R v Ratt, 2023 SKCA 2

Court of Appeal for Saskatchewan Docket: CACR3472 Citation: R v Ratt , 2023 SKCA 2 Date: 2023-01-05 Between: His Majesty the King Appellant And Preston Ratt Respondent Before: Caldwell, Schwann and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Caldwell The Honourable Madam Justice Schwann On appeal from: Provincial Court, La Ronge Appeal heard: October 17, 2022 Counsel: Pouria Tabrizi-Reardigan for the Appellant Catriona Kaiser-Derrick for the Respondent Leurer J.A. I. INTRODUCTION [ 1 ] This is a Crown appeal from an acquittal. The issue is the proper

interpretation of s. 244.2(1) (

a) of the Criminal Code . [ 2 ] Pursuant to s. 244.2(1) (a), every person commits an offence “who intentionally discharges a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place” (emphasis added). The Crown contends that the trial judge misinterpreted this provision when he found it to require that, before a conviction can be entered under that section, a court must conclude that a firearm was discharged from one physical place into or at a different physical place. [ 3 ] As I will explain, the trial judge correctly interpreted s. 244.2(1) (a).

The Crown’s appeal must, therefore, be dismissed. II. BACKGROUND A. Facts [ 4 ] On January 25, 2021, Mr. Ratt was at a one-story house with several others. He had a shotgun. One of the others present [complainant] decided to leave. As she was readying herself to do so, there was a knock at the door. Mr. Ratt grabbed the shotgun, loaded it and pointed it at the front door. He shouted, “Who’s at the door?” He did not fire the gun. [ 5 ] A man answered, and Mr. Ratt lowered the shotgun. The man entered the house. Mr. Ratt told the man that he had almost shot him through the front door. Then, without further ado, Mr.

Ratt discharged the gun into the ceiling near the front door. The complainant began crying. She grabbed her keys and said that she wanted to leave the house. Mr. Ratt told her that she was weak and that she could not go. Mr. Ratt fired a second round into the ceiling. He then forced the complainant to go into a bedroom with him. [ 6 ] Because of these and other events Mr. Ratt was convicted of nine offences. They included: (

a) using a firearm while attempting to commit the indictable offence of forcible confinement, contrary to s. 85 (l)(

b) of the Criminal Code ; (

b) confining a person without lawful authority, contrary to s. 279(2) ; (

c) carrying a weapon for a purpose dangerous to the public peace, contrary to s. 88(2) ; (

d) possessing a firearm without being the holder of a licence under which he may possess it, contrary to s. 92(1) ; and (

f) possessing a firearm while he was prohibited from doing so, contrary to s. 117.01(1) . [ 7 ] However, Mr. Ratt was acquitted of the charge that he intentionally discharged a firearm “being reckless as to whether another person is present in that place [ sic ], contrary to

Section 244.2(1) (

a) of the Criminal Code ”. The Crown appeals from this acquittal. B. The trial decision [ 8 ] I will confine my review to the trial judge’s reasons for acquitting Mr. Ratt of the charge under s. 244.2(1) (a). [ 9 ] The trial judge began his oral reasons in relation to this charge by observing that the evidence was “clear that the firearm was discharged upward into the attic”. He found, though, that he had “no evidence that this was a place where any person was present or could possibly be present”. [ 10 ] The trial judge then considered two authorities that had been referred to him by the Crown.

