Court File and Parties
Ontario Court of Justice
Between:
His Majesty the King
— and —
James Hindy
Before: Justice J.P.P. Fiorucci
Heard on: February 11, 12, 13, 18, March 24, 2025
Reasons for Judgment released on: September 24, 2025
Counsel:
- Matthew Moser, counsel for the Crown
- Robin McCourt, counsel for the accused James Hindy
FIORUCCI J.:
Overview
1On August 14, 2024, a Hamilton police officer was following a minivan, when the automated licence plate reader in the police cruiser alerted the officer that the minivan was stolen. The officer followed the minivan into the parking lot of a Tim Hortons. After using the drive-thru, the accused, James Hindy, who was the driver and lone occupant of the minivan, parked in the parking lot. The police boxed the minivan in and arrested the accused. The police searched the minivan and found a 12-gauge sawed-off shotgun and ammunition.
2The accused was charged with possession of the stolen vehicle and five offences relating to the sawed-off shotgun and ammunition. The Crown proceeded by indictment. The accused elected to be tried in the Ontario Court of Justice. He entered not guilty pleas.[1]
3The owner of the minivan testified at trial, as did the police officers who arrested the accused and searched the vehicle, and two police officers who test fired the shotgun. The sawed-off shotgun was test fired with both police issued ammunition and ammunition that was found in the minivan.
4The accused testified that the registered owner of the minivan permitted him to use the vehicle and that he intended to return it. The accused admitted knowledge and control of the seized shotgun and ammunition but submitted that he should be acquitted of the firearms charges because the Crown had not proven that the shotgun was a "firearm".
5The issues to be decided at the conclusion of the trial were:
(1) Has the Crown proven beyond a reasonable doubt that the minivan was stolen and that, therefore, the accused was in possession of stolen property?
(2) Has the Crown proven beyond a reasonable doubt that the sawed-off shotgun is a "firearm" as defined in s. 2 of the Criminal Code? The accused raised two questions:
(a) Was the shotgun operable, or if inoperable, could it be adapted for use as a firearm?
(b) The Crown led no evidence about the velocity of the shells that were test fired from the sawed-off shotgun. When an accused is charged with firearms possession offences, is the Crown required in all cases to lead evidence that the "pig's eye test" or other velocity testing was conducted to establish that the discharged shot, bullet or other projectile is capable of causing serious bodily injury or death to a person?
6On July 24, 2025, I found the accused not guilty of possession of stolen property but guilty of the firearms offences. I advised the parties that I would provide written reasons for my decision. These are my written reasons.
The Possession under $5,000 offence was not proven beyond a reasonable doubt
7The accused and the registered owner of the minivan, Jeffrey Estee, were known to each other. At trial, Mr. Estee acknowledged that he had on prior occasions permitted the accused to drive the minivan. However, he maintained that, on this occasion, he had no idea that the accused and the accused's girlfriend had taken the minivan without his permission.
8The accused claimed that he asked Mr. Estee for permission to use the minivan to move out of the apartment that he and his girlfriend shared with Mr. Estee. According to the accused, Mr. Estee gave him permission to use the minivan for this purpose. The accused testified that he intended to return the vehicle to Mr. Estee.
9A finding of guilt for the possession of stolen property offence required the Crown to prove beyond a reasonable doubt that the accused knew the minivan was stolen.[2] The Crown relied on the evidence of Mr. Estee. Although I found Mr. Estee to be a credible witness, his evidence lacked the reliability required to establish that his vehicle was stolen. His testimony contained numerous inconsistencies. He also acknowledged that he thought the accused and his girlfriend would eventually bring the minivan back.
10When I considered the accused's claim that Mr. Estee gave him permission to use the minivan, in the context of the totality of the evidence, including the frailties in Mr. Estee's evidence, I was left in a state of reasonable doubt that the accused knew he was in possession of stolen property. An accused must be acquitted if the explanation offered for possession could be true, even if the court is not convinced that it is true.[3] I found that the accused's explanation for how he came to be in possession of the minivan by lawful means, that is with the consent of Mr. Estee, could be true.
11Mr. Estee testified that he knew the accused and his girlfriend, Patricia, for about three or four years. Mr. Estee lived with his brother, Greg, at 54 West 1st Street in Hamilton. The accused and Patricia lived in the basement of the home. After Greg passed away in 2023, Mr. Estee, the accused, and Patricia continued living in the home on West 1st Street for eight or nine months.
12In examination-in-chief, Mr. Estee said that the only house he resided in with the accused was on West 1st. However, during cross-examination, Mr. Estee gave inconsistent testimony on this point. He acknowledged that, at some point, he moved out of the house on West 1st with the accused and Patricia and that they all began living together in an apartment at 192 Hughson Street in Hamilton. The Hughson Street apartment was in an apartment building that had underground parking. In cross-examination, Mr. Estee agreed that there was no underground parking at the West 1st address.
13Mr. Estee testified that he was the person who used the Toyota Sienna minivan the most but acknowledged that the accused and Patricia also used it. When Crown counsel asked how it came about that the accused and Patricia used it, Mr. Estee replied, "I'd be coming home, and I'd leave the keys by the kitchen cupboards, and I guess they just took them and helped their selves". In examination-in-chief, Mr. Estee denied that he ever had a conversation with the accused and Patricia about the use of the minivan and said that he "didn't know that they would take it".
14However, during cross-examination, Mr. Estee gave inconsistent testimony on this point. Mr. Estee agreed with defence counsel's suggestion that, due to a couple of minor fender-benders he had been involved in, he was a little nervous to drive in some places. Therefore, he would let the accused drive the minivan sometimes when he was in it. He acknowledged that this was a relief to him, and helped him out, because he was a nervous driver. During cross-examination, Mr. Estee acknowledged that he had no reason to think of the accused as anything but a friend because the accused was doing things to help him out.
