SUPREME COURT OF PRINCE EDWARD ISLAND. Citation: R. v. Levesque 2009 PESC 12 Date: Docket: S1-GC-559 Registry: Charlottetown

Transcription

1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: R. v. Levesque 2009 PESC 12 Date: Docket: S1-GC-559 Registry: Charlottetown BETWEEN: Her Majesty the Queen AND: Christopher Roland Levesque BEFORE: The Honourable Justice Gordon L. Campbell Appearances: Valerie Moore - Solicitor for the Crown Mitchell T. MacLeod - Solicitor for the Accused Place and Date of Hearing Place and Date of Decision Charlottetown, Prince Edward Island March 4, 5, 6, 7, 10, 11, and 14, 2008 May 7, 9, 27, 28, & 29, 2008 January 28 and 29, 2009 Charlottetown, Prince Edward Island May 1, 2009

2 Citation: R. v. Levesque 2009 PESC 12 No. S1- GC-559 BETWEEN: Her Majesty the Queen AND: Christopher Roland Levesque Prince Edward Island Supreme Court Before: Campbell J. Date of Hearing: March 4, 5, 6, 7, 10, 11, and 14, 2008 May 7, 9, 27, 28, & 29, 2008 January 28 and 29, 2009 Date of Decision : May 1, 2009 (Delivered Orally) [18 pages] Criminal Law - Possession of firearm without being the holder of registration certificate. Question of corporate vs. personal possession, due diligence, defence of impossibility. Charter motion - Section 7 - right to make full answer and defence - failure to seize records - motion dismissed. Statutes Considered: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms, Being Part I of the Constitution Act, 1982; Firearms Act, S.C. 1995, c. 39. CASES CITED: R. v Levesque, 2007 PESCTD 19; R. v. Goreham, 2008 NSPC 5; R. v. Rojhani, [2007] OJ No. 4547; R. v. Kutynec (1992), 70 C.C.C. (3d) 289. Valerie Moore - Solicitor for the Crown Mitchell T. MacLeod - Solicitor for the Accused

3 Campbell J.: Background [1] Christopher Roland Levesque is charged with numerous counts of possessing a firearm without being the holder of a registration certificate for that firearm, contrary to s. 91(1)(b) and 91(3)(a) of the Criminal Code of Canada. [2] The accused is the principal shareholder of a closely-held corporation known as Island Guns and Gear Inc. (IGGI). His wife and another family member are the other minority shareholders. At all material times, IGGI had a business firearms license, permitting it to acquire and possess various types of firearms subject to certain conditions. It had many registration certificates in its name for various firearms. In addition, the accused holds a personal firearms license and is the holder of registration certificates in his own name for various firearms. [3] The accused worked full time at IGGI. Depending on the time of year, he hired between one and three other employees, the most notable of which was Leo McKenna, who was the gunsmith for IGGI. He was also a verifier of firearms, as was the accused. [4] IGGI was a retail gun shop which bought and sold rifles, shotguns, and handguns directly and on consignment and which was authorized, subject to conditions, to repair and store certain firearms. The outlet also sold ammunition and various hunting and fishing accessories. [5] In April 2005, Corporal Marvin Cameron of the Charlottetown City Police Department obtained a search warrant authorizing a search of IGGI s business on April 8, The warrant allowed for the search and seizure of firearms and various records relating to the acquisition and possession of those firearms. The warrant stated there were reasonable and probable grounds to believe the search and seizure would afford evidence with respect to the commission of certain Criminal Code of Canada offences regarding, among other things, unauthorized possession of firearms. That warrant was previously the subject of an unsuccessful Charter challenge (see R. v Levesque, 2007 PESCTD 19). All of the facts referred to in that decision are, by agreement of counsel, accepted as facts in this trial. [6] Numerous firearms were seized on April 8, 2005, a number of which became the subject of charges which were laid on or before October 3, With respect to these charges, Mr. Levesque was represented by counsel at various court appearances starting in October [7] The search warrant also authorized the police to seize an item identified as the repair book along with other records. That item was not seized but remained in the

