R. v. Tran, 2019 BCPC 364

Citation: R. v. Tran 2019 BCPC 364 Date: 20190425 File No: 60476 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DUC LUONG TRAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. N. BAKAN Counsel for the Crown: S. McCartan Counsel for the Defendant: J. Whysall Place of Hearing: Richmond , B.C. Dates of Hearing: Nov. 23, 2018; Jan 7, 8, 9, March 12, 2019 Date of Judgment: April 25, 2019 Introduction

[ 1 ] On the evening of July 23, 2016, an Orion flare gun (the flare gun) was fired at Tam Phung, while he and his wife were in their kitchen cabinet making factory located in an industrial area off Bathgate Way in Richmond, B.C. [ 2 ] Fortunately the projectiles fired from the flare gun did not hit anyone but one did hit a plastic garbage container causing it and its contents to catch fire. [ 3 ] Mr. Phung testified that earlier that evening, Mr. Tran had telephoned him while he was at work and threatened to shoot him if he did not stop bad mouthing him.

Later that evening, what was later determined to be projectiles from a flare gun were shot into Mr. Phung’s business premises. Mr. Phung testified one shot came within a car length of hitting him. [ 4 ] Mr. Phung testified that the accused, his wife’s brother-in-law, fired the shots from a silver vehicle he was driving and then drove away from the scene. Charges [ 5 ] Mr. Tran is charged in a four count information proceeded with by indictment as follows: Count 1 S. 85(2) – use of an imitation firearm while committing, or attempting to commit, the indicatable offence of assault with a weapon.

Count 2 S. 267(a) – committing assault of Tam Phung while carrying, using or threatening to use, a weapon or an imitation weapon. Count 3 S. 88(2) – Carrying, or having in his possession, an Orion flare gun, for a purpose dangerous to the public peace or for the purpose of committing an offence. Count 4 S. 264.1(1) – Knowingly uttering a threat to Tam Phung to cause him death or bodily harm. Issues [ 6 ] In addition to whether or not the Crown has proved all elements of each charge of the four charges beyond a reasonable doubt, the following issues exist: i. Is the flare gun a firearm or imitation firearm? ii.

Is expert evidence required for me to reach a conclusion on whether the flare gun is a firearm or imitation firearm? If so, what weight should it be given? iii. Is the description of the flare gun as an imitation firearm in Count 1 legally sufficient for a conviction under Count 1, pursuant to s. 85(2) of the Criminal Code , if the Crown proves beyond a reasonable doubt Mr. Tran shot the flare gun as alleged in that Count? iv. If the Kienapple principle applies, what charge or charges should be conditionally stayed? All evidence heard in voir dire, with the exception of Mr.

Tran’s, was admitted as evidence on the trial proper by consent. Witnesses a. Crown [ 7 ] Crown witnesses included: Cst. Joseph Liu [ 8 ] Cst. Liu attended the site of the reported shooting at 1248 Bathgate Way, Richmond, BC (the site), on July 23/16, at approximately 21:45 in response to a report of shots fired. Other officers were present when he attended. He took photographs and later seized shell cases. [ 9 ] His photographs taken at the site and the adjacent area were marked as an exhibit. Tam Phung [ 10 ] Mr. Phung is the complainant and the owner of Mom Fat Kitchen Cabinets located at the site.

He described events shown in two videos of the incident. Auxiliary Cst. Wong [ 11 ] Auxiliary Cst. Wong is a volunteer with the RCMP and translated for officers on scene and in the detachment. Cst. Savard

[ 12 ] Cst. Savard is an RCMP Officer that attended the scene, engaged in a telephone conversation with Mr. Tran during which with Auxiliary Cst. Wong translated, and was one of two officers that searched Mr. Tran’s vehicle. Cst. Bevan [ 13 ] Cst. Bevan was the first officer to arrive on scene and was the lead officer. He also searched Mr. Tran’s vehicle and seized a spent casing from the front driver side of the vehicle and also the flare gun and rounds. Cst. Leung [ 14 ] Cst. Leung arrived on scene at approximately 22:12 in response to a call about a weapon.

He was involved in the initial detention and arrest of Mr. Tran at the scene and had involvement with him at the detachment. Cst. Chan [ 15 ] Cst. Chan worked dayshift at the detachment on July 24, 2016 and dealt with Mr. Tran in his access to counsel. b. Defence Mr. Tran did not testify in his own defence as is his right. The onus remains on the Crown to prove all elements of each charge against Mr. Tran, beyond a reasonable doubt. Voir Dire Ruling [ 16 ] My ruling was given orally on March 12, 2019. I found Mr. Tran’s statements to Cst. Savard and Aux Cst.

