R v Dillman, 2021 ABQB 363

Court of Queen’s Bench of Alberta Citation: R v Dillman, 2021 ABQB 363 Date: 20210510 Docket: 190874768Q2 Registry: Peace River Between: Her Majesty the Queen Crown - and - Clinton Dillman and Joshua Lyons Accused _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice E.J. Simpson _______________________________________________________ Introduction [ 1 ] In the trial of this matter, an evidentiary issue arose as to whether the Crown or the Defence bears the onus with respect to the words “where it is proved” in section 84(3) (d)(

i) and (ii) of the Criminal Code, RSC 1985, c C-46 . The item in question was a sawed off .22 calibre rifle. [ 2 ] In my oral decision in this trial, I advised I would provide a written decision on that issue to supplement my oral reasons.

This decision deals with that evidentiary issue and may be read in conjunction with my oral reasons. Application of s 84(3)(d)(

i) and (ii) [3] That subsection reads as follows: 84(3) For the purposes of sections 91 to 95, 99 to 101, 103 to 107 and 117.03 of this Act and the provisions of the Firearms Act, thefollowing weapons are deemed not to be Firearms: ... (

d) any other barrelled weapon, where it is proved that the weapon is not designed or adapted to discharge (

i) a shot, bullet or other projectile at a muzzle velocity exceeding 152.4 m per second or at a muzzle energy exceeding 5.7 Joules, or (ii) a shot, bullet or other projectile that is designed or adapted to attain a velocity exceeding 152.4 m per second or an energy exceeding5.7 Joules. [4] This subsection applies to offences related to the possession, trafficking, transferring, and importing and exporting of certainFirearms, and the failure to report, or the false reporting of the loss, finding, or destruction of those Firearms - those Firearms beingprohibited Firearms, restricted Firearms and non-restricted Firearms without a licence or registration certificate.

It deems certainbarrelled weapons which discharge a bullet at a velocity of less than 152.4 m/sec or about 500 ft/sec either at the muzzle or at any pointthereafter, or have a muzzle energy or flight energy less than 5.7 Joules not to be Firearms. [5] Therefore, in this case notwithstanding my conclusion to this point regarding the application of the definition of firearm tothis barrelled weapon this

section may deem the sawed off .22 calibre rifle not a firearm. [6] This subsection thereby provides an exemption. It exempts anyone possessing a low powered barreled weapon from therequirement of holding a license or other authorization which may be required for a Firearm. What this means is that any person can ownany barrelled weapon that fires a shot, bullet or other projectile without a licence so long as it does not exceed the velocity and energy setout in the subsection. The point of this exemption is not to sweep in as a Firearm low-powered barrelled weapons such as BB guns, pelletguns and the like.

What Parliament has done has set a standard below which any owner of low-powered barrelled weapons can enjoy theuse of the barrelled weapon without bothering to acquire a Firearm’s licence. The Onus – Crown or Defence [7] The Defence and Crown dispute who has the onus to prove the velocity or energy. [8] In respect of defences, the law is clear: the accused need not prove a defence. As the SCC stated in R v Holmes, (SCC), [1988] 1 SCR 914 at 935, “all that the accused need do is point to some evidence which supports the defence.

The Crown isthen required to disprove the defence beyond a reasonable doubt.” The law seems to be more complex in respect of exceptions andexemptions. [9] Ordinarily, in a trial, the Crown need not disprove an exemption. [10] As the BC Court of Appeal explained in R v Goleski, 2014 BCCA 80, aff’d 2015 SCC 6, [2015] 1 SCR 399, the shift to placethe onus on the accused respecting exceptions dates back to 1848 with the enactment in England of

An Act to facilitate the Performanceof the Duties of Justices of the Peace out of Sessions, within England and Wales, with respect to

summary Convictions and Orders, 11 &12 Vict, c 43, s 14. It was first enacted in Canada by

An Act respecting the duties of Justices of the Peace out of Sessions, in relation tosummary convictions and orders, SC 1869, c 31, s 4. It was introduced to the Criminal Code as s 852 (The Criminal Code of Canada,1892, SC 1892, c 29), and eventually became s 794 (2), which was repealed in 2018 (An Act to amend the Criminal Code and theDepartment of Justice Act and to make consequential amendments to another Act, SC 2018, c 29, s 68). Notably, this provision appliedonly to offences prosecutable by

summary conviction. [11] It seems that this principle entered the common law, and thus neither the limitation contained in former s 794(2), nor its repealpreclude the application of this principle to indictable offences.

