WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding has been made pursuant to the court’s common law authority. The evidence taken at the preliminary inquiry in this matter shall not be published in any document or broadcast or transmitted in any way before such time as the appellant’s trial has ended.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sebape, 2020 ONCA 475

DATE: 20200721

DOCKET: C68269

MacPherson, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mothusi Sebape

Appellant

Daisy McCabe-Lokos, for the appellant

Michael Fawcett, for the respondent

Heard: July 17, 2020 by videoconference

On appeal from the judgment of Justice Michael Code of the Superior Court of Justice, dated January 27, 2020, denying certiorari to quash the order of Justice Neil L. Kozloff of the Ontario Court of Justice, dated August 1, 2019, committing the appellant to stand trial.

REASONS FOR DECISION

[1] The appellant was charged with numerous offences. At the conclusion of the evidence at his preliminary inquiry, he resisted committal for trial on three offences: possession of a loaded firearm (Criminal Code, R.S.C. 1985, c. C-46, s. 95(1)); carry a firearm in a careless manner (s. 86(1)); and possession of a prohibited weapon (s. 92(2)). All three charges related to a single handgun with a defective firing pin. At issue for these charges was whether, despite the defective firing pin, the handgun could be “adapted for use as a firearm”, thereby meeting the definition of “firearm” in s. 2 of the Criminal Code.

[2] A firearms expert testified that a replacement firing pin could be sourced in the United States for shipment to Canada. The expert further testified that, once the new part was obtained, the defective firing pin could be replaced with relative ease, and in a short period of time. However, after searching for the part online, he determined that it was “temporarily out of stock”.

[3] Based on this evidence, the appellant was committed to stand trial on the charges under ss. 95(1) and 92(2); he was discharged under 86(1). The preliminary inquiry judge provided detailed reasons for his conclusions.

[4] The appellant’s application to quash his committal by way of certiorari was dismissed. Having reviewed the expert evidence, the reviewing judge held: “I am satisfied that there was a reasonable inference available to support committal in relation to the s. 2 issue of ‘adaptation’”. He listed 15 reasons in support of his conclusion. The appellant appeals from this decision.

[5] The reviewing judge committed no error in concluding that there was sufficient evidence to justify the appellant’s committal for trial on the disputed counts. Both the preliminary inquiry judge and the reviewing judge correctly applied the relevant substantive law (i.e., R. v. Covin, 1983 CanLII 151 (SCC), [1983] 1 S.C.R. 725, and subsequent cases) within the framework for determining the sufficiency of evidence at a preliminary inquiry: see R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804. There was an evidentiary basis from which to infer that the defective handgun could be “adapted for use as a firearm” within a reasonable time, having regard to the nature of the offence charged.

[6] The appeal is dismissed.

“J.C. MacPherson J.A.”

“G. Pardu J.A.”

“G.T. Trotter J.A.”