Court File and Parties
Court File No.: CR-23-50000292-0000 Date: 2024-07-22 Ontario Superior Court of Justice
Between: His Majesty the King – and – Nathaniel Bell, Defendant
Counsel: Erin Pancer, for the Crown Alonzo Abbey, for the Defendant
Heard: June 17 to 19, 2024.
Justice S. Nakatsuru
[1] A flare pen launcher is designed to signal distress or repel animals. It can easily be bought at a sporting or outdoor goods store or online.
[2] It can also be readily adapted or modified to fire a bullet. [1]
[3] The sole issue at Nathaniel Bell’s trial is whether the four flare pen launchers and the empty orange colored plastic housings of expended flares found by the police in a box in Mr. Bell’s bedroom closet constitute “firearms” within the meaning of s. 2 of the Criminal Code, R.S.C. 1985, c. C-46. In the same box were plastic baggies containing 22-calibre ammunition. It is a serious matter as Mr. Bell is charged with several firearm offences including possession of a prohibited firearm [2] and breach of prohibition orders.
[4] To start, I shall highlight two obvious but extremely important legal principles. First, my decision is based on the evidence heard at this trial, which amounts to essentially one Crown firearms expert and one defence firearms expert. It sets no precedent beyond that. Second, the onus on the Crown to prove the devices are firearms is the high standard of proof beyond a reasonable doubt, which has been said to lie “much closer to absolute certainty than to a balance of probabilities”: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242.
[5] Section 2 of the Criminal Code defines “firearm” as “any barrelled weapon from which any shot, bullet or other projectile 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”.
[6] The defence makes two arguments in this case:
A. The evidence does not establish beyond a reasonable doubt that the devices are “capable of causing serious bodily injury or death to a person.”
B. The evidence does not establish beyond a reasonable doubt that the devices are “barrelled weapons.”
A. CAPABLE OF CAUSING SERIOUS BODILY INJURY OR DEATH
1. The Expert Evidence
[7] It cannot reasonably be debated that a 22-calibre projectile fired from a conventional gun can cause serious bodily injury or death. Even without expert evidence, this is a compelling inference. To illustrate, in R. v. T.N.A.K., [1997] O.J. No. 644 (C.A.), at para. 7, the Ontario Court of Appeal held that although no direct evidence as to the capability of a rifle, such as test firing, was led at trial, circumstantial evidence could properly lead the jury to conclude that the rifle was a firearm as defined in the Criminal Code. See also R. v. Osiowy (1992), 1997 ABCA 50, 113 C.C.C. (3d) 117 (C.A.), at para. 20; R. v. Charbonneau, at para. 3.
[8] In this case, the flare pen launcher was never designed to fire a round of ammunition. A flare pen launcher, depending on the make and model, is of the approximate look and dimension of a pen/marker or a mechanical tire pressure gauge. A flare or a noise device, often called “bear bangers” (“flares”), is housed in cartridges consisting of a cylindrical plastic tube of several millimeters in length and width. Three such tubes were found in the box in Mr. Bell’s bedroom. The plastic cartridge containing the flare attaches to the end of the pen launcher. When a spring in the pen launcher is activated by a lever and the end of the cartridge primer is struck, this ignites the propellant in the cartridge and launches the flare. A single 22-calibre round of ammunition can be used with an expended flare cartridge and the flare pen launcher and be successfully fired. The testing by the police on all four devices in Mr. Bell’s possession proved this to be the case.
[9] The Crown and defence experts were qualified to provide expert opinions in the classification, identification and function of firearms and ammunition. It is trite that like any other witness, I can accept none, some or all of an expert’s testimony.
[10] Both experts testified that they had no past familiarity with flare pen launchers being adapted to fire a bullet. Such devices were novel to both. [3]
[11] The Crown expert, D.C. Morgan, is a firearms analyst with the Toronto Police Service. It was only in January of 2022, when he joined the firearms investigation and analysis unit of Guns and Gangs, that he was trained and qualified to give expert opinion in the area.