He determined that R v Itturiligaq , 2020 NUCA 6 , was of “little precedential value” because it involved a guilty plea and there was no adjudication as to the meaning of

s. 244.2(1)(a). He noted that R v Breese, 2020 ONSC 6272, involved a charge under s. 244.2(1)(b), which does not include a requirementthat the firearm be discharged “into or at a place”, but is predicated upon the Crown proving that the accused was “reckless as to the lifeor safety of another person”. The trial judge concluded his reasons on this issue by stating as follows: The situation before me is quite different. Here the Crown does not proceed under [s. 244.2(1)](b), which requires recklessness as to thelife or safety of another person; rather, the Crown proceeds under [s. 244.2(1)](

a) that requires discharge into a place knowing or beingreckless as to whether another person is present in that place. I find as a fact that the firearm was discharged into the attic, a place whereno one could reasonably expect -- be expected to be present and, accordingly, the accused must be acquitted on this count. III. ISSUES [11] The outcome of the Crown’s appeal is dictated by the answer to two questions: (

a) Does the Crown’s appeal involve a question of law? (

b) Does the requirement in s. 244.2(1)(a), that a firearm be discharged “into or at a place”, mean that it must be discharged fromone physical place into or at a different physical place? IV. ANALYSIS A. Does the Crown’s appeal involve a question of law? [12] Under s. 676(1)(

a) of the Criminal Code, the Crown’s right of appeal is limited to a “ground of appeal that involves a questionof law alone”. Mr. Ratt submits that the trial judge’s finding “as a fact that the firearm was discharged into the attic, a place where no onecould reasonably … be expected to be present” means that the Crown’s appeal is against a finding of fact from which it cannot appeal. Idisagree. [13] The only way to reconcile the decision to acquit Mr. Ratt with the evidence that several people were present in the living roomwhen Mr. Ratt discharged the shotgun is that the trial judge understood, as a matter of law, that the offence under s. 244.2(1)(

a) has adirectional component, requiring a firearm to be discharged from one physical place into or at a different physical place. As I read the trialdecision, the trial judge acquitted Mr. Ratt of the charge under that

section because the offence was not committed by simply discharginga firearm within a place and the Crown had not shown that Mr. Ratt knew, nor was he reckless as to whether, another person was presentin the place into or at which the gun was discharged. [14] A question as to the legal effect of proven facts is one of law within the meaning of s. 676(1)(

a) of the Criminal Code (see: R vJ.M.H., 2011 SCC 45 at para 28, [2011] 3 SCR 197). As in R v Morin, (SCC), [1992] 3 SCR 286 at 294, “thedisagreement is with respect to the law and not the facts nor inferences to be drawn from the facts”. [15] Based on all of this, I am satisfied that the Crown’s appeal engages a question of law within the meaning of s. 676(1)(a). Thatquestion is whether s. 244.2(1)(

a) requires a firearm to be discharged from one physical place into or at a different physical place. B. Does the requirement in s. 244.2(1)(a), that a firearm be discharged “into orat a place”, mean that it must be discharged from one physical place into or at adifferent physical place? 1. The Criminal Code [16] Subsections (1) and (2) of s. 244.2 of the Criminal Code provide as follows: 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 is present in theplace; or (

b) who intentionally discharges a firearm while being reckless as to the life or safety of another person. Definition of place

(2) For the purpose of paragraph (1)(a), place means any building or structure — or part of one — or any motor vehicle, vessel, aircraft,railway vehicle, container or trailer. [17] A conviction under s. 244.2(1) brings with it a mandatory minimum sentence prescribed in subsection (3). In accordance withthat provision, every person who commits an offence under s. 244.2(1) is subject to a punishment of imprisonment for a term of at leastfour years and, in some cases, longer: Punishment

(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of, at the direction of or in association with a criminal organization, is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of (

i) five years, in the case of a first offence, and (ii) seven years, in the case of a second or subsequent offence; and (

b) in any other case, is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years. 2. The proper

interpretation of s. 244.2(1)(a) [ 18 ] The Crown’s position is that, by interpreting s. 244.2(1) (

a) as requiring that a firearm must be discharged from one physical place into or at a different physical place for the offence to be made out, the trial judge read into the provision something that is not there. In making this submission, the Crown points out that it did not allege that Mr. Ratt had committed the offence by shooting into the attic. Instead, its theory was that he committed the offence by discharging the gun “into or at” the ceiling, which is part of the house or its living room. The Crown says that the other way to look at things is that Mr.

