file no. 35599 in the supreme court of canada (on …
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File No. 35599
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
BETWEEN:
CHRISTOPHER DUNN
APPELLANT
- and –
HER MAJESTY THE QUEEN
RESPONDENT
APPELLANT’S FACTUM
(Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)
Solomon Friedman
Counsel for Christopher Dunn
Edelson Clifford D’Angelo Friedman LLP
200 Elgin St., Suite 600
Ottawa, Ontario K2P 1L5
Tel. No.: (613) 237-2290
Fax No.: (613) 237-0071
Email: [email protected]
John McInnes
Counsel for the Respondent Ottawa Agent for the Respondent
Ministry of the Attorney General Burke-Robertson LLP
Crown Law Office – Criminal 441 MacLaren St. #200
10th Floor, 720 Bay Street Ottawa, Ontario, K2P 2H3
Toronto, Ontario, M5G 2K1 Tel. No.: (613) 236-9665
Telephone: (416) 326-4555 Fax No.: (613) 235-4430
Facsimile: (416) 326-4656
1
Table of Contents
PART I – STATEMENT OF THE FACTS .............................................................................................. 2
A. Overview ..................................................................................................................................... 2
B. Background Facts ........................................................................................................................ 3
C. Trial Judgement ........................................................................................................................... 5
D. The Court of Appeal Judgement ................................................................................................... 6
PART II – QUESTION IN ISSUE ........................................................................................................... 7
PART III – STATEMENT OF ARGUMENT .......................................................................................... 8
A. Overview ..................................................................................................................................... 8
B. Definitions and nomenclature ....................................................................................................... 8
C. Let’s Start at the Very Beginning - The Legislative History ........................................................ 11
Canada’s first Criminal Code: Distinguishing “airguns” from “firearms”........................................ 11
The present definition .................................................................................................................... 11
D. The statutory “definitional loop” ................................................................................................ 12
An alternative solution ................................................................................................................... 13
E. The decision in R. v. Felawka should be confined to “real” firearms ........................................... 17
The facts ........................................................................................................................................ 17
The British Columbia Court of Appeal ........................................................................................... 19
At the S.C.C. - Cory J. for the majority .......................................................................................... 20
At the S.C.C. - Lamer C.J.’s dissent and McLachlin J.’s dissent ..................................................... 21
Applying Felawka to the case at bar ............................................................................................... 22
The effect of R. v. Covin – a purposive interpretation of the word “firearm” .................................. 24
F. The Appellant’s position is supported by a contextual reading of the Criminal Code .................. 26
Sections 244 and 244.1 of the Code ............................................................................................... 27
Ambiguity and the strict construction rule ...................................................................................... 30
Safe storage – a curious omission ................................................................................................... 32
G. The Court of Appeal’s interpretation leads to absurd and unjust results ...................................... 34
Sections 244 and 244.1 – an absurd result ...................................................................................... 34
PART IV – SUBMISSION AS TO COSTS ........................................................................................... 35
PART V – ORDER REQUESTED ........................................................................................................ 35
PART VI – TABLE OF AUTHORITIES ............................................................................................... 37
PART VII – STATUTORY PROVISIONS............................................................................................ 37
2
PART I – STATEMENT OF THE FACTS
A. Overview
1. The Appellant, Mr. Christopher Dunn, stood trial in Ottawa before the Ontario Court
of Justice on the following four charges:
a. Handling an imitation firearm or a firearm in a careless manner, contrary to
section 86 of the Criminal Code;
b. Pointing a firearm, contrary to section 87 of the Criminal Code;
c. Carrying a weapon or an imitation thereof for a purpose dangerous to the
public peace, contrary to section 88 of the Criminal Code;
d. Carrying a concealed weapon or imitation thereof, contrary to s. 90 of the
Criminal Code.
2. The object in question, alleged at trial to be a firearm, was a Crosman Pro77 airgun
that fires .177 calibre spherical BBs, propelled by compressed air.
3. Based on the law in Ontario, as it stood at the time, Justice Ann Alder of the Ontario
Court of Justice acquitted the Appellant of all charges.
4. She held that, absent evidence that the Appellant used or intended to use the airgun in
an offensive manner, the object was not a “weapon” and therefore could not be a
“firearm” within the meaning of section 2 of the Criminal Code.1
5. The Crown successfully appealed three of four of the acquittals to the Ontario Court
of Appeal.
6. This appeal deals with one issue: Must an airgun that otherwise falls within the
definition of “firearm” in section 2 of the Criminal Code, also meet the definition for
“weapon” in the same section?
1 Criminal Code, R.S.C. 1985, c C-46.
3
B. Background Facts
7. On April 23, 2010, private investigators working on behalf of the Workplace Safety
Insurance Board were conducting surveillance on the Appellant. One of the
investigators observed the Appellant meet with another man.2
8. The investigator saw the Appellant remove what appeared to be a black pistol from
his jacket pocket and point it at the second man. The Appellant was seen returning the
pistol to his jacket and driving away in his car. The private investigators followed the
Appellant to a trailer park and subsequently informed the Ottawa Police Service about
what they had seen.3
9. The other man, with whom the Appellant interacted, was later identified as Gregory
Ogilvie. Mr. Ogilvie’s statement was admitted on consent at the trial. He stated that
he was good friends with the Appellant and that he was never threatened or
intimidated by Mr. Dunn at all. 4
10. Police attended at the Appellant’s trailer and discovered what appeared to be a black
handgun resting in plain view next to the trailer, in an adjacent shed.5
11. Upon further investigation, the purported handgun was determined to be a “Crosman
Pro77 airgun that fires .177 calibre spherical BBs propelled by means of compressed
air from a canister.”6
12. The airgun was functional and contained a partly used compressed air cylinder. There
was no ammunition in the airgun’s magazine.7
2 Court of Appeal Judgement (CAJ), para. 4. 3 CAJ, ibid. 4 Trial Judgement (TJ) at p. 3. 5 CAJ at para. 5. 6 CAJ, ibid. 7 CAJ, ibid.
4
13. The airgun had the following warning inscribed on its side:8
Warning, not a toy, misuse can cause fatal injury. Before using read owner’s
manual available from Crosman Corp...
14. At trial, Detective Christopher O’Brien of the Ottawa Police Service, an expert
firearms examiner testified about the airgun.9
15. He agreed that this type of airgun can be purchased without the purchaser having to
produce any firearms license or other documentation, as long as long as the muzzle
velocity does not exceed 500 feet per second (“ft./s.”). The muzzle velocity of the
Crosman Pro77 airgun was determined to be 261.41 ft./s. 10
16. Det. O’Brien testified about a scientific study – known as the “pig’s eye study” –
conducted to determine the velocity needed for a BB to penetrate the human eye. The
study demonstrated that any shot exceeding 214 ft./s. was capable of causing serious
injury.11
17. It was determined that a BB shot travelling 214 ft.s/s. would penetrate the eye of a 10-
month old pig some of the time. A BB travelling at 246 ft./s. would penetrate the eye
50 percent of the time. At 261.41 ft./s., the Appellant’s airgun exceeded both these
velocity standards.12
18. Det. O’Brien also testified that Crosman Pro77 handgun was designed to resemble
two different nine millimetre handguns.13
19. The Appellant was charged with the four offences set out at paragraph 1, above.
8 CAJ at para. 6. 9 TJ at p. 4. 10 CAJ at para. 7. 11 CAJ at para. 8. 12 CAJ, ibid. 13 TJ at p. 9.
5
C. Trial Judgement
20. At trial, the Appellant sought to exclude evidence obtained, specifically the airgun
itself and a statement made upon arrest, alleging violations of his rights under
sections 8 and 10 (b) of the Charter.
21. Furthermore, the Appellant argued that the airgun was neither a firearm nor a replica
firearm, within the meaning of the Criminal Code.
