Court File and Parties

COURT FILE No.: Toronto Information No. 10-602767 (Old City Hall) Citation: R. v. McCullough, 2012 ONCJ 17

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

GARY McCULLOUGH

Before: Justice D. A. Fairgrieve Reasons for Judgment released on: January 6, 2012

Counsel: Ryan Wilson for the Crown James Carlisle for the accused Gary McCullough

FAIRGRIEVE J.:

[1] Mr. McCullough is charged with possession of a weapon, specified as "a fully-loaded crossbow," for a purpose dangerous to the public peace, an offence contrary to s. 88(1) of the Criminal Code of Canada. The offence was allegedly committed in Toronto on June 24, 2010, a short distance from where the G20 Summit was to start two days later.

[2] While the case eventually turned out to be quite straightforward, for a number of different reasons the trial itself was a particularly protracted one, proceeding intermittently over a number of days spread over the course of an entire year. As often happens, procedural and Charter issues slowed the progress of the trial, but it was time usefully spent given that the determination of the constitutional questions had a direct bearing on the admission of evidence and the ultimate decision concerning the accused's guilt or innocence.

[3] The first interruption, lasting more than two months, came the day the trial started on October 20, 2010. After the defence raised the issue of the accused's fitness to stand trial, a hearing was held. Dr. Pallandi, the psychiatrist assigned that day to the Mental Health Court here at the Old City Hall, examined Mr. McCullough and testified that the defendant was then in a manic state due to his mental disorder. Dr. Pallandi's opinion was that Mr. McCullough suffered from either schizophrenia or a schizo-affective disorder that rendered him at that time incapable of properly instructing counsel. With the concurrence of both parties, the accused was found unfit to stand trial, and the trial resumed only on December 20, 2010, after Mr. McCullough had received the benefit of a treatment order that allowed him to be found fit to proceed with the trial.

[4] As the matter progressed, much of the evidence and argument focused on the Charter application that the defence brought. While both parties agreed to the prosecutor calling his evidence by way of a blended trial and voir dire, before the close of the Crown's case the defendant himself testified at length with respect to the Charter complaints that had been made. I ultimately concluded that although there was no s. 8 Charter breach when P.C. Dobro seized the crossbow from the rooftop carrier secured to the accused's car, Mr. McCullough's right to counsel guaranteed by s. 10(b) was violated when he was questioned by P.C. Maxwell as to his explanation for possessing the weapon during the investigative detention that accompanied the seizure. As a result of those findings, the evidence of Mr. McCullough's statements, which, it might be noted, had both inculpatory and exculpatory aspects in relation to the alleged offence, was excluded pursuant to s. 24(2).

[5] Although the timing and location of Mr. McCullough's arrest shortly before the G20 Summit meetings reflected the heightened security concerns and police vigilance at the time, it was eventually conceded that there was no evidence that the G20 had any relevance to the accused's possession of the crossbow. One irony, however, was that because of the timing of his arrest, Mr. McCullough was taken to a special prisoner processing centre that had been set up to handle G20 protesters that, unfortunately, seemed to have more cumbersome procedures for ensuring compliance with an arrestee's Charter rights than a person would have encountered if one had simply been taken to a normal police station and booked in the usual way.

[6] Despite the complicating factors that prolonged the trial well beyond the original time estimate and required several different continuation dates, the case turned out to be a fairly straightforward one that can now be determined simply by the application of basic principles of criminal law. Mr. McCullough is, of course, presumed to be innocent of the charge against him, and that presumption is displaced only when the Crown has proved all of the essential elements of the alleged offence beyond a reasonable doubt.

[7] The elements of the s. 88(1) offence have been identified in a number of appellate judgments that perhaps add little to the plain language used in the Code provision. The leading case at this point is probably R. v. Kerr (2004), 2004 SCC 44, 185 C.C.C. (3d) 1 (S.C.C.), in which the seven judges who heard the appeal produced four different sets of reasons. There was nonetheless no disagreement that the actus reus of the offence consists of the accused's "possession," within the legal meaning of that term, of a "weapon," as defined in s. 2 of the Code. On behalf of the defendant, Mr. Carlisle conceded both that the evidence established that Mr. McCullough had possession of the loaded crossbow seized by the police from the homemade roof carrier he had tied to the top of his car and that the crossbow came within the statutory definition of "weapon." In my view, inasmuch as a crossbow was "designed" to be used to cause death or injury, it clearly comes within the statutory definition of a "weapon." Certainly, armies which armed themselves with crossbows during the Middle Ages viewed them as such. Likewise, Mr. McCullough immediately referred to the crossbow when P.C. Dobro, the officer who stopped his car, asked him if he had any weapons, demonstrating at least that the defendant subjectively regarded it himself in that way. Despite Mr. Carlisle's contrary submissions at the time of his motion for a directed verdict dismissing the charge, the defence has now conceded the point.