Ratt discharged the gun “at” the house’s living room, where the word “at” identifies Mr. Ratt’s location when he fired the gun. In advancing these arguments, the Crown further observes that “place” is defined in s. 244.2(2) to mean “any building or structure — or part of one” (emphasis added). The Crown says that it does not matter if Mr. Ratt knew or was reckless as to whether a person was present in the attic, and his own “location was irrelevant to guilt or innocence”, because Mr. Ratt knew that there were others present in the living room when he fired the gun.

In advancing these arguments, the Crown urges this Court to adopt what it submits is the clear or plain meaning of the words “into” and “at”, as well as the statutory definition of the word “place”. [ 19 ] For his part, Mr. Ratt supports the trial judge’s

interpretation, which he says comports with the intended, limited, purpose behind the enactment of s. 244.2(1), as revealed in parliamentary debates. He defines this purpose in his factum to be to “criminalize those who intentionally shoot a firearm, appreciating that doing so may put a person at risk, by shooting at an occupied place [the offence created by s. 244.2(1) (a)], or by doing so while endangering the life or safety of another [the offence created by s. 244.2(1) (b)]”. [ 20 ] I begin the interpretative exercise by considering some dictionary

definitions. As I will explain, I do not find them to be of much assistance in answering the legal question this appeal raises, because the common or ordinary meaning of both “into” and “at” varies by context. Therefore, both sides can find support in the dictionary for their respective position. I will then look at s. 244.2(1) (

a) with the companion offence contained in s. 244.2(1) (b). As I will point out, this context tends to favour giving s. 244.2(1) (

a) a narrower

interpretation than that proposed by the Crown. Finally, I will examine the history of the introduction of this provision into the Criminal Code , which also supports Mr. Ratt’s description of the more limited purpose of s. 244.2(1) (a). [ 21 ] In the context of s. 244.2(1) (a), both “into” and “at” are used as prepositions, that is, a “word governing (and usually preceding) a noun or pronoun and expressing a relation to another word or element” (Jeremy Butterfield, ed, Fowler’s Dictionary of Modern English Usage , 4th ed (Oxford: Oxford University Press, 2015) at 648).

The object of these two prepositions is “a place”. [ 22 ] The Oxford English Dictionary Online (Oxford University Press, December 2022) [ OEDO ], summarizes the general sense of the word “into”: General Sense :—The preposition expressing motion from without to a point within limits of space, time, condition, circumstance, etc.; the motion which results in the position expressed by in n. 2 , or which is directed towards that position. (Emphasis added) [ 23 ] The OEDO then offers, as the first definition of the word “into” as a preposition, as meaning “Of motion or direction”.

The dictionary follows this with a list of ordinary uses to which “into” is put. The first of these is apropos: a. Expressing motion to a position within a space or thing: To a point within the limits of; to the interior of; so as to enter. In reference to a space or thing having material extension. Regularly after verbs of going, coming, bringing, putting, sending, and the like. [ 24 ] The authors of this entry in the OEDO observe that “into” may also be used to describe more than spatial motion.

They give, as examples, the idea of a person moving into the possession of something, into a membership or participation (admitted into a society), and so on. The same source observes that when “into” is used as a preposition in a context involving space, it can convey the idea of “motion from without to a point within”. On this understanding of the word “into”, it can be seen to connote that the place of origin must be distinguished from the place where the object moves into. [ 25 ] All of this would tend to support the trial judge’s understanding as to the requirements of s. 244.2(1) (a). Based on these

definitions, Mr. Ratt did not discharge the firearm “into” the house, or the living room in which he was situated, because he was already at that place. [ 26 ] Having said this, there remains some circularity embedded in this conclusion, since this line of reasoning raises the issue of how to define Mr. Ratt’s place at the moment he discharged the gun. Was Mr. Ratt in the living room, specifically? Was he in the house, generally? How is it that he did not fire the gun into the ceiling, which is part of the house?

