R. v. Pesukic, 2010 ONCJ 639

COURT FILE No.: 10-2541 Sudbury DATE: 2010-12-31 Citation: R. v. Pesukic , 2010 ONCJ 639 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MILOVAN PESUKIC Before Justice Randall W.

Lalande Reasons on Application delivered on December 31, 2010 Natalie Boivin ............................................................................................................ for the Crown John Saftic .................................................................................... for the accused Milovan Pesukic LALANDE J.: REASONS ON APPLICATION FOR PROHIBITION ORDER 1: INTRODUCTION [ 1 ] At his trial on July 9, 2010, Mr. Pesukic entered a plea of not guilty to the following charges: • assault against Trina Debassige contrary to

Section 266 of the Criminal Code ; • pointing a firearm to wit a Glock handgun contrary to

Section 87 of the Criminal Code ; • assault with a weapon against Trina Debassige contrary to

Section 267(

A) of the Criminal Code ; • two counts of threatening bodily harm to Trina Debassige contrary to

Section 264.1(

A) of the Criminal Code ; • threatening to damage property owned by Trina Debassige contrary to

Section 264.1(

B) of the Criminal Code ; and • careless storage of ammunition contrary to Section 86(1) of the Criminal Code . [ 2 ] Mr. Pesukic’s trial started on July 9, 2010 and continued on September 13, 2010. The Complainant Trina Debassige was a reluctant witness. It became obvious that the Crown was going to have to rely on a video statement she gave to Investigating Officer Sivazlian, the content of which she did not adopt.

In fact, the Complainant Trina Debassige said she was pressured into making the statement, did not recall the content and may have still been under the influence of alcohol when she gave it. [ 3 ] Miss Boivin concluded that the Crown’s case may not have been strong enough to secure convictions. She withdrew all charges on the understanding that the accused Mr. Pesukic would enter a common-law peace bond. Mr. Pesukic did enter a common- law peace bond for a period of twelve months. He promised to keep the peace and be of good behaviour.

He also promised not to communicate either directly or indirectly with Trina Debassige.

[ 4 ] The Crown provided notice of its intention to proceed with an application for a Prohibition Order under

Section 111 of the Criminal Code seeking that Mr. Pesukic be prohibited from the possession of any firearm (including other things listed under

Section 111 ) for the maximum period of five years. The Crown also provided notice that it would be asking for forfeiture of items seized in accordance with

Section 115 of the Criminal Code. Upon a Prohibition Order being granted,

Section 115 calls for the forfeiture of everything prohibited in the possession of the person unless otherwise specified in the Order itself. In making submissions on the issue of forfeiture, the Crown was making specific reference to the following: • one 12-guage pump-action shotgun; • one 7 mm Remington high-powered rifle; • two Glock handguns; and • all ammunition and magazines. [ 5 ] The Crown and the Defence Counsel (Mr.

Saftic) agreed that all evidence heard by the Court at trial was to be considered by the Court with the exception of Trina Debassige’s initial verbal statement to the police, her video statement and/or any transcript thereof. [ 6 ] At the trial proper the Court heard evidence from Cst. Jack Sivazlian and to a limited extent from the named Complainant Trina Debassige. After the criminal charges were withdrawn on September 13, 2010 the Court continued to hear evidence on the application for a Prohibition Order. The Crown filed a number of additional exhibits including five coloured photographs of Mr.

Pesukic’s five-year old son holding and pointing a handgun. The Crown also filed will/say statements of five officers namely Cst. Rose, Cst. Tremblay, Cst. Dockery, Cst. Rintala and Cst. Guerin. Counsel also agreed that part of the evidence would include the fact that a 911 call was made by Trina Debassige. The content of the call itself was not introduced as evidence on the application. [ 7 ] Mr. Milovan Pesukic also testified in response to the Crown’s application. Following his testimony the case was adjourned to September 14, 2010 to set a date for submissions. Submissions were heard on November 12, 2010.

The case was put over to December 3 rd and again to December 31 st , 2010 for a decision. [ 8 ] The Court remains mindful that for purposes for an application for a Prohibition Order it is not intended that the rules of evidence strictly apply. The Court is able to consider all relevant evidence which is probative to the issue. The Court must always ensure that the hearing be fair and balanced.

