COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bienvenue, 2016 ONCA 865

DATE: 20161117

DOCKET: C61239

Hoy A.C.J.O., Doherty and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marvin Allan Bienvenue

Appellant

Howard L. Krongold, for the appellant

Peter Fraser, for the respondent

Heard and released orally: November 10, 2016

On appeal from the conviction entered on March 18, 2015 by Justice Catherine A. Kehoe of the Ontario Court of Justice, and the sentence imposed on June 25, 2015.

ENDORSEMENT

[1] The appellant was convicted of five offences in relation to his possession and intent to sell a single handgun on or about February 9, 2013. He was also convicted of weapons trafficking on or about April 15, 2013 contrary to s. 99 of the Criminal Code – count seven on the information.

[2] He was sentenced to three and one-half years’ imprisonment on each of the five counts arising out of the February 9, 2013 incident, to be served concurrently, and to three years’ imprisonment on count seven, to be served consecutively. He has abandoned his appeal of the sentence imposed.

[3] The appellant’s primary ground of appeal is that the trial judge erred in law in relation to count seven when she found that he committed the offence of weapons trafficking because he agreed to purchase a gun.

[4] The offence of weapons trafficking is created by s. 99 of the Criminal Code. It provides that an unauthorized transfer of a firearm is an offence. “Transfer” is defined by s. 84(1) as meaning to “sell, provide, barter, give, lend, rent, sent, transport, ship, distribute or deliver”. The Crown concedes, and we agree, that agreeing to purchase a firearm does not constitute a “transfer” of the firearm and that count seven should be quashed.

[5] In Greyeyes v. The Queen (1997), 1997 313 (SCC), 116 C.C.C. (3d) 334 (S.C.C.), the Supreme Court held that Parliament intends to distinguish between traffickers and mere purchasers of illegal drugs and that purchasing an illegal drug does not constitute trafficking for the purpose of s. 2(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The definition of “transfer” in s. 84(1) of the Criminal Code and the definition of “traffic” in the CDSA are substantially similar. Moreover, in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 141-147, the Supreme Court characterized s. 99 of the Criminal Code as a “weapons trafficking” offence The reasoning in Greyeyes supports the conclusion that “transfer” in s. 84(1) does not include “offer to purchase” a firearm.

[6] The appellant’s second ground of appeal is that the trial judge erred by failing to stay three of the five convictions arising out of the February 9, 2013 incident pursuant to the Kienapple principle: Kienapple v. The Queen (1974), 1974 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.). The appellant was convicted of the following five offences in relation to that incident:

• Count one – offering to transfer the firearm without legal authorization, Criminal Code s. 99;

• Count two – weapons possession for a dangerous purpose, Criminal Code s. 88;

• Count three – unauthorized possession of a prohibited or restricted firearm, Criminal Code s. 91;

• Count four – possession of a restricted firearm with readily accessible ammunition, Criminal Code s. 95; and

• Count six – possession of a firearm for the purpose of trafficking, Criminal Code s. 100.

[7] All of the counts relate to the same firearm. The appellant submits that counts one, two and three should be stayed. The Crown concedes, and we agree, that the convictions on counts two and three should be stayed. They are subsumed by count four.

[8] The remaining issue on this appeal is whether Kienapple requires that count one or count six should also be stayed.

[9] The Kienapple principle provides that where the same transaction gives rise to two or more convictions on offences with substantially the same elements, the accused should be convicted only of the more serious offence. It is designed to protect against undue exercise by the Crown of its power to prosecute and punish. It applies where there is both a factual and a legal nexus between the offences. The requisite factual nexus is established if the charges arise out of the same transaction. The legal nexus is established if the offences constitute a single criminal wrong: see R. v. Rocheleau, 2013 ONCA 679, at para. 24.

[10] The Crown argues that the requisite factual and legal nexus is not present in this case.

[11] It submits that count six is not duplicative of count one in the circumstances of this case. It says that the actus reus of count six was the appellant’s possession of the firearm as far back as at least February 6, 2013, when the appellant moved it from inside his house to his backyard, whereas the actus reus of count one was his offer to sell the weapon on February 9, 2013. It argues that it should be inferred from the trial judge’s finding that the appellant was fully entrenched in the drug and firearms trade that his purpose for possessing the firearm, throughout that time, was to sell it. Therefore, it submits the offences did not overlap precisely in time and it is open to this court to maintain convictions on both counts one and six.

[12] We reject these submissions.

[13] The trial judge found, at para. 295 of her reasons, that the appellant was in possession of the firearm on February 9, 2013 for a dangerous purpose, i.e. for protection within the drug trade or to transfer it. On February 9, 2013, which was the day after the police executed a search warrant on his home, the appellant texted a friend about selling the gun that he had hidden in his backyard. At para. 298 of her reasons, the trial judge stated that she had no doubt, based on that text message, that on February 9, 2013, the appellant possessed the handgun for the purpose of a transfer.

[14] In light of these findings, the Crown’s argument fails.

[15] We are satisfied that the record supports findings of guilt on both counts one and six. The potential sentence for each is the same. We accept the Crown’s position that it is appropriate to stay the conviction on count six.

[16] In the result, an acquittal shall be entered on count seven and the appellant’s total sentence shall be reduced by three years. Counts two, three and six shall be stayed.

“Alexandra Hoy A.C.J.O.”

“Doherty J.A.”

“K. van Rensburg J.A.”