Wong voluntary, the search of his vehicle following his detention lawful, and that his s. 10(

b) rights were not breached. [ 17 ] I set out my factual findings which I adopt in these reasons, with the exception of any evidence Mr. Tran gave on the voir dire .

Summary of Events Prior to the arrival of Mr. Tran’s vehicle at 1248 Bathgate Way [ 18 ] Mr. Phung testified that sometime around 8 p.m., on July 23, 2016, a person he identified in court as the accused, called him at work and started being verbally abusive. He said Mr. Tran said he would shoot him with a gun if he said bad things about Mr. Tran again. [ 19 ] Mr. Phung testified that he was owed wages from Mr. Tran for work he said, and had told others, he had performed for Mr. Tran but not been paid for. This occurred 4-5 years prior to this incident. Mr.

Phung said he and his wife had requested payment unsuccessfully for the money which he estimated to be between $7,000 and $8,000. [ 20 ] On cross examination, Mr. Phung said that when he received the above call from Mr. Tran, he did not know where Mr. Tran was. He told Mr. Tran he was at work. He testified that he did not invite Mr. Tran to attend his work place. [ 21 ] Mr. Phung said Mr. Tran started the phone conversation in an abusive manner. Mr. Phung did not initially take the threat seriously, believing Mr. Tran ‘was just talking’ when he said he would bring a gun and shoot him. He was surprised when Mr.

Tran drove to his business. [ 22 ] Mr. Phung testified he was working when Mr. Tran arrived in a silver 4 by 4 vehicle. Mr. Phung had a hammer in his hand as he had been working. He walked outside the business to ask Mr. Tran what was going on. He said Mr. Tran was about 1 car length away. On cross examination, he denied bringing the hammer to protect himself and did not ask Mr. Tran to fight. He said he took a few steps and Mr. Tran fired a shot from a red gun that he had in his hand, through the passenger window of the vehicle. He described the shot as a red fireball and said he quickly ducked and ran away.

He believed 2-3 shots were fired initially but agreed two shots were fired by the person he identified in court as the accused. He called him by a name other than Tran. [ 23 ] The door of the factory was a garage like door. It was open and the first shot went into the factory. The second shot landed about one car length from Mr. Phung, hit a plastic garbage can and caused it and its contents to catch fire. Mr. Tran drove away. Police were called and attended the scene. Mr.

Phung found what he referred as a shell casing on the floor after it was fired but did not move it. [ 24 ] He and his wife extinguished the fire in the garbage can with water and then pulled it outside. He said a shell case was found by the garbage can as well. [ 25 ] Mr. Phung’s business, Phat Mom Kitchen Cabinets, is located in an industrial park. There were people living above some of the industrial units. A crowd of people gathered at the scene following this incident. [ 26 ] Two videos of the incident were recorded from nearby business premises and marked as exhibits after they were played in court. Mr.

Phung testified that in the first video, he is the person in the white shirt and that the vehicle driving towards him was driven by the accused. [ 27 ] Mr. Phung testified that the two bright lights emanating from the vehicle, recorded by video, were the shots that came from a red gun that he saw that Mr. Tran had. [ 28 ] In the second video, Mr. Phung testified the second shot is visible as is Mr. Tran’s leaving in his vehicle. Mr. Phung identifies himself as the person pulling forward the garbage can on fire and the woman coming out at the time of 21-48-08 as his wife Ms. Le.

The video also shows police arriving within minutes. [ 29 ] Mr. Phung testified that the video accurately depicts what transpired. I accept Mr. Phung’s evidence as both reliable and

credible. [ 30 ] At approximately 21:45, Cst. Savard was dispatched to the scene. She described the scene as ‘really chaotic’ and said it smelled like gunshot or residue from it on arrival. [ 31 ] At approximately 22:55, she had a telephone conversation with Mr. Tran, through Aux. Cst. Wong translating from English to Cantonese and from Cantonese to English. As stated in my voir dire ruling, I found Mr. Tran’s statements during this conversation to be voluntary. During the conversation, I found that Mr. Tran spontaneously and voluntarily said he had only wanted to scare Mr.