Frailties in any of the evidence which is relevant and open to consideration remains a matter of weight. [ 9 ] Section 111(1) of the Code provides that a peace officer may apply for an order prohibiting a person from possessing any firearm (or other items mentioned) where the peace officer believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the Order is sought or of any other person that the person should possess a firearm (or other items mentioned).

Section 111(5) provides that where, at the conclusion of a hearing of an application under Section 111(1) the Court is satisfied that the circumstances referred to in Subsection 111(1) exist, the Court shall make an order prohibiting the person from possessing any firearm (or other things mentioned in

Section 111 ) for a period not exceeding five years. 2: RELEVANT EVIDENCE [ 10 ] I shall not, for the purpose of these reasons, touch upon all aspects of the evidence. I shall highlight portions of the evidence relevant to the issue. I have considered all of the evidence applicable to this hearing even if portions thereof are not mentioned in these reasons. [ 11 ] The investigation of the charges brought against Mr. Pesukic got underway on December 18, 2009. Officer Jack Sivazlian received a radio call at 11:42 a.m. regarding what he noted as a domestic dispute.

The information was initially received via a 911 call placed by a female from a payphone. Officer Sivazlian attended at 648 Lasalle Blvd. at 11:52 a.m. where he met Trina Debassige near the payphone. He noted her to be upset and crying. He also indicated that he detected an odour of alcohol on her breath. He did not believe she was impaired. From what he could tell, Officer Sivazlian thought that Miss Debassige had been crying earlier. He saw dried blood in the area of both her nostrils and to the back of her hands. She was sobbing and crying during his interview with her. She appeared fearful and confused.

He received information that she resided at 775 Lasalle Blvd. and was involved in a relationship with Mr. Pesukic. [ 12 ] Miss Debassige told the Officer that Mr. Pesukic pointed a firearm at her. She said that he was cleaning the firearm during the argument with her. She said he threatened her and that he owned other firearms. [ 13 ] Officer Sivazlian went to Headquarters to interview Miss Debassige. She provided a sworn statement on a videotape.

Commensurate with the unfolding of the investigation, police went to apt. 409 at 775 Lasalle Blvd. and found miscellaneous items associated with gun ownership including cleaning equipment and ammunition. The ammunition found involved shotgun shells, a rifle round and at least one handgun round. Several spent casings were also located. It should be noted that when Mr. Pesukic was stopped, nine loose 12-guage shotgun shells were located in the console of his vehicle. [ 14 ] During the investigation police located a camera.

Police discovered a number of photographs of a young child under the age of six years holding a black Glock handgun. The handgun appeared similar to the one seized by police. [ 15 ] Police did attend at Mr. Pesukic’s mother’s residence located at 71 Lennox Street. Mr. Pesukic has registered all firearms however the firearms are registered to his address at 71 Lennox Street (the same address as his mother’s residence). Mr. Pesukic testified that this was his main residence. He stated to have rented the apartment on Lasalle Blvd. in order to have a place to have access with his children.

This is also where he would meet Miss Debassige.

[ 16 ] Mr. Pesukic confirmed that his mother, sister and brother live at 71 Lennox Street. He explained having constructed a cement vault to safely keep the two handguns. He also indicated that the long rifles were stored in an appropriate gun cabinet at the same residence. [ 17 ] Mr. Pesukic denied being careless regarding the ammunition which was described as being scattered within the apartment on Lasalle Blvd. He indicated that he owned an orange storage box and that all items were handily stored in the box.

He said that he believed everything was in order when he left the apartment at 10:30 a.m. on December 18, 2009. He admitted having a few scattered shotgun shells in his pocket which he ultimately put in the console of his vehicle. These consisted of eight or nine shotgun shells. He did not have a specific explanation for the other miscellaneous items located by the police in the various rooms of the apartment. It appears that Mr. Pesukic was intimating that items found, including the shotgun shells in the apartment, would have been strewn around the apartment by someone other than himself. [ 18 ] Mr.

Pesukic was also questioned on the photograph he took of his son pointing an unloaded handgun straight at the camera. Five photos were entered as exhibits showing the young boy holding the handgun in the various positions. In response to this Mr. Pesukic said that in retrospect he ought not have taken the photos or allowed the child to handle the handgun. In cross examination the Crown suggested that the child would have been pointing the handgun directly at Mr. Pesukic holding the camera. In response to this Mr.

