Court must consider entire definition

Mike Novakowski
April 04, 2016
By Mike Novakowski
A court must consider the complete definition of antique firearm before deciding whether it applies. In R. v. Kennedy, 2016 MBCA 5, the accused was arrested outside his house trailer for breaching a court-ordered condition to have no contact with his neighbour. He was patted-down for officer safety incidental to the arrest and police found two loaded handguns in his pants' pockets, both cocked and ready to fire. The guns were very old but testing confirmed that they were functional. Police obtained warrants to search Kennedy's trailer and found eight guns, 12 magazines and 200 rounds of ammunition, including a Clement Arms .32 calibre British Bulldog revolver with five rounds in its cylinder. Kennedy was charged with breach of recognizance and several weapons offences.

A court must consider the complete definition of antique firearm before deciding whether it applies.

In R. v. Kennedy, 2016 MBCA 5, the accused was arrested outside his house trailer for breaching a court-ordered condition to have no contact with his neighbour. He was patted-down for officer safety incidental to the arrest and police found two loaded handguns in his pants' pockets, both cocked and ready to fire. The guns were very old but testing confirmed that they were functional.

Police obtained warrants to search Kennedy's trailer and found eight guns, 12 magazines and 200 rounds of ammunition, including a Clement Arms .32 calibre British Bulldog revolver with five rounds in its cylinder. Kennedy was charged with breach of recognizance and several weapons offences.

At trial in the Manitoba Court of Queen's, Kennedy was convicted of several offences but acquitted on a charge under s. 91(1) of the Criminal Code for possessing a prohibited firearm without a registration certificate because the British Bulldog revolver was an antique firearm under <s. 84(3)>. That section deems certain weapons, including an antique firearm, not to be firearm for the purpose of s. 91(1).

An antique firearm is defined as including "any firearm manufactured before 1898 that was not designed to discharge rim-fire or centre-fire ammunition and that has not been redesigned to discharge such ammunition."

The judge found the "expert witnesses called on behalf of the Crown were unable to determine whether this particular firearm was manufactured before or after 1898." Thus, the Crown failed to prove the essential elements of the offence under s. 91(1).

The Crown appealed Kennedy's acquittal to Manitoba's highest court, arguing that the trial judge erred in only considering the year of manufacture in the antique firearm definition. Instead, the judge should have considered that the definition also requires that the firearm cannot be designed, or re-designed, to discharge rim-fire or centre-fire ammunition. A Crown expert had testified that the British Bulldog revolver fired centre-fire ammunition, therefore it did not fall within the definition of antique firearm regardless of its age.

The Manitoba Court of Appeal overturned Kennedy's acquittal and entered a conviction.

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