CUFOA

Canadian Unlicensed Firearms Owners Association
Association canadienne des propriétaires d’armes sans permis

Armes for Their Defense;
An Inherited, Historical, Canadian Right

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IN THE PROVINCIAL COURT FOR SASKATCHEWAN

NORTH BATTLEFORD, SASKATCHEWAN

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 117.03(3) OF THE
CRIMINAL CODE

AND IN THE MATTER OF JACK WILSON

Ms. N. Leinenweber for the Crown
Respondent in person, assisted by Mr. Ed Hudson


February 20, 2004

DECISION

L.P. Deshaye, PCJ.


Background

[1] On September 24, 2003, in the Wilkie area of Saskatchewan, Cst. Dean Flaman, a peace officer employed by the Royal Canadian Mounted Police, seized a semi-automatic 12 gauge shot-gun and ammunition from the Respondent, Mr. Wilson. Officer Flaman swore an affadavit that at the time of seizure Mr. Wilson claimed ownership of the firearm and was unable to produce an authorization or licence under which he could lawfully possess the seized articles, nor did Mr. Wilson produce a registration certificate for the firearm.

[2] In due course Officer Flaman prepared an application under the authority of s. 117.03 of the Criminal Code seekeing an order of the Court that the firearm and ammunition be forfeited to Her Majesty to be dealt with as directed by the Attorney General of Saskatchewan. Mr. Wilson opposed the application and the matter had bee set to January 5, 2004, at Unity, Saskatchewan, for hearing. On January 5th, Ms. Leinenweber represented the Crown. The Respondent was present and represented by an agent, Mr. Ed Hudson. Initially the Crown sought an adjournment of the hearing, as it proposed to call an expert to testify as to whether the item purportedly seized was a 'firearm', and the Crown expert was not present on January 5th. When Mr. Hudson said the Respondent would agree that the seized item was a 'firearm' the Crown then sought to withdraw the Application which was the basis of the proceedings.

[3] The Respondent objected to a simple withdrawal fo the Application because the issue of what would become of the firearm was not resolved. Cst. Sutherland then addressed the Court on behalf of the Crown and said that the firearm would be released by the Crown to a person who is entitled in law to possess it, at the direction of Mr. Wilson.

[4] There had been no evidence called on the Application, save the affidavit of Constable Dean Flaman. Otherwise, all of the information placed before me was done by oral representations from Ms. Leinenweber, Cst. Sutherland and Mr. Hudson. In the circumstances I do not purport to make any formal findings of fact, other that what appears to ahve been agreed to by consensus of the parties for the purposes of the proceedings.

[5] The affidavit of Cst. Flaman indicates some of the background facts, which are apparently agreed to, that on September 24, 2003, a shotgun was seized from Jack Wilson. It was agreed that the firearm was a J.C. Higgins, 12 gauge shotgun, and that it was seized from Mr. Wilson, who claimed to be the owner, in the Wilkie district of Saskatchewan. The affidavit further alleges that Mr. Wilson did not at any time produce an authorization or a licence to possess such a firearm, nor a registration certificate for the firearm.

[6] The Crown now takes the position that once this Application is withdrawn, the firearm can be turned over to a person lawfully entitled to receive it, at the direction of Mr. Wilson. It would seem it is not lawful for Mr. Wilson to possess the firearm, because he has not produced a registration certificate for the firearm, nor an authorization or licence to possess the firearm. I cannot conclude definitively that the Respondent does not hold such authorizations, but it may be presumed that he does not. If he had, I expect he would have said so. Mr. Hudson advised the Court that if the matter were to have proceeded the Respondent would be raising for consideration alleged violations of the Canadian Charter of Rights and Freedoms. Ms. Leinenweber countered that the Crown had not received notice that such issues would be raised in the hearing. When the matter was presented before me on January 5th I heard no representations concerning possible Charter violations, but did indicate I would invite further argument on the matter if I considered it necessary after reflection.

[7] The Crown says, in effect, the Application for destruction or forfeiture is withdrawn, and therefore the Court has no further jurisdiction to deal with the matter. The Respondent argues that the matter should not be withdrawn without an order from the Court that the seized shotgun be returned to Mr. Wilson. It seemed to me that if the matter was to be resolved at this level of proceedings, I would have to be satisfied that I had jurisdiction under the law to proceed as recommended by the Respondent. Hence the adjournment for consideration, and hence these reasons.