[8] The only issue in this trial, both parties agree, is whether the Crown has proved beyond a reasonable doubt the requisite mental element of the offence, that is, that the purpose of the accused's possession of the weapon was in fact dangerous to the public peace. All of the judgments in Kerr identify an accused's purpose in possessing the weapon in question as the central issue when dealing with a charge under s. 88(1). Bastarache J., with whom Major J. concurred, held that an accused's purpose is to be determined subjectively, i.e., by examining what the accused himself intended to have the weapon for, and then making an objective determination of whether that purpose was dangerous to the public peace. Lebel J., with whom Arbour J. concurred, held that it is a completely subjective determination, such that the Crown must prove that an accused actually intended to use the weapon to do harm to persons or property, or was reckless in that regard. This subjective mental element, and particularly the reference to recklessness in this context, was explained by Lebel J., at para. 88, to require knowledge on the part of an accused of the danger that his conduct in possessing the weapon could bring about the prohibited result, namely, harm to persons or property, but that he nevertheless persisted in his conduct despite the risk. Quoting from the reasons of McIntyre J. in R. v. Sansregret (1985), 1985 CanLII 79 (SCC), 18 C.C.C. (3d) 223 (S.C.C.), Lebel J. distinguished recklessness from mere negligence, making it clear that s. 88(1) does not import an objective standard of dangerousness in assessing the accused's conduct.

[9] Interestingly, the respective judgments given by Bastarache J. and by Lebel J., even with their differing approaches to the mens rea of the offence, both quoted with approval the same passage from the reasons of Gale C.J.O. in R. v. Nelson (1972), 1972 CanLII 400 (ON CA), 8 C.C.C. (2d) 29 at p. 31 (Ont. C.A.) as follows:

A final conclusion as to what [the purpose of the possession] was is to be arrived at after considering all of the relevant circumstances of the case, including the nature of the weapon, the circumstances under which the accused had it in his possession, his own explanation for that possession, and the use to which he actually put it, if that sheds light on what his purpose was in originally having it.

While the considerations enumerated by Chief Justice Gale were clearly not intended to be exhaustive, they nonetheless assist in guiding the appropriate inquiry.

[10] In this case, the evidence on which the Crown relies consists essentially of the observations made by P.C. Dobro after he pulled over the accused's vehicle because of his concern about the safety of the rooftop carrier. When Mr. McCullough admitted that he had a loaded crossbow, after the officer asked him if he had any weapons, he unlocked and opened the carrier at the officer's request. P.C. Dobro testified that the loaded crossbow was "under tension," with the razor-tipped bolt cocked, but with the safety on, pointed towards the rear of the carrier. He described the crossbow as sitting loosely among other property in the carrier that included three cans of gas, an oversized truck jack, a sling shot with a hundred small ball bearings, a chainsaw, a baseball bat, prybars, a 7-foot long piece of wood and four other crossbow arrows in a quiver.

[11] The roof carrier itself was made of plywood with a liner of aluminum sheeting, and locked by an iron rod that secured the top with a padlock on either side. While P.C. Dobro expressed the opinion that the razor-tipped arrow could penetrate the aluminum and wood box and would be capable of killing a large animal if used for hunting, the crossbow was never test-fired and it was not proved that the bolt would in fact penetrate the carrier if the weapon were discharged.

[12] The other circumstances surrounding the accused's possession of the weapon included the evidence that the accused's car looked "lived in," with a number of personal items scattered throughout it, including computers, cell phones and a video camera mounted on the dashboard. With respect to the accused's personal condition, P.C. Dobro described Mr. McCullough as "visibly deflated" and "on the verge of tears." Other officers who dealt with the accused at the prisoner processing centre made observations that led them to believe that he was mentally disturbed. What relevance, if any, that had to Mr. McCullough's possession of the crossbow was a matter that was essentially left unexamined.

[13] Assessing the other considerations identified in Nelson as potentially affecting the conclusion to be drawn as to the purpose of the accused's possession, there is first the nature of the weapon itself. A crossbow, particularly when loaded with a razor-tipped bolt, is obviously capable of causing serious harm, but it is to be noted that it is not a prohibited weapon, and that it can presumably be used for lawful purposes like hunting or even just target practice. It may be that such uses might be more common in a rural setting like Haliburton, where the accused's driver's licence indicated he lived, although he had it on this occasion in downtown Toronto where it is difficult to envisage any such innocent or harmless purpose. On the other hand, there is no direct or even circumstantial evidence that Mr. McCullough ever intended to use the crossbow in any particular manner in the area where he was stopped or in any other specific place in the city.

