R. v. Carlos, [2002] 2 S.C.R. 411, 2002 SCC 35

Her Majesty The Queen Appellant

v.

Allen Michael Carlos Respondent

Indexed as: R. v. Carlos

Neutral citation: 2002 SCC 35.

File No.: 28748.

2002: April 17.

Present: McLachlin C.J. and Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for the yukon territory

Criminal law -- Firearms -- Careless storage of firearms -- Storage of firearms in contravention of regulations -- Actus reus of offences -- Whether firearms “stored” within meaning of s. 86(1) of Criminal Code -- Criminal Code, R.S.C. 1985, c. C-46, s. 86(1).

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C-46, s. 86(1).

APPEAL from a judgment of the Yukon Territory Court of Appeal (2001), 155 C.C.C. (3d) 459, 48 C.R. (5th) 57, 155 B.C.A.C. 95, 254 W.A.C. 95, [2001] Y.J. No. 69 (QL), 2001 YKCA 6, dismissing the Crown’s appeal from a judgment of the Yukon Territorial Court, [2000] Y.J. No. 113 (QL), 2000 YTTC 519, acquitting the accused on one count of careless storage of a firearm and two counts of storing a firearm contrary to regulations. Appeal allowed.

Graham R. Garton, Q.C., and David A. McWhinnie, for the appellant.

Richard A. Fritze, for the respondent.

The judgment of the Court was delivered orally by

[1] Arbour J. – This is an appeal as of right by the Crown.

[2] Accepting, as we must, the findings of fact made by the trial judge, we disagree with the majority of the Yukon Territory Court of Appeal ((2001), 155 C.C.C. (3d) 459, 2001 YKCA 6) that the actus reus of storage, within the meaning of s. 86(1) of the Criminal Code, R.S.C. 1985, c. C-46, has not been made out.

[3] There is no requirement in that section that the accused plan a long‑term or permanent storage. The trial judge found that the respondent deposited a loaded .357 Magnum in an ill-planned temporary hiding spot. In all the circumstances, in our view, this amounted to storage within the meaning of s. 86(1) of the Code. The same applies to the temporary placing of the two loaded handguns inside a locked safe.

[4] In the circumstances of this case, where the respondent, as he put it, rapidly set aside and hid his loaded firearms, in a panicked state, intending to retrieve them shortly thereafter, the facts amply support the conclusion that he stored them within the meaning of that section.

[5] There are obviously circumstances where a short interruption in the use or handling of firearms would still constitute use or handling rather than storage. In this case, however, the respondent took steps to put away and hide his weapons such that the proper characterization of his actions was that he stored them, albeit temporarily, rather than continue his use and handling of the firearms in plain view of the police.

[6] We are of the view that the storage was careless in one case, and in contravention of the regulations in the other two. We therefore agree with Ryan J.A. dissenting in the Court of Appeal that the acquittals must be set aside and convictions entered on all three counts. The matter is remitted to the trial judge for sentencing.

Judgment accordingly.

Solicitor for the appellant: The Deputy Attorney General of Canada, Ottawa.

Solicitor for the respondent: Richard A. Fritze, Sherwood Park, Alberta.