WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

( b ) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

DATE: 2022 01 26 COURT FILE No.: Toronto 21-Y5027

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

P.W.

A young person under the Youth Criminal Justice Act

Before: Justice Peter N. Fraser

Heard on: December 6-10 & 16, 2021 Reasons for Judgment released on: January 26, 2022

Counsel: C. Igwe, counsel for the Crown T. Newby-Parkes, counsel for the accused P.W.

Fraser J.:

Part I – Overview

The Offences Charged

[1] A.D. was shot in the head at her home in Toronto on February 12, 2021. She was fourteen years old. She survived the incident, but was left with lasting injuries. P.W., a young person under the Youth Criminal Justice Act, stands charged with a number of firearms-related offences and related breaches of court orders in connection with the events of that day.

[2] At the beginning of the trial, P.W. was arraigned on the following Criminal Code charges:

• Count 1 – Possession of a prohibited firearm [s. 91(1)]
• Count 2 – Possession of a prohibited or restricted firearm [s. 92(1)]
• Count 3 – Possession of a loaded prohibited firearm [s. 95(1)]
• Count 4 – Careless use of a firearm [s. 86(1)]
• Count 5 – Reckless discharge of a firearm [s. 244.2]
• Count 6 – Aggravated assault [s.268(2)]
• Count 7 – Criminal negligence causing bodily harm [s. 221]
• Count 8 – Fail to comply with release order (no weapons) [s. 145(5)]
• Count 9 – Fail to comply with release order (house arrest) [s. 145(5)]

[3] At the conclusion of the trial, the Crown invited me to dismiss counts five and six, as the evidence could not support a conviction for those offences. Specifically, the Crown acknowledged there was insufficient evidence of an intentional discharge of the firearm, which is a required element of both offences. The Crown further invited me to dismiss count two, presumably because it was duplicitous as against other charges on the information. The defence, for its part, conceded that count nine had been proved beyond a reasonable doubt and invited me to enter a conviction on that charge.

[4] The balance of these reasons deal with the remaining five counts on the information. The central issue at trial was identity. There was no dispute that P.W. was present in A.D.’s apartment at the time of the shooting: the question was whether he was holding the gun when it was fired. A secondary issue was whether the accused’s conduct, if it was proved he was the shooter, met the legal standard for criminal negligence causing bodily harm or careless use of a firearm.

Legal Principles

[5] P.W. is presumed innocent. The Crown must prove the essential elements of the offences beyond a reasonable doubt. The burden of proof rests squarely on the Crown throughout the trial and never shifts to the defence. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320.

[6] The case against P.W. is circumstantial. In order to convict, therefore, I must be satisfied beyond a reasonable doubt that the accused’s guilt is the only rational inference that can be drawn from the evidence: R. v. Griffin, 2009 SCC 28 at para. 33; R. v. Villaroman, 2016 SCC 33 at paras. 17-22. As the Court of Appeal recently affirmed in R. v. Chacon-Perez, 2022 ONCA 3, at para. 80:

The circumstantial evidence does not have to totally exclude other “conceivable inferences”. Nor is a verdict unreasonable simply because the alternatives did not cause a doubt in the jury’s mind. It remains fundamentally for the trier of fact to decide whether any proposed alternative way of looking at the case was reasonable enough to raise a doubt.

Background Facts

[7] On February 12, 2021, A.D. invited some friends over to her apartment in the west end of Toronto. She lived in a three-bedroom apartment on the eighth floor with her father and her younger sister.

[8] There were ten people in the apartment unit when the gun was fired.

[9] A.D. was in the living room when she was shot. Her father was asleep in his bedroom. And A.D.’s younger sister was in her own bedroom. In addition, there were seven visitors. A.D. invited three female friends over, including Y.W., who was in the living room when the shot was fired. A.D. also invited over the accused and another male friend named K.F. The defence argued that K.F. was the real shooter. Two more males arrived with the others. They were not known to the complainant.

[10] No one saw the gun being fired. Only three people from the apartment testified at trial: A.D., her father, B.D., and her friend Y.W. Their evidence implicates the accused circumstantially. The question of who fired the gun involves an analysis of the credibility and reliability of these three main witnesses. I am aided in this inquiry by the testimony of various police witnesses, the photographs from the scene, video footage from the apartment building, and medical records.

