ONTARIO COURT OF JUSTICE
COURT FILE No. Halton Region, Central West Region 1211-10-4004
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
PATRICK SHAUN MAGUIRE
Before Justice Alan D. Cooper
Heard on November 4, 2011 & January 16, 2012
Reasons for Judgment released on June 6, 2012
Kelli J. Frew for the Crown
Mark R. Miller for the accused Patrick Shaun Maguire
Case History
1Patrick Maguire was charged on December 10, 2010, in the City of Burlington, with:
1-Assaulting Chris Harry with a weapon, a pellet gun, contrary to section 267 (a) of the Criminal Code.
2-Possessing a weapon, a pellet gun, for a purpose dangerous to the public peace, contrary to section 88(1) of the Criminal Code.
3-Without lawful excuse, pointing a firearm, a pellet gun, at Chris Harry, contrary to section 87 of the Criminal Code.
2On December 10, 2010, at lunch time, a female employee of a Tim Horton’s fast food outlet, was serving a young couple at the bagel counter, when someone in the pickup line outside reported that a person in a pickup truck had a gun. The employee testified that although the glass window was frosted, it was down about 8 inches and she saw the driver of the pickup pointing a gun at the young couple she was serving.
3The male, who turned out to be Christopher Harry, left his girlfriend and ran outside and jumped on the side of the truck and threw a couple of punches at the driver. After that, he came back inside to get his girlfriend, and they went outside. The employee said the end of the gun barrel was a dark brown colour, but she did not know if it was a handgun or rifle. It should be noted that the barrel was not a dark colour but just under the end of the barrel is a mounted black laser light. [See Exhibit 3].
4Christopher Harry gave evidence that he used to hang out with the defendant when Mr. Harry was dating a woman named Nicole. After they broke up, Mr. Maguire went out with her. The woman he was with at Tim Horton’s was his new girlfriend. Mr. Harry said he and Mr. Maguire had issues between them concerning Nicole, and they would communicate over Facebook and make disparaging remarks to each other.
5After he noticed the defendant in his truck in the pickup line, Mr. Harry went outside to discuss these issues with Mr. Maguire. He knocked on the window and the defendant lowered it. He saw a pellet gun on the passenger seat. As they argued, Mr. Maguire is alleged to have pulled Mr. Harry’s arm into the truck, and held on to it as he tried to close the window and drive off. Mr. Harry said he knocked on the window and when it was rolled down he punched the defendant in the head, after which his arm freed. Mr. Harry screamed out that Mr. Maguire had a gun, and went back inside and the police were called.
6Mr. Harry has a criminal record and had outstanding charges at the time he testified. He agreed that his nickname is “Hurricane.” There is no evidence that he saw the defendant point the gun at him through the pickup window. He said he saw the gun in the truck for about 5 seconds. When Mr. Maguire first rolled down his window, he grabbed the pellet gun and waved it around. He did not point it at Mr. Harry, did not try to fire it, and never said he was going to shoot him. Mr. Harry said he only punched the defendant in self defence.
7Mr. Harry further said that Mr. Maguire parked his truck in the restaurant parking lot and when the police attended, this is where they located him. Officer Butkovic from the Halton Regional Police Service saw Mr. Maguire sitting alone in his truck and spoke to him. His statements were conceded to have been voluntarily made. When Mr. Maguire was told about the gun complaint, he said he knew nothing about a gun. However, as the officer searched the vehicle, the defendant said he had a BB gun but did not know where it was. As his knapsack was examined, he said that it contained private stuff. The pellet handgun was found inside with some pellets in the chamber, along with a gas cartridge in the handle of the gun.
Firearm – Expert Evidence
8Rick Ferguson was called by the Crown. He has spent 32 years with the Halton force and is a designated firearms officer and a firearms analyst. There was no issue as to his qualifications. On December 16, 2010, he examined and tested the Crossman, model 1088, air pistol, and prepared and signed a “Certificate of Analyst”, pursuant to section 117.13 of the Criminal Code. The pellet gun was certified to be a firearm as defined in section 2 of the Criminal code, which is a barrelled weapon from which a projectile can be discharged that is capable of causing serious bodily injury or death to a person.