22. The trial judge decided to deal with the substantive issues and did not rule on the
Charter motions, except to comment on them parenthetically at the end of her
reasons.14
23. She held that, in order to sustain a conviction for pointing a firearm (s. 87), the Crown
must prove beyond a reasonable doubt that the airgun is a “firearm”. With respect to
the other three counts, the Crown must prove that the airgun is either a firearm or a
replica firearm.15
24. First, the trial judge held that she was bound by the Ontario Court of Appeal’s
jurisprudence in R. v. McManus (2006), 214 O.A.C. 77 and R. v. Labrecque, [2011]
O.J. No. 2059 (C.A.). She stated as follows:16
Turning to the law in regards to these issues, in Ontario right now, the law as set
out by the Ontario Court of Appeal in R. v. McManus and R. v. Labrecque is that
if the gun is not what has been called a "real powder fired bullet shooting gun",
the Crown must prove it is a weapon prior to any finding being made that it is a
firearm.
14 TJ at p. 11. 15 TJ at p. 5. 16 TJ, ibid.
6
25. Second, Alder J. held that the airgun, although it had similarities to two different nine
millimetre handguns, did not meet the Criminal Code definition of a “replica firearm”
set out at s. 84.17
26. Finally, Alder J. noted that, with respect to the charge for pointing a firearm,
regardless of the legal nature of the airgun, she would not have been satisfied beyond
a reasonable doubt that the Appellant had ever pointed the airgun in the direction of
another person.18
27. Accordingly, the Appellant was acquitted on all counts.
D. The Court of Appeal Judgement
28. The Crown appealed the Appellant’s acquittals to the Ontario Court of Appeal.
29. A five judge panel of the Court of Appeal heard the matter and unanimously allowed
the Crown’s appeal, setting aside the acquittals on counts 1, 3 and 4 (careless
handling of a firearm, carrying a weapon for a purpose dangerous to the public peace,
and carrying a concealed weapon) and ordered a new trial. The Court of Appeal did
not interfere with the Appellant’s acquittal on the charge of pointing a firearm, noting
that that the trial judge found as a fact that the Appellant did not point a firearm at this
friend.19
30. The Court of Appeal held that R. v. McManus and R. v. Labrecque were wrongly
decided and should be overturned.20
31. The Court of Appeal reached this decision on two grounds:
17 TJ at p. 9. 18 TJ at p. 8. 19 CAJ at para. 67. 20 CAJ at para. 35.
7
a. The Court of Appeal’s earlier jurisprudence is inconsistent with the Supreme
Court of Canada’s decision in R. v. Felawka21 and therefore should be
overruled.22
b. The position advanced by the Crown – that is, that an airgun which is capable
of bodily harm must not first meet the definition of “weapon” before it is
considered a “firearm” – is consistent with a proper interpretation of the
Criminal Code provisions.23
32. Accordingly, the Court of Appeal allowed the appeal on counts 1, 3 and 4, set aside
those acquittals and ordered a new trial on those charges.24
PART II – QUESTION IN ISSUE
33. As stated in the Appellant’s Notice of Appeal, this appeal raises the following issue
of law:
Must an airgun that otherwise that falls within the definition of “firearm” in
section 2 of the Criminal Code, also meet the definition for “weapon” in the same
section?
34. The Appellant submits that this question should be answered in the affirmative.
21 [1993] 4 S.C.R. 199. 22 CAJ at paras. 33-35. 23 CAJ at paras. 36-65. 24 CAJ at para. 67.
8
PART III – STATEMENT OF ARGUMENT
A. Overview
35. The Appellant’s position rests on the following three propositions:
A. The decision in R. v. Felawka should be confined to “real” firearms
B. The Appellant’s position is supported by a proper reading of the Criminal
Code
C. The Court of Appeal’s interpretation leads to absurd, unpredictable and unjust
results
36. First, some issues of definition and nomenclature will be addressed.
37. Second, the relevant provisions in the current Criminal Code and their predecessor
sections will be examined.
38. Next, the issue of the statutory “definitional loop” will be explored.
39. Finally, the three above propositions will be explained in detail.
B. Definitions and nomenclature
40. The terms “air-gun”, “airgun”, “pellet rifle”, “pellet gun”, “BB gun” or “BB rifle” are
all used to describe essentially the same item: a barreled object that discharges a
projectile by means of compressed air, either through manual compression or an
attached canister. For simplicity’s sake, the term “airgun”, the word used by the Court
of Appeal in this case, will be employed.
41. For definitional clarity, airguns can be placed into three categories:
a. Low-powered airguns - Airguns that would not meet the “pig’s eye test”;
that is airguns with a muzzle velocity of less than 246 feet per second.
b. Medium-powered airguns - Airguns with a muzzle velocity of more than
246 feet per second, but less than 500 feet per second.
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c. High-powered airguns – Airguns with a muzzle velocity of more than 500
feet per second.
42. Low-powered airguns are not the subject of this appeal. Since they do not meet the
threshold for being capable of causing “serious bodily injury or death”, they do not
meet the definition of “firearm” in the Code.
43. High-powered airguns, on the other hand, are explicitly categorized in the Criminal
Code, at s. 84 (3) (d):
(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, the following 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
exceeding 5.7 Joules.
44. The inference from s. 84 (3) (d) is clear – high-powered airguns are considered
“firearms” for the purpose of the Code and the Firearms Act.
45. In order to possess and acquire a high-powered airguns, one must qualify for a
Possession and Acquisition Licence through the process set out in the Firearms Act
and attendant regulations.
46. This appeal concerns medium-powered airguns – airguns that are capable of causing
serious injury or death, but are exempted from the Firearms Act licencing scheme.
47. The fact that these medium-powered airguns are exempt from the background check,
safety training and entire Firearms Act regulatory scheme is significant and is a
10
thread that runs throughout the interpretation urged by the Appellant in the case at
bar.
48. “Real” firearms are unique objects under the criminal law. One is required to pass
numerous regulatory hurdles in order to gain the privilege of possessing these objects.
For restricted and prohibited firearms, they must be lawfully registered.
49. Once possessed lawfully, firearms are subject to yet more regulatory and legislative
requirements.
50. For example, pursuant to paragraph 117 (h) of the Firearms Act, Parliament provided
for the creation of Regulations “regulating the storage, handling, transportation,
shipping, display, advertising and mail-order sale of firearms…”25
51. Section 86 (2) of the Code creates the offence of contravening such a Regulation.
52. The “safe storage, handling, transportation” offences are also comparatively unique at
law. The Code criminalizes a failure to comply with the storage Regulations,
regardless of whether or not any person was potentially or actually endangered by the
contravention of the Regulations.
53. And this makes good common sense. Someone who lawfully possesses a “real”
firearm through the existing regulatory scheme has been put on notice that he or she
is entering in a zone of highly regulated conduct.
54. No licence is required to possess or acquire a medium-powered airgun. Nonetheless,
the effect of the Court of Appeal’s decision would be to subject such airguns to the
safe storage, handling, transportation offences set out at s. 86 (1) of the Code.26
25 Firearms Act, S.C. 1995, c. 39 s. 117 (h). 26 CAJ at para. 59.
11
C. Let’s Start at the Very Beginning - The Legislative History
Canada’s first Criminal Code: Distinguishing “airguns” from “firearms”
55. A history of the definition of the word “weapon” can be traced back to Canada’s first
Criminal Code (Code) in 1892. Section 3 (as it then was) of the Code defined
“offensive weapon” in these words:27
3(r) The expression “offensive weapon” includes any gun or other firearm, or
air-gun, or any part thereof, or any sword, sword blade, bayonet, pike, pike-head,
spear, spear-head, dirk, dagger, knife, or other instrument intended for cutting or
stabbing, or any metal knuckles, or other deadly or dangerous weapon, and any
instrument or thing intended to be used as a weapon, and all ammunition which
may be used with or for any weapon.
[emphasis added]
56. The 1892 definition of “offensive weapon” is informative in two important ways.
57. First, since Canada’s earliest Code, “air-gun” has been differentiated from “firearm”
(i.e. “firearm, or air-gun”).