Part II – Identity of the Shooter

[11] There is no dispute that A.D. was shot in the living room of her apartment unit, near the entrance to the kitchen. Photographs of the blood on the floor show, in graphic terms, where she fell. There is no dispute that one bullet was fired. The bullet struck A.D. in the head and then hit the flat screen television mounted on the north wall of the living room. This single projectile was recovered by police inside the housing of the television set.

[12] The apartment unit is divided into two main areas. The living room, dining room and kitchen comprise the west side of the unit (which is to the right of the door upon entering). The three bedrooms and two bathrooms occupy the east side of the unit (and are accessible from a single hallway that extends straight from the entrance and turns to the left). These two main areas are very much separated from each other by the layout and structure of the apartment.

[13] According to both A.D. and Y.W., the accused was the only person with them in the west side of the apartment (living room, dining room and kitchen) when the gun was fired.

Testimony of A.D.

[14] A.D. testified that she did not know who shot her. She never saw anyone with a gun. She had no dispute with anyone at the apartment and there was no reason for anyone to hurt her. According to her evidence, however, there were only two people with her in the living room, dining room and kitchen area when the gun went off: Y.W. and the accused. A.D.’s father and sister were in their respective bedrooms. The remaining five visitors were all in her bedroom, where some were braiding each other’s hair and listening to music.

[15] A.D. testified that Y.W. and the accused were in the living room. They were sitting on couches, though she could not recall which ones. She went to the kitchen to make waffles for herself. When she came back into the living room, she suddenly felt dizzy and fell to the floor. She remembered nothing else.

[16] I found A.D. to be a credible witness. Her account of events was simple and straightforward. She did not appear to be anticipating where lines of cross-examination were leading or what the significance of her answers might be to the case. I found her answers direct and responsive to the questions asked. I was not alerted to any inconsistencies between her testimony in court and any prior statement to police. This does not add anything to her credibility: I merely note the absence of a commonly observed negative factor here. A.D. acknowledged consuming alcohol and marijuana on the night of the incident. This admission does not affect my assessment of her credibility; though it may have some bearing on her reliability, as discussed below.

[17] A.D.’s evidence was confirmed in some respects by the physical evidence at the scene. The blood on the floor and the bullet hole in the television were both consistent with her account of being shot as she came out of the kitchen and into the living room. The video footage tendered at trial confirmed the presence of Y.W., K.F., and the accused at the apartment building that night.

[18] The defence observes that A.D. conceded she did not know who was in her bedroom at one point during cross-examination. This answer came right after she had explained that she, herself, was not in the bedroom. Viewed in sequence, I understand A.D.’s answers to be an acknowledgment that she was not directly observing the people in her bedroom. In re-examination, she confirmed that the only people with her in the living room were Y.W. and the accused. The rest of the visitors were in her bedroom.

[19] The defence position is that K.F. was the shooter. During cross-examination, counsel suggested to A.D. that she knew K.F. was the shooter and that she was implicating the accused to cover for him. In my view, there is little, if anything, in this record capable of supporting this proposition. The suggestions of counsel are not evidence, and this suggestion was rejected unequivocally.

[20] A.D. agreed that K.F. had been like a brother to her, but her evidence was that they had fallen out in the months since the shooting. And as she maintained she did not know who had shot her, it did not strike me that she was going out of her way to implicate the accused.

Testimony of Y.W.

[21] Y.W. was a close friend of A.D.’s. She met the accused for the first time on February 12, 2021. She spent time with him that night, but did not learn his name. She referred to him by name in court because she had later learned the name of the person arrested in connection with this incident.

[22] Y.W. confirmed there were ten people in the apartment that night. She testified that she, A.D. and the accused were the only people in the west side of the unit at the time of the shooting. All the other people were in the bedrooms. She did not have a gun herself, nor was it ever suggested that she did.

[23] Y.W. testified that she was in the living room with A.D. and the accused. A.D. went to the kitchen to make waffles. Y.W. went back to A.D.’s bedroom to retrieve her shoes, which she brought back and deposited by the front door. As she re-entered the living room, she saw the complainant and the accused in the kitchen. She sat down on the small couch beside the entrance to the kitchen. She heard A.D. laughing and then heard a loud bang. She looked up to see the complainant fall to the floor. A.D. had been standing right at the entrance to the kitchen.

