R. v. Hasselwander, 1993 CanLII 90 (SCC), [1993] 2 SCR 398
Her Majesty The Queen Appellant
v.
Bernhard Hasselwander Respondent
Indexed as: R. v. Hasselwander
1993: February 5; 1993: May 19.
Present: Lamer C.J. and La Forest, Gonthier, Cory and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Firearms ‑‑ Prohibited weapons ‑‑ Firearm easily convertible from semi‑automatic to fully automatic ‑‑ Whether firearm a "prohibited weapon" ‑‑ Meaning of word "capable" in para. (c) of definition of "prohibited weapon" in s. 84(1) of Criminal Code ‑‑ Construction of penal statutes -- Criminal Code, R.S.C., 1985, c. C‑46, s. 84(1).
In 1989, a Provincial Court judge ordered the forfeiture of respondent's Mini‑Uzi submachine gun. The judge held that since the gun was readily convertible from semi‑automatic to fully automatic, it was "capable of firing bullets in rapid succession upon single pressure of the trigger" and concluded that it was a "prohibited weapon" within the meaning of s. 84(1) of the Criminal Code. The Ontario District Court affirmed the forfeiture order but the Court of Appeal, in a majority judgment, allowed the respondent's appeal. The majority concluded that the word "capable" means "capable in its present condition" rather than a capability which could be achieved of an adaptation of the weapon and set aside the forfeiture order.
Held (Lamer C.J. and Major J. dissenting): The appeal should be allowed.
Per La Forest, Gonthier and Cory JJ.: The respondent's weapon must be classified as a prohibited weapon. Any uncertainty as to the meaning of the word "capable" in para. (c) of the definition of "prohibited weapon" in s. 84(1) of the Code is resolved as soon as the word is interpreted in light of the purpose of the prohibited weapons provisions of the Code. There is thus no need to resort to the rule of strict construction in this case. The purpose of these provisions is to protect the public from these dangerous weapons that are designed specifically to kill or maim people. The word "capable" in para. (c) includes an aspect of potential capability for conversion and, given a reasonable interpretation, should be defined as meaning capable of conversion to an automatic weapon in a relatively short period of time with relative ease. To come to any other conclusion would undermine the very purpose of the legislation. Therefore, where a weapon can be quickly and readily converted to automatic status, that weapon falls within the definition of "prohibited weapon". The 1991 amendment to para. (c) does not indicate that the word "capable" should be given a narrow or strict interpretation. Rather, it should be viewed as a response to the perceived need to remove any doubt as to the meaning of the word.
Per Lamer C.J. and Major J. (dissenting): The word "capable" in para. (c) of the definition of "prohibited weapon" in s. 84(1) of the Code refers to the present firing ability of the weapon. It is not used with terms such as "adapted", "altered", "designed" and "intended", which can be found in other paragraphs of s. 84(1) and which more clearly refer to future ability. Further, the 1991 amendment to para. (c) is redundant unless "capable" is restricted to present firing ability. A narrow interpretation of the term does not thwart the concern for public protection. Those weapons that would have been classified as prohibited under a broad interpretation of "capable" in para. (c) are still highly controlled under the Code as "restricted weapons". Section 84(1) also provides for the classification of a particular firearm as a "prohibited weapon". Finally, a "prohibited weapon" conviction carries serious consequences for an accused. Any test based on capability extending to future alterations, which may be beyond the accused's knowledge or skill, introduces an undesirable level of uncertainty.
Cases Cited
By Cory J.
Approved: R. v. Haines (1981), 1981 CanLII 4831 (NS CA), 45 N.S.R. (2d) 428; R. v. Global Armaments Ltd. (1990), 1990 ABCA 117, 105 A.R. 260; referred to: R. v. Ferguson (1985), 1985 CanLII 3534 (ON CA), 20 C.C.C. (3d) 256; Cité de Montréal v. Bélec, 1927 CanLII 73 (SCC), [1927] S.C.R. 535; Winnipeg Film Society v. Webster, 1964 CanLII 70 (SCC), [1964] S.C.R. 280; Bélanger v. The Queen, 1970 CanLII 222 (SCC), [1970] S.C.R. 567; R. v. Goulis (1981), 1981 CanLII 1642 (ON CA), 125 D.L.R. (3d) 137; R. v. Johnston (1977), 1977 CanLII 1904 (NWT CA), 37 C.R.N.S. 234 (N.W.T.C.A.), aff'd 1978 CanLII 187 (SCC), [1978] 2 S.C.R. 391; R. v. Philips Electronics Ltd. (1980), 1980 CanLII 1809 (ON CA), 116 D.L.R. (3d) 298 (Ont. C.A.), aff'd 1981 CanLII 61 (SCC), [1981] 2 S.C.R. 264; R. v. Leroux, [1974] C.A. 151; R. v. Nittolo, [1978] C.A. 146; R. v. Covin, 1983 CanLII 151 (SCC), [1983] 1 S.C.R. 725.
