R v Dunn: ONCA Checks Itself and Redefines ‘Weapon’ & ‘Firearm’
While the Criminal Code of Canada provides a great many statutory definitions for terms used within, the conception of some of these definitions can evolve over time. This is particularly true with respect to ‘weapon’ and ‘firearm’, as defined in s. 2 of the Code. Indeed, a rare five-judge panel at the Ontario Court of Appeal (ONCA) reconsidered their own concept of these terms in R v Dunn, 2013 ONCA 539.
In Dunn, the Crown appealed the accused’s acquittal at trial on the basis that the airgun that was brandished constituted a weapon under the Criminal Code definition. The ONCA deemed that the trial judge did not err in his acquittal, based on the previous standard for pellet guns that was set in R v McManus, 2006 ONCA (214 OAC 77). However, the Court took this opportunity to reshape the law on the basis that McManus was incorrectly decided. Under this new precedent, even airguns that can be purchased commercially in Canada are considered ‘firearms’ within the s. 2 Criminal Code definition.
In April 2010, the Workplace Safety Insurance Board sent investigators to observe Christopher Dunn, the respondent. The investigators observed Dunn meeting with another man and pulling what resembled a pistol out of his jacket, pointing it at the man. He was then observed returning the pistol to his jacket, getting into his car, and driving away. The investigators notified the police, who went to Dunn’s trailer to investigate. They found a Crosman Pro77 airgun, which fires .177 calibre spherical BBs that are propelled via a compressed air canister. At the time that it was confiscated, the airgun was fully functional and loaded with a partial CO2 air cartridge. The police officer testified at trial that there was no ammunition in the magazine and the person at whom Dunn pointed the gun was a friend, and he did not point it to threaten or intimidate him.
Dunn was charged with four offences contrary to the Criminal Code: s. 86 handling a firearm or imitation thereof in a careless manner, s. 87 pointing a firearm, s. 88 carrying a weapon or imitation thereof for a purpose dangerous to the public peace, and s. 90 carrying a concealed weapon or imitation thereof. There was a warning on the side of the airgun that it is not a toy and has the potential to cause fatal injury. A firearms examiner testified at trial that the airgun can be purchased without a licence, since the muzzle velocity does not exceed 500 feet per second (indeed, it was 261.41 feet per second). According to the expert testimony, a pistol firing at the rate of Dunn’s airgun would penetrate an eye no less than 50% of the time, passing the “pig’s eye” test.
At trial, Dunn sought to have the airgun excluded from evidence as a result of alleged ss. 8 and 10(b) Charter violations. However, these issues were not dealt with, as the trial judge found that the offences had not been made out as a result of the airgun’s nonstatus as a firearm. Relying primarily on the McManus decision, it was held that if the airgun is not a “real powder fired bullet shooting gun” then the onus is on the Crown to prove that it is a weapon in accordance with s. 2 of the Code before it can be established as a firearm. Section 2 defines “weapon” as:
“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.
Although the airgun had the potential to cause injury, as indicated by the testimony of the firearms expert, the Crown failed to prove that Dunn had either used or intended to use it for this purpose, or any other enumerated in s. 2.
The Crown appealed the acquittal on the grounds that the McManus case, on which the trial judge made her decision, was decided incorrectly and could not be resolved with a prior Supreme Court of Canada decision, R v Felawka, 1993 4 SCR 199. Cory J., for the majority in Felawka, stated that a firearm “is expressly designed to kill or wound” and discussed the inherently threatening and intimidating nature of a firearm in any context. Further, he held that all firearms, as defined by s. 84 of the Criminal Code, fall under the definition of ‘weapon’ in s. 2, which avoids interpretative redundancies.
The five-judge panel in Dunn found that the panel in McManus did not refer to Felawka, which was the binding judicial authority at the time. An ‘object’, whether a conventional powder fired gun or a spring or gas fired gun, fell within the s. 2 definition of ‘firearm’ where there is proof that any shot or projectile object could be discharged and that it was capable of causing serious injury or deal to a person.
As a result of the trial judge’s finding that Dunn did not point the airgun at his friend, the acquittal on the s. 87 charge was upheld. However, the acquittals on the other counts were set aside, and new trials were ordered. This ruling may have diffuse implications for Canadian citizens. Prior to the decision, a pellet gun wasn’t considered a weapon unless it was treated as one by the person possessing it. That is, it would have to satisfy the formative definition for ‘weapon’ under s. 2 of the Criminal Code. This is what was seen in the Dunn trial decision, there was no intention proven to use the pellet gun as a weapon, so the acquittal was entered. In the new pending trial for Mr. Dunn, a very different verdict could be met. The law has now been reshaped to reflect that any pellet guns that are powerful enough are ‘firearms’ under the Criminal Code, irrespective of their use or intended purpose. It is possible, however, that the ‘serious bodily harm’ standard may be challenged, resulting in a ‘battle of the experts’.