R. v. Arsenault, 2022 NSSC 242

SUPREME COURT OF Nova Scotia Citation: R. v. Arsenault , 2022 NSSC 242 Date: 20220819 Docket: CRH No. 507101 Registry: Halifax Between: Her Majesty the Queen v. Donald Francis Arsenault VERDICT Judge: The Honourable Justice Scott C. Norton Heard: June 23, 2022, in Halifax, Nova Scotia Decision: August 19, 2022 Counsel: Stephen Anstey, for the Crown Ian Hutchison, for the Defendant NOTE: In reducing to writing the oral decision rendered in this matter, editing has taken place to include omitted citations and quotes from secondary sources and to make changes to format or to grammar for readability.

No changes have been made to the substantive reasons for decision. By the Court (Orally): [ 1 ] Donald Francis Arsenault is charged with 14 counts in an Indictment dated July 7, 2021, related to impaired operation of a motor vehicle and possession of a firearm: 1. THAT he on or about the 3 rd day of August, 2019, at or near Halifax, in the County of Halifax, in the Province of Nova Scotia, did operate a conveyance while his ability to operate it was impaired to any degree by alcohol, or drug, or both, contrary to

Section 320.14(1) (

a) of the Criminal Code . 2. AND FU[R]THER that he at the same time and place aforesaid, did knowing that a demand had been made, fail or refuse to comply with a demand made by a peace officer under

Section 320.27 or 320.28 of the Criminal Code , contrary to

Section 320.15(1) of the Criminal Code . 3. AND FURTHER that he at the same time and place aforesaid, was an occupant of a motor vehicle in which he knew that there was at that time a weapon or firearm to wit a semi-automatic handgun, contrary to Section 94(1) of the Criminal Code . 4. AND FURTHER that he at the same time and place aforesaid did without lawful excuse use, carry, handle, ship, transport or store a firearm, to wit a semi-automatic handgun, in a careless manner or without reasonable precaution for the safety of other persons, contrary to Section 86(1) of the Criminal Code . 5.

AND FURTHER that he at the same time and place aforesaid, did possess a firearm, to wit a semi-automatic handgun, without being the holder of a license under which he may possess it, and in the case of a prohibited firearm or a restricted firearm, without being the holder of a registration certificate for the firearm, contrary to Section 91(1) of the Criminal Code .

6. AND FURTHER that he at the same time and place aforesaid, did unlawfully possess a prohibited weapon, to wit., semi- automatic handgun knowing he was not the holder of a registration certificate for the firearm, contrary to Section 92(2) of the Criminal Code . 7.

AND FURTHER that he at the same time and place aforesaid, did possess a loaded restricted or prohibited firearm, to wit a semi-automatic handgun, without being the holder of an authorization or license under which he may possess the firearm in that place, and the registration certificate for the firearm, contrary to Section 95(1) of the Criminal Code . 8.

AND FURTHER that he at the same time and place aforesaid, did unlawfully have in his possession a weapon or imitation of a weapon, to wit. a semi-automatic handgun, for a purpose dangerous to the public peace or for the purpose of committ8ing an offence, contrary to Section 88(1) of the Criminal Code . 9. AND FURTHER that he at the same time and place aforesaid, did store, carry, transport a firearm, to wit a semi-automatic handgun, contrary to the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, thereby contravening a regulation made under paragraph 117(

h) of the Firearms Act, contrary to Section 86(2) of the Criminal Code . 10. AND FURTHER that he at the same time and place aforesaid, did have in his possession a restricted weapon, to wit a semi- automatic handgun, without being the holder of a license under which he may possess it, contrary to Section 91(2) of the Criminal Code . 11.

AND FURTHER that he at the same time and place aforesaid, did possess a firearm, to wit a semi-automatic handgun, knowing that he was not the holder of a license under which he may possess it, and in the case of a prohibited firearm or a restricted firearm without being the holder of a registration certificate for the firearm, contrary to Section 92(1) of the Criminal Code . 12. AND FURTHER that he at the same time and place aforesaid, did have in his possession a restricted firearm while he was prohibited from doing so, by reason of an Order of Prohibition, pursuant to

Section 109 of the Criminal Code dated at Halifax, Nova Scotia on the 5 th day of January, 2010, contrary to

Section 117.01(1) of the Criminal Code . 13. AND FURTHER that he at the same time and place aforesaid, did have in his possession a prohibited device while he was prohibited from doing so, by reason of an Order of Prohibition, pursuant to

Section 109 of the Criminal Code dated Halifax, Nova Scotia on the 5 th day of January, 2010, contrary to

Section 117.01(1) of the Criminal Code . 14. AND FURTHER that he at the same time and place aforesaid, did have in his possession ammunition while he was prohibited from doing so, by reason of an Order of Prohibition, pursuant to

Section 109 of the Criminal Code dated at Halifax, Nova Scotia on 5 th day of January, 2010, contrary to

Section 117.01(1) of the Criminal Code . With the agreement of counsel, the entirety of the evidence was received in a voir dire with the admissibility of contested evidence to be determined by me at the conclusion. By decision dated May 20, 2022 (reported at 2022 NSSC 149 ), I found that Mr. Arsenault’s constitutional rights were not violated and that a handgun obtained as a consequence of a search of his vehicle would be admitted as evidence. The voir dire evidence formed the evidence at the trial on June 23, 2022. No additional evidence was called by the Crown. The Defence elected to call no evidence.