[24] Y.W. was expressly clear that there was no one else was in this side of the apartment unit. The implications of her evidence are clear: no one other than P.W. could have fired the gun.

[25] I found Y.W. to be a credible witness. Her evidence was internally consistent and logical. There were no inconsistencies identified as against any prior statement. She was impatient, even oppositional, with counsel at times during cross-examination. However, her answers were clear and responsive, and I did not find this dynamic to impact her credibility. Y.W.’s evidence was confirmed by A.D. on the critical point of which people were in the west side of the apartment at the time of the shooting.

[26] Defence counsel suggested that Y.W. knew the alternate suspect, K.F., by name and was concealing his identity. This suggestion was rejected by the witness. In the end, there was no evidence that she knew him and no credible reason in this record why she would conceal his identity. I did not observe any partisan interest on Y.W.’s part.

[27] Y.W.’s account is also confirmed, on material points, by the physical evidence from the scene. The necessary implication from her testimony is that the shot was fired from the kitchen. She testified there was no one in the living room or dining room at the time. She further reported that A.D. was standing right in the entrance to the kitchen, and fell forward into the living room when she was shot. The blood on the living room floor is approximately two metres from the entrance to the kitchen, which is consistent with A.D. falling forward from the very position Y.W. described.

[28] The damage to the television set is also consistent with the bullet being fired from the kitchen. There was only one hole in the screen. There was a dent in the back of the TV further to the right. And there was damage to the inside of the screen, further to the right again where the glass had been pushed up from the inside. The bullet itself was found inside the TV. I must be cautious with this information, as no expert evidence was lead with respect to the path of the projectile. However, I can draw inferences using common sense and experience. The damage here is clearly consistent with the bullet entering the screen from the left, hitting the back of the TV housing, and then the inside of the screen further to the right. This directionality is consistent with the shot having come from the kitchen, which is to the left of the TV.

Testimony of B.D.

[29] The complainant’s father, B.D. testified that he was asleep in his room when the gun went off. He heard a loud bang and came into the living room. He called 911 and administered aid to his injured daughter.

[30] During his testimony, B.D. claimed for the first time that he saw the accused tuck a gun under his sweater right after the shooting. He had previously spoken to the 911 operator, to police officers at the scene, and to investigators during two formal interviews. At no point in any of those statements did he mention seeing the accused with the gun. During cross-examination, B.D. claimed for the first time that the accused said, “I just yellow-taped your daughter” immediately after the shooting. He interpreted the phrase yellow-taped to mean murdered. There was no reference to this apparent confession in any of his prior statements.

[31] The Crown submits it would be unsafe to rely on these two portions of B.D.’s evidence. This position is consistent with the Crown’s special obligation as a quasi-judicial officer within the adversarial process: R. v. Boucher, [1955] S.C.R. 17. The Crown argues, however, that the accused’s guilt can be proved on the basis of the other evidence in the trial.

[32] The absence of these two points from B.D.’s prior statements are glaring omissions. He claimed the trauma of the event supressed his memory surrounding these important points prior to trial. I accept that trauma can impact both perception and memory. And it would be difficult to envision a more traumatic event for any parent than what occurred here. But this witness gave multiple statements about the event. These points went directly to the question of who had shot his daughter. And he did not bring them to the attention of either the Crown or the police at any point prior to testifying. The confession he now attributes to the accused did not even come out during the examination in chief.

[33] These two points were not confirmed by Y.W. either. She testified she was present when B.D. came into the living and asked what had happened. She saw no gun and heard no confession.

[34] I would also observe that B.D. was hostile toward defence counsel and verbally abusive of the accused in court. Even more troublingly, he admitted to attacking the accused outside the courtroom during a break in the proceedings. Part of this altercation was captured on video and I was forced to order additional security in the courtroom to ensure that order was maintained for the remainder of the trial. These actions comport with someone willing to take matters into his own hands, rather than allow the court process to do its work and produce a just result.

[35] In all the circumstances, I find that I cannot rely on any evidence provided by B.D. in this trial as it would be unsafe to do so.

The Alternate Suspect

[36] The position of the defence is that K.F. was the shooter and the Crown witnesses were all working to protect him by implicating the accused. This suggestion was put to each of the three civilian witnesses in one way or another; however, each of them rejected it categorically.

