r v. Davide Joseph, 2015 QCCQ 5496

R. c. Di Ruzza 2015 QCCQ 5496 JP2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-073038-124 DATE: June 22, 2015 BEFORE THE HONOURABLE YVAN POULIN, J.C.Q. HER MAJESTY THE QUEEN Prosecutor v. Davide Joseph DI RUZZA Accused REASONS FOR JUDGMENT [ 1 ] The accused stands charged with one count of possession of a prohibited firearm contrary to

section 95 of the Criminal Code . There is no dispute that the firearm in question was found in the accused’s bedroom on May 12, 2012, following the execution of a search warrant by the police. It is also undisputed that it was bought by the accused one month prior to his arrest from people in Pointe St-Charles for 250$. The sole issue in the present file is whether the item seized is a functional firearm within the meaning of the Criminal Code . In other words, the Court must decide whether it has been established beyond a reasonable doubt that the item seized is a firearm within the meaning of the

definitions provided in ss. 2 , 84 and 95 of the Criminal Code . [ 2 ] It is clear that the revolver seized in the present case was not in perfect condition. Parts were missing and a rubber band had been placed around the barrel. At trial, both parties called expert evidence on the issue of whether the firearm was operable or not. The Defense submits that there remains a reasonable doubt as to whether it was operable and as to whether the accused had the requisite knowledge of that fact.

The Crown argues, on the other hand, that the revolver was functional and that all the elements of the offense were established beyond a reasonable doubt. I – THE FACTS [ 3 ] In May 2012, the police obtained a warrant to search the accused’s house located at 4982 Cavendish in Montreal. The police were specifically looking for a firearm which was apparently hidden in a metal box in the accused’s bedroom. The police executed the warrant and found the metal box in question on a desk in the bedroom. Using a key that was beside the box, the police opened it and found the firearm they were looking for.

It was not loaded but seven matching bullets were found alongside the firearm. [ 4 ] A small quantity of cocaine, 50 pills of amphetamines and two expandable batons were also found by the police in the bedroom. [ 5 ] At the police station, the accused gave a statement which was filed into evidence by consent. He stated that he bought the gun and ammunition a month prior to the search for 250$ from “ some white people with hoodies ” in Pointe St-Charles.

He added that it was for protection in his house and stated that he never tried to use it. [ 6 ] It was proven at trial that the accused did not hold any authorization, licence or registration certificate for the firearm. When it was found in the metal box, a rubber band was wrapped around the barrel. The serial number had been removed. When the police removed the firearm from the box, the grip panels came off of the handle as the pin was not holding them in place. [ 7 ] The firearm was later given to ballistic expert Erik Hudon for analysis. Mr. Hudon testified for the Crown at trial as an expert.

He’s been working in forensic sciences for the Laboratoire de sciences judiciaires et de médicine légale de Montréal for more than 11 years. He examined the firearm in the present case and filed a ballistic report. He gave the following details about the firearm in question, which were not challenged by the Defense: it is a revolver Rossi (model 13) with a capacity of seven bullets; it is built to fire .22 long rifle rim-fire cartridges; the barrel is 50 mm long and the revolver is 149 mm long.

[ 8 ] Mr. Hudon examined and tested the revolver to determine whether it was functional or not. He concluded that although it was not in a good state of shooting, it was still functional and operable. According to him, the following external parts were missing: ➢ The arm of the cylinder, which keeps it in place and aligned with the barrel and makes it turn; ➢ A small screw that keeps the arm of the cylinder in place; and ➢ A pin and spring located just under the barrel to give more stability to the cylinder. [ 9 ] According to Mr. Hudon, it was still possible to fire that revolver in spite of the missing parts.

To do so, one simply needed to hold the cylinder in place and align it with the barrel with one hand and pull the trigger with the other hand. Mr. Hudon explained that he tested the firearm in his laboratory. Using an empty cartridge, he held and aligned the cylinder with one hand and pulled the trigger with the other. He then noticed that the hammer hit the cartridge with force. Mr. Hudon mentioned that a projectile can clearly be fired through the barrel in this manner.