The court received oral submissions from the Crown and Defence. General Principles [ 2 ] It is not Mr. Arsenault’s responsibility to prove his innocence or to explain away the allegations made against him. He is presumed to be innocent until proven guilty beyond a reasonable doubt. The Crown bears this onus of proof beyond a reasonable doubt throughout the trial, and it never shifts. This burden applies to the totality of the evidence and requires the Crown to prove each element of each offence beyond a reasonable doubt. [7] The issue in a criminal trial is reasonable doubt.

Judges must assess all of the evidence, together, and decide whether at the end of the trial there is a reasonable doubt. That doubt may be found in any of the evidence. Reasonable doubt may arise from the absence of evidence. Facts [ 3 ] The facts are set out in detail in my reported decision of May 20, 2022. In brief

summary, on August 3, 2019, at about 03:43 a.m., following a single vehicle accident on the Bedford Highway, in Halifax, Nova Scotia, Mr. Arsenault was arrested by Cst. Brent Woodworth of the Halifax Regional Police (“HRP”) for impaired operation of a motor vehicle and refusing to provide a breath sample. He was informed of the charges and advised of his right to consult legal counsel. He was transported to police headquarters and spoke to legal aid duty counsel. A second demand was made for a breath sample which he refused. He was placed in a cell at 05:04. [ 4 ] Mr.

Arsenault’s vehicle was damaged and had to be towed from the accident scene. HRP Policy is that in such circumstances an inventory search is to be conducted to identify and take custody of any items of value in the vehicle to protect against loss or theft of such items and potential civil liability resulting. Cst. Dianne Penfound performed the inventory search. At 05:25 she observed what appeared to be a handgun in the glove box.

Two members of the Emergency Response Team (“ERT”) took custody of the handgun and made it safe by removing the magazine and ejecting a bullet from the chamber. [ 5 ] At 10:51 the ERT members went to Mr. Arsenault’s cell and arrested him on new firearms related charges. He was cautioned and given his right to consult legal counsel. He advised that he understood the charges and declined the opportunity to speak with legal counsel. Positions of the Parties

[6] Mr. Arsenault asks that the court be satisfied that the Crown had proved each of the required elements of each offence beyonda reasonable doubt. The Defence agreed with the Crown’s submissions on the entering of a conditional stay for certain of the offencespursuant to the principle in R. v. Kineapple, (SCC), [1975] 1 S.C.R. 729. [7] The Crown acknowledged that it did not prove Counts 8 and 13. As to Count 8, the Crown did not prove that Mr. Arsenaulthad possession of a weapon for a purpose dangerous to the public peace or for the purpose of committing an offence.

As to Count 13,the evidence did not establish that the extended magazine was a prohibited device. Accordingly, Mr. Arsenault is acquitted on those twoCounts. [8] About the remaining counts, I am satisfied that the evidence establishes that Mr. Arsenault was the registered owner andoperator of the motor vehicle that struck the power pole on the Bedford Highway on the morning of August 3, 2019. All of the eventswere proved to have occurred in the early hours of the morning of August 3, 2019, in the Halifax Regional Municipality, Province ofNova Scotia. [9] Mr.

Jason Patterson witnessed the operation of the vehicle just prior to and at the time it struck the telephone poles and guardrail on the Bedford Highway. Very shortly after the arrival of police at the accident scene, a male person was found by police on anadjacent street, matching the description given by Mr. Patterson of the lone occupant who had been driving the vehicle and who had leftthe scene. Cst. Woodworth observed signs of impairment and arrested him. This person was identified by his driver’s license as DonaldFrancis Arsenault.

Vehicle keys found in his possession were subsequently confirmed to open the locked doors of the vehicle involved inthe accident. I am satisfied that the circumstantial evidence of identity establishes beyond a reasonable doubt that Mr. Arsenault was theoperator of the vehicle immediately prior to and at the time the vehicle struck the telephone pole. [10] Evidence of the indicia of impairment came from Cst. Woodworth and Cst. Roache who testified of their interactions with Mr.Arsenault and their observations of him. Cst. Woodworth described that Mr. Arsenault was staggering when initially arrested.

Cst.Roache described that he observed Mr. Arsenault’s speech to be slurred, there was a strong smell of alcohol on his breath, and that hiseyes were red and glossy. The evidence establishes that two demands were made of Mr. Arsenault to provide a sample of his breath andhe refused both demands. [11] Mr. Patterson testified that he observed Mr. Arsenault’s vehicle travelling down an empty street late at night with no othertraffic on the road crash into three telephone poles. It was a clear night. The road was dry. There is no evidence suggesting any othercause for the accident.