58. And second, in 1892, Parliament categorically considered an “air-gun” an “offensive
weapon” regardless of the intention of the user (“‘offensive weapon’ includes any
gun, or other firearm, or air gun…and any instrument or thing intended to be used as
a weapon…”).
The present definition
59. The present definition of “offensive weapon” (“weapon”)28 is quite different from its
1892 predecessor, and reads:29
“weapon” means any thing used, designed to be used or intended for use
27 Criminal Code, R.S.C. 1892, c C-29, s. 3(r). 28 “Offensive weapon” has the same meaning as “weapon”; Criminal Code, R.S.C. 1985, c C-46, s. 2. 29 Criminal Code, R.S.C. 1985, c C-46, s. 2.
12
(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;
60. Notably, “air-gun” is not listed in this clause as always being a “weapon”, despite
being explicitly listed in such a manner in the 1892 Code definition. “Firearm”, in
contrast, is listed, just as it was when the first Code was authored over one hundred
years ago.
61. It follows, of course, that presently, an “air-gun” is only categorically a “weapon” if it
meets all the elements of the current definition of “firearm”.
62. The term “firearm” is also defined at s. 2:
“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;
D. The statutory “definitional loop”
63. In its judgement, the Ontario Court of Appeal referred to “the alleged definitional
loop” at play within the definitions of “weapon” and “firearm”.30
64. This refers to the fact that the definition of “firearm” itself refers to “weapon”,
seemingly as a definitional requirement:
“firearm” means a barrelled weapon from which any shot, bullet…
30 CAJ at para. 61.
13
65. Notably, the Code does not state that a firearm must be a barreled “object”, etc. .
Rather, the definition reads, “barreled weapon”.
66. At the same time, the definition of “weapon” refers to firearms as follows:
[…] and, without restricting the generality of the foregoing, includes a firearm;
67. Accordingly, the conundrum becomes evident: if “weapon” is a required element of
the “firearm” definition, how can this be reconciled with the definition of “weapon”
that states that a firearm is always a weapon?
68. The same self-referential definition appears in the French definition of firearm (arme
à feu) as well:
Toute arme susceptible, grâce à un canon qui permet de tirer du plomb, des balles
ou tout autre projectile
69. The Court of Appeal, in its reasons, agreed with the Crown that, “the way out of the
alleged definitional loop is to treat the term ‘weapon’ in the definition of ‘firearm’ as
simply a descriptor rather than a formal element.”31
70. In other words, the word “weapon” in the definition of “firearm” was essentially read
down to mean “object”, as opposed to an object which met the legal definition of
“weapon” within the meaning of section 2 of the Code.
An alternative solution
71. The Appellant presents an alternative route to solving the “definitional loop”
dilemma.
31 Ibid.
14
72. It is apparent that the term “firearm” itself conveys an ordinary meaning in the
English language.
73. This meaning can be easily divined with reference to any number of dictionary
definitions.
74. These definitions consistently invoke two key elements:
a. The firing of a projectile or shot;
b. By means of gunpowder
75. The Merriam-Webster English Dictionary defines “firearm” as follows:
“a weapon from which a shot is discharged by gunpowder —usually used of small
arms”
76. According to Random House Kernerman Webster's College Dictionary:
“a weapon, as a rifle or pistol, from which a projectile is fired by gunpowder”
77. And the Collins English Dictionary – Complete and Unabridged:
“a weapon, esp a portable gun or pistol, from which a projectile can be discharged
by an explosion caused by igniting gunpowder, etc.”
78. Of course, the Criminal Code, at s. 2(1), has also given the term “firearm” a specific
legal meaning, namely a “barrelled weapon from which any shot…”
79. Nonetheless, the word “firearm” cannot be divorced from its ordinary meaning. It
connotes an item which discharges a projectile by means of igniting gunpowder.
15
80. Parliament, through s. 2 (1) of the Code, has sought to broaden that definition
somewhat, by using the phrase “barrelled weapon” as part of the definition of
“firearm”.
81. Accordingly, an object is considered a legal “firearm” in one of two ways – either
through the “weapons” definition or because the object is what is colloquially and
ordinarily referred to as a firearm – namely it is powered by gunpowder.
82. Such a reading would lead to an entirely harmonious result. The object becomes a
firearm either by legal fiction (the offensive use or intention clause) or by ordinary
meaning (it is literally a “firearm”). The definition could then be broken down as
follows:
a. It is a barrelled [“thing used, designed to be used or intended for use in
causing death or injury to any person, or for the purpose of threatening or
intimidating any person”] from which any shot, bullet or other projectile can
be discharged… etc.
or
b. It is a barrelled [object from which a projectile can be discharged by an
explosion caused by igniting gunpowder] from which any shot, bullet or other
projectile can be discharged … etc.
83. In fact, therefore, the only solution to the “definitional loop” is to adopt the ordinary
definition and dictionary meaning of firearm within the legal definition of “weapon”.
84. This approach has been endorsed by the courts – explicitly in Labrecque by the
summary conviction appeal court and implicitly in Felawka by this Court.
16
85. In Labrecque¸ Rutherford J. linked the definition of “firearm” to a “conventional
powder-fired bullet-shooting gun” or a “real powder-fired bullet-shooting gun”.32
86. In so doing, he relied on the Supreme Court’s guidance in Felawka.
87. In Felawka, both the majority and dissenting judges explicitly accepted that a .22
calibre rifle was a “firearm” despite the trial court’s finding that it had not been used
or intended to be used as a weapon.33
88. Cory J. interpreted the word “firearm” literally, and with the facts of the case in mind.
The “firearm” Cory J. contemplated was a something “expressly designed to kill or
wound”; something that operates “with deadly efficiency”; something that, by its
very nature, “presents the ultimate threat of death to those in its presence”.34
89. In other words, the “firearm” Cory J. considered was not just “any barrelled weapon
from which any shot….can be discharged…capable of causing serious bodily injury”
(i.e. the Code definition of “firearm”); rather, it was the firearm (or those like it) that
was at issue in this case: a .22 calibre rifle.
90. In fact, the very language Cory J. used in Felawka lends credence to Rutherford J.’s
view that Felawka was decided “with the conventional powder-fired bullet-shooting
gun in mind”.35
91. The Court of Appeal, however, chose to treat the word “weapon” in the firearm
definition as “simply a descriptor rather than a formal element.”36
32 R. v. Labrecque, [2010] O.J. No. 389 (S.C.J.) at paras. 7, 9. 33 R. v. Felawka, [1993] 4 S.C.R. 199. 34 Felawka at para 14. 35 Labrecque (S.C.J.) at para. 7. 36 CAJ at para. 61.
17
92. This, the Appellant respectfully submits, was an arbitrary choice. The word
“weapon”, like the word “firearm”, is a defined term in the Criminal Code.
93. However, this reading avoids the issues of absurdity and unfairness addressed in
detail below.
E. The decision in R. v. Felawka should be confined to “real” firearms
94. In R. v. Felawka, the Supreme Court addressed the definition of “weapon” within the
meaning of s. 2 of the Code.37
The facts
95. The facts in Felawka were relatively straightforward.38
96. Mr. Felawka held a valid firearms acquisition certificate (the precursor to today’s
Possession and Acquisition Licence).
97. He took his .22 calibre file and went shooting with a friend outside the town of Hope,
British Columbia.
98. He decided to return home by public transit, taking the Skytrain. He carried his rifle
wrapped in his jacket.
99. The trial judge accepted Felawka’s evidence about why he had wrapped the rifle in
his jacket:39
The accused has testified before me, has done so in a candid manner. I have no
reason not to accept the evidence of the accused with respect to his activities on
the day in question … He consciously concealed the rifle amongst his apparel
37 R. v. Felawka, [1993] 4 S.C.R. 199 [“Felawka”]. 38 These facts are adapted from the judgement of Cory J., ibid. at paras. 11-15. 39 R. v. Felawka, [1991] B.C.J. No. 3552 (B.C.C.A.).
