|
Criminal - Firearms (2). R. v. Al-Gburi
In R. v. Al-Gburi (Ont CA, 2026) the Ontario Court of Appeal considered criminal firearms law, here respecting the definition of a firearm, and offences for possession [CCC 95 'Possession of prohibited or restricted firearm with ammunition']:[1] Section 2 of the Criminal Code, R.S.C. 1985, c. C-46, defines a firearm as a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily harm or death to a person. In this appeal, Abdulrazzaq Al-Gburi challenges his convictions for firearm-related offences, including unauthorized possession of a prohibited or restricted loaded firearm contrary to s. 95 of the Code, possession of a firearm while prohibited by order contrary to s. 117 of the Code and possession of ammunition while prohibited by order contrary to s. 117 of the Code. He also challenges the sentences imposed.
....
[37] To be convicted of an offence involving a firearm, the firearm must be real in the sense of being operable or functioning, rather than being an imitation or a non-functioning weapon.[3] Section 2 of the Code defines “firearm” to mean 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”.
[38] A finding that the accused was in possession of a firearm within the meaning of s. 2 is not dependent on the recovery or firing of the alleged firearm. Such a finding may be based on circumstantial evidence, as long as on the totality of the evidence the accused’s guilt is the only reasonable conclusion available: R. v. Wills, 2014 ONCA 178, 308 C.C.C. (3d) 109, at para. 50, aff’d 2014 SCC 73, [2014] 3 S.C.R. 612; R. v. O.A., 2022 ONCA 565, at para. 10, citing Villaroman; R. v. Brezi, 2024 ONCA 530, at para. 38.
....
2. Was there a gap in the evidence that prevented a conviction for the s. 95 offence?
[50] Section 95 makes it an offence to possess, in any place, “a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm”. Exceptions exist where the person has an authorization or licence to possess the firearm at that particular place and a registration certificate for the firearm, or where they are using it under the supervision of a person who is authorized to have the weapon and are using it in the manner of that authorization. The exceptions are inapplicable in this case.
[51] The appellant argues that even if the finding that the appellant possessed a firearm as defined by s. 2 of the Code was reasonable, the s. 95 conviction cannot stand because the trial judge failed to consider the reasonable alternative that the ammunition in the gun was not capable of being fired from the firearm.
[52] I reject this argument.
[53] The appellant relies on St-Pierre v. R., 2024 QCCA 518, in which the Quebec Court of Appeal reversed a conviction under s. 95(2), but the case is not analogous. The error identified by the court in that case related to whether a sawed-off .22 calibre rifle, found in a shelf on a trailer during a search, was a firearm as defined in s. 2 of the Code at all. The rifle had not been tested to show it could fire; the trial judge erred in concluding it was a firearm, which is a prerequisite for a s. 95(2) conviction, without sufficient evidence. The court cautioned that a gun being loaded or near ammunition cannot independently establish that a gun is functional, which is a required element of the definition under s. 2 of the Code.
[54] In this case, prior to the finding on s. 95(2), the trial judge found that the firearm met the definition in s. 2 of the Code, meaning that he concluded it was operational or functional. As noted above, the trial judge did not make this finding on the sole basis that there was ammunition in the gun, but from a variety of considerations including the way the appellant removed the magazine to display the ammunition after being asked if the gun was real. The additional requirement in s. 95(2), that the (operational) firearm was loaded with ammunition was apparent from the video. The trial judge stated: “we see the magazine with cartridges being removed so while on camera and before the removal, the accused was in possession of a loaded firearm”.
[55] The absence of an explicit finding that the ammunition in the (operational) gun was the type that could be fired from it does not make the s. 95(2) unreasonable or unsupportable. The trial judge’s reasons responded to the arguments at trial; defence counsel did not argue that even if the firearm met the s. 2 definition, the ammunition in it could not be fired. Nor was there any evidence, such as the ammunition not fitting the magazine or the magazine not fitting the firearm, to suggest this was the case.
[56] The trial judge found that the appellant showed that the gun was loaded with ammunition “in response” to her question about whether the gun was real. This finding, which was available to the trial judge on the evidence before him, supported the inference that the ammunition could be fired from it—otherwise, why show it? In these circumstances, the alternative inference that the operational firearm was loaded with ammunition that fit, and that the appellant chose to display, but that could not be fired, is speculative.
|
