Purposive approach favoured over restrictive one in cartridge magazine interpretation

Mike Novakowski
April 27, 2011
By Mike Novakowski
In R. v. Cancade, 2011 BCCA 105 the accused ordered seven magazine casings from a U.S. mail order supplier for delivery to a Canadian mailing adress. When he attempted to pick them up he was arrested. The magazine casings, sometimes referred to as shells or containers, had a 30-round capacity but did not have an internal spring, a bottom plate, or a follower plate, all parts that would be needed to be installed in order to make the casings functional as magazines. Cancade, knowledgeable in weapons, intended to make alterations to the casings so they would comply with Canadian law, which required a casing to have a maximum five (5) round capacity.

In R. v. Cancade, 2011 BCCA 105 the accused ordered seven magazine casings from a U.S. mail order supplier for delivery to a Canadian mailing adress. When he attempted to pick them up he was arrested.

The magazine casings, sometimes referred to as shells or containers, had a 30-round capacity but did not have an internal spring, a bottom plate, or a follower plate, all parts that would be needed to be installed in order to make the casings functional as magazines. Cancade, knowledgeable in weapons, intended to make alterations to the casings so they would comply with Canadian law, which required a casing to have a maximum five (5) round capacity.

At trial in British Columbia Provincial Court Cancade argued the casings were only components which could become either prohibited or lawful devices. Since the casings were simply the outside of a magazine, the objects seized were not operable and did not fall within the definition of a cartridge magazine.

The Crown, on the other hand, submitted that the items as imported met the definition of a prohibited device, were capable with the addition of readily available parts of becoming operable, and had not been altered before importation to comply with the regulations. The trial judge ruled that the imported items fell within the definition of cartridge magazine contained in s.84 of the Criminal Code. In her view, the definition of cartridge magazine included the shell, or container, though not completely assembled into a functional magazine.

“The fact that these casings were not immediately capable of feeding ammunition into a firing chamber without the addition of several parts is immaterial,” she said. “The modification required to make these shells functional was, by all accounts, simply the addition of three readily available and easily installed parts.” Cancade was convicted of importing and possessing a prohibited device.

He then appealed, again submitting that the casings were not prohibited under s.84.

Cancade took a strict interpretive approach. In his view, an object which has the future capacity, with alternation, but no present capacity to feed ammunition into the firing chamber of a firearm was not a “cartridge magazine” in law. He submitted that by comparing the French and English versions of the relevant weapons legislation it was clear that the verb used in the French version was present tense, meaning the magazine needed present capacity. He suggested the trial judge erred when she found the word “may” in the English version spoke not only to a present capacity but also a future capacity.

The Crown, however, contended that the French version of the definition could encompass a future ability of the device to be rendered easily serviceable to feed bullets into a firearm. In the Crown’s view, a purposive approach to construing the legislation was needed, taking into account the intent of Parliament to keep dangerous high capacity weapons out of public circulation.

Justice Hall, writing for the unanimous British Columbia Court of Appeal, rejected Cancade’s interpretive approach supportive of the rule of strict construction of the relevant provisions. Instead, he adopted a purposive approach to this legislative provision.

“In construing this legislation having regard to the intention of Parliament to severely restrict the availability of high capacity weapons and their appurtenances,” said Hall. The trial judge did not err in finding Cancade in possession of a prohibited cartridge magazine and guilty of ss.91(2), 92(2) and 104(1)(a) offences under the Criminal Code. Cancade’s appeal was dismissed.

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