[12] D.C. Morgan test fired all four seized devices with 22-calibre ammunition in the Toronto Police Service water recovery tank used for that purpose. All of them were operable. He testified that the devices were capable of causing serious bodily injury or death and certified them to be firearms. D.C. Morgan did not send the four devices to the Center for Forensic Sciences for any further testing, such as velocity testing. He testified that based upon the manufacturer’s specifications regarding the velocity of the 22-calibre ammunition and what he observed during the test firing, although the projectile fired from the adapted flare pen launcher would lose steam fast, it would still cause serious bodily injury if discharged at close proximity. He testified the velocity would be significant.
[13] The defence expert, Mr. Hendrikse, is a forensic scientist. He has a master’s degree in forensic science. Since 1998, he has specialized in the examination of firearms and firearms‑related analysis. From 1998 to 2006, he served the Crown prosecution service in the British Home Office in their Forensic Science Service, had been the Lead Reporting Officer for Armed Criminality, a lecturer at King’s College University in forensic science, and was the representative for the Forensic Science Service at the European Network of Forensic Science Institutes and Working Groups. He received an award for excellence in forensic science in 2006. After moving to Canada in 2006, he has worked as a consultant forensic scientist, taught courses at the university level on the forensic examination of firearms and is a contributing author to a 2017 legal textbook on firearms and ballistics. Mr. Hendrikse has been qualified to give expert testimony numerous times in the United Kingdom, the United States and Canada. He has also served as a registered firearms and ballistics expert at the International Criminal Court in the Hague.
[14] Mr. Hendrikse testified that the velocity of a projectile can be measured by a chronograph. He observed that no velocity testing was done on the projectiles test fired from the flare pen launchers. Regarding these devices, given the incomplete chamber in which the 22‑calibre bullet is discharged from and the nature of the wide housing the projectiles travelled through, the velocity of the projectile would be significantly reduced because a lot of energy propelling the projectile would be lost. Due to these factors, Mr. Hendrikse was unable to comment on the effect of the fired bullets or what the devices were ultimately capable of when fired. Thus, he would not classify these flare pen launchers as being capable of causing serious bodily injury. For that reason, in part, Mr. Hendrikse could not classify the adapted flare pen launchers as a firearm. Velocity and projectile penetration tests should have been performed.
[15] After careful consideration, I accept Mr. Hendrikse’s testimony over D.C. Morgan’s.
[16] Mr. Hendrikse has vastly more relevant experience than D.C. Morgan. Over his career, Mr. Hendrikse has testified for the prosecution and the defence. He was objective and impartial. I do not mean to minimize D.C. Morgan’s qualifications, but he is simply not as experienced as a forensic scientist like Mr. Hendrikse.
[17] In addition, D.C. Morgan’s opinion was based upon an investigation that had serious shortcomings. In coming to his opinion that the devices were firearms, D.C. Morgan gave an opinion that they fired a bullet that travelled over 500 ft./s. The problem with this opinion is the officer’s failure to conduct any velocity testing. Rather, he based his opinion mainly upon the manufacturer’s specifications about the general velocity of 22-calibre long rifle ammunition which was that the bullet travelled at 900 to 1,200 ft./s. Leaving aside any hearsay concerns, such specifications are made by the manufacturer with a conventional firearm designed and built to discharge the round effectively and efficiently, not with an adapted device like a flare pen launcher.
[18] D.C. Morgan also based his opinion upon what he saw in his testing and testified it was greater than 500 ft./s. He opined that the bullet could kill a person given its velocity. I do not doubt the sincerity of his opinion, but it has substantially less weight given his relative lack of experience and the fact he decided to forgo any velocity testing. In my opinion, in his investigations, D.C. Morgan was more focused on determining whether the various devices [4] were operational than whether they were capable of causing serious bodily injury or death. He seemed to be content they were, based on the fact they fired a bullet. D.C. Morgan’s opinion, based upon his visual observations made on the testing, carries little weight with me in the circumstances. It struck me as more of an ex post facto justification to support his opinion in light of his failure to resort to velocity testing. In contrast, Mr. Hendrikse testified that just firing the device into a water tank to determine if it causes serious bodily injury is not a good method to qualify a questionable device like an adapted flare pen launcher. Velocity and penetration tests [5] are standard tests done on questionable devices.
