DATE: 20020327
DOCKET: C35226

COURT OF APPEAL FOR ONTARIO

MOLDAVER, FELDMAN and CRONK JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN
Respondent

• and -

PRADEEP GOSWAMI
Appellant

Counsel:
Joseph Neuberger and David Rose for the appellant
Brian McNeely for the respondent

HEARD: October 3, 2001

On appeal from the conviction by Justice Eugene G. Ewaschuk on October 25, 2000.

FELDMAN J.A.:

[1] The appellant appeals his conviction on four counts of possessing and transferring firearms contrary to s. 99.(1) and s. 100.(1) of the Criminal Code.

[2] There are two grounds of appeal. The first is that the operation of s. 84(3)(b) of the Code deems the firearms in question not to be firearms for the purposes of the offences contained in s. 99 and s. 100 of the Code. The second is that interjections by the trial judge impugned the appearance of a fair trial. For the reasons which follow, I would dismiss the appeal on both grounds.

FACTS

[3] The case arose out of an undercover operation set up by the police to determine whether retail outlets which sold certain starter pistols that could be converted to fire live ammunition were selling them with knowledge that they would be used in criminal events. King Sol’s was one of the stores targeted by the police. The appellant was an employee of King Sol’s, a sporting goods store that sold real and replica guns as well as starter pistols that fired blank cartridges. Guns, including starter pistols, were kept in a separate room and displayed behind a locked glass case.

[4] An undercover officer attended at King Sol’s on July 7, 1999. He asked the appellant to see a Baretta starter pistol. The appellant responded that they do not take them out of the case. The officer told him he was looking to buy one or more for himself and his friends, that he wanted to drill it out but did not know how to do it and asked the appellant if he knew. The appellant responded that he did not know, that he did not want to talk about it and said: “That’s a lot of trouble.” The trial judge inferred that he meant trouble with the police. The officer inquired about getting a deal on seven starter pistols and some .32 calibre ammunition, indicated that he wanted to ask his friends if they wanted to make the purchase that day, and left.

[5] Outside, his instructing officer directed him to purchase only one pistol and some ammunition that day. He then returned to King Sol’s and told the appellant he wanted to purchase one Kimar 92 (the Baretta) and some ammunition. He asked the appellant to show him where the screw was that had to be removed before drilling the pistol. The appellant removed a red tab out of the barrel with pliers, then handed the pistol back with the muzzle up. The officer looked into the barrel, saw a metal piece, and asked if that was what had to be screwed out. The appellant did not respond and only shrugged his shoulders. The appellant sold the officer the pistol and was prepared to sell him the .32 calibre ammunition, but refused to sell the ammunition because the officer did not have a driver’s license which was required.

[6] The officer returned on July 13, wearing an authorized body pack for recording his conversation with the appellant. He purchased six Kimar 92 pistols and two boxes of .32 calibre ammunition. At that time he asked the appellant if he knew how to drill out the pistol because his friends wanted to drill out the guns, and the appellant said he did not know how, that he did not do that and that “whatever they do is their thing.”

[7] The officer also executed a search warrant at the store and obtained a number of firearms of different makes and models.

[8] Mr. Penk is a firearms identification expert who testified for the Crown. He was able to modify the starter pistols purchased from the appellant into ammunition firing guns in approximately three minutes. He testified that the pistol was designed and intended to fire blank ammunition and that he was concerned about its integrity if live ammunition were fired from it, although on testing with live ammunition, the pistol did not crack. He also explained that the red plug in the pistol must be removed in order to fire the blanks, as it allows the gases to escape.

ISSUES AND ANALYSIS

1. Is the Kimar 92 a “firearm” for the purposes of ss. 99 and 100 of the Criminal Code?

[9] Sections 99. (1) and 100. (1) provide as follows:

s. 99. (1) Every person commits an offence who

(a) manufactures or transfers, whether or not for consideration, or

(b) offers to do anything referred to in paragraph (a) in respect of

a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.

s. 100. (1) Every person commits an offence who possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition for the purpose of

(a) transferring it, whether or not for consideration, or

(b) offering to transfer it,

knowing that the person is not authorized to transfer it under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.