4 Page: 2 store. The evidence confirms that following the seizure in April 2005, the retail operation continued and the accused and Mr. McKenna continued to use and have access to the repair book and the information it contained. In particular, the repair book was used by them in the months following the seizure to provide information to Corporal Cameron regarding the ownership of several of the firearms seized on April 8, [8] The accused testified that towards the end of 2005 his business was in financial difficulty. In connection with that, a Notice of Distress was received by the Sheriff on December 14, The landlord for IGGI was distraining against the premises in respect of unpaid rent. The Sheriff s office contacted Mr. Levesque to determine if he was willing and able to pay the outstanding rent. After being advised by Levesque that he could not pay the rent, the Sheriff arranged to meet Levesque at the premises on December 16, 2005 to act upon a Warrant to Distrain. [9] In seizing the assets on site, the Sheriff came into possession of numerous firearms. Deputy Sheriff, Jay Nogler, testified that one of the first questions Levesque asked him at the store was, What are you going to do with the guns? Nogler said Levesque was quite adamant in saying, Don t deal with Marvin Cameron. At that point in time, Sheriff Nogler knew that Corporal Cameron was a police officer, but did not know of his special responsibility for firearms or his prior involvement with Levesque. The Deputy Sheriff contacted the City Police Department by telephone and advised of the seizure of firearms and he was transferred to Corporal Cameron who arranged to take possession of the firearms. [10] According to Nogler, during the course of the seizure, he advised Levesque that they would not be clearing out the premises (other than the firearms) for a period of four days and that if Levesque had personal items or items of no sale value, he could have them. He advised Levesque they would be changing the locks on the premises. Levesque asked if he could have the old locks, as they were valuable, but was advised that they would be sold as part of the assets of the business. Nogler also stated he again advised Levesque after the distress sale on January 27, 2006 that he could collect the boxes of paper or records still present at the premises. [11] Levesque s testimony is that Nogler never advised him he could have personal items or records. He acknowledges asking for the old locks. He also says after the sale Nogler advised him to contact the landlord if he wanted any of the boxes of paper or records left on the premises. Levesque stated he never asked for any firearms records because he was of the view that any such records should stay with the firearms to which they relate. As will be discussed later, he did not adopt this philosophy when accepting firearms at his store, and I find his testimony on this point lacks credibility. I accept the testimony of Deputy Sheriff Nogler.

5 Page: 3 [12] On February 9, 2006, eight additional charges of having possession of a firearm without being the holder of a registration certificate were laid against Mr. Levesque in connection with guns recovered by the Sheriff on December 16, 2005 in pursuit of the commercial Warrant to Distrain. [13] By the start of trial, the number of counts to be dealt with had been reduced to 22. Three additional counts were stayed or dismissed during the trial, leaving 19 to be addressed. Thirteen of those counts (namely count # 2, 3, 4, 5, 6, 9, 10, 21, 23, 28, 29, 30 and 32), arose from the April 8, 2005 search warrant, and six counts (namely count # 34, 35, 37, 38, 39 and 41) arose from the Sheriff s actions on December 16, 2005 regarding unpaid rent. Charter Motion [14] In summation at the end of the trial, counsel for the accused made a motion pursuant to section 7 of the Charter, expressing that the accused had been denied his right to make full answer and defence to the charges as a result of the failure of the police to seize and safeguard a binder of information, referred to as the repair book, containing records relating to certain firearms. [15] I have considered the motion, the timing of it, and the grounds upon which it is based, and for various reasons, I dismiss the motion. To avoid repetition of facts and circumstances, I will provide the detailed reasons for dismissing this motion toward the end of the decision. Elements of the Offence [16] The relevant provisions of s. 91 of the Criminal Code are as follows: 91. (1) Subject to subsections (4) and (5), every person commits an offence who possesses a firearm without being the holder of (a) a licence under which the person may possess it; and (b) a registration certificate for the firearm.... (3) Every person who commits an offence under subsection (1) or (2) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

6 Page: 4 (b) is guilty of an offence punishable on summary conviction. (4) Subsections (1) and (2) do not apply to (a) a person who possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition while the person is under the direct and immediate supervision of a person who may lawfully possess it, for the purpose of using it in a manner in which the supervising person may lawfully use it; or (b) a person who comes into possession of a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition by the operation of law and who, within a reasonable period after acquiring possession of it, (i) lawfully disposes of it, or (ii) obtains a licence under which the person may possess it and, in the case of a firearm, a registration certificate for the firearm. [17] The elements of the offence that must be proven by the Crown with respect to each of the counts are, (i) that the alleged firearm is a firearm as defined in s.2 of the Criminal Code of Canada; (ii) that the accused was in possession of the firearm; and (iii) that the accused was not a holder of a registration certificate for the firearm in question. Firearm [18] Section 2 of the Criminal Code of Canada provides the following definition: Firearm means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm; [19] Inspector Reginald Berringer, Head Firearms Instructor at the Atlantic Police Academy and a certified verifier of firearms, testified for the Crown. He was qualified and accepted as an expert in the functioning and verification of firearms. He performed test-firings on each of the alleged firearms with the exception of one he deemed to be unsafe to fire (the charge relating to that one alleged firearm was dismissed as a result of the inability of the Crown to prove the item seized was indeed a firearm ). Inspector Berringer certified that the rest of the alleged firearms did test-