[19] I had other concerns with D.C. Morgan’s opinions. For instance, he was willing to opine that a flare pen launcher seized in another unrelated case that the police were investigating at the same time, which did not test fire successfully, was a firearm based only on his examination that the device was striking the firing pin. He was content to classify it as a firearm without any further investigation. He failed to evaluate if the device needed repair and the relevant time and degree of difficulty for repair or conversion of it taking into account for a possession offence whether the firearm is capable of repair or conversion in a relatively short period of time with relative ease. That must be considered when examining a non-operable object alleged to be a firearm: R. v. Morris, 2023 ONCA 816, at para. 26, citing R. v. Tarapaski, 2022 MBCA 74, 418 C.C.C. (3d) 364, at para. 33.
[20] Thus, I accept Mr. Hendrikse’s testimony and reject D.C. Morgan’s. The former opinion is not only supported by the forensic scientist’s superior qualifications and the fact that cross‑examination did not undermine it in any way, but it also accords with my own reflective reasoning in this case. I will delve deeper into Mr. Hendrickse’s opinion as I go through my analysis.
2. Analysis
[21] In R. v. Dunn, 2013 ONCA 539, (2013), 117 O.R. (3d) 171, at para. 66, aff’d 2014 SCC 69, [2014] 3 S.C.R. 490, it was determined that barrelled objects that qualify as “firearms” under s. 2 of the Criminal Code do not also need to fulfil the s. 2 statutory definition of a “weapon”. In coming to their decision, Rosenberg J.A. held, at paras. 44-46, that there were three categories of barrelled objects:
Group 1: Barrelled objects shooting a projectile with a velocity of less than 214 ft./s. (the “pigs eye test”) or less than 246 ft./s. (the “V50 standard”). These objects are not firearms because they are not capable of causing serious bodily injury or death. They will therefore only be considered weapons if they meet paras. (a) or (b) of the definition of “weapons” in s. 2(1) of the Criminal Code;
Group 2: Barrelled objects shooting a projectile with a velocity of more than 214 ft./s. or 246 ft./s. These are firearms because they are capable of causing serious bodily injury or death. As firearms, they are considered to be “weapons” within the meaning of s. 2 of the Criminal Code, even if they do not fall within paras. (a) and (b) of the definition of “weapon”. These objects will be exempt from the stricter licensing regime in the Criminal Code and Firearms Act if they fall within one of the exemptions set out in s. 84(3) (such as where the velocity of the projectile does not exceed 500 ft./s.).
Group 3: Barrelled objects shooting a projectile with a velocity of more than 500 ft./s. These are firearms for all purposes of the Criminal Code and the Firearms Act and must be licenced accordingly. These objects, which include some airguns and most powder‑fired bullet shooting guns, fall within this category. These firearms are always considered to be weapons and need not fall within paras. (a) or (b) of the Criminal Code s. 2 definition of “weapons”.
[22] In Dunn, the barrelled object was an airgun. Expert evidence led by the Crown established that this airgun had an average muzzle velocity of 261.41 ft./s. The evidence was that a barrelled weapon is capable of causing serious bodily injury or death to a person if it fires a projectile at more than 214 ft./s.: Dunn, at paras. 8, 40. This was the so-called “pig's eye test,” which is a standard for determining the capabilities of a barrelled object for causing serious bodily injury or death. Studies also showed that a BB pellet travelling at 246 ft./s. would penetrate the eye of a 10‑month-old pig (which is similar in size and composition to a human eye), 50% of the time, which is the “V50 standard.” The airgun in question was therefore a barrelled weapon that could discharge a projectile capable of causing serious bodily injury or death. See also R. v. Hilbach, 2023 SCC 3, 422 C.C.C. (3d) 139, at para. 149.
