



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Regina 
          v. Porter,







2007 
          BCCA 39



Date: 20070117





Docket: CA032751

Between:

Regina

Respondent



And:

Norman 
    Monty Porter

Appellant




Before:


The 
          Honourable Madam Justice Rowles




The 
          Honourable Madam Justice Ryan




The 
          Honourable Madam Justice Newbury



Oral Reasons for Judgment




B.R.B. 
          Morahan


Counsel for the Appellant




J. 
          M. Gordon, Q.C.

K. 
          Gagnon


Counsel for the (Crown) Respondent




Place 
          and Date:


Victoria, British Columbia




January 17, 2007



Introduction

[1]

RYAN, J.A.:
The appellant was convicted on 19 November 
    2004 in Supreme Court of 6 weapons-related offences of a 9 count indictment.  
    The offences were the following:

Count 1

Norman Monty PORTER between the 16
th
day of May, 2002 and the 
    4
th
day of November, 2002, inclusive, at or near Central Saanich, 
    in the Province of British Columbia, did contravene a regulation made under 
    paragraph 117 (h) of the Firearms Act, respecting the storage of restricted 
    firearms in that they were not stored in a manner that rendered them inoperable 
    or stored in a container, receptacle, or room that is kept securely locked 
    and that is constructed so that it cannot readily be broken into and had readily 
    accessible ammunition, contrary to Section 86(2) of the Criminal Code.

Count 2

Norman Monty Porter, between the 16
th
day of May, 2002 and 
    the 4
th
day of November, 2002, inclusive, at or near Central Saanich, 
    in the Province of British Columbia, did contravene a regulation made under 
    paragraph 117(h) of the Firearms Act, respecting the storage of non-restricted 
    firearms in that they were not stored in a manner that rendered them inoperable 
    or stored in a container, receptacle, or room that is kept securely locked 
    and that is constructed so that it cannot readily be broken into and had readily 
    accessible ammunition, contrary to Section 86(2) of the Criminal Code.

Count 6

Norman Monty PORTER, on or about the 4
th
day of November, 2002, 
    at or near Central Saanich, in the Province of British Columbia, being at 
    large on a recognizance entered into before a Justice or a Judge and being 
    bound to comply with a condition of that recognizance as directed by a Justice 
    or a Judge, did fail without lawful excuse to comply with the following condition 
    or direction:  Not to be in possession of any firearm, cross-bow, prohibited 
    weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition 
    or explosive substance, and any related authorizations, licences and registration 
    certificates, until you are deal with according to law, contrary to Section 
    145(3) of the Criminal Code.

Count 7

Norman Monty PORTER, on or about the 17
th
day of May, 2002, 
    at or near Central Saanich, in the Province of British Columbia, being at 
    large on a recognizance entered into before a Justice or a Judge and being 
    bound to comply with a condition of that recognizance as directed by a Justice 
    or a Judge, did fail without lawful excuse to comply with the following condition 
    or direction: To surrender any firearm, cross-bow, prohibited weapon, restricted 
    weapon, prohibited device, ammunition, prohibited ammunition or explosive 
    substance, and any related authorizations, licences and registration certificates 
    you possess to the Central Saanich Police Department within 24 hours of your 
    release from custody, contrary to Section 145(3) of the Criminal Code.

Count 8

Norman Monty PORTER, between the 16
th
day of May, 2002 and 
    the 4
th
day of November, 2002, inclusive, at or near Central Saanich, 
    in the Province of British Columbia, did possess a prohibited weapon, a switchblade, 
    while not being the holder of a licence under which he may possess it, contrary 
    to Section 91(2) of the Criminal Code.

Count 9

Norman Monty PORTER, between the 16
th
day of May, 2002 and 
    the 4
th
day of November, 2002, inclusive, at or near Central Saanich, 
    in the Province of British Columbia, did possess a prohibited device, a cartridge 
    magazine that is capable of containing more than 10 cartridges of the type 
    for which the magazine was originally designed and that is designed or manufactured 
    for use in a semi-automatic handgun that is commonly available in Canada, 
    while not being the holder of a licence under which he may possess it, contrary 
    to Section 91(2) of the Criminal Code.

[2]

Mr. Porter appeals his convictions for these offences on a number of 
    grounds.

