COURT FILE NO.: 10-11370

DATE: 2012/09/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

CLAUDE HARIDGE

Appellant

Kevin Phillips, for the Crown

Trevor Brown, for the Appellant

HEARD: August 22, 2012

REASONS on appeal

M. Linhares de Sousa J.

INTRODUCTION

[1] The Appellant, Claude Haridge, appeals against his conviction made by his Honour Justice Wright, on October 13, 2011, on the following two counts: 1) careless storage of ammunition contrary to s. 86(1) of the Criminal Code of Canada; and 2) breach of recognizance to keep the peace and be of good behaviour contrary to s. 145(5.1) of the Criminal Code of Canada.

[2] With respect to the two charges in relation to each other, it was agreed by counsel at the trial that the liability on the breach charge would stand or fall on the basis of the outcome of the substantive offence of careless storage of ammunition. So it will be with this summary conviction appeal.

[3] On his conviction, Mr. Haridge received a suspended sentence and 12 months of probation with a variety of conditions.

GROUNDS FOR THE APPEAL

[4] The Appellant raises the following grounds for the appeal:

(1) that the trial judge erred in law by failing to assess how the manner of storage of the ammunition in this case posed any foreseeable risk of harm to a member of the public.

(2) that the trial judge erred in law by taking judicial notice of facts that could not be said to be so notorious or generally accepted as to be indisputable, and relying upon those facts in convicting the Appellant.

(3) that the trial judge erred in law by relying on facts not in evidence - to wit, his own personal knowledge of understanding of the uses made of the area in question – in convicting the Appellant.

(4) that the trial judge’s finding that the ammunition could be found by members of the public was unreasonable and not supported by the evidence called at trial. The agreed statement of facts, the photographs of the area filed with the court, the viva voce evidence called all pointed to the opposite conclusion.

[5] On these grounds, the Appellant seeks an order allowing the appeal and entering an acquittal. In the alternative, the Appellant seeks an order allowing the appeal and ordering a new trial.

POSITION OF CROWN COUNSEL ON THE APPEAL

[6] Counsel for the Crown contests the appeal and submits that the trial judge did not err, in law nor in fact, in finding the Appellant guilty of the charge of careless storage of ammunition.

[7] Counsel for the Crown takes the position that based on the evidence presented, and in particular relating to how the Appellant stored the ammunition in question, the trial judge reasonably assessed the likelihood of the ammunition in question being discovered by a member of the public.

[8] The Crown further submits that based on the inherent danger of ammunition, as established by the case law, the trial judge reasonably inferred risk of harm or dangerousness from the circumstances of the unsafe storage. Those circumstances included the location, the manner of burial, the quantity of ammunition and the abandonment of control.

[9] The Crown submits that the standard of review of appeal is not whether this court agrees or not with the trial judge in his findings, but only whether it can be said that the trial judge could reasonably have reached the conclusions he did. It is the position of the Crown that, from the evidence presented at trial, he reasonably could.

[10] Crown counsel further submits that the trial judge properly took judicial notice of the fact, which would be notorious and generally accepted that people used public forests for a variety of reasons.

DECISION OF THE TRIAL JUDGE

[11] The parties to this appeal do not dispute the evidence which was before the trial judge. At trial the parties proceeded in large part by way of Agreed Statement of Facts, filed as exhibit 1 at trial, and which was before this court. Briefly, and in a summary way, the Agreed Statement of Facts indicated that the Appellant had been under surveillance by the police. On May 27, 2010, the Appellant was observed by the police to park his vehicle by the side of the road in the vicinity of 1339 Elphin Maberly Road (Lanark County Road 36), approximately 7 km north of that road’s intersection with Ontario Highway 7. The Appellant exited his vehicle and entered the forest and came out some 50 minutes later.

[12] The land in question is a row-planted red pine forest, owned by the County of Lanark. It is situated in a rural, forested area of Tay Valley Township.