By Major J. (dissenting)
R. v. Global Armaments Ltd. (1990), 1990 ABCA 117, 105 A.R. 260; R. v. Covin, 1983 CanLII 151 (SCC), [1983] 1 S.C.R. 725; R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 S.C.R. 1378.
Statutes and Regulations Cited
Act to amend the Criminal Code and the Customs Tariff in consequence thereof, S.C. 1991, c. 40, s. 2(2).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 84(1) "firearm", "prohibited weapon" [am. c. 27 (1st Supp.), s. 186 (Sch. IV, item 2)], "restricted weapon" [idem], 90, 95, 102(3) [am. idem, s. 203], 109(3).
Export and Import Permits Act, R.S.C., 1985, c. E‑19 [am. 1991, c. 28].
Interpretation Act, R.S.C., 1985, c. I‑21, s. 12.
Restricted Weapons Order, SOR/92‑467.
Authors Cited
Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1991.
Grand Robert de la langue française, 2e éd. Paris: Le Robert, 1986, "pouvoir".
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, "capable".
APPEAL from a judgment of the Ontario Court of Appeal (1991), 1991 CanLII 7189 (ON CA), 5 O.R. (3d) 225, 50 O.A.C. 186, 67 C.C.C. (3d) 426, 9 C.R. (4th) 281, allowing the respondent's appeal from a judgment of Higgins Dist. Ct. J., which confirmed a decision of Payne Prov. Ct. J. (1990), 9 W.C.B. (2d) 426, declaring a weapon to be a prohibited weapon and ordering it to be forfeited by the Crown. Appeal allowed, Lamer C.J. and Major J. dissenting.
Brian McNeely, for the appellant.
Calvin Martin, Q.C., for the respondent.
//Major J.//
The reasons of Lamer C.J. and Major J. were delivered by
Reasons of Major J. (Dissenting)
Major J. (dissenting) -- The respondent owned a Mini-Uzi submachine gun. On August 31, 1989 he attempted to register it as a "restricted weapon".
The local registrar decided that the firearm was a "prohibited weapon" under s. 84(1) of the Criminal Code, R.S.C., 1985, c. C-46, and seized it. He then applied to the Ontario Provincial Court under s. 102(3) of the Code for a declaration that the seized firearm be forfeited. The effect of such a forfeiture is seizure of the weapon only; there is no proceeding against the owner.
In November 1989, Payne Prov. Ct. J. held that since the firearm was readily convertible from semi-automatic to fully automatic it was capable of firing bullets in rapid succession upon single pressure of the trigger. He concluded that it was a "prohibited weapon" as defined in s. 84(1) of the Code and granted the order stating:
On the evidence therefore, I am satisfied that notwithstanding that the original manufacturer made this weapon as a semi-automatic and the fact that it was in fact a semi-automatic when it was submitted to the authorities for registration as a restricted weapon, it is my finding on the evidence that by reason of
a) adjustment of the restraining plate or
b) replacing the trigger mechanism with spare parts which are fully automatic or
c)replacing the trigger mechanism with the trigger mechanism of a replica weapon this gun will fire as a fully automatic.
Because of this capability it is in fact a prohibited weapon and an order will go for its destruction accordingly.
The Ontario District Court sustained the order but the Ontario Court of Appeal in a majority judgment allowed the appeal: (1991), 1991 CanLII 7189 (ON CA), 5 O.R. (3d) 225, 50 O.A.C. 186, 67 C.C.C. (3d) 426, 9 C.R. (4th) 281. Carthy J.A., for the majority, stated (at p. 227 O.R.):
In interpreting a written document, here a statute, first impressions can often be the most reliable. It is the simplest form of analysis and, unless the issue itself is complicated and requires deeper searches for meaning, probably reflects what the author intended. Here, Parliament has used the expression "anything that can be adapted for use as a firearm" in the definition of "firearm", and the expression "that is capable of firing bullets in rapid succession" in the definition of "prohibited weapon". [Emphasis added by Carthy J.A.] There is an intended difference between the two and the simplest identification of that difference is to say that "capable" means "capable in its present condition" rather than a capability which may be achieved by adaptation.