7 Page: 5 fire properly and were, in his opinion, firearms as defined. One or two of the firearms required minor modification to be functional such as dropping in place a firing pin or inserting a readily available bolt. Berringer s evidence was not seriously challenged. In Defence Counsel s oral summation, he conceded that, with respect to the 19 counts then remaining, the items alleged to be firearms were firearms in accordance with the Criminal Code of Canada definition. Registration Certificates [20] I now turn to the issue of whether the accused was the holder of a registration certificate for the firearms in question. Section of the Criminal Code is of assistance to the Crown in that it shifts the burden to the accused to prove he was the holder of such a certificate. Section reads as follows: Where, in any proceedings for an offence under any of sections 89, 90, 91, 93, 97, 101, 104 and 105, any question arises as to whether a person is the holder of an authorization, a licence or a registration certificate, the onus is on the accused to prove that the person is the holder of the authorization, licence or registration certificate. 1995, c. 39, s [21] During the trial the Chief Firearms Officer (CFO) for Prince Edward Island, Vivian Hayward, dealt with each individual firearm in question and testified that she had searched the registration records and determined there were no current or valid registration certificates for any of the firearms referred to in the 19 remaining counts. Again, as was the case with the classification of the seized items as firearms pursuant to the Criminal Code, in his oral summation, Defence Counsel conceded and acknowledged that there were no valid registration certificates issued in anyone s name (the accused s or otherwise) with respect to the 19 firearms in question. That element of the offence has therefore been proven by the Crown. The accused was not the holder of a registration certificate for any of the subject firearms. Possession [22] To repeat, the accused was the principal shareholder of IGGI and was the principal operator of the retail outlet. All of the firearms were seized from the retail premises of IGGI either pursuant to the police search warrant or the Sheriff s Warrant to Distrain. The accused was in possession of the keys to the main doors of the store and the keys to the various cabinets and locking devices securing the firearms in place within the store and on display racks. The accused granted access to the store, and more particularly to the firearms, to Corporal Cameron and others on April 8, 2005 and to Deputy Sheriff Josey and Deputy Sheriff Nogler on December 16, The accused s own testimony confirms he was not only aware of the presence of each firearm and consented to their being present, he was also familiar with many specific

8 Page: 6 details of most firearms. Among other things, it was the accused s responsibility within the store to determine the trade-in value or sale value of any firearm taken in trade or placed for consignment sale. [23] Counsel for the accused submits that there was no obligation on the accused to be the holder of any registration certificate in that all of the allegations relate to business activities of a corporate entity, IGGI, at its corporate premises. He further submits that the corporate entity has its own business firearms license allowing it to acquire and possess various firearms and there is therefore no obligation on the accused, an employee of IGGI, to be the holder of a registration certificate for the firearms in question. He suggests that if anyone has failed in their obligation, which he denies, it would be IGGI and not Mr. Levesque, an employee of IGGI. As he puts it, If, as is the case here, these firearms were possessed at the business premises by the business under the business license, what possible obligation could there be on Mr. Levesque, the individual, to be the holder of a registration certificate for these firearms? (Underlining added) [24] There is a section of the Criminal Code, which is relevant at least with respect to prohibited firearms, to which neither counsel referred. Section (1)(a) reads as follows: (1) Notwithstanding any other provision of this Act, but subject to section 117.1, no individual who is the holder of a licence to possess and acquire restricted firearms and who is employed by a business as defined in subsection 2(1) of the Firearms Act that itself is the holder of a licence that authorizes the business to carry out specified activities in relation to prohibited firearms, prohibited weapons, prohibited devices or prohibited ammunition is guilty of an offence under this Act or the Firearms Act by reason only that the individual, in the course of the individual s duties or employment in relation to those specified activities, (a) possesses a prohibited firearm, a prohibited weapon, a prohibited device or any prohibited ammunition;... (Underlining added) [25] I note that within s , there is a reference to s I confirm that s has no bearing on this case. As well, I accept that Mr. Levesque is an employee of IGGI and that IGGI is a business as defined in subsection 2(1) of the Firearms Act, S.C. 1995, c. 39. Further, IGGI is itself the holder of a license that authorizes the business to carry out specified activities in relation to prohibited firearms. (Underlining added)

