Court File and Parties

Court File No.: County of Middlesex Date: 2015-12-17 Ontario Court of Justice

Between: Her Majesty the Queen — and — Anthony Doxtator

Before: Justice Wayne G. Rabley

Heard: December 7, 2015

Reasons for Judgment Released: December 17, 2015

Counsel:

• G. Bloch for the Crown
• J. Conway for the accused Anthony Doxtator

Reasons for Judgment

RABLEY J.:

Anthony Doxtator was originally charged with two offences. It was alleged that on the day in question he both assaulted his daughter Chandra and stored his firearms in a careless manner.

Chandra decided not to attend at court on the day of trial to testify and the only evidence regarding the assault was the testimony of her mother Roanna Doxtator. That evidence suggested that Mr. Doxtator was actually the victim of an assault by Chandra and so at the conclusion of the Crown's case that charge was dismissed.

The issue for me to determine is the allegation that Mr. Doxtator carelessly stored his firearms. It would seem to me that he is guilty of the offence.

Facts

Roanna Doxtator is the wife of the accused. They live at 2141 Ballpark Road on the Oneida Reservation. When the police came to investigate the complaint of assault, they sought out Anthony Doxtator. They found him in a shack that is a separate building approximately 20 meters to the rear of the family home.

Mr. Doxtator was found sitting on a recliner chair in the shack and appeared to be sleeping. As the police arrested Mr. Doxtator, they observed a number of firearms that were stored openly in the shack. Three of the rifles were sitting on a rack that was accessible to anyone who reached for them as the rack was about 5 to 6 feet high. A fourth rifle was found behind the door to the shack, which was open at the time that the officers attended.

The police found ammunition stored on the rack beneath the guns which were not loaded when they were located. None of the firearms had trigger locks on them and though not all of them were functional according to an expert report, it is clear that the ones that were capable of being fired were not locked away.

According to Roanna Doxtator the firearms were owned by her husband Anthony and although they were used by her husband and son for hunting, they were not the only people who had access to the shack. Mrs. Doxtator testified others would go in and out of the structure and that on the day in question Chandra's family was at the Doxtator home including two children who were 8 and 10 years of age.

Mrs. Doxtator further testified that her husband "sometimes" locks the shack and then later testified in cross-examination that her husband "usually" locks the outbuilding. Mrs. Doxtator was uncertain as to whether or not there was ammunition in the shack and believed that her husband locked it up. In my view, she was trying to paint her husband's actions in the best light possible as evidenced by her eagerness to agree to any and all suggestions put to her by Mr. Doxtator's lawyer.

Legal Framework

Section 86(1) of the Criminal Code states as follows:

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.

Defence Argument and Analysis

The Defence relies upon the Ontario Court of Appeal decision in R. v. Halliday, [1995] OJ No 1688. In that case, the Appellant was convicted based upon the evidence of a police officer who located firearms in an unlocked locker. The Court of Appeal reversed the trial judge's decision on the basis that the officer was not qualified to provide an expert opinion that the guns were stored carelessly and that since there were no regulations to refer to by the Court, that there was no evidence that a finding could be made on. As stated by the Court:

Section 116(1)(d) of the Criminal Code provides for the passing of regulations with respect to the storing of firearms and ammunition. No such regulations were referred to at trial. On the appeal, Crown counsel advised the court that regulations had been passed, but none that was relevant to this type of situation.

The Court ultimately concluded:

"The circumstances required the calling of expert evidence. The standard for such evidence, namely, 'a properly qualified expert,' is laid down in R. v. Mohan (1994), 89 C.C.C. (3d) 402 (S.C.C.) at 411. Neither the evidence of the police officer nor that of the appellant met that standard."

The Defence submission in the case before me is that the Halliday decision stands for the proposition that in the prosecution of a charge under section 86(1) the Crown must call expert evidence in order to support the evidentiary basis to conclude that the charge is made out. With respect I do not agree.

The Halliday case was decided in 1995. Regulations relative to the storage of firearms now exist and they were provided to the Court in this case by the Crown.

Applicable Regulations

Pursuant to section 117 of the Firearms Act, S.C. 1995, c. 39, Parliament enacted the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/92-459. Section 5(1) states:

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.

It is not sufficient for the Crown to simply prove that an accused person may have violated one of the conditions set out in the regulation.

The Applicable Test

In R. v. Gouliaeff, 2012 ONCA 690, the Court of Appeal restated the test to be considered with respect to section 86(1). The Court defined it as:

"whether the appellant's storage of the relevant firearms amounted to a marked departure from the applicable standard of care."

There is no question that expert evidence regarding the applicable standard of care would be helpful but I do not read the Halliday decision as determining that expert evidence must be called in every case. Proof of non-compliance with the Regulations can be an important and perhaps crucial consideration when viewed together with all of the relevant circumstances. However, it is a test that a judge can decide based on the evidence before him or her.

Application to the Facts

In this case, the firearms were stored on a rack that was accessible to any and all who entered into the shack. The door was not always locked and it would appear that many in the family frequented the shack when they chose to do so. The shack had windows and they could no doubt be broken in order to steal the firearms. The guns were situated next to ammunition and there were no precautions taken as contemplated by the regulations.

In my view, this conduct amounts to careless storage of a firearm. Any number of individuals could simply walk into the shack and take possession of the firearms or could steal the weapons by breaking the glass window and taking them. I would therefore find that Mr. Doxtator stored his firearms in a careless manner and without reasonable precautions for the safety of other persons. He will therefore be found guilty of the offence.

Released: December 17, 2015

Justice W. G. Rabley