Tarnopolsky J.A., in dissent, held that a firearm easily convertible to a fully automatic form was a "prohibited weapon". He followed the approach of the Alberta Court of Appeal in R. v. Global Armaments Ltd. (1990), 1990 ABCA 117, 105 A.R. 260. There it was held that the firearms under review, which were originally fully automatic but had been converted to single shot weapons, retained their status as "prohibited weapons" because the conversion process was quick and easy. Tarnopolsky J.A. concluded that if "capable" was not broadly interpreted to include adaptability, a conviction could be avoided simply by removing a portion of the weapon to make it inoperable.
This appeal turns on the interpretation of "capable" in para. (c) of the definition of "prohibited weapon" in s. 84(1) of the Code. Unless noted otherwise, all subsequent references to legislation are to s. 84(1) of the Code. The appellant seeks a broad interpretation that would include firearms with the potential to be made fully automatic with relative ease, submitting that such an interpretation underscores the policy underlying firearms control legislation. The respondent submits that Parliament must be taken to have chosen the word "capable" deliberately and seeks a narrow interpretation restricting "capable" to present firing ability.
"Capable" is used in the Code in defining "firearm", "prohibited weapon" and "restricted weapon". But the Code also uses terms which more clearly encompass future ability, such as "adapted", "designed", "altered" and "intended".
In the present case, the definitions of both "prohibited weapon" and "restricted weapon" depend on the definition of "firearm". If a particular object is not a "firearm" we need not take the further step of classifying it as "restricted" or "prohibited". "Firearm" is defined as
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; [Emphasis added.]
The determination of what is a "firearm" involves both a test of capability (of causing serious bodily injury or death) and of adaptability (for use as a firearm). R. v. Covin, 1983 CanLII 151 (SCC), [1983] 1 S.C.R. 725, sets out the criteria to be used in determining when an object qualifies as a firearm.
The definition of "prohibited weapon" uses both "capable" and "adapted", however, not in the same paragraph:
"prohibited weapon" means
(c) any firearm, not being a restricted weapon described in paragraph (c) of the definition of that expression in this subsection, that is capable of firing bullets in rapid succession during one pressure of the trigger,
(d) any firearm adapted from a rifle or shotgun, whether by sawing, cutting or other alteration or modification, that, as so adapted, has a barrel that is less than 457 mm in length or that is less than 660 mm in overall length. . . . [Emphasis added.]
Whether or not a "firearm" is prohibited on the basis of rapid firing ability depends on capability. In contrast, prohibition on the basis of reduced barrel length depends on actual adaptation. Submissions that "capable" includes future ability or potential are weakened by the express reference to adaptation of a firearm in para. (d), in the definition of "prohibited weapon".
"Capable" is also used in the definition of "restricted weapon":
"restricted weapon" means
(a) any firearm, not being a prohibited weapon, designed, altered or intended to be aimed and fired by the action of one hand,
(b) any firearm that
(i) is not a prohibited weapon, has a barrel that is less than 470 mm in length and is capable of discharging a centre-fire ammunition in a semi-automatic manner, or
(ii) is designed or adapted to be fired when reduced to a length of less than 660 mm by folding, telescoping or otherwise, or
(c) any firearm that is designed, altered or intended to fire bullets in rapid succession during one pressure of the trigger and that, on January 1, 1978, was registered as a restricted weapon and formed part of a gun collection in Canada of a genuine gun collector. . . . [Emphasis added.]
"Capable" is used in isolation from terms such as "adapted", "altered", "designed", and "intended" -- terms which more clearly refer to future ability. This limits "capable" to present ability. Curiously, the only time rapid firing ability is referred to in association with the phrase "designed, altered or intended" is in para. (c) in the definition of "restricted weapon" (the grandfathering provision).
The recent amendment of the definition of "prohibited weapon" (S.C. 1991, c. 40, s. 2) has not clarified the meaning of "capable".
"prohibited weapon" means
(c) any firearm, not being a restricted weapon described in paragraph (c) or (c.1) of the definition of that expression in this subsection, that is capable of, or assembled or designed and manufactured with the capability of, firing projectiles in rapid succession during one pressure of the trigger, whether or not it has been altered to fire only one projectile with one such pressure. . . . [Emphasis added.]
The effect of the amendment is that there are now two categories of weapons classed as "prohibited" under para. (c):
(i)firearms capable of firing projectiles in rapid succession during one pressure of the trigger
(ii)firearms assembled or designed and manufactured with the capability of firing in rapid succession during one pressure of the trigger regardless of whether they have been so altered.
The respondent submits that the second category includes only firearms that were originally fully automatic but now downgraded to fire a single shot at a time. Such weapons are clearly prohibited by that amendment. In contrast, the appellant submits that the second category also covers semi-automatic firearms that may be upgraded to full automation. However, a broad interpretation of "capable" in the first category, the only category in the unamended definition, catches all convertible weapons, both converted fully automatics and convertible semi-automatics. The amendment is redundant unless "capable" is restricted to present firing ability.
