In R. v. Ratt, 2023 SKCA 2, January 5, 2023, the accused was charged with the offence of discharging a firearm, contrary to section 244.2(1)(a) of the Criminal Code.
The evidence presented at the trial established that the accused discharged a firearm from the room he and another person were in, into the attic.
In acquitting the accused, the trial judge concluded as follows:
…the Crown does not proceed under [s. 244.2(1)](b), which requires recklessness as to the life or safety of another person; rather, the Crown proceeds under [s. 244.2(1)](a) that requires discharge into a place knowing or being reckless as to whether another person is present in that place. I find as a fact that the firearm was discharged into the attic, a place where no one could reasonably expect — be expected to be present and, accordingly, the accused must be acquitted on this count.
The Crown appealed from the acquittal, arguing that the trial judge misinterpreted section 244.2(1)(a) of the Criminal Code.
Sections 244.2(1)(a) and (b), and 244.2(2) of the Criminal Code state as follows:
244.2 (1) Every person commits an offence
(a) who intentionally discharges a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place; or
(b) who intentionally discharges a firearm while being reckless as to the life or safety of another person.
(2) For the purpose of paragraph (1)(a), place means any building or structure — or part of one — or any motor vehicle, vessel, aircraft, railway vehicle, container or trailer.
The Court of Appeal:
The appeal was dismissed. The Saskatchewan Court of Appeal concluded that for a conviction to be entered pursuant section 244.2(1)(a), “the Crown must prove that a firearm was discharged from one physical place into or at a different physical place… This provision requires that, before a conviction can be entered under that section, a court must find that a firearm was discharged from one physical place into or at a different physical place, in circumstances where the person responsible for the discharge of the firearm knew, or was reckless as to whether, another person was present in that other place” (at paragraphs 41 and 46).
The Court of Appeal noted that “[u]nlike the offence created under subsection (a), that created by subsection (b) is not bound by a location or place requirement. The offence may be committed no matter where or to where the firearm is discharged. It is made out only if the person who has discharged the firearm was ‘reckless as to the life or safety of another person’. This is to be contrasted with subsection (a), which, as will be recalled, is made out if the shooter intentionally discharged the firearm into or at a place and knew or was reckless as to whether another person is present in the placewhere the firearm is discharged at or into” (at paragraph 30).
The Court of Appeal held that the “purpose” of the provision “is, as the trial judge found, to criminalize the discharge a firearm into or at a place in circumstances when the shooter is at one location and knows, or ought to know, or is reckless as to whether people are present in the place at or into which the shot is fired (‘knowing that or being reckless as to whether another person is present in the place’, emphasis added). Therefore, by way of example, s. 244.2(1)(a) criminalizes conduct such as drive‑by shootings at homes or buildings” (at paragraph 35).
The Court of Appeal indicated that “if it were shown that Mr. Ratt knew, or was reckless as to whether, others were present in the attic or on the roof” the charge could have been proven. However, “[t]he Crown’s charge failed because this could not be proven to be the case” (at paragraph 42).
The Court of Appeal concluded that the trial judge “correctly interpreted s. 244.2(1)(a) of the Criminal Code…Based on the trial judge’s correct interpretation of s. 244.2(1)(a), and his findings of fact, the acquittal he entered under this section must stand. Accordingly, the Crown’s appeal must be dismissed” (at paragraphs 46 and 47).