Phung with the flare gun and asked if he should bring it to the meeting arranged at the Canadian Tire near 5 th Street that was to take place in 40 minutes. Cst. Savard had not mentioned anything about a flare gun nor asked Mr. Tran any questions about any alleged offences during the phone call. [ 32 ] Approximately 10 minutes before the meeting that scheduled at Canadian Tire, Mr. Tran returned to the scene in his vehicle. Mr. Tran was arrested after he exited his vehicle. As stated in my voir dire ruling, I found the arrest to be lawful. [ 33 ] The vehicle was then searched by Cst’s Bevan and Savard.

I found the search to be lawful for reasons stated in my voir dire ruling. [ 34 ] A reddish orange Orion flare gun, a shell casing and three unspent cartridges were found in the vehicle. [ 35 ] I accept Mr. Phung’s evidence that at approximately 8 p.m. on July 23 rd , 2016, Mr. Tran phoned Mr. Phung who was at his place of business in Richmond, BC, and threatened to shoot him. I find the Crown has proven beyond a reasonable doubt this threat was uttered by Mr. Tran knowingly and contrary to s. 264.1(1) of the Criminal Code and find him guilty of Count 4. [ 36 ] Based on the video, the evidence of Mr.

Phung, the attending officers, and Mr. Tran’s voluntary statements, I find that Mr. Tran intentionally fired two flares from the Orion flare gun later seized from his vehicle by the police. I accept the flares were intentionally aimed at Mr. Phung and that one landed approximately a car length away from him and one hit a plastic garbage can causing it to catch fire along with some of its contents.

It was extremely fortunate no one was injured by the projectile or the fire that ensued in the garbage can in the cabinet factory. [ 37 ] In regards to Count 3, I find that the Crown has established beyond a reasonable doubt that Mr. Tran possessed a weapon, an Orion flare gun for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to s. 88(2) of the Criminal Code . There were a number of people living or working in the area in question. Their safety was threatened by Mr. Tran’s actions. A large crowd congregated and the scene was chaotic when police arrived. I find Mr.

Tran guilty of Count 3. [ 38 ] I will next consider Counts one and two and determine whether the Orion flare gun in the circumstances of this case, was an imitation firearm, as alleged in Count 1, and whether or not, in this case, an imitation firearm is also a firearm. Count 1: Imitation Firearm [ 39 ] Mr.

Tran submits that the Crown has not proven, beyond a reasonable doubt, that the Orion flare gun is an imitation weapon and therefore submits the charge pursuant to s. 85(2) of the Criminal Code should be dismissed. [ 40 ] Defence further submits that the expert report and evidence of the Crown’s expert, John William Marshall, should be given little if any weight. [ 41 ] The Crown submits that in this case, the Orion flare gun meets the legal definition of an imitation firearm and whether or not it actually meets the legal test of being a firearm under s. 2 of the Criminal Code is not relevant. [ 42 ] The Crown submits that it is not necessary to rely on Mr.

Marshall’s expert evidence to find the Orion flare gun falls within the legal definition of an imitation weapon. She concedes that at times Mr. Marshall went outside his role by opining on the ultimate issue but that some of his findings on the characteristics of the flare gun are of assistance to the Court. [ 43 ] The Crown further submits that expert opinion is not necessary for a finding on whether a flare gun is a gun or imitation firearm.

The Crown submits that the definition of imitation firearm in s. 84 of the Criminal Code means anything that imitates a firearm, including a replica firearm, that anything resembling a firearm, is an imitation firearm and that a real firearm also meets the definition of an imitation firearm. The Orion Flare Gun [ 44 ] Mr. Phung described the above as a red gun. He first saw it when Mr. Tran pointed it at him and fired the projectiles from it. Mr. Tran earlier that evening had threatened to shot Mr. Tran with a gun.

The photographs of the flare gun show it as a reddish orange. [ 45 ] The call in to police was that shots had been fired. On attending the scene, Cst. Savard noted a smell like gunshot or gunshot residue. The video clearly shows two projectiles being shot toward the complainant’s business, one of which hit a garbage can in the premises causing it to catch on fire. [ 46 ] Police officers took photographs of the Orion flare gun found in Mr. Tran’s vehicle and the spent and unspent flares found in the Phung’s business and in Mr. Tran’s vehicle prior to their removal from the vehicle.