15Mr. Estee also agreed with defence counsel's suggestion that he would sometimes let the accused drive the minivan when he was not in it. The following exchange occurred between defence counsel and Mr. Estee:
Q. Okay. So, when you said you let him drive the van without you…
A. Yes.
Q. …that would – would you have required him to ask permission each and every time?
A. Yes.
Q. Okay. And he would do that, right?
A. Yes.
Q. Okay. So, as long as he said something like, 'Hey, I'm going to take the van to run some errands, is that okay with you?' you were pretty much all right with that, right?
A. Not – yes.
16Therefore, in-chief, Mr. Estee said that there were no discussions with the accused and Patricia about them using his vehicle, whereas in cross-examination he admitted that discussions did occur and that he did allow them to use his minivan when they would ask permission.
17Mr. Estee agreed with defence counsel that the accused and Patricia wanted to move out of the apartment on Hughson Street because of issues with bedbugs and other pests. Mr. Estee did not agree that it was possible the accused and Patricia asked him to use the minivan to move out, but he did agree that it would not have been out of the ordinary for them to ask to use the minivan for something like that.
18Mr. Estee gave inconsistent testimony about the last time he had used the vehicle before he noticed it to be missing. When Crown counsel asked Mr. Estee why he went to the police about the minivan, he said he had not used the vehicle for "weeks on end" and noticed that it was gone. However, at a different point in his evidence, when Crown counsel asked Mr. Estee what made him suspect that the accused and Patricia took the minivan without his permission, he replied, "because I never used it for, like, three, four days and then I went to look, and it was gone".
19Mr. Estee also gave inconsistent testimony about where he, the accused and Patricia were living in August 2024. In examination-in-chief, he said they were still living in the home on West 1st Street. However, at another point in his evidence, he said that he would usually park the minivan in the underground parking. He was obviously mistaken about them living on West 1st Street in August 2024 because he agreed with defence counsel that the West 1st address did not have underground parking. Furthermore, the Stolen Auto Report, Exhibit 3 on the trial, shows that Mr. Estee reported that the vehicle was stolen from his residence located at 192 Hughson Street in Hamilton, not 54 West 1st Street.
20At certain times in his evidence, Mr. Estee maintained that he did not give the accused and Patricia permission to use the minivan to move out and that he had no idea that they had taken it without his permission. However, in the following exchange with defence counsel, Mr. Estee acknowledges that he let the accused use the vehicle to move out:
Q. Right. So, you knew that they had the keys, right?
A. Yes.
Q. Okay.
A. From the kitchen there.
Q. Okay. So, I'm going to suggest to you that you knew they had the keys and that you had let him take the vehicle to help himself move out of the apartment because of the whole bedbug situation, you agree with that?
A. Yes.
21In cross-examination, Mr. Estee admitted that it was his sister, Karen, who told him to report the vehicle stolen in August of 2024 and that he would not have done that otherwise. The following exchange between defence counsel and Mr. Estee casts significant doubt on whether the minivan was stolen. Mr. Estee acknowledged that it was his sister who was angry that the accused had the minivan and that he reported it stolen to calm her down, even though he thought the accused and his girlfriend would eventually bring the minivan back:
Q. ... So, is it possible, then, that you had let him – you knew he had the keys…
A. Yes.
Q. …you'd let him take it…
A. Yes.
Q. …and you had just forgotten how long that he had brought it back?
A. No, that's not right.
Q. No? You don't think maybe you spoke to Karen and Karen was asking where your van was and then Karen got upset that Mr. Hindy had it?
A. No. My sister told me to report it stolen.
Q. Okay. I'm going to suggest to you that your sister was unhappy that Mr. Hindy had the van, is that – would you agree with that?
A. That sounds right.
Q. That sounds right?
A. Yes.
Q. Okay. And, so, your sister Karen was upset that Mr. Hindy had the van, she wanted you to report it stolen, right?
A. Yes, that's right.
Q. Right. You weren't upset that Mr. Hindy had the van, were you?
A. Not really.
Q. No.
A. I didn't know that they took it.
Q. Okay, but you weren't upset that they did?
A. No.
Q. You knew he would bring it back, right?
A. I thought they would bring it back eventually.
Q. Right, right. And at that point Karen was more upset about it than you were, right?
A. Yes, that's right.
Q. Okay. So, you, to calm your sister down, went and reported it stolen, is that fair?
A. Yes, that's right, she told me to report it stolen.
Q. Okay. And that's why, you wanted to make your sister happy and calm her down, right?
A. Yes.
22Mr. Estee's inconsistent testimony about his brother's guns also caused me to approach all of his evidence with caution, including his denial that he gave the accused permission to use the minivan to move out. Mr. Estee testified that his brother had a shotgun and two rifles in the home at 54 West 1st. According to Mr. Estee, after his brother died, his sister came to his new address on Hughson Street and took the guns. At first, he told Crown counsel that his sister took all three guns but then said she took the two rifles but not the shotgun.
23In examination-in-chief, Mr. Estee said that the last time he saw the shotgun was "probably 2007". He also said that he never personally handled the shotgun, nor did he ever see it used by anyone. However, during cross-examination, he gave inconsistent testimony. He agreed with defence counsel that the firearms, including the shotgun, were still in the home at West 1st Street when his brother passed away in 2023. Mr. Estee also acknowledged that an incident occurred at West 1st Street, when he was handling the shotgun, and it went off inside the home. Patricia was in the room when the shotgun went off. Mr. Estee admitted that, after this incident, the accused told Mr. Estee to get rid of the shotgun because it was dangerous.
24Therefore, Mr. Estee's testimony contained numerous inconsistencies which raised concerns about the reliability of his evidence, including his claim that he did not give the accused and Patricia permission to use the minivan to move out of the apartment on Hughson Street.
