R. v. Schmaltz (J.W.), 2007 ABQB 675

• Judge: Moreau, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 26, 2007
• Citations: 2007 ABQB 675;(2007), 431 A.R. 161 (QB)

R. v. Schmaltz (J.W.) (2007), 431 A.R. 161 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. NO.056

Her Majesty the Queen v. Jason Wade Schmaltz (appellant)

(061416624S1; 2007 ABQB 675)

Indexed As: R. v. Schmaltz (J.W.)

Alberta Court of Queen's Bench

Judicial District of Fort McMurray

Moreau, J.

November 9, 2007.

Summary:

The accused was convicted of careless storage of firearms and resisting arrest. He appealed his convictions and sentences.

The Alberta Court of Queen's Bench dismissed the conviction appeal and allowed the sentence appeal respecting the careless storage of firearms.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Police officers responded to a 911 hang-up call at the accused's residence - The accused admitted making the call because he was worried about wrecking the house - In response to questioning about whether the accused had any firearms in the house, his wife responded that her husband was a hunter - It was the accused who answered that he did have firearms and agreed to show them to the officer, ultimately leading to charges of and convictions for careless storage of firearms and resisting arrest - The accused was not informed of his s. 10(b) Charter rights until after his arrest - The Alberta Court of Queen's Bench held that while the officers' presence in the home was justified to satisfy themselves of its occupants' safety, it should not have been used as the springboard to question the accused about the whereabouts of weapons without first advising him of his right to counsel (s. 10(b)) and to embark on a warrantless search of the premises (s. 8) - See paragraphs 2 to 38.

Civil Rights - Topic 1653.2

Property - Search and seizure - Warrantless search and seizure - General - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - Police officers responded to a 911 hang-up call at the accused's residence - The accused admitted making the call because he was worried about wrecking the house - In response to questioning about whether the accused had any firearms in the house, his wife responded that her husband was a hunter - It was the accused who answered that he did have firearms and agreed to show them to the officer, ultimately leading to charges of and convictions for careless storage of firearms and resisting arrest - The accused was not informed of his s. 10(b) Charter rights until after his arrest - The Alberta Court of Queen's Bench held that although the accused ss. 8 and 10(b) Charter rights were violated, his s. 10(a) Charter rights were not breached as the police informed him of their reason for entering the residence and, when placing him under arrest, immediately told him the reason for his arrest - See paragraphs 2 to 13 and 39.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Police officers responded to a 911 hang-up call at the accused's residence - The accused admitted making the call because he was worried about wrecking the house - The situation appeared to be a "domestic" - In response to questioning about whether the accused had any firearms in the house, his wife responded that her husband was a hunter - It was the accused who answered that he did have firearms and agreed to show them to the officer, ultimately leading to charges of and convictions for careless storage of firearms and resisting arrest - The Alberta Court of Queen's Bench found no error in the trial judge's conclusion that the accused was not arbitrarily detained - While the officers "switched" three times in questioning the accused's wife over the course of an hour, the trial judge considered the totality of the circumstances, including her emotional state and responses, and the accused's attitude and responses, all of which raised flags with the officers and justified the extension of their investigative detention to ensure the safety of the home's occupants - See paragraphs 2 to 13 and 40.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 4609.1

Right to counsel - Duty of police investigators (incl. undercover officers) - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police officers responded to a 911 hang-up call at the accused's residence - The accused admitted making the call because he was worried about wrecking the house - His wife was obviously upset - Their two young sons were in the house - In response to questioning, the accused admitted that he had firearms in the house and agreed to show them to the officer, ultimately leading to charges of and convictions for careless storage of firearms and resisting arrest - On appeal, the Alberta Court of Queen's Bench found violations of the accused's ss. 8 and 10(b) Charter rights but held that the evidence was admissible under s. 24(2) of the Charter - See paragraphs 41 to 51.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - Police officers Grapentime and Pernitsky responded to a 911 hang-up call at the accused's residence - The accused argued that the learned trial judge, in convicting the accused of resisting arrest, erred in failing to apply the R. v. D.W. (SCC) test for credibility determinations - The Alberta Court of Queen's Bench disagreed - The trial judge referred specifically to the accused's remarks to Pernitsky on the porch against the background of his conduct throughout his dealings with the officers - While there were varying accounts of what the officers did to subdue the accused, no issue arose as to inconsistencies as between the officers' accounts while Pernitsky was removing the accused's handcuffs as Grapentime was then inside the home - The reasons for judgment indicated that it was the accused's failure to follow Pernitsky's instructions and his comments to her that were at the heart of the trial judge's finding that the accused was resisting arrest - See paragraphs 52 to 67.