[23] Applying the law to the facts of this case, I must decide whether the Crown has proven beyond a reasonable doubt, based on the totality of the evidence, that the flare pen launcher is capable of causing serious bodily injury or death. The absence of evidence regarding the velocity of the bullets test fired by D.C. Morgan is but one factor to be considered, albeit a significant one: R. v. Eyre, 2019 BCCA 333, 386 C.C.C. (3d) 241, at paras. 34-36.
[24] I find that the Crown has not proven this beyond a reasonable doubt. It is likely the adapted flare pen launcher is a firearm, but on the whole of the evidence, I am not satisfied of this to the high threshold of proof required in a criminal trial.
[25] As noted, I accept Mr. Hendrikse’s opinion. Again, his experience and expertise give his opinions considerable weight. He was a fair and impartial expert. The substance of his opinion was not impeached, and it accords with the other evidence. I find it persuasive for several reasons.
[26] Mr. Hendrikse does not simply point to the lack of velocity testing as buttressing his opinion. Rather there are case-specific physical indicators that arose from the test firing and his own examination of the devices that supported his opinion and casts doubt on the Crown’s proof.
[27] First, with any firearm, the chamber in which the round of ammunition sits and the barrel through which the projectile travels affect the velocity of the projectile. In firearm design, it is important that the cartridge is supported strongly by a full chamber for the energy from the burning and expanding gases to be transferred to the bullet. In the adapted flare pen launcher, the 22-calibre round was fired in an incomplete chamber. Both the bullet and a portion of the cartridge extended beyond the threaded portion of the insert that acted as a chamber. Therefore, since the round is not being supported by a fully encasing chamber, the energy from the burning, expanding gases was not fully transferred to the bullet to propel it forward.
[28] Second, there was physical evidence that energy also escaped laterally from the rupturing of the cartridge casings because of the incomplete chamber. The cartridge casings test fired by D.C. Morgan had ruptures at the mouth end of the casing. This indicates energy was being expended outwards, and not forwards, on the rear of the projectile. Mr. Hendrikse testified that a lot of force is required to rupture a cartridge. This was force not used to propel the projectile forward. Despite being challenged on cross, Mr. Hendrikse described the damage to the cartridges as being significant. I accept that opinion.
[29] Third, normally a barrel of a firearm is of a smaller diameter than the bullet so that the expanding gases push the bullet out and do not escape around the bullet. The “barrel” of the adapted flare pen launcher, the plastic housing, was significantly wider than the round once it was fitted in the partial chamber. This provided yet another way for energy to be dissipated from the forward propulsion of the bullet.
[30] Finally, each fired bullet did not sustain impact damage that Mr. Hendrikse would have expected when firing a bullet into a water recovery tank.
[31] It must be emphasized that these adapted flare pen launchers were essentially new devices. They had not been encountered before by the experts. They were never designed to be weapons, let alone firearms. The adaption itself was minor and rudimentary. Little, if any, thought or effort went into turning them into devices that could discharge a bullet. It is not as if a device had been skilfully forged into an efficient gun. Taken altogether, the circumstances called out for velocity or penetration tests to establish the criterion of the capacity to cause serious bodily injury or death. [6]
[32] I hasten to add that my acceptance of Mr. Hendrikse’s opinion does not equate to a positive factual finding that these adapted flare pen launchers would not cause serious bodily injury. Indeed, Mr. Hendrikse does not so specifically opine. He was most open to changing his opinion if new facts were uncovered. However, his present opinion is that he is unable to say whether it does. Mr. Hendrikse’s interpretation of the primary facts assists me in fully comprehending the evidence. For a lay person, while it may appear that a fired 22-calibre bullet would be capable of causing serious bodily injury, the expert evidence in this case has played an invaluable role in countering what might have been a hurriedly drawn but erroneous lay inference.
[33] Let me now address some specific Crown submissions on this issue.
