COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gouliaeff, 2012 ONCA 690

DATE: 20121015

DOCKET: C53582

Cronk, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Alexander Gouliaeff

Applicant/Appellant

Matthew Gourlay, for the appellant

David Finley, for the respondent

Heard and released orally: October 10, 2012

On appeal from the conviction entered on April 10, 2010 and the sentence imposed on April 30, 2010 by Justice Donald J. Gordon of the Superior Court of Justice, sitting with a jury.

BY THE COURT:

[1] Following a trial by judge and jury, the appellant was convicted of four counts of careless storage of a firearm, contrary to s. 86(1) of the Criminal Code. He was acquitted of one count of careless storage and six counts of unlawful possession of a firearm. A sixth count of careless storage of a firearm was withdrawn by the Crown. The appellant was sentenced to three months’ imprisonment, consecutive, on each of the four counts for which he was convicted, for a total of 12 months’ imprisonment. In addition, a five-year weapons prohibition order was imposed under s. 110 of the Code. The appellant appeals his convictions and sentences.

A. Conviction Appeal

[2] The appellant raises one ground of appeal in support of his conviction appeal. He argues that the trial judge misdirected the jury on the requisite elements of the offence of careless storage of firearms under s. 86(1) of the Code by failing to instruct the jury that any breach by the appellant of the safe storage of firearms guidelines set out under the relevant firearms storage regulations was insufficient to make out an offence under s. 86(1). The appellant says, as outlined in his factum, that this error had the effect of lowering the negligence threshold that the Crown was required to prove under s. 86(1), thereby wrongly transforming the offences at issue into strict liability offences.

[3] We reject this argument.

[4] The sole issue at trial with respect to the pertinent charges was whether the appellant’s conduct in storing the firearms in question amounted to a marked departure from the standard of care that a reasonably prudent person would exercise in the same circumstances.

[5] In his charge, the trial judge explicitly told the jury to consider “all of the circumstances” and, on four separate occasions, instructed the jury on the applicable marked departure/reasonableness standard required for a finding of carelessness under s. 86(1) of the Code. While the trial judge did review the relevant firearms storage regulations with the jury, he also reviewed additional evidence relevant to the appellant’s manner of storage of the firearms and cautioned the jury to consider both the regulations and the defence evidence.

[6] Further, at the close of his charge, when reviewing the defence position at trial, the trial judge again referred to the correct legal standard required for conviction and, without qualification or criticism, repeated the defence assertion that “[T]he regulations do not apply. What is required is a marked divergence from the standard.”

[7] When the charge is read as a whole, we are satisfied that the trial judge’s instructions adequately conveyed to the jury that the provisions of the firearms storage regulations were but one piece of evidence that may be considered by the jury in determining whether the appellant’s storage of the firearms amounted to the requisite marked departure from the standard of care that a reasonably prudent person would exercise in the same circumstances.

[8] We note that the trial judge’s jury charge followed shortly after the closing addresses of counsel. In his address, defence counsel repeatedly emphasized that the appellant had not been charged with a breach of the firearms storage regulations but, rather, with careless storage of the firearms. Counsel’s submissions clearly underscored for the jury that a breach or breaches of the firearms storage regulations, if proven, were not determinative of the careless storage charges. We also note that defence counsel did not object to the jury charge on the ground now advanced on appeal.

[9] Finally, in our view, any doubt that the jury may have been confused by the requisite standard of care to establish criminal culpability under s. 86(1) of the Code is belied by the jury’s verdict of acquittal on one of the careless storage charges. We agree with the Crown’s submission that the jury’s verdict on this count indicates that, notwithstanding the provisions of the regulations, the jury had a reasonable doubt as to whether the appellant’s storage of the relevant firearms amounted to a marked departure from the applicable standard of care.

[10] For these reasons, the conviction appeal is dismissed.

B. Sentence Appeal

[11] The Crown concedes, and we agree, that the appellant’s sentence appeal must be allowed.

[12] The trial judge’s reasons for sentence reveal that he considered the appellant’s rehabilitative potential. The evidentiary record indicates that the appellant made some efforts to comply with the law regarding the proper storage of firearms and there appears to be little prospect of his reoffending. However, the reasons suggest that the appellant’s rehabilitative prospects were treated as a neutral factor or “non-issue” – rather than as a mitigating factor – by the trial judge. With respect, this was an error. The appellant’s positive potential for rehabilitation should have worked to his benefit on sentencing.

[13] Further, while the trial judge’s decision to impose consecutive, rather than concurrent, sentences is a matter that would normally attract deference from this court, the reasons afford no explanation for why consecutive sentences were justified for this offender and these offences (all on-going, simultaneous careless storage offences). We agree with the Crown that this was a case for concurrent sentences.

[14] The appellant was released on bail pending appeal after having served more than seven months of his custodial term. Thus, his bail release occurred within a few weeks of the likely expiry – at eight months – of his reformatory sentence.

[15] In these circumstances, we agree with the Crown’s submission that the appellant’s jail sentence should be varied to time served and we so order. In our view, given the nature of these firearms, the manner of their storage by the appellant, the appellant’s knowledge of the requirements for safe storage (based on the firearms courses that he had completed shortly before his arrest) and the appellant’s criminal antecedents, it cannot be said that the imposition of an absolute discharge at this stage is justified.

[16] We also agree that the length of the appellant’s prohibition order should be reduced from five to two years. The appellant received a significant sentence of imprisonment that he has now served almost in its entirety. This factor, together with the evidence of the appellant’s living circumstances prior to his conviction (on a farm in a rural setting involving both hunting and predator protection) suggest that the protective purposes of the prohibition order can be adequately met by a term of two years.

C. Disposition

[17] Accordingly, for the reasons given, the conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is allowed by varying the appellant’s incarceration to time served and reducing the duration of his prohibition order from five to two years.

RELEASED:

“OCT 15 2012” “E.A. Cronk J.A.”

“EAC” “Sarah Pepall J.A.”

“M. Tulloch J.A.”