Although it needs more manipulation than what was initially requested by the manufacturer, it still can fire a projectile and still is a prohibited firearm . [ 10 ] According to the expert, that revolver can be fired with two hands within 30 seconds, including the time to remove the rubber band. In Court, although he did not use any cartridge, Mr. Hudon manipulated the revolver and clearly demonstrated how this can be done. [ 11 ] Mr. Hudon acknowledged that this method of firing is dangerous as it is not recommended to hold the cylinder while pulling the trigger.

However, based on the test that he did, the fact that it might be more dangerous to use it doesn’t mean that it is not functional. [ 12 ] Mr. Hudon further explained that he did additional tests with the revolver after inserting an arm of the cylinder which he obtained from his inventory. He was then able to fire bullets with one hand without any problem. The revolver was more stable and fully functional with one hand. The missing part was shown to the Court by Mr. Hudon who further mentioned that the revolver seized could only be used by double action and not simple action. [ 13 ] In cross-examination, Mr.

Hudon confirmed that this model was fabricated between 1957 and 1985. Since it is now discontinued, he added that it is obviously difficult to find replacement parts. He also mentioned that a bad alignment of the cylinder with the barrel could affect the speed and trajectory of the bullet and cause a misfire. [ 14 ] The Defense called ballistic expert Roger Granger to testify at trial. He is a retired police officer that worked in that field for many years with the Montreal Police Force. He visually examined the revolver and ammunition in the exhibits room of the courthouse.

He noticed that the crane, the pin and other pieces were missing. He opined that these parts were essential for the good functioning of the revolver. Although he did not try to shoot with the revolver, he still concluded - from his visual observations - that the revolver was inoperable and nonfunctional. [ 15 ] Even if he did not try it, he stated that it would have taken two hands, glasses, gloves and a “tool box” to fire that revolver. He further said that not many people would want to shoot a gun with a rubber band around it. In the condition the revolver was, Mr.

Granger opined and acknowledged that it could “by extension” shoot but it would be dangerous to do so. He said that it would be dangerous for anyone and not an easy task for a layman. He also confirmed that the revolver was not working in simple action and that a bad alignment could result in a misfire or no fire. [ 16 ] Even though he did not test the revolver like Mr. Hudon, he confirmed the steps one should follow to try to shoot with the revolver in the condition it was.

He further said that he would not want to shoot in these conditions, which he described as dangerous, as he would not want to lose part of his fingers. Questioned as to how he would feel if someone pointed a revolver in this condition towards him, he simply answered that he wouldn’t let that happen as he would punch him beforehand. II – ISSUE [ 17 ] As already stated, the questions that must be decided in this case are the following:

A) Has it been established beyond a reasonable doubt that the revolver seized is a functional firearm within the meaning of the Criminal Code ?

B) If yes, has it been established that the accused had the requisite mens rea ? III - ANALYSIS

A) Is the revolver seized a functional firearm ? [ 18 ]

Section 95 of the Criminal Code provides that : 95.

(1) Subject to subsection (3), every person commits an offence who , in any place, possesses 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 , without being the holder of (

a) an authorization or a licence under which the person may possess the firearm in that place; and (

b) the registration certificate for the firearm. [emphasis added] [ 19 ]

Section 84 of the Criminal Code defines the terms “ prohibited firearm ” in the following manner: “prohibited firearm” means :

(

a) a handgun that (

i) has a barrel equal to or less than 105 mm in length , or (ii) is designed or adapted to discharge a 25 or 32 calibre cartridge, but does not include any such handgun that is prescribed, where the handgun is for use in international sporting competitions governed by the rules of the International Shooting Union, […] [emphasis added] [ 20 ] “ Handgun ” is defined in that same

section in this manner: “handgun” means a firearm that is designed, altered or intended to be aimed and fired by the action of one hand, whether or not it has been redesigned or subsequently altered to be aimed and fired by the action of both hands; [ 21 ] As to the definition of “ firearm ”,

section 2 of the Criminal Code states that: “firearm” means 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; [emphasis added] [ 22 ] It is well recognized that firearms will still be considered as such even though they might not be in perfect condition. If a barreled weapon is capable of causing serious bodily injury or death to a person because it can be loaded and fired, it will be considered a firearm within those

definitions. [1] The same can be said for anything that has the potential of becoming a firearm through adaptation. Hence, depending on the circumstances, a barreled weapon that is inoperative can still be considered a firearm if it can be adapted to be discharged. [2] [ 23 ] In R. v. Covin , at page 729, the Supreme Court of Canada stated that: […] [t]he acceptable amount of adaptation and the time required therefore for something to still remain within the definition is dependent upon the nature of the offence where the definition is involved. The purpose of each