They were marked as exhibits at trial. I find beyond a reasonable doubt the Orion flare gun and spent flares found at the scene were those used by Mr. Tran to shot at Mr. Phung the night of July 23, 2016, were entered as evidence at trial. [ 47 ] Mr. Phung believed initially that the flare gun was a hand gun. It is a reddish orange with a black handle, trigger and hammer. It has a barrel and bore

[ 48 ] Mr. Marshall measured the barrel after the flare gun was sent to him. It was 82.9 mm long and designed so that the projectile could be launched from the barrel. [ 49 ] The evidence, including the expert evidence of Mr. Marshall, indicates the following characteristics of the Orion flare gun and projectiles in question: 1. One flare can be loaded at a time. 2. To load it with a projectile, the rear of the barrel is tipped vertically to enable the projectile to be inserted. It has a breech action. 3. The trigger and hammer are engaged when firing. 4.

There is a ridge on the barrel that can be used for siting. 5. Its legitimate purpose is to signal distress or as a warning of danger when one is on a body of water. 6. It had not been altered. 7. It is discharged using one hand. 8. The label on the side of it states it is for marine use only, is extremely flammable and should be kept away from children. 9. It uses a 12 gauge projectile. 10. The projectiles it shoots consist of a metal flare cup and wad. 11. The spent metal projectiles recovered at the scene measure 3 centimeters and some melting is visible in the photo taken at the scene of one of them. 12.

It looks like a handgun. [ 50 ] The definition of firearm is set out in s. 2 of the Criminal Code as follows: “firearm” means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily bodily injury or death to a person, and includes any frame of receiver of such a barrelled weapon and anything that can be adapted for use as a firearm. (Underline added.) [ 51 ] S. 84(3) (

b) of the Criminal Code states that for the purposes of s. 91-95, 99-101,103-107 and 117.03 of this Act and the provisions of the Firearm Act , weapons are deemed not to be firearms where the device that is (

i) designed exclusively for signaling, for notifying of distress, for firing blank cartridges or for firing stud cartridges, explosive-driven rivets or other industrial projectiles, and (ii) intended by the person in possession of it to be used exclusively for the purpose for what it is designed. [ 52 ] This

section does not apply as the flare gun was not used for the purpose for which it was intended. [ 53 ] The Orion flare gun is a barrelled weapon that shoots a projectile. This is clear from the evidence, including photographs of the flare gun, used and unused projectiles, officer testimony, videos and evidence of Mr. Phung. [ 54 ] I find the evidence also, beyond a reasonable doubt, established that the flare gun in question is capable of causing serious bodily harm or death to a person. In this case, expert evidence is not required to establish this although it is supportive. [ 55 ] Cst.

Liu took photographs at the scene of the plastic garbage can filled with wood pieces that the projectile fired by Mr. Tran hit, causing the garbage can and contents to catch fire. The photograph at page 12 of his photographs clearly shows one side of the garbage can was almost entirely melted and that the wood strips within had caught fire. [ 56 ] When Mr. Marshall tested one of the flares that had been seized from Mr.

Tran’s vehicle, the projectile left a burn mark on the concrete floor of the test area and removed paint in that area. [ 57 ] It is not necessary to use what is referenced as the pig eye test to show serious bodily injury or death may result from the firing of the flare gun in question. The pig eye test is generally used with projectiles such as BB’s, pellets and bullets. Mr. Marshall testified that pig’s eyes are used because they are similar to the human eye. He testified eyes are used as they are a vulnerable organ. Mr.

Marshall testified and I accept, that the RCMP and two forensic laboratories in Canada use the pig eye penetration test to determine whether or not a device can cause serious bodily injury or death. It is not a legal standard but this type of testing, however, was used by the expert that testified in R. v. Dunn 2013 ONCA 539 (paragraph 8 ) and was not challenged. [ 58 ] The projectile from the flare gun, in this case, caused a plastic garbage can and its contents to catch fire and burned the floor of the testing area.

While fortunately no one was injured, it is common sense and I take judicial notice that a projectile capable of causing this damage is capable of causing serious burns to people. If it hits a person’s hair or flammable clothing, fire is capable of causing serious burns and death could result. The projectile could hit one’s skin and cause serious injury or death from burns. The projectile could be particularly lethal if it landed on an infant in a crib or car seat.

