



COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Gouliaeff, 2012
    ONCA 690

DATE: 20121015

DOCKET: C53582

Cronk, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Alexander Gouliaeff

Applicant/Appellant

Matthew Gourlay, for the appellant

David Finley, for the respondent

Heard and released orally: October 10, 2012

On appeal from the conviction entered on April 10, 2010 and
    the sentence imposed on April 30, 2010 by Justice Donald J. Gordon of the
    Superior Court of Justice, sitting with a jury.

BY THE COURT:

[1]

Following a trial by judge and jury, the appellant was convicted of four
    counts of careless storage of a firearm, contrary to s. 86(1) of the
Criminal
    Code
.  He was acquitted of one count of careless storage and six counts of
    unlawful possession of a firearm.  A sixth count of careless storage of a
    firearm was withdrawn by the Crown.  The appellant was sentenced to three
    months imprisonment, consecutive, on each of the four counts for which he was
    convicted, for a total of 12 months imprisonment.  In addition, a five-year
    weapons prohibition order was imposed under s. 110 of the
Code
.  The
    appellant appeals his convictions and sentences.

A.      Conviction Appeal

[2]

The appellant raises one ground of appeal in support of his conviction
    appeal.  He argues that the trial judge misdirected the jury on the requisite
    elements of the offence of careless storage of firearms under s. 86(1) of the
Code
by failing to instruct the jury that any breach by the appellant of the safe
    storage of firearms guidelines set out under the relevant firearms storage regulations
    was insufficient to make out an offence under s. 86(1).  The appellant says, as
    outlined in his factum, that this error had the effect of lowering the
    negligence threshold that the Crown was required to prove under s. 86(1),
    thereby wrongly transforming the offences at issue into strict liability
    offences.

[3]

We reject this argument.

[4]

The sole issue at trial with respect to the pertinent charges was
    whether the appellants conduct in storing the firearms in question amounted to
    a marked departure from the standard of care that a reasonably prudent person
    would exercise in the same circumstances.

[5]

In his charge, the trial judge explicitly told the jury to consider all
    of the circumstances and, on four separate occasions, instructed the jury on
    the applicable marked departure/reasonableness standard required for a finding
    of carelessness under s. 86(1) of the
Code
.  While the trial judge did
    review the relevant firearms storage regulations with the jury, he also
    reviewed additional evidence relevant to the appellants manner of storage of
    the firearms and cautioned the jury to consider both the regulations and the
    defence evidence.

[6]

Further, at the close of his charge, when reviewing the defence position
    at trial, the trial judge again referred to the correct legal standard required
    for conviction and, without qualification or criticism, repeated the defence
    assertion that [T]he regulations do not apply.  What is required is a marked
    divergence from the standard.

[7]

When the charge is read as a whole, we are satisfied that the trial
    judges instructions adequately conveyed to the jury that the provisions of the
    firearms storage regulations were but one piece of evidence that may be
    considered by the jury in determining whether the appellants storage of the
    firearms amounted to the requisite marked departure from the standard of care
    that a reasonably prudent person would exercise in the same circumstances.

[8]

We note that the trial judges jury charge followed shortly after the
    closing addresses of counsel.  In his address, defence counsel repeatedly
    emphasized that the appellant had not been charged with a breach of the
    firearms storage regulations but, rather, with careless storage of the
    firearms.  Counsels submissions clearly underscored for the jury that a breach
    or breaches of the firearms storage regulations, if proven, were not
    determinative of the careless storage charges.  We also note that defence
    counsel did not object to the jury charge on the ground now advanced on appeal.

[9]

Finally, in our view, any doubt that the jury may have been confused by
    the requisite standard of care to establish criminal culpability under s. 86(1)
    of the
Code
is belied by the jurys verdict of acquittal on one of the
    careless storage charges.  We agree with the Crowns submission that the jurys
    verdict on this count indicates that, notwithstanding the provisions of the
    regulations, the jury had a reasonable doubt as to whether the appellants
    storage of the relevant firearms amounted to a marked departure from the
    applicable standard of care.

[10]

For
    these reasons, the conviction appeal is dismissed.

B.      Sentence Appeal

[11]

The
    Crown concedes, and we agree, that the appellants sentence appeal must be
    allowed.

[12]

The
    trial judges reasons for sentence reveal that he considered the appellants
    rehabilitative potential.  The evidentiary record indicates that the appellant
    made some efforts to comply with the law regarding the proper storage of
    firearms and there appears to be little prospect of his reoffending.  However,
    the reasons suggest that the appellants rehabilitative prospects were treated
    as a neutral factor or non-issue  rather than as a mitigating factor  by
    the trial judge.  With respect, this was an error.  The appellants positive
    potential for rehabilitation should have worked to his benefit on sentencing.

[13]

Further,
    while the trial judges decision to impose consecutive, rather than concurrent,
    sentences is a matter that would normally attract deference from this court,
    the reasons afford no explanation for why consecutive sentences were justified
    for this offender and these offences (all on-going, simultaneous careless
    storage offences).  We agree with the Crown that this was a case for concurrent
    sentences.

[14]

The
    appellant was released on bail pending appeal after having served more than
    seven months of his custodial term.  Thus, his bail release occurred within a
    few weeks of the likely expiry  at eight months  of his reformatory sentence.

[15]

In
    these circumstances, we agree with the Crowns submission that the appellants
    jail sentence should be varied to time served and we so order.  In our view,
    given the nature of these firearms, the manner of their storage by the
    appellant, the appellants knowledge of the requirements for safe storage
    (based on the firearms courses that he had completed shortly before his arrest)
    and the appellants criminal antecedents, it cannot be said that the imposition
    of an absolute discharge at this stage is justified.

[16]

We
    also agree that the length of the appellants prohibition order should be
    reduced from five to two years.  The appellant received a significant sentence
    of imprisonment that he has now served almost in its entirety.  This factor,
    together with the evidence of the appellants living circumstances prior to his
    conviction (on a farm in a rural setting involving both hunting and predator
    protection) suggest that the protective purposes of the prohibition order can
    be adequately met by a term of two years.

C.      Disposition

[17]

Accordingly,
    for the reasons given, the conviction appeal is dismissed.  Leave to appeal
    sentence is granted and the sentence appeal is allowed by varying the
    appellants incarceration to time served and reducing the duration of his
    prohibition order from five to two years.

RELEASED:

OCT 15 2012                                   E.A.
    Cronk J.A.

EAC                                                Sarah
    Pepall J.A.

M.
    Tulloch J.A.