25The Crown called Mr. Estee's cousin, Glenn Ryan, to testify about his relationship with Mr. Estee. Mr. Ryan said that he took on the role of a caregiver for his cousin. He also gave evidence about Mr. Estee's intellectual capacity. Prior to calling Mr. Ryan to testify, Crown counsel said that his evidence was expected to provide context for Mr. Estee's evidence. Mr. Ryan was not qualified to give expert opinion evidence. In essence, Mr. Ryan gave his lay opinion, based on his dealings with his cousin, and his extensive experience working with disabled individuals, that Mr. Estee's "intellectual capacity would be around the nine to 12-year-old level". In cross-examination, Mr. Ryan acknowledged that although he was involved in Mr. Estee's life growing up, he did not have a close relationship with Mr. Estee until August 2024 when he took him to the police station to report the minivan stolen.
26Mr. Estee's testimonial competence was not challenged at trial pursuant to s. 16 of the Canada Evidence Act. He testified under oath and was able to communicate his evidence in court by understanding and responding to questions. Even if I were to accept Mr. Ryan's lay opinion about Mr. Estee's intellectual deficits, as the trier of fact, my focus was on Mr. Estee's "veracity and [his] actual capacities as demonstrated by [his] ability to perceive, recall and recount the events in issue, in light of the totality of the evidence".[4]
27Mr. Ryan had never met the accused. He had no first-hand knowledge of who was living with Mr. Estee and helping care for him prior to August 2024 when he assisted Mr. Estee in filing the police report about the minivan. Mr. Ryan's evidence did not assist me in assessing Mr. Estee's credibility or the reliability of his evidence.
28The accused testified that, on August 8, he talked to Mr. Estee about moving out and asked him if they could use the minivan for a couple of days so they could set up a tent and get some food. According to the accused, when he spoke with Mr. Estee on August 8, Mr. Estee told him that he needed the van returned by Saturday, August 10.
29On August 15, 2024, the accused gave a statement to DC Colin Bouwers, which the Crown introduced as part of its case. In his police statement, the accused said that when Mr. Estee gave them permission to use the minivan he said, "I need my vehicle Saturday", to which the accused responded, "Yeah, I'll bring it to you".
30The accused testified that he called Mr. Estee and left several messages for him trying to return the minivan, including on August 10, 12 and 13. In his police statement, the accused told the officer that he tried to bring the minivan back on August 10, but the unit looked like it was cleared out. In cross-examination, Crown counsel suggested to the accused that, at any time, he could have returned the vehicle to the dedicated spot in the underground parking lot because he still had the key fob. The accused agreed with Crown counsel but said that he did not do so because the parking permit had expired for the month, and he did not want the vehicle to be towed, which would be costly for Mr. Estee.
31The accused's testimony about his use of the minivan on prior occasions was not without flaws. He gave vague and somewhat confusing evidence about Mr. Estee having written them a note, or perhaps two notes, confirming that he gave them permission to use the minivan because Mr. Estee's family was "terrorizing us". When asked to explain the connection between Mr. Estee's family members and the minivan, the accused said "nothing….they were just very vindictive….they didn't like the fact that we were kind of ..looking out for [Mr. Estee]…". The accused did not produce the notes at trial and Mr. Estee was not confronted in cross-examination with the suggestion that he had provided written permission to the accused and Patricia to use the minivan.
32I did not accept the accused's evidence that, on prior occasions, Mr. Estee had given him and Patricia written permission to use the vehicle. However, I found that the accused's evidence that he asked for and received permission from Mr. Estee to use the minivan to move out of 192 Hughson Street in August 2024, and that he planned to return the vehicle to Mr. Estee, could be true. Mr. Estee acknowledged that the accused had asked for permission to use the minivan in the past and that he had granted the accused permission to use it. Mr. Estee also stated that he thought that the accused would eventually return the vehicle, but he reported it stolen to calm his sister down. On the totality of the evidence, I was left in a state of reasonable doubt that the minivan was stolen, and that the accused knew he was in possession of stolen property.
The Firearms Charges
33PC William Armstrong testified about the search of the minivan. The police observed garbage bags which contained lots of clothing, and backpacks. In the rear backseat area, the police located a red toolbox that contained ammunition as well as the sawed-off shotgun that was inside a blue folding chair bag. The shotgun the police seized is a J.C. Higgins, Model 20, 12-gauge single-barrel pump-action shotgun. The shotgun was not loaded. PC Armstrong estimated that the toolbox contained a couple of hundred rounds of unspent ammunition. Included amongst the ammunition were numerous 12-gauge shotgun shells. Most of the ammunition was found within the toolbox.[5]
34The accused was charged with the following Criminal Code offences: (i) unauthorized possession of a firearm without being the holder of a licence or registration certificate for it: s. 91(1); (ii) possession of a firearm knowing that he was not the holder of a licence or registration certificate for it: s. 92(1); (iii) careless storage of a firearm: s. 86(1); (iv) being an occupant of a motor vehicle in which he knew that there was a firearm: s. 94(2); and (v) possession of a prohibited or restricted firearm with readily accessible ammunition that is capable of being discharged in the firearm without being the holder of an authorization or a licence to possess it in that place and the registration certificate for the firearm: s. 95(1)(b).
35In addition to admitting that he had knowledge and control of the seized sawed-off shotgun and ammunition, the accused admitted that he did not have an authorization, licence, or registration certificate for the shotgun, that it was stored in a careless manner in the minivan, and that, if the shotgun was found to be a "firearm", within the meaning of s. 2 of the Criminal Code, it was a prohibited firearm because of its barrel length. No issue was taken with the continuity of the seized shotgun and ammunition.
