Floyd's Case — assault, threat & Firearms — dismissed

Client:  Floyd H., Accused
Complainants:  Janet H., Floyd's mother; Peel Regional Police Service
Charges:  Assault Bodily Harm, Death Threat, and Careless Storage Firearms

Background:  A tap on the shoulder awoke Floyd. Was this a dream? No, but who was that — the police? What were they doing in his bedroom? The mystery quickly unravelled. Floyd was promptly arrested for assaulting and causing bodily harm to his 89-year old mother. As he was being manhandled, the police searched under his bed and then the rest of his house. They seized an assortment of firearms and ammunition, further charging Floyd with four counts of "careless storage of a firearm." Back at the police station, Floyd's mother gave a video-taped statement. The police additionally charged Floyd with uttering a death threat. Before Floyd was released on bail, the police learned that he was a firearms collector. Returning to his house, they seized his entire collection of firearms, including valuable antiques. As you can read in the police report, the allegations were unsettling. The pictures of Floyd's bruised mother sent shivers down my spine.

READ THE POLICE REPORT

Goals:  Although Floyd was concerned about a criminal record (especially as it might affect his ability to travel), he was a retired airline executive and didn't exhibit what I will call career-ending angst. Nonetheless, Floyd was terrified. He was terrified about going to jail. Just the thought of it left him speechless. If the Crown would offer him a guilty plea with no jail, he would take it. But that wasn't a feasible objective. Floyd was also anxious to get back his gun collection. Our ambitious objective was two-fold:  (i) all charges to be dismissed; and (ii) all firearms to be returned.

Strategy — Assault:  The Crown's problem was that the mother had returned to Germany. The assault-bodily-harm and threatening-death charges might be tossed if Floyd's mother didn't return to testify. That would force the Crown to attempt to use the mother's video-taped statement. Generally, to use out-of-Court statements like this video-taped statement, the Crown must demonstrate that the statement is both "necessary" and "reliable." We sometimes call this a "Khan application."

Results — Assault:  The trial arrived. The mother had not return from Germany. As a result, the first two days of the trial were consumed with this Khan application. The Crown attempted to convince the Judge that Floyd should be convicted using the mother's sworn video-taped statement. I agreed that the statement was "reliable," but I argued that it wasn't "necessary." The necessity requirement hadn't been established, I submitted, because the Crown had not made an attempt to bring the mother from Germany. In fact, the Crown hadn't even inquired if she could or would travel. The Judge agreed with me. There being no evidence of an assault or a threat, both charges had to be dismissed. The trial then was adjourned for five months.

READ THE JUDGE'S DISMISSAL OF THE KHAN APPLICATION

Strategy — Firearms:  The firearms charges were still outstanding. My main argument was based on establishing that the police had violated Floyd's Charter rights in entering and searching his home. All evidence of the firearms ought to be excluded, I reasoned, because the police had illegally entered his home, had illegally searched under his bed, and had illegally searched the other rooms. To make this argument, I had to bring a Charter application to establish (i) that Floyd's right to be free from unreasonable search and seizure had been violated, and (ii) that the evidence obtained as a result of this violation — Floyd's statements, the police observations, the firearms, and the ammunition — ought to be excluded. If the Judge agreed, there would be no evidence of a crime.

Results — Firearms:  The trial continued. Her Honour did not fully agree with my Charter argument. She allowed the evidence of the firearms under Floyd's bed and the officers' observations of the bedroom. However, she did exclude all of the other evidence and observations, including Floyd's statements. The Crown closed its case. I called no evidence. We had a brief break before final argument. I was dissappointed that I hadn't convinced Her Honour that all the evidence should be excluded. Summarizing the admissable evidence in mind, however, I realized that there was no evidence that Floyd possessed those firearms, that he owned his house, that he visited or slept there regularly, or even that he any control over any room in that house. Without that being in evidence, how could the Judge find beyond a reasonable doubt that Floyd had stored those firearms. When Court resumed, I made that argument. The Judge agreed. Strange as it seems, Floyd was acquitted because the Crown failed to prove that he had stored the firearms. Within 30 days, Floyd had regained possession of his beloved firearms collection.

READ THE JUDGE'S DISMISSAL OF THE FIREARMS OFFENCES
READ FLOYD'S TESTIMONIAL