Factual Background

[3]

The offences arose in the aftermath of a bitter dispute between the 
    appellant, Mr. Porter, and his neighbour, which led to the appellants conviction 
    for a number of offences including fraud, forgery and uttering a forged document. 
     The appellant appealed those convictions to this Court and was released on 
    bail while awaiting appeal.  There were allegations that the appellant violated 
    the terms of this Courts release order.  As a result, the appellant was arrested 
    for breach of the order and released on bail by a Justice of the Peace on 
    16 May 2002.  The terms of the bail order were as follows:

CONDITION 1:            Keep the peace and be of good behavior.

CONDITION 2:            Not to contact or communicate directly or indirectly 
    and shall stay away absolutely from Donald Henderson and Linda Kyle.

CONDITION 3:            Not to attend at or be on the property of Donald 
    Henderson and Linda Kyle at 724 Mt. Newton Cross Road, Saanichton, BC or be 
    found on portion of the land referred to in the Indictment.

CONDITION 4:            Not to be in possession of any firearm, cross-bow, 
    prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited 
    ammunition or explosive substance, and any related authorizations, licences 
    and registration certificates, until you are dealt with according to law.

CONDITION 5:            To surrender any firearm, cross-bow, prohibited 
    weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition 
    or explosive substance, and any related authorizations, licences and registration 
    certificates you possess to the Central Saanich Police Department within 24 
    hours of your release from custody.

[4]

The last two conditions of the order are the bases for many of the 
    grounds of appeal raised in this court.

[5]

On May 18, 2002, Sgt. Morrison of the Saanich police detachment telephoned 
    the appellant to advise him that he was in breach of the fifth condition of 
    bail which required him to surrender all weapons in his possession to the 
    Central Saanich police detachment within 24 hours of his release.

[6]

On May 23, the appellant attended the police station and handed the 
    officer on duty a letter the appellant had written to Cst. Teague, the primary 
    investigating officer in the instant matter.

[7]

The letter stated that ten years earlier Mr. Porter had disposed of 
    the weapons referred to in condition 5.  The letter written by Mr. Porter 
    also said:

Additionally, there has now been a rather disturbing suggestion from a 
    concerned party that someone is going to attempt to plant illegal materials 
    on my property intended to initiate a search of my lands in order to have 
    my bail revoked and the surety seized.  I therefore invite you to contact 
    me to attend my property, in my presence, to conduct a thorough search for 
    any such materials.

[8]

Cst. Teague did not act on Mr. Porters invitation.

[9]

By November 2002 the appellants failure to comply with these conditions 
    of bail, together with the inability of the police to confirm, through various 
    inquiries, that the appellant had actually disposed of the weapons led Cst. 
    Teague to make an application and obtain a search warrant to search the appellants 
    residence.  The search took place on November 4, 2002.

[10]

Acting on information he received, Cst. Teague and another officer 
    had little difficulty accessing the attic crawl space in Mr. Porters home 
    and locating a storage compartment containing the weapons which were the subject 
    matter of the counts I have earlier set out.

[11]

The storage compartment consisted of a plywood panel fastened to the 
    top and sides by partially seated screws.  Gaps between the plywood panel 
    and the side walls to which it was attached allowed Cst. Teague to see that 
    there were items inside the compartment.  Gripping the bottom of a panel with 
    his hands, the officer managed to pull it off the compartment.  The guns, 
    ammunition and other paraphernalia were inside.  There were no trigger locks 
    or secure devices on any of the firearms to prevent them from being used.

[12]

A
voir dire
was held during the trial to determine whether the 
    search violated s. 8 of the
Charte
r
.  At the conclusion 
    of the
voir dire
, the trial judge ruled that s. 8 had been violated 
    by Cst. Teague when he obtained the warrant to search by telewarrant.  She 
    found that the
Code
provisions to obtain a telewarrant had not 
    been met.  The trial judge rejected the appellants arguments that other breaches 
    had occurred.  She found in the circumstances that the evidence should not 
    be excluded under s. 24(2) of the
Charter
.

[13]

The full text of the reasons for judgment on the
voir dire
read:

[1]
THE COURT:
Mr. Porter faces a nine-count Indictment, 
    and on this voir dire the defence challenges the validity of a search warrant 
    executed November 4
th
, 2002.