9 Page: 7 [26] In my view, there are a number of reasons why the accused is not able to benefit from the protection that may otherwise have been offered by this section, or by the more general argument related to possession being with the corporate entity, IGGI, and not the accused personally. [27] Firstly, the specified activities or prescribed purposes the business is authorized to engage in by virtue of its business license include: The maintenance, repair, modification, or storage of a prohibited firearm, or any component or part thereof, on behalf of a person licensed to possess prohibited firearms, or on behalf of a public officer, as defined in subsection (2) of the Criminal Code, who is acting in the course of his or her duties or employment. The possession of a prohibited firearm for sale on consignment, on behalf of a person licensed to possess prohibited firearms. (Underlining Added) [28] There was no evidence, written or oral, to the effect that the persons from whom the prohibited weapons were received were persons licensed to possess prohibited firearms. Further, it was shown by the Crown, as detailed below, that these prohibited weapons had not been registered in the new registry system and it was not legal for anyone to possess them at the time they came into the possession of IGGI and/or Levesque. [29] Counts 2, 4, 5 and 6 deal with prohibited weapons. Count 2 relates to a Taurus prohibited revolver which is referred to in the inventory book of IGGI (Exhibit C-3) as being held for consignment sale. The transferor is listed as Lem Walters. There is no evidence the transferor was licensed to possess prohibited firearms nor was that expressed by any witness. Without the employees of IGGI ascertaining that information, it cannot be said that IGGI was engaged in the specified activities authorized by their firearms license. [30] Further, below the name Lem Walters, the words prohib limbo are written. Mr. Levesque s explanation for using this term was that the firearm was a prohibited firearm which may have been registered in the previous registry system, the registration for which was not renewed in the new system prior to December 31, 2002 when the law changed prohibiting further registrations of such firearms. However, while he chose to use this description, there is no limbo. The law is such that if the registration for that firearm was not completed or renewed in the new system by December 31, 2002, it is no longer legally possible to possess that firearm. The accused acknowledged in his testimony that he did not pay for the prohibited firearms because he didn t know if he would ever be able to get them registered. In fact, the CFO s testimony confirmed that these prohibited weapons had not been re-

10 Page: 8 registered in the new registry and that it was not possible now for anyone to acquire a registration certificate in respect of those firearms. The facts are the same for the Taurus prohibited firearm referred to in Count 4. [31] There were no records maintained in the inventory books on the Colt.32 prohibited firearm in Count 5. The accused claimed there was a fact sheet in his consignment drawer and he believed there was another sheet in the repair book. He believes the records were destroyed by the landlord after the Sheriff s sale. The accused did not express that he believed the alleged transferor, Bob Barwise, was licensed to possess prohibited firearms. There was no evidence to that effect. [32] Count 6 relates to an Arminius prohibited handgun which was displayed for consignment sale at IGGI. The information in IGGI s inventory book indicates the transferor was Everett Roy MacMillan. Again, there is no written indication that Mr. MacMillan was licensed to possess prohibited handguns nor was there any oral testimony to that effect. [33] Prior to reaching this decision I did inquire of counsel about section (1)(a) and received responses from each, which I have considered. [34] The fundamental position of the accused on the elements of possession is that IGGI had possession of the firearms, not the accused personally. [35] Section 4(3) of the Criminal Code reads as follows: 4. (3) For the purposes of this Act, (a) a person has anything in possession when he has it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [36] Even if it could be said that IGGI had possession of the firearms in accordance with its business license which I do not accept, the evidence shows that Levesque

11 Page: 9 was aware of the presence of the firearms and had control over both the firearms and the place in which the firearms were housed. Even if I concluded that his possession or custody of those firearms was for the use or benefit of IGGI, he is deemed to also be in custody and possession of those firearms. The fact that it may have been possible for others to be charged as well does not constitute a defence. [37] Corporations act through individuals. A corporation cannot get up in the morning, have a cup of coffee, and go off and open up its retail outlet and start accepting unregistered firearms without making any effort to determine if the presentor of the firearm was licensed to possess firearms or if the specific firearm was the subject of a registration certificate. These functions can only be performed by an individual. In this case, the accused acknowledged that he was aware that many of the subject firearms, such as those accepted for repair, were accepted without any inquiry whatsoever beyond getting the name and phone number (and sometimes the wrong phone number) of the person presenting the firearm. [38] Firearm possession and handling is tightly regulated in Canada. Mr. Levesque was well aware of that. He became interested in becoming a firearms dealer on Prince Edward Island. He negotiated the purchase of inventory from a previous dealer. He incorporated a company with himself as the principal shareholder. He applied for a business firearms license on behalf of that company. He hired the employees of the company. He arranged the lease of the premises for the retail operation. He was the directing mind of the company. He retained possession and control of the premises and the contents therein. He met with the CFO and others both before and after opening the retail store. He had received the Firearms Business Desk Manual. Following a meeting in September 2004 with the CFO and others, Levesque received a letter reiterating the need to follow the specific provisions respecting registration and transfer of firearms. He responded in writing confirming he understood the need to remain updated on registration procedures and to follow the policies and procedures of the office of the CFO and the Canada Firearms Centre. I find the accused was in possession of each of the firearms referred to in the 19 charges before the court. Due Diligence [39] Notwithstanding Levesque s knowledge of the requirement for possessors of firearms to be licensed and for firearms to bear registration certificates in accordance with the regulations, Levesque failed, and allowed his employees to fail, to respect or abide by those regulations. His record keeping, such as it was, was sloppy and incomplete. [40] The CFO provides blank inventory record books free of charge to dealers such

