



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bienvenue, 2016 ONCA 865

DATE: 20161117

DOCKET: C61239

Hoy A.C.J.O., Doherty and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marvin Allan Bienvenue

Appellant

Howard L. Krongold, for the appellant

Peter Fraser, for the respondent

Heard and released orally:  November 10, 2016

On appeal from the conviction entered on March 18, 2015
    by Justice Catherine A. Kehoe of the Ontario Court of Justice, and the sentence
    imposed on June 25, 2015.

ENDORSEMENT

[1]

The appellant was convicted of five offences in relation to his
    possession and intent to sell a single handgun on or about February 9, 2013. 
    He was also convicted of weapons trafficking on or about April 15, 2013
    contrary to s. 99 of the
Criminal Code
 count seven on the information.

[2]

He was sentenced to three and one-half years imprisonment on each of
    the five counts arising out of the February 9, 2013 incident, to be served concurrently,
    and to three years imprisonment on count seven, to be served consecutively. 
    He has abandoned his appeal of the sentence imposed.

[3]

The appellants primary ground of appeal is that the trial judge erred
    in law in relation to count seven when she found that he committed the offence
    of weapons trafficking because he agreed to purchase a gun.

[4]

The offence of weapons trafficking is created by s. 99 of the
Criminal
    Code
.  It provides that an unauthorized
transfer
of a firearm is an offence. Transfer is defined by s. 84(1) as meaning to
    sell, provide, barter, give, lend, rent, sent, transport, ship, distribute or
    deliver.  The Crown concedes, and we agree, that agreeing to purchase a
    firearm does not constitute a transfer of the firearm and that count seven
    should be quashed.

[5]

In
Greyeyes v. The Queen
(1997), 116 C.C.C. (3d) 334 (S.C.C.), the
    Supreme Court held that Parliament intends to distinguish between traffickers
    and mere purchasers of illegal drugs and that purchasing an illegal drug does
    not constitute trafficking for the purpose of s. 2(1) of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19.  The definition of transfer
    in s. 84(1) of the
Criminal Code
and the definition of traffic in
    the
CDSA
are substantially similar. Moreover, in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras.
    141-147, the Supreme Court characterized  s. 99 of the
Criminal
    Code
as a weapons trafficking
    offence
The reasoning in
Greyeyes
supports the conclusion
    that transfer  in s. 84(1) does not include offer to purchase a firearm.

[6]

The appellants second ground of appeal is that the trial judge erred by
    failing to stay three of the five convictions arising out of the February 9,
    2013 incident pursuant to the
Kienapple
principle:
Kienapple v.
    The Queen
(1974), 15 C.C.C. (2d) 524 (S.C.C.).  The appellant was
    convicted of the following five offences in relation to that incident:

·

Count
    one  offering to transfer the firearm without legal authorization,
Criminal
    Code
s. 99;

·

Count
    two  weapons possession for a dangerous purpose,
Criminal Code
s. 88;

·

Count
    three  unauthorized possession of a prohibited or restricted firearm,
Criminal
    Code
s. 91;

·

Count
    four  possession of a restricted firearm with readily accessible ammunition,
Criminal
    Code
s. 95; and

·

Count
    six  possession of a firearm for the purpose of trafficking,
Criminal Code
s. 100.




[7]

All of the counts relate to the same firearm.  The appellant submits
    that counts one, two and three should be stayed.  The Crown concedes, and we
    agree, that the convictions on counts two and three should be stayed.  They are
    subsumed by count four.

[8]

The remaining issue on this appeal is whether
Kienapple
requires that count one or count six should also be stayed.

[9]

The
Kienapple
principle provides that where the same
    transaction gives rise to two or more convictions on offences with
    substantially the same elements, the accused should be convicted only of the
    more serious offence.  It is designed to protect against undue exercise by the
    Crown of its power to prosecute and punish.  It applies where there is both a
    factual and a legal nexus between the offences.  The requisite factual nexus is
    established if the charges arise out of the same transaction.  The legal nexus
    is established if the offences constitute a single criminal wrong:  see
R.
    v. Rocheleau
, 2013 ONCA 679, at para. 24.

[10]

The Crown argues that the requisite factual and legal nexus is not
    present in this case.

[11]

It submits that count six is not duplicative of count one in the
    circumstances of this case.  It says that the
actus reus
of count six was
    the appellants possession of the firearm as far back as at least February 6,
    2013, when the appellant moved it from inside his house to his backyard, whereas
    the
actus reus
of count one was his offer to sell the weapon on
    February 9, 2013.  It argues that it should be inferred from the trial judges
    finding that the appellant was fully entrenched in the drug and firearms trade
    that his purpose for possessing the firearm, throughout that time, was to sell
    it.  Therefore, it submits the offences did not overlap precisely in time and
    it is open to this court to maintain convictions on both counts one and six.

[12]

We reject these submissions.

[13]

The trial judge found, at para. 295 of her reasons, that the appellant
    was in possession of the firearm on February 9, 2013 for a dangerous purpose,
    i.e. for protection within the drug trade
or
to
    transfer it.  On February 9, 2013, which was the day after the police executed
    a search warrant on his home, the appellant texted a friend about selling the
    gun that he had hidden in his backyard.  At para. 298 of her reasons, the trial
    judge stated that she had no doubt, based on that text message, that
on February 9, 2013,
the appellant possessed the handgun
    for the purpose of a transfer.

[14]

In light of these findings, the Crowns argument fails.

[15]

We are satisfied that the record supports findings of guilt on both
    counts one and six.  The potential sentence for each is the same.  We accept
    the Crowns position that it is appropriate to stay the conviction on count
    six.




[16]

In the result, an acquittal shall be entered on count seven and the
    appellants total sentence shall be reduced by three years.  Counts two, three and
    six shall be stayed.

Alexandra
    Hoy A.C.J.O.

Doherty J.A.

K. van Rensburg J.A.


