Court Information

Ontario Court of Justice

Date: November 18, 2015 and December 29, 2015

Court File No.: Toronto 4817 998 14-75006048

Parties

Between:

Her Majesty the Queen

— and —

John Elie Karmouche

Judicial Officer and Counsel

Before: Justice Richard Blouin

Blended Trial and Charter Voir Dire

Heard on: November 12, 13, 16 and 18, 2015

Reasons for Trial Judgment released: December 29, 2015

Counsel:

• Ms. Meghan Scott — counsel for the Crown
• Ms. Stephanie Heyens — counsel for the defendant John Elie Karmouche

BLOUIN, J.:

Introduction

[1] John Karmouche stands charged with six offences arising from a police search of his residence. Five counts relate to separate firearms the Crown alleges he unsafely stored, and one count involves ammunition. Mr. Karmouche, it was discovered by the police fairly early in the investigation, held a license to possess firearms. None of the firearms were prohibited or restricted. The issue is how they were stored.

[2] The defendant provided notice that he wished to contest the validity of the search warrant. He maintains his s. 8 Charter rights were violated, and seeks the remedy of exclusion of evidence pursuant to s. 24(2). As a result, the trial commenced blended with a voir dire to litigate the Charter application.

The Search Warrant

[3] On July 23, 2014 Detective Darryl Linquist viewed a videotaped statement taken from an assault complainant named Leslie McLellan taken earlier that day by another police officer. Ms McLellan told police under oath that her former boyfriend, the defendant, assaulted her two days earlier and then threatened to do harm to people close to her if she went to the police. She was especially concerned because she knew the defendant possessed a large number of firearms. Linquist phoned the complainant to ask follow-up questions, most importantly around the issue of safe storage. He then applied by telewarrant for authorization at 9:42 that evening to search the defendant's home, and its outbuildings, at 3 Larchmount Ave., Toronto.

[4] Mr. Karmouche had been arrested by other officers at 9:15 p.m. At 12:42 a.m. the next morning, authorization was granted by a Justice of the Peace to enter the residence (but not the outbuildings) between 12:45 a.m. and 11:59 p.m. to search for a rifle that resembled an AK-47, a shotgun, and ammunition for both. The evidence was being sought for the offence of Careless Storage of Firearm regarding both the rifle and the shotgun. The search was conducted in the early morning hours which led to the discovery of nine firearms and a cache of ammunition, which led to the above charges.

Section 8 Application

[5] My task on assessing the validity of the search warrant is succinctly set out in a recent Ontario Court of Appeal case, R. v. Nguyen, 2015 ONCA 753 at paragraph 28:

[28] In assessing whether a search warrant was validly issued, a reviewing judge does not substitute her view for that of the authorizing justice. The reviewing judge instead determines whether the justice of the peace issuing the search warrant could have granted the authorization, based on the reliable information contained in the record, as amplified on review. She does not set aside the authorization unless she is satisfied on the whole of the material presented that there was no basis for it: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Garofoli, [1990] 2 S.C.R. 1421, at pp. 1452 and 1454; R. v. Grant, [1993] 3 S.C.R. 223, at p. 251.

[6] In R. v. Allen, 2015 ONSC 6529, Justice Allen summaries important principles that should be considered:

[5] In reviewing the sufficiency of a warrant, the review court must look at whether the police demonstrated reasonable and probable grounds to believe:

• that an offence was being committed, had been committed or would be committed; and

• that evidence of the offence would be found at the specified time and place.

R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40 (S.C.C.)

[6] Thus, a valid warrant must contain reliable information establishing both locational and temporal links to existing or unfolding criminal activity.

[15] Because of the "without notice" nature of a warrant, the applicant must be full, frank and fair in their disclosure of material facts: [R. Araujo, at para. 46].

[7] The defendant first argues that the police took no steps to ensure the reliability of the complainant's information regarding the guns. Specifically, the police, and correspondingly the issuing justice, did not consider the factors set out in R. v. Debot, namely that the tip was compelling, that the informer was credible, and that the information was corroborated by police investigation.

[8] Since the investigation was commenced, the warrant applied for, and the search done all within 12 hours, there is not a great deal of corroboration in this case, but there is some. Detective Linquist did confirm the complainant's evidence regarding gun possession, by discovering that he held a gun license. In addition, his address as given by Ms. McLellan was also confirmed.