[13] After the Appellant departed the police entered the forest with a trained dog. The dog hit an area of interest in the forest approximately 30 metres from the road. The forest is separated from the road by a wire fence. Both the Appellant, and subsequently the police entered the forest through an opening provided for in the fence.

[14] The area of interest to the police consisted of three separate areas, within close proximity of each other, where the ground appeared recently disturbed, in that the pine needles and soil did not match the rest of the ground cover. When the three areas were excavated by the police the following were found:

(i) a metal box containing 390 rounds of 7.62 mm ball ammunition bullets, manufactured for automatic and semi-automatic military rifles;

(ii) a green garbage bag containing 15 cans of black rifle powder (which did not form part of this charge);

(iii) a wooden crate containing 620 rounds of “China North” 7.62 mm x 39 mm bullets, manufactured for automatic and semi-automatic military rifles;

(iv) a wooden crate containing 600 rounds of “China North” 7.62 mm x 39 mm bullets; and

(v) a wooden crate containing a further quantity of “China North” 7.62 mm x 39 bullets.

[15] It was also admitted that the Appellant buried the items listed above on May 27, 2010, and that the bullets constitute “ammunition” within the meaning of s. 84(1) of the Criminal Code.

[16] The trial judge also heard the oral evidence of Ontario Provincial Police Officer Beauregard, who was one of the officers excavating the site and who took a series of photographs of the area of the excavation and the area surrounding the excavation area and the items found by the police. Those photographs were filed as exhibit 3 at trial and were also before this court.

[17] Concerning the location and the observation of the buried ammunition, Officer Beauregard testified to the following:

• that the area the police searched was approximately six or seven kilometres north of Maberly, which he called a “hamlet” where there are residences.

• that the area the police searched was a very rural area, heavily forested and with few residences.

• that the area they searched was just off the highway, on the west side of the roadway.

• it was an area of planted trees in rows, planted by the “Ministry of Natural Resources or something.”

• Officer Beauregard could not recall seeing any homes in the immediate area of the search but on one of the photographs which he took (photograph 001of exhibit 3 at trial) on the left hand side of the roadway to the shoulder of the road he observed what to him looked like the roof of a barn or a house. He did not know if anyone was living where that structure appeared on the photograph. He did not go down there.

• one of the photographs taken by Officer Beauregard (003) showed what he described as the bush area with a fence line, a typical, cedar post, farmer-type, fence line. He referred to the two fence posts that made an opening into a laneway into the forest. It was this break in the fence where they could and did walk into the forest to find the area of interest. One of the photographs taken by Officer Beauregard (photograph 3 of exhibit 3 at trial) demonstrated the gap between the two fence posts and the shoulder extending from the road in front of the fence post opening.

• according to Officer Beauregard the area of interest was about 30 metres from the roadway and about maybe a hundred yards from the gap in the fence line or fence post.

• that the area of interest was located with the help of a K9 police dog.

• that if you observed the three areas where the ammunition had been buried, it would be evident to the observer that there had been some disturbance to the top of the ground because of less pine needles, the softer ground and some discolouration to the soil of the ground. Photograph 007 of exhibit 3 at trial was referred to by Officer Beauregard to point out these observations.

• that the top of one of the wooden crates which held the ammunition was screwed shut and the others were fixed shut. The metal box containing ammunition was fixed shut but Officer Beauregard did not believe that the metal box was locked.

(pp. 9-13 and pp. 25- 26 of Transcript of the trial Proceedings on September 23, 2011).

[18] In his decision, the trial judge accurately recognized the Agreed Statement of Facts of the parties and uses the agreed facts to come to his decision.

[19] The trial judge recognizes that conviction under s.86(1) can be by both storage of ammunition in a careless manner or without reasonable precautions for the safety of other persons. He recognized that the section is disjunctive so that proof of one is sufficient. Both are not required.