Criminal Code Provisions
9The relevant sections of the Criminal Code are set out herein:
Definitions
- In this Act,
“bodily harm” means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature;
“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;
Pointing a firearm
- (1) Every person commits an offence who, without lawful excuse, points a firearm at another person, whether the firearm is loaded or unloaded.
Possession of weapon for dangerous purpose
- (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.
Certificate of analyst
117.13 (1) A certificate purporting to be signed by an analyst stating that the analyst has analyzed any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or any part or component of such a thing, and stating the results of the analysis is evidence in any proceedings in relation to any of those things under this Act or under section 19 of the Export and Import Permits Act in relation to subsection 15(2) of that Act without proof of the signature or official character of the person appearing to have signed the certificate.
Marginal note:Attendance of analyst
(2) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for the purposes of cross-examination.
Marginal note:Notice of intention to produce certificate
(3) No certificate of an analyst may be admitted in evidence unless the party intending to produce it has, before the trial, given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the certificate.
Assault with a weapon or causing bodily harm
- Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
10A pellet gun is also referred to as an air gun, and the gun in the instant case can be called an air pistol. It fires a .177 calibre lead projectile, or BB, and is fired by air pressure from a compressed air cylinder. No firearms permit was required for this gun because it was exempted under section 84(3) (d) of the Criminal Code, because the muzzle velocity fell below 500 feet per second, or 152.4 meters per second. Section 84 (3)(d) reads as follows:
Certain weapons deemed not to be firearms
(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:
o (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.
11Officer Ferguson also produced a “Firearm Examination Report” which contains details of his inspection and testing of this pellet pistol. On page 1 of this report, an important distinction is made as to the meaning of “firearm” when it comes to licencing, and its meaning for all other offence purposes:
“For most licensing offences (91 to 95, 99 to 101, 103 to 107 and 177.3 CC) the modified definition of firearm under section 84(3) CC requires that the firearm (normally pellet or BB gun) fire over 500 feet per second for it to qualify for its purposes (and for the purposes of Firearms Act registration and licensing purposes).
For all other pruposes, where the Section 2 CC definition is key, then the important velocity is the 246 feet per second used by the Centre for Forensic Sciences as the threshold for the causing of serious bodily injury or death.”
12Therefore, a pellet gun is a firearm and must be licensed if it’s muzzle velocity exceeds 500 feet per second, which is the same as 152.4 meters per second. If it does not, then it is not a firearm for licensing and registration purposes. However, it can still be a firearm for non-registration and non-licensing offences if it is capable of causing serious bodily injury or death, and this threshold is met when the muzzle velocity is 246 feet per second or greater. At this speed the projectile can puncture an eye, and this is the standard used to measure “serious bodily harm.” A learned paper is attached to this Firearm Examination Report, which reveals that pig eyes, not human eyes, were used in the scientic experiment which was conducted.
13When officer Ferguson examined Mr. Maguire’s pellet pistol, he found 3 BBs in the 8 BB capacity magazine disk, and an empty Co2 powerlet [compressed air cylinder] in the handle of the gun. He inserted a fully compressed Co2 cylinder and test fired the gun, and found that the 5 BBs fired were discharged in excess of 246 feet per second.
Defence Evidence
14Patrick Maguire was the sole defence witness. He said he met Mr. Harry in high school and that the two had exchanged insulting Facebook messages relating to Nicole, the woman they had both dated. He never pointed or or waved the pellet pistol found in his knapsack, because it had been in that location the whole time. When he was in the lineup, he said Mr. Harry ran up to his truck and punched his window, all the while swearing at him and calling him names. He said he was scared of Mr. Harry and knew what he has done in his past.
15Mr. Maguire said he had locked the doors but lowered the driver’s window to prevent it from being broken by the force being applied to it. Mr. Harry tried to grab the defendant who alleged that Mr. Harry hit him at least once, in the eye. The defendant moved his truck forward and Mr. Harry then let go and yelled out that Mr. Maguire had a gun.
16The defendant said he was holding his iphone in his hand, and never a gun. He pulled over into the parking lot and called the police. He denied telling officer Butkovic he had no knowledge of any gun. He told him he had one but didn’t know where it was. He testified that he had the gun for one year and used it for daily target practice in the country. He said Mr. Harry knew he had this gun. When officer Butkovic was searching his knapsack, he did say it was private, but this was because he felt he was not handling his sweaters with proper respect.