12 Page: 10 as IGGI to permit them to keep comprehensive records of all firearms in their possession. The inventory books allow for the quick entry of all pertinent information, frequently by simply checking the appropriate box. Entries are available to indicate the class or category of the firearm, whether restricted, limited or prohibited, and to specify the purpose for which the firearm was received, whether for verification, repair, manufacture, sale, consignment, storage, etc. There are spaces for the transferors name, address and license number and for the registration particulars of the firearm. [41] Dealers are not obliged to use these proferred inventory books. However when it comes to presenting a defence of due diligence, the record keeping practices of the accused will be examined and the availability of these record keeping aids will be considered along with all other information in assessing the degree of diligence shown by the accused. [42] The evidence shows that some records were kept in the inventory books while others were kept in the repair book, or on contingency slips or fact sheets kept in the contingency drawer, or in bankers boxes if other areas became too crammed for space. The content of the records kept was inconsistent and often incomplete. [43] However, the quality of record keeping is only one aspect and perhaps a minor one in the consideration of any due diligence defence. The due diligence that was required relates to the essential elements of the offence i.e. not being in possession of a firearm without being the holder of a registration certificate. In other words, even maintaining the most meticulous records would be of little assistance to an accused if the accused did not make serious and timely efforts to become the holder of a registration certificate or otherwise dispose of the firearm. [44] The accused s due diligence defence must be assessed in light of the provisions of the Criminal Code. Section 91(1)(b) makes it an offence to possess a firearm without being the holder of a registration certificate, subject to subsection (4) and (5). While subsection (5) and (4)(a) have no application, subsection (4)(b) does apply and reads as follows: 91.(4) Subsections (1) and (2) do not apply to... (b) a person who comes into possession of a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition by the operation of law and who, within a reasonable period after acquiring possession of it.

13 (i) lawfully disposes of it, or Page: 11 (ii) obtains a licence under which the person may possess it and, in the case of a firearm, a registration certificate for the firearm. (Underling added) [45] Firstly, looking at s.91(4)(b), except with respect to the prohibited weapons, the accused did come into possession of the unregistered firearms by operation of law. When presented with an unregistered firearm, dealers such as IGGI or an individual in the accused s position can acquire the firearm in a legal manner. It is what occurs as part of and after that which determines if the possession continues to be legal. Did the accused exercise reasonable diligence by either lawfully disposing of the firearms or obtaining registration certificates for them? It is my conclusion that he did not do so. [46] Obviously he did not dispose of the firearms and none of them were received in such close proximity to the time of their seizure that he would not have had reasonable and sufficient time to dispose of them if he intended to do so. Nor were any applications pending for registration certificates for any of the subject firearms, notwithstanding having had reasonable time within which to apply for or acquire registration certificates. [47] In fact the most telling information about the accused s intentions and efforts to comply with the registration requirements came either from the accused himself or from his employee, Leo McKenna. Both of them made repeated comments to the effect that they would have attended to the registrations when it was convenient, or when they felt time permitted. They expressed words to the effect that there was a significant flow of unregistered firearms coming into the store and it was not possible to attend to the registration of those firearms contemporaneously with the receipt of the firearms. However, there were several firearms that had been on site for many months some up to a year and a half. The ones that were there for the shortest period of time were on site for between two months and a minimum of two to three weeks between the end of November and December 16, 2005, the date of the Sheriff s seizure. Regardless of any records that may have been kept, no applications were made to obtain registration certificates for any of the firearms. [48] The CFO testified with respect to the process for registration of a firearm. Assuming all information was available, registration could be completed in a telephone call to a number, or on-line, or by way of a written application, except with respect to prohibited weapons. For some firearms it may be necessary to have a conversation with the CFO in order to complete the registration process.

