





CITATION:
R. v.
Labrecque
, 2011 ONCA 360



DATE: 20110506



DOCKET: C51759



COURT OF APPEAL FOR ONTARIO



Laskin, Feldman and MacPherson JJ.A.



BETWEEN



Her Majesty the Queen



Appellant



and



Benoit
Labrecque



Respondent



Andrew
Cappell
, for the appellant



Jean L. Richer, for the respondent



Heard and released orally:
May 3, 2011



On appeal from the decision of the
          Summary Conviction Appeal Court dated February 1, 2010 by Justice Douglas J. Rutherford
          of the Superior Court of Justice dismissing the appeal from the acquittal
          entered on April 29, 2009 by Justice Jean-Marie
Bordeleau
of the Ontario Court of Justice.



ENDORSEMENT



[1]

The respondent, Benoit
Labrecque
,
    was carrying a gas-powered pellet gun in his waistband.  Acting on a tip, the police stopped and searched
    the respondent and found the gun.  He was
    charged with carrying a concealed weapon contrary to s. 90(2) of the
Criminal Code
.  The respondent was acquitted at trial and his
    acquittal was upheld on appeal by Rutherford J.  The Crown now seeks leave to appeal to this court.

[2]

Rutherford J. concluded that for the pellet gun to be a
    weapon under s. 90 there would have to be evidence that the respondent used or
    intended to use the gun for a harmful purpose.  As there was no such evidence, the respondent was entitled to an
    acquittal.

[3]

In reaching his conclusion, Rutherford J. relied on the
    endorsement of this court in
R. v.
    McManus
, [2006] O.J. No. 3175 (C.A.).  There, too, on virtually identical facts, in the absence of evidence Mr.
    McManus used or intended to use his pellet gun for a purpose dangerous to the
    public peace the court held that the pellet gun was not a weapon.

[4]

Before us, the Crown submits that a pellet gun is a
    firearm and therefore a weapon irrespective of the gun holders subjective
    intention.  If the pellet gun is capable
    of causing serious bodily injury, it is a weapon.  Whether the gun holder used or intended to
    use it for a harmful purpose is irrelevant.  However, in making this submission the Crown fairly acknowledges that to
    succeed on this appeal he must show that the reasoning in
McManus
is wrong.  He points
    to the policy considerations discussed by the Supreme Court of Canada in
R. v.
Felawka
(1993), 85 C.C.C. (3d) 248 (S.C.C.) and to a very brief endorsement of this
    court in
R. v. Henry
, [1991] O.J. No.
    2696 (C.A.), which was not referred to in
McManus
and arguably is inconsistent with it.

[5]

It seems to us that this courts later decision in
McManus
is controlling.  It provides reasons, albeit brief, why a
    pellet gun is not a weapon unless used or intended to be used for a dangerous
    purpose.  Although an endorsement of this
    court, it nonetheless has precedential value at least to the extent of
    dictating the result of this appeal.  If
McManus
is to be overturned by this
    court, that must be done by a five-judge panel.  Mr.
Cappell
did by letter request a five-judge
    panel but no formal application was made and his letter request was
    denied.  If the issue arises again, the
    proper course is to make a formal application to the Chief Justice of Ontario
    or the Associate Chief Justice of Ontario for a five-judge panel.  Sitting as a panel of three, we are bound by
    the reasoning and the result in
McManus
.

[6]

Accordingly, leave to appeal is denied.

John Laskin J.A.

K. Feldman J.A.

J.C. MacPherson J.A.


