Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Omik, 2019 NUCJ 01

Date: 20190129
Docket: 11-18-70
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Brian Omik

________________________________________________________________________

Before: The Honourable Madam Justice Susan Cooper

Counsel (Crown): Sarah Bailey

Counsel (Accused): Ilan Neuman

Location Heard: Iqaluit & Pond Inlet, Nunavut

Date Heard: November 20, 2018; January 29, 2019
Matters: Conviction pursuant to Criminal Code, RSC 1985, c C-46,
ss 86, 87, and 270.01(1). Application of Rule from R v
Kienapple.

REASONS FOR JUDGMENT

(Delivered Orally)

(NOTE: This document may have been edited for publication)

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I. INTRODUCTION

[1] Mr. Brian Omik is charged with two counts of pointing a firearm
contrary to Criminal Code, RSC 1985, c C-46 [Criminal Code], s. 87,
two counts of threatening to use a firearm in the commission of an
assault against a police officer contrary to s. 270.01(1), one count of
careless storage of a firearm contrary to s. 86(1), and one count of
assault contrary to s. 266 that was stayed before trial.

II. EVIDENCE

[2] At trial the court heard from four witnesses.

[3] On July 27, 2018, Royal Canadian Mounted Police [RCMP] in Pond
Inlet received information from the spouse of the accused that she
had been assaulted by him. Two RCMP officers went to the residence
to arrest the accused. They went up the exterior stairs to the
residence and knocked on the door. There was no response. The
officers tried the door but it was locked. When the accused opened
the door, he had a rifle. Up to this point the police had not identified
themselves.

[4] One of the responding police officers testified that the accused initially
held the rifle at a slightly downward angle, then he raised it to
approximately waist level and pointed it at the officers. The officers
immediately moved to the sides of the door, one to the left and one to
the right, and yelled at the accused to put the rifle down. The officer
testified that the accused was trying to work the action on the rifle. He
was unable to say if the accused was loading or unloading the
chamber. The officers kept yelling at the accused to put the rifle
down.

[5] The incident ended when the accused slowly lowered the barrel of the
rifle and put it down. The whole incident took about 30 to 60 seconds.
The accused did not say anything at any point.

[6] The accused was intoxicated. The officer testified that the accused
had slurred speech and a strong odour of alcohol.

[7] The sister of the accused testified. She was drinking with the
accused that night. She testified that in her opinion the accused was
“super drunk”.
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[8] The spouse of the accused testified. She testified that she was home
with the accused that night and that at some point he left the house.
When he came back to the house she opened the door to let him in
and could tell from his facial expressions that he was blacked out.
She let him in the house and she went to bed. The accused came to
bed, but did not go to sleep. He was agitated and swearing. She told
him that if he kept swearing she would call the cops, which she did.
She testified that he tried to hit her once and did actually hit her on the
head once. She left the house and saw the police arrive. She
advised the police that the accused had assaulted her.

[9] The accused testified that he was highly intoxicated. He testified as to

the amount he had had to drink that evening, which was substantial.
He recalls walking outside with his sister, at which point he blacked
out. The next thing he recalls is waking up in RCMP cells. He has no
recollection of the incident with the police and the rifle at the door to
his residence.

[10] The accused testified that he is a hunter and he normally keeps his
firearms in the corner of his porch. He has a lock for them, but he
says that on that day he forgot to lock them. He testified that he does
not store them loaded, but that he does keep his ammunition in the
porch.

III. POSITIONS OF THE PARTIES

[11] The Crown submits that the evidence establishes that the accused
pointed the rifle at the police officers and that in raising the rifle to
waist level, it is clear that he intended to do so. They submit that
intoxication is not a defence to this charge. Further, the Crown
submits that the brief duration of the incident is irrelevant to whether
or not the charge is made out.

[12] With respect the offence of threatening to use a firearm in the

commission of an assault against the police, the Crown submits that
the pointing of the rifle is an assault. The Crown concedes that to be
convicted of the offence the Crown must establish beyond a
reasonable doubt that the accused knew the complainants were
police officers.

[13] The Defence concedes that the accused should be convicted of

careless storage of a firearm.
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[14] The Defence submits that the offence of pointing a firearm is a

specific intent offence and that the level of intoxication of the accused
at the very least raises a reasonable doubt as to whether the accused
had the specific intent necessary to commit the offence.

[15] With respect to the offence of threatening to use a firearm in the

commission of an assault against the police, the Defence submits that
the level of intoxication again, at the very least, raises a reasonable
doubt as to whether the accused knew the complainants were police
officers.

IV. FINDING OF FACTS

[16] Prior to embarking on a legal analysis, it is necessary for me to make

findings of fact in relation to the evidence.

[17] Much of the evidence is not in dispute.

[18] I accept the evidence of the police officer regarding the incident that
unfolded at the residence. I accept that the accused answered the
door holding a rifle with the barrel pointed somewhat downwards, but
towards the officers. I accept that he then raised the rifle to waist
level, again, with the barrel towards the officers.

[19] I also accept that the accused was highly intoxicated and has little to
no recollection of the event.