18
because he knew it would not be an appropriate thing to do, that is to expose his
rifle to members of the public.
100. Regardless of Felawka’s intentions, two passengers became alarmed and notified a
Skytrain employee of their concerns.
101. When the Skytrain employee asked Felawka what he had in his jacket, he laughingly
replied that he was "going on a killing spree”. At trial, the judge accepted Felawka’s
evidence that he made this unfortunate comment in jest.
102. Felawka disembarked from the Skytain and boarded a connecting bus. He was
approached by three plain clothes police officers who went to the back of the bus,
where Felawka was sitting. One of them called out, “City Police”. At that time,
Felawka appeared to reach for his rifle. The officers drew their firearms and arrested
him. It was later discovered that his rifle had a magazine with one round inside it.
103. Felawka was charged with two offences: carrying a weapon for a purpose dangerous
to the public peace and carrying a concealed weapon.
104. At trial, Felawka was acquitted of the charge of carrying a weapon for a purpose
dangerous to the public peace. As Cory J., writing for a majority of the Supreme
Court, summarized it:40
[The trial judge] found that the appellant's statement that he was going on a
killing spree, although foolish, was made in jest. He was not convinced beyond a
reasonable doubt that Felawka was reaching for his gun when the police
confronted him. Rather, he thought that it might have been a natural reaction for
Felawka to move towards his right in order to get away from what he took to be
the danger presented by the three plain clothed officers. There was then no
evidence that the appellant had any intention to use the weapon for a purpose
dangerous to the public peace and that charge was dismissed.
105. However, the trial judge did find Felawka guilty of carrying a concealed weapon.
40 Felawka at para. 15.
19
The British Columbia Court of Appeal
106. Mr. Felawka appealed his conviction to the British Columbia Court of Appeal.41
107. At the Court of Appeal, Felawka argued that, owing to his lack of any offensive
intention for concealing the firearm, he had not satisfied the mens rea requirement for
the offence.
108. In its decision, the Court of Appeal affirmed its earlier holding in R. v. Lemire, [1980]
B.C.J. No. 91742 and stated that carrying a concealed weapon is a general intent
offence. The mens rea element requires no more than an intention to conceal the
weapon. No further offensive or malevolent intent is required.
109. Gibbs J.A. dissented. He held that the issue in this case was not one related to the
mens rea of the offence, but whether or not the firearm Mr. Felawka had concealed
was indeed a “weapon” within the meaning of the section.
110. He held that the definition of “weapon” at section 2 of the Criminal Code, should not
be read to include a firearm, without regard to its use or intended use:
A contrary interpretation to the effect that a firearm is a weapon regardless of use
or intended use by the accused leads to a consequence here which I regard as a
violation of a fundamental principle of justice. Accepting for purposes of this
analysis that Mr. Justice Toy is correct in his conclusion that: "The mens rea
requirement of the offence is the accused's knowledge of the characteristics of the
article or device that is alleged to be a weapon and a co-existent intention that its
presence will not be detected or observed by other citizens while it is being
carried," the consequence is that although altogether innocent of any blameworthy
conduct or intent, either criminal, or moral, or otherwise anti-social, the appellant
stands convicted of a crime punishable by a term of imprisonment not exceeding
five years. I cannot accept that as a just result, that a person can be convicted
under s. 89 in the absence of proof of a guilty mind.
It may seem contradictory to refer t[o] the absence of blameworthy conduct or
intent, and the absence of a guilty mind, in conjunction with carrying a rifle in
41 R. v. Felawka, [1991] B.C.J. No. 3552 (B.C.C.A.). 42 Leave to appeal to the S.C.C. refused, [1981] S.C.C.A. No. 318.
20
public. However, the appellant had a firearms acquisition permit so he had a right
to have the rifle in his possession. And, given the present state of the gun laws in
Canada, he was not in breach of any law in having it in his possession in a public
place. Furthermore, he concealed it with his jacket for a perfectly laudable
purpose, because he was of the view that "it's not proper to carry a gun out in the
open". He was, therefore, innocent of any blameworthy or anti-social conduct or
intent.
111. He further expanded upon the consequences of reading the definition of “weapon” in
section 2 to always include firearms:
If the focus is on “concealed” rather than on “weapon”, on Mr. Justice Toy's
definition of the mens rea requirement a significant constituency of other morally
innocent persons is at risk of conviction: the hunter with shotguns or rifles in the
trunk of his car for example, or the veterinarian with a case in which he carries
firearm devices designed for tranquillizing or slaughtering domestic animals, or
the carrier of a starter gun or very pistol in a satchel. With respect, I think it does
not help to leave those kinds of cases to be decided when they arise. If there is to
be predictability and consistency in the law, and I believe those to be imperative
characteristics, the mens rea requirement of s. 89 must be of universal application
unless exceptions are clearly spelled out for all to see in the Criminal Code.
At the S.C.C. - Cory J. for the majority
112. Cory J. wrote for the majority and affirmed the judgement of the Court of Appeal. In
his reasons, he dealt squarely with the issue of whether or not a firearm is always a
“weapon” within the meaning of s. 2 of the Code.
113. In his interpretation of the definition of “weapon”, Cory J. highlighted the unique
nature of firearms:43
In my view, a firearm must come within the definition of a weapon. A firearm is
expressly designed to kill or wound. It operates with deadly efficiency in
carrying out the object of its design. It follows that such a deadly weapon can, of
course, be used for purposes of threatening and intimidating. Indeed, it is hard to
imagine anything more intimidating or dangerous than a brandished firearm. A
person waving a gun and calling "hands up" can be reasonably certain that the
suggestion will be obeyed. A firearm is quite different from an object such as a
carving knife or an ice pick which will normally be used for legitimate
purposes. A firearm, however, is always a weapon. No matter what the intention
43 Felawka at para. 21.
21
may be of the person carrying a gun, the firearm itself presents the ultimate
threat of death to those in its presence.
114. It is clear, therefore, that Cory J.’s views were buttressed by the characteristics of
real, powder-fired firearms. As he put it, they are “expressly designed to kill or
wound.” They operate “with deadly efficiency”. They present “the ultimate threat of
death”.
At the S.C.C. - Lamer C.J.’s dissent and McLachlin J.’s dissent
115. There were two separate dissenting judgements in Felawka – Lamer C.J. and
McLachlin J. (as she then was). Both dissenting opinions addressed the issue of
whether or not a firearm is always a “weapon” within the meaning of section 2.
116. Lamer C.J. would have held that a firearm’s status as “weapon” is dependent on the
intention of the person carrying it.44
117. First, he cited Gibbs J.A.’s view that the plain meaning of the definition of “weapon”
lent itself to such a view:45
I agree with Gibbs J.A.'s construction of s. 2 that,
[t]he "foregoing generality" referred to, in my opinion, is the word
"anything" and what the clause means is that "anything", without
restricting its ordinary meaning, includes a firearm as defined in s. 84, and
that it only becomes a weapon if used or intended for use to cause death or
injury, or to threaten or intimidate.
((1991), 68 C.C.C. (3d) 481, at p. 496.)
118. Second, he adopted Gibbs J.A.’s concern about the inequities of the majority’s
view:46
44 Felawka at para. 2. 45 Felawka at para. 3. 46 Ibid.
22
I also agree with Gibbs J.A. (at p. 497) that an interpretation of s. 2 which finds
that a firearm is a weapon regardless of use or intended use by an accused,
. . . would produce an undesirable anomaly or inconsistency by way of two
classes of persons at risk under s. 89. One class would be concealers of
non-firearms objects, regardless of how lethal the objects may be, who
will enjoy the benefit of paras. (a) and (b). The other would be concealers
of firearms who would be denied that benefit with the result that for that
class of persons, s. 89 becomes in essence, an absolute prohibition section.
119. Finally, Lamer C.J. predicted that injustice could arise from the strict reading
proposed by the majority:
Furthermore, I am concerned that s. 2 not be interpreted in a manner which could
produce unjust results. I do not think that the morally blameless person who
conceals a gun simply to keep it away from a curious child, and not for the
purpose of causing death or injury, or to intimidate or threaten, should be guilty of
the criminal offence of concealing a weapon.
