R. v. Griffith, 2016 ONCJ 826

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code . This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows: 539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY —

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry (

a) may, if application therefor is made by the prosecutor, and (

b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (

c) he or she is discharged, or (

d) if he or she is ordered to stand trial, the trial is ended. . . .

(3) FAILURE TO COMPLY WITH ORDER — Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on

summary conviction. CITATION: R. v. Griffith , 2016 ONCJ 826 DATE: September 20, 2016 Information No. 16-15000823 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. TAYLOR A. GRIFFITH R E A S O N S F O R R U L I N G BEFORE THE HONOURABLE JUSTICE G. SPARROW

On September 20, 2016 at TORONTO, Ontario APPEARANCES: E. Carrington Counsel for the Crown L. Giordano Counsel for T. Griffith ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Transcript Ordered: November 21, 2016 Transcript Completed: December 7, 2016 Notified Ordering Party: December 7, 2016

Legend [ sic ] – Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) – Indicates preceding word has been spelled phonetically. TUESDAY, SEPTEMBER 20, 2016 U P O N R E S U M I N G: ... MATTER BEGINS 11:15:35 a.m. ... SUBMISSIONS BY DEFENCE. R E A S O N S F O R R U L I N G SPARROW, J. (Orally): The accused in this preliminary inquiry is charged with several offences resulting from the search of his bedroom in his family home at 2135A Dufferin Street on January 31st, 2016.

The accused has conceded to committal on all charges, except those referring to possession of a handgun as he argues that the handgun found in his bedroom is not a handgun as defined in

Section 2 of the Criminal Code . Specifically he argues that the Crown has not proved that it was operational within the meaning of the definition in

Section 2 .

He contests committal on the count of possession of a firearm, knowing that the serial number has been defaced, on the definition of afirearm only. It was agreed that the gun is a prohibited weapon, a Jennings J-22, manufactured in the United States. For the purposes of thepreliminary inquiry, it was agreed that it was found in a box in the closet in his bedroom, as stated earlier. Ms. Judy Chin of the Centre of Forensic Sciences was qualified to provide expert evidence in the examination and identification offirearms, ammunition, and related components.

She explained that this broad category of expertise includes the classification of firearmsas prohibited or restricted in terms of the Criminal Code, and also includes the operational and mechanical assessment of firearms andtheir related components. She testified that initially she was able to dry fire the seized gun meaning that when she pulled the trigger the firing pin moved forwardby spring action, as was supposed to be the case. However, when she inserted a cartridge into the gun as received, she determined that itwas not in firing condition.

She testified that the single issue, or area, needing repair in order to make it operable - in other words, a gun that could fire cartridges -was the broken, or missing, breechface. She testified that there were two ways to address the broken or missing breechface in order to make the handgun operable, number 1,repair the breechface, or number 2, replace it by replacing the slide assembly which contains that part. Ms. Chin testified that the slide assembly could be easily removed from the seized gun. Even a pencil or pen could be used to do so.

Shethen testified that the breechface could be repaired by welding a thin piece of metal to the slide to serve as a breechface. She also saidthat the existing broken breechface could be repaired with a piece of hard plaster, although she did not attempt this message - or thismethod. Ms. Chin then testified that the Centre of Forensic Sciences had multiple Jennings J-22 handguns in its reference collection. She took theslide from one of the two identical models and put it into the seized gun and inserted the original fire pin in less than 10 minutes.

She testified that the slide assembly is not an illegal or controlled item in Canada; also, that YouTube videos on the internet explain howto strip this firearm and put it back together. Ms. Chin testified that the CFS usually first looks for parts from Canadian stores, such asEllwood Epps, Cabela, and Bass Pro Shops. The Centre of Forensic Sciences also uses Numrich Corporation, N-U-M-R-I-C-H, a U.S.supplier and one of the largest. Ms. Chin testified that shortly before this preliminary inquiry she called Ellwood Epps and was told that the slide needed was notcarried.

The model was made in the 1980s and the person she spoke to was not sure if the slide was still available. She called Cabela and was told that the Canadian store did not have it and the U.S. store did not have it in stock. A printout from the website of the U.S. company, Numrich, was filed. It showed that three of the correct slides were available for aprice of 25 dollars and 35 cents each. The website had a phone number for “outside Canada.” It claims to be the world’s largest supplierof firearms, parts, and accessories. Ms. Chin testified that she often uses Numrich in her work.

The leading case with respect to operability is Regina versus Ferguson (ON CA), [1985] OJ No. 141, (Ontario Courtof Appeal), which states at page 6; “Possession is a continuing offence. The evil that this

section was designed to prevent and the purpose of the

section was obviously tosuppress of the possession of devices, knives, or firearms which constitute a particular danger to the public. For example, silencers,switch-knives, or in the present case under Section 82(1)(

d) a sawed-off rifle which can be easily concealed because of its reducedlength. Because of the nature of the continuing offence of possession of a prohibited weapon under Section 88(1), and having regard tothe 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

Section 83 offence where the adaptation has to be made on the scene in order to support thecharge of using the firearm during the commission or attempted commission of an indictable offence, or during the flight thereafter.” (as read) Stinson, J., in another - excuse me, in another leading case, Regina versus Grant [2006] OJ No. 851, Stinson, J., (Ontario Superior Court)states; “The cases reviewed above suggest that where the evidence establishes that a gun can be made operational through the straight-forwardinstallation of readily available parts in a relatively short period of time, the courts are disposed to find it to be a firearm for purposes ofthe offence of possession.

