



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dunn, 2013
    ONCA 539

DATE: 20130904

DOCKET: C54975

Rosenberg, Sharpe, Gillese, Epstein and Strathy
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Christopher Dunn

Respondent

John McInnes, for the appellant

Solomon Friedman, for the respondent

Heard: June 19, 2013

On appeal from the acquittal entered on January 10, 2012
    by Justice Ann Alder of the Ontario Court of Justice, sitting without a jury.

Rosenberg J.A.:

[1]

The Crown appeals from the judgment of Alder J. acquitting the
    respondent of various firearm charges. The appeal turns on the interpretation
    of two statutorily-defined terms: firearm and weapon. In section 2 of the
Criminal
    Code
, R.S.C. 1985, c. C-46, these terms are defined correlatively, with
    each appearing in the definition of the other.

[2]

The Crown concedes that the trial judge correctly applied the law as
    laid down by this court in
R. v. McManus
(2006), 214 O.A.C. 77, [2006]
    O.J. No. 3175. The Crown argues, however, that
McManus
was wrongly
    decided and, in particular, failed to take into account the earlier decision of
    the Supreme Court of Canada in
R. v. Felawka
, [1993] 4 S.C.R. 199. Accordingly,
    this appeal proceeded before a five-judge panel to consider whether
McManus
should be reconsidered.

[3]

For the following reasons, I would allow the appeal, set aside three of
    the four acquittals and order a new trial on those charges. I would not
    interfere with the acquittal on the charge of pointing a firearm, which is
    unaffected by the legal error.

A.

THE FACTS

[4]

On April 23, 2010, private investigators working on behalf of the
    Workplace Safety Insurance Board were watching the respondent. The evidence of
    one of the investigators was that after running a number of errands, the
    respondent met with another man. Following a short conversation, the respondent
    pulled out what looked like a pistol from the side pocket of his jacket, and appeared
    to point it at the man. He then returned the pistol to his jacket, went back to
    his car, and drove away. The investigators were concerned about what they had
    seen and informed the Ottawa Police Service.

[5]

The police went to the respondents trailer. The officer who ultimately found
    and seized the apparent pistol in question testified that he saw a black
    handgun resting on a chair in plain view in a shed beside the trailer. Further
    investigation determined that the handgun was a Crosman Pro77 airgun that fires
    .177 calibre spherical BBs propelled by means of compressed air from a
    canister. The airgun was fully functional and loaded with a partly used CO2 cartridge.
    There was no ammunition in the magazine. The person the respondent had pointed
    the gun at was a friend. The respondent had not pointed the gun to threaten or
    intimidate him.

[6]

The airgun has a warning on the side:

Warning, not a toy, misuse can cause fatal injury. Before using
    read owners manual available from Crosman Corp. [Address omitted.]

[7]

A firearms examiner who gave expert evidence agreed in cross-examination
    that this type of airgun can be purchased without the purchasers having to
    produce any documentation, as long as the muzzle velocity does not exceed 500 feet
    per second (ft./s.). The respondents airgun had an average velocity of 261.41
    ft./s.

[8]

The expert gave evidence about a scientific study done to determine the
    velocity needed for a BB to penetrate the human eye  the so-called pigs eye
    study, which used pigs eyes because of their similar size and composition to
    the human eye. According to the studys findings, any shot exceeding 214 ft./s.
    was capable of causing serious injury. A BB shot travelling at this speed would
    penetrate the eye of a 10-month old pig some of the time. A BB travelling at
    246 ft./s. would penetrate the eye 50 percent of the time. The respondents
    airgun thus exceeded both thresholds.

[9]

The expert further testified that this particular airgun is built to
    closely resemble a Steyr MA1 9mm pistol, a conventional semi-automatic handgun.

[10]

The
    respondent was charged with the following offences: handling a firearm or
    imitation thereof in a careless manner, contrary to s. 86 of the
Criminal
    Code;
pointing a firearm, contrary to s. 87; carrying a weapon or
    imitation thereof for a purpose dangerous to the public peace, contrary to s.
    88; and carrying a concealed weapon or imitation thereof contrary to s. 90.

B.

THE TRIAL JUDGES REASONS

[11]

At
    trial, the respondent sought to exclude certain evidence, including the airgun,
    because of alleged violations of his rights under ss. 8 and 10(b) of the
Canadian
    Charter of Rights and Freedoms.
The trial judge did not find it necessary
    to deal with that issue because she was satisfied that the offences had not
    been made out. She observed that the offence of pointing a firearm  required
    proof that the airgun in question is a firearm, and that the other three counts
    required proof that the airgun was either a firearm or a replica firearm.
    Relying on
R. v. McManus
, as well as this courts decision in
R.
    v. Labrecque
2011 ONCA 360, the trial judge held that if the gun is not a
    real powder fired bullet shooting gun, the Crown must prove that it is a
    weapon, as defined in s. 2 of the
Criminal Code
, before any finding
    could be made that it is a firearm.