V. ANALYSIS

[20] An act is criminal only if there is a “guilty act” (actus reus) and a “guilty
mind” (mens rea), both of which must occur or be present at the same
time.

[21] It is not a criminal offence to think about assaulting someone if one

does not act on the thought. In such an instance there would be a
guilty mind, but no guilty act. Conversely, it is not a criminal offence if
a person trips and falls in to another person. In such an instance
there is the application of force to another person but there is no
intention to apply the force as the person tripped and it was a true
accident.
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[22] Criminal offences are categorized into “general intent” and “specific
intent” offences. The distinction is an important one, as the onus on
the Crown as to what it must prove is greater for a specific intent
offence than it is for a general intent offence.

[23] The distinction is also important because intoxication may be a

defence to a specific intent offence. It is not a defence to a general
intent offence.

[24] General intent offences require minimal thought and reasoning and no
intent beyond the intent to do the act which constitutes the actus reus
of the offence.

[25] Specific intent offences require a more complex reasoning and

thought process. They require the formation of an ulterior motive or
purpose or actual knowledge of a particular set of circumstances or
consequences.

[26] In R v Tatton, 2015 SCC 33, [2015] 2 SCR 574 [Tatton], the Supreme
Court of Canada established the analysis to be undertaken when
determining if an offence is one of general intent or one of specific
intent.

[27] The first step in the analysis it to determine what the mental element
of the offence is.

[28] The second step is to determine whether that mental element is one
of general intent or specific intent. This is determined by first looking
at the jurisprudence. If the offence has been satisfactorily categorized
as general or specific intent by existing jurisprudence, there is no
need to go further in the analysis.

[29] If the jurisprudence is unclear, the court should proceed to consider

the importance of the mental element; that being, the complexity of
the thought and reasoning process that make up the mental element
of the offence.

[30] The mental element of a specific intent offence may require actual
knowledge of a particular set of circumstances. An example of such
an offence is possession of stolen property, where an accused must
not only intend to possess the property, he must do so with
knowledge that the property is stolen.
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[31] The mental element of a specific intent offence may require an

intention to bring about a certain consequence. An example of such
an offence is murder, where an accused must intend not only the
physical act which harms the victim, he must intend to cause death or
know that death is likely.

[32] The mental element of a specific intent offence may require that the
act be done to achieve an ulterior motive. An example of this is
assault with intent to resist arrest. The accused must not only assault
the victim, he must do so with the intent that in doing so, an arrest
might be evaded.

[33] If an analysis of the mental element of the offence supports the

proposition that the offence requires a heightened mental state than
that of simply doing the physical act, then the court might conclude
that the offence is one of specific intent.

[34] If analysis of the mental element does not result in a conclusive

categorization of the offence, then the court must proceed to policy
considerations. Such policy considerations are whether intoxicants
habitually play a role in the commission of the offence, whether there
is a lesser and included general intent offence, and whether there is
wide discretion at the sentencing stage as opposed to a significant
mandatory minimum penalty.

VI. POINTING A FIREARM

[35] In applying the Tatton analysis to the offence of pointing a firearm, I

conclude that the offence is one of general intent.

[36] I do not need to go far in to the analysis to reach such a conclusion,

as the matter has been conclusively decided in existing jurisprudence.

[37] In R v Kelly, 50 Nfld & PEIR 106, 1984 CanLII 3618 [Kelly], the court
dealt precisely with this issue in the context of an appeal from
acquittal on a charge of pointing a firearm. The acquittal was based
on the trial court having classified the offence as one of specific intent
and having found that the voluntary consumption of alcohol by the
accused precluded him from forming the necessary intent. The
appeal court overturned the acquittal and entered a conviction,
holding that the offence of pointing a firearm is a general intent
offence.
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[38] In R v Goard, 2014 ONSC 2215, 310 CCC (3d) 491 (CanLII) [Goard],
the court had before it an accused with multiple charges, including
pointing a firearm. The court was required to consider whether
intoxication was a defence to any of the offences. The court stated:

[107] To conclude this part of the intoxication analysis, Mr. Goard

cannot rely upon the defence of extreme intoxication to negate the
basic intent for assault, being a constituent element of robbery. Nor
can it negate the basic or general intent for pointing a firearm,
contrary to s. 87(1) of the Criminal Code.

[39] This conclusion by the court in Goard does not appear to have been a
matter of contention, and I expect this is because the parties
considered the law in this regard to have been well settled.

[40] I appreciate that both Kelly and Goard predate the SCC decision in
Tatton, however, I see nothing in Tatton that would lead me to
reconsider their findings regarding the categorization of the offence.

[41] Nonetheless, for the sake of completeness, I will proceed to analyse

the offence through the lens of the Tatton analysis.

A. Tatton Analysis

[42] The mental element of the offence of pointing a firearm is the intent to
bring the barrel of a firearm in line with a person. This does not
require complex reasoning. This need not be done for any ulterior
purpose, it need not be done for the purpose of bringing about certain
results, and it does not require any particular circumstances which the
accused must be aware of.

