Sep 28, 2014

When is a "Firearm" not a "Weapon"?

R. v. Dunn, 2013 ONCA 539 (CanLII)

On November 5, 2014 the Supreme Court will hear argument in the matter of R v Dunn, 2013 ONCA 539. The appeal will resolve the age-old question (or at least a burning one in Ontario) – when is a “firearm” not a “weapon”?

Christopher Dunn was being watched by some investigators on behalf of the Workplace Safety Insurance Board. The investigators noted that Dunn met with another man; during that meeting Dunn pulled out, what appeared to be, a pistol from his jacket and seemed to be pointing it at the other man. The pistol was put away and Dunn left. The investigators contacted the police and alerted them to what he had seen.

The police later attended at Dunn’s trailer and ultimately seized what turned out to be a Crosman Pro77 airgun that fires .177 calibre spherical BBs propelled by means of compressed air from a canister. The airgun was determined to be functional and was loaded with a partly used CO2 cartridge; there was no ammunition in the magazine.

A firearms examiner who gave expert evidence agreed in cross-examination that this type of airgun can be purchased without the purchaser’s having to produce any documentation, as long as the muzzle velocity does not exceed 500 feet per second (“ft./s.”). The respondent’s airgun had an average velocity of 261.41 ft./s.
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 pig’s eye study, which used pig’s eyes because of their similar size and composition to the human eye. According to the study’s 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 respondent’s airgun thus exceeded both thresholds.
The expert further testified that this particular airgun is built to closely resemble a Steyr MA1 9mm pistol, a conventional semi-automatic handgun. [@7-9]

Dunn was charged with various offences including handling a firearm (s 86), pointing a firearm (s 87), carrying a weapon for dangerous purpose (s 88) and carrying concealed weapon (s 90).

In considering those charges the trial judge noted 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”. Citing McManus, 2006 CanLII 26568 (ONCA) the trial judge held that if a the firearm “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” [@11]. On the facts the trial judge “held that the Crown had failed to prove that the airgun was used or intended to for use in any of the ways specified in s. 2. It was therefore not a weapon, and could not be a firearm” [@13]. The Crown appealed.

On appeal the Crown sought to argue that McManus, was wrongly decided and contrary to binding authority, namely Felawka, 1993 CanLII 36 (SCC). The Court of Appeal agreed to sit five members in order to consider that issue.

In considering the appeal the court noted that the “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” [@14]. This is evident from a review of the definition of weapon in the Code which states that it is 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.

After reviewing Felawka and McManus the court concluded that the Crown need not prove that an object which is a firearm must also fall within paragraph (a) or (b) of the definition of weapon. To the extent that McManus held otherwise it was wrongly decided.

Not only was this conclusion reached on the basis of the binding decision in Felawka but also on the basis of statutory interpretation.

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. [@66].

The Supreme Court is now set to consider the issue. The Court of Appeal’s ruling is compelling. Not only did it conclude that McManus conflicted with Felawka but based on a thorough statutory interpretation analysis, the court came to the same conclusion. But, the courts are not Dunn yet considering this issue…stay tuned.