[12]

Section
    2 defines weapon as follows:

weapon
means any thing used, designed to be used
    or intended for use

(
a
) in causing death or injury to any person, or

(
b
) for the purpose of threatening or intimidating
    any person

and, without restricting the generality of the foregoing,
    includes a firearm;

[13]

The
    trial judge held that the Crown had failed to prove that the airgun was used or
    intended for use in any of the ways specified in s. 2. It was therefore not a
    weapon, and could not be a firearm. It was also not shown to be a replica
    firearm. The Crown does not challenge the finding that the gun was not a replica
    firearm, so no more need be said about it. Finally, the trial judge would have acquitted
    the respondent on the charge of pointing a firearm in any event because she was
    not satisfied, based on the evidence, that the respondent had actually pointed
    it at his friend.

C.

THE ISSUE

[14]

As
    mentioned, this appeal turns on the proper interpretation of the terms
    firearm and weapon in the
Criminal Code
. There is only one issue
    in this appeal: must an object (to use a neutral word) that falls within the
    definition of firearm in s. 2 also meet the definition for weapon in the
    same section. The interpretation issue arises from the fact that each
    definition refers to the other.

[15]

While
    the applicable definitions of firearm and weapon have evolved over time, to
    begin it is useful to look at the definitions as they currently appear in s. 2
    of the
Code
. I have set out the definition of weapon above, but
    repeat it here for clarity alongside the definition of firearm:

"firearm"
    means a barrelled
weapon
from which any shot, bullet or other
    projectile can be discharged and that is capable of causing serious bodily
    injury or death to a person, and includes any frame or receiver of such a
    barrelled
weapon
and anything that can be adapted for use as a firearm;

weapon
means any thing used, designed to be used
    or intended for use

(a) in causing death or injury to any person, or

(b) for the purpose of threatening or intimidating any
    person

and, without restricting the generality of the foregoing,
    includes a
firearm
; [Emphasis added.]

[16]

Thus,
    because firearm is defined as a barrelled weapon, the question arises
    whether the prosecution must prove not only that the object discharges a shot,
    bullet or other projectile that is capable of causing serious bodily injury or
    death, but also that it meets subsections (a)

or

(b) in the definition
    of weapon; namely, that the object was used, designed to be used or intended
    for use in causing death or injury to any person or for the purpose of
    threatening or intimidating any person. Or, is the word weapon used in the
    definition of firearm only in a descriptive sense, such that it is not a
    formal element of the definition requiring proof? The definition of weapon,
    in turn, refers to firearm.  The concluding phrase in that definition,
    without restricting the generality of the foregoing, includes a firearm, appears
    to exclude the used, designed or intended for use requirements and deems a
    firearm to be a weapon.

D.

ANALYSIS

(1)

R. v. McManus
should be overruled

(i)

R. v.
    Felawka

[17]

The
    facts of
Felawka
can be briefly stated. The accused had been out
    shooting with his .22 calibre rifle. Returning home on the British Columbia
    Skytrain, he wrapped the rifle in his jacket so as not to alarm people. Even
    so, some of the other passengers saw that the accused was carrying a firearm
    and notified a Skytrain employee. While on the Skytrain, the accused made an
    unfortunate comment that aroused the concern of the employee. Police later arrested
    the accused on a connecting bus. The arrest could have gone very badly; the
    officers thought the accused was reaching for the rifle, which, as it turned
    out, was loaded. The accused was charged with carrying a weapon for a purpose
    dangerous to the public peace and unlawfully carrying a concealed weapon. The
    trial judge acquitted the accused of the first charge, but entered a conviction
    on the second charge. The accused appealed to the British Columbia Court of
    Appeal and then to the Supreme Court of Canada.

[18]

At
    the time Felawka was charged, the definitions of firearm and weapon were found
    in different parts of the
Code
. Weapon was defined in s. 2 in terms
    very similar to the present definition, except that the concluding phrase
    referred specifically to firearm as defined in then-section 84. Section 84, in
    turn, defined firearm in terms virtually identical to its present definition.
    The interaction between the two definitions was directly in issue. Chief
    Justice Lamer, dissenting, would have acquitted the accused on the basis that the
    Crown had not proved that he was carrying a concealed weapon even though the
    rifle was a firearm. He agreed with Gibbs J.A., the dissenting judge in the
    Court of Appeal, that a firearm only becomes a weapon if it is used or intended
    to be used to cause death or injury to, or to threaten or intimidate, a person;
    in other words, that it meets either of subsections (a) or (b) in the
    definition of weapon. Chief Justice Lamers reasons seemed to be heavily
    influenced by a concern that this narrower definition of weapon was required to
    avoid a clash with the fundamental justice guarantee in s. 7 of the
Charter
    of Rights and Freedoms.

[19]

Cory
    J., writing for the majority, rejected this approach. He considered that a
    firearm is always a weapon, irrespective of whether it comes within the requirements
    of subsections (a) or (b) in the definition of weapon.  As he stated, at p. 211:

A firearm is expressly designed to kill or wound. It operates
    with deadly efficiency in carrying out the object of its design. It follows
    that such a deadly weapon can, of course, be used for purposes of threatening
    and intimidating. Indeed, it is hard to imagine anything more intimidating or
    dangerous than a brandished firearm. A person waving a gun and calling
    "hands up" can be reasonably certain that the suggestion will be
    obeyed. A firearm is quite different from an object such as a carving knife or
    an ice pick which will normally be used for legitimate purposes. A firearm,
    however, is always a weapon. No matter what the intention may be of the person
    carrying a gun, the firearm itself presents the ultimate threat of death to
    those in its presence.