The sawed-off shotgun is a "firearm" as defined in s. 2 of the Criminal Code
(a) Operability and Adaptability
36DC Kevin McComb was the firearm analyst who first took possession of the shotgun from PC Armstrong to process and forensically examine it. At the time, DC McComb was relatively new to the role, having examined under five firearms. In addition to receiving the shotgun, DC McComb received shotgun rounds that PC Armstrong located in the minivan, which included 12-gauge shotgun rounds that could be used in the seized shotgun.[6]
37DC McComb testified that the overall condition of the shotgun was good, although the wooden forearm which would rack the pump-action shotgun was detached from the metal rod to which it would customarily be attached. The officer referred to photographs in Exhibit 5 which showed the detached forearm. On photographs 14 and 16 of Exhibit 5, he circled the metal rod from which the forearm had become detached. DC McComb explained that when the forearm is attached to the metal rod and the user pumps the forearm, it will cycle the action which means that it will load a round into the chamber of the shotgun.
38DC McComb testified that the shotgun was still operable despite the forearm being detached from the metal rod. The process he used to determine its operability began with dry firing it in the lab without ammunition. DC McComb explained dry firing in the following exchange with Crown counsel:
Q. Okay. And what if any impact that you could discern did this break here that we're looking at at 16 have in terms of your ability to do so?
A. The firearm is still operable without it being attached to the firearm. I was able to determine that in the lab, actually. In the lab we dry fire the firearm.
Q. What do you mean when you say 'dry fire?'
A. Without any ammo in it. You're cycling the action as if you were to be putting a round in it and you're pulling the trigger to ensure when you take it to the range it's a safe firearm to be loading real ammunition into it and to be firing from it.
Q. So practically speaking, how did it work when you did this dry fire exercise? What happened?
A. Yeah, it worked, it cycled normally, it dry fired as it should, as functioned, but without the forearm because the forearm's not attached. So, if you pump the forearm without it being attached to the metal rod, it's not going to do anything. But the metal rod you can manipulate with your hand and push in and pull out. The same function that the forearm would do but you're doing it with your hand.
Q. Okay.
A. Pushing and pulling out to dry fire or to load a round if you're actually loading rounds.
39In cross-examination, DC McComb expanded on what it means to dry fire or cycle the action:
So, the dry fire for the shotgun was with it on a table, action release button down, manipulating that bar so I can see the chamber opening and closing…To know that that component of the firearm appears to be working.
40Defence counsel cross-examined DC McComb about a note in his notebook that said, "not fireable condition". DC McComb explained that when he looked at the firearm, his initial impression of it with the broken forearm was "that you wouldn't be able to cycle the action". He went on to say, "[b]ut then when I realized that you could manipulate the metal rod and cycle the action, I changed my opinion on whether it would be fireable or not". I accept DC McComb's explanation that this note in his notebook represented his initial impression of the shotgun when he visibly inspected it, before he manually examined it, and eventually test fired it.
41Defence counsel confronted DC McComb with the fact that his handwritten notes and will say made no mention of dry firing the shotgun in the lab. I find as a fact that DC McComb dry fired the shotgun as he described, which changed his initial opinion that it was not fireable and caused him to proceed further by taking the shotgun to the range to test fire it. The fact that this was not noted in his notebook or will say does not affect the officer's credibility or the reliability of his testimony on this point. He gave evidence that dry cycling is part of the normal process when examining firearms. Sgt. Cole testified that he too dry fired the shotgun in the lab before taking it to the range to conduct his test fires.
42DC McComb said that he was able to dry fire the shotgun in the lab numerous times by pulling the metal rod out and pushing it back in. This replicated what the forearm would do if it was attached. He then said that after dry cycling the shotgun this way about ten times, the metal rod started to seize so he applied gun oil to that area and tapped it with a hammer. He clarified that he could probably have continued to manipulate the metal rod with his hand without the gun oil, but it got to the point where it was difficult to do so because he started to get some resistance:
It's a small piece of metal to grab with your hand and it's just awkward to manipulate back and forth. So, when it started to get some resistance to it, rather than fighting with it, it was easier to put some gun oil to have it moving easier.
43In cross-examination, DC McComb agreed with defence counsel that, in his will say, he wrote that he was able to manually manipulate the metal bar to cycle the action until it got stuck in position. In cross-examination, he also agreed that it was only after applying the gun oil and tapping the metal bar with the hammer that he was able to get it cycling again. However, he went on to say, "stuck in position is kind of a relative term, it was stuck in a position that it was making it more difficult to use my hand to move the – to manipulate that metal bar".
44DC McComb described how he used the hammer to tap the edge of the metal rod lightly:
It wasn't deep, and again it wouldn't have been required, I could still manipulate it with my hand. Hitting it with the hammer just forced the metal rod to go all the way in, get the gun oil all the way through, and then get it sliding easier.
45DC McComb used gun oil that was supplied by the police service, but he thought that gun oil would be available at any gun shop or Canadian Tire store. He said that other than applying "a very average to small amount of gun oil" and tapping the metal rod lightly with a hammer to make it slide easier, he did nothing else in the lab to manipulate the shotgun. There were no blocks or occlusions in the chamber that precluded someone from loading a round of ammunition in it.
46After examining the shotgun in the lab, DC McComb took it to the police central range to test fire it. Because of the detached forearm, DC McComb decided to use a safe firing device to test fire the shotgun. He described the device as a metal box with clamps that the shotgun was placed into, and a string was used to pull the trigger. DC McComb successfully test fired the shotgun once in the safe firing device. He said:
Yes, so the first shot was successful, the firearm operated as it was supposed to, it test fired one round, the round was retrieved, and then I attempted a second test fire.
47DC McComb used an Imperial Special Long-Range 12-gauge two-and-three quarters inch round to test fire the shotgun. It was a round that was available at the range. DC McComb explained what he meant when he said that the shotgun test fired successfully:
So, there was no issue loading the round into the firearm, it discharged the firearm as it should, the firearm operated in every way that it should, and then I retained that round.