Pesukic said that when the photo was taken he was using a tripod with a 10-second delay. [ 19 ] Curiously on December 18, 2009 Mr. Pesukic said that he had accessed his rifle and shotgun. He fetched the shotgun because he was going to take the children bird hunting. The Crown did not call evidence regarding the fall hunt season or whether indeed hunting would have extended this late into the month of December. [ 20 ] In response to being asked why he accessed the high-powered rifle, Mr.

Pesukic explained that he was going to bring it to a location in the outdoors at the same time as he was going to go partridge hunting with the shotgun. His plan here was to clean the high-powered rifle outdoors. [ 21 ] Mr. Pesukic has a record extending between 1990 and 2000. This would include offences of assault, theft, assault police, impaired driving, failure to comply with a court order, refusing a breath sample, driving while prohibited and failing to attend court. Mr. Pesukic has not been found guilty or convicted of any offence directly relating to firearms or weapons.

Notwithstanding that his record is not overly lengthy it remains as an unimpressive mark on his history for that period of time. [ 22 ] Generally I found Mr. Pesukic to be articulate and well spoken. He has an engaging personality. He was well prepared as could be seen by his anxiousness to answer all questions posed by the Crown in cross examination. [ 23 ] Because he had received preliminary information from Tina Debassige regarding a domestic dispute, a possible assault and a reference to the presence of a handgun, Cst. Sivazlian had tactical officers attend to help with the investigation.

Soon after responding to the complaint, Officer Sivazlian met with Trina Debassige. He attended at Police Headquarters where she provided a sworn videotaped statement. [ 24 ] Cst. Derek Rose attended at 775 Lasalle, apt. 409 at 1:05 p.m. in company of Cst. Chisholm. No firearms were located on the premises however the following items were located: • a number of 12-gauge shells in the living room closet; • a trigger lock on the nightstand in the master bedroom; • numerous loose 12-gauge shells, a 45 calibre round, two spent casings and a number of 7 mm rifle rounds.

These items were located in the master bedroom; • two gun cleaning kits in the second bedroom referred to as the childrens’ bedroom; • an Alfred Sung box in the kitchen area with five vials of what looked like hash oil. Five knives were in the same box. Miss Debassige indicated that this belonged to Mr. Pesukic; • in the same area in the kitchen was located a plastic box with numerous ZigZag rolling papers; • a camera was also located in the master bedroom. The memory card in the camera contained the photos of the child holding a handgun. Copies of the photos were entered as exhibits at the trial. [ 25 ] Cst.

Tremblay was present and took

part in stopping Mr. Pesukic’s motor vehicle at 12:33 p.m. Mr. Pesukic’s vehicle was searched. An empty red 9 mm ammo box was found in the driver’s side storage door. Several certificates were found in the centre console as well as nine loose 12-gauge shotgun shells. Cst. Tremblay also found a yellow pill box containing 35 mg oxycocet pills. They were in a non-labelled bottle. [ 26 ] Cst. Rintala attended at 71 Lennox Street at 8:35 p.m. December 19/09. He spoke with Mr. Pesukic’s brother, Milan Pesukic. The brother turned over two long guns, namely a 7 mm rifle and a Remington 870 12-gauge shotgun.

Although Milan lives at the address he told Cst. Rintala at the time that he did not know where the two handguns were stored. The same officer subsequently received information that a floor safe was located in the house and that that was where the handguns were kept. Later, on December 20/09 Milan Pesukic turned over two Glock handguns to Cst. Guerin. Both guns were properly registered to Milovan Pesukic. [ 27 ] That portion of Trina Debassige’s evidence given at trial, which I am able to consider in determining this application, is problematic. Contrary to Cst.

Sivazlian’s evidence, which I accept, she said that she was severely intoxicated when she met him during the early stages of his investigation. Also and despite initial preliminary information she gave relevant to a domestic assault and the existence of a gun at trial, she said she did not see a firearm or handgun at apt. 409. Curiously she also said that she would be able to

recognize these handguns and that they were usually kept at his mother’s place. She also recognized seven handgun clips and one rifle magazine. She also indicated that Mr. Pesukic goes to a gun range. [ 28 ] Trina Debassige, who was named as a Complainant in the assault, threatening and mischief charges which were withdrawn, was very anxious to neutralize everything she told police. She went so far as indicating that she did not recall the dried blood on her own nose or hands and that she had little or no recollection at all of the sworn video statement she subsequently provided.