[9] The defence argued that information was not compelling in that there was a failure to consider the complainant's bias against the defendant, and a failure to consider that the observations may not be recent given that the two had broken up four years earlier. Aside from the assertion that the informant had seen three guns on July 21, 2014, which was incorrect (she had seen one gun that day), there was some evidence that other guns were observed "recently" (see page 37 of McLellan's statement).

[10] As to the bias, while she was a complainant on an assault charge, Ms. McLellan seemed unwilling to report the assault to police until the defendant denied responsibility, and then made threats of violence if she spoke to police. It is only then that the issue of guns arose, and only in the context of fear he may use them, not surrounding their storage. It should also be remembered that unlike a confidential informant – who often receives financial gain, or the advantage of prosecutorial discretion, Ms. McLellan received neither.

[11] As to the informant's credibility, it is clear she is not a confidential informant, so the carding and past rates of success considerations are not applicable. However, the police know virtually nothing about the complainant, and did not do any record searches involving criminal or mental health history. In my view, this oversight is more than remedied by the use of a videotaped, cautioned, statement taken under affirmation with criminal penalty warnings if untrue. These traditional guarantees of reliability are significant. Since the law has evolved to allow out-of-court statements that are necessary and reliable to be admitted as evidence in a trial where the maker of the statement recants, it is not surprising that an affiant and the issuing justice would and could rely upon a similar statement such as was obtained in this case.

Excision and Amplified Record

[12] As indicated in paragraph 8, Detective Linguist's assertion that the complainant had observed three firearms on July 21 is clearly wrong. The Crown admits that any reference to more than one gun observed that day should be excised. Obviously, it should and will be. In addition, on page 3 of Appendix "C" of the ITO there are references to information told to Linguist by Detective Patel (some coming to Patel from another officer). Those hearsay references are unreliable given that some of the information was not alleged in either McLellan's sworn statement or the follow-up telephone call. I will excise the last two sentences of paragraph 2, page 3 of that Appendix.

[13] I am also of the view that the ITO be amplified to allow the following:

• paragraph 10 of Appendix C to properly reflect that Mr. Karmouche had already been arrested (at 9:15 p.m.);

• paragraph 5(e) of Appendix C to properly reflect that the defendant's obsession with guns is Ms. McLellan's opinion.

[14] I also conclude that a telewarrant and night entry were practicable considerations given that other people resided in the house. It made sense to allow quick entry to secure the firearms.

Conclusion on Charter Application

[15] When the ITO is excised and amplified as indicated above, thereby reviewing what reliable information was contained in the ITO combined with information that should have been present, I conclude that the issuing justice could have granted the authorization. In my view, there was a significant basis available to conclude that there was reliable evidence that the defendant possessed firearms that were not stored safely.

[16] Accordingly, there was no section 8 violation, and the application to exclude must be denied.

Reasons for Judgment

Improper or Unsafe Storage of Firearms

[17] All six counts the defendant was arraigned on are worded exactly the same. In effect he was charged that on July 24, 2014 he contravened a regulation made under s. 117(h) of the Firearms Act, which is contrary to s. 86.(2) of the Criminal Code. Regulation SOR/98-209 s. 5 regulates storage of non-restricted firearms. Both parties agree that the firearms in question were non-restricted.

[18] Section 86:

86. (1) Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.

(2) Every person commits an offence who contravenes a regulation made under paragraph 117(h) of the Firearms Act respecting the storage, handling, transportation, shipping, display, advertising and mail-order sales of firearms and restricted weapons.

117 The Governor in Council may make regulations... (h) regulating the storage, handling, transportation, shipping, display, advertising and mail-order sale of firearms and restricted weapons and defining the express the expression mail-order sale for the purposes of the Act;

STORAGE OF NON-RESTRICTED FIREARMS

Regulation SOR/98-209, s. 5:

(1) An individual may store a non-restricted firearm only if

(a) it is unloaded;

(b) it is

(i) rendered inoperable by means of a secure locking device,

(ii) rendered inoperable by the removal of the bolt or bolt-carrier, or

(iii) stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into; and

(c) it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into.

