Indexed as:
R. v. Carlos

Regina, and
Allen Michael Carlos

[2000] Y.J. No. 113
2000 YTTC 519
Whitehorse Registry No. 99-00864A

Yukon Territorial Court
Whitehorse, Yukon Territory

Livingstone Terr. Ct. J.

November 2, 2000.
(42 paras.)


David McWhinnie, for the Crown.
Richard Fritze, for the defence.

       LIVINGSTONE TERR. CT. J.:— Allen Michael Carlos stands charged that:

Count 1: On or about the 15th day of February, 2000, at or near Whitehorse, Yukon Territory, did unlawfully commit an offence in that: he did without lawful excuse store a prohibited firearm and ammunition, to wit: a loaded Ruger Revolver, in a careless manner, contrary to Section 86(1) of the Criminal Code.

Count 2: On or about the 15th day of February, 2000, at or near Whitehorse, Yukon territory, did unlawfully commit an offence in that: he did without lawful excuse, store a firearm, to wit: a loaded restricted firearm, thereby contravening regulation 6(a) of the Storage, Display, Transportation and Handling of Firearms in Individuals Regulations, contrary to Section 86(2) of the Criminal Code.

Count 3: On or about the 15th day of February, 2000, at or near Whitehorse, Yukon Territory, did unlawfully commit an offence in that: he did without lawful excuse, store a firearm, to wit: a loaded prohibited firearm, thereby contravening regulation 7(a) of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, contrary to Section 86(2) of the Criminal Code.

Count number one relates to a Ruger .357 Magnum (Exhibit 11 at trial).

Count number two relates to a Ruger. 44 Super Black Hawk (Exhibit 5).

Count number three relates to a Freedom Arm short barrel .22 calibre revolver (Exhibit 8).

       There was much evidence elicited in the trial about an investigation of Mr. Carlos following comments he had made to government officials many months before February 2000.

       In fact, a Hearing pursuant to s. 111 of the Criminal Code remains to be scheduled for Mr. Carlos in that regard.

       There was also evidence elicited from Constable Gork of the RCMP and Mr. Carlos about a previous attendance by Mr. Carlos at the RCMP detachment to discuss those matters. It is clear from Mr. Carlos' description of that meeting that he feels he is being persecuted by the RCMP.

       That background is relevant, in my view, to an objective assessment of the probative evidence in this case.

       On February 14th, the day before this incident, the RCMP had obtained a warrant from His Honour Judge Lilies to search the residence of Mr. Carlos and seize his firearms, in anticipation of the Section 111 Hearing I referred to earlier.

       On the morning of February 15th Mr. Carlos received a call from Constable Gork, inviting him to the detachment that day.  Mr. Carlos was not told about the warrant.  Mr. Carlos declined the invitation to visit the detachment, having been there only ten days before.  The neutral location of Tim Horton's was suggested and an 11:00 AM meeting was agreed to by all.

       At 10:19 AM, four RCMP officers, including Constable Gork, attended at the Carlos residence to execute the search warrant.

       The evidence of what occurred inside the Carlos residence is not in dispute.  Both Crown witnesses, Officers Campbell and Gork, describe the events as Mr. and Mrs. Carlos did - that Mr. and Mrs. Carlos were emotional and agitated, but ultimately, co-operative.

 0      Mr. Carlos leads the officers to a locked safe in his basement, wherein a number of guns were found.

 1      Two of them, the Ruger .44 Super Black Hawk and the .22 calibre revolver were loaded.  There were no trigger locks on either of them.

 2      When asked by the officers about other guns registered to him but not found within the safe, Mr. Carlos eventually leads them back upstairs to his living room and directs them to his stereo cabinet.  Secreted behind the cabinet is the .357 Magnum, wrapped in a rag and held within a plastic bag.  It, too, is loaded with no trigger lock.

 3      The guns and ammunition in the residence are seized in accordance with the warrant and thereafter these charges are laid.

 4      In order to prove counts two and three beyond a reasonable doubt the Crown must satisfy the Court that guns found in the safe 1) were firearms; 2) were classified as restricted or prohibited firearms; 3) were loaded and 4) were stored.

 5      With respect to count one, the gun behind the stereo cabinet, the Crown must prove all of the elements relevant to counts two and three but also that the manner of its storage was careless.

 6      "Firearm" is defined in section 2 of the Criminal Code as follows:

"firearm" means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.

Based on the evidence of both Constable Gork and Mr. Carlos, each of whom has many years experience with guns, I am satisfied that the three guns in issue are firearms.

 7      Based on the measurements of the barrel length of each of the three firearms, together with the definitions set out in section 84 of the Criminal Code I am satisfied that the .357 Magnum is a "prohibited" firearm, that the .44 Super Black Hawk is a "restricted" firearm, and that the .22 calibre revolver is a "prohibited" firearm.