[20] The trial judge went on to recognize and cite the jurisprudence that established the legal test to be applied in determining guilt under the section. The first case cited by the trial judge is R. v. Gosset, 1993 CanLII 62 (SCC), [1993] 3 S.C.R. 76. In that decision, as the trial judge recites, Chief Justice Lamer recognizes the placing of a “special duty of care” on those individuals who take care or control of “inherently dangerous materials” that have a potential for causing serious injury or death. It is clear from that decision that ammunition is one such “inherently dangerous material.”

[21] The trial judge then stated, as established in the case of Gosset, supra, the objective standard test of what needs to be proven in order to convict under s. 86(1), namely, conduct that constitutes a marked departure from the standard of care of a reasonably prudent person in the circumstances of a given case.

[22] The trial judge then went on to cite the case of R. v. Lulic, [2003] O.J. No. 5961 that relates the breach of the duty of care that would define “carelessness” under the section in question to that “which results or might reasonably be expected to result in some danger to others by reason of the inherently dangerous characteristics of firearms and ammunition.”

[23] With the jurisprudence he recited in mind, the trial judge began to examine the factual circumstances of the case before him which he found to be “highly unusual.” He concluded that the ammunition was stored in a county forest, public land, which could be found by others as it had been easily and quickly found by the police albeit with the help of the police dog. He recognized the distance of the buried ammunition to the road and near a highway. He recognized how obvious the burial was by the disturbed and loose earth and how shallow the burial was.

[24] The trial judge also recognized and considered a significance the fact that the Appellant, in storing the ammunition where he did, had abandoned all control over the ammunition because he had buried the ammunition in public land over which he was not able to exercise any control.

[25] The trial judge also placed some importance on the volume of the ammunition which he stated “may well inform the degree of care that should be expected of a reasonably prudent person.”

[26] The trial judge did not rule out the possibility of storing ammunition by burying it, although he questioned why anyone would want to do that. In his view what would meet the standard of care in that instance would be a burial on private land with controlled access, fenced and buried much more deeply and better concealed.

[27] The trial judge took judicial notice of the fact that Crown forests have many users in the same way that one can take judicial notice of the fact that city parks are utilized by members of the public. He concluded that he did not need any evidence to conclude that public lands are used by members of the public.

[28] The trial judge concluded his decision with the words:

In the circumstances of this case, the burying of hundreds of rounds of ammunition in shallow holes in the Lanark forest is a failure to take due care of potentially dangerous articles. Here there is a marked departure from the standard of care of a reasonably prudent person and accordingly, there will be findings of guilt.

STANDARD OF REVIEW

[29] The standard of review to be applied to this appeal was not contested. It was agreed by both counsel that the Supreme Court of Canada clearly established this standard in its decision, R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656.

[30] At para. 12 of that decision the Court recognizes that the applicable section of the Criminal Code permits a court of appeal to allow an appeal in three cases where it is of the opinion that

(1) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(2) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(3) on any ground that there was a miscarriage of justice.

[31] The issue of a miscarriage of justice was not raised as a ground of appeal in this matter. It is the other two grounds that are raised in this appeal.

[32] The Appellant submits that, as a question of law, the trial judge failed to assess the risk of harm and made improper use “judicial notice” as a substitute for evidence on the critical issue of risk of harm.

[33] The Appellant also submits that in all of the circumstances of this case the verdict is unreasonable and not supported by the evidence.

[34] With respect to these latter grounds on which an appellate court may allow an appeal, the Supreme Court of Canada in R. v. Burns, supra, stated the following:

… the court is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168; R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122. Provided this threshold test is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial.

THE TRIAL JUDGE’S ASSESSMENT OF RISK

[35] With respect to the legal test required by s. 86(1) of the Criminal Code, the Appellant does not appear to question the trial judge’s correctness in his declaration of the law, or of the legal test as it applies to s. 86(1) of the Criminal Code or as to what is required to be proven in order to support a conviction for careless storage of ammunition under that section of the Criminal Code.