The answer to the question of where he fired the shots into could be determined by where he fired the shots from , but this would be the logical fallacy of begging the question. For this reason, I would not resolve the issue in this appeal by simply employing what might be characterized as a common or ordinary definition of the term “into”.

[ 27 ] I similarly find that the ordinary meaning of the word “at” does not direct the outcome of this appeal. In this regard, the authors of this entry in the OEDO state that the word “at” is “ used to denote relations of so many kinds, and some of these so remote from its primary local sense, that a classification of its uses is very difficult”. They add, therefore, that only “a general outline can be here given”. Two of the several different uses of the term assist in showing alternative understandings of the word “at” in the present circumstances.

The first definition the authors give for the use of “at” is to describe a “Local position; answering the question Where ?” (emphasis in original). One of many examples the authors offer of the proper use of “at” in this sense is “To cut and deliver the materials at the spot” (emphasis in original). This understanding of the word “at” assists the Crown in its appeal. Here, according to this use of the word, Mr. Ratt discharged the shotgun “at” the house – that is, while he was present in it. The same would be true even if Mr.

Ratt was more particularly localized in the living room – that is, he discharged the shotgun “at” the room, although the more common statement in this context would be that he discharged it “in” the room. [ 28 ] However, other parts of the definition of the word “at” assign to it a common or ordinary meaning more in keeping with the trial judge’s

interpretation of s. 244.2(1)(a). In this regard, among the other common uses of “at” identified by the authors of the OEDO entry is as describing a “motion directed towards : In the direction of, towards, so as to get at ” (emphasis in original). One of the examples provided by the authors is fitting: “To shoot at Foes; and sometimes Pullets” (emphasis in original). Manifestly, this usage of “at” would support the trial judge’s

interpretation of s. 244.2(1)(a). [ 29 ] Summing all of this up, the trial judge’s

interpretation of s. 244.2(1)(

a) can be defended by assigning one of the ordinary meanings of the terms “at” and “into”. However, because there are several different ordinary meanings for these words, the support is equivocal. [ 30 ] I find more help as to the proper

interpretation of the provision by considering it in a broader statutory context. In this regard, s. 244.2(1) creates two offences to handle two different scenarios. Both involve the discharge of a firearm. I have already analyzed the words used to create the offence described in s. 244.2(1) (a), so will now focus on s. 244.2(1) (b). Unlike the offence created under subsection (a), that created by subsection (

b) is not bound by a location or place requirement. The offence may be committed no matter where or to where the firearm is discharged. It is made out only if the person who has discharged the firearm was “ reckless as to the life or safety of another person ”. This is to be contrasted with subsection (a), which, as will be recalled, is made out if the shooter intentionally discharged the firearm into or at a place and knew or was reckless as to whether another person is present in the place where the firearm is discharged at or into. [ 31 ] I take from the differences between s. 244.2(1)(

a) and s. 244.2(1)(

b) that Parliament was seeking to criminalize two different types of dangerous conduct. As noted, s. 244.2(1) (

b) requires the Crown to show that there was recklessness “as to the life or safety of another person”. In contrast, by subsection (a), Parliament was seeking to prohibit a specific type of conduct that was inherently dangerous to other people. This provides the explanation for why conduct may be criminal under subsection (a), even if it has not been shown that the person responsible for discharging the firearm was reckless as to the life or safety of another person. Considering this purpose, the Court should favour an

interpretation of s. 244.2(1)(

a) that is consistent with the idea that Parliament was intending to criminalize conduct that is inherently dangerous, but not more benign actions. [ 32 ] In my respectful view, the Crown’s proposed

interpretation of s. 244.2(1)(

a) is not consistent with this purpose. According to it, every discharge of a firearm within a building when a person other than the shooter is present is criminal, even if the situation is not dangerous. Thus, it would be illegal for a person to discharge a firearm in an indoor gun range with other people present, even if it can be done in a safe manner. Similarly, a farmer would commit a criminal act by discharging a rifle in a barn to kill a varmint if another person was present, even if this can be done without creating danger.

