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SENTENCING - Possession of prohibited or restricted weapon or ammunition

Thursday, January 02, 2020 @ 8:28 AM  

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Appeal by 39-year-old Holdsworth from his conviction and sentence in relation to 13 firearms offences, including storing firearms in an unsafe manner and possession of firearms without a licence. The appellant was fined $75 on each count, as well as a victim fine surcharge of $100 on each count, for a total fine of $2,275. The appellant kept several firearms and ammunition on a farm property jointly owned with his father. The appellant and his father did not live on the property but regularly visited it. On the day of the incident, the father knew the appellant was upset and asked Stevens to check in on him at the farm. Stevens found the appellant, who had been drinking, sitting in the farmhouse crying with a shotgun in arm’s reach. The appellant’s father also called 911. The police emergency response team was contacted. The appellant, after refusing to speak with police, eventually came out of his home after several hours and was apprehended under the Mental Health Act and taken to the hospital. The police executed a search warrant of the farmhouse and found several unloaded firearms and ammunition. The trial judge found the appellant’s Charter rights had not been violated. The appellant did not have a previous criminal record.

HELD: Appeal dismissed. The power the police exercised when they entered the appellant’s property without a warrant was directly related to protecting the life of an individual pursuant to the common law. The trial judge was correct in finding the appellant’s ss. 7 and 8 Charter rights were not violated by the manner of entry onto the property and the nature and scope of the police presence. The ITO was not materially and fatally flawed. The trial judge did not err in finding the search warrant was validly granted. He did not err in finding the Mental Health Act applied and authorized the appellant’s arrest and detention. The appellant’s apprehension under the Mental Health act constituted exceptional circumstances that justified the postponement of the opportunity to exercise his right to counsel. The trial judge correctly found the appellant was in constructive or joint possession of the firearms. He did not err in convicting the appellant on the storage counts. The sentence was appropriate for the offender and the offences. Sentence: $2,275 fine -- Criminal Code, ss. 86(2), 91(1).

R. v. Holdsworth, [2019] A.J. No. 1514, Alberta Court of Queen's Bench, S.N. Mandziuk J., November 8, 2019. Digest No. TLD-December302019002