Rarotonga, 2010

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Litigation Opinions
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Criminal - Firearms

. R. v. Donawa

In R. v. Donawa (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal of what constitutes a 'firearm' [under CCC s.82(1)]:
[1] ... The central issue in the appeal is whether the trial judge was correct in his finding that the handgun in question was not a firearm as defined in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46.


[7] The issue raised here is directly addressed in R. v. Watkins (1987), 1987 CanLII 2867 (BC CA), 33 C.C.C. (3d) 465 (B.C.C.A). In that case, the accused was charged with firearms offences for possession of a handgun that was found without a magazine. The issue was whether the fact that the handgun did not have a magazine meant that the handgun was not a firearm under the definition contained in the Criminal Code.[1] McLachlin J.A. rejected that submission. She said, at para. 40:
If the gun is complete and capable of firing when loaded, then, in my opinion, it should be considered a firearm under s. 82(1) of the Criminal Code.
[8] The respondent urges us not to follow the reasoning in Watkins. No persuasive argument is advanced why we should adopt a different approach than that enunciated by the British Columbia Court of Appeal. The analysis and conclusion in Watkins are sound. Watkins is also consistent with the seriousness that Parliament has indicated should be applied to offences involving the use and possession of handguns.
. R. v. Morris

In R. v. Morris (Ont CA, 2023) the Court of Appeal considered firearm technical 'adaptability' when deciding whether an otherwise inoperable firearm met the legal definition [CCC s.2]:
[9] The sole issue on the conviction appeal is whether the trial judge erred in law by finding that the appellant’s handgun, which was inoperable and required a new firing pin, fell within the definition of firearm in s. 2 of the Criminal Code:
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; (arme à feu): Criminal Code, R.S.C. 1985, c. C-46.

(3) Analysis on the Conviction Appeal

[10] The trial judge identified the issue of whether the appellant’s inoperable handgun could be adapted for use as a firearm. She then analyzed the evidence of Detective Meehan regarding the steps he took to make the gun operable in the context of the caselaw that explains the meaning of “can be adapted” in the definition of firearm in s. 2 of the Criminal Code.

[11] First, in R. v. Covin, 1983 CanLII 151 (SCC), [1983] 1 S.C.R. 725, the Supreme Court explained that where an inoperable gun is used in the commission of an offence, such as robbery, it must be able to be adapted for use in the commission of that offence to come within the definition of “firearm”. Subsequent decisions have held that where the offence is possession of the gun itself, the adaptation period is extended because the gun does not have to be usable on the spot. The evil that is targeted by the section is possession that is dangerous to the public.

[12] The trial judge referred to the following paragraph from R. v. Ferguson (1985), 1985 CanLII 3534 (ON CA), 20 C.C.C. (3d) 256 (Ont. C.A.), at p. 262:
Because of the nature of the continuing offence of possession of a prohibited weapon under s. 88(1) [now s. 91(1)], and having regard to the purpose of the subsection, we are all satisfied that the acceptable amount of adaptation and the timespan required to render the gun operable is longer than that required for a s. 83 offence [now s. 85], where the adaptation has to be made on the scene in order to support the charge of using a firearm during the commission or attempted commission of an indictable offence or during the flight thereafter.
[13] The trial judge also quoted from the Ontario Superior Court decision in R. v. Grant, 2006 CanLII 6209, where the court conducted a review of the caselaw and summarized the results as follows at para. 24:
The cases reviewed above suggest that where the evidence establishes that a gun can be made operational through the straight forward installation of readily available parts in a relatively short period of time, the courts are disposed to find it to be a firearm for the purposes of the offence of possession. By contrast, where the effort to make the gun operational requires special expertise, considerable time, or parts that are not readily available, the courts are less disposed to find it to be a firearm for purposes of that offence.

[21] On appeal, the appellant submits that the trial judge misapprehended and misapplied the legal test in reaching the above quoted conclusion.

[22] He argues that in arriving at this conclusion, the trial judge overlooked evidence of the need for expertise such as the number of Google searches the detective had to try, and the expertise he would have had to employ to conclude, for example, that he could use YouTube instructions for a different gun that looked like the appellant’s gun in order to disassemble it.

[23] He also argues that the case law requires that the missing part for the inoperable gun must be “easily obtainable” or “readily obtainable”. In R. v. Hasselwander, 1993 CanLII 90 (SCC), [1993] 2 S.C.R. 398, where the issue was whether a semi-automatic machine gun was capable of being converted to a fully automatic, Cory J. analogized to the purposive approach to the definition of firearm adopted by the court in Covin. In Hasselwander, the court held, at p. 416, that having “the potential to be readily converted to a fully automatic weapon” meant “in a relatively short time with relative ease”.

[24] The appellant submits that in this case, the needed firing pin was not “readily obtainable” because the detective only found a supplier based on a tip from the owner of a supply company whom he knew, and when he did order it, it took three weeks to arrive. He argues that the trial judge either overlooked this evidence or misapprehended it.

[25] I would not give effect to this argument.

[26] It is clear from the detailed reasons of the trial judge that she was fully conversant with the evidence and the test to be applied. She was aware that the process used by the detective did not result in a seamless and instant delivery of the replacement firing pin. However, given that the process involved the common practice today of using internet searches and YouTube instruction videos, together with some phone calls to locate the part, which was shipped from the U.S., the trial judge was entitled to conclude that the replacement part was readily available and that the time it took was a relatively short period of time: see e.g., R. v. Sebape, 2020 ONCA 475 (although the replacement firing pin was temporarily out of stock, there was sufficient evidence that the gun could be adapted for use as a firearm, within a reasonable time: at para. 5); R. v. Tarapaski, 2022 MBCA 74, 418 C.C.C. (3d) 364, at para. 33.

[27] I would therefore dismiss the conviction appeal.


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Last modified: 18-04-24
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