I find the only reasonable inference from this evidence is that Mr. Arsenault was operating his motor vehiclewhile his ability to do so was impaired. [12] I find Mr. Arsenault guilty of Counts 1 and 2 of the Indictment. [13] The remaining Counts on the Indictment relate to allegations that Mr. Arsenault unlawfully possessed a firearm andammunition. As previously found, Mr. Arsenault was the registered owner of the motor vehicle and the only person who occupied themotor vehicle at the time of the accident. The expert evidence filed with the court with the consent of Mr.

Arsenault establishes that thehandgun that was in the glove box of that vehicle is a “firearm”, a “weapon” and a “restricted firearm” as defined by the Criminal Code. [14] As to whether Mr. Arsenault knew that the firearm was in the vehicle, the fact that Mr. Arsenault was the sole occupant of thevehicle, and the fact that the firearm was located in the glove box adjacent to a large sum of Canadian currency allows the court to drawthe inference that Mr. Arsenault knew of the presence of the firearm in the vehicle. No other plausible theory for its presence wassuggested.

It would be entirely speculative for me to find that the firearm was there by any other means: R. v. Snow, 2019 NSCA 76. [15] Mr. Arsenault was aware from a previous court order that he was prohibited from having such a device. The evidenceestablishes that Mr. Arsenault did not have a license by which he was authorized to possess such a device. [16] I am satisfied from the totality of the evidence that the Crown has proved Mr. Arsenault’s guilt on Count 3 [section 94(1)] andCount 5 [section 91(1)] beyond a reasonable doubt.

Accordingly, I grant a conditional stay of Count 5 pursuant to Kineapple asrequested by the Crown. [17] As to Count 4 [section 86(1)] and Count 9 [section 86(2)] the evidence previously referred to establishes the date, time,jurisdiction, and identity. As well, the previously referred to expert evidence establishes that the device was a firearm. Mr. Pattersontestified that the vehicle was in movement prior to the accident. Section 86(1) requires that the firearm be transported carelessly.

Section 86(2) requires proof that the firearm was transported contrary to the Storage, Display, Transportation and Handling of Firearmsby Individuals Regulations made under paragraph 117(

h) of the Firearms Act. The evidence establishes that the firearm had no triggerlock; it was not stored in a case; it was in the glove box within reach of the person who was driving; and that it was stored withammunition, indeed it was loaded with that ammunition. The evidence establishes multiple ways that Mr. Arsenault violated bothsections 86(1) and 86(2) and I find him guilty of both Counts 4 and 9. [18] Count 6 [section 92(2)]. The evidence previously referred to establishes date, time, jurisdiction, identity, and that the objectwas a firearm.

This offence requires that the Crown prove beyond a reasonable doubt that Mr. Arsenault possessed the firearm knowinghe was not the holder of a registration certificate for the firearm. The possession is established by the same evidence referred to onCount 3. The affidavit evidence of John William Parkin, Chief Firearms Officer for the Province of Nova Scotia, filed with the courtwith the consent of Mr. Arsenault, established that Mr. Arsenault did not hold any license or authorization to possess prohibited firearms,prohibited weapons or prohibited devices.

The Prohibition Order of Justice Cacchione, dated January 10, 2010, prohibited Mr. Arsenaultfrom possessing, inter alia, any firearm, restricted weapon, or ammunition for a period of 10 years. I am satisfied that the terms of thisProhibition Order were known to Mr. Arsenault and that he either knew or was willfully blind to the fact that he was not permitted topossess a firearm. I find Mr. Arsenault guilty of Count 6. [19] Count 7 [section 95(1)] alleges that Mr. Arsenault possessed a loaded restricted or prohibited weapon.

The evidence provingdate, time, place, jurisdiction, identity, and possession of a firearm is as previously described. Additional evidence establishes that thefirearm was loaded. Cst. Mark Raymond testified that at the time the firearm was seized from the vehicle, it contained a magazine with

10 bullets and that there was an additional bullet in the chamber. I am satisfied that the Crown has proved Mr. Arsenault guilty of Count 7 beyond a reasonable doubt. [ 20 ] Count 10 [ section 91(2) ] and Count 11 [ section 92(1) ] are possessory offences. As Count 6 contains all the elements of these offences, a conditional stay will be entered on both Counts 10 and 11 as requested by the Crown. [ 21 ] Count 12 and Count 14 relate respectively to the possession of a restricted firearm and ammunition, contrary to the previously described Prohibition Order of Justice Cacchione, dated January 10, 2010, contrary to

section 117.01(1) of the Criminal Code . The evidence previously noted proves Mr. Arsenault guilty of these two Counts beyond a reasonable doubt. [ 22 ] In

summary, I find Mr. Arsenault guilty of Counts 1, 2, 3, 4, 6, 7, 9, 12 and 14. Mr. Arsenault is acquitted on Count 8 and Count 13. A conditional stay is entered on Count 5, Count 10, and Count 11. Norton, J.