120. McLachlin J. (as she then was) also dissented separately. She held that:47
…I also agree with the interpretation given to the section by Gibbs J.A., an
interpretation adopted by the Chief Justice, that a firearm only becomes a weapon
"if used or intended for use to cause death or injury, or to threaten or intimidate".
121. Unlike Lamer C.J., however, she did not address the issue of the constitutionality of s.
89 of the Code.
Applying Felawka to the case at bar
122. In its judgement, the Court of Appeal relied on this Court’s decision in Felawka for
the proposition that McManus and Labrecque were wrongly decided and should be
overturned.
123. As Rosenberg J.A. put it:48
47 Felawka at para. 51. 48 CAJ at para.
23
In my view, given this history, Felawka is controlling and an object, whether it is
a conventional powder-fired gun or a spring or gas fired gun, will fall within the
definition of “firearm” in s. 2 provided there is proof that any shot, bullet or other
projectile can be discharged from the object and that it is capable of causing
serious bodily injury or death to a person.
124. In Felawka, both Lamer C.J. and McLachlin J. (as she then was) foresaw the potential
injustice that can arise from a strict application of the “weapon” definition in s. 2 of
the Code.
125. That injustice is apparent in the case at bar.
126. The airgun that Mr. Dunn possessed is one that can be bought without licence,
authorization or background check. There are no Regulations or legislation specifying
the prescribed manner of use, transport, storage, display or handling.
127. In addition, the trial judge found as a fact that the individual with whom Mr. Dunn
interacted “was never threatened or intimidated.”49
128. The case at bar is an opportunity for this Court to limit the strict application of
Felawka to the object that Cory J. was clearly describing in his reasoning – a real
gunpowder fired firearm.
129. These are the objects that are “expressly designed to kill or wound”, that operate
“with deadly efficiency” and that present “the ultimate threat of death”.50
130. This distinction was drawn by Rutherford J. of the Ontario Superior Court of Justice
in R. v .Labrecque. He stated as follows:51
A majority in the Supreme Court in Felawka held that a firearm was by its very
nature, a weapon. Clearly, however, that was a conclusion reached with the
49 TJ at p. 8. 50 Felawka at para. 21. 51 Labrecque (S.C.J.) at para.7.
24
conventional powder-fired bullet-shooting gun in mind. Cory J. says as much
at paragraph 21 in his majority judgment.
131. This Court can explicitly state that which Cory J. only stated implicitly. And by so
doing, it can blunt the harsh effects of a strict application of the “weapon” definition
in s. 2 of the Code.
The effect of R. v. Covin – a purposive interpretation of the word “firearm”
132. This Court has already engaged in a purposive analysis of the word “firearm” in R. v.
Covin.52 The Appellant submits that this Court should take guidance from the
nuanced and restricted interpretation applied in that case.
133. In Covin, the Supreme Court was called upon to consider the definition of “firearm”,
albeit in a different context. The Covin brothers were charged with using a firearm
while committing an indictable offence (what is now s. 85 of the Code). The accused
used a damaged CO2 pistol to rob a credit union.
134. The definition of “firearm” under s.82(1) (now s.2) is almost identical53 to the current
definition. Section 82(1), as it was then, read:
“firearm” means any barrelled weapon from which any shot, bullet or other
missile 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 barreled
weapon and anything that can be adapted for use as a firearm.
52 R. v. Covin, [1983] 1 SCR 725. 53 The current definition has replaced “any barreled weapon” with “a barreled weapon”, and “missile” with
“projectile”.
25
[emphasis added]
135. This Court noted that s. 82(1) not only included “anything” that has the potential of
becoming a firearm through adaptation (i.e. “can be adapted for use as a firearm”),
but also includes “frames and receivers” irrespective of their adaptability. Thus, even
firearms inoperative beyond repair would still be “firearms”, inasmuch as there was a
frame or receiver.54
136. Morevoer, the Court, by using the French version of the equivalent section and by
applying common sense, ruled that the central idea behind s.82(1) was that frames
and receivers must eventually meet the test of adaptability for becoming dangerous
weapons (even if it was not explicitly stated in the English version). The Court then
took this reading one step further, expressing concerns with remoteness, as most
pieces of “metal, pipe or wood can, given time, tools and expertise” be said to be
adaptable for use as a “firearm”.55
137. Thus, the Court determined that an acceptable amount of adaptation and the time
required therefore for something to remain within the s. 82 (1) (now s. 2) definition is
dependent upon the nature of the offence where the definition is involved. On
the facts of the case before it, the Supreme Court determined that there was no
evidence of the necessary ingredients for an operable firearm or the ability to place it
in operable form, either at the time and place of the offence or during the flight that
54 Covin at paras. 6-8. 55 That is, they can become capable of being loaded and fired in such a way as to cause bodily injury.
26
followed. Accordingly, an acquittal was affirmed.56
138. In essence, what the Court provided was a purposive approach to interpreting the
definition of “firearm”. While the decision in Covin added another layer to the Code’s
already nuanced definition of “firearm”, it is also gave trial judges the flexibility (and
a precedent) that allowed them to apply common sense to the unique facts each dispute
provides when considering the definition of “firearm” in order to render verdicts that
are fair to the accused and not unreasonable or unnecessarily harsh.
F. The Appellant’s position is supported by a contextual reading of the Criminal Code
139. Since 1892, the focus of the definition of “weapon” has shifted gradually away from
an itemized list of things that might commonly be used in assaults toward a definition
of “weapon” that considers the result of any thing’s use (part (a) of s.2) or the
subjective purpose for which any thing was used (part (b) of s.2).
140. The current definition also has an objective component—things exclusively
“designed to be used” to cause death, injury or to threaten or intimidate persons are
always weapons.57
141. Moreover, as confirmed by this Court in Felawka, the final clause in the “weapon”
definition deems any “firearm” to always be a “weapon”, regardless of the intention
of the user.58
56 Covin at para. 9. 57 E.g. Throwing stars; a broadsword; or switchblade. 58 R. v. Felawka, [1993] 4 SCR 199. E.g. A hunting rifle is inherently a “weapon”, even if lies forgotten in the corner
of an attic (A.F. at para. 22).
27
Sections 244 and 244.1 of the Code
142. Parliament has made further efforts to distance airguns from firearms in more recent
amendments to the Criminal Code.
143. Until 1995, it was an indictable offence under then s. 244 to discharge a “firearm” or
“air gun” at, or to cause bodily harm in any way to any person. The section, as it was
then, read:59
Everyone who, with intent
(a) to wound, maim or disfigure any person,
(b) to endanger the life of any person, or
(c) to prevent the arrest or detention of any person,
discharges a firearm, air gun or air pistol at any person, whether or not that person
is the one mentioned in paragraph (a), (b) or (c), is guilty of an indictable offence
and liable to imprisonment for a term not exceeding fourteen years.
144. On December 5, 1995, Bill C-68: An Act respecting firearms and other weapons,
received Royal Assent. The Honourable Allan Rock, Minister of Justice at the time,
described the bill as all about preserving the “safe, civilized and peaceful nature” of
Canada.60 In detailing the contents of the bill’s purpose during his second-reading
speech in the House of Common, the Honourable Allan Rock noted the Bill’s purpose
in protecting public safety.61
145. In this same bill, Parliament also separated section 244 in two sections: one section
dealing with discharging firearms with intent, and the other section dealing with
discharging airguns with intent. The new sections are reproduced below:
59 Criminal Code, R.S.C. 1985, c. C-46, s. 244 (in effect December 31, 1995). 60 The Supreme Court of Canada would later re-affirm that firearm legislation was in pith and substance about
“public safety” in Reference re: Firearms Act (Canada), 2000 SCC 31 at para 20. 61 House of Commons Debates, vol 133, No 154, 1st Sess, 35th Parl. February 16, 1995 at p 9706-9707. (“First,
tough measures to deal with the criminal misuse of firearms; second, specific penalties to punish those who would
smuggle illegal firearms; and third, measures overall to provide a context in which the legitimate use of firearms can
be carried on in a manner consistent with public safety.”)