48When DC McComb attempted a second test fire with the shotgun, it wouldn't fire again. He left the shotgun for a senior officer who had more experience with firearms, Sgt. Michael Cole. DC McComb measured the shotgun and took photographs of it.[7] He testified that the shotgun was a prohibited firearm because its barrel was sawed-off and was less than 457 millimetres in length.
49Sgt. Cole testified about his examination and test firing of the shotgun. He had extensive experience with firearms. Before his 17-year career with the Hamilton Police Service, Sgt. Cole was an officer with the Royal Constabulary in Northern Ireland for 19 years, where he became a nationally recognized firearms instructor. Sgt. Cole's career included a secondment to Kosovo through the United Nations where he trained Kosovo police in firearms and a four-year term in Iraq where he trained the police in firearms and firearms tactics. Sgt. Cole was a sergeant in forensic services in the Hamilton Police Service and one of his specific roles was to oversee firearms examinations within the unit. He also performed the role of firearms examiner for two-and-a-half to three years.
50Sgt. Cole testified that he received an e-mail from DC McComb asking him to look at the shotgun because he had test fired it once and could not get it to fire again. Sgt. Cole removed the shotgun from the transfer locker it had been left in and examined it in the lab. He confirmed that part of the reason he did so was to look for potential defects and identify any risks associated with it.
51The following exchange occurred between Crown counsel and Sgt. Cole:
Q. So did you notice any defects or observe or record any defects with respect to the item that you examined in this case?
A. I did. I noticed -- you can call it like a guide drill or like a transfer bar that attaches the -- like the front foregrip or the handle for the pump had been disconnected or broken. And that for the -- you can tell a lot from a firearm just by dry cycling it, if that makes sense. Whenever you -- and again, you have to listen to the noise and the feel of the firearm itself, but I was able to tell that whenever you rack the firearm back, the rod went back with the system. But whenever you pushed it forward again into which would effectively load another round in, round into it that the bar didn't go forward. So it had basically disengaged it, but I think in my notes, I have maybe put it, that was more of an inconvenience to the function of the firearm than anything else. It was a very simple defect. It could be remedied.
Q. And so in terms of you said it's simple to remedy. Just in terms of your ability, did you require any tools or did you use any tools in order to manipulate.
A. None whatsoever.
Q. And so in terms of the integrity of the actual system, and when I say "the system," it's the word you used, but I understand to mean essentially filling in -- essentially loading a round, ability to manipulate the round in terms of the firearm.
A. Yeah.
Q. Was there any impediment to that in your observation of the a in your handling?
A. No, I was able to fire the gun total of seven times.
Q. Okay.
A. And part of that would be to get it to recycle. So yeah, it was -- there was no issue for that.
52Sgt. Cole testified that he had no difficulty firing the shotgun. Like DC McComb, Sgt. Cole gave evidence about being able to manually manipulate the rod:
...really from where the pump handle of it is, this rod is attached to that. So once you know it was going forward, part of the way, you just had to push it forward, like the final inch say and then that allowed the internal working parts of the firearm to engage.
53When asked by Crown counsel to opine on why DC McComb had difficulty firing the shotgun a second time, Sgt. Cole said that he had a different level of confidence with firearms than his colleagues and would not have used the safe firing device. He reiterated, "I fired this by hand and it operated fine for me".
54For six of the test fires, Sgt. Cole used federal premium law enforcement ammunition, 12-gauge caliber, two-and three-quarter inch long buckshot with nine pellets, called "double 0 buck" (00 buckshot). Sgt. Cole used one of the seized rounds of ammunition to successfully test fire the shotgun a seventh time. The following exchange occurred between Crown counsel and Sgt. Cole:
Q. And so then just as a -- I suppose a final question for you officer. So, you obviously -- I understand you said you essentially fired the item seized by hand, the shotgun.
A. That's correct.
Q. So was there anything in your firing of that shotgun that gave you any concern that it was just otherwise not operable or couldn't be operated?
A. No, nothing.
55On consent, DC McComb's Certificate of Analyst was admitted in evidence as Exhibit 2, pursuant to s. 117.13 of the Criminal Code. The certificate contains information DC McComb learned from examining and test firing the shotgun himself and information he learned from Sgt. Cole. The certificate concludes that the shotgun fired as designed and is a barreled weapon that can discharge projectiles that are capable of causing serious bodily injury or death to a person. DC McComb testified that there were no impediments to the shotgun's ability to discharge a projectile "other than the fact that you're using your hand to manipulate that metal rod instead of the forearm".
56DC McComb used the make, model, manufacturer and gauge of the shotgun to search the RCMP Firearms Reference Table (FRT), a database that assists police in classifying firearms. DC McComb learned that the shotgun was listed on the FRT as a non-restricted firearm.[8]
57The definition of firearm is found in s. 2 of the Criminal Code:
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.
58The accused was charged with firearms possession, not use, offences. The accused submitted that the shotgun did not meet the definition of a "firearm" in s. 2. His challenge to the operability of the shotgun focused on the fact that the forearm was detached, and that the shotgun was rusted and in poor condition. With respect to whether the shotgun could be adapted for use as a firearm, defence counsel argued that the crux of the issue was whether the accused would have known to manipulate the metal bar or use gun oil and a hammer as DC McComb did to make it operable.
59The testimony of DC McComb and Sgt. Cole provides ample evidence that the sawed-off shotgun was operable. Both DC McComb and Sgt. Cole testified that they dry cycled the shotgun in the lab by simple manual manipulation of the metal rod which replicated what the forearm would do if it was attached. Sgt. Cole, who had extensive experience with firearms, said that the disengaged forearm was "more of an inconvenience to the function of the firearm than anything else" and called it "a very simple defect" that "could be remedied".
