Dennis Johnson's unprovoked search and charges against James Buck in Cranbrook, BC lead to the following court decision...

Decision In Trial Of Regina v. James Edmund Buck

THE COURT:  I spent some time this morning preparing reasons which I have managed to add comments to as the submissions continued this morning. 

          The defence attacks in voir dire the issuance of a search warrant which ended in the seizure of guns and ammunition, including the two firearms which are the subject of these charges.  The focus of that attack is the affidavit in support marked as Exhibit 6.  It is said to be inaccurate, incomplete, and misleading.  I believe it to be all three.  Perhaps the clearest way of demonstrating the quality of the affidavit is to indicate what it should have said. 

          Paragraph 3 should have said that Constable Johnson believed that the chief firearms officer or he might make a determination that Mr. Buck was not eligible to hold a firearms licence which he did not then require to possess firearms in any event.  No such determination was made pursuant to the Act which would have required notice to the accused when that order or determination was made. 

          Paragraph 5 should have referred to the fact that the incident at Bull River as reported to police was not admitted in the guilty plea and that a firearms prohibition was addressed in that hearing and not ordered, in part as a result of the Crown's position that it was neither necessary nor desirable.  If police officers view proceedings in court whether by trial or plea as a diminution of what they believe really happened, that's fine.  But to suggest the accused was convicted on the basis of the facts reported to police without bothering to check the court record or ask the prosecutor is sloppy at best and deceitful at worst.  It should also be obvious that prohibition was likely canvassed and an honest and full statement to the Justice of the Peace should have addressed why police felt that decision to be in error.  Police are not a Court of Appeal they are only enforcement officers.  This incident was in October of 1996.

          Paragraph 6 should have said that a person of unknown reliability passed on to police a vague threat allegedly made by the accused.  That threat was reported using slightly different language in the two places.  It's referred to in Exhibit 2 and in the third variation in the affidavit.  This incident was in August of '96.  A domestic dispute as set out in February of '98; again, the occurrence report found in Exhibit 2 does not contain any detail of what the accused was supposed to have done.  There was no statement by or corroboration of a drunk complainant whose reliability could only be guessed at.  The accused was not spoken to in either of these incidents.

          Lastly, the paragraph refers to a sexual touching which the accused was suspected of.  There was no factual basis for any such accusation and police files would have made that clear to anyone regarding them with eyes open.

          Further, the Thacker incident appears twice in the paragraph.  The file number is the only way in which a reader would know that it is one incident and not two which are described.  This may be inadvertence but is clearly misleading.

          The question then becomes would a Justice of the Peace accurately informed of the above authorize this search?  The answer has to be a resounding no.  Nothing in the police files following Mr. Buck's guilty plea is capable of founding a belief that he represented any threat to public safety.  The police only knew that his drunken spouse made a complaint, which she did not wish to pursue, and the details of which they were completely ignorant.  No Justice of the Peace acting judicially could have concluded a search was necessary if given complete and accurate information.

          This is not a case where absent the breach by police in wrongly obtaining a warrant to search the evidence was otherwise discoverable.  It was not.  Further, given the complete and utter disregard for the niceties of the law and the rights of the accused demonstrated by holding firearms, all the ones not part of these charges, to which the police had no right under the law and the grudging and incomplete disclosure which this case has seen, I am not prepared to draw any conclusion of good faith.  It appears in fact that the opposite is true.  The affidavit is so far from what it should have been; the actions in holding onto the guns seized on the view that the accused had no remedy in any case; and as I have said the non-responsiveness to disclosure requests are strong indicators of an overall view here that the police make the rules and are not to be second-guessed.

          I made some remarks about disclosure during the hearing and earlier in response to defence requests.  It seems common for initial defence requests to be for a "full disclosure."  It seems equally common that such requests are met with a copy of the report to Crown Counsel, copies of witnesses and the accused's statements if any, the accused's criminal record, and other documentation, such as certificates which may form a part of the Crown case.  This is probably appropriate and adequate in most instances.  Where requested officer's notes would be added. 

          There are often cases where the defence requests more.  Those requests, which frequently involve effort on the part of Crown and police, seem often to be dealt with grudgingly.  Here it seems to have been the Crown view that defence counsel was on some sort of quixotic crusade against the Firearms Act and that his requests were without substance, even to the extent that Crown did not want to tell him what regulation his client was charged under.  It was clear early on that he challenged the warrant and search yet the support or lack thereof, as it turns out, which police had for the careless statements in the affidavit had to be pried from Crown and police.  This continued into the trial where the property report attached to the affidavit was revealed to Crown and defence for the first time and where the report to justice following search was instantly produced from the police file upon questioning whether it had been done but was not produced before that.

          Defence has every right to know that proper steps were or were not taken and complying with disclosure requests is not a one way street.  The Crown gains when its case demonstrates attention to the detail of the law and courts save time when disclosure avoids unnecessary or groundless arguments by defence.

          Lastly, Mr. Dearden sets out what he believes is a logical progression when the state wishes to deal with a persons firearms.  He places seizure without warrant in emergencies under Section 117.04 at one end of the continuum followed by warranted seizures, such as here, followed by a prohibition application without seizure pursuant to Section 111, and at the opposite end of the spectrum a decision made administratively or perhaps in a quasi judicial capacity by a firearms officers and subject to court review.  I believe that is an accurate view of the scope and purpose of the sections.  Applying that, Mr. Dearden asserts this is a case which should have been dealt with at the bottom end rather than the top, that is by the less intrusive method of seeking or making a decision about the accused's right to possess firearms rather than a search of his dwelling.  In support he argues the staleness of any real concerns for public safety.  I agree with this position as well.  This was not a reasonable step in these circumstances.

          The fruits of this search will not be available to the Crown.  All of the evidence from the search is excluded.  The accused is not guilty because there is no admissible evidence of anything which could lead to a charge.

          Defence has asked that I comment on the findings that would flow in favour of the accused if the evidence had been accepted.  It is, I think clear that there is no evidence that the accused owned or had control of the rifle, that it was stored, or if it was stored that that was contrary to exceptions.  It's also not apparent that he is the person who stored the handgun and the Crown relies on a regulation with respect to the handgun which does not apply to handguns.  It is not clear that he is the person who placed the rifle by the door.  It is hard to imagine what view of the provable facts could lead to approval of these charges much less the trial.

          If I have not been clear already I don't believe a basis exists for barring the accused from possessing firearms nor do the police have any lawful right to possession of any of the firearms seized.  I believe my jurisdiction, however, only permits me to make an order with respect to the two that were the subjects of this charge.  Those two should be returned to the accused forthwith if the Crown does not intend to appeal and in any event after the expiration of the appeal period if none is filed.  If there is an appeal it will, of course, be for the appellate court to deal with disposition and the court would then have to look as well at whether those two firearms have been lawfully held at all.  The court does, however, appreciate the frank and decent submissions of Mr. McCormick this morning.

          Anything else?

MR. DEARDEN:  No, Your Honour.

MR. McCORMICK:  No, Your Honour. 

     (PROCEEDINGS CONCLUDED)

1 March 2000/tsc