Likewise, if the word “at” is interpreted in the locative sense the Crown promotes (i.e., being present “at” a place), then every hunter shooting from a duck blind is potentially committing this offence if another person is present with them. [ 33 ] Not only would the Crown’s

interpretation of s. 244.2(1)(

a) criminalize these kinds of activities, regardless of whether the situation is inherently dangerous, but the person committing the act would be subject to the mandatory minimum penalty prescribed in s. 244.2(3). The court should be particularly disinclined to favour an

interpretation that not only criminalizes benign conduct but imposes such a stringent consequence. [ 34 ] The Crown responded to the concern that a broader

interpretation of s. 244.2(1)(

a) would expose people to mandatory minimum sentences for acting in a way that is not dangerous by submitting that if a person was convicted of a crime under that

section in a benign circumstance, they could seek a constitutional exemption from the application of the mandatory minimum. Leaving aside the availability of this relief, the argument does not satisfactorily explain why this Court should interpret s. 244.2(1) (

a) as criminalizing such conduct in first instance, when there is another, and more reasonable, meaning that can be assigned to Parliament’s words. [ 35 ] A more sensible

interpretation of s. 244.2(1)(

a) is found by understanding its purpose somewhat more narrowly than the Crown describes. This purpose is, as the trial judge found, to criminalize the discharge a firearm into or at a place in circumstances when the shooter is at one location and knows, or ought to know, or is reckless as to whether people are present in the place at or into which the shot is fired (“ knowing that or being reckless as to whether another person is present in the place ”, emphasis added). Therefore, by way of example, s. 244.2(1) (

a) criminalizes conduct such as drive-by shootings at homes or buildings. [ 36 ] A review of the history of s. 244.2(1)(

a) convinces me that this was exactly the type of conduct that its drafters intended to proscribe. In this regard, s. 244.2 was introduced into the Criminal Code as part of

An act to amend the Criminal Code (organized crime and protection of justice system participants) , SC 2009, c 22. That legislation brought about several reforms. So far as these relate to s. 244.2 , they were described by the Minister of Justice at the time, the Honourable Rob Nicholson, in his evidence before the Standing Committee on Justice and Human Rights (40th Parl, 2d Sess, No 12 (30 March 2009) at 1530–1535) in a manner that very much comports with the

interpretation I have given to the section: Hon. Rob Nicholson: … Bill C-14 proposes four key reforms. They are making gang murders automatically first degree murder; creating a new offence to target drive-by and other reckless shootings; fortifying the scheme for responding to assaults against police and other peace officers and public officers; and strengthening the gang peace bond provisions.

… The second area of reform relates to drive-by and other reckless shootings. We are proposing a new offence be added to the Criminal Code that would target all intentional shootings involving reckless disregard for the life or safety of others . Currently the offences available to prosecute these kinds of cases range from offences such as

section 86, the careless use of a firearm, to

section 244, the discharge of a firearm with intent to cause bodily harm. The negligence-based offences do not appropriately capture the seriousness of a drive-by scenario that involves consciously reckless conduct.

Section 244, on the other hand, requires proof that the firearm was discharged at a particular person with a specific intent to cause bodily harm. While the offence is clearly the more appropriate one if the shooter does have a particular target, it can sometimes be difficult to prove in a drive-by shooting scenario where the intent may be generally to intimidate a rival gang or the community. In many cases, the shooters may just be firing wildly, in any event, without a particular target.

The proposed offence will fill a gap in the Criminal Code and provide a tailored response to this dangerous criminal activity . This new offence requires that the accuseds specifically turn their minds to the fact that discharging their firearms would jeopardize the life or safety of another person, and appreciating this fact, they still went ahead . This offence would be punishable by a mandatory penalty of four years of imprisonment and a maximum of 14 years.