In R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 S.C.R. 1378, this Court recognized the policy behind firearms control legislation. See Sopinka J. at p. 1383:
While firearms have been regulated in some form in Canada since 1892, the amendments of 1977 were intended as a more comprehensive approach to protecting the public from firearm misuse (Hawley, Canadian Firearms Law (1988), at p. 2). In my opinion, Lane Co. Ct. J. accurately stated the purpose of legislation in R. v. Anderson (1981), 1981 CanLII 3219 (ON SC), 59 C.C.C. (2d) 439, at p. 447:
The recognized intent of s. 98 as a whole is to remove, or to prevent the acquisition of firearms from those members of the population who have committed offences, or who it may be reasonably anticipated may commit an offence.
A narrow interpretation of "capable" does not thwart the concern for public protection. Those weapons that would have been classified as prohibited under a broad interpretation of "capable" in para. (c), are still highly controlled under the Code as "restricted weapons". An applicant for a "restricted" weapons certificate must demonstrate to the local registrar of firearms that the weapon's intended use falls within narrow categories set out in s. 109(3). If Parliament wishes to prohibit semi-automatic firearms which are easily converted to fully automatic firing it is open for Parliament to do so.
Section 84(1) also provides for the express classification of a particular firearm, as evidenced in the Restricted Weapons Order, SOR/92-467, as well as in the various Prohibited Weapons Orders. Classification has the obvious advantage of specificity and the elimination of judicial interpretation.
A broad interpretation of "capable" may be acceptable in in rem proceedings such as the present case, where the forfeiting of the firearm is the only penalty. However, the definition of "prohibited weapon" also applies in other circumstances. Section 90 of the Code provides for various possession offences of "prohibited weapons" punishable by imprisonment up to ten years. Section 95 makes trade in "prohibited weapons" punishable by up to ten years imprisonment. The definition of "prohibited weapon" is used in the Export and Import Permits Act, R.S.C., 1985, c. E-19, the violation of which carries both monetary and penal sanctions.
A "prohibited weapons" conviction carries serious consequences for the accused. Any test based on capability extending to future alterations, which may be beyond an accused's knowledge or skill, introduces an undesirable level of uncertainty. All persons are presumed to know the law. That being so it is incumbent on Parliament to ensure clarity in drafting penal statutes.
I would dismiss the appeal.
//Cory J.//
The judgment of La Forest, Gonthier and Cory JJ. was delivered by
Reasons of Cory J. (Majority)
Cory J. -- I have read with great interest the excellent reasons of Justice Major. Unfortunately I cannot agree with them.
On this appeal it must be decided whether the Mini-Uzi submachine gun which is the subject of this case should be classified as a prohibited weapon. The decision requires a consideration of the balance which must be struck between the protection of the public from the potential scourge of killing from the use of automatic weapons and the rights of the individual who, through possession of a prohibited weapon, can become liable either to a conviction for an indictable offence which, at the time, carried the potential of imprisonment for five years or to a conviction on a summary conviction offence.
I - Factual Background
I - Factual Background
At the end of August, 1989, Bernhard Hasselwander, the respondent, applied to the local registrar of firearms in Guelph, Ontario, to register his Mini-Uzi submachine gun as a restricted weapon. Upon examining the gun, the registrar determined that it was a prohibited weapon as defined by the Criminal Code, R.S.C., 1985, c. C‑46, and seized it.
On September 26, 1989, the registrar applied to the Ontario Provincial Court for a declaration pursuant to s. 102(3) of the Criminal Code that the seized Mini-Uzi be forfeited and disposed of as the Attorney General directed.
II - The Courts Below
Provincial Court (Payne Prov. Ct. J.)
II - The Courts Below
The Provincial Court judge heard the testimony of the firearms expert, a collector of weapons and the respondent. On the basis of that evidence he made the following significant findings of fact:
It is obvious from the evidence with some minor work on the plate that the obstruction could be removed, however, I am more influenced by the fact that the entire trigger mechanism can be quite easily removed and replaced by a fully automatic trigger mechanism and I am also influenced by the evidence that the trigger mechanism from the replica weapon could be attached to the weapon and it would fire in a fully automatic mode. This aspect of the matter makes control in itself almost impossible as there is no control over the sale of replica weapons. Constable Soley's evidence also indicated that alternate parts were readily available from various sources and notwithstanding the restricted aspect of some manufacturers parts supplies it does appear that the adaptability of fully automatic parts to this weapon remains an easy exercise.