[36] I have summarized above the trial judge’s declaration of the legal test before him. I can find no error in the trial judge’s declaration of the law and legal test which he had to apply to the facts before him in order to find the Appellant guilty of the charge of careless storage of ammunition. He correctly stated the law as declared by Lamer C. J. at para. 29 of Gosset, supra:

Thus, s. 86(2) of the Criminal Code cannot be said to punish a state of mind; rather, this section establishes an offence of negligence, which, like intention and recklessness, may provide a valid basis of fault in criminal law. What need be proven in order to convict under this provision is conduct that constitutes a marked departure from the standard of care of a reasonably prudent person in the circumstances. If a reasonable doubt exists either that the conduct in question did not constitute a [page 93] marked departure from that standard of care, or that reasonable precautions were taken to discharge the duty of care in the circumstances, a verdict of acquittal must follow.

[37] At para. 33 of that same decision, Lamer C.J. points out that the test is an objective one and will lead to the conviction of a

person who fails to take reasonable precautions in response to the duty [of care because of the inherently or potentially dangerous material] that has been placed upon him or her, and should have taken; the breach of this duty is demonstrated by the risk of harm to which their conduct gives rise. This provision, therefore, punishes those who have not acted reasonably.

[38] It is also accepted, as stated by the Appellant’s counsel in his Factum, that the objective test requires that the risk of harm, which arises from the conduct in question, must be foreseeable. “Minimal” risk of harm, judged by the factual circumstances of the case, would not be sufficient to amount to a “marked departure from the standard of care” (R. v. Bludau, [1994] O.J. No. 2537, para. 20).

[39] While recognizing that the trial judge properly declared the legal test to be applied, the Appellant submits that the trial judge erred in law by improperly applying the legal test to the facts of the case before him. Specifically, the trial judge failed to do the proper and complete assessment of risk arising out of the Appellant’s conduct to determine if there was a marked departure from the standard of care that would be expected of a reasonably prudent person in the circumstances. Furthermore, the risk of harm found by the trial judge was not anything more than remote or minimal. This is based on two grounds.

[40] Firstly, according to the Appellant, on the evidence the trial judge found that the buried ammunition “could” be found by a member of the public accessing the county forest (“Could the ammunition be found by others, of course it could” Reasons for Judgment, October 13, 2011). There is no question that this possibility was central to the assessment of risk of harm to others considered by the trial judge and central to his ultimate decision.

[41] However, the Appellant submits that, that consideration alone, of the possibility of the buried material being found by a member of the public, was an insufficient assessment of risk because the possibility alone was “remote” or “minimal.”

[42] According to the Appellant, in order to properly assess the risk to others, on the facts of the case, the trial judge should have asked the critical question, not of just the possibility of a member of the public finding the buried ammunition but also the likelihood of such a find. Such an inquiry would also have required that the court have before it evidence dealing with the use made by the public of the forested area and how frequently the public used the area. There was no such evidence before the trial judge to permit the proper assessment of risk.

[43] Secondly, the Appellant submits that a proper and complete assessment of risk of harm to others also necessarily required the trial judge to consider the potential harm that would occur upon the ammunition being discovered by a member of the public. The ammunition in question is very specific, “manufactured for automatic and semi-automatic military rifles.”

[44] There was no evidence before the trial judge that any compatible firearms were nearby to the buried ammunition or that anyone using the forest would have such a firearm. The bullets were not tested to show that they were “live” and dangerous. This kind of inquiry would have required expert evidence which was not presented at the trial.

[45] The Appellant relies for his submissions on these two points on the authority of the decisions of R. v. Gosset, supra; R. v. Bludau, supra; and R. v. Christie, [2006] O.J. No. 4828.

[46] The Crown submits that there was a proper and complete assessment of risk of harm carried out by the trial judge. According to counsel for the Crown, the additional level of inquiry suggested by the Appellant was not necessary to conclude sufficient risk of harm to the public on the facts of this case, once the trial judge found, reasonably on the evidence, that any member of the public using the forest could find the buried ammunition. Crown counsel submits that evidence regarding how frequently the public used the forest in question was not necessary. Crown counsel argued that given that the legislation is meant to protect the public from the risk of harm from inherently dangerous material, such as the ammunition in question, the possibility of one person, as opposed to the likelihood of many, finding the buried ammunition establishes a sufficient risk of harm to others to meet the test of the section.

