INFORMATION NO. 24259508 2007 SKPC 45 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT NIPAWIN, SASKATCHEWAN Between: HER MAJESTY THE QUEEN and LORRIE MILDRED FEDERUIK Mr. T. Healey for the Crown Mr. R. Saretzky for the Defendant ______________________________________________________________________________ B. G. MORGAN, PCJ DECISION June 6, 2007 ______________________________________________________________________________ Introduction [1] The defendant was charged for, on November 17, 2005, storing a firearm in a careless manner, and for resisting a peace officer engaged in the lawful execution of his duty, both charges arising out of events that occurred in Nipawin, Saskatchewan. In an earlier unreported decision (2007 PCU 05), I dismissed a defence application alleging a Charter breach, an application which was heard on a voir dire. By consent, all of the evidence on the voir dire, both from the Crown and defence, was applied to the trial proper, and neither the Crown nor the defence called any further evidence. One issue to be decided is whether the firearm was stored, or whether it was transported, and if the former, whether that storage was done in a careless manner. The other issue revolves around whether or not the conduct of the defendant amounted to a resistance. Summary of Facts





[2] Constable Waldbauer and Constable Eagan, both members of the Royal Canadian Mounted Police stationed in Nipawin, Saskatchewan, responded to a complaint made by the adult daughter of the defendant. The daughter complained to Cst. Eagan that her mother had come to the daughter’s home, was very argumentative, and would not leave when asked. The officer was advised by the daughter that the defendant was “flipping out” and that the defendant had stated that she was going to blow her head off. By the time the police arrived at 9:40 P.M., the defendant had left. The officers went right away to the defendant’s house, a few doors away, and encountered her on the porch area there. [3] Each officer testified that he or she heard growling noises coming from the bushes near the daughter’s home. Cst. Waldbauer testified that the noise was like a bear or a dog sound, although a sound clearly made by a human. Cst. Eagan referred to the noise as a growling sound, coming from the bushes just south of the daughter’s residence. Both officers testified as to following that noise towards the defendant’s house. Although Cst. Waldbauer could not say that it was the defendant who made the noise, he thought it was her because no one else was in the area. Cst. Eagan testified that she caught a glimpse of the defendant going from her porch into her house, presumably at the time the police were following the noise. The defendant testified that she was not growling, and that her daughter’s dog was tied up in the bush. Rather, she says, she was in the porch area when she saw the police coming, and came out to speak to them. [4] I have some difficulty in reconciling the two versions of events, and I find the defendant’s explanation of her daughter’s dog being in the bush somewhat suspicious. My finding is that the defendant, who was by her daughter’s account, as communicated to Cst. Waldbauer, “flipping out”, was very upset, and undoubtedly would be breathing hard when she left her daughter’s home to go to her home; I conclude that the “growling” that each officer heard was this heavy breathing. I accept Cst. Eagan’s evidence that she saw the defendant leaving the porch area, and going to the house as opposed to the defendant’s version that she saw the police coming, and thus came out of the porch area. The evidence satisfies me that the police were not far behind the defendant, who was clearly very upset. My finding as to this state of upset that the defendant was in is supported by the observations of the officers at the time that they met with the defendant.





[5] Each officer testified that the defendant was drunk and argumentative. Cst. Waldbauer testified that the defendant had a strong odor of alcohol on her breath, was basically incoherent, and was swaying back and forth. The officer arrested her, based on the events at her daughter’s residence, and as he was trying to put handcuffs on the defendant, she became particularly combative. He stated that he and Cst. Eagan struggled with the defendant for a good 20 to 30 seconds before getting the cuffs on her, and that on the way to the police station, the defendant was banging her head on the “silent patrolman”. She was no more co-operative when they arrived at the station, and the police tried to remove the cuffs. Cst. Waldbauer testified that the defendant was dropping to her knees, and fighting, and that when the police finally got the cuffs off, and tried to remove a ring she was wearing preparatory to placing her into a cell, they simply could not do so due to the defendant’s struggles. She was eventually placed into a cell, where she stayed overnight, and was released the next morning. [6] Cst. Eagan testified that the defendant was “grossly intoxicated” and she echoed the concerns that Cst. Waldbauer had respecting the defendant’s balance. Cst. Eagan testified that she had real concerns that the defendant would fall over. She estimated that it took approximately one minute to put the handcuffs on the defendant, at her residence, and that the defendant was very upset in the police car. Cst. Eagan said that she could hear banging in the police car while they were en route to the detachment, which would seem to confirm Cst. Waldbauer’s observations as to the head banging, and she also commented that the defendant was screaming on the way to the police station. As she put it, “when she spoke she wasn’t making any sense”, and Cst. Eagan also noted that the defendant was “very verbally belligerent”. [7] According to Cst. Eagan, matters did not get any better upon arrival at the detachment. She testified that the defendant was struggling more there than she had been before, that she was “screaming and hollering”, and “twisting away”. After about ten minutes of this, Cst. Eagan decided that any further efforts to remove the ring that the defendant refused to give up were pointless, and expressing concerns about the safety of each of the officers and the defendant, helped Cst. Waldbauer to lodge the defendant in a cell.