Criminal Law - Topic 5735

Punishments (sentence) - Probation or probation order - Community service - [See Criminal Law - Topic 5877.1 ].

Criminal Law - Topic 5877.1

Sentence - Improper or careless storage of firearm - Police officers responded to a 911 hang-up call at the accused's residence - The accused, aged 27, admitted making the call because he was worried about wrecking the house - The call appeared to be a "domestic" - His wife was obviously upset and their two young sons were in the house - In response to questioning, the accused admitted that he had firearms in the house and agreed to show them to the officer, ultimately leading to charges of and convictions for careless storage of firearms and resisting arrest - The trial judge imposed a conditional discharge for resisting arrest and a fine for the careless storage offence - The Alberta Court of Queen's Bench held that: the trial judge having granted a conditional discharge for the offence that appeared to have given him more concern, the accused having cooperated in locating the firearms (unloaded and lacking ammunition), and the accused's lack of criminal record, all pointed to the suitability of a similar disposition on the careless storage offence - The court substituted a conditional discharge for the fine and placed the accused on probation for one year - The court upheld the 200 community service hours imposed in connection with the conditional discharge - The trial judge was concerned that there be a deterrent and punitive element to address the accused's conduct in response to a 911 investigation - See paragraphs 68 to 86.

Criminal Law - Topic 5888

Sentence - Resisting or obstructing a peace officer - [See Criminal Law - Topic 5877.1 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5877.1 ].

Criminal Law - Topic 7659

Summary conviction proceedings - Appeals - Grounds - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 4377 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 1].

R. v. Baig (1985), 9 O.A.C. 266; 20 C.C.C.(3d) 515 (C.A.), affd. (1987), 81 N.R. 87; 25 O.A.C. 81; 37 C.C.C.(3d) 181 (S.C.C.), refd to. [para. 19].

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201, refd to. [para. 19].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 20].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 21].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1, consd. [para. 21].

R. v. Duguay, Murphy and Sevigny, [1989] 1 S.C.R. 93; 91 N.R. 201; 31 O.A.C. 177, refd to. [para. 22].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 23].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 23].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 25].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 33].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 45].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72, refd to. [para. 45].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 49].

R. v. G.B. et al. (No. 3) (1990), 111 N.R. 62; 86 Sask.R. 142; 56 C.C.C.(3d) 181 (S.C.C.), refd to. [para. 62].

R. v. Boucher (E.), [2005] 3 S.C.R. 499; 342 N.R. 42, refd to. [para. 65].

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. 66].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 74].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 74].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 74].

R. v. Vu (S.V.) (2003), 183 B.C.A.C. 227; 301 W.A.C. 227; 176 C.C.C.(3d) 568 (C.A.), refd to. [para. 79].

R. v. Kozy (1990), 41 O.A.C. 27; 58 C.C.C.(3d) 500 (C.A.), refd to. [para. 79].

R. v. Christman (1973), 11 C.C.C.(2d) 245 (Alta. C.A.), refd to. [para. 84].

Counsel:

Adam W. May, for the Crown;

Michel G. Fontaine, for the appellant

This appeal was heard on October 26, 2007, by Moreau, J., of the Alberta Court of Queen's Bench, Judicial District of Fort McMurray, who delivered the following decision on November 9, 2007.