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: solomon@edelsonlaw.ca

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

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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

44

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.