[14] In addition to the location of his vehicle when he was stopped by the police, the circumstances in which the defendant possessed the crossbow include the fact that it was in a locked container and not readily accessible. The other property in the car and elsewhere in the roof carrier suggest that Mr. McCullough was in transit of some sort, but to where and for how long or for what reason are not readily apparent and remain matters of speculation.

[15] Although Nelson refers to the accused's own explanation for his possession as a relevant consideration, the accused's statement to P.C. Maxwell was excluded from the evidence, and the defence called no evidence at trial. There is accordingly no explanation from Mr. McCullough to assist in identifying his purpose for possessing the weapon.

[16] The weapon was discovered by P.C. Dobro, whose testimony demonstrated that he was a particularly alert and fair-minded police officer, before it could be put to any use. Fortunate though that was, it means that the Crown is unable to point to any use made of it by the accused that might otherwise, following Nelson, have been of potential assistance in shedding light on what his purpose in possessing it actually was.

[17] Considering all of these factors, I think Mr. Wilson was very fair in conceding, as he put it, that "we have no idea what he was going to do with it." In such circumstances, it seems to me, it can hardly be said that the Crown has proved beyond a reasonable doubt that the accused's purpose, assuming he had one at all, was dangerous to the public peace.

[18] With respect to the recklessness argument advanced by the Crown, there is no evidence, and I am not prepared to draw the inference, that Mr. McCullough must have perceived a risk that the crossbow could accidentally discharge, causing it to penetrate the container's metal liner and plywood, and that he persisted nonetheless in his dangerous conduct by keeping it in his possession in that condition. Equally compelling is an inference that he either gave the matter no thought at all, since he was unaware of any danger posed by the crossbow, or that he actively believed that it had been safely stowed in the carrier.

[19] It seems to me that when the Crown admits that no one can have any idea why Mr. McCullough had the crossbow, but that he should nonetheless be convicted because of the objectively dangerous circumstances surrounding its possession, the Crown is attempting to base criminal liability for the s. 88(1) offence, at least in the context of the evidence here, simply on the allegedly careless storage of the weapon by the accused. I think it is clear, however, that mere negligence will not suffice. The offence requires, I am sure, considerably more than speculation that an accidental discharge could at some point have occurred. Such evidence fails, in my view, to make out an offence that requires a specific intent. Moreover, the Crown's submission seems inconsistent with both the language of the statutory provision and the appellate authorities defining the essential elements of the offence.

[20] The only remaining matter on which I might comment concerns the potential psychiatric issue that in the end was expressly eschewed by both parties. While not the subject of evidence per se on the trial proper, the parties seemed to agree that the court could consider, at least in relation to its jurisdiction to order an assessment with respect to criminal responsibility under s. 672.12, certain features of the trial. These included Dr. Pallandi's testimony on the hearing that led initially to the conclusion that Mr. McCullough was not earlier fit to stand trial, as well as the accused's evidence on the Charter application that he had previously been diagnosed as a paranoid schizophrenic, that he had stopped using his prescribed anti-psychotic medication a year or two ago, that he had been found NCR on an earlier occasion, and also his less than plausible account of a neighbour dispute in Haliburton that had led him to remove his crossbow from his residence. While it struck me that since there was no issue concerning the actus reus of the offence with which Mr. McCullough was charged, a psychiatric assessment could potentially have assisted in understanding the accused's mental state at the time, examining perhaps possible delusional beliefs that he may or may not have held and what intention, if any, he had concerning the crossbow in his possession, none of which had been established by the evidence admitted at trial. I was persuaded, however, by Mr. Carlisle's submission that ordering an assessment on the court's own motion in such circumstances could potentially run afoul of the caution expressed by McLachlin J. in Winko v. B.C. (Forensic Psychiatric Institute) (1999), 1999 CanLII 694 (SCC), 135 C.C.C. (3d) 129 at p. 153 (S.C.C.) against stereotypical assumptions of dangerousness arising simply from evidence of a mental disorder. For his part, Mr. Wilson made it clear that the Crown was relying solely on the circumstantial evidence that had been led to support a finding that Mr. McCullough's actual purpose in possessing the crossbow was dangerous to the public peace and that he did not consider that the circumstances warranted any inquiry into whether the accused's apparent disorder had any effect on his mental state at the relevant time.

[21] Since the Crown has not proved the required mental element of the offence beyond a reasonable doubt, the accused is entitled to be found not guilty. The charge is dismissed.

Released: January 6, 2012

Signed: "Justice David A. Fairgrieve"