The mandatory minimum penalty would be increased to five years if the offence were committed for the benefit of, or at the direction of, or in association with a criminal organization, or it involved the use of a prohibited or restricted firearm such as a handgun or automatic firearm. In addition, repeat offenders in these circumstances would be subject to a higher penalty, beginning at seven years of imprisonment. … (Emphasis added) [ 37 ] In this passage, the Minister distinguished between “drive-by and other reckless shootings” (emphasis added).

Later in the same proceedings, the Minister was asked whether the amendment would facilitate a conviction if someone committed a drive-by shooting but it was difficult to prove the individual’s link to organized crime. The Minister replied as follows (at 1550): Hon. Rob Nicholson: The wording is different in that it is now specific. The problem with the existing legislation is that it doesn’t require specific intent against the particular individual. A person who is involved in drive-by shootings may be trying to intimidate the public or members of a gang.

You find that individuals get killed as innocent bystanders, and nobody can be shown to have formed a specific intent to go after these individuals. In a sense, we are drafting a piece of legislation that has specific reference to this type of activity. For instance, an individual could try to shoot a specific person on the street corner, but if another person was killed it would be difficult to prove the formation of intent against the other person. This covers that. It provides for a general intent. … (Emphasis added) Similar points were made in Senate proceedings.

See: Debates of the Senate (Hansard) 40th Parl, 2d Sess, vol 146 (22 June 2009) at 1830. [ 38 ] The

interpretation I have given to s. 244.2(1)(

a) fits nicely with the uses for which the

section was intended to be put, as described in this testimony. It allows for s. 244.2(1) (

a) to apply to drive-by shootings and other similar circumstances where the shooter is in one place and shoots into or at a building or structure, knowing or being reckless as to whether another person is present in the place where the shot is fired at or into. This leaves s. 244.2(1) (

b) to criminalize any shooting where it can be shown that the shooter is “reckless as to the life or safety of another person”. [ 39 ] Yet, the Crown submits that its

interpretation of s. 244.2(1)(

a) is supported by the fact that s. 244.2(2) defines “place” as including a “part” of any building or structure. It points out that the offence is to discharge a firearm into or at a “place” and therefore, according to the statutory definition, this includes part of a building or structure. However, while these statements are on their face correct, the inclusive definition can be seen to serve a different purpose.

For example, it ensures that if a person discharges a gun at or into a house with an attached garage knowing, or reckless as to whether, a person is present in the house, they cannot avoid criminal responsibility by saying that the person was present in the living area of the home, but not where the shot ended up. When it is understood that the statutory definition fulfils this important purpose, it can be seen that the expansion of the definition of “place” to include “part” of a building or structure does not address the point that is at issue in this appeal. [ 40 ] Finally, the Crown argues that a restrictive

interpretation of s. 244.2(1)(

a) ignores the risk that a person creates by discharging a firearm in an enclosed space. Brought into the circumstances of this case, it referred to the danger of ricochets and so on to the people present in the living room where Mr. Ratt fired the shotgun. The Crown invited the Court to conclude that Parliament intended to criminalize shooting within a building to suppress this very kind of dangerous activity. The answer to this last argument is that it will always be open to the Crown to seek to prove that a shooter in Mr.

Ratt’s position was reckless as to the life or safety of another when he pulled the trigger, and thereby committed the offence created by s. 244.2(1) (b). However, the Crown did not set out to do this in this trial, which it might have if it felt his conduct met this standard. I am not prepared to give an unnecessarily expansive

interpretation to s. 244.2(1)(

a) simply because the discharge of a firearm within a room may sometimes involve danger to the life or safety of another person when another provision of the Criminal Code already serves the socially necessary purpose of criminalizing such dangerous conduct. [ 41 ] In conclusion on the question of the proper

interpretation of s. 244.2(1)(a), to make out an offence under that section, the Crown must prove that a firearm was discharged from one physical place into or at a different physical place. 3. Application of the law to the facts [ 42 ] I will bring all of this into the facts of this case. Here, the charging document did not particularize the “place” into or at which it