[47] Crown counsel further submits that it was not necessary to explore what harm might be caused upon the buried ammunition being discovered by a member of the public. There is an inference of harm from the inherently dangerous material on which the trial judge was entitled to rely in coming to his decision.

[48] According to Crown counsel the abandonment of control by the Appellant is a key factor which the trial judge noted. It is the basis for distinguishing all of case law cited by counsel for the Appellant.

[49] The reasons given by the trial judge for his finding of guilt are succinct and compact. Nonetheless, it is evident from the decision as a whole that the trial judge recognized that the determination of “carelessness” and whether there was a marked departure from the standard of care of a reasonably prudent person, on the part of the Appellant, on the facts before him, had to be assessed by the objective test of foreseeable risk of harm to others.

[50] It is evident from the trial judge’s Reasons for Judgment that the risk of harm to others arising from the conduct of the Appellant in storing the ammunition in the way he did was the total abandonment of control over the ammunition, buried shallowly in the ground so that it was readily and easily discoverable to the human eye, even if the police did use a police dog to locate the three areas of interest, and buried in an area that could be easily accessed from a road nearby by a clear and defined opening in a fence and in an area that the trial judge found was accessed by members of the public. For the trial judge the marked departure from the standard of care was storage by the putting into the public domain a cache of uncontrolled ammunition, which as is recognized by Lamer C. J. in Gosset, supra, is material that has a potential for causing harm to others. The significance of the trial judge’s reference to the volume of the ammunition, which was large, just multiplies the potential for causing harm to others by the number of bullets.

[51] I agree with Crown counsel that the fact of abandonment of control was a key finding to the trial judge’s assessment of risk of harm to others and it was supported by the evidence.

[52] The question to be asked on this appeal, in view of the submissions of the Appellant, is, was the risk of harm to others arising from the conduct of the Appellant “minimal”? Should the trial judge have gone on to explore the likelihood of a member of the public finding and being in control of the buried ammunition? Should the trial judge also have gone on to explore what would have happened if a member of the public discovered the buried ammunition and was in control of the buried ammunition?

[53] I must respond in the negative to all of these questions. I am not persuaded that the trial judge did not properly and completely assess the risk of harm on the facts before him for the following reasons.

[54] The real and present risk of harm to others by an individual putting into the public domain a large cache of uncontrolled ammunition manufactured for military firearms cannot be considered “minimal.” One can hardly exercise any standard of care with respect to potentially dangerous material, if one abandons control of the material to those members of the public who could find the buried ammunition. The abandonment of control of and the placement of potentially and inherently dangerous material on public land where it could be found and come into the control of a member of the public creates sufficient risk of harm to others in and of itself to justify a finding there has been a marked departure from the standard of care.

[55] I do not think that it was incumbent on the trial judge, in these circumstances and on the facts before him, to enter into an inquiry about what specific harm may occur upon the material being found by a member of the public by way of expert evidence about the condition of the ammunition and the availability of compatible firearms.

[56] It was conceded by the Appellant in the Agreed Statement of Facts that the material was “ammunition” within the meaning of 84(1) of the Criminal Code. As such, by handling and storing the material, the Appellant was impressed with a duty of care in the handling of that ammunition defined and recognized by the case law and in the jurisprudential interpretation of the words of s. 86(2).

[57] In Gosset, supra, Lamer C.J. in discussing the proper interpretation of the elements of the offence found in s. 86(2), indicated that,

… These provisions indicate Parliament’s intent that where people take care or control of inherently [page 90] dangerous materials, they are put on notice that society has placed on them a specific duty of care.

[58] This was because of the potential of those materials for causing serious injury or death. The abandonment of the control of the ammunition into the public domain was a breach of that duty of care.