[20]

Cory
    J. was particularly influenced by three other matters. First, he referred to
    the offence in s. 88 (now s. 89) of the
Code
of having a weapon at a
    public meeting.  As he said, at pp. 211-12 :

The presence of a firearm at a public meeting would, in itself,
    present a threat and result in the intimidation of all who were present. It
    really cannot have been the intention of the framers of the legislation that
    people would be permitted to brazenly take their guns with them to public
    meetings provided that they did not use them or intend to use them to cause
    injury or to threaten or intimidate. Indeed, to state the proposition reveals
    that a definition with such a result is unthinkable.

[21]

Second,
    he was of the view that the French version of the definition of weapon, which
    is similar to the present French definition, supported his interpretation. That
    definition is as follows::

"arme"

a)
Toute
    chose utilisée ou qu'une personne entend utiliser pour tuer ou blesser une
    personne, qu'elle soit ou non conçue pour cela;

b)
toute
    chose utilisée pour menacer ou intimider quelqu'un;

le terme s'entend notamment d'une arme à feu
    au sens de l'article 84.

As he said the French version makes it crystal clear
    that a firearm is, by definition, a weapon: see at p. 212.

[22]

Finally,
    he was of the view that if the definition of weapon sought by the appellant
    were to be accepted then the concluding words of the definition which refer
    specifically to firearms as defined in s. 84 of the
Criminal Code
would be completely redundant: see
Felawaka
at p. 212. And Cory J.
    referred with approval to this courts decision in
R. v. Formosa
(1993), 79 C.C.C. (3d) 95. In
Formosa
, the court held as follows, at p.
    96:

In our view, all objects which are firearms as defined in s. 84
    of the
Criminal Code
come within the definition of "weapon"
    found in s. 2 of the
Criminal Code
:
R. v. Felawka
(1991), 68
    C.C.C. (3d) 481 at 493, 9 C.R. (4th) 291, 7 W.A.C. 241 (B.C.C.A.). Indeed the
    word "firearm" in s. 84 of the
Criminal Code
is defined in
    part as "any barrelled
weapon
". It follows that to be a
    "weapon" as defined in s. 2 of the
Criminal Code
, a firearm
    need not come within the terms of paras.
(a)
or
(b)
of the
    definition. Were s. 2 to be interpreted as the appellant contends, the
    concluding words of the definition which refer specifically to firearms as
    defined in s. 84 of the
Criminal Code
would be rendered redundant.

While not stated in the endorsement, it appears that
Formosa
was a pellet gun case: see
R. v. James
, 2011 ONCJ 125, at para. 11.
    One would have thought that
Felawka
and
Formosa
had settled
    the issue that arises in this case, were it not for two subsequent decisions
    from this court:
R. v. McManus
and
R. v. Labrecque
.

(ii)

R. v. McManus

[23]

McManus
    was convicted of carrying a concealed weapon contrary to s. 90(1). The facts
    are not set out in the courts brief endorsement but are found in the parties
    factums and the reasons of the trial judge. The accused and his companion were
    seen at an intersection in Ottawa. A motorist saw the accused take a pellet gun
    from his waist and place it in his backpack. The only evidence as to the nature
    of the pellet gun was given by the arresting officer who testified that it was
    a CO2 charged pellet gun and discharges plastic pellets. She could not
    testify as to the velocity achieved but commented that the velocity is such
    that if pointed at close proximity, you could cause injury, serious injury to
    the eye.

[24]

Speaking
    to whether the pellet gun was a weapon for the purposes of s. 90(1), the trial
    judge considered this courts decision in
Formosa
and interpreted
Formosa
as holding that all objects defined as firearms come within the
    definition of weapon found in Section 2. As disclosed in the
McManus
factums,
    no issue seems to have been taken with this proposition. Rather, the appellant argued
    that the arresting officers evidence did not prove that the pellet gun was a
    firearm since it had not been fired or tested to determine the velocity of
    pellets fired from the gun. In so arguing, the appellant referred to this
    courts decision in
R. v. Belair
(1981), 34 O.R. (2d) 302.
Belair
involved the entirely different issue of whether an inoperable pellet gun falls
    within the closing words of the definition of firearm as anything that can
    be adapted for use as a firearm. The reference to
Belair
was apparently
    to this courts observation that in that case testing had been done, which
    Martin J.A. described in these terms, at p. 303:

When tested by a police officer the pellets from the pistol went
    through a piece of 1/8 inch plywood at a distance of eight feet and penetrated
    1/4 of an inch in a one inch pine board. The pistol was accurate at 50 feet.
    The learned trial Judge found that the pistol is capable of causing serious
    bodily injury.

[25]

In
    its factum in
McManus
, the Crown referred to
Felawka
and the
    decision of the Quebec Court of Appeal in
R. v. Brouillard
(1980), 59
    C.C.C. (2d) 81 (Que. C.A.), which involved a conviction for the offence of
    using a firearm while committing an indictable offence contrary to s. 83, now
    s. 85(1), of the
Code
.  In that case, the accused had used an unloaded
    pellet gun. The accused was convicted even though there was apparently no
    evidence as to the muzzle velocity of the gun.

