There is no need for an object meeting the definition of a firearm under the Criminal Code to also meet the definition of a weapon.
In <R. v. Dunn, 2014 SCC 69> a private investigator saw the accused pull a pistol out of his jacket pocket, appear to point it at a man and then leave in his car. Police were called to Dunn’s trailer and found a black Crosman Pro77 air pistol resting on a chair in a nearby shed. The Pro77 fires .177 calibre spherical BBs propelled by a compressed CO2 canister and has the following warning on the side:
<Warning, not a toy, misuse can cause fatal injury. Before using read owner’s manual available from Crosman Corp.>
The air gun was fully functional and had a partially used CO2 cartridge but no ammunition in the magazine.
Dunn was charged with several offences, including handling a firearm in a careless manner, carrying a weapon for a purpose dangerous to the public peace and carrying a concealed weapon.
In the Ontario Court of Justice a firearms examiner testified that the air gun had an average velocity of 261.41 feet per second (ft/s). He said this type of air gun could be purchased without producing any documentation, as long as the muzzle velocity did not exceed 500 ft/s.
The expert also cited a scientific (pig’s eye) study, which set a standard for the capabilities of a barrelled object in causing death or bodily injury. It found that any shot exceeding 214 ft/s was capable of causing serious injury to a pig’s eye, which is a similar size and composition to a human eye. The study also determined that a projectile travelling at 246 ft/s would penetrate a pig’s eye 50 per cent of the time (known as the V50 standard).
The judge, noting that the air gun wasn’t a “real powder fired bullet shooting gun,” ruled that the Crown was required to prove it was also a weapon as defined in <s. 2> of the Criminal Code:
<“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.>
Since the Crown failed to prove that the air gun was used or intended for use in causing death or injury or to threaten or intimidate, the judge ruled that it wasn’t a “weapon” and therefore not a “firearm.” Dunn was acquitted.
The Crown argued before the Ontario Court of Appeal that a barrelled device meeting the Criminal Code definition of “firearm” need not also meet the definition of “weapon.” This interpretative issue arose because each definition refers to the other and there were differing views in the case law about whether a “firearm” is always a weapon, irrespective of whether it meets the definition of “weapon” (by its use or the intent of its possessor). Justice Rosenberg, writing the unanimous decision, framed the question this way:
<(B)ecause “firearm” is defined as “a barrelled weapon,” the question arises whether the prosecution must prove not only that the object discharges a shot, bullet or other projectile that is capable of causing serious bodily injury or death, but also that it meets subsections (a) or (b) in the definition of “weapon”; namely, that the object was 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.
Or, is the word “weapon” used in the definition of “firearm” only in a descriptive sense, such that it is not a formal element of the definition requiring proof? The definition of “weapon,” in turn, refers to “firearm”. The concluding phrase in that definition, “without restricting the generality of the foregoing, includes a firearm,” appears to exclude the used, designed or intended for use requirements and deems a firearm to be a weapon> (para. 16).
Since there were differing case law decisions on this matter, a five judge panel heard the case.
{Is a firearm always a weapon?}
Rosenberg ruled that the term “weapon” in the definition of “firearm” was simply a descriptor and not a formal element. Thus, barreled objects meeting the definition of “firearm” need not also meet the definition in paragraphs (a) or (b) of “weapon:”
Thus, the focus becomes the objects nature as a barreled device and its capability to cause serious bodily injury or death, not the intent of its possessor nor the use made of it. The court noted that certain weapons are deemed not to be firearms if the shot, bullet or other projectile does not exceed a muzzle velocity of 152.4 m/s (500 f/s). However, this velocity threshold deeming weapons as non-firearms is only in relation to specific offences concerning the strict licensing regime of the Firearms Act and Criminal Code (eg. unauthorized possession, trafficking, importing/exporting, failing to report or false reporting of lost, found, or destroyed firearms).
Other offences, such as carrying a concealed weapon (<s. 90>), careless handling (<s. 86>) and possession for a dangerous purpose (<s. 88>) are not subject to the 152.4 m/s threshold.
Justice Rosenberg also examined the legislative scheme and found there were three different categories (or groups) of barrelled objects:
<Group One: Barrelled objects shooting a projectile with a velocity of less than 214 ft./s. (or 246 ft./s., using the V50 standard) are not firearms because they are not capable of serious injury or death; these objects will only be considered weapons, and thus fall within a prohibition such as the concealed weapon prohibition in s. 90, if they meet paras. (a) or (b) in the definition of “weapon.”
Group Two: Barrelled objects shooting a projectile with a velocity of more than 214 ft./s. (or 246 ft./s., using the V50 standard), are firearms because they are capable of causing serious injury or death, whether or not they also meet paras. (a) or (b) in the definition of “weapon;” these weapons will fall within a prohibition such as that found in s. 90. Nevertheless, they will not be subject to the stricter licensing regime in the Criminal Code and the Firearms Act if they fall within one of the exemptions in s. 84(3), for example, if the velocity of the projectile does not exceed 500 f/ s.
Group Three: Barrelled objects shooting a projectile with a velocity of more than 500 f./s. These objects fall within the definition of firearm for all purposes of the Criminal Code and the Firearms Act and must be licensed accordingly. Some air guns and most powder-fired bullet shooting guns will fall with in this regime. At a minimum… Group Three objects do not need to meet the para. (a) or (b) definition of weapon to be deemed to be weapons> (paras. 44-46).
The legislative history, its object (public safety) and the grammatical and ordinary sense of the words used also supported the court’s view of its interpretation.
The Crown’s appeal was allowed, Dunn’s acquittals for careless handling of a firearm, carrying a weapon for a purpose dangerous to the public peace and carrying a concealed weapon were set aside and a new trial was ordered.
Dunn further appealed to the Supreme Court of Canada, submitting that an air gun that otherwise falls within the definition of a “firearm” must also meet the definition of “weapon” in <s. 2> of the Criminal Code.
In a short oral judgment, the seven member Supreme Court panel hearing the case agreed with Justice Rosenberg’s reasons and dismissed Dunn’s arguments.
chart (see Mick)
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