[59] The cases relied on by counsel for the Appellant in support of his arguments are not helpful and can be easily distinguished from the facts of this case, in particular, relating to the question of continued control of the dangerous material in question.

[60] The case of Bludau, supra, concerned an appeal from a conviction for careless storage of a firearm. The firearm had been found in the corner of Mr. Bludau’s kitchen, standing upright fully loaded but needing to be pumped up before it could be engaged to fire and with the safety catch also engaged. Mr. Bludau was sitting with a friend in the kitchen at an arm’s reach of the gun when the police entered his home. Mr. Bludau’s evidence was that he had his gun at the ready because of animals that had been invading his garbage. Mr. Bludau lived alone in a rural area with his nearest neighbour being about an eighth of a mile away. At the time the police entered Mr. Bludau’s house he and his friend were not engaged in anything illegal, nor were they brawling, consuming alcohol or drugs.

[61] On these facts, the appeal judge found that in light of all of the surrounding circumstances, the risk of any harm materializing was minimal leading to a reasonable doubt as to whether Mr. Bludau’s actions constituted a “marked departure” from what a reasonably prudent person would have done in the circumstances. The appeal court judge noted in particular, on an objective test, the precautions taken by Mr. Bludau, the fact that he kept the gun within an arm’s reach and that he had engaged the safety catch.

[62] In the case of Christie, supra, the only case dealing with careless storage of ammunition alone, the facts showed that the ammunition, eight .22 caliber bullets, which became the subject of the charge had been placed in a see-through blue baggie and then wrapped together in saran wrap and placed in a zippered pouch of knapsack which was then put in the back, behind the driver’s seat, of a motor vehicle. There was no evidence to indicate whether the knapsack was visible from the windows or whether the windows were open or closed so that the knapsack could be seen or reached. The vehicle was left unattended by Mr. Christie to go into a variety store, but there was no evidence as to whether the vehicle was left locked or unlocked. There was no other storage area in the SUV type vehicle. There were no firearms found nearby nor on the person of Mr. Christie. The police were attracted to Mr. Christie because of the loudness of his music and the smell of marijuana and the sight of “roaches” when they approached his vehicle.

[63] The trial judge in that case concluded that all of the circumstances as disclosed by the evidence did not show the necessary marked departure from the standard of care of a reasonable person in the circumstances. The trial judge noted two facts on the evidence in particular, that the ammunition was away from an open flame and away from a firearm and totally out of view. He also found that the ammunition was “knowingly” in the possession and control of Mr. Christie.

[64] On the facts of this case, once the trial judge concluded that a member of the public could access the forest, I believe the trial judge also considered the question of “likelihood” of the buried ammunition being found. This he was able to do on the evidence before him relating to the rather shoddy way the ammunition was buried. The evidence before him was that the Appellant buried the ammunition 30 metres from the road and on the evidence of Officer Beauregard, some 100 yards from the opening in the fence. The fact that the earth had been disturbed was obvious. It did not take much digging into the ground to retrieve the ammunition. All of this was also an integral part of the trial judge’s assessment of risk of harm to others.

[65] In fact, the trial judge recognized that the storage of ammunition by burial, although unusual, would be permissible if a different standard of care had been followed. That standard he identified a burial “on private land with controlled access, fenced, and buried much more deeply or better concealed.” In these words, the trial judge clearly identified the standard of care that would be required of a reasonably prudent person, who, for whatever reason, chose to bury ammunition in the ground as a way of storing such material. I cannot find the standard of care identified by the trial judge to be unreasonable. It certainly throws into relief how the conduct of the Appellant was a marked departure from the standard of care expected of a reasonably prudent person.

THE TRIAL JUDGE’S USE OF JUDICIAL NOTICE

[66] The Appellant submits that the trial judge erred in his use of “judicial” notice as a substitute for evidence on the critical issue of risk of harm created by the manner of storage of the ammunition.