In the Court’s view, she lacked credibility; her memory became intentionally selective. All indications point to her being less than truthful with the Court. 3: ANALYSIS [ 29 ] The Court has endeavoured to consider all relevant evidence and at the same time ignore that portion of the evidence heard at trial which Counsel agreed would not form part of the application. [ 30 ] The Court must weigh a number of factors when considering the totality of the evidence including the following: • Mr. Pesukic is licensed to own firearms.

The four firearms seized by police were licensed and properly registered including the two handguns; • by all accounts Mr. Pesukic took appropriate courses to be able to obtain the firearms and keep them in storage. They were properly kept in storage at 71 Lennox Street; • the Complainant at one point made reference to Mr. Pesukic belonging to a gun club. Mention was also made in the evidence that he was a member of the Garson Rod and Gun Club. This would be consistent with lawful use of the handguns if at any time they were to be removed from the residence where they were kept/stored; • Mr.

Pesukic took measures to ensure proper storage. Reference was made to a cabinet where the rifles were kept locked up. He also built a floor vault in the home at 71 Lennox Street for the purpose of storing the handguns; • in terms of loose ammunition around the apartment, Mr. Pesukic indicated that when he left the apartment the ammunition was properly stored. He also said that he did not believe the magazine clips for the handguns were in the closet of the apartment.

He also denies leaving the cleaning kits in the childrens’ bedroom; • in terms of the loose ammunition in the vehicle there is no evidence that the ammunition was ever in view or at any time not under his control. He was driving the vehicle when stopped. There is no indication that he was leaving this ammunition in the vehicle as a storage spot; • Mr. Pesukic admitted that taking the photos of his young son holding the gun was a mistake and that he should not have done so. [ 31 ] There are some concerning aspects regarding Mr.

Pesukic’s conduct: • seven or eight handgun magazine clips and a rifle clip were found in the apartment. The question here is why these items weren’t kept/stored with the firearms themselves; • why was there ammunition in the form of shotgun shells, rifle bullets and at least one handgun bullet located in the apartment at all? The inference the Court is being asked to draw is that Miss Debassige in an angry state unlocked an ammunition box then removed it from the apartment. She also would have maliciously scattered ammunition throughout the apartment possibly thinking that police would attend and find the items.

The Court finds this story to be very unlikely. It qualifies as a convenient explanation made by Mr. Pesukic; • why were there loose shotgun shells in the vehicle? Again, the Court has difficulty with his explanation, that he grabbed a number of loose shells and left others. The Court does not accept his explanation that he was intending to go hunting; • did Mr. Pesukic really place the camera on a tripod when he took a number of pictures of his son holding the handgun and wearing a toque with a cross bone emblem?

The Court here would agree with the Crown’s suggestion that if this were the case it would be expected that Mr. Pesukic himself may have been in at least one of the pictures. It strongly appears as if he showed his son how to hold and deal with the handgun for the purpose of taking pictures. The handgun would have been pointed in his direction. The explanation of the tripod remains dubious; • query whether partridge hunting season is still viable in mid-December quite apart from whether the season is open. The grouse season usually closes on December 15 th . There is no evidence that Mr.

Pesukic was intent in hunting on one of the further outlying areas referred to as WNU(

s) in the hunting regulations; • the idea of cleaning the rifle in the outdoors to avoid the smell of gun cleaners sounds doubtful. It is not a completely implausible explanation. The explanation however raises an eyebrow and does not carry the ring of truth. [ 32 ] Although for the most part Mr. Pesukic spoke well and did his best to explain himself he did not remain unwilling to recount the facts to fit his own narrative. 4: DECISION [ 33 ] The Court must be satisfied that there are reasonable grounds to believe that it is not desirable in the interest of the safety

of the person (namely Mr. Pesukic) or of others that he (Mr. Pesukic) should possess firearms. In essence the Court is confirming the existence of reasonable grounds which led Officer Daniel Zembrzycki to bring the application. [ 34 ] The Court is also mindful that it is the applicant who bears the burden at the hearing. The burden of proof is not that of proof beyond a reasonable doubt but simply proof on a balance of probabilities. This was reiterated by the Supreme Court of Canada in the decision of R. v. Zeolkowski decided in 1989. The Court is also mindful that Mr.

Pesukic is a citizen who has acquired the privilege of possessing and owning firearms. The privilege should not be removed unless the Court is satisfied based on the totality of the evidence that the test has been met. [ 35 ] The test to be followed by the Court is also referred to in the decision of R. v. Christiansen decided by the British Columbia Court of Appeal in 2006. In that case the Court also mentions that the judge hearing the application is required to consider all relevant evidence.