[34] The Crown submitted that close observation of the video taken of the test fire done by D.C. Morgan proves that the 22-calibre bullet was capable of causing serious bodily injury or death. I have scrutinized it carefully. I find that the fact the bullet quickly goes straight through the water and hits the tank wall cannot, in the absence of more evidence, allow me to make the inference regarding the speed and force of the bullet the Crown suggests. Both experts testified that the human eye cannot visually determine the velocity of the projectile in the water tank. As such, I cannot conclude the 22-calibre bullet was capable of causing serious bodily injury or death simply from watching the test fire video.
[35] Furthermore, I do not agree with the Crown’s argument that the fact Mr. Bell had four such devices with bullets nearby advances any factual finding that the devices are capable of causing serious bodily injury or death. It may say something about his intent, but not the physical capabilities of the adapted devices.
[36] The submission that even if it has not been proven the projectile was launched at a velocity that could cause serious bodily injury, it is possible that the hot gases or fragments of the cartridge could cause serious bodily injury to a person in immediate proximity to the device is speculative. Even if there is some risk of injury, I cannot conclude beyond a reasonable doubt that serious bodily injury would occur in that scenario.
[37] The Crown submitted that Dunn and the other cases relied upon by the defence involve air guns and its pronouncements should be confined to air guns and not powder-fired guns. Put differently, she argues that the pig’s eye test only applies to the former and not the latter. In my view, the nature of the means to propel the projectile is not a meaningful distinction when it comes to the definition of a firearm as found in s. 2. Dunn, at paras. 34, 53 and 56, establishes that an object falls within the definition of a “firearm” whenever a shot, bullet or other projectile can be discharged from a barrelled weapon that is capable of causing serious bodily injury or death. No distinction between air guns and conventional powder-fired guns is recognized in that definition.
[38] I will next address the authorities relied on by the Crown, none which are binding on me. The Crown argues that in some instances, judges have commented about taking judicial notice of the fact that a barrelled weapon could cause serious bodily injury or death. While I do not agree the doctrine of judicial notice can apply in these circumstances, [7] those cases can readily be distinguished.
[39] In R. v. Tran, 2019 BCPC 364, at paras. 54-63, a Crown expert gave testimony that a flare gun (a pistol-like device and not a flare pen launcher) could cause serious bodily injury or death after measuring the flares’ velocity and muzzle energy. Moreover, the facts of its use, showed that the heat of its projectiles caused a plastic garbage container to catch fire. In R. v. Ziegler, 2016 ABQB 150, at paras. 47-58, a modified flare gun that could fire a fabricated bullet was found to be capable of causing serious bodily injury or death based on expert testimony after doing velocity tests that showed the projectiles travelling fast enough to meet the pig’s eye test. In addition, the bullet had hit the victim, cut his skin and caused bleeding, though he was not seriously hurt. In R. v. Spreeman, 2004 ABPC 209, at para. 18, the police had not test fired the handguns, nor was any expert testimony presented at trial. However, given that the accused had admitted to the police he had purchased two conventional brand-named pistols in the United States and was bringing them over the border, along with the receipts of their purchase and ammunition, it is not surprising that even without that evidence, the trial judge found them to be firearms. In sum, these cases can be distinguished based on the fact that velocity tests were conducted or other significant circumstantial evidence existed to base the finding that the object in question met the definition of a firearm.
[40] The case of R. v. Raposo, 2017 MBQB 43, at para. 54, requires greater scrutiny. There, a “pen gun” was found to be a firearm: Raposo, at para. 54. At first glance, it seemed similar to the device in the case at bar. However, on closer reading, that is not so. The pen gun was not an adapted flare pen launcher but was more likely a device designed to be a weapon or a firearm. The forensic specialist from the Forensic Science and Identification Services, who testified in Raposo, stated it was “designed” to be armed and fired by one hand: Raposo, at paras. 4-5. Its description involved placing the round of ammunition inside the pen gun. In addition to the potential factual differences of the pen gun from the adapted flare pen launcher at issue in this case, the trial judge in Raposo accepted the forensic specialist’s opinion that the device was capable of causing serious bodily injury or death. Moreover, the pen gun was used in a robbery of a gas station. The accused fired the pen gun several times, once leaving marks on the window of the store and once creating a hole in the bumper of a police cruiser pursuing him. Lastly, to make the factual finding of the trial judge unimpeachable, the accused himself in his testimony admitted that the pen gun could kill or wound if fired at close range: Raposo, at para. 45.
