COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Batty, 2014 ONCA 620

DATE: 20140905

DOCKET: C58218

Sharpe, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Douglas Batty

Appellant

Philipp Millar, for the appellant

Mabel Lai, for the respondent

Heard: August 12, 2014

On appeal from the decision of the Summary Convictions Appeal Court dated December 17, 2013 by Justice Paul J. Henderson of the Superior Court of Justice, dismissing the appeal from the conviction entered on January 29, 2013 and the sentence imposed on March 26, 2013 by Justice Michael P. O’Dea of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant seeks leave to appeal from the decision of a summary conviction appeal judge upholding his conviction for careless use of a firearm. If leave is granted, he submits that the conviction should be set aside on the ground that the facts as found by the trial judge are incapable of reasonably supporting the inference that his use of the rifle was necessarily careless.

[2] The appellant resides in a rural area. The trial judge found that he led a wandering dog to another property across the road, and fired the gun to scare the dog. The trial judge made no findings as to the manner in which the rifle was fired, as he concluded that witnesses who heard the shot did not see the gun fired. He concluded that the location of the shot, beside the road and in close proximity to neighbouring inhabited properties, was inherently dangerous, particularly given that the purpose of the shot was to scare the dog.

[3] The summary conviction appeal judge upheld this conclusion, holding at para. 22:

He correctly applied the objective test to the circumstances of the case. Viewing the incident from the eyes of a reasonably prudent person, there is no doubt the discharge of the gun jeopardized the safety of anyone in the area. The fact that the incident occurred in a rural area does not of itself alleviate the appellant’s responsibility to use due care and attention. That there were no witnesses to the discharge does not mean the trial judge cannot consider all of the circumstances. As he wrote, on the facts, the discharge was inherently dangerous. He can draw reasonable inferences from the circumstances and I find the inferences he drew were reasonable.

[4] The appellant testified that he was experienced in the use of firearms and that he routinely shot “weasels, rats and vermin” to keep them away from his chickens. He denied firing a gun at all on the occasion alleged by the prosecution, but this evidence was rejected.

[5] In our view, the trial judge and the summary conviction judge both erred in concluding that firing a shot in this rural environment, whatever the manner in which the shot was fired, necessarily amounted to a marked departure from the conduct of a reasonable person. The generality of the findings supporting the conclusion that the use of the rifle was careless may have broader significance relating to permissible farm practices, and we grant leave to appeal.

[6] Absent any finding as to the manner in which the rifle was used or the trajectory of the projectile, there may have been any number of ways in which the shot could have been fired which might have posed no risk to others, and the conviction cannot be sustained. This is not a situation like a shooting in a shopping mall, which would be inherently dangerous. While this court cannot “revisit factual findings or correct errors of mixed fact and law” (R. v. R.R., 2008 ONCA 497, 234 C.C.C. (3d) 463 at para. 24), an absence of findings capable of supporting guilt amounts to an error of law (R. v. Seath, 1999 ABCA 347, [2000] A.W.L.D. 93 at para 28 referring to R. v. Schuldt, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592, [1985] S.C.J. No. 76 at 599).

[7] There was some evidence upon which findings might have been made as to the manner of use of the rifle and whether it was safe. A new trial is therefore required.

[8] Given these conclusions, it is not necessary to consider the appeal from sentence. Accordingly, the appeal is allowed, the conviction for careless use of a firearm is set aside, and a new trial is ordered.

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”

“G. Pardu J.A.”