On the basis of these findings, Payne Prov. Ct. J. held:
On the evidence therefore, I am satisfied that notwithstanding that the original manufacturer made this weapon as a semi-automatic and the fact that it was in fact a semi-automatic when it was submitted to the authorities for registration as a restricted weapon, it is my finding on the evidence that by reason of
a)adjustment of the restraining plate or
b)replacing the trigger mechanism with spare parts which are fully automatic or
c)replacing the trigger mechanism with the trigger mechanism of a replica weapon this gun will fire as a fully automatic.
Because of this capability it is in fact a prohibited weapon and an order will go for its destruction accordingly.
District Court (Higgins Dist. Ct. J.)
The District Court judge found that the findings of the Provincial Court judge were justified and supported by the evidence. He found no error in the conclusions of the trial judge and dismissed the respondent's appeal.
Court of Appeal
The Majority
The majority of the Court of Appeal compared the definition of a firearm to that of a prohibited weapon. It was noted that in the definition of "firearm" Parliament had used the expression "anything that can be adapted for use as a firearm" while in defining "prohibited weapons" they had used the words "that is capable of firing bullets in rapid succession". The majority found that an inference could be drawn that there was an intentional difference in the wording of these definitions. As a result, the majority concluded that the word "capable" means "capable in its present condition" rather than a capability which could be achieved by way of an adaptation of the weapon. The majority then set aside the orders of the courts below: (1991), 1991 CanLII 7189 (ON CA), 5 O.R. (3d) 225, 50 O.A.C. 186, 67 C.C.C. (3d) 426, 9 C.R. (4th) 281.
The Minority
Tarnopolsky J.A. expressed the opinion that a firearm which could easily be converted into a fully automatic weapon was a prohibited weapon within the meaning of para. (c) of that definition in s. 84(1) of the Criminal Code. He cited and adopted the approach that had been taken by the Alberta Court of Appeal in R. v. Global Armaments Ltd. (1990), 1990 ABCA 117, 105 A.R. 260. He would have dismissed the appeal.
III - Analysis
In 1989, s. 84(1) of the Criminal Code included, among other things, the following definition of a "prohibited weapon":
(c) any firearm, not being a restricted weapon described in paragraph (c) of the definition of that expression in this subsection, that is capable of firing bullets in rapid succession during one pressure of the trigger . . .
The same section defined a "firearm" as
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;
Section 102(3) of the Criminal Code provides the authority for the seizure of prohibited weapons. It reads as follows:
(3) Where any restricted weapon, firearm or prohibited weapon that was seized pursuant to subsection (1) is not returned as and when provided by subsection (2), a peace officer shall forthwith take it before a provincial court judge who may, after affording the person from whom it was seized or the owner thereof, if known, an opportunity to establish that he is lawfully entitled to the possession thereof, declare it to be forfeited to Her Majesty, whereupon it shall be disposed of as the Attorney General directs.
Section 90(1)(a) and (b) made it an offence to possess a prohibited weapon. At the time that section provided:
- (1) Every one who has in his possession a prohibited weapon
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
(2) Every one who is an occupant of a motor vehicle in which he knows there is a prohibited weapon
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
(3) Subsection (1) does not apply to a person who comes into possession of a prohibited weapon by operation of law and thereafter, with reasonable despatch, lawfully disposes thereof.
(4) Subsection (2) does not apply to an occupant of a motor vehicle in which there is a prohibited weapon where, by virtue of subsection (3) or section 92, subsection (1) does not apply to the person who is in possession of that weapon.
1.The Approach that should be Taken to the Interpretation of the Definition of "Prohibited Weapon"
We are dealing here with the Criminal Code. In days gone by it was a fundamental principle of statutory interpretation that penal enactments should be strictly construed so that any uncertainty as to the meaning or the scope of the law would be resolved in favour of the accused. See, for example, Cité de Montréal v. Bélec, 1927 CanLII 73 (SCC), [1927] S.C.R. 535, and Winnipeg Film Society v. Webster, 1964 CanLII 70 (SCC), [1964] S.C.R. 280. This rule has been modified and indeed transformed over the last fifty years. In his book, The Interpretation of Legislation in Canada (2nd ed. 1991), Pierre-André Côté provides a helpful historical analysis of this rule. On pages 397-98, the following appears:
Historically, the rule of strict construction drew its justification from a time when courts had to temper extremely severe penal legislation. Maxwell mentions that a person who cut down a cherry tree in an orchard, or who was seen in the presence of gypsies for a period of one month, could be sentenced to death (Maxwell on the Interpretation of Statutes, 12th ed., London: Sweet & Maxwell, 1969, p. 238). Strict construction of penal statutes often meant interpretation in favorem vitae. The nineteenth century witnessed a relaxation of penal legislation, and the death penalty ceased being the standard punishment for serious crimes. The reinforced presumption was relegated to a subsidiary one (Livingston Hall, "Strict or Liberal Construction of Penal Statutes", (1935) 48 Harv. L. Rev. 748, 752. Concerning interpretation of penal statutes, see: André Jodouin, "L'interprétation par le juge des lois pénales", (1978) 13 R.J.T. 49; Stephen Kloepfer, "The Status of Strict Construction in Canadian Criminal Law", (1983) 15 Ottawa L.R. 533).
