Ontario Court of Justice

Date: 2014-08-25

Court File No.: Goderich 998 13 70

Between:

HER MAJESTY THE QUEEN

— AND —

KENNETH ANDREW HUGHES

Before: Justice Brophy

Heard on: 9 June and 21 July, 2014

Reasons for Judgment released on: 25 August 2014

Counsel:

• Laura Grant, counsel for the Crown
• The defendant Kenneth Andrew Hughes, on his own behalf

BROPHY J.:

INTRODUCTION

[1] Kenneth Andrew Hughes has been charged with having in his possession on 23 August 2012 a firearm, that is to say a 22 calibre rifle, without being the holder of a license under which he may possess it, contrary to section 91(1) of the Criminal Code. The Crown elected to proceed summarily and the case came on for trial on 9 June 2014. A second day was required and the trial was completed on 21 July 2014.

BASIC PRINCIPLES

[2] The Crown must prove the case beyond a reasonable doubt. Every person charged with an offence is presumed to be innocent, unless and until Crown counsel has proven his or her guilt beyond a reasonable doubt.

[3] From the start to finish, it is Crown counsel who must prove the person charged guilty beyond a reasonable doubt. Mr. Hughes does not have to prove his innocence. I must find the accused not guilty of the offence unless Crown counsel satisfies me beyond a reasonable doubt that he is guilty.

[4] A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.

[5] If, at the end of the case, after considering all the evidence, I am sure that Mr. Hughes committed the offence, he should be found guilty of it, since I would have been satisfied that he is guilty of that offence beyond a reasonable doubt.

[6] If, at the end of the case, based on all of the evidence or the lack of evidence, I am not sure that Mr. Hughes committed the offence, I should find him not guilty of it.

[7] Finally, it is important to consider carefully, and with an open mind, all the evidence presented during the trial.

ISSUES

[8] The issues in the case were not articulated very well by Mr. Hughes. However after a review of the evidence and the documents filed by Mr. Hughes it would seem that they touch on the following:

(a) whether there was any 11(b) delay,

(b) whether Mr. Hughes falls into the exception provided for in section 91(4),

(c) whether Mr. Hughes was subject to the legislation given his status as person who holds land as a result of a crown patent,

(d) whether there was an officially induced error,

(e) whether the 22 rifle was a firearm.

FACTS

[9] The facts in this case are quite clear.

[10] On 23 August, 2012 Mr. Hughes had a physical confrontation with Frank Zizek who was a tenant in a mobile home park that Mr. Hughes owned. They had not been getting along and Mr. Zizek approached Mr. Hughes when he was operating a backhoe or some other type of earthmoving machine and they had words and there was a physical struggle. There is some dispute as to who instigated the physical confrontation and how it unfolded. Both Mr. Zizek and Mr. Hughes were charged as a result. Mr. Zizek indicated in his evidence that he was acquitted. Mr. Hughes in his evidence said he had been charged as well, although it is unclear as to whether he meant the subject charge in this case or some other charge. For the purposes of this trial however the evidence is clear both from Mr. Zizek and Mr. Hughes that Mr. Hughes had in his possession on that vehicle, inserted into some kind of tubing, a 22 calibre rifle. Mr. Zizek saw it and when the police were investigating the assault that information was disclosed to them. The police then entered into a secondary investigation about the firearm, which has led to this case.

[11] After this confrontation Mr. Hughes first hid the rifle in a fence row and then deposited it with his friend Fred Brall. Mr. Brall held the firearm for Mr. Hughes from 23 August 2012 until it was seized by the police on 21 January 2013. In the course of doing so he cleaned it up and test fired it. Mr. Brall, who was called to testify by Mr. Hughes, said that it worked as a firearm should.

[12] Mr. Hughes has acknowledged all of the forgoing in his evidence in chief. In cross he conceded that he took the rifle to Mr. Brall's because he was concerned that he did not have a licence to possess same and he knew Mr. Brall did. It is interesting to note that there was no explicit reason given for him first hiding the rifle in the fence row.

[13] In cross examination Mr. Hughes also said that he understood there are restrictions on who can lawfully possess a firearm. He indicated that he had never had possession and acquisition license and that he did not know he needed one and he never took any steps to keep up with the firearms legislation. That begs the question as to why he then first hid the rifle and then gave it to Mr. Brall for safekeeping.

[14] Mr. Hughes's evidence in chief was that he had spoken to police in the Powassan area and then later at the Huron OPP station about what he should do with this 22 rifle that he had obtained when he bought his farm. He says that both the Powassan police and the Huron OPP told him not to worry about it because it was an antique. He also said that at one of those police stations they apparently had no interest in three handguns he had brought along as well. Mr. Hughes does not have any confirmation of these conversations or visits to the police stations or what he was told.

[15] There is no doubt that the items seized by the police from Mr. Brall was the same firearm that Mr. Hughes said he had in his possession at the time of the confrontation with Mr. Zizek and that he turned over to Mr. Brall for safekeeping. Mr. Hughes admitted same in his evidence.