[67] There is no question that the fact about which the trial judge took judicial notice, namely, that “... Crown forests have many users…” and further on that “… I do not think there needs to be any evidence that public lands are used by the members of the public”, was used by him in his assessment of risk. The fact of the Appellant burying the ammunition on public land in the way he did was an element of the risk of harm by the possibility of putting the uncontrolled potentially dangerous material in the control of a member of the public.

[68] Counsel for the Appellant has referred the court to case law which establishes the legal bounds of judicial notice.

[69] In R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, the Supreme Court refused an appeal on the grounds, among others, that the trial judge should have permitted the accused to challenge for cause the juror panel based on a case for widespread bias arising from the nature of charges of sexual assault on children. The accused, in the absence of evidence to support his claim, relied on proof by judicial notice. The issue before the court was could the court take judicial notice of such a fact?

[70] McLachlin C. J. stated at para. 48:

… Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy…

[71] The case of R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, again brought the issue of jury selection before the Supreme Court, this time in the context of interracial bias. Stating that the Ontario Court of Appeal “pushed judicial notice beyond its proper limits” in permitting an accused to challenge the jury for cause to include the interracial nature of the crime in question, Binnie J. recognizes that the closer the fact to be judicially noticed approaches the dispositive issue (the adjudicative facts as opposed to social or legislative facts), the more the Court should insist on the strict compliance of the test found in R. v. Find, supra. But it is the same test in either case as that established in R. v. Fine, supra.

[72] With this jurisprudence in mind, I cannot conclude that the trial judge erred in his use of judicial notice. The pith and substance of what was judicially noticed by the trial judge was that public lands are used and accessed by members of the public. The fact of public land was before him and arose out of item 4 of the Agreed Statement of Facts signed by the parties and filed as exhibit #4 at the trial. The parties agreed that “The Land in question is row-planted red pine forest, owned by the County of Lanark. It is situated in a rural, forested area of Tay Valley Township.” Officer Beauregard also testified to the nature of the land in which the Appellant buried the ammunition.

[73] I do not find the statement of the trial judge to be either overly broad nor sweeping, and pushing judicial notice beyond the bounds of its proper limits. The trial judge made no other findings by way of judicial notice such as findings about the numbers of the public that used the land, how frequently they used the land and how they used the land. Findings like that would undisputedly require evidence. For the reasons already given the trial judge did not have to embark on that kind of enquiry to properly and completely assess the risk of harm arising out of the Appellant’s conduct.

[74] Applying the test established in R v. Fine, supra, the statements can be considered to be well known, or “notorious” or “generally accepted as not to be the subject of debate among reasonable persons.” This is so by the very nature of the public land. It did not require evidence to establish the fact. Nor can I find that the fact of public land being used by members of the public was declared based on any personal knowledge of the trial judge as alleged by the Appellant. There is no evidence of this in his Reasons for Judgment. Knowledge of it is generally accepted and not disputed.

[75] It is evident that the fact that the land where the Appellant buried the ammunition was subject to public access was an element of the trial judge’s assessment of risk. Nonetheless I cannot find that that fact alone closely approached the dispositive issue. Approaching much more closely to the dispositive issue of finding that the Appellant breached his duty of care by his conduct from which arose the risk of harm was the abandonment of control, of the large amount of military rifle bullets into the public domain by shoddily and shallowly burying the material in a public, county owned forest near an obvious opening into that forest which the public could see and use as a point of entry.

[76] For all of the above reasons and after re-examining, reviewing and re-weighing all of the evidence that was before the trial judge and examining the trial judge’s Reasons for Judgment, I cannot find that the verdict of guilty found by the trial judge was unreasonable. For the reasons given above I find that the evidence presented by the Crown at trial was reasonably capable of supporting a conclusion that the manner of storage chosen by the Appellant for this ammunition created an objectively foreseeable risk of harm to others and was a marked departure from the standard of care of a reasonably prudent person.

[77] Accordingly, the appeal is dismissed.

M. Linhares de Sousa J.

Released: September 7, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

CLAUDE HARIDGE

Appellant

REASONS ON APPEAL

M. Linhares de Sousa J.

Released: September 7, 2012