section should be identified and the amount, nature and the time span for adaptation determined so as to support Parliament’s endeavor when enacting that given section. [3] [ 24 ] In R . v. Ferguson , the notion of adaptation was defined in the following manner by the Court of Appeal for Ontario: Possession is a continuing offence. The evil that this

section was designed to prevent and the purpose of the

section was obviously to suppress 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 s. 82(1)(d), a sawed-off rifle which can be easily concealed because of its reduced length.

Because of the nature of the continuing offence of possession of a prohibited weapon under s. 88(1) and having regard to the purpose of the subsection, we are all satisfied that the acceptable amount of adaptation and the time span required to render the gun operable is longer than that required for a s. 83 offence, where the adaptation has to be made on the scene in order to support the charge of using a firearm during the commission or attempted commission of an indictable offence or during the flight thereafter.

The expert evidence was that the firing mechanism was easily obtainable and could be inserted in 30 seconds to 1 minute. In view of that evidence we are satisfied that the inoperable gun in this case could be adapted for use as a firearm from which bullets capable of causing serious bodily injury or death could be discharged and that being a "firearm" it was a "prohibited weapon" as defined in s. 82(1)(d). [4] [ 25 ] In the case at bar, it is clear that although the revolver seized was not in a good state of shooting, it was still functional and operational.

After reviewing all the evidence, the Court concludes that the missing parts were not essential to its functioning. The expert for the Crown testified to that effect and explained the tests that were done to come to that conclusion. He explained why and how the revolver was still capable of firing projectile in spite of the missing parts. [ 26 ] The Court notes that the expert for the Defense never really tested or tried to shoot in any way with the revolver in question. He limited his examination to a visual inspection of the firearm and an inventory of the apparent missing parts.

He stated more than once that it would be dangerous to shoot with that firearm with two hands but never really said that it was impossible to do so. In fact, he admitted that it could “by extension” shoot although it would be dangerous. [ 27 ] According to the evidence, the steps to be followed to shoot with this revolver are somewhat simple. One just needs to hold the cylinder in place and align it with the barrel with one hand and pull the trigger with the other hand.

Although it requests more manipulation than what was initially required by the manufacturer, it still can fire a projectile and accordingly cause serious injuries or death. [ 28 ] It is clear from the evidence that this revolver was capable of being fired with two hands within 30 seconds, including the time to remove the rubber band. This alternative manner of shooting is neither far-fetched nor inconceivable. And the fact that it might be more dangerous - and that there are higher chances of misfire - doesn’t mean that it is not operational or functional. [ 29 ] In R . v.

Larochelle , my colleague the Honorable Lori-René Weitzman concluded that ancient and damaged weapons, which were in bad condition, were still firearms within the meaning of the Criminal Code . [5] [ 30 ] In the present case, considering all the evidence, and for all the reasons already mentioned, the Court concludes that the revolver seized was a functional firearm within the said meaning.

B) The requisite mens rea [ 31 ] During the arguments, the Defense raised the question of the sufficiency of the evidence of mens rea . On that point, unchallenged and uncontested evidence established at trial that the firearm was seized on a desk in the accused’s bedroom. It was locked

in a metal box and the key was just beside it. Matching bullets were also found inside the box next to the firearm. [ 32 ] As already mentioned, the accused gave a statement to the police after his arrest. He stated that he bought the gun and bullets a month prior to the search for 250$ from “ some white people with hoodies ” in Pointe St-Charles. He said that it was for protection purposes.

Although he said that he never tried to use it, the unchallenged direct and circumstantial evidence demonstrates beyond a reasonable doubt that he knew and thought that the revolver he purchased for security reasons was capable of firing the bullets that were bought at the same time. The only reasonable inference to be drawn from the proven facts is that the accused had the requisite mens rea . IV - CONCLUSION [ 33 ] In all the circumstances, considering all the facts and for all those reasons, the accused is found guilty on count two. __________________________________ YVAN POULIN, J.C.Q.

Me Luc Pagé For the prosecution Me Deborah De Thomassis For the accused Dates of hearing: April 2 nd and 30 th , 2015