The Court must also remind itself that its decision is not confined to a determination of whether certain criteria set out in Section 5(2) of the Firearms Act are met. There can certainly be a firearms prohibition without criminal conduct, a history of real or threatened violent behaviour or a documented mental disorder that leads to violence. [ 36 ] Mr. Pesukic is licensed to possess firearms. The firearms seized by the police have been registered. There is no evidence that they have been improperly stored. [ 37 ] The investigation of this matter got underway as a result of a domestic type complaint.

The Complainant Trina Debassige did her best to retract what she had told police. The Crown ultimately concluded that the prospect of securing a conviction or convictions beyond a reasonable doubt was poor. All criminal charges were withdrawn. [ 38 ] Absent evidence in the form of Miss Debassige’s video statement or a transcript, the Court is left with little evidence of any allegation of the improper use of a firearm in the context of a domestic dispute. The Court is not disimpressed by the manner in which Mr. Pesukic has dealt with the storage of his firearms.

The Court also remains mindful that he has passed necessary courses to attain the privilege of possessing and owning firearms. [ 39 ] The location of ammunition both inside and outside the apartment tells the Court that Mr. Pesukic has been sloppy in his conduct vis a vis ammunition and other items such as magazine clips. This raises a suspicion about how he handles looking after matters related to firearms. In the Court’s view there is more than a lack of diligence on his part. [ 40 ] The photographs of the child pointing the handgun at the instance of Mr. Pesukic are disturbing.

In the Court’s view this represents a significant lack of judgment on Mr. Pesukic’s part. The gun would have to have been taken out in the child’s presence. He would have to be taught how to hold and point it. The scenario may have been taken as being humorous at the time. In reality and objectively this conduct is more likely viewed as being between bizarre and abusive. It is certainly not conduct expected of a prudent gun owner. [ 41 ] Mr. Pesukic appears at times to play loose with the truth.

He also at times lacks diligence in dealing with firearms (as seen in the photos) and with ammunition. [ 42 ] In the Court’s view the facts and circumstances of this case are sufficiently egregious to warrant the granting of a Prohibition Order. Based on the evidence the Court cannot agree that the Prohibition Order should extend to a maximum period of five years as suggested by the Crown. [ 43 ] The Court has struggled with the issue of forfeiture or disposal of the firearms seized by police. The firearms are expensive. Mr. Pesukic made sure that they were stored properly. He is a hunter.

He belongs to a gun club. His paperwork relating to possession and registration of the firearms is properly in place. The Crown withdrew all criminal charges. Although police responded to a domestic dispute the Complainant, Miss Debassige, refused to adopt the content of her video statement. The balance of her evidence is of limited help to the Crown. [ 44 ] The grave aspects of the case as argued by the Crown relate to the improper handling of ammunition and the involvement of Mr. Pesukic’s five-year old son.

The five-year old son was coached and allowed to pose holding a handgun and wearing a toque with a skull emblem. [ 45 ] Having considered all of the relevant evidence I am satisfied pursuant to Section 111(5) of the Criminal Code that the reasonable grounds relied upon by Officer Zembrzycki existed at the time the application was brought and continue to exist. Therefore I am satisfied that Mr. Pesukic should be prohibited from possessing firearms and other things listed. I have carefully considered the Crown’s submissions on the issue of forfeiture.

The Crown had a good basis upon which to advance the submissions however in the circumstances as referred to in these reasons, I shall not as part of my decision grant the forfeiture for purposes of destruction of the firearms. [ 46 ] The application is therefore granted and an Order shall go as follows: • that Milovan Pesukic be prohibited from possessing any firearms, crossbows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition or explosive substances for a period of twenty-four months; • that Milovan Pesukic may authorize a person licensed to possess firearms to attend at the Police Station to take possession of the rifles, shotguns or long guns seized by police within ninety days failing which these items shall be forfeited to the Crown; • the two Glock handguns shall be kept by police until the expiry of this Order or such further order of the Court.

If the handguns are not retrieved by Mr. Pesukic within ninety days from the expiry date of this Order they shall be forfeited to the Crown; [ 47 ] Further to this Order, the Crown Attorney and Defence Counsel may address the Court with regard to all other items seized by police not forming part of this application.

Released: December 31, 2010 Signed: “Justice Randall W. Lalande”