60Both DC McComb and Sgt. Cole test fired the shotgun successfully, meaning that shotgun shells were loaded into it and fired as projectiles down range. DC McComb said that during his test fire the shotgun discharged and "operated in every way that it should". He was able "to load a round into the chamber…the fire pin struck the round, propelled it down the barrel". Defence counsel's cross-examination of DC McComb about making no notes regarding the condition of the inside of the barrel, or the chamber, such as rust inside the chamber, did not undermine the officer's credibility and the reliability of his evidence that the shotgun was operable, and test fired a shell.
61Defence counsel cross-examined Sgt. Cole but left unchallenged his evidence that he test fired the shotgun successfully seven times, without the use of the safe firing device, and that there was nothing in his firing of the shotgun that gave him any concern that it was not operable.
62The evidence of DC McComb and Sgt. Cole was sufficient to establish the operability of the shotgun. However, the testimony of Mr. Estee and the accused about the accidental discharge of the shotgun provides additional evidence that it was operable and that the accused knew it was operable.
63Mr. Estee testified that the barrel was already sawed off when the accidental discharge occurred at the West 1st Street home. He admitted that he was the one who sawed it off. Defence counsel tried to get Mr. Estee to admit that he was under the impression that the shotgun was broken. He initially agreed but then when asked why he was under that impression he said, "[t]he barrel was sawed off, I didn't know it was broken...I didn't think it was broken". Mr. Estee testified that, after the shotgun went off, a casing came out of it. Mr. Estee denied ever telling the accused that the gun was broken.
64The accused testified that he believed the accidental discharge of the firearm happened sometime in May, which was approximately three months before he was arrested. When asked in examination-in-chief what his understanding of the condition of the shotgun was, he answered, "bad, broken…poor condition".
65The accused testified as to what he did after the shotgun discharged:
Well, when I grabbed it from Jeff, it was rusty, I heard it but I grabbed it from him and tried getting the round or the shell out of the – what the man said, the cycling area, pull on that because the elbow or the pump arm didn't – wasn't functioning.
66According to the accused, the shell was stuck in the gun. Although he "wrestled with it", he did not spend a lot of time with it because he was more concerned about Patricia having almost been shot. The accused claimed that when he gave the shotgun back to Mr. Estee, Mr. Estee said, "it was broken, I'm sorry…I thought it was broken".
67The accused's testimony in-chief suggests that at the time of the accidental discharge, the forearm was already broken, or as the accused said, "the elbow or the pump arm didn't -wasn't functioning". Yet, the shotgun discharged and put a hole in the wall and the accused agreed that this was a traumatic experience, as he almost lost someone dear to him. He agreed with Crown counsel that, based on this accidental discharge, and the fact that the barrel had been sawn off, he knew the shotgun was dangerous. It was dangerous because it was operable as a firearm notwithstanding that the forearm was detached from the metal rod.
68Even if I am in error in finding that the shotgun was operable, it was adapted for use as a firearm by DC McComb's simple acts of manipulating the metal rod to replicate the function of the forearm and applying gun oil to the metal bar and tapping it with a hammer to ensure the gun oil went all the way in. Counsel provided various authorities on this issue. I found the Ontario Court of Appeal's decision in R. v. Morris to be most instructive on the issue of whether an inoperable gun "can be adapted for use" to bring it within the definition of a "firearm" in s. 2 of the Criminal Code.[9]
69In Morris, the offender was convicted of possession of a firearm contrary to s. 95 of the Criminal Code and breach of a firearms prohibition order, contrary to s. 117 of the Criminal Code. He appealed his convictions on the basis that the handgun he had was not operable and could not be "adapted" under the definition of firearm.
70A police detective, who was an expert in the examination, identification and classification of firearms, examined and tested Morris's gun and found that it did not fire. The detective took steps to identify the problem which turned out to be a broken firing pin. He fixed the weapon by obtaining and installing a replacement for the broken part.
71The sole issue on the conviction appeal was whether the trial judge erred in law by finding that the handgun, which was inoperable and required a new firing pin, fell within the definition of firearm in s. 2. The Ontario Court of Appeal succinctly summarized the law on this issue by referring to three decisions:
11 First, in R. v. Covin, 1983 CanLII 151 (SCC), [1983] 1 S.C.R. 725, the Supreme Court explained that where an inoperable gun is used in the commission of an offence, such as robbery, it must be able to be adapted for use in the commission of that offence to come within the definition of "firearm". Subsequent decisions have held that where the offence is possession of the gun itself, the adaptation period is extended because the gun does not have to be usable on the spot. The evil that is targeted by the section is possession that is dangerous to the public.
12 The trial judge referred to the following paragraph from R. v. Ferguson (1985), 1985 CanLII 3534 (ON CA), 20 C.C.C. (3d) 256 (Ont. C.A.), at p. 262:
Because of the nature of the continuing offence of possession of a prohibited weapon under s. 88(1) [now s. 91(1)], and having regard to the purpose of the subsection, we are all satisfied that the acceptable amount of adaptation and the timespan required to render the gun operable is longer than that required for a s. 83 offence [now s. 85], where the adaptation has to be made on the scene in order to support the charge of using a firearm during the commission or attempted commission of an indictable offence or during the flight thereafter.
13 The trial judge also quoted from the Ontario Superior Court decision in R. v. Grant 2006 CanLII 6209, where the court conducted a review of the caselaw and summarized the results as follows at para. 24:
The cases reviewed above suggest that where the evidence establishes that a gun can be made operational through the straight forward installation of readily available parts in a relatively short period of time, the courts are disposed to find it to be a firearm for the purposes of the offence of possession. By contrast, where the effort to make the gun operational requires special expertise, considerable time, or parts that are not readily available, the courts are less disposed to find it to be a firearm for purposes of that offence.[10]
72The trial judge in Morris found that the steps the detective took could be taken by any ordinary member of the public, including the common practice of using internet searches and YouTube instruction videos. The trial judge rejected Morris's submission that the steps the officer took required particular expertise or involved considerable time, noting that disassembly and reassembly together took less than 45 minutes, with some additional time required to conduct internet searches and watch YouTube videos. The trial judge also observed that the firing pin cost less than $30.00 and was received within a few weeks with no need for government paperwork or verifications.