The skin is a vulnerable organ to burns as the eye is vulnerable to serious injury from projectiles such as bullets, pellets and BB’s. [ 59 ] While in my view it is not necessary to go further to establish beyond a reasonable doubt that the Orion flare gun used by Mr. Tran was capable of causing serious injury and death, Mr. Marshall’s testing and analysis, while not optimum due to the fact he was only able to shoot one of the projectiles, further supports the danger the projectile can cause. Mr. Marshall received the 3 unspent projectiles the police seized with the flare gun from Mr. Tran’s vehicle.

One was broken down to measure and weigh, one was fired but

measurements were not able to be obtained. [ 60 ] Mr. Marshall’s testified he was unable to obtain the same type of projectiles and therefore only was able to measure the velocity of one projectile following discharge. He conceded on cross examination that further tests would have been optimal. [ 61 ] His testing of the flare gun found that the flare gun in question: Discharged a projectile with a diameter of 1.772 cm and a weight of 13.13 grams from a 12 gauge flare at a muzzle velocity of 59.427 meters per second and muzzle energy of 23.2 Joules.

This resulted in an E/a value of 9.4 J/cm, which exceeds the E/a values associated with the established V50 threshold for eye penetration/rupture of common non-conventional firearm’s projectiles. From the above test, Mr. Marshall opined that the projectile from the flare gun in question could cause serious bodily harm or death. [ 62 ] In addition to Mr. Marshall’s evidence, the video showed the two projectiles Mr. Tran fired going through the air. The aluminium cup burns during the trajectory and as previously stated, is approximately 3 centimetres in length and somewhat circular.

That evidence also supports serious injury or death could occur if hits with the metal cup. [ 63 ] I find Mr. Marshall’s evidence was not required to come to my conclusion that the flare gun meets the definition of a firearm and handgun as defined in s. 2 and s. 84(1) of the Criminal Code beyond a reasonable doubt. In this case, can a firearm also be an imitation firearm for purposes of a conviction under s. 85(2 ) ? [ 64 ] S. 85(1) of the Criminal Code pertains to using a firearm in the commission of an offence.

S. 85(1) deals with those committing an offence using a firearm. [ 65 ] S. 85(2) of the Criminal Code relates to persons committing an offence that uses an imitation firearm. [ 66 ] In s. 84 of the Criminal Code , “imitation firearm” means anything that imitates a firearm, and includes a replica firearm. [ 67 ] There are two charging sections within s. 85 in contrast to s. 267 (

a) of the Criminal Code that states that everyone, who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an imitation thereof……is guilty of an indictable offence….. Mr. Tran is charged with using an imitation firearm while committing, or attempting to commit, the indictable offence of assault with a weapon, contrary to s. 85(2) in Count 1 and committing assault with a weapon or an imitation weapon, contrary to s. 267 (

a) of the Criminal Code . [ 68 ] He is not charged with committing an offence with a firearm under s. 85(1) of the Criminal Code . [ 69 ] Defence submits that Count 1 should be dismissed as the Crown has not established the Orion flare gun in this case is an imitation firearm as charged. The Crown chose to proceed under s. 85(2) of the Criminal Code rather than under s. 85(1) of the Criminal Code despite serving Mr. Marshall’s report opining that the flare gun is a firearm and leading evidence on this. [ 70 ] Defence relies on R. v. Saunders , [1990] Carswell BC 116 , SCC as cited in R. v.

Elewonibi, 2010 BCPC 160 for the proposition that the Crown must prove the offence particularized. [ 71 ] In Saunders, the accused was charged with conspiracy to import heroin but evidence was that the evidence showed the drug was cocaine not heroin. [ 72 ] McLachlin, J stated as follows in para. 5 and 6 of the judgment: It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved.

In Morozuk v .The Queen. ..this Court decided that once the Crown has particularized the narcotic in a charge, the accused cannot be convicted if a narcotic other that the one specified is proved. The Crown chose to particularize the offence in this case as a conspiracy to import heroin. Having done so, it was obliged to prove the offence thus particularized. To permit the Crown to prove some other offence characterized by different particulars would undermine the purpose of providing particulars… My brother Judge Chen, in R. v. Elewonibi , followed R. v.

Saunders and dismissed charges that gave the wrong chemical formula in the information for the drug the accused was charged with trafficking and possessed for the purpose of trafficking. [ 73 ] Judge Chen held in dismissing the charges: The Crown had chosen to describe by way of a chemical name or formula the substance that the accused is alleged to have trafficked or possessed for the purposes of trafficking. There is no evidence that he possessed or trafficked in that particular substance. Accordingly, I find I have no choice but to dismiss counts 1 and 2. [ 74 ] Mr.