As early as the beginning of this century, Justice Lyman Duff, at that time a member of the Supreme Court of British Columbia, observed that "the rule of strict construction, as applied to penal statutes, has been much relaxed (in recent years) (McGregor v. Canadian Consolidated Mines Ltd. (1906), 12 B.C.R. 116 (S.C.), 117).
The rule of strict construction of penal statutes appears to conflict with s. 12 of the Interpretation Act, R.S.C., 1985, c. I-21. That section provides that:
Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
The apparent conflict between a strict construction of a penal statute and the remedial interpretation required by s. 12 of the Interpretation Act was resolved by according the rule of strict construction of penal statutes a subsidiary role. In Bélanger v. The Queen, 1970 CanLII 222 (SCC), [1970] S.C.R. 567, Cartwright C.J. harmonized these opposing principles. In so doing he cited with approval the following words of Maxwell (The Interpretation of Statutes (7th ed. 1929), p. 244) at p. 573:
Where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the Legislature which has failed to explain itself.
More recently, Martin J.A., writing for the Ontario Court of Appeal in R. v. Goulis (1981), 1981 CanLII 1642 (ON CA), 125 D.L.R. (3d) 137, employed this approach in interpreting the meaning of a word in the Criminal Code. He stated at pp. 141‑42:
This Court has on many occasions applied the well-known rule of statutory construction that if a penal provision is reasonably capable of two interpretations, that interpretation which is the more favourable to the accused must be adopted: see, for example, R. v. Cheetham (1980), 1980 CanLII 2978 (ON CA), 53 C.C.C. (2d) 109, 17 C.R. (3d) 1; R. v. Negridge (1980), 1980 CanLII 2820 (ON CA), 54 C.C.C. (2d) 304, 17 C.R. (3d) 14, 6 M.V.R. 255. I do not think, however, that this principle always requires a word which has two accepted meanings to be given the more restrictive meaning. Where a word used in a statute has two accepted meanings, then either or both meanings may apply. The Court is first required to endeavour to determine the sense in which Parliament used the word from the context in which it appears. It is only in the case of an ambiguity which still exists after the full context is considered, where it is uncertain in which sense Parliament used the word, that the above rule of statutory construction requires the interpretation which is the more favourable to the defendant to be adopted. [Emphasis added.]
Thus, the rule of strict construction becomes applicable only when attempts at the neutral interpretation suggested by s. 12 of the Interpretation Act still leave reasonable doubt as to the meaning or scope of the text of the statute. As Professor Côté has pointed out, this means that even with penal statutes, the real intention of the legislature must be sought, and the meaning compatible with its goals applied. (See, for example, R. v. Johnston (1977), 1977 CanLII 1904 (NWT CA), 37 C.R.N.S. 234 (N.W.T.C.A.), aff'd 1978 CanLII 187 (SCC), [1978] 2 S.C.R. 391; R. v. Philips Electronics Ltd. (1980), 1980 CanLII 1809 (ON CA), 116 D.L.R. (3d) 298 (Ont. C.A.), aff'd 1981 CanLII 61 (SCC), [1981] 2 S.C.R. 264; R. v. Leroux, [1974] C.A. 151, and R. v. Nittolo, [1978] C.A. 146.)
In my view, any uncertainty as to whether the word "capable" means either "immediately capable" or "readily capable", is resolved as soon as the word is interpreted in light of the purpose and goals of the prohibited weapons provisions of the Code. Therefore, there is no need to resort to the rule of strict construction in this case.
2.The Purpose and Goals of the Provisions Pertaining to Prohibited Weapons
2. The Purpose and Goals of the Provisions Pertaining to Prohibited Weapons
Let us consider for a moment the nature of automatic weapons, that is to say, those weapons that are capable of firing rounds in rapid succession during one pressure of the trigger. These guns are designed to kill and maim a large number of people rapidly and effectively. They serve no other purpose. They are not designed for hunting any animal but man. They are not designed to test the skill and accuracy of a marksman. Their sole function is to kill people. These weapons are of no value for the hunter, or the marksman. They should then be used only by the Armed Forces and, in some circumstances, by the police forces. There can be no doubt that they pose such a threat that they constitute a real and present danger to all Canadians. There is good reason to prohibit their use in light of the threat which they pose and the limited use to which they can be put. Their prohibition ensures a safer society.