[19] Three officers responsible for executing the search warrant, and a firearms expert, who is a police officer, testified for the Crown. The defendant did not testify and called no evidence. Detective Linquist and Detective Ryan Miller conducted the search of the defendant's residence and D.C. Lukas, a Scenes of Crime Officer, photographed, documented and seized, among other things, the firearms discovered.

[20] Detective Linquist discovered the following guns in the defendant's locked bedroom (they obtained keys to enter).

1. .22 calibre rifle leaning up against a table or shelving unit beside the bed. It had not been rendered inoperable by removal of the bolt or use of a trigger lock.

2. SKS rifle in a plastic black case leaning up against a wood and glass cabinet with a red drape. The plastic case was not locked. It had not been rendered inoperable.

3. Remington 700 rifle in the wood and glass cabinet. It had not been rendered inoperable.

4. SKS rifle in the wood and glass cabinet. It had not been rendered inoperable.

5. Chiappa shotgun (loaded) in the locked steel box under the bed.

6. Mosberg shotgun (with trigger lock) in the wood and glass cabinet.

7. WWI M1 rifle in a locked steel box under the bed.

8. A rifle in the same locked steel box under the bed.

9. An antique handgun.

10. SKS rifle that had a trigger lock.

[21] Since guns 1 through 5 were the subject matter of charges, Constable Finn tested them for operability, and found all five were functional firearms.

[22] Since guns 6 through 10 were not connected to any criminal charges he did not test them. They were either (a) unloaded and in a locked steel box, (b) trigger locked or, (c) in the case of the antique firearm, exempted.

Secure Room

[23] Ms. Heyens argues that the defendant's locked bedroom in his residence was a room that meets the safe-storage requirements of Regulation 5(b)(iii). The Crown relied on photographs taken by D.C. Lukas that showed a bedroom entry point secured with what appeared to be a standard issue wooden door, and a window to the exterior, which contained, below the glass, a window air conditioning unit.

[24] Unfortunately, the only photograph of the bedroom window is not a good one. Only the left side of the window opening is visible (about 18 inches). The window has a privacy covering which blocks all but the furthest left three to four inches. The air conditioning unit is only partially visible.

[25] In my view, although much more could have been done to establish this, the defendant's bedroom is clearly not "constructed so that it cannot readily be broken open or into". Since I have no direct evidence regarding the construction of the air conditioning unit, I must draw inferences from my viewing of the photographs. The only rational inference that exists is that the unit is a portable window unit which is manufactured to be retrofitted. Therefore, in my view, it can be readily broken into. This cannot be what was intended by the regulations regarding a secure room to store firearms. Additionally, although the entry door has a strike plate, it would be simple to break through that wood door through use of a simple sledgehammer. In the photograph, one cannot see much of the window, but there are no bars on the portion that is visible. For all of those reasons, I conclude this room to be non-compliant with the regulation.

Secure Cabinet

[26] At the outset, I can decide the issue as to whether the wood and glass cabinet (within which were found three long guns) was locked. I will decide that in the defendant's favour. While at trial Linquist was not sure if that cabinet was locked, and Miller said no key was required to open it, Linquist's evidence at the defendant's bail hearing was that there was a key and the key opened the cabinet. Obviously, Linquist's memory was better two months after the investigation. However, it doesn't matter that it was locked. At least, it doesn't matter to the regulation given that firearms must be kept in a secure container or receptacle, and a lock is only one element of security.

[27] Detective Linquist did not test the cabinet, so there is no direct evidence regarding its construction. Again, I must make reference to the photographs. Even if the glass was fortified (which Constable Finn testified that it could not be since it was curved), simply viewing the cabinet would lead the viewer to only one conclusion – this cabinet is not constructed to be secure in the context of gun storage. It is wooden, and has the appearance of a china or book cabinet. Even if the glass would not shatter, the framing looks decorative and it could easily be breached. As above, I find this cabinet to be non-complaint with the regulations.

Loaded Shotgun

[28] Ms. Heyens submitted the Crown had not proven that the shotgun shell tested by Constable Finn was one of three that Linquist found in the shotgun upon seizure. I do not agree. Finn testified that, when testing for the Chappa's operability, he used one of the shotgun shells that were seized in the search warrant (the red one). He examined a photograph of the gun after seizure which showed the breach open and shotgun shells contained. In addition, Linquist testified that the shotgun was loaded with three shells (one red and two green), and that he removed that ammunition to "make it safe". I accept the evidence of Finn and Linquist on this issue.

