Supreme Court of Canada
R. v. Covin, 1983 CanLII 151 (SCC), [1983] 1 SCR 725
Her Majesty The Queen Appellant;
and
Wayne Joseph Covin Respondent.
and between
Her Majesty The Queen Appellant;
and
Douglas Roy Covin Respondent.
1983: June 8.
Present: Dickson, Estey, Chouinard, Lamer and Wilson JJ.
ON APPEAL FROM THE NOVA SCOTIA SUPREME COURT, APPEAL DIVISION
Criminal law—Weapon—Use of firearm while committing an indictable offence—Meaning of “firearm”—Whether inoperable air pistol constitutes a “firearm”—Criminal Code, R.S.C. 1970, c. C-34 (as amended by 1976-77 (Can.), c. 53, s. 3), ss. 82(1), 83(1),(2).
The respondents were convicted of armed robbery (s. 302 Cr.C.) and of using a firearm while committing an indictable offence (s. 83 Cr.C). The weapon used was an air pistol from which fourteen parts were missing or damaged, seven of which were essential to its operation. The Court of Appeal quashed the conviction for the offence under s. 83(1) finding that, although the air pistol constituted a weapon for the purposes of the robbery count, it was not a firearm within the meaning of s. 83. Hence these appeals to determine whether the Court of Appeal erred in so finding.
Held: The appeals should be dismissed.
The purpose of s. 83 is to protect the victim of an offence from serious injury or death by discouraging through mandatory consecutive imprisonment the use of a firearm that is capable of being fired by the person committing the offence. Therefore, whatever is used on the scene of the crime must be proven by the Crown as capable, either at the outset or through adaptation or assembly, of being loaded, fired and thereby of having the potential of causing serious bodily harm during the commission of the offence or during the flight after the commission of that offence. Here, the weapon used by the respondents was not a firearm within the meaning of
[Page 726]
s. 83. The air pistol was inoperable and could not be repaired or adapted to be capable of firing and of causing serious injury during the commission of the offence or during the flight thereafter.
R. v. Belair (1982), 1981 CanLII 1625 (ON CA), 24 C.R. (3d) 133; R. v. Brouillard (1980), 59 C.C.C. (2d) 80; R. v. Haines (1981), 1981 CanLII 4831 (NS CA), 45 N.S.R. (2d) 428, referred to.
APPEALS from two judgments of the Nova Scotia Supreme Court, Appeal Division (1982), 1982 CanLII 3800 (NS CA), 2 C.C.C. (3d) 185, 55 N.S.R. (2d) 56, 114 A.P.R. 56, 55 N.S.R. (2d) 65, 114 A.P.R. 65, setting aside respondents’ conviction for using a firearm while committing an indictable offence. Appeals dismissed.
Robert E. Lutes, for the appellant.
David A. Grant, for the respondent Douglas Roy Covin.
Wayne Joseph Covin, in person.
The judgment of the Court was delivered by
Introduction
LAMER J.—These reasons relate to two appeals by the Crown from an acquittal by the Court of Appeal of Nova Scotia. The appeals were dismissed on June 8, 1983, sedia sedente, at which time the Court informed the parties that reasons would follow.
Background
The two respondents, the Covin brothers, committed a hold-up in a credit union using a CO2 pistol. They were charged and convicted of robbery, but also under s. 83 of the Criminal Code, for use of a firearm during the commission of an offence, punishable in the case of a first offence by a minimum sentence of imprisonment of not less than one year to be served consecutively to any other punishment imposed for an offence arising out of the same event. The Court of Appeal quashed their conviction for this latter offence, finding that although the CO2 pistol did constitute a weapon or imitation thereof for the purposes of the robbery count, a jury could not on the evidence have reasonably concluded that it was a firearm
[Page 727]
within the definition in s. 82(1), as used in s. 83(1).
Issue
The sole issue before this Court is whether the Court of Appeal erred in so finding. The factual setting of the issue is found in the testimony of a forensic firearm examiner for the R.C.M.P. who testified at trial that the weapon was an air pistol, in damaged and incomplete condition; there were fourteen parts of the gun missing or damaged, and seven of those missing parts were essential to its operation. The witness said further that an experienced person could replace the missing parts in ten to fifteen minutes.
Relevant Legislation
There are two relevant sections in this appeal:
- (1) Every one who uses a firearm
(a) while committing or attempting to commit an indictable offence, or
(b) during his flight after committing or attempting to commit an indictable offence,
whether or not he causes or means to cause bodily harm to any person as a result thereof, is guilty of an indictable offence and is liable to imprisonment
(c) in the case of a first offence under this subsection, except as provided in paragraph (d), for not more than fourteen years and not less than one year; and
(d)…
(2) A sentence imposed on a person for an offence under subsection (1) shall be served consecutively to any other punishment imposed on him for an offence arising out of the same event or series of events and to any other sentence to which he is subject at the time the sentence is imposed on him for an offence under subsection (1).