[41] The defence stressed that in all these Crown cases there was no defence expert testifying to the contrary. The defence submits that this is an important distinction. I agree.
[42] I find that Mr. Hendrikse’s opinion that he was unable to comment on the effect of the fired bullets and thus unable to classify them as being capable of causing serious bodily injury, along with the whole of the evidence, including the absence of velocity testing, leaves me in the state of reasonable doubt that the devices possessed by Mr. Bell are firearms.
B. A BARRELLED WEAPON
[43] Given my conclusion above, it is not necessary to address whether the Crown has proven beyond a reasonable doubt that the devices are “barrelled weapons” as set out in the definition of a “firearm” found in s. 2. Nonetheless, I will make the following remarks.
[44] The determination of whether the devices are “barrelled weapons” within the meaning of s. 2 of the Criminal Code depends both upon the statutory interpretation of the term and the factual nature of the adapted flare pen launchers.
[45] Statutory interpretation of the term “barrelled weapon” requires a reading of the text of a statute in its entire context and in its grammatical and ordinary sense harmoniously with the scheme of the statute, its object and the intention of the legislature: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, 492 D.L.R. (4th) 389, at para. 50. I also recognize that this is a penal statute, where strict interpretation may have to be resorted to in cases of real ambiguity: R. v. Hasselwander, [1993] 2 S.C.R. 398, at paras. 27-31; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 28, 30.
[46] Generally, Parliament’s purpose in enacting the gun control legislation found in the Criminal Code is to promote public safety and to preserve the safe, civilized and peaceful nature of our country: Reference re: Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at paras. 20-23; Dunn, at para. 57.
[47] In light of this, it seems to me a fairly generous and expansive interpretation should be given to a “barrelled weapon.” But regardless of how generous that interpretation is, a “barrel” is still required before a weapon can be a firearm. This would include any device that could be turned into a firearm through adaption. That definition, as found in s. 2, states “anything that can be adapted for use as a firearm,” still refers to the definition of a “firearm,” which is in turn principally that of a “barrelled weapon.” In R. v. Covin, [1983] 1 S.C.R. 725, Lamer J. (as he then was) in deciding that even frames and receivers had to be adaptable to become operable firearms, referenced the French version of the definition of a “firearm” found in s. 2, to support that conclusion. That section, as translated, reads:
"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. [Emphasis added.]
The French version makes it clear that to constitute a firearm, a device must have or be adaptable to have a barrel from which a projectile is launched.
[48] This leads to the question of what is a “barrel” of a firearm. Based upon the expert evidence led in this case and common usage, a fair definition of a barrel of a firearm would be that portion of a firearm through which the projectile or shot charge travels under the impetus of powder gases, compressed air or similar means.
[49] A barrel of a firearm is typically a cylindrical tube made of metal. But it need not be metal nor cylindrical nor of any particular dimension. On the other hand, it cannot be that any object that has the capability of discharging a bullet from the cartridge will constitute a firearm. A barrel that turns the object into a firearm, although it can be through adaption, is still required to meet the definition in the Criminal Code. Otherwise, objects without a barrel that can fire a bullet may be said to amount to a firearm. Just as examples of other non-barrelled ways to fire a bullet, Mr. Hendrikse testified that holding a round of ammunition with a pair of plyers and striking the primer, would discharge a bullet. Holding a flame to the back of a round of ammunition would discharge a bullet. The Crown posed an example where two metal plates could be used to discharge a bullet. Regardless of how dangerous such scenarios might be, the objects could not constitute firearms as defined in the law because no “barrelled weapon” was used. This would be contrary to the express statutory wording used and be broader than necessary to achieve its statutory purpose.