In R v Edwards, [1974] 2 All ER 1085, [1975] QB 27, 59 CrAppR 213(CA), the English Court of Appeal addressed the question of whether the Crown must prove a lack of exceptions contained in a statute.Lawton LJ stated [at 1095 ER]: In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensurethat justice is done both to the community and to the defendants, has evolved an exception to the fundamental rule of our criminal lawthat the prosecution must prove every element of the offence charged.

This exception, like so much else in the common law, washammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of

an act save inspecified circumstances or by persons of specified classes or specified qualifications or with the licence or permission of specifiedauthorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge islaid.

If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then theprosecution can rely upon the exception. [12] More importantly, our Court of Appeal stated the following in R v Thompson, 1992 ABCA 259 (at paras 9-10): While the Criminal Code does not provide for the burden of proving exceptions in indictable offences, it does address their pleading (s.

581) where the common-law rule seems to be continued. While s. 794(2) is located in

Part XXVII of the Criminal Code which guidessummary conviction procedure alone, the rule, even s. 794(2) itself, has been relied upon in prosecutions by indictment in Canada. Thisis so even though the exception-onus provision is not reproduced in those Parts of the Criminal Code relating to procedure in trials byindictment. The sense and purpose of the exception-onus rule is clear. I am not persuaded that its application in Canada should berepressed simply because of the place of its statutory expression in the Criminal Code. In R. v. Volk 1973 ALTASCAD 66, [1971] 12 C.C.C. (2d) 395 (Alta. App.

Div.), the Appellate Division held that the burden of proof ofestablishing the statutory exception to the indictable offence of gross indecency - that the consenting complainant was 21 years old -rested on the defence. A similar result was reached in R. v. Duchesne [1976] 36 C.R.N.S. 365 (Que. C.A.), where the court addressed theproof burden escorting the statutory age exception to the indictable offence of buggery. The rule applies in prosecutions by indictment inEngland where, as in Canada, there is express statutory provision for provisos and exceptions only in

summary proceedings (see theEnglish legislation quoted in Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992) p. 88 n). ... [13] In accord, see R v Ali, 2015 BCCA 333 at para 30. [14] I am aware of only one reported case where the onus in s 84(3) was considered. In R v Binns, 2002 OJ No 5153, 2002Carswell Ont 4617, an oral decision from the Ontario Court of Justice, Bellefontaine J stated (at paras 2-3, OJ): This

section applies to a limited selection of firearms offences. It does not appear to apply to any offences where a firearm is actuallyused but applies to many of the possessory and licencing provisions affecting firearms and weapons. It does apply to the three counts inquestion before me today. Counts four and six have as an essential element that the pistol be a firearm whereas count three does notrequire it to be a firearm but simply a weapon, although the Crown has particularized the pistol to be a handgun which for the purposesof Part Three of the code it can only be if it is also a firearm. The Crown submits in response that

section 84 only applies to barrelledweapons not otherwise defined as firearms. Respectfully I can only see the

section to make sense as creating an overriding exemption forall barrelled weapons of low muzzle velocity to exempt them from the onerous firearms controls. Although they may maintain theirstatus as weapons for the offences applicable to weapons of a general sort I view them as not intended to be controlled at the same levelas the more dangerous firearms. The Crown secondly submits that the

section is a qualification or exemption that the Crown need notprove. The wording of the

section where it is proved arguably places an evidentiary burden on the defence that may reasonably be placedon the defence as cases may exist where the items is proven by circumstantial evidence to meet the

