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Criminal - Firearms. R. v. Bzezi
In R. v. Bzezi (Ont CA, 2024) the Ontario Court of Appeal considers evidence relevant to the determination of a 'firearm', here as it relations to the "7-year mandatory minimum sentence that the appellant received as a result of s. 344(1)(a)(ii)":[37] The appellant raises two grounds of appeal on his sentence appeal. First, he argues that the trial judge erred by finding that the handgun that Mr. Perkins described the appellant using during the robbery, which was never recovered by the police, was a “firearm” within the definition in s. 2 of the Criminal Code. This definition, among other things, requires proof that the gun was capable of being fired. Since the trial judge’s finding that the gun was a firearm triggered the 7-year mandatory minimum sentence that the appellant received as a result of s. 344(1)(a)(ii) of the Code,[1] the appellant argues that if the trial judge erred on this issue, his sentence should be reduced.
[38] It is well-settled that the question of whether a gun is a “firearm”, rather than merely an imitation gun or a real but non-functioning weapon, can be determined circumstantially: see R. v. Richards (2001), 2001 CanLII 21219 (ON CA), 50 W.C.B. (2d) 244 (Ont. C.A.), at para. 4; R. v. Charbonneau (2004), 2004 CanLII 9527 (ON CA), 61 W.C.B. (2d) 301 (Ont. C.A.), at para. 3; R. v. Dillon, 2018 ONCA 1085, at para. 18. In R. v. O.A., 2022 ONCA 565, at para. 10, this court explained:As held in R. v. Villaroman, where a verdict is based on circumstantial evidence, the question on appeal is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”. There are other cases in which this court has upheld a finding that an accused used or was in possession of a firearm, even where the firearm was never recovered. In such cases, the court looked at whether the trial judge assessed the totality of the evidence, and whether the trial judge could have been reasonably satisfied that the accused’s guilt was the only reasonable conclusion available on that evidence. [Citations omitted]. [39] In the case at bar, Mr. Perkins’s evidence was that the gun the appellant brandished was loaded with real bullets, which the appellant demonstrated to Mr. Perkins by pulling out the clip, and by racking the slide to eject an unfired bullet and cartridge, which Mr. Perkins later found and gave to the police. The trial judge also noted that the appellant “had clearly had access to firearms prior to this occasion”, because at the time of sentencing he was already serving a sentence for having possessed a loaded firearm in April 2014, which was a little more than a year before he robbed Mr. Perkins in June 2015.
[40] In these circumstances, I am satisfied that the trial judge did not commit any reversible error by drawing the inference that the gun was a real firearm. In this regard, I do not agree that the conclusion the trial judge reached is at odds with the approach taken in the Alberta cases cited by the appellant, R. v. Osiowy, 1997 ABCA 50, 113 C.C.C. (3d) 117, and R. v. Fielder, 2019 ABQB 211. In Osiowy, where the Court of Appeal of Alberta found that the circumstantial evidence fell short of proving that the gun used in a robbery had been operable, the court noted at para. 21 that:The accused did not load the weapon in front of the victim, cock the weapon, or otherwise use the weapon in such a way that its operability could be inferred. In contrast, Mr. Perkins testified that the appellant did some of these very things, in order to demonstrate for him that the gun was real and operational. . 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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