[26]

This
    issue, the sufficiency of evidence required to prove capacity to cause serious
    bodily injury, was not explicitly addressed by this court in its short
    endorsement in
McManus.
The core of the courts holding is found at
    paras. 3-5:

In convicting the appellant, the trial judge accepted the Crown's
    submission that the pellet gun seized from the appellant is a firearm. By
    definition, a firearm is a weapon within the meaning of s. 90(2) of the
Criminal
    Code
. The trial judge relied on his finding that the pellet gun is a
    firearm to conclude that it is a weapon for the purposes of s. 90.

In her evidence at trial, the police officer who seized the
    pellet gun from the appellant confirmed that it is discharged by a spring
    mechanism. In addition, she agreed that this type of pellet gun is "also
    referred to as a toy pellet gun."

The definition of "firearm" in the
Criminal Code
stipulates that a firearm is "a barrelled weapon ..." On the facts of
    this case, in our view, the trial judge erred in failing to consider whether
    the pellet gun seized from the appellant is a weapon prior to accepting the
    Crown's submission that it is a firearm. Further, in light of the record at
    trial and the trial judge's finding that there was no evidence that the
    appellant used the pellet gun for a purpose dangerous to the public peace, in
    our view, a finding that the pellet gun was a weapon was not available.

[27]

As
    is apparent, the endorsement does not refer to either
Felawka
or
Formosa
.
    However, one way of interpreting this endorsement, especially given the issues
    raised at trial, the evidence, and the arguments made in the written factums,
    is that this court considered that the Crown had failed to prove that the
    pellet gun was capable of causing serious bodily injury or death. Accordingly,
    the Crown could only obtain a conviction for carrying a concealed weapon if the
    pellet gun were shown to be a weapon within the definition of paras. (a) or (b)
    of s. 2. On this interpretation,
McManus
is consistent with both
Felawka
and
Formosa.
Subsequent cases have not, however, adopted this
    interpretation. Most important of these is this courts decision in
R. v.
    Labrecque
.

(iii)

R.
    v. Labrecque

[28]

In
Labrecque
, which also involved a charge of carrying a concealed weapon
    with respect to a pellet gun, the summary conviction appeal judge referred to
    both
Felawka
and
McManus
: 2010 ONSC 754. In light of
McManus
,
    he interpreted
Felawka
as being limited to conventional powder-fired
    bullet-shooting guns. Other objects that fell within the definition of firearm because
    they were capable of causing serious bodily injury or death also had to be
    proved to be weapons. As he said in his reasons, at paras. 9-10:

It seems to me that while the majority view in
Felawka
that a firearm is a weapon applies when the thing in issue is a real
    powder-fired bullet-shooting gun, when it is something like a spring-loaded or
    air-charged pellet gun, something designed for recreational purposes other than
    for intimidating, threatening, causing injury to or killing someone, then in
    order to find that it is a 'barrelled weapon,' there must be evidence that its
    use or intended use on the facts of the case was for such a purpose. In effect,
    that is what Bordeleau J. held in dismissing the charge, saying that there was
'...
    no evidence that the accused person in this case, Labrecque, "used the
    pellet gun for a purpose dangerous to the public peace
. That is consistent
    with the holding in
McManus
as well.

Notwithstanding the opinion of Cst. Bridgeman that the pellet
    gun Labrecque was carrying was a 'barrelled weapon' and that it could cause
    serious injury or worse, there was simply no evidence of Labrecque's intent
    that the gun was to be used for a harmful purpose as listed in the definition
    of weapon. It was not established, therefore, that he was carrying a concealed
    weapon. This appeal fails and must be dismissed.

[29]

On
    further appeal by the Crown, this court, at paras. 4-5 of its decision, agreed
    with the summary conviction appeal judge:

Before us, the Crown submits that a pellet gun is a firearm and
    therefore a weapon irrespective of the gun holder's 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.

It seems to us that this court's 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
.

Accordingly, leave to appeal was denied.

(iv)

R. v. Henry

[30]

The
    facts of
R. v. Henry
, [1991] O.J. No. 2696 (C.A.),

the case

referred to in
Labrecque
, were as follows. The accused was
    charged with carrying a concealed weapon, that weapon being an airgun. While
    the accused was originally arrested during a robbery investigation, the facts
    accepted by the trial judge were that there had actually been no robbery; the
    accused had merely been using the airgun for target practice in his backyard,
    at his home not far from the scene. He then put the airgun in his pocket when
    he and a companion decided to walk to a garage to rent a car.

[31]

The
    trial judge had held that before the capabilities of the airgun could be considered
    (in other words, whether or not it could cause serious bodily injury or death
    to a person), the court had to determine whether either of paras. (a) or (b) in
    the definition of weapon was met. This was because a firearm is defined as
    a a barrelled
weapon
 (emphasis added). The trial judge therefore
    acquitted the accused, because there was no evidence as to what he intended to
    do with the airgun and it therefore could not be a weapon. The summary
    conviction appeal court judge allowed the appeal and entered a conviction. The
    issue before the court was precisely the issue that arises in this appeal.
    Conant D.C.J. dealt with the issue at length and concluded as follows, at p. 5
    of the unreported reasons for judgment:

In view of the above, I conclude that once it is established
    that the device in question is barrelled, can discharge any shot, bullet or
    other missile, and has the capability of causing serious bodily injury or
    death, it is a firearm within s. 82 and, therefore, it is automatically a
    weapon within s. 82. Hence, it is not necessary to look at the intention of the
    accused once it is proven that the object possesses these characteristics, as a
    firearm is deemed by s. 2 to be a weapon.

