



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Emery, 2016 ONCA 204

DATE: 20160311

DOCKET: C57177

Feldman, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Emery

Appellant

Christopher Emery, acting in person

Zachary Kerbel, duty counsel

Matthew Asma, for the respondent

Heard: March 7, 2016

On appeal from the conviction entered on March 25, 2013
    by Justice John T. Lynch of the Ontario Court of Justice.

ENDORSEMENT

[1]

Christopher Emery appeals from his convictions for: unauthorized
    possession of a prohibited weapon (a Mauser handgun) (Count 2); 2 counts of
    possession of a firearm obtained by the commission of an offence; unauthorized
    possession of a firearm; and, failure to comply with a probation order.

The Amendment Issue

[2]

Duty Counsel assisting the appellant submitted that Count 2 wrongly
    charged the appellant with possession of a prohibited weapon, rather than a prohibited
    firearm. The Crown conceded the error and requested an amendment of the
    indictment.

[3]

Section 683(1)(g) of the
Criminal Code
, R.S.C. 1985, c. C-46,
empowers this
    court to amend an indictment where it considers it in the interests of justice,
    unless the court is of the opinion that the accused has been misled or
    prejudiced in his defence or appeal.

[4]

We are satisfied that the appellant was not misled or prejudiced. The
    case was prosecuted and defended on the basis that Count 2 was based on
    unauthorized possession of a prohibited firearm, not a prohibited weapon. 
    Furthermore, the appellant has not demonstrated  or even alleged  any
    prejudice in his defence or appeal.  Thus, it is in the interests of justice
    that the requested amendment be made.

The Issue on Appeal

[5]

The firearms in question (a rifle and a handgun) were stolen from a
    firearms collector in Cambridge and later acquired by the appellant. The
    appellant does not dispute the trial judges finding that he was in possession
    of the firearms and was wilfully blind as to their origin. However, Duty
    Counsel submitted that the trial judge erred in finding that the firearms were
    operable.

[6]

We disagree.

[7]

The owner testified that the firearms were fired in 1997 and have been stored
    since that time. The rifle was stored in a plastic box encased in foam, while
    the handgun was stored in a locked steel cabinet.

[8]

The owner was not cross-examined concerning the condition of the
    firearms or the conditions of their storage. There was no evidence to suggest
    that either of the weapons was, or could have become, inoperable given the
    passage of time. Photographs of the firearms viewed by the trial judge showed
    that the firearms were in good condition.

[9]

The trial judge explicitly recognized the burden on the Crown to prove
    that the firearms were operable.  He adverted to the evidence summarized
    above.

[10]

In
    all of these circumstances, we see no basis on which to interfere with the
    trial judges finding that the firearms were operable.

[11]

The
    appellant submitted that the trigger locks were not found where the police
    testified, but nothing follows from this. There is overwhelming photographic
    evidence that the appellant was in possession of the stolen firearms.

DISPOSITION

[12]

Accordingly,
    Count 2 in the indictment shall be amended to substitute firearm for
    weapon, and section 91(1) is substituted for 91(2).

[13]

The
    appeal is dismissed.

K. Feldman J.A.

E.E. Gillese
    J.A.

Grant Huscroft J.A.