By contrast, where the effort to make the gun operational requires special expertise, considerable time, orparts that are not readily available, the courts are less disposed to find it to be a firearm for the purposes of that offence.” Stinson, J., sites Then, J., in Regina versus Doyle (ON SC), [1992] 10OR 3rd 439, at paragraph 22; A contrasting case is Regina versus Doyle [1992] 10OR, as stated before. There the accused challenged his committal for trial onweapons charges on the ground that there was no evidence to support the committals.

At issue was whether the gun in question wasadaptable for use as a firearm. The gun was missing a part that was critical to its ability to be fired, but it could be restored to firingcondition if that part was replaced. There was no evidence that the missing part was readily available, if at all, to an expert let alone toan ordinary person. The Crown’s expert witness testified that he thought he could locate the

part in a week. Then, J., quashed thecommittal and commented as follows; “Whatever may be said of the expert’s speculation as to his ability to obtain the part, it would appear to me that it is a fair and reasonableinference on the evidence proffered by the Crown that the ability of an ordinary person to obtain the part within a reasonable time is atbest improbable. This case highlights the risk of speculating about the availability of the parts necessary to make a weapon operationaland the necessity of proper evidence on this point.” Counsel have provided several other cases.

It is not, however, in my view necessary to review them. Each turns on its own facts. The evidence in this case about repair of the breechface is inadequate, in my view, to found a committal. Ms. Chin acknowledgedknowing very little about the repair process and didn’t try it. To say that a non-expert could repair the breechface in a reasonabletimeframe with metal or plaster as described, would, in my view, amount to speculation. It should be noted that this is not an offence of possession in the commission of an offence where time is clearly of the essence. The gunwas sitting in the accused’ bedroom.

He was not home. Ms. Chin testified that the CFS has two of the same guns and other Jennings J-22s. The gun was manufactured for over a decade in the U.S. The specific slide is advertised on the website of a large U.S. distributor and three were in stock in different colours. It is not a controlled item. The company clearly ships to Canada. Ms. Chin testified that it can be easily inserted in 10 minutes. Defence counsel argues quite rightly that there is no evidence to how long the shipping process might take, or if any special measures arerequired to have it cross the border.

However, these issues, in my view, should be measured against the evidence of availability fromNumrich, as summarized above, and the evidence of ease of installation - much easier than the repairs discussed in many cases, cited. Inmy view, the evidence of ability to obtain the

part in a reasonable time, although not plentiful, does not amount to speculation as wasfound in Doyle, [supra]. A properly instructed jury could reasonably find that the part was available in a reasonable time and that itcould be inserted without great difficulty, and that the gun was operational as defined by law. He will, therefore, be committed on the handgun possession related counts as well as the counts specified earlier. MS. GIORDANO: Thank you, Your Honour. THE COURT: And thank you, both, it was not easy. MR. CARRINGTON: Thank you, Your Honour. I’ve advised Madam Clerk with our - the new protocols form in Jordon, at some point

today I need to get a signed - Your Honour’s signed copy of the order to stand trial and the information, and then I - I stamp it and send it to the appropriate places. I’m just saying that to remind her to get.... THE COURT: She needs to give - she needs to give what? The - a scan of the information? MR. CARRINGTON: Yes, once it’s signed by Your Honour with the order to stand trial. That’s how we’re doing it these days and then we get it over to 361 in the same day, and everything gets moving faster than it used to.

And in terms of the date at 361, it’s supposed to be exactly three weeks from the date of committal? MS. GIORDANO: Yes. MR. CARRINGTON: In all cases, and so, that would be - today’s the 20th? MS. GIORDANO: 20th, yup. CLERK/REGISTRAR: The 11th of October. MR. CARRINGTON: Yes. That should be the 11th of October, Your Honour. THE COURT: All right. ...CLARIFICATION ON DATE AND TIME. THE COURT: Okay. So, October 11th, nine-thirty at 361. MS. GIORDANO: And thank you very much, Your Honour. And I very much thank my friend, it’s been a pleasure. THE COURT: Okay. MR. CARRINGTON: Okay. Thank you. I thank Ms.

Giordano - yes, it’s been - it’s been a pleasure. MS. GIORDANO: Thank you. THE COURT: You did a thorough job. I don’t know how this issue has evaded me until today. It has. All right. MS. GIORDANO: If I may be excused? THE COURT: Yes, you may. MS. GIORDANO: Thank you very much. Have a great day, everybody. And thank you, all staff, too. ... MATTER ADJOURNED 12:27:31 p.m. FORM 2 Certificate of Transcript Evidence Act, subsection 5 (2) I, Brenda Wakelin, certify that this document is a true and accurate transcript of the record R. v.

Taylor Griffith in the Ontario Court of Justice, held at 60 Queen Street West, Toronto, Ontario taken from Recording No. 4811 G 20160920 094841 6 SPARROG, which has been certified in the Form 1 by Elena Lohse. __________________________ (Date) ___________________________

(Signature of authorized person(s)) Brenda Wakelin, B.Sc., B.Ed., OCT, CCR, ICDR, ACT Hill Transcription Inc. Certified Court Reporter, CRAO Internationally Certified Digital Reporter, IAPRT Authorized Court Transcriptionist ba.reporter365@gmail.com hilltranscription.com PLEASE NOTE: This certification does not apply to the Reasons for Ruling which were judicially edited. Any copies of this transcript that are not signed in blue ink are unauthorized by the above named ACT and could contain errors and/or omissions. If additional copies are required, please contact the above noted reporter for a true copy.