73In Morris, the Court dismissed the conviction appeal, finding that the trial judge correctly concluded that the handgun could be adapted for use as a firearm, within a reasonable time. The steps and time involved in making the gun operational in Morris involved much more than what was required in the accused's case.
74Defence counsel submitted that this issue requires a consideration of whether the accused would have known to manipulate the metal rod the way the officers did to make the shotgun fire, whether he would have known "what repairs" were needed, and whether he had access to the tools required to make the "repairs".
75First, the shotgun did not require "repairs" to make it operable. DC McComb used gun oil and a hammer simply to make the metal rod slide easier but did not say that they were tools that were necessary to make the shotgun fire. Since the accused was charged with possession offences, even if gun oil and a hammer were necessary for the shotgun to be made operable, the Crown was not required to prove that those items were available at the time and place of the accused's arrest: Covin and Morris.
76If I am in error that the shotgun was operable, I find that adapting it for use as a firearm did not require special expertise, considerable time, or parts that were not readily available. Furthermore, the accused was, at one time, a serviceman in the United States and was also interested in gunsmithing. The accused agreed with Crown counsel that, by virtue of his background, he was very familiar with firearms and how they work, including shotguns. I am satisfied that the accused had sufficient knowledge on how to operate the shotgun, or in the alternative, on how to make it operational.
(b) Capability to Cause Serious Bodily Injury or Death
77Neither DC McComb nor Sgt. Cole measured the velocity of the projectiles they test fired from the shotgun nor did they conduct a "pig's eye test". Defence counsel submitted that the Crown had not proven that the shotgun could discharge a shot, bullet or other projectile capable of causing serious bodily injury or death to a person because no evidence was led about the velocity of the test fires. In submissions, defence counsel argued that, without evidence that the "pig's eye" test was conducted with the shotgun, there could be no finding that the shotgun could cause serious bodily injury or death. As I will explain, the law does not support the defence argument.
78DC McComb testified that it was not part of his training to measure the velocity of the projectile. He testified that the shotgun was on the FRT and for it to be on the table it would have to fire above a certain velocity. DC McComb confirmed that he was able to load a round into the chamber and that the fire pin struck the round which propelled it down the barrel. When defence counsel questioned DC McComb about not conducting a "pig's eye test", he said, "[t]he pig's eye test kicks in when we're examining a BB gun, which I've never done".
79When Crown counsel asked Sgt. Cole whether he conducted a "pig's eye" test with the shotgun, he said, "we don't do the pig's eye test for anything other than BB guns or pellet guns". He explained that a pellet or BB gun is not the same as a bullet or a shotgun cartridge because "it has to be fired using some sort of compression system, whether it's a spring compressed air, compressed gas or whatever". On the other hand, shotgun cartridges all come with their charge in behind them.
80Sgt. Cole went on to say that it is the gunpowder or propellant in the shell itself that determines the velocity of a shotgun shell. He said that some will fire a higher velocity than others and that "[i]t could be anywhere from a thousand feet to 1,300 feet per second". In re-examination, Sgt. Cole said, "I haven't seen a shotgun cartridge that fires at less than a thousand feet per second. They're all pretty high".
81Defence counsel pointed to no authority that supports the proposition that the pig's eye test is required for a conventional gun. The Ontario Superior Court of Justice cases of R. v. Bell and R. v. Goard, each involved devices that were not conventional guns, a flare pen launcher and a BB gun respectively.[11] Both of the cases discuss the use of velocity and projectile penetration tests as a means of determining whether a device, that is not a conventional firearm, is capable of firing projectiles at a velocity that can cause serious bodily injury or death.[12]
82In Bell, the police seized 22-calibre ammunition and four flare pen launchers. Justice Nakatsuru considered the evidence given by one Crown expert and one defence expert. The Crown expert test fired all four seized devices with 22-calibre ammunition but did not conduct velocity testing. Even without velocity testing, the Crown expert opined that the devices were capable of causing serious bodily injury or death and certified them to be firearms. The defence expert could not classify the adapted flare pen launchers as a firearm and said that velocity and projectile tests should have been performed.
83Justice Nakatsuru accepted the evidence of the defence expert over the testimony of the Crown expert. In doing so, he did not hold that velocity and projectile penetration tests are required whenever the Crown seeks to prove that a device is capable of causing serious bodily injury or death to a person.
84In Bell, Justice Nakatsuru held:
It cannot reasonably be debated that a 22-calibre projectile fired from a conventional gun can cause serious bodily injury or death. Even without expert evidence, this is a compelling inference. To illustrate, in R. v. T.N.A.K., [1997] O.J. No. 644 (C.A.), at para. 7, the Ontario Court of Appeal held that although no direct evidence as to the capability of a rifle, such as test firing, was led at trial, circumstantial evidence could properly lead the jury to conclude that the rifle was a firearm as defined in the Criminal Code. See also R. v. Osiowy (1992), 1997 ABCA 50 (CanLII), 113 C.C.C. (3d) 117 (C.A.), at para. 20; R. v. Charbonneau, 2004 CanLII 9527 (Ont. C.A.), at para. 3.[13]
85In finding that the Crown had not proven beyond a reasonable doubt that the flare pen launcher was capable of causing serious bodily injury or death, Justice Nakatsuru said that "[t]he absence of evidence regarding the velocity of the bullets test fired by [the Crown expert] is but one factor to be considered, albeit a significant one".[14] He went on to say this:
[The defence expert] does not simply point to the lack of velocity testing as buttressing his opinion. Rather there are case-specific physical indicators that arose from the test firing and his own examination of the devices that supported his opinion and casts doubt on the Crown's proof.[15]
86Justice Nakatsuru then went on to list the factors the defence expert relied on to conclude that he could not classify the adapted flare pen launchers as a firearm.[16] These included an incomplete chamber and physical evidence that energy escaped laterally from the rupturing of the cartridge casings because of the incomplete chamber. The defence expert also relied on the fact that the barrel of the adapted flare pen launcher was significantly wider than the round once it was fitted in the partial chamber. He also noted that each test fired bullet did not sustain impact damage that he would have expected when firing a bullet into a water recovery tank.
