DATE: 20041206

DOCKET: C42055

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) -and-

GUIDO BRUESKE (Appellant)

BEFORE:

CRONK, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Calvin Martin, Q.C.

for the appellant

David Carruthers

for the respondent

HEARD AND RELEASED ORALLY:

December 2, 2004

On appeal from the judgment of Justice Myrna L. Lack of the Superior Court of Justice, sitting as a summary conviction appeal court judge, dated June 21, 2004 dismissing an appeal against the convictions entered by Justice Lorne E. Chester of the Ontario Court of Justice dated January 6, 2003.

E N D O R S E M E N T

[1] On January 6, 2003, the appellant was convicted by L. E. Chester J. of the Ontario Court of Justice on one count of possession of a weapon for a purpose dangerous to the public peace and four counts of storage of a firearm without reasonable precaution for the safety of other persons. His appeal against these convictions was dismissed on June 21, 2004 by M. L. Lack J. of the Superior Court of Justice, sitting as a summary conviction appeal court judge. The appellant now seeks leave to appeal to this court against these convictions and, if leave be granted, appeals his convictions.

[2] The appellant argues that the trial judge erred: (i) in finding that the appellant’s possession of his shotgun was for a purpose dangerous to the public peace; and (ii) in holding that the appellant’s firearms were stored without reasonable precautions for the safety of other persons.

(1) Weapons Dangerous Conviction

[3] The summary conviction appeal court judge held, with respect to the weapons dangerous conviction, that the factual findings of the trial judge were dispositive of the appellant’s appeal against this conviction. We agree. The trial judge found that: (i) the appellant knew that the men in his home were police officers as soon as they entered; and (ii) the appellant failed to comply with the orders of the police officers by not showing his left hand, in which he was holding a gun, immediately when asked to do so, by failing to put the shotgun down when initially asked to do so, and by putting the gun down only after a second request by the police and after he adopted a ‘gun-readiness’ stance that caused the police officers to draw their own firearms.

[4] In effect, when directed by the police to put the gun down, not only did the appellant fail to do so, but when requested a second time by the police to put the gun down, he exacerbated the situation by assuming a ‘gun-readiness’ position. Everything up to that point indicated non-compliance by the appellant with the directions of the police officers. The appellant put the gun down only after the police twice requested that he do so and after they had drawn their own weapons in response to the appellant’s actions.

[5] On these findings, which are amply supported by the record, it was open to the trial judge to conclude, as he did:

I find then that from the moment that the officers stepped into his home until he put the shotgun down and cracked it open, his purpose was dangerous. He was no longer protecting or defending himself, his wife, children or his home. Instead of complying with their orders, he basically ignored them or took an active step by putting his right hand on the grip by getting what the police call “gun-ready”.

[6] Therefore, we reject the appellant’s appeal against this conviction.

(2) Careless Firearms Storage Convictions

[7] We reach a similar conclusion concerning the appellant’s challenge of his convictions on the careless firearms storage charges. The trial judge found that there were unloaded and unsecured firearms in the appellant’s home. Ammunition was readily available and present in the home in abundance; the firearms were haphazardly positioned in various locations throughout the home; no trigger locks were in place on any of the firearms; and two children, aged 9 and 13 years, were present in the home.

[8] The trial judge concluded that the Crown had demonstrated that the appellant’s conduct in connection with the firearms, as we described in paragraph (7) of these reasons, showed a marked departure from the standard of care that would be exercised by a reasonably prudent person in all the circumstances.

[9] The summary conviction appeal court judge held that “there was absolutely no doubt” that the convictions for careless firearms storage were supported by the evidence, particularly in light of the fact that there were children in the premises. We agree.

[10] Once again, the factual findings of the trial judge, which attract deference from this court, are determinative.

[11] Accordingly, for the reasons given, leave to appeal is granted and the appeal against all convictions is dismissed.

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”