14 Page: 12 [49] The CFO also explained the process to be undertaken when presented with an unregistered firearm from an unlicensed seller. She stated that the recipient, e.g. IGGI, who must be licensed to acquire the firearm, must complete a transfer application and then have the firearm registered and brought into their business inventory. As in the case with the registration process, the transfer can be completed in a phone call or on-line. The process may take longer if information is not readily available. [50] Notwithstanding the onus is on the accused to show he has registration certificates, the accused did not provide any evidence to show that applications either for transfer or registration were underway. While the accused stated that there were firearms at the store for which there was incomplete information, he did not explain the steps he was taking to gather the necessary information to complete the registration process. Section 91(4)(b) provides a reasonable period of time after acquiring possession to obtain a registration certificate. [51] Given the high degree of regulation regarding possession of firearms and the fact it is a criminal offence to possess a firearm without a registration certificate, and considering the relative speed and ease with which applications can normally be completed, the reasonable period to obtain a certificate would be quite short. It would be reasonable to expect that the task of obtaining a certificate would be undertaken contemporaneously with the receipt of the firearm. One could foresee situations where some delays might occur either because of the time of day the firearm was presented at the store, or the number of firearms presented on a given day. However, one or two days would be more than enough time to attend to the matter of applying for registration which ought to be a priority of anyone receiving firearms. Some exceptional circumstances might extend that time up to a week but those situations would be rare. [52] Once an application is made, it may take a day, a week or much longer in some cases to actually receive the registration certificate for an as yet unregistered firearm. While that timeframe would be considered in respect of a due diligence defence if any applications had been pending, that was not the situation presented in this case. [53] It is important to note as well that the law does not require the possessor of a firearm to be the holder of a registration certificate in their own name. If a license holder has a valid registration certificate for a firearm in his or her name and he or she transfers possession of the firearm and their registration certificate to another valid license holder, the transferee would be the holder of a registration certificate for the firearm and would not be in contravention of s. 91(1)(b) of the Criminal Code. It was clearly an option for the accused, as the principal shareholder and an employee of

15 Page: 13 IGGI, to advise any potential transferor to obtain a registration certificate for the firearm (and a license if they did not have one) before IGGI or its employees would accept possession of the firearm. [54] The accused submits that it was his desire to assist in getting unregistered firearms out of the closet and into the system and for that reason they would accept various unregistered firearms for trade-in, repair, consignment sale, etc. This submission lacks credibility. The accused acknowledged that several firearms were accepted for repair, for example, with no more information than the name and phone of a contact person. The repairs would be completed and the firearm returned without the accused or others at IGGI ever inquiring whether the person presenting the firearm was licensed to hold it, was the owner of it, or whether the firearm was registered. The accused confirmed that he felt whatever the owner did with the firearm after it left his store was of no concern to him. That attitude is completely inconsistent with the declaration by the accused that he wanted to get firearms into the registration system and would therefore accept unregistered firearms into his possession or the possession of IGGI. [55] The lack of due diligence was also seen with respect to six such unregistered firearms (counts 34, 35, 37, 38, 39, and 41) which were received at the store sometime between October 5 and on or about December 1, The accused acknowledged they were sitting there unregistered and not in any kind of process of even getting close to being registered. He admitted that firearms were frequently set aside until time permitted them to be processed. Sometimes there would be a half a dozen, sometimes twenty firearms in that period. The accused claimed these six firearms were brought into the store by a friend of the person who supposedly owned them and they were awaiting verification. Levesque had earlier testified that Leo McKenna did most of the firearms verification for IGGI although Levesque himself was also a verifier. McKenna no longer worked at IGGI in October/November At the time Levesque accepted these firearms into his possession, he was already facing over 60 charges for having unregistered firearms in his possession. He expressed at trial, the whole realm of operations for the shop at that time was spotty because of a lot of issues going on financially and otherwise. He did not act in a prudent manner in accepting these firearms when he knew or ought to have known that he had no reasonable prospect of dealing with the transfer or registration of these firearms in a timely manner. The accused treated the business license of IGGI as a license to stockpile unregistered and prohibited firearms. Defence of Impossibility [56] Defence counsel raised another issue with respect to the prohibited weapons charges. He submits that his client cannot be charged with being in possession of a