 8      The Crown alleges all three firearms were being stored at the time the RCMP officers arrived to execute their warrant; and that the .357 Magnum behind the stereo cabinet was being stored in a careless manner.

 9      The terms "store" or "storage" are not defined in the Criminal Code or the Firearms Act.

 0      The Court must therefore construe the terms in their ordinary common sense meaning unless that would result in manifest absurdity.  From my review of the case law referred to me by counsel, and in particular the cases of R. v. Bickford, 2000 ABPC 60, [2000] A.J. No. 525, and R. v. Joe, [1996] A.J. No. 1120 both from the Alberta Provincial Court, and R. v. Bludau, Ontario Court of Justice October 25, 1994, [1994] O.J. No. 2537, I accept the plain meaning of "store" to be "to reserve, put away, or set aside for future use."

 1      That definition of "store" contains no temporal parameters.  The cases provided were instructive in that, in each, the facts as to where, for how long and why the firearms were placed as they were differed significantly.

 2      As counsel for the Crown sets out in his written submissions, relevant circumstances could include physical proximity to the firearms in question, the manner or place in which the items were handled or left, the degree of control exercised by the author of the events in question, or, in some circumstances, the apparent intention of the author of the circumstances.

 3      Mr. Carlos' contention is that he always stored his firearms unloaded, and separate from the ammunition in his safe in his basement.

 4      Mr. Carlos testified that when the RCMP attended on February 15th he was interrupted by them, on a morning when he was already under significant stress because of the meeting he was supposed to attend with them at 11:00 AM.

 5      Mr. Carlos' evidence was that before the RCMP had called on the phone he had gone to his basement and taken several of his guns out of the safe.  He described how he had cleaned his rifle, and loaded the three firearms in question in the course of inspecting them and checking for corrosion.

 6      With what I accept to be sincere affection, Mr. Carlos described the kinship he feels with his guns and the fond memories he has related to them.

 7      He testified he had no plans to fire the guns he loaded and that he would have unloaded them and replaced them into the safe had his home not been "invaded", as he described it.

 8      His evidence was that the .357 Magnum was carried upstairs to his office after being loaded and wrapped, in order to use the serial number to check against some documentation about the gun.

 9      Mr. Carlos stated he was up and down stairs a number of times both before and after the call from the RCMP, but that he never left the house that morning.

 0      After the call, he says, he became very upset and stressed such that Mrs. Carlos decided to accompany him to the meeting.

 1      She was getting herself dressed and ready when she saw the vehicle, and the men approaching the house.

 2      She called to her husband to tell him she was sure the police were arriving.

 3      When Mr. Carlos heard this, he says, he reacted, not thinking clearly.  He put the loaded firearms, which were sitting downstairs, back into the safe and shut the door.  The loaded firearm upstairs he took from his office, and hid it behind the stereo cabinet.

 4      Mrs. Carlos testified that she knows there was never a firearm behind the stereo cabinet before that morning because she dusts!  She and their children were familiar with firearms and were comfortable with them being in the residence, but as far as she knew the guns were always stored in the safe to which no one but Mr. Carlos had access.

 5      Mr. Carlos was cross-examined vigorously and admitted that he had been less than forthright with the officers when they first arrived - and he described also how terrible and traumatic the whole incident has been for him.

 6      It was clear to me observing Mr. Carlos in the witness box that he sincerely believes he has been treated unjustly by the RCMP.  I accept also that he was testifying truthfully that he was experiencing significant stress on the morning of February 15th both because of the meeting with the RCMP he expected would occur, and also because of their attendance he did not anticipate.

 7      Despite the bizarre aspects to Mr. Carlos' version of the events, which Crown counsel accurately and appropriately highlighted in his able submissions, I accept the evidence of the accused.

 8      I accept that he loaded his firearms as he was cleaning and inspecting them that morning and that he panicked when the RCMP arrived.  I accept that the location of the firearm in the living room was a very ill-planned hiding spot. I accept that Mr. Carlos had no intention to store the two firearms in the safe, loaded, as they were found but had planned to unload all of the guns and replace them into the safe had not the RCMP arrived unexpectedly.

 9      All three firearms were found within the Carlos residence, in close proximity to the areas of the house where Mr. Carlos was using them.  Mr. Carlos never left the house that morning.  The police called around 8:40 AM and arrived around 10:19 AM.  The guns therefore had been loaded and left in that condition for no more than several hours.

 0      All of those circumstances, which I accept to be the factual background in this case, do not in my view amount to storage of the firearms in question.

 1      The Crown therefore has not proven beyond a reasonable one of the essential elements, namely that any of the loaded firearms was stored at the relevant time.

 2      All three counts therefore will be dismissed.


QL Update: 20001108