[8] The defendant testified that she had taken a table out of her daughter’s residence that evening due to an argument, had left it on the lawn, and next thing she knew, the police showed up at her door. She admitted to having “had a few”, and admitted resisting the officers’ attempts to put her in the car. Although she was suggesting that the police did not tell her why she had to go in to the car, when asked if the police told her that she was under arrest, she did say that they “were telling me that as I was rassling around”. She stated that, upon being arrested, she expressed a desire to speak to a lawyer once they all got to the detachment, but was shoved in a cell, and never did get an opportunity to make a call. Cst. Waldbauer testified that the defendant wouldn’t comply with any directions, and was extremely agitated. Cst. Eagan testified that she did a “risk assessment” and came to the conclusion that the defendant was so far out of control, there were concerns for officer safety, as well as the safety of the defendant, if she were to be let out of the cell. [9] As to the firearms charge, the evidence of Cst. Waldbauer is that he heard Cst. Eagan talking to the defendant, while the police were at the house, and that the defendant stated that there was a gun in the car, inviting Cst. Eagan to take a look if she wanted to. Cst. Eagan, having known of the threat by the defendant to shoot herself, had walked over to the car, while at the house, to see if there was a gun inside, but could not see inside the vehicle. That was when the defendant volunteered to her that there was a gun inside the vehicle, and that the constable could take a look if she wished to. At this point, the struggle between the defendant and Cst. Waldbauer ensued, which ended with the defendant being placed in the police car. After the situation was stabilized, Cst. Eagan went back to the car, and located the rifle in the back seat, under some clothes, with the bolt of the rifle in the open position. A magazine that ultimately turned out to contain ammunition for that rifle was located in the console of the vehicle. Cst. Waldbauer test-fired the rifle a few months later, using the magazine located in the console of the vehicle, and there is no dispute that the rifle was operable, and that the magazine of ammunition was able to be used in that rifle.





[10] The undisputed evidence of the defendant was that she had been hunting between approximately 3:00 P.M. and 5:30 P.M. that day, and upon her return to her residence, had parked her vehicle in the driveway. Her vehicle, a 1990 Dodge Shadow, was a hatchback, that is, it had no trunk. She locked the rifle in the back of her car, wrapped up the rifle so that no one would see it, and put the magazine in the console. The gun was not loaded. Position of the Parties [11] Count 1 was amended at trial and charges the defendant as follows: “...did without lawful excuse store a firearm, to wit.303 British Bolt Action Rifle in a careless manner contrary to section 86(1) of the Criminal Code”. The defence argues that the defendant, having been hunting earlier in the day, was entitled to leave her firearm in the vehicle for a reasonable period, prior to returning it to the storage cabinet in the house. Additionally, the defence argues that the way that the gun was lodged in the vehicle was in compliance with regulations that deal with the storage and transportation of firearms, and further questions whether or not the firearm was “stored”, as charged, or “transported”, as also referred to in section 86. The Crown argues that this is not a case of transportation of a firearm in a vehicle, as the defendant had ample time to put the firearm back into safe and secure storage. As well, the Crown argues that the manner in which the firearm was left in the vehicle was such as to be careless, based on the facts, and that therefore the charge is made out. [12] Count 3 (count 2 being stayed by the Crown) charges that the defendant: “...did resist Cst. Garnet Waldbauer a peace officer engaged in the lawful execution of his duty by struggling and pulling away contrary to section 129(a) of the Criminal Code.”