[37] B.D.’s testimony did raise some concern surrounding his relationship with K.F. He denied being friends with K.F., claiming he would not be friends with someone his daughter’s age. However, in his call to 911, he referred to K.F. as his friend and identified him by a nickname that A.D. did not even know. This suggested B.D. may have been minimizing his relationship with K.F. for some reason. This is of little moment, as I have placed no weight on B.D.’s evidence. And in any case, I do not find that this point indicates an attempt to obscure K.F.’s liability for the shooting. If anything, B.D.’s open aggression toward the accused at this trial suggests that he holds the accused responsible for shooting his daughter, not K.F.

[38] Counsel relies on still images from the video camera system in the stairwell to support the defence position that K.F. was the shooter. The videos themselves were not available, but the images contain time stamps which the parties agree are accurate. Viewed in sequence, the images show four males coming down the stairwell shortly before 3:00 am. Counsel submits that K.F. is one of them, and that he is holding an object consistent with a firearm or firearm magazine.

[39] I am satisfied the fourth person down the stairs is K.F. An object is visible in his hand in three of the images filed. However, I cannot discern what the object is. These are grainy, black and white images with poor resolution. In the first image, the object is so blurry as to prevent any real assessment of it. In the second and third images, the lighting is better, and I can make out a thin, flat object in K.F.’s left hand. When I examine the two images together, the object appears to be rectangular.

[40] This object does not look like a gun to me. Nor is K.F. holding it in a manner consistent with a gun. It does not look like the magazine from a gun either, as the object is very thin and flat. Moreover, it makes little sense that the shooter would remove the magazine, conceal the gun, and run away holding the magazine in plain view. In my view, it is more consistent with a cellular phone.

[41] I would not exclude the possibility that this item is a firearm or firearm component of some kind. But what I can see of it is not consistent with that conclusion.

Conclusions with Respect to Identity

[42] Having considered the whole of the evidence in this case, I accept the evidence of Y.W. and A.D. that the accused was the only other person in the west side of the apartment when the gun was fired. And I accept that neither of those witnesses was responsible for the discharge. As a result, I find that P.W. was the shooter.

[43] There is some dissonance between Y.W. and A.D. as to the exact position of the accused at the moment of the shooting. A.D. testified that he was in the living room and Y.W. reported that he was in the kitchen. This inconsistency does not cause me to find that either witness was lying. In my view both were credible. This was a deeply traumatic and unexpected event and, as such, some discrepancies in the accounts are understandable.

[44] I accept the evidence of Y.W. on this point. A.D. suffered a devastating brain injury that day. She had consumed alcohol and marijuana prior to the incident. And, as set out above, the physical evidence is more consistent with Y.W.’s account. I find that P.W. discharged the gun from the kitchen. The bullet struck A.D. at the entry to the living room and then lodged inside the TV. The blood on the floor accords with this positioning. And the left to right direction suggested by the damage to the TV accords with the shooter being in the kitchen.

[45] Even if could not determine the precise position of the accused, I would still be satisfied beyond a reasonable doubt that he was the shooter. On either account, P.W. was the only person in the west side of the apartment where the shooting took place.

[46] I reject the defence submission that K.F. was the shooter. There was no evidence from any witness that K.F. was anywhere near A.D. at the time of the shooting. To the contrary, the evidence I do accept leads me to conclude that he was in A.D.s bedroom. In my view, the still images from the stairwell do not raise a reasonable doubt about the identity of the shooter. The object in K.F.’s hand does not resemble a gun or other firearm component. Considered within the context of the evidence as a whole, these images do not raise a reasonable doubt: R. v. B.D., 2011 ONCA 51 at paras. 103-114; R. v. Dayes, 2013 ONCA 614 at paras. 52-60.

[47] In the alternative, the defence submits that someone may have moved into the west side of the apartment unit, unnoticed by the two key witnesses, and fired the gun. Counsel submits this may have happened when Y.W. went to retrieve her shoes from the bedroom and while A.D. was in the kitchen. I disagree. As described above, the two main areas of the apartment are very much separated from each other. In order for someone to move from one side to the other, they would have to travel down the narrow hallway leading from the front door to the bedrooms. I do not accept that anyone could have passed Y.W. in this narrow space without her noticing. Nor do I accept that this person could have moved, unseen, across the living room or into the kitchen so as to be in a position to have fired the gun.