- (1) For the purpose of this Part,
“firearm” means any barrelled weapon from which any shot, bullet or other missile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm;
[Page 728]
Analysis
When reading the definition of firearm it first appears that what is being principally considered is a barrelled weapon that is actually “capable of causing serious bodily injury or death”, because it can be loaded and fired. This to me includes unloaded guns, for reasons I will give shortly.
It is apparent that the section extends the definition of “firearm” to include anything that has the potential of becoming a firearm through adaptation. The section goes on to extend that category to include “frames and receivers”, and by reason thereof, the section when read literally, (at least in its English version) includes these frames and receivers irrespective of their adaptability. This would mean that even firearms inoperative because beyond repair would still be firearms inasmuch as there was a frame or receiver. One might then wonder, if such is the case, why inoperative firearms needed any qualification in the section inasmuch as the frame or the receiver was present. In the French version of the definition it is apparent that frames and receivers are mentioned as considered illustrative of those things adaptable for use as a firearm. I have for the benefit of those whose understanding of French is limited, translated more or less literally the French version of the definition:
“arme à feu” désigne toute arme, y compris une carcasse ou chambre d’une telle arme ainsi que toute chose pouvant être adapté pour être utilisé comme tel, susceptible, grâce à un canon qui permet de tirer du plomb, des balles ou tout autre projectile, d’infliger des lésions corporelles graves ou la mort à une personne;
[Page 729]
“firearm” means any weapon, including the frame or chamber of such a weapon and anything that can be adapted to be used as such, that is capable, because of a barrel from which shot, bullets or any other missile can be discharged, of causing serious bodily injury or death to a person.
The French version is not without its own difficulties, but, as I said, I believe the central idea is more easily perceived and frames and receivers must eventually meet the test of adaptability to becoming dangerous weapons.
Another difficulty is that of remoteness. Indeed most pieces of metal, pipe or wood can, given time, tools and expertise, be said to be adaptable for use as a firearm, that is, becoming capable of being loaded and fired in such a way as to cause bodily injury.
In my view the acceptable amount of adaptation and the time required therefore for something to still remain within the definition is dependent upon the nature of the offence where the definition is involved. The purpose of each section should be identified and the amount, nature and the time span for adaptation determined so as to support Parliament’s endeavour when enacting that given section.
The offence we are considering in this case is the use of a firearm during the commission of another offence. The purpose of s. 83 is to protect the victim of the commission of an offence from serious injury or death by discouraging, through mandatory consecutive imprisonment, the use, by him who commits the offence, of a firearm that is capable of being fired. It has been said that s. 83 is not only aimed at preventing physical injury but also to prevent the cause of alarm. (See R. v. Belair (1982), 1981 CanLII 1625 (ON CA), 24 C.R. (3d) 133). With respect, I do not agree. Had that been the section’s purpose, Parliament would have included imitations of firearms, as it did in s. 85 or again in s. 302 of the Code.
Therefore whatever is used on the scene of the crime must in my view be proven by the Crown as
[Page 730]
capable, either at the outset or through adaptation or assembly, of being loaded, fired and thereby of having the potential of causing serious bodily harm during the commission of the offence, or during the flight after the commission of that main offence, the hold-up.
An operable but unloaded pistol or revolver or air pistol is a firearm, because it is capable during the commission of the offence when loaded and fired of causing bodily injury. (See R. v. Brouillard (1980), 59 C.C.C. (2d) 80 per Montgomery J.A.). If inoperable, then, as regards s. 83, it is a firearm if, given the nature of the repairs or modifications required and the availability of the parts on the scene, whatever was used could, during the commission of the offence, have been adapted by an ordinary person or by the accused if possessing special skills so as to be capable of firing and of causing serious injury.
The burden is upon the Crown to prove this. Because the section does not require that the accused be in possession of ammunition at the time of the offence, a weapon falling within the definition in s. 82(1) is, for the purposes of s. 83(1), a weapon whether or not the accused has the necessary ammunition to fire it. Parliament has relaxed that burden as regards proof of the presence of ammunition at the time of the offence. Indeed, except in cases where the gun was actually fired, the Crown would practically never have been able to meet proof of that fact. But to this extent only has Parliament relaxed the burden of proof. I am not unmindful of the burden of proof placed on the Crown. But one must not lose sight of the fact that Parliament is penalizing additionally the use of a firearm, even in cases where its use was, qua an offensive weapon, an essential component of the main offence. The fact that the Crown has to meet this burden is understandable when considering that there is a mandatory jail sentence of at least one year added to the sentence imposed for the main offence.
[Page 731]
Conclusion
In the present appeals, there is no evidence that there were at the time and place of the offence or during the flight thereafter, to use the words of Hart J.A. in R. v. Haines (1981), 1981 CanLII 4831 (NS CA), 45 N.S.R. (2d) 428 at p. 436, “…the necessary ingredients for an operable firearm together with the ability to place it in operable form”.
Disposition
Appeals dismissed.
Solicitor for the appellant: Robert E. Lutes, Halifax.
Solicitor for the respondent Douglas Roy Covin: David A. Grant, Dartmouth.