The defence argues that the uncooperative attitude of the defendant does not equate to actual resistance and that this situation was no more than the police could expect to have to deal with on a daily basis, particularly with intoxicated individuals. The Crown responds to this by arguing that this situation was a long, drawn out act of resistance and that intoxication is not a defence to this offence. Analysis Storage of a firearm in a careless manner [13] There is no doubt that the rifle is a “firearm” as defined in the Criminal Code, and there is equally no doubt that the rifle was operable. What needs to be determined is what the applicable standard of care is, and whether or not the defendant has fallen below that standard. [14] In R. v. Blanchard (1994), 103 C.C.C. (3d) 360, 1994 CanLII 5251 (Yk. T.C.), Manson J. undertakes a useful review of the fault requirement in cases broadly described as dealing with “penal negligence”. Without repeating the analysis set out in that case, or other cases for that matter, I am satisfied that the appropriate method of analysis is to determine whether or not the defendant’s conduct reflects a marked departure of the standard of care of a reasonably prudent person, in order to assess, on an objective basis, whether or not liability has been established. [15] Each counsel takes the view that I can refer to the regulations (in this case, the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations SOR 98-209) as a framework to assist in determining an appropriate standard for storing or transporting firearms. That was the approach taken in Blanchard and is an approach that I will incorporate in deciding this case. [16] Dealing firstly with whether or not the rifle was being “stored” or “transported”, I find that





the firearm was stored, albeit temporarily. The defendant’s evidence is that she was hunting earlier that day, and returned at approximately 5:30 P.M. The complaint to the police, made by the defendant’s daughter, was received at 9:22 P.M., almost four hours later. There was ample time in the interim for the defendant to take the firearm from the car, and return it to secure storage in the house. The fact that she elected to wrap the rifle in clothes, to make it less visible to passers-by, supports my view that she deliberately elected not to return the firearm to the house, opting instead to store the rifle in her vehicle. [17] In R. v Carlos, 2002 SCC 35 (CanLII), [2002] 2 S.C.R. 411, the Supreme Court allowed a Crown appeal, and entered convictions on one count of careless storage of a firearm under section 86(1), and two counts of contravention of the regulations. In that case, the defendant had testified that he had taken three guns out of his safe to clean them, had loaded them, and was then interrupted by the arrival of the police, who were at his home to execute a search warrant. He hid the guns, and was acquitted at trial, an acquittal that was upheld on appeal, on the basis that he had not “stored” the guns. In allowing a further Crown appeal and entering convictions, the Supreme Court noted that “...there is no requirement that...the accused plan a long-term or permanent storage”. (see para 3). As Ryan, J.A. noted in the dissenting Court of Appeal judgment in Carlos: A firearm has been “stored” when it has been put aside and the accused is not making any immediate or present use of it. There is no need to establish that the firearm has been put aside for a “lengthy period”. Such a requirement is ambiguous, and does not provide any guidance as to when “use” has ended and “storage” has begun. - see (2002), 2001 YKCA 6 (CanLII), 48 C.R. (5th) 57 (Y. T. C. A.), at pages 65 and 66. [18] Was that storage careless? The regulations respecting storage of a non-restricted firearm (which this rifle is) state: 5. (1) An individual may store a non-restricted firearm only if (a)it is unloaded; (b)it is (i) rendered inoperable by means of a secure locking device, (ii) rendered inoperable by the removal of the bolt or bolt-carrier, or





(iii) stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into; and (c)it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into. [19] The relevant portion of the regulations dealing with the transportation of non - restricted firearms state: 10. (1) An individual may transport a non-restricted firearm only if (a)except in the case of a muzzle-loading firearm that is being transported between hunting sites, it is unloaded; and (b)in the case of a muzzle-loading firearm that is being transported between hunting sites, its firing cap or flint is removed. (2) Subject to subsection (3), an individual may transport a non-restricted firearm in an unattended vehicle only if (a)when the vehicle is equipped with a trunk or similar compartment that can be securely locked, the non-restricted firearm is in that trunk or compartment and the trunk or compartment is securely locked; and (b)when the vehicle is not equipped with a trunk or similar compartment that can be securely locked, the non-restricted firearm is not visible from outside the vehicle and the vehicle, or the part that contains the non-restricted firearm, is securely locked. [20] On the evidence, the defendant was not in compliance with the regulations as to storage. There is no evidence that there was any type of locking device on the rifle, and the evidence from each of Cst. Eagan and the defendant is that the bolt was not removed from the rifle. A vehicle is not any of a “container, receptacle or room”, and in any event, the vehicle was not securely locked and constructed so that it could not readily broken into; one could simply break the window of the vehicle to gain entry. The ammunition was readily available in the console.





