R. v. James, 2011 ONCJ 125

Citation: R. v. James , 2011 ONCJ 125 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- MARK JAMES REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with carrying a concealed weapon, a BB gun contrary to

section 90 of the Criminal Code . 2 . The evidence can be briefly stated: Police officers responding to a robbery call saw three young men, including the defendant, who “vaguely matched” the description of the suspect(s). One officer waved the defendant over to the police car while the other officer engaged the other two men. The defendant told the officer that he had something he needed to tell him, presumably out of the hearing of the others. Once seated in the police car the defendant said that he had a BB gun on him. He was taken out of the car and searched.

A BB air pistol was found in his waistband concealed by his hoodie sweatshirt. The pistol had many BB’s in the compartment in the handle and was equipped with a CO2 cartridge. 3 . The pistol was not test fired. No expert or other evidence was called respecting its operability or potential to cause bodily harm. 4 . No attempt was made to link the defendant or the BB gun to the earlier robbery. No evidence was called by the Crown with respect to the use or intended use of the BB gun. No defence evidence was called. 5 . The defence raises two arguments: a.

The Crown has not proven that the BB gun was a firearm because there was no or insufficient evidence that the gun was capable of being fired or that, if fired, the gun was capable of causing serious bodily harm or death. b. The Crown has not proven that the BB gun was a weapon, even if it has been proven to be a firearm. It is only necessary to deal with the second argument. Analysis:

6. The Criminal Code contains the following

definitions in

section 2: “firearm” means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causingserious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adaptedfor use as a firearm; “weapon” means 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; Weapon: 7. The defendant points out that the definition of ‘firearm” is based on the item being a barreled “weapon”. It is argued that this ineffect creates a definitional loop that requires that the Crown prove that the item, even if otherwise a “firearm” is also a weapon withinthe meaning of paragraphs

a) or

b) of the definition, that is, broadly speaking, that it was used or intended for use for a feloniouspurpose. If such prove is necessary, the Crown concedes that the prosecution must fail. 8. This argument was rejected by the Court of Appeal in R v Formosa (1993) 79 CCC 3d 9 a brief judgment in which the Court said: In our view, all objects which are firearms as defined in s. 84 come within the definition of "weapon" found in s. 2 of the Criminal Code:R. v. Felawka (1991), (BC CA), 68 C.C.C. (3d) 481 at 493 (B.C.C.A.).

Indeed the word "firearm" in s. 84 of theCriminal Code is defined in part as "any barrelled weapon". It follows that to be a "weapon" as defined in s. 2 of the Criminal Code, afirearm need not come within the terms of paragraphs (

a) or (

b) of the definition. Were s. 2 to be interpreted as the appellant contends theconcluding words of the definition which refer specifically to firearms as defined in s. 84 of the Criminal Code would be renderedredundant. 9. Formosa was specifically approved of and followed by the majority of the Supreme Court of Canada in R v Felawka (SCC), [1993] 4 SCR 199.

However, in R v McManus (ON CA), [2006] OJ No 3175 the Court of Appealaccepted the definitional loop argument and held that (para 5): The definition of "firearm" in the Criminal Code stipulates that a firearm is "a barrelled weapon ..." On the facts of this case, in our view,the trial judge erred in failing to consider whether the pellet gun seized from the appellant is a weapon prior to accepting the Crown'ssubmission that it is a firearm.

Further, in light of the record at trial and the trial judge's finding that there was no evidence that theappellant used the pellet gun for a purpose dangerous to the public peace, in our view, a finding that the pellet gun was a weapon was notavailable 10. Mcmanus has been cited in only one decision, that being R v Labreque 2010 ONSC 754 , [2010] OJ No 389(Sup Crt),which interpreted McManus as establishing a different rule where the item in question is a pellet gun as opposed to a ‘real” gun.

TheCourt in Labreque concluded (para 9): It seems to me that while the majority view in Felawka that a firearm is a weapon applies when the thing in issue is a real powder-firedbullet-shooting gun, when it is something like a spring-loaded or air-charged pellet gun, something designed for recreational purposesother than for intimidating, threatening, causing injury to or killing someone, then in order to find that it is a 'barrelled weapon,' theremust be evidence that its use or intended use on the facts of the case was for such a purpose.

In effect, that is what Bordeleau J. held indismissing the charge, saying that there was '... no evidence that the accused person in this case, Labrecque, "used the pellet gun for apurpose dangerous to the public peace. That is consistent with the holding in Mcmanus as well. 11. With respect, I have difficulty accepting that McManus and Labreque are consistent with Felawka or that there is any pellet gunexception to the Felawka

interpretation of these statutory

definitions. This is particularly so when one considers that Formosa was apellet gun case. However, notwithstanding my own misgivings, I believe I am bound to follow McManus and Labreque as authority thatis binding upon me. 12. Accordingly I am obliged to hold that the Crown has failed to prove that the item in question was a “weapon” within the meaning ofparagraphs (

a) or (

b) in the definition in the Criminal Code. The charge must be dismissed. March 3 2011 B Duncan J. Mr. Haughten for the defendant Mr Henderson for the Crown