16 Page: 14 firearm without being the holder of a registration certificate because it is now impossible for anyone, including the accused, to acquire a registration certificate in respect of those four firearms. He submits the accused is being charged for failing to do something that he can not ever legally do. Counsel relies on R. v. Goreham, 2008 NSPC 5 as his authority for such a proposition. In that case the accused s driver s license had been revoked. The accused was observed driving his all-terrain vehicle (ATV) on a highway. He was charged with driving a motor vehicle on the highway while his license was revoked. In the Nova Scotia Motor Vehicle Act, the definition of a motor vehicle includes an ATV, but ATVs are prohibited from being registered for use on highways. Provincial Court Judge Burrill concluded that since Goreham could not have obtained a license to drive an ATV on a highway because it was a prohibited vehicle, he was not guilty of driving a motor vehicle while his license was revoked. [57] Notwithstanding that I do not accept the logic of Judge Burrill s decision, even if the decision was correct, it is not on all fours with the circumstances of this case and is of no benefit to the accused. The prohibited firearms in this case were possessed by the previous owners during the time in which they could legally have been re-registered in the new registry system. Some owners of prohibited weapons did comply with the re-registration provisions and are currently holders of valid registration certificates for prohibited firearms. The date for so doing expired December 31, The previous owners in this case did not re-register those firearms in the new registry system. It was after December 31, 2002 that the accused took possession of the prohibited firearms for which there was no valid registration in existence and for which none could be obtained. After December 31, 2002, the previous owner was no longer legally entitled to transfer those weapons to the accused and the accused was not entitled to take them into his possession. [58] The evidence before the court with respect to each of the 19 counts satisfies me that the accused was, in each case, in possession of the respective firearm without being the holder of a registration permit with respect to the named firearm. Charter Motion Analysis i) Defence position [59] Counsel for the accused argued that his client had been denied the right to make full answer and defence as guaranteed by section 7 of the Canadian Charter of Rights and Freedoms which reads as follows: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of

17 Page: 15 fundamental justice. [60] As was set out earlier in this decision, the premises of IGGI were the subject of a search warrant in April One of the items referred to in the warrant was the repair book (see para 7 above). The repair book was a small black binder in which information relating to certain firearms coming into the possession of IGGI was kept. Notwithstanding the repair book was listed as one of the items the police anticipated finding in their search, and notwithstanding it was clearly present during the search, that item was not seized. Several inventory books containing information on various firearms were seized. However, the repair book remained on the premises of IGGI and the accused and other employees continued to use it in the operation of the retail store in the same manner they had used it prior to the search. [61] The repair book was still on the premises when the Sheriff executed the Warrant to Distrain. As neither the repair book or any other records that may have been on site were of any commercial value to the distraining landlord, the Sheriff did not seize those items. The Sheriff did seize hunting and fishing accessories, firearms, ammunition, and other items including special locks in use on the premises. I accepted the testimony of the Deputy Sheriff when he confirmed that he advised Levesque that if he wished to retrieve the records, which presumably included the repair book, he could do so by making contact with the Sheriff s office. (See paras 10-11). The Sheriff s seizure took place on December 16, 2005 and the Sheriff s sale of assets took place on site on January 27, Following the sale, the Sheriff again advised Levesque that he could collect the boxes of paper or records still present at the premises. Levesque did not do so. The whereabouts of the repair book and some other records that had been on site is unknown. [62] The accused claimed that the repair book contained records that touched upon every firearm before the court in this matter. He claims therefore that its loss, and the loss of the probative documents contained therein, seriously affected the right of Levesque to make full answer and defence. He claims that it was negligent of the police not to have seized the record book in April, He claims further negligence by the police when, in December 2005, they failed to go and retrieve the records after the Sheriff presented them with various firearms he seized while executing the landlord s warrant. [63] Defence counsel submitted, It is difficult to contemplate a clearer denial of the right to make full answer and defence than the loss, through no fault of the accused, of the very records that would provide exoneration. ii) Crown position