Tran submits that the Crown chose to proceed under s. 85(2) rather than s. 85(1) and has not proven the Orion flare gun is an imitation firearm under s. 85(2) and Count 1 should therefore be dismissed. Crown position [ 75 ] The Crown did not apply to amend the Information to amend or add a charge against Mr. Tran pursuant to s. 85(1) of the Criminal Code .

[76] The Crown submits that it is not necessary to have charged Mr. Tran under s. 85(1) as anything resembling a firearm is animitation firearm and that firearms, as defined in s. 2 of the Code, meet the definition of an imitation firearm. [77] The Crown relies on R. v .Scott, 2000 BCCA 220 , [2000] B.C.J No. 800 in support of the above. In that case, Mr.Scott was convicted on two counts of robbery. The three counts of using an imitation firearm during the robbery were dismissed. [78] The alleged imitation firearms were not recovered.

At trial, it was held the Crown had failed to prove that the weapon was notcapable of being discharged. [79] The Court of Appeal considered the meaning of “imitation firearm” and the history of s. 85(2) of the Criminal Code. [80] At the time of offence, “imitation firearm” was contained in s. 85(2) of the Criminal Code but was not specifically defined. Itbecame defined in s 84(1) of the Criminal Code in December 1998 (para. 31). [81] The history of s. 85 is discussed at paragraphs 36 to 40 of R. v. Scott.

In 1977, s. 85 was enacted to make it mandatory to imposea one year sentence in addition to the sentence for an underlying offence where a firearm was used in the commission of an indictableoffence. [82] Caselaw had previously held that the prevention of the alarm or trauma produced by use of an object to commit a crime thatvictims thought was a gun but turned out to be an inoperable firearm or toy gun was not caught by what is now s. 85(1) nor did it catch ifthe “gun” was not recovered and proven to be a firearm (paras. 36-37). [83] Mr.

Justice Braidwood quoted from reports indicating that the use of replicas, air guns and the like increased dramatically in the1980’s and 1990’s but that due to the definition of “firearm” in the Criminal Code, charges could not be laid under s. 85. Criminal Code. [84] S. 85 of the Criminal Code was amended in 1995 to prohibit the use of an imitation firearm during the commission of anindictable offence and the current s. 85(2) of the Criminal Code was in force in January 1996 although the definition of “imitationfirearm” was not in force until January 1998 (paras. 38-40). [85] The Scott case raised what Mr.

Justice Braidwood referenced as “new problems” as the firearm used in the robberies was notrecovered. Mr. Scott submitted that the trial judge was correct that the Crown must prove beyond a reasonable doubt that the firearmcould not cause serious bodily harm to fall under s. 85(2) of the Criminal Code. This was clearly not possible given the non-recovery ofthe gun (para. 42). [86] Mr. Justice Braidwood stated that the above

interpretation of s. 85(2) would defeat its legislative purpose. The purpose was to‘prohibit persons from using an object that has the appearance of a gun during the commission of a crime, so as to prevent the alarm andtrauma that such an activity produces…’ (para. 43). [87] He went on to state: I also agree with the opinion of the Chief Justice that the provision was also meant to be complementary to the provision directed againstreal firearms.

In other words, offenders who did not discharge their guns during the offence and whose weapon was not later recovered,so as to make a prosecution under s. 85(1) practically impossible, would now be covered by the Code. In effect, the term “imitationfirearm” must be interpreted so as to include a real firearm. Such an

interpretation differs from the plain and ordinary meaning of theterm “imitation,” but it must be done so as to achieve the purpose that Parliament intended... [44] (Italics and underline added.) Mr. Justice Braidwood continues: ..although the term ‘imitation firearm’ may be considered to be unambiguous, it must be ascribed an ‘unordinary’ meaning so as to betterachieve the purpose of Parliament.

This provision was enacted so that the Code would cover offenders who commit an indictable offenceusing what appears to be a firearm, but cannot be charged under s. 85(1): either because it was a ‘fake’ gun…or because it was a realgun that could not later be recovered. To demand that the Crown prove beyond a reasonable doubt that a weapon cannot be dischargedwould make a prosecution impossible when the gun is not recovered. (Italics added) [88] Mr.