Submissions of Counsel
17Counsel for the defendant submitted that his client is not guilty of all three charges. On the point firearm allegation, he argues that caselaw requires the gun to be operational at the time of the offence, and it was not because the compressed air cylinder was empty, and no fully charged ones were found in the possession of Mr. Maguire. Therefore, it was not a “firearm” at the time of the alleged pointing, even if it had been pointed at Mr. Harry.
18Counsel for the Crown contended that there is a distinction between operational and unloaded, and that the pellet pistol was operational but unloaded with a compressed air cylinder. She also points out that for the purposes of section 87 of the Criminal Code, once the firearm is pointed, it is an offence whether unloaded or not.
Analysis
19The onus is on the Crown to prove the guilt of Mr. Maguire beyond a reasonable
doubt. Because the defendant testified, the court must apply the principles in R. v. W. (D)
[D.W.] 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 (S.C.C.) to his testimony.
20The Tim Horton’s employee and Mr. Harry both saw a gun in the possession of the defendant, and the police later found the pellet pistol inside the truck. I accept officer Butkovic’s evidence that Mr. Maguire initially denied possessing a gun in his truck, and find as a fact that the defendant lied. I accept the evidence of the store employee that she saw Mr. Maguire point the gun at Mr. Harry and his girlfriend. I find that Mr. Maguire lied about this as well, when he said he never pointed the pistol at Mr. Harry. I do not believe his evidence and am not left with a reasonable doubt by it, or by any other evidence in this case.
21On the first charge of assault with a weapon, because of the bizarre behaviour of Mr. Harry in running at the defendant’s truck and fighting with him, and the animus which existed between them, I am left with a reasonable doubt as to who assaulted who, regardless of whether or not Mr. Maguire held a gun as he argued with Mr. Harry.
22On the second charge, possession of a weapon, the pellet gun, for a purpose dangerous to the public peace, the evidence of the defendant is that he possessed the pellet gun for about one year, and used it for target practice. This was uncontradicted. Mr. Maguire may have happened to have the gun in the car because of daily target practice, and not because he intended to use it as a weapon. Therefore, there is a reasonable doubt.
23On the point firearm charge, the issue is whether, in law, the pellet gun could be considered to be a “firearm” it it could not have been fired at the time of the pointing. Even though loaded with 3 BBs, it could not be fired because no compressed air cylinder was in the possession of Mr. Maguire. Only a spent one was found in the handle of the gun.
24In R. v. Belair (1982), 1981 CanLII 1625 (ON CA), 34 O.R. (2d) 302 (C.A.), Martin J.A., for the court, dealt with this issue, although the charge was one of using a firearm in the commission of an indictable offence. At the time the defendant robbed a milk store, he brandished an air pistol which contained no pellets and an empty compressed air cylinder. At page 3, in paragraph 13 of the judgment, Martin J.A. stated as follows:
13 “A rifle, not shown to have been loaded, is a firearm within s. 82 of the Code: see R. v. Cheetham (1980), 1980 CanLII 2978 (ON CA), 53 C.C.C. (2d) 109 at pp. 111-12, 17 C.R. (3d) 1. We are of the view that the present case is indistinguishable on the facts from those in R. v. Brouillard (1980), 1980 CanLII 2940 (QC CA), 59 C.C.C. (2d) 81. In that case the weapon alleged to constitute a firearm was a pellet revolver. The pellet was discharged by means of a cartridge of carbon dioxide gas placed in the handle of the pistol. At the time of the commission of the offence, there was a cartridge in the pistol, but it was empty and there were no pellets in the chamber. The Quebec Court of Appeal, by a majority, held that the pellet pistol was a firearm within the meaning of s. 83 of the Criminal Code.”
25In my view, this reasoning applies to the charge of pointing a firearm as well, and covers the factual situation in the defendant’s case.
Conclusion
26Mr. Maguire is found not guilty of counts 1 and 2, but guilty of count 3, pointing a
firearm at Chris Harry.
Released: June 6, 2012
Signed: “Justice Alan D. Cooper”