[16] The Crown called a number of witnesses to confirm continuity while the firearm was in police custody. This was necessary as the Crown then filed a Firearm and Ammunition Examination Report and a Certificate of an Analyst with respect to the subject rifle pursuant to section 117.13(1) of the Criminal Code. The Report and Certificate confirm that the subject 22 rifle is a non-restricted firearm as defined in section 2 and 84(1) of the Criminal Code.

[17] The Crown also called evidence to confirm what Mr. Hughes said in his evidence, that is to say, that he did not have a firearms acquisition certificate or license permitting him to have firearms in his possession. It is noted that in section 117.11 of the Criminal Code there is an evidentiary onus on an accused to prove that he is the holder of an authorization, license or registration certificate. Certainly Mr. Hughes did not satisfy that evidentiary onus, but in a sense it goes without saying because in cross examination he acknowledges that he did not have any such documents.

[18] Mr. Hughes did in fact apply for an appropriate license sometime after the confrontation with Mr. Zizek. At various times he says he called the office of the chief firearms officer inquire about the status of his application. He says that he was told that the application could not be processed until his charges had been disposed of. He also says that he was treated rudely by the person he spoke to on the phone. The Crown called two witnesses in response to that complaint and the essence of their evidence is that any conversations they had with Mr. Hughes were businesslike and that his application could not be processed because he was subject to an Undertaking requiring him to "abstain from possessing a firearm and to surrender to PC Holden or Huron OPP any firearm in my possession and any authorization, license or registration certificate or other document enabling the acquisition of possession of firearm." It was also the evidence of one of those witnesses, Wendy Gardner, an OPP officer working in the office of the Chief Firearms Office, that the subject firearm was not grandfathered under section 12(6) of the Firearms Act, S.C. 1995, C.39, as amended.

LAW

[19] For ease of reference I have set out below the relevant Criminal Code provisions.

[20] The first is section 91(1) that creates the offence:

91. (1) Subject to subsection (4), every person commits an offence who possesses a firearm without being the holder of

(a) a licence under which the person may possess it; and

(b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

[21] Subsection 4 provides some relief in the following terms:

(4) Subsections (1) and (2) do not apply to

(a) a person who possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition while the person is under the direct and immediate supervision of a person who may lawfully possess it, for the purpose of using it in a manner in which the supervising person may lawfully use it; or

(b) a person who comes into possession of a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition by the operation of law and who, within a reasonable period after acquiring possession of it,

(i) lawfully disposes of it, or

(ii) obtains a licence under which the person may possess it and, in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

[22] Section 2 of the Criminal Code defines a firearm as:

"firearm" means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm;

[23] Section 117.11 sets out that:

Where, in any proceedings for an offence under any of sections 89, 90, 91, 93, 97, 101, 104 and 105, any question arises as to whether a person is the holder of an authorization, a licence or a registration certificate, the onus is on the accused to prove that the person is the holder of the authorization, licence or registration certificate.

[24] The Crown can prove an item to be a firearm through the tendering of a Certificate of an Analyst as provided for in section 117.13. The legislative provisions authorizing that process are as follows:

117.13 (1) A certificate purporting to be signed by an analyst stating that the analyst has analyzed any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or any part or component of such a thing, and stating the results of the analysis is evidence in any proceedings in relation to any of those things under this Act or under section 19 of the Export and Import Permits Act in relation to subsection 15(2) of that Act without proof of the signature or official character of the person appearing to have signed the certificate.

(2) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for the purposes of cross-examination.

(3) No certificate of an analyst may be admitted in evidence unless the party intending to produce it has, before the trial, given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the certificate.

In this case the Crown has followed the procedure.

[25] The Crown is also required to prove possession of the item as provided for in section 4(3) of the Code:

(3) For the purposes of this Act,

(a) a person has anything in "possession" when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

ANALYSIS

[26] Taking into consideration the legislation and the facts the following analysis can be made.

[27] Mr. Hughes oral argument at the conclusion of the evidence focused on the clash with Mr. Zizek. He also repeated his complaint about the police "lying" to him about not having to register the rifle.

[28] The desire of Mr. Hughes to relitigate the nature of the physical confrontation between himself and Mr. Zizek is not relevant to this case. There is no redress I can give Mr. Hughes in that regard.

[29] Mr. Hughes also raises issues in a Notice – Motion to Quash that he filed with the court. The issues raised therein are akin to the Organized Pseudolegal Commercial Argument referred to by Justice Rooke in the Alberta decision of Meads v. Meads 2012 ABQB 571. Mr. Hughes seems to have adopted some of the motifs related to that defiant approach to the law. However he does not press the argument about him being a person not subject to ordinary law, although it is fair to say that his Notice – Motion to Quash contains some of the language to that effect that is identified in the Meads decision.

[30] However the handwritten memorandum attached to that pre-printed Motion to Quash document complains about Mr. Zizek's "assaultive" behavior, being misled by officers of the OPP and various Crown Attorneys, and lastly that he is protected by a contract validated by King George IV. It should be noted as well that in this Motion to Quash memorandum there is a statement that the case has gone on too long time and should be dismissed under the Charter.