28
s.244. (1) Every person commits an offence who discharges a firearm at a
person with intent to wound, maim or disfigure, to endanger the life of or to
prevent the arrest or detention of any person — whether or not that person is
the one at whom the firearm is discharged.
(2) Every person who commits an offence under subsection (1) is guilty of an
indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of
the offence or if the offence is committed for the benefit of, at the direction
of, or in association with, a criminal organization, to imprisonment for a term
not exceeding 14 years and to a minimum punishment of imprisonment for a
term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years; and
(b) in any other case, to imprisonment for a term not exceeding 14 years
and to a minimum punishment of imprisonment for a term of four
years.
* * * *
s.244.1 Every person who, with intent
(a) to wound, maim or disfigure any person,
(b) to endanger the life of any person, or
(c) to prevent the arrest or detention of any person,
discharges an air or compressed gas gun or pistol at any person, whether or
not that person is the person mentioned in paragraph (a), (b), or (c), is guilty
of an indictable offence and liable to imprisonment for a term not exceeding
fourteen years.
146. In the very same bill that brought in mandatory minimums for certain firearm
offences (including the new s. 244(1)), Parliament was careful to distinguish “air
gun” from “firearm” and to impose different sanctions for each.
147. This legislative distinction is critical. After all, the actus reus and mens rea for each
offence are virtually identical—the lone difference in discharging a “firearm” with
29
intent to harm, endanger, or prevent arrest; or discharging an “airgun” with the intent
to harm, endanger, or prevent arrest, is the “weapon” used.62
148. Nevertheless, Parliament insisted on treating one of these offences more seriously,
thus signalling an awareness of firearms’ more destructive potential.
149. Indeed, pursuant to s. 244.2, anyone who intentionally discharges a firearm into or at
a “place” where a person is present, or who discharges a firearm while being reckless
as to whether another person is present in the place, is guilty of an indictable offence
and subject to a minimum punishment of imprisonment for a term of four years
(under s.244.2(2), “place” means any part of a building or structure, and includes any
motor vehicle, vessel, railway vehicle, container or trailer). There is no similar
provision for the reckless discharge of an “air-gun”.
150. If, however, the Court of Appeal’s decision is upheld, and an “airgun” is necessarily a
“firearm” whenever it is capable of causing bodily harm, a person can be charged and
imprisoned for four years for recklessly firing an airgun at a “place”, even if the
airgun is utterly incapable of penetrating that building, structure, motor vehicle or
container. Surely this was not the intention of Parliament.
151. The Court of Appeal addressed this contention, holding that ss. 244 and 244.1 provide
“a flexible scheme to account for the usually less dangerous circumstances in which
the offender makes use of an air gun.”63
62 An “airgun” fired with the intent to cause bodily harm to someone would obviously satisfy the definition of
“weapon”, quite apart from considering whether the apparatus used was a “firearm”. 63 CAJ at para. 64.
30
152. The Court offered the example of s. 335 (“Taking motor vehicle or vessel or found
therein without consent”) and noted that “[g]iven the broad definition of theft in s.
322, some conduct amounting to joy-riding could also constitute the indictable
offence of theft under s. 334.”64 In support of this proposition, Rosenberg J.A. cited
this Court’s decision in R. v. LaFrance.65
153. With respect, this explanation is insufficient.
154. Parliament has created two offences. Both are identical in terms of the act and mental
element, save and except for one single detail – the object used in the commission of
the offence.
155. Section 244 refers to the discharge of a “firearm”. On the other hand, s. 244.1 refers
to the discharge of an “air or compressed gas gun or pistol”.
156. The offence of “joy-riding” under s. 335, could in some circumstances overlap with
the offence of theft. They do not, however, share the same essential elements. They
have different mens rea and actus reus requirements.
157. By reading s. 244 and 244.1 together, there is only one logical conclusion that can be
reached – absent some offensive intention, a “firearm” is conceptually distinct from
an “airgun”.
Ambiguity and the strict construction rule
158. Given the clear distinction made in the Criminal Code between firearms and airguns
for the purposes of ss. 244, 244.1 and 244.2, it cannot be said that the Court of
64 Ibid. 65 [1975] 2 S.C.R. 201.
31
Appeal’s interpretation results in a clear and coherent definition of “firearm” that can
be transferred seamlessly throughout the statute in question.
159. Accordingly, should this Court find merit in the Court of Appeal’s view, to such an
extent that ambiguity is raised, it is respectfully submitted that resort must be made to
the rule of strict construction of penal statutes.
160. This case is clearly about the interpretation of criminal law, that is, penal legislation.
161. The law of strict construction of penal statutes operates to prevent legislative
ambiguity from resulting in unfair or harsh consequences for an accused person.
162. Of course, given the modern approach to statutory construction and the “remedial
construction” provision found at s. 12 of the Interpretation Act, this principle can
only be applied where ambiguity is apparent in the legislation.66
163. As the Supreme Court put it in Daoust:67
[W]e must also bear in mind that some principles of interpretation may only be
applied in cases where there is an ambiguity in an enactment. As Iacobucci J.
wrote in Bell ExpressVu, supra, at para. 28: “Other principles of interpretation --
such as the strict construction of penal statutes and the ‘Charter values’
presumption -- only receive application where there is ambiguity as to the
meaning of a provision.”
66 Interpretation Act, R.S.C., 1985, c. I-21, s. 12. 67 R. v. Daoust, [2004] S.C.J. No. 7 at para. 31.
32
164. Accordingly, where there is true unresolved ambiguity in the text of the Code, the
interpretation which is more favourable to the accused should be adopted.68
165. In Covin, the Supreme Court took a similarly narrow reading, noting that the
provision carried a one-year mandatory minimum sentence:69
But one must not lose sight of the fact that Parliament is penalizing additionally
the use of a firearm, even in cases where its use was, qua an offensive weapon, an
essential component of the main offence. The fact that the Crown has to meet this
burden is understandable when considering that there is a mandatory jail sentence
of at least one year added to the sentence imposed for the main offence.
166. In the case at bar, where the Court of Appeal’s interpretation would result, in some
cases, in four year mandatory minimum sentences, it is respectfully submitted that
this Court should resolve any ambiguity in favour of the accused and, subject to
future legislative clarification, restrict the application of the “firearm” definition to
real, gunpowder fired firearms, absent evidence of an offensive intention.
Safe storage – a curious omission
167. Rosenberg J.A., in allowing the appeal, relied on the issue of the safe storage of
medium-powered airguns:70
Crown counsel provided a particularly good example. Section 86 of the Code
makes it an offence to, among other things, use, carry or store a firearm in a
careless manner or without reasonable precautions for the safety of other persons.
If an airgun that otherwise meets the definition of “firearm” in s. 2 because of its
dangerous nature and its capability for causing injury, is not found to be a firearm
68 R. v. Dunn, [1995] S.C.J. No. 5 at para. 28, citing Driedger on the Construction of Statutes (3rd ed. 1994), by Ruth
Sullivan, at pp. 357-362; Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at pp. 395-
401. 69 Covin at para. 13. 70 CAJ at para. 59.
33
because it does not also meet the use and intended use requirements in the
definition of “weapon”, it escapes regulation under s. 86. It would be lawful to
leave such a dangerous object in an area where children might have access to it, or
to shoot it in a dangerous manner. Liability would attach only if someone actually
was injured or killed. Such an interpretation would not be consistent with the
public safety objective of the legislation.
168. Paragraph 117 (h) of the Firearms Act, provides for the creation of Regulations
“regulating the storage, handling, transportation, shipping, display, advertising and
mail-order sale of firearms…”
169. It is anomalous, however, that had Parliament indeed intended to extend the storage,
transportation, handling, etc. requirements to medium-power airguns, that they be
specifically exempted from “the provisions of the Firearms Act” pursuant to s. 84 (3)
(d).
