DATE: 20060804

DOCKET: C42528

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JAMES R. McMANUS (Respondent)

BEFORE:

SIMMONS, ARMSTRONG AND ROULEAU JJ.A.

COUNSEL:

James Foord

for the appellant

Tracy Stapleton

for the respondent

HEARD & RELEASED ORALLY:

July 28, 2006

On appeal from the conviction entered by Justice Bruce E. MacPhee of the Ontario Court of Justice on July 13, 2004.

E N D O R S E M E N T

[1] The appellant appeals from his conviction for carrying a concealed weapon contrary to s. 90(2) of the Criminal Code.

[2] At the request of the Crown and with the consent of the appellant we amended the information by deleting the words “without being authorized under the Firearms Act to do so”, and also by deleting the words “a replica handgun” and by substituting therefore the words “imitation firearm”.

[3] In convicting the appellant, the trial judge accepted the Crown’s submission that the pellet gun seized from the appellant is a firearm. By definition, a firearm is a weapon within the meaning of s. 90(2) of the Criminal Code. The trial judge relied on his finding that the pellet gun is a firearm to conclude that it is a weapon for the purposes of s. 90[^1].

[4] In her evidence at trial, the police officer who seized the pellet gun from the appellant confirmed that it is discharged by a spring mechanism. In addition, she agreed that this type of pellet gun is “also referred to as a toy pellet gun.”

[5] The definition of “firearm” in the Criminal Code stipulates that a firearm is “a barrelled weapon…” On the facts of this case, in our view, the trial judge erred in failing to consider whether the pellet gun seized from the appellant is a weapon prior to accepting the Crown’s submission that it is a firearm. Further, in light of the record at trial and the trial judge’s finding that there was no evidence that the appellant used the pellet gun for a purpose dangerous to the public peace, in our view, a finding that the pellet gun was a weapon was not available.

[6] In the circumstances, the appeal is allowed, the appellant’s conviction is set aside and an acquittal is substituted.

“Janet Simmons J.A.”

“Robert P. Armstrong J.A.”

“Paul Rouleau J.A.”

[^1]: On appeal the Crown requested that the information be amended as set out above because the definition of replica firearm excludes a firearm. Relying on R. v. Scott (2000), 2000 BCCA 220, 145 C.C.C. (3d) 52 (B.C.C.A.) aff’d 2001 SCC 73, [2001] 3 S.C.R. 425, the Crown submitted that the definition of imitation firearm does not exclude a firearm. The appellant responded that Scott should be confined in its application to s. 85 of the Criminal Code. It was unnecessary that we determine this issue in order to dispose of the appeal.