[10] The term “firearm” is defined in s. 2 of the 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;

[11] There was an agreement by both counsel at trial, accepted by the trial judge, that because the Kimar 92 starter pistol can be readily modified for use as an operating gun, it is a firearm within the definition in s. 2. Having made that concession, the defence was based on the application of s. 84(3)(b) which deems certain firearms, under certain circumstances, not to be firearms for the purpose of the s. 99(1) and s. 100(1) offences. Section 84(3)(b) provides:

s. 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:

(b) any device that is

(i) designed exclusively for signalling, for notifying of distress, for firing blank cartridges or 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;

[12] The issue in this case therefore came down to whether the starter pistols that the appellant sold to the undercover officer were deemed not to be firearms in the circumstances.

[13] The trial judge rejected the defence, finding beyond a reasonable doubt that the pistols sold to the officer were not designed exclusively for firing blank cartridges and therefore did not meet the first requirement of the section. He also made a finding beyond a reasonable doubt that the appellant knew he was not authorized to sell the pistols to the officer without a proper government license to purchase, because the officer had told him that he intended to drill out the pistols for use as real guns.

[14] On appeal the appellant argues that the trial judge erred in finding that the Kimar 92 starter pistols were not designed exclusively for firing blank cartridges. He points to the evidence of the Crown expert who said that, although the pistols were easily convertible, they were designed and intended to fire blanks. Furthermore, their structure was such that they were not built to withstand the pressure of firing live ammunition.

[15] The Crown’s position is that the trial judge’s finding was correct because the test for exclusive design is an objective, not a subjective one, and is determined by the convertibility of the starter pistols to real guns.

[16] In my view, the Crown’s submission does not take account of the definition of “firearm” in s. 2 of the Code, which includes the convertibility feature. Clearly the fact that a starter pistol is easily convertible into an operating gun cannot by itself determine that the pistol was not designed exclusively to fire blanks. If that were the case, then no firearm caught by the adaptability portion of the definition in s. 2 could ever be deemed not to be a firearm under s. 84(3)(b), making that section ineffective and redundant.

[17] However, even if the trial judge erred in the test he applied for determining that the evidence established that the pistols were not designed exclusively for firing blank cartridges, the position of the appellant cannot be sustained in any event because of the second component of s. 84(3)(b). The trial judge made a specific finding, amply supported by the evidence, that the appellant knew that the officer intended to drill out the pistols for use as real guns. As the requirements of s. 84(3)(b) are conjunctive, even if it can be said that the pistols were designed exclusively to fire blank cartridges, the appellant fails to benefit from the operation of s. 84(3)(b) because, at the time he sold the pistols, he did not intend that they would be used exclusively to fire blanks. On the contrary, he knew the officer was going to convert them to be able to fire live ammunition.

[18] The appellant also argues that he did not have the mens rea to commit the offences because he could not have known that the trial judge would find that the pistols were not designed exclusively for firing blanks and were therefore firearms within the s. 2 definition. Again the appellant has focused on the wrong portion of s. 84(3)(b). Because he sold the starter pistols to the undercover officer knowing the officer’s intent to convert them to real guns, he had the mens rea for trafficking in firearms and possession of firearms for the purpose of trafficking.

[19] However, one can postulate a case where the evidence is: (a) an accused salesperson reasonably believed that the starter pistols were designed exclusively for firing blanks; (b) the accused intended to sell the starter pistol to a person for use only as a starter pistol; (c) at trial, a finding is made that in fact the starter pistols were not designed exclusively to fire blanks. Consequently, although both subsections of s. 84(3)(b) are not met, it could be argued that the accused has no criminal knowledge or intent and therefore no mens rea to commit an offence. Such circumstances might well form a proper basis for raising the argument that the appellant sought to raise with regard to the mens rea requirement in the operation of s. 83(3)(b). I do not, however, have to deal with the argument on the evidence and findings made by the trial judge in this case.

2. The Effect of Interjections by the Trial Judge

[20] The appellant’s second ground of appeal is that the trial judge made interjections in the proceedings by making comments to the Crown Attorney and questioning Crown witnesses, which either deprived the appellant of a fair trial or destroyed the appearance of a fair trial. While I agree that it would have been preferable for the trial judge to refrain from interjecting and making comments on extraneous matters, it is clear that his interjections were innocuous and essentially harmless and in no way affected the fairness or the appearance of fairness in this case.

CONCLUSION

[21] I would therefore dismiss the appeal.

Signed: “K. Feldman J.A.”

“I agree M.J. Moldaver J.A.”

“I agree E.A. Cronk J.A.”

RELEASED: “MJM” MARCH 27, 2002