was said that Mr. Ratt discharged the shotgun. In oral argument, the trial judge had noted that the evidence was that the events of January 25, 2021, occurred in a one-storey house. He asked Crown counsel to identify the “place” it was alleging that Mr. Ratt had fired the shotgun into or at that could possibly be occupied by another person. He specifically questioned if it was the “Crown’s position there was possibly somebody in the attic or possibly somebody up on the roof”. The Crown replied that the offence under s. 244.2(1) (

a) is intended to encompass a situation where a firearm was discharged within an enclosed space with other people present. I agree with Mr. Ratt that, in these circumstances, it was open for the trial judge to define the parameters of “place” based on the facts he heard at the trial, and to find the living room where Mr. Ratt was situated with others to be one place and the attic as being the other, different, place at or into which he fired the shotgun. By doing this, the trial judge gave the Crown the benefit of describing circumstances that could constitute the offence – if it were shown that Mr.

Ratt knew, or was reckless as to whether, others were present in the attic or on the roof. The Crown’s charge failed because this could not be proven to be the case. [ 43 ] I would end my analysis by emphasizing that this does not mean that the offence under s. 244.2(1)(

a) cannot be committed when a person discharges a firearm in a house or other building. However, close attention must be paid to from where the gun was discharged, and to what “place” it is said to have been discharged at or into. This point is illustrated by several cases relied on by the Crown in support of its position in this appeal. [ 44 ] In R c Vézina , 2018 QCCA 739 , the accused, following a quarrel with his spouse, discharged a firearm 15 times inside their two-storey residence. The accused was convicted under s. 244.2(1) (a).

Although there are many similarities between this case and the facts in Vézina , there are also important differences. In that case, the accused was on the second floor of a two-storey dwelling. His spouse was on the ground floor when the shots were fired. The majority of the 15 shots were fired at the floor of the second-storey room, that is, in the direction of the ground floor.

Based on those facts, the outcome in Vézina is easily reconciled with the trial decision in this case, since the shots could be said to have been from one distinct place in the home to another, with the shooter having knowledge that, or being reckless as to whether, his spouse was in the other place. This was the very point of the trial judge’s question to Crown counsel in this case as to the possibility that someone was in the attic or on the roof.

I would similarly distinguish R v Kane , 2022 NSSC 130 , where a firearm was discharged from one floor of a home into the basement, knowing that a person was present in that other place. [ 45 ] The Crown also relied on Itturiligaq . As I have noted, the trial judge found it not to be persuasive authority. I agree. The case was an appeal from sentence following a guilty plea. The issue in that case was whether the mandatory minimum sentence that accompanies a conviction under s. 244.2 was constitutional.

As the trial judge pointed out, the Nunavut Court of Appeal was not called upon to consider the meaning of s. 244.2(1) (a). Moreover, even had that Court been asked to interpret the provision, the facts of that case did not engage the legal issue in this appeal. In this regard, in Itturiligaq , the accused had fired a shot from outside of an occupied dwelling at the front of that house. By accepting the guilty plea, the Court cannot be said to have agreed, even implicitly, that s. 244.2(1) (

a) has application when the firearm is discharged from within a place. I find, therefore, Itturiligaq to be of no assistance in deciding this appeal. V. CONCLUSION [ 46 ] The trial judge correctly interpreted s. 244.2(1) (

a) of the Criminal Code . This provision requires that, before a conviction can be entered under that section, a court must find that a firearm was discharged from one physical place into or at a different physical place, in circumstances where the person responsible for the discharge of the firearm knew, or was reckless as to whether, another person was present in that other place. [ 47 ] Based on the trial judge’s correct

interpretation of s. 244.2(1)(a), and his findings of fact, the acquittal he entered under this

section must stand. Accordingly, the Crown’s appeal must be dismissed. “Leurer J.A.” Leurer J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Schwann J.A.” Schwann J.A.