R. v. Harvey (J.), (2007) 255 N.S.R.(2d) 104 (PC)

• Judge: Campbell, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: March 19, 2007
• Jurisdiction: Nova Scotia
• Citations: (2007), 255 N.S.R.(2d) 104 (PC);2007 NSPC 16

R. v. Harvey (J.) (2007), 255 N.S.R.(2d) 104 (PC);

    814 A.P.R. 104

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. MY.033

Her Majesty the Queen v. Jason Harvey

(1715934; 2007 NSPC 16)

Indexed As: R. v. Harvey (J.)

Nova Scotia Provincial Court

Campbell, P.C.J.

May 24, 2007.

Summary:

The police found a rifle and ammunition in a parked unlocked vehicle owned by the accused. The accused was charged with careless storage of a firearm, contrary to s. 86(1) of the Criminal Code.

The Nova Scotia Provincial Court found the accused guilty.

Civil Rights - Topic 1650

Property - Search and seizure - Warrantless search and seizure - Plain view doctrine - Two police officers began pursuing the accused's vehicle, thinking that it was the vehicle that had been driven by a person involved in a disturbance - The accused sped up significantly and turned onto his property - The officers entered the property and found the parked vehicle - The officers realized that the vehicle was not the one involved in the disturbance - Inside the vehicle, the officers saw a rifle and ammunition - The rifle had a trigger lock on it with the key inserted - The officers seized the rifle and ammunition from the unlocked vehicle - The accused was charged with careless storage of a firearm - The Nova Scotia Provincial Court held that the search and seizure of the rifle and ammunition was justified under the plain view doctrine - The police acted within their authority in going onto the accused's property and making a visual inspection of the inside of the vehicle - Spotting the rifle required only a casual view of the interior of the vehicle with a flashlight - The unsecured rifle was at least evidence of the offence of unsafe storage or transportation of a firearm - See paragraphs 10 to 18.

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - Two police officers began pursuing the accused's vehicle, thinking that it was the vehicle that had been driven by a person involved in a disturbance - The accused sped up significantly and turned onto his property - The officers entered the property and found the parked vehicle - The officers realized that the vehicle was not the one involved in the disturbance - Inside the vehicle, the officers saw a rifle and ammunition - The rifle had a trigger lock on it with the key inserted - The officers seized the rifle and ammunition from the unlocked vehicle - The accused was charged with careless storage of a firearm - The Nova Scotia Provincial Court held that the search and seizure of the rifle and ammunition was justified under s. 117.02(1) of the Criminal Code (warrantless search in exigent circumstances where weapon or firearm used in committing offence or offence involving weapon or firearm being committed) - The exigent circumstances contemplated by s. 117.02(1) were present - See paragraphs 19 to 25.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police officers found a rifle and ammunition in a parked unlocked vehicle owned by the accused - The accused was charged with careless storage of a firearm - The Nova Scotia Provincial Court held that the search and seizure of the rifle and ammunition were justified under both the plain view doctrine and s. 117.02(1) of the Criminal Code - The court further held that even if the rifle was obtained in a manner that infringed the accused's Charter rights, it would not have excluded the evidence under s. 24(2) of the Charter - The evidence was non-conscriptive - Any breach was minimal and not deliberate, flagrant or committed in bad faith - Exclusion of the evidence would place disproportionate emphasis on that breach and place insufficient importance on the interests of society in having a trial that was fundamentally fair - See paragraphs 26 to 35.

Criminal Law - Topic 1175

Offences against public order - Firearms - Careless use, transportation, carrying, storage, etc., of firearm - Elements of offence - [See all Criminal Law - Topic 1436 ].

Criminal Law - Topic 1436

Offences against person and reputation - Firearms - General - Unsafe handling and careless storage - The police found a rifle and ammunition in a parked unlocked vehicle owned by the accused - The accused was charged with careless storage of a firearm, contrary to s. 86(1) of the Criminal Code - The accused argued that the rifle was not stored as he put the rifle in the vehicle with the intention that it would be picked up in a few hours by a friend who wanted to borrow it to go hunting - The Nova Scotia Provincial Court held that the accused left the rifle in the vehicle intentionally, with the further intention of having it remain out of his immediate control for at least two hours or more - In those circumstances the rifle was stored as that term was used in s. 86(1) - See paragraphs 36 to 41.

Criminal Law - Topic 1436

Offences against person and reputation - Firearms - General - Unsafe handling and careless storage - The police found a rifle and ammunition which was left in plain sight in a parked unlocked vehicle owned by the accused - There was a trigger lock on the rifle, but the key was left in it - The accused was charged with careless storage of a firearm, contrary to s. 86(1) of the Criminal Code - The accused stated that he left the rifle in his vehicle, which was parked behind his home in a rural area late at night, with the intention that it be picked up in only a few hours by a friend who wanted to borrow it to go hunting - The Nova Scotia Provincial Court found the accused guilty of the offence, holding that there was a marked departure from the standard of care of a reasonable person - See paragraphs 42 to 61.

Criminal Law - Topic 1436

Offences against person and reputation - Firearms - General - Unsafe handling and careless storage - The accused was charged with careless storage of a firearm, contrary to s. 86(1) of the Criminal Code - The Nova Scotia Provincial Court stated that the term "store" as used in s. 86(1) required an intentional placement of the object along with an intention that the object remain there, out of the person's immediate control yet retrievable by him - If the object was within the person's immediate control he was using or handling the object - See paragraph 39.

Criminal Law - Topic 3152

Special powers - Power of search - Warrantless searches - [See Civil Rights - Topic 1650.3 ].

Police - Topic 3245

Powers - Seizure - Without arrest or warrant - [See Civil Rights - Topic 1650.3 ].

Words and Phrases

Stores - The Nova Scotia Provincial Court considered the meaning of the word "stores" in s. 86(1) of the Criminal Code, R.S.C. 1985, c. C-46, in relation to careless storage of a firearm, weapon or ammunition - See paragraphs 36 to 41.

Cases Noticed:

R. v. Carlos (A.M.), [2002] 2 S.C.R. 411; 287 N.R. 79; 165 B.C.A.C. 221; 270 W.A.C. 221; 163 C.C.C.(3d) 449, consd. [para. 37].

R. v. Gossett, [1993] 3 S.C.R. 76; 157 N.R. 195; 57 Q.A.C. 130; 83 C.C.C.(3d) 494; 23 C.R.(4th) 280; 105 D.L.R.(4th) 681; 17 C.R.R.(2d) 77, refd to. [para. 42].

R. v. Lulic (2003), 58 W.C.B.(2d) 96; 2003 CarswellOnt 4963 (C.J.), refd to. [para. 43].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 86(1) [para. 36]; sect. 117.02(1) [para. 19].

Counsel:

Richard Hartlen, for the Crown;

Joel Pink, for the defence.

This matter was heard on March 19, 2007, before Campbell, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision on May 24, 2007.