[48] Counsel submits, in the further alternative, that someone may have come from the balcony and discharged the weapon. In my view, this suggestion is speculative and is contradicted by the clear evidence of both A.D. and Y.W. that all the other occupants were in the bedrooms on the other side of the apartment.

[49] I am satisfied, beyond a reasonable doubt, that P.W. was the shooter. In my view, this is the only rational inference which can be drawn from the whole of the evidence: R. v. Griffin, supra, at para. 33.

[50] This, however, does not end the matter. Identity is only one element of the offences charged. I now turn to the question of whether the counts alleged have been proven beyond a reasonable doubt.

Part III – The Offences Charged

Count 1 – Unauthorized Possession of a Firearm [s. 91(1)]

[51] I am satisfied that P.W. possessed a firearm on February 12, 2021. Generally speaking, the offence of possessing an unauthorized firearm, contrary to s. 91(1) of the Code, can be made out in connection with three classes of firearms: prohibited, restricted, or non-restricted firearms. Possession of such a firearm, in the absence of the required licence or registration certificate, makes out the offence. In this case, it is admitted that P.W. had no licence or registration certificate. The issue with this count arises from way in which it is drafted. The Crown has particularized possession of a “prohibited firearm”, but there is very little evidence as to what kind of gun this was.

[52] The term “prohibited firearm” is defined in s. 84(1) of the Code. The definition includes handguns with a barrel length equal to or less than 105 mm, handguns capable of discharging a 25 or 32 calibre cartridge, “sawed off” rifles or shotguns, automatic firearms, and any specific guns prescribed to be prohibited firearms.

[53] In this case, the firearm possessed by the accused was never recovered. I have rejected the evidence of B.D. and, as such, there is no direct evidence as to what kind of gun it was. The Crown submits the weapon must have been a handgun, in order for it to have remained concealed throughout the night. If it was a long gun, the Crown reasons, it would have been seen. Even if I found the firearm was a handgun, I would not be able to conclude that the barrel length was equal to or less than 105 mm. And there was no evidence that a 25 or 32 calibre cartridge was discharged from it.

[54] It is true that any handgun which is not a prohibited firearm is a restricted firearm, which is also capable of making out the offence. According the definitions contained in s. 84(1), a handgun must be one or the other. In cases where the precise character of the handgun is unknown, the s. 91(1) count is often pleaded so as to capture either alternative. However, that is not the case here. Count one particularizes only a prohibited firearm. When pressed on this point, the Crown did not seek to amend the information.

[55] I am not satisfied that count one, as worded, has been proved beyond a reasonable doubt. As a result, I find the accused not guilty of unauthorized possession of a firearm.

Count 3 – Possession of Loaded Prohibited or Restricted Firearm [s. 95(1)]

[56] I have found that P.W. possessed a firearm. It was clearly loaded. However, count three on the information suffers from the same deficiency as count one. The offence created by s. 95(1) of the Code can be made out via possession of a prohibited or restricted firearm with ammunition (in the absence of the required authorization). In this case, the Crown has particularized a “prohibited firearm.”

[57] For the reasons set out above, I cannot find the firearm in this case was a prohibited firearm. As a result, I find P.W. not guilty of count three.

Count 7 – Criminal Negligence Causing Bodily Harm [s. 221]

[58] The Crown properly concedes there is insufficient evidence to establish an intentional discharge of the firearm in this case. However, the Crown submits that the accused’s conduct still amounts to criminal negligence. The relevant provisions of the Criminal Code dealing with criminal negligence causing bodily harm are as follows:

219 (1) Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. (2) For the purposes of this section, “ duty” means a duty imposed by law.

221 Every person who by criminal negligence causes bodily harm to another person is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or (b) an offence punishable on summary conviction.

[59] The actus reus of criminal negligence causing bodily harm is made out where the accused does something, or omits to do something it was his or her legal duty to do, and the act or omission causes bodily harm. The mens rea of the offence requires that the accused’s act or omission shows wonton or reckless disregard for the lives or safety of others: R. v. Javanmardi, 2019 SCC 54 at para. 19-23.

[60] Neither “wonton” nor “reckless” are defined in the Criminal Code. The term wonton has been interpreted to mean “heedless”, “ungoverned”, “undisciplined” or "unrestrained disregard for the consequences"; and the word reckless has been held to mean “ heedless of consequences, headlong, irresponsible": R. v. Menezes, [2002] O.J. No. 551 at para. 72; R. v. J.L., [2006] O.J. No. 131 (CA) at para. 19.

