R. v. Labrecque, 2011 ONCA 360

1The respondent, Benoit Labrecque, was carrying a gas-powered pellet gun in his waistband. Acting on a tip, the police stopped and searched the respondent and found the gun. He was charged with carrying a concealed weapon contrary to s. 90(2) of the Criminal Code. The respondent was acquitted at trial and his acquittal was upheld on appeal by Rutherford J. The Crown now seeks leave to appeal to this court.

2Rutherford J. concluded that for the pellet gun to be a weapon under s. 90 there would have to be evidence that the respondent used or intended to use the gun for a harmful purpose. As there was no such evidence, the respondent was entitled to an acquittal.

3In reaching his conclusion, Rutherford J. relied on the endorsement of this court in R. v. McManus, 2006 CanLII 26568 (ON CA), [2006] O.J. No. 3175 (C.A.). There, too, on virtually identical facts, in the absence of evidence Mr. McManus used or intended to use his pellet gun for a purpose dangerous to the public peace the court held that the pellet gun was not a weapon.

4Before us, the Crown submits that a pellet gun is a firearm and therefore a weapon irrespective of the gun holder’s subjective intention. If the pellet gun is capable of causing serious bodily injury, it is a weapon. Whether the gun holder used or intended to use it for a harmful purpose is irrelevant. However, in making this submission the Crown fairly acknowledges that to succeed on this appeal he must show that the reasoning in McManus is wrong. He points to the policy considerations discussed by the Supreme Court of Canada in R. v. Felawka (1993), 1993 CanLII 36 (SCC), 85 C.C.C. (3d) 248 (S.C.C.) and to a very brief endorsement of this court in R. v. Henry, [1991] O.J. No. 2696 (C.A.), which was not referred to in McManus and arguably is inconsistent with it.

5It seems to us that this court’s later decision in McManus is controlling. It provides reasons, albeit brief, why a pellet gun is not a weapon unless used or intended to be used for a dangerous purpose. Although an endorsement of this court, it nonetheless has precedential value at least to the extent of dictating the result of this appeal. If McManus is to be overturned by this court, that must be done by a five-judge panel. Mr. Cappell did by letter request a five-judge panel but no formal application was made and his letter request was denied. If the issue arises again, the proper course is to make a formal application to the Chief Justice of Ontario or the Associate Chief Justice of Ontario for a five-judge panel. Sitting as a panel of three, we are bound by the reasoning and the result in McManus.

6Accordingly, leave to appeal is denied.