The American authorities should not be considered in this case. Canadians, unlike Americans do not have a constitutional right to bear arms. Indeed, most Canadians prefer the peace of mind and sense of security derived from the knowledge that the possession of automatic weapons is prohibited.
This Court, in R. v. Covin, 1983 CanLII 151 (SCC), [1983] 1 S.C.R. 725, determined that a purposive approach should be taken in interpreting the definition of "firearm". In that case, the issue was whether a pellet gun from which several essential parts were missing could be considered a firearm within the meaning of s. 83 (now s. 85) and s. 82 (now s. 84) of the Criminal Code. The definition of "firearm" in s. 84(1) includes "anything that can be adapted for use as a firearm". In deciding whether the instrument in question fell within the definition of a "firearm", Lamer J., as he then was, employed the purposive approach to determine the acceptable amount of adaptation required in order for something to be considered a firearm. At page 729 of that case Lamer J. stated:
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.
It is equally appropriate to utilize the purposive approach in order to determine the meaning of the phrase "capable of firing bullets in rapid succession during one pressure of the trigger".
- The Appropriate Interpretation of the Definition of Prohibited Weapon
3. The Appropriate Interpretation of the Definition of Prohibited Weapon
What then, should "capable" mean as it is used in the s. 84(1) definition of prohibited weapon? It should not be restricted to the narrow meaning of immediately capable. Such a definition would mean that the simple removal of a part which could be replaced in seconds would take the weapon outside the definition. This surely could not have been the intention of Parliament. If it were, the danger from automatic weapons would continue to exist just as strongly as it did before the prohibition was enacted.
The word "capable" as it is defined in the Oxford English Dictionary (2nd ed. 1989) includes an aspect of potential capability for conversion. It is defined as:
Able or fit to receive and be affected by; open to, susceptible . . . .
Having the needful capacity, power, or fitness for (some specified purpose or activity).
From this, it is clear that "capable" does in fact include a potential for conversion. It is then fair and reasonable to interpret the definition of "prohibited weapon" as including a gun that has the potential to be readily converted to a fully automatic weapon.
In French the term "arme prohibée" includes:
c) toute arme à feu, autre qu'une arme à autorisation restreinte décrite à l'alinéa c) de la définition de cette expression au présent paragraphe, pouvant tirer rapidement plusieurs balles pendant la durée d'une pression sur la détente; [Emphasis added.]
Le Grand Robert de la langue française (2nd ed. 1986) defines the verb "pouvoir" as:
- Avoir la possibilité de, être capable, en mesure de . . . (en raison des qualités de la personne ou de la chose, ou en raison des moyens offerts par les circonstances) V. Capable, état (en état de), même (à même de), mesure (en mesure de), situation (en situation de), susceptible.
and:
- (En parlant de ce qui est hypothétique, incertain, [. . .]).
Thus, it seems that the French definition as well clearly conveys the idea that the word "pouvant" like "capable" includes a potential which has yet to be realized, a future possibility as opposed to just an immediate capacity.
Yet, that potential aspect must be given some reasonable restriction. It is the proper role of the court to define the meaning of "capable" as it is used in the definition of "prohibited weapon" in s. 84(1). In my view, it should mean capable of conversion to an automatic weapon in a relatively short period of time with relative ease. There can be no doubt that on the findings of the Provincial Court judge, which are well supported by the evidence, this weapon comes within that definition.
Nor can it be a valid defence that a collector such as Mr. Hasselwander would never convert the weapon. Collectors are attractive targets for thieves who are seeking these weapons with every intention of using them or selling them to others who wish to make use of them. Members of the community are entitled to protection from the use of automatic weapons. This can be accomplished by giving the word capable given the definition set out above.
Major J. notes that a conviction for possession of a prohibited weapon under s. 90 of the Criminal Code may now result in imprisonment for a term of up to ten years. (In 1989, the maximum term of imprisonment was five years.) In his view, the potential of imprisonment requires a strict construction of the statute. With respect, I disagree. Automatic weapons or those which may be easily and quickly converted to automatic status have such potential for killing and indeed, mass killing, that their possession may properly bring consequences of imprisonment. It is because of their lethal potential that the definition of "prohibited weapon" requires a reasonable interpretation based upon the wording of the section and the aim or purpose of the legislation. Furthermore, s. 90 permits the Crown to proceed by way of indictment or summary conviction. Therefore, an individual who is found to be in possession of a weapon which he may not have realized was prohibited may be charged with a summary offence and thus, if convicted, be eligible for an absolute discharge. Thus, I do not think that a strict interpretation of para. (c) of the definition of "prohibited weapon", as it stood at the time of the trial, was appropriate.