[32]

The
    accused appealed to this court. In a very brief endorsement, the court stated:
    We agree with the Summary Conviction Appeal Court Judge as to the meaning of
    the word firearm.

(v)

The
    Effect of
Felawka
and
McManus

[33]

To summarize the state of the law prior to
McManus
,
    this court, in both
Henry
and
Formosa
, two cases dealing with
    pellet guns or airguns, held that an airgun falls within the definition of weapon
    if it is proved to be a firearm, irrespective of whether it also meets paras.
    (a) or (b) in the definition of weapon. In
Felawka
, Cory J. speaking
    for the majority, expressly approved of the reasoning in
Formosa.

[34]

In
    my view, given this history,
Felawka
is controlling and an object,
    whether it is a conventional powder-fired gun or a spring or gas fired gun, will
    fall within the definition of firearm in s. 2 provided there is proof that any
    shot, bullet or other projectile can be discharged from the object and that it is
    capable of causing serious bodily injury or death to a person. I say this
    primarily because of the majoritys approval of
Formosa
, a case that
    involved a pellet or air gun and the very issue engaged in this case.
    Admittedly, some of the language used by Cory J. in
Felawka
is most
    easily applied to conventional firearms. But there is nothing in his decision
    that limits the definition of firearm to those types of weapons. Cory J. did
    not suggest that his reasoning was limited to conventional firearms and the
    reasoning, particularly in the reference to this courts decision in
Formosa
,
    suggests otherwise.  The interpretation of firearm was not
obiter
,
    and was central to the courts analysis of the accuseds appeal. The
    prosecution need not prove that the object also falls within paragraph (a) or
    (b) of the weapon definition.

[35]

The
    issues as framed in this case centred on whether
McManus
should be
    overruled. I have suggested a way in which
McManus
can be read in a
    manner consistent with
Felawka
and
Formosa
. On the other
    hand, the subsequent decision from this court in
Labrecque
understood
McManus
as adopting an interpretation of firearm and weapon that would require the
    Crown to prove that air guns fall within paragraph (a) or (b) of the weapon
    definition even though they would otherwise meet the definition of firearm in
    s. 2. So understood, it is my view, that
McManus
and
Labrecque
were wrongly decided. It does not appear that the issue was directly raised by
    the parties in
McManus
and the court did not deal with either
Felawka,
    Henry
or
Formosa
. In other words, this appeal falls within the
per
    incuriam
exception to
stare decisis
identified in
David
    Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co.
(2005), 76 O.R. (3d) 161 (C.A.) at
    para. 111. The decision in
McManus
meets the two conditions of the
per
    incuriam
exception: the panel deciding the earlier case did not refer to
    binding judicial authority, namely
Felawka, Henry
and
Formosa
,
    and it would have decided the case differently, given the binding nature of
Felawka.


(2)

Interpretation of
    Firearm and Weapon

[36]

Even
    if this court were not bound by
Felawka
and
Formosa,
I would
    interpret the relevant provisions in accord with those cases. The approach to
    statutory interpretation has been set out in any number of decisions from the
    Supreme Court of Canada. It begins with the well-known principle from Elmer A. Driedger,
Construction of Statutes
, 2nd ed., (Toronto: Butterworths, 1983) at p.
    87:

Today there is only one principle or approach, namely, the
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament.

[37]

As
    stated by Iacobucci J. in
Bell Express Vu Limited Partnership v. Rex
,
    2002 SCC 42, [2002] 2 S.C.R. 559 at paras. 26-28, this approach applies in a
    wide variety of interpretive contexts, including the interpretation of criminal
    statutes: see e.g.
R. v. Sharpe
, 2001 SCC 2, [2001] 1 S.C.R. 45;
R.
    v. Davis
, [1999] 3 S.C.R. 759. Because Driedgers principle is the
    preferred approach, the principle of strict construction of penal statutes only
    applies where some ambiguity remains in the meaning of the provision after the
    contextual and purposive approach has been undertaken by the interpreting court:
Bell ExpressVu
, at paras. 28 and 30.

[38]

The
    modern approach requires the court to consider the grammatical and ordinary
    sense of the words used, the broader context having regard to the scheme and
    object of the Act, and the intention of Parliament.

(i)

The Scheme of the Legislation

[39]

Most
    of the firearm and weapons offences are now found in Part III of the
Criminal
    Code
. Other firearm and weapon offences are found in other parts of the
Code
,
    often in provisions where the involvement of a firearm or weapon aggravates an
    essential offence. An example would be the offence of assault with a weapon in
    s. 267 of the
Code
. One set of firearm offences that are not found in
    Part III are the discharging offences in ss. 244 to 244.2. The respondent, in
    particular, relied on this set of offences as demonstrating an intention by
    Parliament to treat airguns differently than barrelled weapons.  I will discuss
    those offences below.

[40]

To
    understand the scheme of the legislation it is helpful to identify the
    different ways in which Parliament deals with barrelled weapons. One way is by
    focusing on the capability of the object to cause serious bodily injury or
    death. The broad definition of firearm in s. 2, is any barrelled weapon from
    which any shot, bullet or other projectile can be discharged and that is
    capable of causing serious bodily injury or death to a person, including any
    frame or receiver of such a barrelled weapon and anything that can be adapted
    for use as a firearm. The evidence in this case was that a barrelled weapon is
    capable of causing serious bodily injury or death to a person if it fires a
    projectile at more than 214 ft./s. This is the so-called pigs eye test, which is
    a standard for determining the capabilities of a barrelled object for causing
    serious death or bodily injury. The evidence was that if the velocity was 246
    ft./s. the object would meet the V50 standard, which is the speed required
    for the projectile to penetrate the eye 50 percent of the time.

