COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Emery, 2016 ONCA 204

DATE: 20160311

DOCKET: C57177

Feldman, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Emery

Appellant

Christopher Emery, acting in person

Zachary Kerbel, duty counsel

Matthew Asma, for the respondent

Heard: March 7, 2016

On appeal from the conviction entered on March 25, 2013 by Justice John T. Lynch of the Ontario Court of Justice.

ENDORSEMENT

[1] Christopher Emery appeals from his convictions for: unauthorized possession of a prohibited weapon (a Mauser handgun) (“Count 2”); 2 counts of possession of a firearm obtained by the commission of an offence; unauthorized possession of a firearm; and, failure to comply with a probation order.

The Amendment Issue

[2] Duty Counsel assisting the appellant submitted that Count 2 wrongly charged the appellant with possession of a “prohibited weapon”, rather than a “prohibited firearm”. The Crown conceded the error and requested an amendment of the indictment.

[3] Section 683(1)(g) of the Criminal Code, R.S.C. 1985, c. C-46, empowers this court to amend an indictment where it considers it in the interests of justice, unless the court is of the opinion that the accused has been misled or prejudiced in his defence or appeal.

[4] We are satisfied that the appellant was not misled or prejudiced. The case was prosecuted and defended on the basis that Count 2 was based on unauthorized possession of a prohibited firearm, not a prohibited weapon. Furthermore, the appellant has not demonstrated – or even alleged – any prejudice in his defence or appeal. Thus, it is in the interests of justice that the requested amendment be made.

The Issue on Appeal

[5] The firearms in question (a rifle and a handgun) were stolen from a firearms collector in Cambridge and later acquired by the appellant. The appellant does not dispute the trial judge’s finding that he was in possession of the firearms and was wilfully blind as to their origin. However, Duty Counsel submitted that the trial judge erred in finding that the firearms were operable.

[6] We disagree.

[7] The owner testified that the firearms were fired in 1997 and have been stored since that time. The rifle was stored in a plastic box encased in foam, while the handgun was stored in a locked steel cabinet.

[8] The owner was not cross-examined concerning the condition of the firearms or the conditions of their storage. There was no evidence to suggest that either of the weapons was, or could have become, inoperable given the passage of time. Photographs of the firearms viewed by the trial judge showed that the firearms were in good condition.

[9] The trial judge explicitly recognized the burden on the Crown to prove that the firearms were operable. He adverted to the evidence summarized above.

[10] In all of these circumstances, we see no basis on which to interfere with the trial judge’s finding that the firearms were operable.

[11] The appellant submitted that the trigger locks were not found where the police testified, but nothing follows from this. There is overwhelming photographic evidence that the appellant was in possession of the stolen firearms.

DISPOSITION

[12] Accordingly, Count 2 in the indictment shall be amended to substitute “firearm” for “weapon”, and section 91(1) is substituted for 91(2).

[13] The appeal is dismissed.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“Grant Huscroft J.A.”