value. Not only did discharging the firearm have no social value, but the trial judge found it to be unlawful, constituting careless use of a firearm under section 86(1) .

As there was no useful purpose to the firearm discharge, the risk could very easily have been avoided with no detriment at all. Thus, the risk of harm, in these circumstances, was both substantial and unjustified. Like in Leary , the conscious creation of risk in these circumstances and acting with indifference to the possibility of endangering the life or safety of another person is compatible with recklessness. [ 126 ] In my view, the standard or degree of risk required to constitute recklessness in this case would be at the low end of the range referred to by Manning & Sankoff, and also in Leary .

This would be consistent with the jurisprudence that underlines the seriousness of gun misuse and the parliamentary purpose of enacting the legislation, being to reduce gun violence. Analysis [ 127 ] The Crown’s appeal raises two issues: (1) did the trial judge err in law in his

interpretation of recklessness in

section 244.2(1)(b), and (2) did he err in law in his application of the facts to the element of recklessness. [ 128 ] Martin J, for the majority in R v Chung , 2020 SCC 8 , said the following regarding reviewable errors in Crown appeals (at paras 10-11): Under s. 676(1)(a), the Crown can only appeal an acquittal on a “question of law alone”. An appealable error must be traced to a question of law, rather than a question about how to weigh evidence and assess whether it meets the standard of proof ( R. v. J.M.H. , 2011 SCC 45 , [2011] 3 S.C.R. 197 , at paras. 25-27 ; R. v.

George , 2017 SCC 38 , [2017] 1 S.C.R. 1021 , at paras. 15-17 ). Therefore, the Crown cannot appeal merely because an acquittal is unreasonable ( R. v. Biniaris , 2000 SCC 15 , [2000] 1 S.C.R. 381 , at para. 33 ). Errors of law arise, for example, where “the legal effect of findings of fact or of undisputed facts raises a question of law” and where there is “an assessment of the evidence based on a wrong legal principle” ( J.M.H. , at paras. 28-30 ).

These two types of errors are somewhat similar; they both address errors where the trial judge’s application of the legal principles to the evidence demonstrates an erroneous understanding of the law, either because the trial judge finds all the facts necessary to meet the test but errs in law in its application, or assesses the evidence in a way that otherwise indicates a misapprehension of the law. (See also Hamilton at para 35 ; R v Koczab (A) , 2013 MBCA 43 at paras 3-10 ; Côté at paras 1-2, 18 ; and R v Billiard , 2021 NLCA 44 at paras 17-18 , 31-33.) (

i) Misapprehension of

Section 244.2(1)(b) [ 129 ] The trial judge stated, “I am not satisfied beyond a reasonable doubt that [the accused] knew or appreciated there was a risk he was discharging his firearm in the direction of or near police officers or Cst.

Crone when he discharged the firearm at 2:30 a.m.” (at para 78). [ 130 ] If this was only a finding of fact as to the accused’s knowledge, then, as noted above, this Court would have no jurisdiction to review it on a Crown appeal, as the Crown is limited to appealing questions of law, and this Court must accept all of the trial judge’s factual findings, whether correct or not. [ 131 ] That said, however, the finding, as a finding of fact, does not accord with the law, because, at law, the standard of proof beyond a reasonable doubt does not apply to individual findings or inferences of fact, but only to the elements of an offence.

As a finding of fact, it is not accorded any additional weight because the trial judge found that it had been proven beyond a reasonable doubt. Moreover, the more relevant finding of fact should address the accused’s awareness of the risk that he could be discharging the firearm in the direction of, or near, police officers, not whether he was doing so. [ 132 ] In my view, however, the quoted sentence in para 129 herein has to be read together with the next sentence in the trial judge’s reasons, being that “the evidence [was] insufficient to prove [recklessness] beyond a reasonable doubt” (at para 78).

When read together, it is clear that the trial judge’s finding was that he was not satisfied beyond a reasonable doubt that the accused knew or appreciated that there was a risk that he was discharging his firearm in the direction of, or near, police officers or Cst. Crone when he discharged it at 2:30 a.m. and, as a result, the evidence was insufficient to prove beyond a reasonable doubt that the accused’s discharge of the firearm was reckless as to the life or safety of another person. [ 133 ] This

interpretation of his reasons is consistent with the oral arguments that were made at the trial. The trial judge discussed with the Crown whether recklessness required that the accused know that there was “an officer in that location” or appreciate

the risk that there were people in the area when he fired, which the Crown did not accept. The accused argued that the 2:30 a.m. firearm discharge was not reckless because there was no evidence that he knew that police officers were in the location where he shot. [ 134 ] This

interpretation of the trial judge’s reasons is also consistent with his finding that the accused “was, however, consistent in his evidence that he discharged the firearm in the air and had no intention of firing at or injuring the officers” (at para 70). However, the offence does not require that the accused intend to endanger the life or safety of others. (See Côté at paras 5, 12-15 .) An accused could have had no intention of firing at or injuring the officers, while, at the same time, being aware of the risk to their lives and safety, be reckless.