170. Moreover, even had Parliament sought to exempt such medium-power airguns from
the possession/licensing requirements,71 but still felt that public safety required
minimum storage, transportation and handling requirements, the statute could have
been appropriately tailored to meet that objective.
171. In fact, this is precisely what the legislature explicitly contemplated with regards to
antique firearms. Pursuant to s. 84 (3.1), notwithstanding the exemption for licensing
purposes, antique firearms are explicitly considered firearms for the “purposes of
71 E.g., sections 91, 92, etc.
34
regulations made under paragraph 117(h) of the Firearms Act and subsection 86(2) of
this Act.”
172. In other words, the only class of “exempt” firearms which remain subject to the
Firearms Act Regulations are antique firearms. Medium-power airguns remain
exempt.
173. This is the clear expression of the legislature’s will with regards to the Regulations
and the Criminal Code offence under s. 86 (2). It can hardly be said, therefore, that a
similar result with regard to s. 86 (1) would “thwart” the intention of Parliament.
G. The Court of Appeal’s interpretation leads to absurd and unjust results
Sections 244 and 244.1 – an absurd result
174. As noted above, the Court of Appeal’s judgement leads to an illogical result in the
interpretation of ss. 244 and 244.1.
175. If an airgun is a “firearm” within the meaning of the Criminal Code, it ought to be
captured by the “discharge” offence set out at s. 244. If that is the case, the legislative
distinction between s. 244 and s. 244.1 evaporates. Section 244.1 is rendered
redundant. That could not possibly have been the intention of Parliament in
deliberately enacting these two distinct provisions.
35
176. It is a well-established principle of statutory interpretation that the legislature does not
intend to produce absurd consequences. As the Supreme Court held, an interpretation
can be considered absurd if it leads to ridiculous or frivolous consequences, if it is
extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is
incompatible with other provisions or with the object of the legislative enactment.
This Court adopted Sullivan’s note that “a label of absurdity can be attached to
interpretations which defeat the purpose of a statute or render some aspect of it
pointless or futile.”72
177. And yet, if the Court’s judgement were to be affirmed, that would be the result.
Section 244.1 would be rendered utterly pointless and futile, contrary to Parliament’s
intentions.
PART IV – SUBMISSION AS TO COSTS
178. The Appellant makes no submission on the issue of costs.
PART V – ORDER REQUESTED
179. The Appellant requests the following relief:
a. That his appeal be granted and that the decision of the Ontario Court of Appeal
ordering a new trial on the charges of careless handling of a firearm, carrying a
72 Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 at para. 27, citing Côté, Pierre‑André. The Interpretation of
Legislation in Canada, 2nd ed. Cowansville, Que.: Yvon Blais, 1991 at pp. 378-80 and Sullivan, Ruth. Driedger
on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994 at p. 88.
36
weapon for a purpose dangerous to the public peace, and carrying a concealed
weapon be set aside, and the trial judgement be restored, dismissing the charges
against the Appellant.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
Dated at the City of Ottawa, in the Province of Ontario, this 30th day of June, 2014.
EDELSON CLIFFORD
D’ANGELO FRIEDMAN LLP
PER:
________________________________
SOLOMON FRIEDMAN
Counsel for the Appellant,
Christopher Dunn
37
PART VI – TABLE OF AUTHORITIES
Tab Cases At Para.
1. R. v. McManus (2006), 214 O.A.C. 77, 24
2. R. v. Labrecque, [2011] O.J. No. 2059 (C.A.). 24
3. R. v. Labrecque, [2010] O.J. No. 389 (S.C.J.), 84, 85, 130
4. R. v. Felawka, [1993] 4 S.C.R. 199. 87, 88, 89, 90, 94-
98, 100-105, 112-
121
5. R. v. Felawka, [1991] B.C.J. No. 3552 (B.C.C.A.), 99, 106-111
6. R. v. Lemire, [1980] B.C.J. No. 917, 108
7. R. v. Covin, [1983] 1 SCR 725. 132-137, 165
8. R. v. LaFrance, [1975] 2 S.C.R. 201. 152
9. R. v. Daoust, [2004] S.C.J. No. 7 163
10. R. v. Dunn, [1995] S.C.J. No. 5 164
11. Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 176
PART VII – STATUTORY PROVISIONS
1. Criminal Code, R.S.C., 1985, c. C-46.
2. […]
“firearm”
« arme à feu »
“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;
2. […]
« arme à feu »
“firearm”
« arme à feu » Toute arme
susceptible, grâce à un canon qui
permet de tirer du plomb, des
balles ou tout autre projectile,
d’infliger des lésions corporelles
graves ou la mort à une personne, y
compris une carcasse ou une boîte
de culasse d’une telle arme ainsi
que toute chose pouvant être
modifiée pour être utilisée comme
telle.
38
[…]
“offensive weapon”
« arme offensive »
“offensive weapon” has the same
meaning as “weapon”;
[…]
“weapon”
« arme »
“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;
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, the
following weapons are deemed not to be
firearms:
(a) any antique firearm;
(b) any device that is
(i) designed
exclusively
for signalling,
for notifying
of distress, for
firing blank
cartridges or
[…]
« arme offensive »
“offensive weapon”
« arme offensive » A le même sens
que le mot « arme ».
[…]
« arme »
“weapon”
« arme » Toute chose conçue,
utilisée ou qu’une personne entend
utiliser pour soit tuer ou blesser
quelqu’un, soit le menacer ou
l’intimider. Sont notamment visées
par la présente définition les armes
à feu.
84.
(3) Pour l’application des articles 91 à 95,
99 à 101, 103 à 107 et 117.03 et des
dispositions de la Loi sur les armes à feu,
sont réputés ne pas être des armes à feu:
a) les armes à feu
historiques;
b) tout instrument conçu
exclusivement pour
envoyer un signal,
appeler au secours ou
tirer des cartouches à
blanc ou pour tirer des
cartouches d’ancrage, des
rivets explosifs ou autres
projectiles industriels, et
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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
which it is
designed;
(c) any shooting device
that is
(i) designed
exclusively
for the
slaughtering
of domestic
animals, the
tranquillizing
of animals or
the
discharging of
projectiles
with lines
attached to
them, and
(ii) intended
by the person
in possession
of it to be used
exclusively
for the
purpose for
which it is
designed; and
destiné par son
possesseur à servir
exclusivement à ces fins;
c) tout instrument de tir
conçu exclusivement
pour soit abattre des
animaux domestiques,
soit administrer des
tranquillisants à des
animaux, soit encore tirer
des projectiles auxquels
des fils sont attachés, et
destiné par son
possesseur à servir
exclusivement à ces fins;
d) toute autre arme
pourvue d’un canon dont
il est démontré qu’elle
n’est ni conçue ni adaptée
pour tirer du plomb, des
balles ou tout autre
projectile à une vitesse
initiale de plus de 152,4
m par seconde ou dont
l’énergie initiale est de
plus de 5,7 joules ou pour
tirer du plomb, des balles
ou tout autre projectile
conçus ou adaptés pour
atteindre une vitesse de
plus de 152,4 m par
seconde ou une énergie
de plus de 5,7 joules.
(3.1) Par dérogation au paragraphe
(3), une arme à feu historique est
une arme à feu pour l’application
des règlements pris en application
de l’alinéa 117h) de la Loi sur les
armes à feu et le paragraphe 86(2)
de la présente loi.
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(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
exceeding 5.7
Joules.
(3.1) Notwithstanding subsection
(3), an antique firearm is a firearm
for the purposes of regulations
made under paragraph 117(h) of
the Firearms Act and subsection
86(2) of this Act.
86.
(1) Every person commits an offence who,
without lawful excuse, uses, carries, handles,
ships, transports or stores a firearm, a
prohibited weapon, a restricted weapon, a
86.