Analysis

[8] Section 117.03 of the Code provides:

"117.03 (1) Notwithstanding section 117.02, a peace officer who finds
(a) a person in possession of a firearm who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess the firearm and a registration certificate for the firearm, or

(b) a person in possession of a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawrfully possess it,

may seize the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition, unless its possession by the person in the circumstances in which it is found is authorized by any provision of this Part, or the person is under the direct and immediate supervision of another person who may lawfully possess it.

(2) Where a person from whom anything is seized pursuant to subsection (1) claims the thing within fourteen days after the seizure and produces for inspection by the peace officer by whom it was seized, or any other peace officer having custody of it,
(a) an authorization or a licence under which ther person is lawfully entitled to possess it and
(b) in the case of a firearm, a registration certificate for the firearm,
the thing shall be forthwith returned to that person.

(3) Where any thing seized pursuant to subsection (1) is not claimed and returned as and when provided by subsection (2), a peace officer shall forthwith take the thing before a provincial court judge, who may, after affording the person from whom it was seized or its owner, if known, an opportunity to establish that the person is lawfully entitled to possess it, declare it to be forfeited to Her Majesty, to be disposed of or otherwise dealt with as the Attorney general directs."

[9] Section 117.03 provides for the formality of a proceeding which allows a provincial court judge to order forfeiture of a seized item, such as a firearm and ammunition. The proceeding is brought before the Court at the behest of the Crown, represented initially in this case by a a peace officer, then, subsequently, an agent of the Attorney General. What has occurred in the interim is that the Crown has sought to withdraw the application. This suggests that the Crown seeks to withdraw from the Court's consideration whether an order under s.117.03(3) can or should be made. The Respondent raises the question whether the Court can or should countermand or over-ride the Crown's discretion.

[10] Generally, the Courts are reluctant to interfere with the broad discretionary powers which are said to be within the purview of the Crown. As a general principle, it is recognized that for our system of criminal justice to function well, the Crown must possess a fair deal of discretion, a discretion which extends to all aspects of the criminal justice system: R. v. Cook (1997), 7 C.R. (5th) 51 at p. 58 (Supreme Court of Canada).

[11] Moreover, it is only where the conduct of teh Crown is so egregious as to amount to an abuse of the Court's process that the Court will intervene with a remedy. The onus falls to the person claiming abuse to establish such conduct on a balance of probablilities: R. v. Cook, supra. In the present matter no allegation of abuse of process by the Crown has been alleged by the Respondent. Of course, the Respondent was not represented by counsel and therefore perhaps not informed as to the law of abuse of process. Nevertheless, even my own cursory knowledge of the background circumstances does not suggest any improper conduct by the Crown.

[12] Section 117.03 is contained in Part III of the Criminal Code and is one of the relatively new provisions dealing with the possession and control of firearms and other weapons. As such, it is clearly criminal legislation and the competency of parliament to legislate in the field is assumed. In such cases, particularly given teh wording of s. 117.03, where the police are given authority to act, the responsibility of the Crown to carry the proceedings is also assumed. Of course, Crown counsel are bound by strict duties to ensure the preservation of the integrity of the criminal justice system, but I can find nothing int he present case, as far as I understand it, which suggests that the Crown is compromising that integrity by simply opting not to proceed further.

[13] Even if the Crown had proceeded and been required to expose all the underlying circumstances, then conceded that it should not have proceeded, I fail to see how the Respondent could be in any greater jeopardy than he presently is by the Crown electing not to proceed. Had the application proceeded to a hearing, the Respondent would run the risk of the destruction of his shotgun and ammunition. That risk has now been removed. Moreover, whatever would have transpired at the hearing of the application, the Respondent would still be faced with the proposition that he could not secure the return of his property by Court order where to do so would be tantamount to unlawful possession of a firearm or ammunition. It would seem to me to be quite improper to say that the Respondent should be able to secure a return of his gun and ammunition unless he has the proper authorization or licence or registration to permit it. Offences for unlawful possession, trafficking and transfer are described in ss. 91, 99 and 101 of the Criminal Code.

[14] I conclude that it would be wrong for the Court to purport to force the Crown to return Mr. Wilsons gun and ammunition in circumstances which on their face would appear to be continence a breach of the law.

[15] The Crown is apparently willing to release Mr. Wilson's property to a person authorized by law to receive it. It now falls to Mr. Wilson to provide evidence of that authority if he is so minded. In any event, the Application for Destruction is withdrawn at the Crown's discretion. This court neither should nor will make any further intervention to prevent the Crown from exercising its discretion accordingly.

 

 

 

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