



WARNING

The President of
    the panel hearing this appeal directs that the following should be attached to
    the file:

An order
    restricting publication in this proceeding has been made pursuant to the
    courts common law authority. The evidence taken at the preliminary inquiry in
    this matter shall not be published in any document or broadcast or transmitted
    in any way before such time as the appellants trial has ended.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sebape, 2020 ONCA 475

DATE: 20200721

DOCKET:
C68269

MacPherson,
    Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mothusi Sebape

Appellant

Daisy McCabe-Lokos, for the appellant

Michael Fawcett, for the respondent

Heard: July 17, 2020 by
    videoconference

On appeal from
    the judgment of Justice Michael Code of the Superior Court of Justice, dated
    January 27, 2020, denying
certiorari
to quash the order of Justice Neil
    L. Kozloff of the Ontario Court of Justice, dated August 1, 2019, committing
    the appellant to stand trial.

REASONS FOR DECISION

[1]

The appellant was charged with numerous offences.
    At the conclusion of the evidence at his preliminary inquiry, he resisted
    committal for trial on three offences: possession of a loaded firearm (
Criminal
    Code
, R.S.C. 1985, c. C-46, s. 95(1)); carry a firearm in a careless
    manner (s. 86(1)); and possession of a prohibited weapon (s. 92(2)). All three
    charges related to a single handgun with a defective firing pin. At issue for
    these charges was whether, despite the defective firing pin, the handgun could
    be adapted for use as a firearm, thereby meeting the definition of firearm
    in s. 2 of the
Criminal Code
.

[2]

A firearms expert testified that a replacement
    firing pin could be sourced in the United States for shipment to Canada. The
    expert further testified that, once the new part was obtained, the defective
    firing pin could be replaced with relative ease, and in a short period of time.
    However, after searching for the part online, he determined that it was temporarily
    out of stock.

[3]

Based on this evidence, the appellant was
    committed to stand trial on the charges under ss. 95(1) and 92(2); he was
    discharged under 86(1). The preliminary inquiry judge provided detailed reasons
    for his conclusions.

[4]

The appellants application to quash his
    committal by way of
certiorari
was dismissed. Having reviewed the expert
    evidence, the reviewing judge held: I am satisfied that there was a reasonable
    inference available to support committal in relation to the s. 2 issue of
    adaptation. He listed 15 reasons in support of his conclusion. The appellant
    appeals from this decision.

[5]

The reviewing judge committed no error in concluding
    that there was sufficient evidence to justify the appellants committal for
    trial on the disputed counts. Both the preliminary inquiry judge and the
    reviewing judge correctly applied the relevant substantive law (
i.e.
,
R.
    v. Covin
, [1983] 1 S.C.R. 725, and subsequent cases) within the framework
    for determining the sufficiency of evidence at a preliminary inquiry: see
R.
    v. Russell
, 2001 SCC 53, [2001] 2 S.C.R. 804. There was an evidentiary
    basis from which to infer that the defective handgun could be adapted for use
    as a firearm within a reasonable time, having regard to the nature of the
    offence charged.

[6]

The appeal is dismissed.

J.C. MacPherson J.A.

G. Pardu J.A.

G.T. Trotter J.A.