[43] Further, an analysis of social policy considerations also leads to the

conclusion that the offence of pointing a firearm is one of general
intent. These types of offences are frequently alcohol related. As
stated in Tatton, this mitigates against a finding that the offence is one
of specific intent, as it would be counter-intuitive to permit accused
persons to rely on self-induced intoxication as a defence to offences
that are often committed while intoxicated.

[44] The thrust of the Defence argument is that the barrel of a firearm must
be pointing in some direction. If that direction happens to be towards
a person, without the accused having deliberately directed the barrel,
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there cannot be a conviction. I agree with this proposition, however, I

find that it is not applicable to the facts in this case.

[45] In this case, the accused opened the door in response to a knocking
sound. He had to have known that there were people on the other
side of the door. Nonetheless, when he opened the door he had the
barrel of the rifle directed towards where those people would be.

[46] While the incident did not last long, the accused did not immediately
change the direction of the barrel. Instead, he brought it up to his
waist, still pointed in the direction of the officers. He worked the bolt,
while the barrel was still in the direction of the officers.

[47] I find the accused guilty of pointing a firearm.

VII. THREATENING TO USE A FIREARM IN THE COMMISSION OF AN

ASSAULT AGAINST A PEACE OFFICER

[48] I will now consider the offences of threatening to use a firearm in

assaulting a peace officer.

[49] The offence as charged requires that the accused know that the
victim is a police officer. This particular circumstance which the
accused must have knowledge of places this offence in the category
of specific intent.

[50] The evidence of intoxication, including the evidence led by those who
know the accused and know what is like both sober and intoxicated,
and the evidence regarding the amount of alcohol consumed,
establish that the accused was highly intoxicated. I am satisfied that
the level of intoxication of the accused raises a reasonable doubt as
to whether he was aware that the people at his door were police
officers. Accordingly, he cannot be found guilty of the offence as
charged.

[51] Assault is a lesser and included offence of the offence as charged.

Assault is a general intent offence.

[52] A person commits an assault when he threatens, by an act or gesture,

to apply force to another person, if he has or causes that other person
to believe upon reasonable grounds that he has, present ability to
effect his purpose.
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[53] Pointing a firearm at a person is an act or gesture that threatens the

application of force. On this basis, the accused is also guilty of
assault.

VII. APPLICATION OF THE RULE FROM R V KIENAPPLE

[54] I must consider whether a judicial stay should be entered on some of

the charges so that we do not run afoul of the rule against multiple
convictions, as set out in R v Kienapple, [1975] 1 SCR 729, 1974
CanLII 14 (SCC).

[55] Clearly, there is a factual nexus between the charges of pointing a

firearm and the assaults. The same actions form the actus reus of
each of the offences.

[56] There is also a legal nexus between the offences; the convictions
clearly engage the same matter or delict.

[57] I find that the accused cannot be convicted for both pointing a firearm
and threatening to use a weapon in an assault. The issue then
becomes, which charges should be stayed?

[58] There is case law which supports the proposition that convictions
should be entered on the “most serious” charges. There can be
difficulties with this approach.

[59] The most obvious manner of determining which charges are the most
serious is to look at the available penalties. However, pointing a
firearm, proceeded with summarily, carries a maximum penalty of six
months. Threatening to use a weapon in the course of an assault,
proceeded with summarily, carries a maximum penalty of 18 months.
Application of this approach would result in pointing a firearm charges
being stayed.

[60] In my view, this approach may be the appropriate when the facts of
the case equally support convictions for either offence. I do not view
this matter as such a case. In my view, it is important to enter
convictions that most accurately and fairly represent the offending
conduct.
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[61] It is important to work from the basic principle, which underlies the
rule against multiple convictions, namely that the court will exercise its
power to enter a stay in those instances where the Crown is
overreaching and seeking multiple convictions on the same matter.

[62] As stated in R v Robinson, 2018 ONCJ 322 (CanLII) at para 19:

When the “most serious” issue cannot be determined by a comparative

analysis of the multiple convictions’ legal elements, a court must then
turn to the “factual” elements with a view to determining which of
those multiple convictions fully and fairly reflects the offender’s
moral blameworthiness for the single criminal act. Proportionality is
the fundamental principle of sentencing. As the Supreme Court of
Canada emphasized in R. v. Nasogaluak:

… the degree of censure required to express society's

condemnation of the offence is always limited by the
principle that an offender's sentence must be equivalent to his
or her moral culpability, and not greater than it. The two
perspectives on proportionality thus converge in a sentence
that both speaks out against the offence and punishes the
offender no more than is necessary.

Proportionate sentencing was the animating purpose behind the

emergence of the Rule in Kienapple. Proper application of the
proportionality principle begins with fair labelling of the offender’s
criminal conduct. [Emphasis in Original].

[63] Based on this approach, the accused should only be convicted of two
counts of pointing a firearm.

[64] There will be a conviction on the charge of careless storage of a

firearm.

[65] There will be judicial stays on the two counts of threatening to use a
weapon in the course of an assault against a Peace Officer.

Dated at the City of Iqaluit this 29th day of January, 2019

___________________
Justice S. Cooper
Nunavut Court of Justice