Justice Braidwood stated that to avoid the absurdities above, including a hypothetical example of an accused testifying hewas using a real firearm, to raise reasonable doubt to avoid prosecution under s. 85(2) of the Criminal Code, and to interpret s. 85(2) ofthe Criminal Code in harmony with the intention of Parliament, the term ‘imitation firearm’ must include real firearms (para. 45). [89] Chief Justice McEachern, as he then was, wrote concurring reasons to those of Mr. Justice Braidwood. They support there is adistinction where what looks like a firearm is not recovered or discharged.

He states: [53] It is obvious from the context of the firearms provisions of the Code, and from the history of these sections, that they areintended to be complimentary provisions. Subsection (1) concerns situations where an object alleged to be a firearm is an actual barreledweapon capable of discharging a bullet and causing serious bodily harm. Subsection (2) covers the other situations where the object issomething that imitates a firearm.

The need for the complimentary provisions is obvious where one consider that very often, the objectbelieved to be a firearm is neither discharged during the commission of the offence, nor recovered by the police in their investigation. Insuch a case, as in this case, where the object is not available for testing or to be adduced in evidence, it will not usually be possible toprove beyond a reasonable doubt whether the object meets the definition of a firearm, that is, whether it can be fired as required in thedefinition.

In such circumstance, an accused must, of course, be acquitted if charged under s. 85(1). (Italics added) [90] In paragraphs 55 and 56, it was further stated in regards to charging an accused under both s. 85(1) and s. 85(2) of the CriminalCode: Thus, in such circumstance, the argument goes, an accused charged with both offences, alternatively, must usually be acquitted on both

counts no matter how strong the evidence that the accused used an object that appeared to be a firearm simply because it cannot be proven beyond a reasonable doubt that the object was or was not capable of being fired. With respect, I am not persuaded this is the correct view. [ 91 ] The case before me is distinguishable from R. v.

Scott , where it was held an imitation firearm included a real firearm in instances where the gun used in an indictable offence could not be recovered to ascertain if it fit the definition of a firearm, or who committed an offence with what appeared to be a real gun causing the same terror as a real firearm but the item could not be proven not to have been discharged.

To avoid the absurdity of this result, where a firearm or imitation fire arm has not been recovered, an imitation firearm is deemed to be a firearm. [ 92 ] In the case at bar, the weapon was recovered and I found it to be a firearm under s. 2 of the Criminal Code . The Crown forwarded the Orion flare gun used by Mr. Tran, along with the projectiles fired, to Mr. Marshall for analysis. I qualified Mr. Marshall as an expert in non-conventional and conventional firearms. Mr. Marshall’s report has a date of issue of June 21, 2017. Mr.

Marshall concluded that the flare gun was a firearm defined in s. 2 of the Criminal Code . The Crown did not apply to amend or vary the Information to include a charge under s. 85(1) of the Criminal Code . While Mr. Marshall’s expert opinion was not necessary for me to conclude the flare gun met the definition of a firearm under s. 2 of the Criminal Code , it put the Crown on notice its expert’s opinion. [ 93 ] Section 85(1) and s. 85(2) of the Criminal Code are distinctive charging sections.

S. 85(1) of the Criminal Code applies to firearms as defined in s. 2 of the Criminal Code and s. 85(2) of the Criminal Code applies to imitation firearms as defined in s. 84 of the Criminal Code . This is in contrast to the wording in s. 267 (

a) of the Criminal Code that includes both a weapon and imitation weapon in the charging provision. [ 94 ] In this case, as the flare gun was recovered and analyzed, I find the Crown cannot rely on the finding of a firearm to include an imitation firearm. The offence of using an imitation firearm, particularized in Count 1 under s. 85(2) has not been proven by the Crown beyond a reasonable doubt. Count 1 is therefore dismissed. The Crown took no steps to amend Count 1 or to plead s. 85(1) of the Criminal Code as an alternative to s. 85(2) of the Criminal Code . [ 95 ] The Crown has, however, proven that Mr.

Tran is guilty of Count 2 beyond a reasonable doubt. He used the flare gun as a weapon to commit an assault on Mr. Phung by carrying, using and threatening to use the Orion flare gun which was clearly used as a weapon, when he fired it at Mr. Phung and into Mr. Phung’s business, contrary to s. 267 (

a) of the Criminal Code . [ 96 ] In conclusion, I acquit Duc Luong Tran of Count 1 and find him guilty of Counts 2, 3 and 4. The Honourable Judge L. N. Bakan Provincial Court of British Columbia