[21] The defendant relies on that portion of the regulations that deal with transportation of a non-restricted firearm, but for the reasons given, I have concluded that the firearm was stored, with the result that section 10 of the regulations is not applicable. To the extent that section 10 can be relied on to objectively assess the standard of care exhibited by the defendant, I note that the vehicle could not in any event be “securely locked”. [22] Unless I am satisfied that the conduct of the defendant exhibited a “marked departure” of the standard of a reasonably prudent person in the circumstances of the defendant, I must acquit her. In this case, the defendant knew that she had an operable firearm, and ammunition for that firearm, in a locked hatchback car. Whereas she did take some steps to conceal the firearm, a reasonable person, in assessing the potential risk of the vehicle being broken into, and the serious consequences that could arise if the firearm and ammunition were stolen, would have adverted to that risk, and returned the firearm to a safe location. Instead of doing that, the defendant started drinking almost immediately after returning from her hunting trip. On these facts, I am satisfied beyond a reasonable doubt that the conduct of the defendant displayed a marked departure from that of a reasonably prudent person in the circumstances, and I find her guilty of count 1. Resist a peace officer in the lawful execution of his duty [23] The Crown must establish that Cst. Waldbauer was in the lawful execution of his duty, and that the defendant resisted him by struggling and pulling away. [24] Cst. Waldbauer testified that the defendant was very intoxicated and that due to the threats that she had made earlier, he arrested her for mischief. He also said that he had been informed by Cst. Eagan, at the time that the police were at the home, that the defendant had threatened to blow her own head off. [25] Section 495 sets out the circumstances under which a peace officer may arrest an individual without a warrant. That section states:





495. (1) A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (b) a person whom he finds committing a criminal offence; or (c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. (2) A peace officer shall not arrest a person without warrant for (a) an indictable offence mentioned in section 553, (b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or (c) an offence punishable on summary conviction, in any case where (d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (i)establish the identity of the person, (ii)secure or preserve evidence of or relating to the offence, or (iii)prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (e)he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law (3) Notwithstanding subsection (2), a peace officer acting under subsection(1)is deemed to be acting lawfully and in the execution of his duty for the purposes of (a) any proceedings under this or any other Act of Parliament; and (b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2). R.S., c. C-34, s.450; R.S., c.2 (2nd Supp.), s. 5; R.S.C. 1985, c. 27 (1st Supp.), s.75. [26] In this case, based on what was known to the officer at the time, the arrest was lawful if for no other purposes than to prevent the repetition of the offence of mischief or the commission of another offence.





[27] I repeat the findings that I made in determining the earlier application on the alleged Charter breach: (i) The defendant was severely impaired, according to the evidence of trained and objective observers. The defendant may take issue with the extent of her impairment, but she does acknowledge having “had a few”. I am of course not required to accept the police officer’s evidence on this point, or any other point. However, I find support for their observations in their evidence as to the extreme unsteadiness displayed by the defendant, and the behavior of the defendant in, for example, banging her head on the silent patrolman, and her generally belligerent attitude; (ii) The defendant was actively resisting arrest. She acknowledged that she was “resisting” in her testimony. I accept that she was advised of the reasons for her arrest. Her resistance to the arrest arose not out of any misapprehension as to what was happening; it arose out of her determination to defy the arresting officers, and in particular, Cst. Waldbauer. As she acknowledges, the police were telling her of the arrest as she was, in her words, “rassling around”. I find that Cst. Waldbauer told her of the reasons for the arrest prior to the altercation. In point of fact, that was the reason for the struggle. I cannot accept, in the circumstances in which the defendant was asked to leave her daughter’s residence, after dragging a table out of the house and leaving it on the lawn, and making statements that she was going to harm herself, that she was particularly surprised to see the police arrive. Much evidence was led as to the size of the arresting officers, and the size of the defendant, but as the Crown correctly points out, a defendant is not justified in joining the police in “battle” because the police are physically larger.