[2]        On a review of the warrant issued by the justice of the peace, 
    I find that the defence has shown on balance that, on the material provided, 
    the justice, while acting judicially, could not be satisfied that the statutory 
    requirements of s. 487.1 were met, namely that it was impracticable for the 
    applicant peace officer to appear personally before a justice on his application 
    for a search warrant.

[3]        I do not find that the balance of the defence arguments as 
    to the sufficiency of the information to obtain are compelling, and I reject 
    them.

[4]        As to the analysis which the court then must undertake under 
    s. 24(2) of the
Charter
, and applying the
Collins
factors to this case, and as in particular on a consideration of the nature 
    of the breach, I have concluded that the admission of the evidence obtained 
    would not bring the administration of justice into disrepute.

[5]        As is clear, counsel, these are skeletal reasons.  I wanted 
    to get them to you, get the result to you, so as to give you an opportunity 
    to consider how you want to proceed next week.  I expect to give you more 
    complete reasons when we next convene.

[14]

This ruling was made 28 April 2004.  The trial continued on 3 May 2004.  
    The trial judge apparently was not ready to provide the complete reasons on 
    May 3.  She asked Crown counsel what he proposed to do as a result of the 
    skeletal ruling.  The Crown, with the consent of defence counsel, tendered 
    the evidence called on the
voir dire
as evidence in the main trial.  
    Exhibits were marked, other housekeeping matters attended to, and the defence 
    opened its case.  The more complete reasons were never delivered.

[15]

On 10 March 2005 the appellant filed his notice of appeal.  On 6 December 
    2006 the respondent, by way of a notice for directions, brought an application 
    in Chambers in this Court seeking a direction that counsel be permitted to 
    write to the trial judge to ask her to provide her more complete reasons, 
    or to prepare and provide them.  The application was opposed by the appellant, 
    apparently on the ground that, at this late date, the production of further 
    reasons would necessitate an adjournment.

[16]

I am of the view that on the basis of this courts decision in
Scarr 
    v. Gower
(1956), 18 W.W.R. 184,
2 D.L.R. (2d) 402 at 405 (C.A.)
, there are only rare circumstances in which 
    this court would request a trial judge to produce reasons for the purpose 
    of an appeal after the notice has been filed.  It is unfortunate, however, 
    that no inquiry was made of the trial judge as to whether there were existing 
    reasons, that by oversight had not been filed or delivered during the course 
    of the trial.  We are left to do the best that we can with the skeletal reasons.

[17]

Relying on
R. v. Sheppard
(2002), 162 C.C.C. (3d) 298, 
    the appellants first ground of appeal is that the reasons provided by the 
    trial judge in her ruling on the
voir dire
are generic and are incapable 
    of proper judicial scrutiny as a result of their brevity.  He submits that 
    the existing reasons, without supplement are insufficient.  If this ground 
    is successful, the appellant says that he should have a new trial.

[18]

The appellant says that there are four points which required analysis 
    by the trial judge and, that without that analysis, this Court is unable to 
    properly scrutinize the ultimate decision of the trial judge to admit the 
    evidence.  He says that the reasons are deficient on the question whether 
    there were objective and subjective grounds to issue the warrant, whether 
    the police officer provided misleading information in the information to obtain, 
    and whether they were deficient in examining the balance of factors in s. 
    24(2).

[19]

The Crown does not dispute that the principles set out in
Sheppard
should apply to this ruling.  The Crown submits, however, that when viewed 
    in the context of the evidence adduced and the submissions of counsel, the 
    factual and legal bases of the trial judges ruling are discernable and susceptible 
    to appellate review.

[20]

The evidence surrounding the obtaining of the search warrant was provided 
    by Cst. Teague who was examined and cross-examined on the subjective and objective 
    grounds he had to believe weapons were stored in Mr. Porters home and his 
    reasons for obtaining the search warrant by telewarrant.