(1) Commet une infraction quiconque, sans
excuse légitime, utilise, porte, manipule,
expédie, transporte ou entrepose une arme à
feu, une arme prohibée, une arme à
autorisation restreinte, un dispositif prohibé,
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prohibited device or any ammunition or
prohibited ammunition in a careless manner
or without reasonable precautions for the
safety of other persons.
(2) Every person commits an offence who
contravenes a regulation made under
paragraph 117(h) of the Firearms Act
respecting the storage, handling,
transportation, shipping, display, advertising
and mail-order sales of firearms and restricted
weapons.
87.
(1) Every person commits an offence
who, without lawful excuse, points a
firearm at another person, whether the
firearm is loaded or unloaded.
88.
(1) Every person commits an offence who
carries or possesses a weapon, an imitation of
a weapon, a prohibited device or any
ammunition or prohibited ammunition for a
purpose dangerous to the public peace or for
the purpose of committing an offence.
90.
(1) Every person commits an offence who
carries a weapon, a prohibited device or any
prohibited ammunition concealed, unless the
person is authorized under the Firearms Act to
carry it concealed.
244.
(1) Every person commits an offence
who discharges a firearm at a person
with intent to wound, maim or
des munitions ou des munitions prohibées
d’une manière négligente ou sans prendre
suffisamment de précautions pour la sécurité
d’autrui.
(2) Commet une infraction quiconque
contrevient à un règlement pris en
application de l’alinéa 117h) de la Loi sur
les armes à feu régissant l’entreposage, la
manipulation, le transport, l’expédition,
l’exposition, la publicité et la vente postale
d’armes à feu et d’armes à autorisation
restreinte.
87.
(1) Commet une infraction quiconque
braque, sans excuse légitime, une arme à
feu, chargée ou non, sur une autre personne.
88.
(1) Commet une infraction quiconque porte
ou a en sa possession une arme, une
imitation d’arme, un dispositif prohibé, des
munitions ou des munitions prohibées dans
un dessein dangereux pour la paix publique
ou en vue de commettre une infraction.
90.
(1) Commet une infraction quiconque porte
dissimulés une arme, un dispositif prohibé
ou des munitions prohibées sans y être
autorisé en vertu de la Loi sur les armes à
feu.
244.
(1) Commet une infraction quiconque, dans
l’intention de blesser, mutiler ou défigurer
une personne, de mettre sa vie en danger ou
d’empêcher son arrestation ou sa détention,
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disfigure, to endanger the life of or to
prevent the arrest or detention of any
person — whether or not that person
is the one at whom the firearm is
discharged.
(2) Every person who commits an
offence under subsection (1) is guilty
of an indictable offence and liable
(a) if a restricted firearm or
prohibited firearm is used in
the commission of the offence
or if the offence is committed
for the benefit of, at the
direction of, or in association
with, a criminal organization,
to imprisonment for a term not
exceeding 14 years and to a
minimum punishment of
imprisonment for a term of
(i) in the case of a first
offence, five years, and
(ii) in the case of a
second or subsequent
offence, seven years;
and
(b) in any other case, to
imprisonment for a
term not exceeding 14
years and to a
minimum punishment
of imprisonment for a
term of four years.
(3) In determining, for the purpose of
paragraph (2)(a), whether a convicted
person has committed a second or
subsequent offence, if the person was
earlier convicted of any of the
following offences, that offence is to
be considered as an earlier offence:
(a) an offence under this
section;
(b) an offence under
subsection 85(1) or (2) or section
244.2; or
(c) an offence under section
220, 236, 239, 272 or 273,
décharge une arme à feu contre qui que ce
soit.
(2) Quiconque commet l’infraction prévue
au paragraphe (1) est coupable d’un acte
criminel passible :
a) s’il y a usage d’une arme à feu à
autorisation restreinte ou d’une arme à feu
prohibée lors de la perpétration de
l’infraction, ou si celle-ci est perpétrée au
profit ou sous la direction d’une
organisation criminelle ou en association
avec elle, d’un emprisonnement maximal de
quatorze ans, la peine minimale étant :
(i) de cinq ans, dans le cas d’une première
infraction,
(ii) de sept ans, en cas de récidive;
b) dans tous les autres cas, d’un
emprisonnement maximal de quatorze ans,
la peine minimale étant de quatre ans.
(3) Lorsqu’il s’agit de décider, pour
l’application de l’alinéa (2)a), si la personne
déclarée coupable se trouve en état de
récidive, il est tenu compte de toute
condamnation antérieure à l’égard :
a) d’une infraction prévue au présent article;
b) d’une infraction prévue aux paragraphes
85(1) ou (2) ou à l’article 244.2;
c) d’une infraction prévue aux articles 220,
236, 239, 272 ou 273, au paragraphe 279(1)
ou aux articles 279.1, 344 ou 346, s’il y a
usage d’une arme à feu lors de la
perpétration de l’infraction.
Toutefois, il n’est pas tenu compte des
condamnations précédant de plus de dix ans
la condamnation à l’égard de laquelle la
43
subsection 279(1) or section
279.1, 344 or 346 if a firearm
was used in the commission of
the offence.
However, an earlier offence shall not
be taken into account if 10 years have
elapsed between the day on which the
person was convicted of the earlier
offence and the day on which the
person was convicted of the offence
for which sentence is being imposed,
not taking into account any time in
custody.
(4) For the purposes of subsection (3),
the only question to be considered is
the sequence of convictions and no
consideration shall be given to the
sequence of commission of offences
or whether any offence occurred
before or after any conviction.
244.1 Every person who, with intent
(a) to wound, maim or disfigure any
person,
(b) to endanger the life of any person,
or
(c) to prevent the arrest or detention of
any person,
discharges an air or compressed gas
gun or pistol at any person, whether or
not that person is the person
mentioned in paragraph (a), (b) or (c),
is guilty of an indictable offence and
liable to imprisonment for a term not
exceeding fourteen years.
244.2
(1) Every person commits an offence
(a) who intentionally discharges a
firearm into or at a place, knowing
peine doit être déterminée, compte non tenu
du temps passé sous garde.
244.1 Est coupable d’un acte criminel
passible d’un emprisonnement maximal de
quatorze ans quiconque, dans l’intention :
a) soit de blesser, mutiler ou défigurer une
personne,
b) soit de mettre en danger la vie d’une
personne,
c) soit d’empêcher l’arrestation ou la
détention d’une personne,
décharge soit un pistolet à vent ou à gaz
comprimé soit un fusil à vent ou à gaz
comprimé contre quelqu’un, que cette
personne soit ou non celle qui est mentionnée
aux alinéas a), b) ou c).
244.2
(1) Commet une infraction quiconque :
a) soit décharge intentionnellement une arme
à feu en direction d’un lieu, sachant qu’il s’y
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that or being reckless as to whether
another person is present in the place;
or
(b) who intentionally discharges a
firearm while being reckless as to the
life or safety of another person.
trouve une personne ou sans se soucier qu’il
s’y trouve ou non une personne;
b) soit décharge intentionnellement une arme
à feu sans se soucier de la vie ou la sécurité
d’autrui.
2. Firearms Act, R.S.C. 1995, c. 39
117. The Governor in Council may make
regulations
(h) regulating the storage, handling,
transportation, shipping, display, advertising
and mail-order sale of firearms and restricted
weapons and defining the expression “mail-
order sale” for the purposes of this Act;
117. Le gouverneur en conseil peut, par
règlement:
(h) régir l’entreposage, le maniement, le
transport, l’expédition, l’exposition, la
publicité et la vente postale des armes à feu et
des armes à autorisation restreinte et la
définition du terme « vente postale » pour
l’application de la présente loi;
3. Interpretation Act, R.S.C., 1985, c. I-21.
12. Every enactment is deemed remedial, and
shall be given such fair, large and liberal
construction and interpretation as best ensures
the attainment of its objects.
12. Tout texte est censé apporter une solution
de droit et s’interprète de la manière la plus
équitable et la plus large qui soit compatible
avec la réalisation de son objet.