18 Page: 16 [64] The Crown prosecutor submitted that the defence Charter motion was out-oftime, illogical, bore no relation to the facts of this case, and was without credibility. She points out that the first time the defence raised this issue was in its summation some six months after the completion of trial. She questions why such an issue was not raised at the start of trial or even in January 2007 when defence counsel filed a Charter motion attacking the validity of the search warrant. She further submits, and I confirm, there was no evidence provided during the trial to indicate that any supposedly missing business records would hold the key to any defence on any of the charges. The most that was suggested is that there might be additional information on some of the firearms, but the accused admitted on several occasions during his crossexamination that he was not suggesting that those records contained any registration certificates or any partial or completed applications for registration certificates. iii) Analysis [65] It is significant to note as well that only six of the remaining 19 counts before the court pertained to firearms seized on December 16, The other 13 charges relating to firearms seized in April 2005 had been laid well before the Sheriff s seizure, and the accused, still in possession and control of the repair book, had made court appearances to respond to those charges. [66] The Sheriff contacted the accused two days prior to attending at the premises of IGGI to seize assets to determine if the accused was able to pay the outstanding rent. The accused advised that he could not do so, and he and the Sheriff agreed to th meet at a mutually acceptable time on the 16 so the accused could grant the Sheriff access to the premises. When asked why he had not shown any interest in obtaining the records at the time of the Sheriff s seizure, the accused answered that he had no interest in the records because he was not then facing any charges. In fact the accused was facing a multitude of charges by that time and had recently been required to attend court appearances either on his own or through his counsel. It is completely without credibility for the accused to now argue that these documents, which were in his possession and control and which he knew were about to be seized, were crucial to providing full answer and defence to both the charges he was already facing and subsequent charges and that the obligation to protect or preserve those records rested with the Sheriff or the police. The failure to preserve or protect the records lies solely at the hands of the accused. [67] Similar issues were raised before the Ontario Court of Justice in R. v. Rojhani, [2007] OJ No A taxi driver who had been charged with sexually assaulting a female passenger alleged that the police were negligent in failing to take further steps to preserve evidence that might have been on the in-taxi camera. The police allowed the accused to drive his taxi to the Forensic Identification Unit to allow images to be

19 Page: 17 downloaded. The camera continued to operate while the accused drove the taxi to that facility. The limited space on the hard drive may have resulted in some images being replaced by new images. The accused waited until the end of trial to announce his intention to bring an application for a stay of proceedings under section 7 of the Charter based on the alleged negligence of the police. As was the case here, the application was brought without prior notice to the Crown. The Rojhani application was dismissed. [68] The Rules of the Ontario Court of Justice provide for such applications to be brought in a timely manner and on notice to the opposing party and to the court. While we have no such rule, that rule is, in effect, an embodiment of the decision of the Ontario Court of Appeal in R. v. Kutynec (1992), 70 C.C.C. (3d) 289. There is a duty on defence counsel to raise Charter issues at the earliest opportunity to allow the Crown to be in a position to examine witnesses or present evidence in order to respond to any Charter application. The court should also consider whether the Charter issue could have been foreseen by the due diligence of defence counsel. [69] In this case, as in Rojhani, supra, Crown counsel invited the court to conclude that the late presentation and lack of notice of the application was a calculated defence tactic. Upon review of the examination of witnesses by defence counsel it is evident that the groundwork for the motion was being laid at an early stage in the trial. The repair book was repeatedly singled out as being a source of information with respect to the firearms and its physical location and presence in photographs taken on the day of the execution of the police warrant was confirmed by defence counsel on cross-examination of Crown witnesses. I m satisfied that the motion was either contemplated by defence counsel or, at the very least, could have been foreseen by the due diligence of defence counsel. Further, I am satisfied that to permit the motion to go forward after the close of the case for the Crown and defence would require the court to permit the Crown to recall various witnesses, and perhaps call others, to address the issue. Again, as was the case in Rojhani, there have already been a number of adjournments and delays in this case and to reopen the matter at this juncture would cause unjustifiable expense and delay. I find that the administration of justice would not be best served by granting the defence request. [70] Had the motion gone forward on the basis of the evidence already before me I would have dismissed the motion on its merits. As I have indicated above, the accused himself retained possession of the repair book following the execution of the police warrant, and the accused was forewarned of the impending seizure by the Sheriff. The accused declined the opportunity to collect or retain and protect the records, including the repair book, purporting to believe that records must always be physically maintained with the firearms to which they relate. The evidence shows that the accused paid little or no respect to that principle in his prior conduct and it is

20 Page: 18 not credible for him to claim that as a reason for not wanting to maintain possession of the repair book. [71] As well, I considered the accused s Charter motion in the context of any possible due diligence defence. At no time did the accused suggest there was anything in the repair book or other records that would have in any way provided substantial information that could have aided the accused in his defence. The onus was on the accused to show that he was the holder of registration certificates for the firearms in question. The accused confirmed that none of the records in his possession or at the retail location at the time of either the police seizure or the Sheriff s seizure would have included any registration certificates or applications for registration certificates. For all the foregoing reasons, I dismiss the Charter motion made on behalf of the defence. [72] I find the Crown has proven each element of the offence beyond a reasonable doubt in respect of each count. The defence has not met the onus on it with respect to section of the Criminal Code. I, therefore, find the accused guilty on each of counts 2, 3, 4, 5, 6, 9, 10, 21, 23, 28, 29, 30, 32, 34, 35, 37, 38, 39, and 41. J. May 1, 2009.