Mens Rea

[29] Ms. Heyens submitted that the Crown did not prove the required mens rea necessary in cases like this where the allegations involve contravention of the firearm storage regulations pursuant to s. 86(2). The standard expressed initially in 1993 by the Supreme Court of Canada (in Finlay) is stated succinctly in R. v. Palahnuk [2000] O.J. No. 5771 (S.C.J.) at paragraph 13:

[13] The learned trial judge identified the proper test for measuring the necessary degree of precaution, namely, whether the impugned behaviour constituted a marked departure from the standard of care expected of a reasonably prudent person in the same circumstances. R. v. Finlay (1993), 83 C.C.C. (3d) 513 (S.C.C.) and R. v. Gosset (1993), 83 C.C.C. (3d) 494 (S.C.C.).

[30] Apparently, sometime after this case, the Criminal Code sections were amended. Section 86(2) became the present 86(1) (Careless Storage). Section 86(3) became 86(2) (Unsafe or Improper Storage contrary to the regulations). Palahnuk was a careless storage case. Justice Brewer employed a slightly different test for criminal responsibility in another case provided by defence, which dealt with improper or unsafe storage (as in this case). The test is set out in paragraph 9 of R. v. Barnes, [2011] ONCJ 419:

[9] Section 86(2) is a strict liability offence. The Crown must prove non-compliance with the regulations beyond a reasonable doubt. The defendant may avoid liability by raising a reasonable doubt through a defence of due diligence: R. v. Smillie, [1998] B.C.J. No. 2082 (C.A.); R. v. Porter, [2007] B.C.J. No. 809 (C.A.).

[31] In my view, whichever test is employed the result is the same on the facts before me. If a reasonable doubt exists, either that the conduct in question did not constitute a marked departure from the standard of care of a reasonable person, or that reasonable precautions were taken to discharge the duty of care (i.e. due diligence), a person cannot be found guilty of the offence. See Finlay supra, and R. v. Gunning 2005 SCC 27, 2005 S.C.J. No. 25. Clearly, since five of the guns were not alleged to be stored in contravention of the regulations, there exists an inference that the defendant met the required standard regarding those firearms.

[32] Regarding the loaded Chiappa shotgun, since I have found it to be so loaded, it is clear to me that storing a firearm in such a manner is a marked departure from the required standard of care. Defence essentially admitted as much. Although, I must add, the defendant still locked the loaded gun in a steel container with two other firearms. The other two did not result in charges since they were not loaded.

[33] In my view, the .22 calibre rifle (leaning by itself, in the open against the shelving unit), and the SKS rifle (in a black, unlocked case) were both stored in a manner that was a marked departure from the required standard of care. Due diligence was not employed. No reasonable doubt was raised.

[34] Again, the room was accessible in that it could be readily broken into. No trigger locks, or bolts removed, existed for either gun. Both guns were out in the open and not in any receptacle or container (or at least not a locked container). The fact that the room was locked was one precaution in the defendant's favour, but that lock provided little protection when the room could be readily broken into.

[35] Regarding the two rifles that were located in the glass case, I am prepared to allow the existence of a reasonable doubt regarding the standard of fault. While I conclude that container was not constructed so that it could not be readily broken into (the actus reus), I find the defendant took, at the very least, some steps to ensure proper storage. I found the cabinet was locked. The third gun inside was trigger locked, and there was no forensic attempt made to determine how sturdy the cabinet was. I find this to be a close call, but I am not satisfied beyond a reasonable doubt that the "marked departure" standard has been established. A reasonable doubt was created on the issue of due diligence.

[36] Count 6 involved storage of ammunition. A close look at s. 86(2), which makes reference to Regulation 117(h) of the Firearms Act, which then refers to s. 5(1), uncovers no reference to ammunition. I agree with Ms. Heyens. The offence alleged under 86(2) is the wrong charge. It hardly matters since it was the existence of that same ammunition in a properly locked steel box which led to a finding of guilt on Count 5.

[37] Accordingly, the defendant is found guilty on Counts 1, 2, and 5 and not guilty on Counts 3, 4, and 6.

Released: December 29, 2015

Signed: "Justice Blouin"