[21]

Cst. Teague testified that, through a registry search, he learned Mr. 
    Porter had registered certain weapons under former
Criminal Code
provisions.  The legislation in force required him to keep the weapons at 
    an address set out in a documents issued to him by the registry.  That address 
    was Mr. Porters present address.  Cst. Teague attempted to search, by various 
    ways, any documented movement of the weapons in question.  He could not find 
    anything to indicate that the weapons were any place other than as required 
    by the registration.  Mr. Porter failed to turn over any weapons in accordance 
    with his order.  Thus there were reasonable grounds to believe that the weapons 
    were kept where they were required to be kept.

[22]

Cst. Teague was asked whether he expected that the weapons were on 
    the premises when Mr. Porter sent him the letter consenting to a search of 
    his home in March.  Cst. Teague said that he did not expect them to be there 
    when he was first invited to search.   He volunteered that, my feeling was 
    until something further happened they may not be there still, thats a possibility.  
    This was not explored further in cross-examination.  It was not until November 
    that Cst. Teague sought a search warrant.  By that time he had accumulated 
    a number of unsubstantiated rumors, had done further registry searches that 
    turned up nothing on the weapons and decided to seek to obtain a search warrant.   
    On the information to obtain a tele-warrant, Cst. Teague wrote that there 
    was no on-call Justice of the Peace in Central Saanich.  This statement 
    was literally true, but on fuller amplification at trial, Cst. Teague 
    testified that he sought a telewarrant because of administrative policy in 
    place at the time that searches outside Victoria be done through the telewarrant 
    centre.

[23]

The appellant did not testify or call evidence on the
voir dire
.

[24]

I agree with counsel for the Crown that, on the basis of this evidence, 
    the trial judge was not called upon to address troublesome principles of settled 
    law or to resolve confused and contradictory evidence relevant to those key 
    issues.  In my view, the entire record, including the allegedly deficient 
    reasons, satisfactorily explain the trial judges decision to admit the evidence.

[25]

In my view, it was entirely reasonable for the trial judge to conclude 
    that the police officer had both subjectively and objectively reasonable grounds 
    to believe that the weapons in question were somewhere on Mr. Porters property.  
    Nothing in the evidence suggests bad faith in the officers actions in seeking 
    a telewarrant.  Thus, the only factor the trial judge had to consider in determining 
    whether to exclude the fruits of the search was a technical breach of s. 8 
    in that the requirements of the telewarrant provisions were not satisfied.   
    Otherwise, the evidence obtained was not conscriptive, reasonable and probable 
    grounds existed for the search, and there was no bad faith on the part of 
    the officer.  The breach was not serious; the offences were.  The trial fairness 
    and other factors in
R. v. Collins
(1987) 33 CCC (3d) 1 were 
    satisfied.  Thus the appellant has failed to demonstrate any basis on which 
    this court ought not to be appropriately deferential in its review of the 
    decision of the trial judge to admit the evidence.

[26]

I would dismiss the first ground of appeal.

[27]

The next ground of appeal relates to the substance of counts one and 
    two of the indictment.  Mr. Porter was charged with two counts of careless 
    use of a firearm under s.86(2) of the
Criminal Code
as it stood 
    in 2002.  At the time in question that section provided:

Every person commits an offence who contravenes a regulation under paragraph 
    117(h) of the Firearms Act respecting the storage, handling, transportation, 
    shipping, display, advertising and mail-order sales of firearms and restricted 
    weapons.

[28]

The regulations passed under s. 117(h) of the
Firearms Act
required the subject firearms to be kept securely locked.  The firearms, 
    as noted earlier, were kept in a compartment in the appellants attic the 
    parts of which were screwed together, but not locked as such, with a locking 
    device.  The trial judge dealt with the appellants submission that the regulations 
    required him only to keep the firearms in a secure manner, not necessarily 
    locked in the conventional sense.  In her reasons for judgment, paragraphs 
    24 to 28, the trial judge rejected this submission.  In submissions before 
    this Court, counsel for the Crown, Ms. Gagnon, submitted that a purposive 
    interpretative approach to the
Act
and regulations reveals a 
    legislative intent to ensure that firearms be kept out of the wrong hands.  
    Thus, she says, it can be seen that the regulations require access to the 
    registered firearms by lock and key or lock and combination because that method 
    of storage permits an element of exclusivity to the registrant.  Only the 
    registrant will have a key or combination for access.  What the regulations 
    do not permit is storage that can be violated by the use of a screw driver 
    or other non-exclusive instrument.  While this argument is interesting, there 
    is no need on this appeal to examine it further.  I am in substantial agreement 
    with the reasons for judgment of the trial judge who found that the regulations 
    were intended to set out, and did set out, a certain and clear method of storage 
    by way of conventional locking, and that other methods of storage were simply 
    non-compliant.