If the Crown had had proof that the accused intended to fire at or injure the officers, he would, most likely, have been facing a much more serious charge than reckless discharge of a firearm. [ 135 ] In my view, the trial judge interpreted the mens rea to require knowledge by the accused of a risk that he was discharging the firearm in the direction of, or near, someone. This imports an element into the mens rea that is not included in the statutory provision, which raises a legal issue regarding the

interpretation and application of the law, rather than a factual issue. If the trial judge’s reasoning and application demonstrate that he failed to properly apprehend the law, he will have erred in law, which is reviewed on the standard of correctness. (See Chung at paras 13-18 ; see also Housen at paras 26-33 ; DAI at paras 87-89; R v MacKenzie , 2013 SCC 50 at para 61 ; R v Bear (CW) , 2013 MBCA 96 at paras 6 , 24-25; R v AA , 2015 ONCA 558 at para 77 ; and R v McBride , 2018 ONCA 323 at para 53 .) [ 136 ]

Section 244.2(1)(

b) must be read in conjunction with the other provisions dealing with the use of firearms, because, as noted earlier, it was enacted to fill a gap in the legislation regarding gun use. [ 137 ] Section 86(1) charges careless use of a firearm, which is use without lawful excuse and without reasonable precaution for the safety of other persons.

Section 244 charges discharging a firearm with intent, which is discharging a firearm at a person with intent to wound, maim or disfigure, to endanger life, or to prevent the arrest or detention of any person.

Section 244.2(1)(

a) charges intentional discharge of a firearm into or at a place , knowing or being reckless as to whether a person is in that place . “[P]lace” is defined and does not include shooting into the bush or a yard. (See Goupil c R , 2014 QCCA 2176 at paras 26-39 .) [ 138 ] Had Parliament intended to limit the recklessness element of

section 244.2(1)(

b) to knowledge of the risk of discharging a firearm in the direction of, or near a person , it would have included that restriction in the section, as it did in sections 244 and 244.2(1) (a). It did not do so; and, in my view, it would be an error in the

interpretation and application of the

section to read it in. [ 139 ] The

interpretation that, under

section 244.2(1)(b), the accused must know that there was a risk that he was shooting in the direction of police officers is found in other cases. (See, for example, Vaillant at para 71 .) However, whether the accused was reckless has to be determined in all of the circumstances known to the accused, one of which may be whether he knew that there was a risk that he was shooting in the direction of, or near, someone.

Requiring the Crown to prove beyond a reasonable doubt that the accused knew that there was a risk that he was shooting in the direction of someone is, in my view, focussing the application of recklessness more narrowly than the law requires, and demonstrates a misapprehension of the law.

To the extent that this is stated to be a requirement, as opposed to a fact to be considered together with all of the other facts, I would disagree. [ 140 ] The trial judge had, earlier in his reasons, set out the mens rea element correctly, when he stated, “recklessness requires proof that the accused appreciated the risk of harm to the life or safety of another person and proceeded to act notwithstanding the awareness of the risk” (at para 70), but that is not the same as knowing or appreciating that “there was a risk he was discharging his firearm in the direction of or near police officers or Cst.

Crone” (at para 78) when he discharged the firearm. In my view, that is how the trial judge interpreted and applied the mens rea of recklessness. In doing so, he both failed to apply the correct legal test, despite having set it out correctly earlier in his reasons, and he erred in applying the wrong legal principles (see Chung at para 18 ).

I would find that he erred in law by so misdirecting himself. (ii) Error in the Application of the Facts to the Law [ 141 ] The Crown has appealed on the basis that the trial judge erred in applying the facts to the law, when he concluded that “the evidence [was] insufficient to prove beyond a reasonable doubt that [the accused’s] discharge of the firearm was reckless as to the life or safety of another person” (at para 78). [ 142 ] The Supreme Court has been clear that the application of a legal standard to the facts of the case is a question of law. (See R v Shepherd , 2009 SCC 35 at para 20 ; see, also, R v Moquin , 2010 MBCA 22 at paras 7-13 ; MacKenzie at paras 53-54 ; McRae at paras 10, 13 ; R v Omeasoo et al , 2019 MBCA 43 at paras 26-27 ; Le at paras 23-24; Chung at para 11 ; and R v Billiard , 2021 NLCA 44 at paras 16-19 , 31, 33.) [ 143 ] The trial judge made the following findings related to facts that were at issue, which are not subject to review in relation to the Crown’s appeal: - The accused discharged his firearm on two occasions, at 10:18 p.m. and at 2:30 a.m. (see paras 69, 71, 75). - The accused fired on both occasions “to scare [the police officers] off [the] property” (at para 52(e); see also para 69). - The accused “knew [that] police officers were present on the [p]roperty” on both occasions when he fired to scare them off (at para 52(e)). - It was dark out at 2:30 a.m. and Cst.

Crone was invisible where he was hidden (see para 78). - At 2:30 a.m., the accused knew that the police car remained parked in the driveway, running and with the lights on, and that the police officers would return at some point (see para 78). - The accused was not aware or did not appreciate that there was a risk that he was discharging his firearm in the direction of, or

near, police officers or Cst. Crone when he discharged the firearm at 2:30 a.m. (see para 78). [ 144 ] The trial judge found that the accused did not know where the police officers were positioned at 2:30 a.m. The accused had seen them retreat down his driveway at 10:18 p.m., and he remained at the police car until approximately 10:50 p.m., during which time the police officers did not return to the car (see para 27). [ 145 ] But, the trial judge found that the accused knew that a 911 call had been made. He knew, at 2:30 a.m., that the police car remained in his driveway with the motor still running.

He knew that the police were “on the [p]roperty” and that they “would return . . . at some point” (at para 78). He did not know when they would be returning and, because it was dark out, he could not know where they were or if they had returned. This is clear from the video statement. Constable Johnson asked the accused whether he saw anyone in the yard when he shot at 2:30 a.m., and the accused said that it was too dark.

The accused discharged the firearm into the dark, intending to scare the police officers off the property, and not knowing whether he could be shooting at a police officer. [ 146 ] Further, the statements that the accused made upon his arrest, while not decisive, are indicative of his state of mind. When the arresting officer told him, shortly after the 2:30 a.m. firearm dischar

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