87After reviewing the defence expert's evidence, Justice Nakatsuru said:
It must be emphasized that these adapted flare pen launchers were essentially new devices. They had not been encountered before by the experts. They were never designed to be weapons, let alone firearms. The adaption itself was minor and rudimentary. Little, if any, thought or effort went into turning them into devices that could discharge a bullet. It is not as if a device had been skilfully forged into an efficient gun. Taken altogether, the circumstances called out for velocity or penetration tests to establish the criterion of the capacity to cause serious bodily injury or death.[17]
88Therefore, in Bell, even when dealing with flare pen launchers, Justice Nakatsuru did not find that the Crown had failed to prove the devices could cause serious bodily injury or death simply because velocity or projectile penetration tests had not been done. In fact, Justice Nakatsuru reviewed the authorities provided by the Crown and said that the cases were distinguishable "based on the fact that velocity tests were conducted or other significant circumstantial evidence existed to base the finding that the object in question met the definition of a firearm".[18] Justice Nakatsuru said this about one of the cases:
In R. v. Spreeman, 2004 ABPC 209, at para. 18, the police had not test fired the handguns, nor was any expert testimony presented at trial. However, given that the accused had admitted to the police he had purchased two conventional brand-named pistols in the United States and was bringing them over the border, along with the receipts of their purchase and ammunition, it is not surprising that even without that evidence, the trial judge found them to be firearms.[19]
89In Goard, Justice Trotter also did not hold that velocity and projectile penetration tests are required to prove that a device is capable of causing serious bodily injury or death. He dealt with a BB gun in this case and said:
When dealing with guns that are not "conventional" firearms, such as BB guns, it is necessary to determine whether the device is capable of firing projectiles at a velocity that can cause serious bodily injury or death. I accept the evidence of P.C. Dwayne Scott and Detective Richard Rossel that it was established that the device was capable causing this type of harm through the use of the Pig's Eye Test, a recognized laboratory procedure used by law enforcement agencies: see R. v. Dunn (2013), 117 O.R. (3d) 171 (Ont. C.A.), at para. 40.[20]
90In Morris, although the issue to be determined was whether the inoperable handgun could be adapted for use as a firearm, ultimately, the officer testified that, once the new firing pin was inserted and the gun was reassembled, he test-fired it successfully with seized ammunition and concluded that all was in working order. In Morris, no mention is made of any velocity testing or projectile penetration test such as the "pig's eye" test, yet the handgun was found to meet the definition of a firearm.
91It cannot reasonably be debated that a 12-gauge projectile fired from a conventional shotgun, listed on the FRT, can cause serious bodily injury or death to a person. The accused acknowledged this himself in his evidence. He admitted that the shotgun that accidentally discharged in the home on West 1st was the same shotgun that the officers test fired.
92The accused had the following exchange with Crown counsel:
Q. Right. And you knew that it could have hurt somebody, right?
A. Well, I wasn't thinking of it but with it in my possession, I guess, no, nobody would have been hurt.
Q. All right, but we agree, though, that a shotgun is designed to hurt people, right, that's its purpose, what a gun does?
A. No, it's designed to hunt animals.
Q. Sure. You could shoot somebody with it and they'd be seriously injured in the usual course, right?
A. You could.
Q. And in fact, your wife, or your partner, was actually almost seriously injured by it, right?
A. Very traumatic, sir, yes.
Q. Very traumatic.
A. Yes, sir.
Q. I'm going to suggest to you you ought to have been concerned and, in fact, you were.
A. I was.
Q. And because you understood the risk this shotgun posed to you and others around you, right?
A. Sure.
93The following exchange also occurred between Crown counsel and the accused:
Q. And that's because it had successfully discharged the projectile it seemed to you, right?
A. Yes, sir.
Q. Right. And, so, you'd agree with me your wife almost just got shot in that incident, that's what I understand happened, you're in a state of panic when you're examining this shotgun the last time, right?
A. Yeah, heart was racing.
Q. You just almost lost somebody who's extremely dear to you, right?
A. Yes, sir.
94The totality of the evidence established beyond a reasonable doubt that the sawed-off shotgun which was in the accused's possession was capable of causing serious bodily injury or death to a person and met the definition of firearm in s. 2 of the Criminal Code.
Conclusion
95For the reasons set out above, I found the accused not guilty of unlawful possession of stolen property valued at under $5,000 (s. 354(1) of the Criminal Code) but guilty of the following Criminal Code offences: (i) unauthorized possession of a firearm without being the holder of a licence or registration certificate for it: s. 91(1); (ii) possession of a firearm knowing that he was not the holder of a licence or registration certificate for it: s. 92(1); (iii) careless storage of a firearm: s. 86(1); (iv) being an occupant of a motor vehicle in which he knew that there was a firearm: s. 94(2); and (v) possession of a prohibited or restricted firearm with readily accessible ammunition that is capable of being discharged in the firearm without being the holder of an authorization or a licence to possess it in that place and the registration certificate for the firearm: s. 95(1)(b).
Released: September 24, 2025
Signed: Justice J.P.P. Fiorucci