Court of Appeal for Ontario

Date: 20240417 Docket: COA-23-CR-0198

Judges: Lauwers, Hourigan and Nordheimer JJ.A.

Between:

His Majesty the King Appellant

and

Amari Donawa Respondent

Counsel:

Andrew Hotke, for the appellant Mark C. Halfyard and Maxime Bédard, for the respondent

Heard: April 11, 2024

On appeal from the acquittals entered on December 21, 2022 by Justice Gethin B. Edward of the Ontario Court of Justice.

Nordheimer J.A.:

[1] The Crown appeals from the acquittals entered by the trial judge on various firearm offences. The Crown had sought leave to appeal the sentences imposed on other offences for which the respondent was convicted, but it abandoned that appeal. The central issue in the appeal is whether the trial judge was correct in his finding that the handgun in question was not a firearm as defined in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] During a roadside stop, the police found a handgun in the fanny pack belonging to the respondent. The handgun was a Swiss Arms SA 22. It contained a magazine with multiple rounds of .22 calibre ammunition.

[3] The police sent the handgun to the Centre of Forensic Sciences (“CFS”). For reasons that are not explained, the police did not send the magazine or the ammunition to the CFS. The CFS was able to test the handgun to determine that it was operable by using a magazine from a similar model of handgun which the CFS had in their inventory.

[4] At trial, the expert from the CFS testified that a Swiss Arms SA 22 handgun cannot be fired easily without the magazine because it has a safety mechanism intended to prevent the trigger from operating without the magazine being inserted. However, with a magazine inserted, the handgun operates properly.

[5] The trial judge found that the handgun was not a firearm. In so finding, the trial judge said:

In my opinion, I am not satisfied to the requisite degree that it is proven beyond a reasonable doubt, the onus of which lies on the Crown, that the item seized by the police from the fanny pack of Amari Donawa, is a firearm because making it operational, according to the CFS expert, required special expertise, considerable time, and parts not readily available, (see R. v. Brown, [2005] O.J. No. 4589.)

[6] In my view, the trial judge made a number of errors in reaching his conclusion. First, the trial judge does not make any reference to the fact that there was a magazine in the handgun when the police found it. The CFS expert testified that the handgun was operable if a magazine was inserted in it. Second, the trial judge did not make any reference to the evidence that the respondent gave, in his police statement, that he had fired the handgun on previous occasions at a gun range. Third, a firearm is defined in the Criminal Code as either an operable firearm or anything that can be adapted into an operable firearm. The trial judge focussed entirely on the second definition but failed to consider whether the handgun, as found, was operable, based on the evidence.

[7] The issue raised here is directly addressed in R. v. Watkins (1987), 33 C.C.C. (3d) 465 (B.C.C.A). In that case, the accused was charged with firearms offences for possession of a handgun that was found without a magazine. The issue was whether the fact that the handgun did not have a magazine meant that the handgun was not a firearm under the definition contained in the Criminal Code. [1] McLachlin J.A. rejected that submission. She said, at para. 40:

If the gun is complete and capable of firing when loaded, then, in my opinion, it should be considered a firearm under s. 82(1) of the Criminal Code.

[8] The respondent urges us not to follow the reasoning in Watkins. No persuasive argument is advanced why we should adopt a different approach than that enunciated by the British Columbia Court of Appeal. The analysis and conclusion in Watkins are sound. Watkins is also consistent with the seriousness that Parliament has indicated should be applied to offences involving the use and possession of handguns.

[9] On a separate point, the trial judge's failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 31-32. The trial judge was obliged to explain how his conclusion could be rationalized in light of the evidence that the magazine was in the handgun and that the respondent had previously fired the handgun. On that point, the decision in R. v. Brown, [2005] O.J. No. 4589 (S.C.J.), cited by the trial judge, is of no assistance on the issue raised in this case.

[10] The appeal is allowed and the acquittals are set aside. As requested by the appellant, convictions are entered on counts 9 and 16 (careless storage of a firearm and possession of a firearm with an altered serial number) and a new trial is ordered on counts 1, 5, 7, 11, 13 and 14. Sentencing on counts 9 and 16 is remitted to the Ontario Court of Justice. In the interests of fairness, the sentencing should be conducted before a different judge.

Released: April 17, 2024 “P.D.L.” “I.V.B. Nordheimer J.A.” “I agree. P. Lauwers J.A.” “I agree. C.W. Hourigan J.A.”

[1] The definition of firearm was then contained in s. 82(1). It is now contained in s. 2.