Section Two definition of a firearmbut has not been seized by the police to be tested for

section 84.3 compliance or 84.2 compliance. In such circumstances if the Accusedalone had access to the firearm the muzzle velocity would be information that the defence alone could obtain. No cases have beenprovided by the Crown or the defence dealing with the application of the

section or who bears the burden of proof on the point. R. v.Ledoux provided by the defence mentions the issue in obiter but is not helpful in any way. I’ve been unable to find any case dealing withthe issue. To compound matters the Crown has proceeded by indictment and cannot avail itself of section 794(2) which, in

summaryconviction proceedings, places the burden on the defence to establish the application of a qualification or exemption. The absence of acomparable

section for indictable matters suggests the Crown must bear the burden of proving the point when it has proceeded byindictment. The narrow nature of the rule at common law has been noted by our Court of Appeal in R. v. HP and by commentators suchas McWilliams in Canadian Criminal Evidence. Indeed in dealing with the many variations of wording used to create evidential burdensand reverse onuses none as oblique or ambiguous as this

section are mentioned by McWilliams. Absent clear language or statutory orcommon law authority, it is inconsistent with the presumption of innocence to impose the burden on the defence to prove the point. Iregret the bizarre

interpretation this creates where opposite results occur depending on the whim of the Crown in making their election.However the result can be justified. In the event the Crown wants the benefit of the increased penalty available when proceeding byindictment they must be prepared to forego the evidentiary shortcuts available in

summary conviction proceedings. For the foregoing reasons the Crown bears the burden of proving the firearms velocity for the applicable sections whereby a firearm isan essential element of the offence….(emphasis) [15] In reaching this anomalous conclusion or “bizarre

interpretation”, Bellefontaine J was bound by the narrow approach set out inR v H (P) (2000), (ON CA), 143 CCC (3d) 223 at para 14 (OntCA). In contrast, in Alberta, the law is set out inThompson and Volk. First Principles [16] Given the lack of authorities, I turn to first principles. [17] The law generally imposes an onus on the Accused to invoke the exemption provided in s 84(3) and to provide an air ofreality to the claim that the weapon at issue is not in fact a “Firearm”.

After all, the Accused will be in the best position to know aboutthe existence of any authorizations, or to show that the weapon is an antique, a starter pistol, or a device associated with animals. Thisconclusion is consistent with Thompson and Volk. [18] However, the specific exemption set out in s 84(3)(

d) gives me pause. Parliament adopted a highly technical definition. Thisdefinition frequently comes up in cases involving pellet guns and air guns. The determination of pellet guns’ muzzle velocity iscommonly referred to as “the pig’s eye test”, because the muzzle velocity listed in s 84(3)(

d) is required for projectiles to penetrate thehuman eye and pigs’ eyes are similar in size and composition to human eyes. (R v Crawford, 2015 ABCA 175 at paras 24, 35; R v Dunn,2013 ONCA 539 at paras 8, 40). [19] Considering the state of most accused, it is unlikely that they would be able to have access to, or afford the requisite testing.Placing the burden of measurement of velocity on the Accused strikes me as being akin to requiring an accused to provide evidence withrespect to the measurement of electricity or the torque of an engine. Requiring the Accused to present such evidence would impose anundue and unreasonable burden on the Accused.

[ 20 ] My conclusion in respect of s 84(3)(

d) is reinforced by the inclusion in the stem of this provision of the words “where it is proved that the weapon is not designed or adapted to discharge ”. This wording appears to anticipate this as a part of the element of a Firearm, and that it is the Crown who has proven the weapon’s muzzle velocity or projectile velocity. [ 21 ] Finally, I note that s 84(3) does not contain the usual phrases which denote an onus on the Accused, such as “absent evidence to the contrary” or “the proof of which lies with the Accused”.

Conclusion [ 22 ] In sum, I agree with Bellefontaine J that, absent clear statutory language, it is inconsistent with the presumption of innocence to impose the burden on the Accused to prove muzzle velocity or projectile velocity. I conclude that it is the Crown who bears the burden of proof in respect of s 84(3)(d). [ 23 ] I am aware of logistical problems commonly besetting the Crown causing the Crown to experience significant delays in obtaining certificates from government labs in a timely manner.

Nevertheless, that does not relieve the Crown of the burden to prove all elements of a charge. [ 24 ] Therefore, notwithstanding that the sawed off .22 calibre rifle, otherwise meets the definition of Firearm, having reached the conclusion that the Crown must prove the velocity or energy as part of proving the barrelled weapon as a Firearm and not having that evidence that proof of the element in the first three charges in the indictment fails. Heard on the 27 to 29 th day of April, 2021. Dated at the Town of Peace River, Alberta this 7th day of May, 2021. E.J. Simpson J.C.Q.B.A.

Appearances: James Brydon for the Crown Tina Lind for the Accused Clinton Dillman Kevin Gubbins for the Accused Joshua Lyons