[29]

The next ground of appeal raised by the appellant is that the trial 
    judge erred in finding that risk was not an essential element in the
mens 
    rea
required for the s. 86(2) offences.  In my view the principles 
    set out by this court in
R. v. Smillie
(1998) 129 C.C.C. (3d) 
    414 are applicable to this case and were properly applied by the trial judge.  
    I would dismiss this ground of appeal.

[30]

Next, the appellant submitted that the trial judge erred in finding 
    that the appellant had not established the defence of due diligence.  This 
    ground cannot succeed.  There was no evidence proffered that the appellant 
    took reasonable care to store his firearms in a manner consistent with the 
    regulations.  I would dismiss this ground of appeal.

[31]

The next ground of appeal deals with Counts 6 and 7 of the indictment.  
    In his factum, the appellant seems to attack the lawfulness of the bail conditions 
    imposed by the Justice of the Peace.  I agree with counsel for the Crown that 
    the appellant is not entitled at this point to mount a collateral attack on 
    the order of the Justice.  In any event, s. 515(4)(f) of the
Code
permits a Justice to direct the accused to comply with such other reasonable 
    conditions specified in the order as the Justice considers desirable.  In 
    my view conditions 4 and 5 of the bail order were properly made under this 
    section.  I would dismiss this ground of appeal.

[32]

The appellants complaint with respect to Counts 6 and 7 is that he 
    was unaware that conditions 4 and 5 were a part of his bail conditions until 
    the police contacted him two days after his release to tell him that he had 
    not complied with condition 5.  The appellant testified that his lawyer had 
    left him at the police station on the understanding that he had with the Crown 
    that Mr. Porter would be released on the same terms and conditions as other 
    bail orders made in connection with the matters that brought him to court.  
    These orders had not contained provisions similar to conditions 4 and 5.

[33]

While the appellant testified as to his understanding of what would 
    happen with respect to his bail, he did not provide any evidence as to what 
    facts were alleged at the bail hearing or what submissions were made to the 
    Justice by whom as to what the order should contain.  In other words, there 
    is no evidence as to how these conditions came to be included in the order.

[34]

The trial judge accepted that counsel for Mr. Porter understood that 
    he had an agreement with counsel for the Crown as to what the bail order would 
    contain.  I would add only that no matter what agreement may be made between 
    the
Crown
and 
    the defence, it is still up to the Justice or the judge at the bail hearing 
    to determine what conditions a bail order should contain and it is open to 
    him or her to add any conditions he or she might think necessary as a condition 
    of release.  In the case at bar, the trial judge found that, not only was 
    the order made, but the appellant signed the recognizance that included the 
    two terms.  The trial judge rejected the evidence that the appellant did not 
    know that conditions 4 and 5 were a part of his bail order.  For this reason, 
    it is unnecessary to consider the appellants submission that he could not 
    be in breach of an order that he turn over weapons to the police within 24 
    hours of his release when he did not know the condition existed until that 
    time had passed.

[35]

There are other issues raised by the appellant that I do not propose 
    to deal with.  In my view they have no merit.   The final grounds of appeal 
    require, in part, a finding by this court that the trial judges rejection 
    of his evidence was unreasonable.  I see nothing in the reasons that persuade 
    me that the trial judge erred in her assessment of the credibility of the 
    appellant, or that she was wrong not to base a doubt upon his evidence.

[36]

In my view the appellant has not demonstrated that the trial judge 
    erred in law or in fact in her analysis of any of the issues before her.  
    I would dismiss the appeal.

[37]

ROWLES, J.A.:
I agree.

[38]

NEWBURY, J.A.:
I agree.

[39]

RYAN, J.A.:
The appeal is dismissed.

The Honourable Madam Justice Ryan

CORRECTION
 July 20, 2007

The date 
    under Place and Date in the head notes has been changed from January 17, 
    2006 to January 17, 2007.