[31] Dealing with the delay issue first, Mr. Hughes did not breathe a word of this claim under the Charter at trial. Moreover there are no transcripts or timelines that have been presented setting out why the case deals with an event in August of 2012 that did not reach trial until 2014. There could be many reasons for this, both good and bad, but I have no information to base any analysis on and any conclusions related to same would be purely speculative. I do note that the Information was not sworn until 29 January 2013 and the endorsements on the Information indicate that the case was delayed somewhat to await the outcome of other criminal charges.

[32] There is no evidentiary basis to consider entering a stay as a result of a breach of section 11(b) of the Charter. The application for a stay as a result of delay, if I can call it that, must fail.

[33] Nothing was said at the trial about any complaints he might have had about any of the Crown Attorneys. There is nothing in the evidence for me to consider in that regard.

[34] As for the Crown Patent argument and King George IV, Mr. Hughes did file with the court a copy of what appears to be the original Crown Patent for the Canada Company which covered vast tracts of Huron County. He also provided the court a typed version of that crown patent. Mr. Hughes was asked to indicate what part of the Crown Patent referred to firearms. He was not able to do so. The only reference was a provision to the effect that if any tract of land granted through the Crown Patent should be required for "canals, roads, the erection of forts, hospitals, arsenals for any other purpose connected with the defence or security of our said province ..." then the land might revert to the crown. Even Mr. Hughes, with his natural optimism could not explain how that clause, referring to arsenals, allowed him to have a firearm.

[35] This claim with respect to the Crown Patent is part of the Organized Pseudolegal Commercial Argument rhetoric that was debunked in the Mead decision. This argument is wrong in law and has no value.

[36] One of the complaints Mr. Hughes laid out in his Motion to Quash was actually addressed in the trial, at least in terms of the evidence. This relates to his inability to have his application for a possession and acquisition license, or PAL, processed by the Chief Firearms Officer. He was told that although the application had been received it would not be acted upon until this charge was dealt with by the courts. Mr. Hughes was very upset by this response.

[37] This actually calls for some comment because of the provisions of section 91(4) which provides certain exemptions to section 91(1). In particular subsection b(ii) of 91(4) provides that section 91(1) does not apply to:

(b) a person who comes into possession of a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition by the operation of law and who, within a reasonable period after acquiring possession of it,

(i) lawfully disposes of it, or

(ii) obtains a licence under which the person may possess it and, in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

[38] It might have been argued by Mr. Hughes that after coming into possession of the subject firearm that within a reasonable period he applied for the appropriate license and that it was only the actions of the police that prevented him from obtaining that license.

[39] It is clear that the police were acting with reasonable caution by freezing the application to await the outcome of the court process and to support the Undertaking Mr. Hughes had signed that he would not have firearms or licences while the case was outstanding.

[40] This argument however fails because Mr. Hughes, on his own evidence, has been in possession of this firearm for many years and from time to time thought of it as an antique without any real value and simply put he did not consider it necessary to obtain an authorization to possess it. He was wrong. The law is clear that absent special circumstances a mistake of law is not a defence.

[41] Mr. Hughes also said in his evidence that he had disclosed the existence of the subject firearm to two separate police forces and he was told that he did not have to do anything with respect to same. In his argument at the conclusion of the trial he said that he had done everything that had been asked of him. This argument then is one of officially induced error. The difficulty with the argument is that the factual basis for it exists only in the evidence of Mr. Hughes. There are no details as to when these conversations occurred, who they were with, and what exactly was said. Typically in a case involving officially induced error there is a paper record and very specific details to aid in considering the issue. In the absence of that record all the court can do is look at the broad facts advanced by Mr. Hughes. His evidence that he had three handguns with him on one of these interviews with the police and that the police had no interest in those handguns is exceedingly strange. In my experience the police are very cautious with respect to all firearms, especially handguns. These events related by Mr. Hughes either took place a very long time ago or he is not remembering clearly what the conversations were. Without some form of elaboration and confirmation of the facts asserted by Mr. Hughes it is not possible to give effect to this argument.

[42] The argument made by Mr. Hughes that the 22 rifle was not in fact a firearm is displaced by Mr. Brall's testimony that the rifle actually worked, and by the examination by the analyst which confirmed that it was a functioning firearm, and finally by Mr. Hughes in his own evidence when he said that he used it to protect his property from nuisance animals. Indeed his having that firearm with him on the day of the dispute with Mr. Zizek confirms that he thought of the firearm is a useful tool, and indeed he had it for security that day, and it is not a matter of him hanging it on a wall and thinking of it as a non-functioning antique.

CONCLUSION

[43] After consideration of all the evidence and a careful review of the law I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Hughes on the 23rd day of August 2012 did in fact possess a firearm as defined in the Criminal Code and that he did not have a licence allowing him to possess it. Consequently there will be a finding of guilt.

Released: 25 August 2014

Signed: "Justice Brophy"