[41]

A
    second threshold is found in s. 84(3), which deems certain weapons not to be
    firearms for the purpose of various sections of the
Criminal Code
and
    the provisions of the
Firearms Act
. These
Code
sections
    contain offences related to the possession, trafficking, importing and
    exporting, and transfer of firearms; and failing to report or the false reporting
    of lost, found, or destroyed firearms. An example is the offence in s. 91 of
    possessing a firearm without being the holder of a licence or, in the case of a
    prohibited or restricted weapon, a registration certificate. One of the
    sections referred to in s. 84(3) also sets out the power of a peace officer to
    seize a firearm on a persons failure to produce an authorization, license or
    certificate for it: see s. 117.03. Weapons that are deemed not to be firearms
    for the purposes of these sections include antique firearms and devices that
    are designed exclusively for certain purposes and intended by the person in
    possession to be used exclusively for that purpose. For example, s. 84(3)(c)
    deems not to be a firearm a shooting device designed exclusively for the
    slaughtering of domestic animals and intended by the person in possession of it
    to be used exclusively for the purpose for which it is designed. Section 84(3)(d)
    also deems a broad range of barrelled weapons not to be firearms for the
    purposes of these sections of the
Code
and the
Firearms Act
,
    in the following terms:

(
d
) any other barrelled weapon, where it is proved
    that the weapon is not designed or adapted to discharge

(i) a shot, bullet or other projectile at a muzzle velocity
    exceeding 152.4 m per second or at a muzzle energy exceeding 5.7 Joules, or

(ii) a shot, bullet or other projectile that is designed or
    adapted to attain a velocity exceeding 152.4 m per second or an energy
    exceeding 5.7 Joules.

[42]

A
    velocity of 152.4 m per second is equivalent to 500 f./s. Certain high-powered
    airguns would exceed this threshold and would therefore be considered firearms
    for all purposes of the
Criminal Code
and the
Firearms Act
licensing regime.

[43]

To
    conclude, and leaving aside for the moment the interpretation issue that arises
    because of the mutual references to firearm and weapon in each of the s. 2
    definitions, one way of looking at the legislative scheme is by reference to
    three groups of barrelled objects:

[44]

Group
    One: Barrelled objects shooting a projectile with a velocity of less than 214
    ft./s. (or 246 ft./s., using the V50 standard) are not firearms because they
    are not capable of serious injury or death; these objects will only be
    considered weapons, and thus fall within a prohibition such as the concealed
    weapon prohibition in s. 90, if they meet paras. (a) or (b) in the definition
    of weapon.

[45]

Group
    Two: Barrelled objects shooting a projectile with a velocity of more than 214
    ft./s. (or 246 ft./s., using the V50 standard) are firearms, because they are
    capable of causing serious injury or death, whether or not they also meet paras.
    (a) or (b) in the definition of weapon; these weapons will fall within a
    prohibition such as that found in s. 90. Nevertheless, they will not be subject
    to the stricter licensing regime in the
Criminal Code
and the
Firearms
    Act
if they fall within one of the exemptions in s. 84(3), for example, if
    the velocity of the projectile does not exceed 500 f./s.

[46]

Group
    Three: Barrelled objects shooting a projectile with a velocity of more than 500
    f./s. These objects fall within the definition of firearm for all purposes of
    the
Criminal Code
and the
Firearms Act
and must be licensed
    accordingly. Some airguns and most powder-fired bullet shooting guns will fall
    with in this regime. At a minimum,
Felawka
has decided that the Group
    Three objects do not need to meet the para. (a) or (b) definition of weapon to
    be deemed to be weapons.

(ii)

The
    legislative history

[47]

The
    appellant and the respondent rely upon the legislative history of the weapon
    and firearm definitions to support their positions. I will briefly set out some
    of that history. In the end, while the history does not greatly assist, it does
    in my view, tend to support the appellants position in that it shows an
    intention to treat airguns as weapons, whether by explicitly including them in
    the definition of weapon or by scooping them up within the definition of
    firearm.

[48]

The
    earliest manifestation of this intention is in the definition of offensive
    weapon as it appeared in s. 3(r) of the
Criminal Code
as it was first
    enacted:
Criminal Code, 1892
, S.C. 1892, c. 29.

3(
r
) The expression offensive weapon includes any
    gun or other firearm,
or air-gun
, or any part thereof, or any sword,
    sword blade, bayonet, pike, pike-head, spear, spear-head, dirk, dagger, knife,
    or other instrument intended for cutting or stabbing, or any metal knuckles, or
    other deadly or dangerous weapon,
and

any instrument or thing
    intended to be used as a weapon
, and all ammunition which may be used with
    or for any weapon. R.S.C., c. 151, s. 1(c) [Emphasis added.]

[49]

While
    this definition distinguishes airguns from firearms, more important, in my
    view, is that Parliament intended airguns to come within the definition of
    offensive weapon irrespective of whether they also met the latter part of the
    definition, as intended to be used as a weapon.

