Case Study: Careless Use of a Firearm
Our client, Mr. L., at the time of being charged was an elderly 67 year old gentleman, who had a seasonal property in the rural Peterborough area. Mr. L. and his wife came to see me regarding the upsetting situation they found themselves in with the Peterborough Ontario Provincial Police. My client had no previous criminal record.
A group of American hunters and their guide lost control of their hunting dogs which had veered off track and onto the private property of Mr. L. The guide and Americans followed the dogs into the gated property clearly marked with a ‘No Trespassing’ sign.
Mr. L, startled by 2 of the dogs and wishing to simply scare them off, fired a warning shot off to the side of the dogs, which unfortunately, accidentally killed a third unsupervised dog which he did not see.
Mr. L. was charged with careless use of a firearm, a Winchester 30-30 contrary to section 86(1) of the Criminal Code of Canada.
The Crown wanted Mr. L. to plead to careless use of a firearm. Jail was a possible sentence. In addition, they sought a weapons prohibition, weapons forfeiture and full restitution for the loss of the dog. The Crown attorney opposed any kind of a discharge.
Mr. L. and his wife were Sunbirds, vacationing in Florida every winter. It was important to them to have this charge dropped so Mr. L. did not risk being denied entry to the United States because of a criminal record.
From an early stage we took a proactive approach with this file. My articling student (now lawyer) Dan Lemaire visited the client and his wife at their home, to gain perspective of what had occurred. We took a number of photographs of the scene and used Google Earth for further context.
This was an emotional case for all involved. Just about everyone loves dogs, and one had been killed, albeit by inadvertence. We conducted a great deal of research, and were convinced if the matter went to trial it was likely that Mr. L. would win. In a very detailed written argument, we set out to the Crown Attorney’s Office why we did not think they could be successful at trial. In our view (we did not share this part with the Crown) we thought that the correct charge was cruelty to animals, and it would have been much more difficult for us to successfully defend.
The defence and the Crown’s Office don’t always agree and this was such a case. Two trial dates were set. We were determined to try to get Mr. L. out of this mess.
As the trial date approached, the Crown had a deeper look at their case. I negotiated further with them, on Mr. L’s behalf. Again, we resubmitted our original offer: our client would make restitution for this valuable hound dog, would enter into a common law peace bond, would give up his gun privileges, and the Crown Attorney would drop the charge. From the defence standpoint this was an excellent bargain, as even if the defence prevailed at trial, it was still possible that the owner of the dog would sue in small claims for the loss of the dog. As part of the overall settlement, we obtained a Full and Final Release from the owner of the dog, forever bringing this matter to closure, without further expense to Mr. L. Even better for Mr. L., he was able to save legal fees as we did not have to proceed to a two day trial.
It was a trying experience for my clients. They were relieved when it was all over, and very happy that a trial and a possible criminal record had been avoided. My clients could carry on wintering in Florida without fear of being denied entry at the border.