R. v. Eastgaard (H.J.),

• Judge: Bielby,Phillips,Ritter
• Neutral Citation: 2011 ABCA 152
• Citation: 2011 ABCA 152,(2011), 510 A.R. 117,510 AR 117,(2011), 510 AR 117,510 A.R. 117
• Date: 06 April 2011
• Court: Court of Appeal (Alberta)

R. v. Eastgaard (H.J.) (2011), 510 A.R. 117; 527 W.A.C. 117 (CA)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MY.149

Her Majesty the Queen (respondent) v. Hans Jason Eastgaard (appellant)

(0901-0182-A; 2011 ABCA 152)

Indexed As: R. v. Eastgaard (H.J.)

Alberta Court of Appeal

Ritter and Bielby, JJ.A., and Phillips, J.(ad hoc)

May 30, 2011.

Summary:

The accused appealed from his conviction for possession of a loaded hand gun under s. 95 of the Criminal Code. The issue on appeal was whether the Crown proved that the accused knew that the firearm which he abandoned was loaded.

The Alberta Court of Appeal, Bielby, J.A., dissenting, dismissed the appeal.

Criminal Law - Topic 39

General principles - Mens rea or intention - Lack of knowledge or belief - [See Criminal Law - Topic 1142 ].

Criminal Law - Topic 1142

Offences against public order - Prohibited weapons - Intent or mens rea - The accused occupied the front passenger seat of a Suburban, which was under surveillance by the police - The trial judge made the following findings of fact: the Suburban was under constant surveillance from the time it left a gas station until it was stopped by a Tac Team; Cst. Taylor, who was conducting aerial surveillance from a helicopter, observed the accused get out of the Suburban and approach some bushes and rocks, where he crouched down for two to three seconds, and then got back into the Suburban and left; police found a loaded prohibited firearm (a handgun) at the exact spot where the accused had crouched down - The accused was convicted of possession of a loaded handgun under s. 95 of the Criminal Code - The trial judge noted that the only reasonable inferences which could be made were: 1. The accused placed the firearm under the rock; 2. The accused had physical or actual possession of the gun and clearly had a substantial measure of control over it; and 3. The accused clearly must have known what the gun was - The accused appealed, arguing that: (a) the trial judge failed to properly consider that knowledge that the firearm was loaded was an essential element of the offence; (b) the trial judge failed to provide an explanation for the conviction capable of permitting appellate review; and (c) the circumstantial evidence was insufficient for a properly instructed jury acting reasonably to find that the accused knew that the gun was loaded and the conviction was unreasonable - The Alberta Court of Appeal dismissed the appeal - Although the trial judge did not specifically say he was satisfied beyond a reasonable doubt that the accused knew the firearm was loaded, the court was satisfied that he implicitly found that was the case when he stated that the accused "clearly must have known what the gun was" - The trial judge's reasons on this issue satisfied the functional test for adequacy - The uncontradicted evidence and admitted facts, absent any explanation, were sufficient not only to support the inference that the accused knew that the firearm was loaded, but also that it was the only reasonable inference to draw from the circumstances.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Criminal Law - Topic 1142 ].

Evidence - Topic 214

Inferences and weight of evidence - Inferences - Inference of knowledge - [See Criminal Law - Topic 1142 ].

Cases Noticed:

R. v. Young (B.R.), [2006] A.R. Uned. 122; 2006 ABPC 36, refd to. [para. 5].

R. v. Budden (L.M.) (2005), 386 A.R. 313; 2005 ABQB 757, refd to. [para. 8].

R. v. Moffatt, 2005 ONCJ 126, refd to. [para. 8].

R. v. Beaver, [1957] S.C.R. 531, refd to. [para. 9].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 9].

R. v. Raglon (K.H.) (2002), 295 A.R. 71; 2001 ABPC 117, consd. [paras. 15, 31].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 19].

R. v. Calder (S.M.) (2006), 401 A.R. 167; 391 W.A.C. 167; 2006 ABCA 307, refd to. [para. 29].

R. v. Baker (R.B.), [2007] A.R. Uned. 21; 2007 ABCA 90, refd to. [para. 29].

R. v. Kerr (J.R.) (2004), 322 N.R. 91; 354 A.R. 114; 329 W.A.C. 114; 2004 SCC 44, refd to. [para. 30].

R. v. J.R.G. (2006), 285 Sask.R. 113; 378 W.A.C. 113; 2006 SKCA 46, refd to. [para. 31].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 95 [para. 1].

Authors and Works Noticed:

Colvin, Eric, and Anand, Sanjeev, Principles of Criminal Law (3rd Ed. 2007), p. 54 [para. 29].

Counsel:

G. Tomljanovic, Q.C., for the respondent;

J.L. Ruttan, for the appellant.

This appeal was heard on April 6, 2011, before Ritter and Bielby, JJ.A., and Phillips, J.(ad hoc), of the Alberta Court of Appeal. The memorandum of judgment of the Court of Appeal was filed on May 30, 2011, including the following opinions:

Ritter, J.A., and Phillips, J.(ad hoc) - see paragraphs 1 to 24;

Bielby, J.A., dissenting - see paragraphs 25 to 34.