[50]

Following
    reforms made to the
Criminal Code
in 1955, this intention to treat
    air-guns as weapons was maintained:
An Act respecting the Criminal Law
,
    S.C. 1953-54, c. 51. Section 2(29) of the 1955 Code provided:

(29) offensive weapon or weapon means

(a) anything that is designed to be used as a weapon, and

(b) anything that a person uses or intends to use as a
    weapon, whether or not it is designed to be used as a weapon,

and, without restricting the generality of the foregoing,
    includes a firearm, air-gun or air-pistol and ammunition for a firearm, air-gun
    or air-pistol;

[51]

The
    1955 Code contained a limited definition of firearm applicable only to
    certain provisions, as follows:

firearm means a pistol, revolver, or a firearm that is
    capable of firing bullets in rapid succession during one pressure of the
    trigger

[52]

This
    definition did not, for example, apply to the pointing a firearm offence in
    former s. 86, which made it an offence to point a firearm, air-gun or
    air-pistol at another person. At that time, therefore, the dictionary
    definition would apply to such an offence, meaning a weapon from which a shot
    is discharged by gunpowder (see for example the Merriam-Webster English
    Dictionary). Hence, the need to expressly refer to airguns in the weapon
    definitions.

[53]

It
    is only with the enactment of the
Criminal Law Amendment Act, 1968-69
,
    S.C. 1968-1969, c. 38,

when Parliament began to legislate with respect
    to firearms in a more comprehensive manner, that Parliament defined firearm
    in a more comprehensive way with reference to the capacity to injure. The
    definition, which is set out below, uses the word means. It would seem that
    Parliament no longer intended to rely upon the dictionary definition. And,
    there was no longer a need for separate references to airguns. Rather, firearms
    were, after this point, defined by their nature as a barrelled device and by their
    capacity for injury. The definition is similar to the present definition, and
    appeared after that time in s. 84 of the
Code
, as follows:

firearm means any barrelled weapon from which any shot,
    bullet or other missile can be discharged and that is capable of causing
    serious bodily injury or death to the person, and includes anything that can be
    adapted for use as a firearm

[54]

The
    next significant step in the legislative history is the
Criminal Law
    Amendment Act, 1977
, S.C. 1976-77, c. 53, which represents even greater
    regulations of firearms, introducing for example, the requirement of a firearm
    acquisition certificate. The definition of firearm, which was still found in
    s. 84, was somewhat expanded by inclusion of any frame or received of such barrelled
    weapon.

[55]

Finally,
    in 1995, Parliament enacted the
Firearms Act
, which, among other
    things, required registration and licencing of ordinary firearms and created
    the long gun registry. Among the consequential amendments to the
Criminal
    Code
was to move the definition of firearm to s. 2, so that it applies
    to the entire
Criminal Code
. This is the definition that is in force
    at this time, and is set out earlier in these reasons.

[56]

The
    respondents argument in this court depends heavily on the idea that sense can
    be made of the current definitions of weapon and firearm by reverting back to
    the dictionary definition of firearm. Given the legislative history, with
    Parliaments increasing movement towards greater and more comprehensive firearm
    legislation, I think it unlikely that Parliament intended to rely upon a
    dictionary definition wherever the defined term applied, as in the weapons and
    firearms Part of the
Criminal Code
.

(iii)

Object of the legislation

[57]

While
    the weapons and firearms provisions of the
Criminal Code
may have
    several purposes, including crime control, it seems to me that in the context
    considered here, i.e. whether barrelled objects comprising Group Two must meet the
    use or intended use requirements in the definition of weapon before they can
    be found to be firearms, the paramount objective of the legislation, like that
    of the related
Firearms Act
, is public safety: see
Reference re:
    Firearms Act (Can.),
2000 SCC 31, [2000] 1 S.C.R. 783 at para. 23.

[58]

Having
    regard to this objective, airguns that fall within Group Two because they are
    capable of causing serious bodily injury or death, ought to be subjected to
    rigorous regulation by virtue of their dangerous nature, even if, at the critical
    time, the person in possession does not have one of the intentions or purposes
    identified in paras. (a) or (b) in the definition of weapon.

[59]

Crown
    counsel provided a particularly good example. Section 86 of the
Code
makes
    it an offence to, among other things, use, carry or store a firearm in a
    careless manner or without reasonable precautions for the safety of other
    persons. If an airgun that otherwise meets the definition of firearm in s. 2
    because of its dangerous nature and its capability for causing injury, is not found
    to be a firearm because it does not also meet the use and intended use
    requirements in the definition of weapon, it escapes regulation under s. 86.
    It would be lawful to leave such a dangerous object in an area where children
    might have access to it, or to shoot it in a dangerous manner. Liability would
    attach only if someone actually was injured or killed. Such an interpretation
    would not be consistent with the public safety objective of the legislation.

[60]

Both
    the context of the legislative provisions respecting weapons and firearms and
    the legislative history set out earlier suggest that Parliament has intended to
    treat firearms as a special subset of weapons, subject to stricter regulation
    because of their inherent dangerousness. To require proof that barrelled
    objects, that are sufficiently dangerous to cause
serious
injury or
    death, are also weapons by virtue of either of paras. (a) or (b) in that definition,
    would frustrate Parliaments intention.