[61] A modified objective standard of fault applies. Specifically, the Crown must establish that the accused’s conduct constituted a marked and substantial departure from the conduct of a reasonable person in the accused's circumstances: R. v. Javanmardi, supra, at para. 19-23. This standard applies to both the physical and mental elements of the offence: R. v. J.L., supra, at para. 16.

[62] Negligence based offences exist along a spectrum that is measured against an objective standard of reasonable conduct. Certain offences, such as dangerous driving, require a marked departure from that standard: R. v. Javanmardi, supra, at para. 21; R. v. Chung, 2020 SCC 8 at para. 14. Criminal negligence under s. 219 of the Code, requires a marked and substantial departure, which is an elevated standard of objective fault. In either case, the Court must inquire whether the accused’s actions created a risk to others and whether, "a reasonable person would have foreseen the risk and taken steps to avoid it if possible": R. v. Javanmardi, supra, at para. 22; R. v. Roy, 2012 SCC 26 at para. 36.

[63] According to the information, P.W. was seventeen years old at the time of the incident. His young age is a relevant factor in determining whether his conduct amounted to a marked and substantial departure: R. v. J.L., [2006] O.J. No. 131 at para. 20 (CA); R. v. Laine, 2015 ONCA 519 at para. 67. P.W. was also on a release order at the time, directing him not to possess any weapons. A firearm is a deadly weapon. I find that a reasonable person in the accused’s position would have been well aware of the dangers of carrying one in public.

[64] P.W. brought the firearm to a residential apartment unit full of people. The gun was loaded. A bullet was chambered. The gun either had no functioning safety mechanism or the safety was off. This conduct was objectively dangerous and a reasonable person would have foreseen the obvious and serious risk it posed to the lives or safety of others. In addition, P.W. handled or carried the weapon in such a way as to cause it to discharge directly at A.D. In all the circumstances, this conduct far exceeds the legal standard of a marked and substantial departure from the conduct of a reasonable person in the circumstances.

[65] There is no dispute that the conduct here caused bodily harm to A.D. In the result, I find the Crown has proven the offence of criminal negligence causing bodily harm beyond a reasonable doubt.

Count 4 – Careless use of a firearm [s. 86(1)]

[66] According to s. 86(1) of the Code, every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm in a careless manner or without reasonable precautions for the safety of other persons. My analysis of the criminal negligence count is determinative of this charge.

[67] The objective fault element for careless use of a firearm is a marked departure from the standard of care of a reasonable person in the circumstances: R. v. Finlay, [1993] 3 S.C.R. 103; R. v. Penner, 2019 BCCA 76. This is a lower threshold than the marked and substantial departure required for criminal negligence: R. v. Javanmardi, supra, at para. 43. I find the Crown has proven this offence beyond a reasonable doubt.

Count 8 – Fail to Comply with Release Order (No Weapons) [s. 145(5)]

[68] I have found the accused possessed a firearm on February 12, 2021. There is no dispute that he was bound by a release order at that time, with a condition that he possess no weapons. I find this offence has been proven beyond a reasonable doubt.

Part IV – Conclusion

[69] At the invitation of the Crown I dismiss counts two, five and six on the information. I further find P.W. not guilty of counts one and three.

[70] I accept the concession of the defence and find P.W. guilty of count nine on the information. I further find P.W. guilty of counts four, seven and eight. For further clarity, the dispositions are as follows:

• Count 1 – Possession of a prohibited firearm [s. 91(1)] – Not guilty
• Count 2 – Possession of a prohibited or restricted firearm [s. 92(1)] – Not guilty
• Count 3 – Possession of a loaded prohibited firearm [s. 95(1)] – Not guilty
• Count 4 – Careless use of a firearm [s. 86(1)] – Guilty
• Count 5 – Reckless discharge of a firearm [s. 244.2] – Not guilty
• Count 6 – Aggravated assault [s. 268(2)] – Not guilty
• Count 7 – Criminal negligence causing bodily harm [s. 221] – Guilty
• Count 8 – Fail to comply with release order (no weapons) [s. 145(5)] – Guilty
• Count 9 – Fail to comply with release order (house arrest) [s. 145(5)] – Guilty

Released: January 26, 2022 Signed: Justice Peter N. Fraser