Nor can I agree with Justice Major's contention that the latest amendment to the section indicates that the word "capable" should be given a narrow or strict interpretation. Rather, it should be viewed as a response to the perceived need to remove any doubt as to the meaning of the word.
The reasoning in other cases support the position that I have taken. Thus, I am in agreement with the reasons of Hart J.A. in R. v. Haines (1981), 1981 CanLII 4831 (NS CA), 45 N.S.R. (2d) 428, at p. 436, where he stated:
The offences charged here against the appellant were the possession of prohibited weapons. In my opinion the determination of whether or not a particular thing is a "prohibited weapon" is to be determined by applying the facts to the definition contained in s. 82 [now s. 84] of the Criminal Code. If a firearm is partially or completely dismantled but can be rendered "capable of firing bullets" by the simple reassembly of its parts or the making of some minor alterations to its works, I would think it could be found as a fact that it was a prohibited weapon. If, on the other hand, it was in such a condition that it could not be made operable because of lack of all parts or because of physical changes made to its structure which would be difficult to repair that it may cease to be in fact a "weapon". There would have to be at the same time and place the necessary ingredients for an operable firearm together with the ability to place it in operable form.
As well, I agree with the Alberta Court of Appeal in R. v. Global Armaments, supra. There the issue was whether the automatic weapons which had been converted to semi-automatic guns should still be considered as prohibited weapons. The trial judge held that the guns could very easily be reconverted to their original state and capability and therefore the guns retained their status as prohibited weapons. The Alberta Court of Appeal upheld the trial judge and stated:
. . . the learned Trial Judge has properly construed the intent of the legislation in his interpretation of the definition of the word "prohibited" used in s. 84 of the Criminal Code. The modified weapons could be reconverted in a matter of minutes to fire bullets in rapid succession during one pressure of the trigger. That is to say, that they never really lost the characteristic or classification of an automatic weapon.
In R. v. Ferguson (1985), 1985 CanLII 3534 (ON CA), 20 C.C.C. (3d) 256, the Ontario Court of Appeal considered whether a sawed-off shotgun constituted a prohibited weapon. Although that required the court to interpret a different definition from the one under consideration in the case at bar, nevertheless, I think that the approach taken by the Court of Appeal in resolving the ambiguity in that case is apposite. There the weapon was not operable since it was missing its "firing unit", without which it could not discharge a bullet. However, Lacourcière J.A. stated (at p. 262):
Possession is a continuing offence. The evil that this section was designed to prevent and the purpose of the section was obviously to suppress the possession of devices, knives or firearms which constitute a particular danger to the public, for example, silencers, switch-knives or, in the present case, under s. 82(1)(d), a sawed-off rifle which can be easily concealed because of its reduced length. Because of the nature of the continuing offence of possession of a prohibited weapon under s. 88(1) and having regard to the purpose of the subsection, we are all satisfied that the acceptable amount of adaptation and the time-span required to render the gun operable is longer than that required for a s. 83 offence, where the adaptation has to be made on the scene in order to support the charge of using a firearm during the commission or attempted commission of an indictable offence or during the flight thereafter.
The expert evidence was that the firing mechanism was easily obtainable and could be inserted in 30 seconds to one minute. In view of that evidence we are satisfied that the inoperable gun in this case could be adapted for use as a firearm from which bullets capable of causing serious bodily injury or death could be discharged and that being a "firearm" it was a "prohibited weapon" as defined in s. 82(1)(d).
He observed that it would be contrary to the purpose of the legislation if, by removing a portion of the weapon, a person could render his or her weapon inoperable and thereby avoid conviction.
Thus it appears that in the majority of the decided cases the courts have properly considered the purpose of the legislation. That purpose is to protect the public from these dangerous weapons that are designed specifically to kill or maim people. Where a weapon can be quickly and readily converted to automatic status, then that weapon must fall within the definition of "prohibited weapon". To come to any other conclusion would undermine the very purpose of the legislation.
IV - Disposition
IV - Disposition
In the result, I would allow the appeal, set aside the order of the Court of Appeal and restore the order of the Provincial Court judge.
Appeal allowed, Lamer C.J. and Major J. dissenting.
Solicitor for the appellant: The Attorney General for Ontario, Toronto.
Solicitor for the respondent: Calvin Martin, Toronto.