(iv)

The Grammatical and Ordinary Sense

[61]

The
    respondent submits that the grammatical or ordinary sense of the definitions of
    weapon and firearm at least create an ambiguity. I do not agree. Considered in
    context, the definitions are consistent with a rational scheme and, thus, are
    not reasonably capable of more than one meaning:
Bell ExpressVu
, at
    para. 29. I agree with the appellant that the way out of the alleged definitional
    loop is to treat the term weapon in the definition of firearm as simply a
    descriptor rather than a formal element.

[62]

That
    Parliament must have intended this result is apparent from the concluding words
    of the definition of weapon itself: and, without restricting the generality
    of the foregoing, includes a firearm. This phrase would be meaningless if the
    object in question had to meet the statutory definitions of both firearm and
    weapon in order to be found to be a firearm. Such an interpretation would be
    inconsistent with the presumption against tautology. As Ruth Sullivan explains in
    her text
Sullivan on the Construction of Statutes
, 5th ed. (Markham,
    Ont: LexisNexis Canada, 2008) at p. 210, the effect of this presumption is that
    courts should avoid, as much as possible, adopting interpretations that would
    render any portion of a statute meaningless or pointless or redundant. In my
    view, applying this presumption assists in resolving any apparent ambiguity.

[63]

Treating
    the word weapon in the definition of firearm as a descriptor also avoids the
    problem that, otherwise, the term firearm becomes a component in its own
    definition. As Crown counsel points out, inserting the weapon definition in the
    firearm definition results in the following absurdity:

firearm means a barrelled thing that is used, designed to be
    used or intended for use (
a
) in causing death or injury to any person,
    or (
b
) for the purpose of threatening or intimidating any person and,
    without restricting the generality of the foregoing, includes a firearm from
    which any shot, bullet or other projectile can be discharged and that is
    capable of causing serious bodily injury or death to a person, and includes any
    frame or receiver of such a barrelled weapon and anything that can be adapted
    for use as a firearm

[64]

The
    respondent rightly points to a group of provisions that distinguish between
    airguns and firearms, suggesting that Parliament did not intend that any airgun
    that met the serious bodily injury or death element of the firearm definition
    was a firearm unless it also met the weapon definition. An example is found in
    present ss. 244 and 244.1, as am. by S.C. 1995, c. 39, s.144. The former
    creates the offence of discharging a firearm at a person with, among other
    things, the intent to wound, maim or disfigure. Section 244.1 creates the
    separate offence of discharging an air or compressed gas gun or pistol with
    the same intent as under s. 244. In my view, however, the better view of these
    sections is to see them as providing a flexible scheme to account for the
    usually less dangerous circumstances in which the offender makes use of an air
    gun. Section 244, as presently drafted, carries a minimum punishment of at
    least four years imprisonment and, where other types of firearms are used, even
    high minimum punishments. Section 244.1 by contrast does not carry any minimum
    punishment. Section 244.1 gives the prosecution the option to proceed with the
    lesser offence where circumstances do not call for the harsher penalty. There
    are other examples in the
Criminal Code.
For example, s. 335 creates
    the summary conviction offence of what is sometimes termed joy-riding. Given
    the broad definition of theft in s. 322, some conduct amounting to joy-riding could
    also constitute the indictable offence of theft under s. 334: see
R. v.
    LaFrance
, [1975] 2 S.C.R. 201.

[65]

The
    respondent also points to the offences created by s. 244.2. For example, s.
    244.2(1)(a) makes it an offence to discharge a firearm into or at a place
    knowing that, or being reckless as to whether, another person is present in the
    place. Where a non-restricted and non-prohibited firearm is used, the offence
    carries a minimum punishment of four years imprisonment. The respondent
    submits that Parliament could not have intended that use of an airgun, even one
    that is capable of causing serious injury or death, would attract this level of
    punishment, unless the firearm also fell within the definition of weapon.
    Section 244.2 reflects the seriousness with which Parliament views firearms
    offences. It is open to Parliament to include within the ambit of the s. 244.2
    offences airguns capable of causing serious injury or death. Whether the
    minimum punishment is excessive may raise constitutional issues, but does not,
    in my view, assist with the interpretation issues in this case.

(v)

Conclusion

[66]

To
    conclude, in my view, there is no ambiguity in the definition of firearm in s.
    2 when regard is had to the legislative history and the context and scheme of
    the legislation. Barrelled objects that meet the definition of firearm in s. 2
    need not also meet the definition in para. (a) or (b) of weapon to be deemed to
    be firearms and hence weapons for the various weapons offences in the
Code
,
    such as the offences charged against the respondent in this case.

E.

Disposition

[67]

Accordingly,
    I would allow the appeal, set aside the acquittals on counts 1, 3 and 4
    (careless handling of a firearm, carrying a weapon for a purpose dangerous to
    the public peace, and carrying a concealed weapon) and order a new trial on
    those charges. I would not interfere with the acquittal on count 2 of pointing
    a firearm given the trial judges finding of fact that the respondent did not
    point the firearm at his friend.

Released: MR September 4, 2013

M. Rosenberg J.A.

I agree. R.J. Sharpe
    J.A.

I agree. E.E.
    Gillese J.A.

I agree. G.J.
    Epstein J.A.

I agree. G.R.
    Strathy J.A.