[50] In my opinion, a functional assessment of what is purported to be a barrel may greatly assist in determining whether the definition of a “barrelled weapon” has been met. The item in question may have been designed or intended to be a barrel. This would be an important factor to consider. In addition, regardless of intent or design, the item may still serve the function of a conventional barrel in a firearm. Mr. Hendrikse testified that a barrel in a powder-fired firearm allows for a more efficient burning of the powder along its length to impart the greatest energy to the bullet. In addition, the barrel, which is typically narrower than the projectile, creates a seal to prevent as best as possible the expanding gases from escaping around the projectile to remain behind the projectile to push it out.
[51] This does not mean that a barrel of a firearm needs to be effective in terms of propelling the projectile to constitute a “barrelled weapon”. “Zip” guns, or homemade guns, with rough barrels may be quite ineffective in achieving an efficient propulsion of the projectile. But they would be no less potentially dangerous (sometimes to the user more than anyone else) and could meet the definition of a firearm.
[52] In the case at bar, Mr. Hendrikse’s opinion was that because the end of each cartridge case and the bullet extended beyond the length of the threaded end of the plastic housing in which the round of ammunition sat, there was no barrel. Therefore, in his view, the adapted flare pen launcher may not constitute a “barrelled weapon.” Said differently, the projectile was not contained by anything for the gases to be pushed along the path of the discharged projectile, like a conventional barrel of a gun would do. The plastic housing itself is just normally used with the pen launcher to hold the flare. It was not fabricated or altered to help launch a 22-calibre round. The bullet simply travels through this housing, which is much wider than the bullet and not of any great length. At the same time, Mr. Hendrikse admitted that although not in a very effective manner, the plastic housing could partially serve a similar function to a conventional barrel of a firearm.
[53] Just for comparison’s sake, D.C. Morgan described the plastic housing as the barrel, while the portion that the round was partially fixed in (what Mr. Hendrickse described to be the barrel), was, in his view, the chamber of the firearm. In cross-examination, D.C. Morgan testified that given how much space existed between the interior of the plastic housing wall and the 22‑calibre round fixed within it, he could see how someone might disagree with him that it was a barrelled weapon. Moreover, he agreed that if any portion of the ammunition stuck out beyond the outer edge of any purported barrel of a firearm, he might agree that it was not a “barrelled weapon.” Therefore, if what D.C. Morgan described to be the chamber of the firearm was in fact the purported barrel, its description and function would not meet the definition of a barrel.
[54] Though this is an interesting legal and factual question, ultimately, I need not resolve it given my previous conclusion.
C. DISPOSITION
[55] Since the Crown has not proven beyond a reasonable doubt that Mr. Bell had in his possession any firearm, he is found not guilty of counts 26 to 37.
Justice S. Nakatsuru Released: July 22, 2024.
COURT FILE NO.: CR-23-50000292-0000 DATE: 20240722
BETWEEN: HIS MAJESTY THE KING – and – NATHANIEL BELL Defendant
REASONS FOR JUDGMENT NAKATSURU J. Released: July 22, 2024
[1] A flare pen launcher purchased and used as intended is not a firearm as it falls within the exemption of s. 84(3)(b) of the Criminal Code. The defence concedes that this exemption does not apply in the case at bar.
[2] The charge of possession of a prohibited firearm arises from the fact that the plastic flare housing, which the Crown alleges is the “barrel” of the firearm, measures less than 105 mm per s. 84(1) of the Criminal Code.
[3] D.C. Morgan did testify that he saw something like the flare pen launcher in the library of firearms at the Toronto Police Services; however, he did not further describe the details of that device and that was the extent of any past knowledge.
[4] There were more devices submitted to D.C. Morgan for testing beyond the four attributed to Mr. Bell. D.C. Morgan admitted it was challenging to keep it all ordered.
[5] The “pigs eye” test is such a penetration test though these days actual pig’s eyes are no longer used and rather gelatin is used in a penetration test.
[6] D.C. Morgan did not submit any of the four devices attributed to Mr. Bell to the Center of Forensic Sciences (CFS) in Toronto for examination or testing. He did submit another similar device to CFS. However, CFS stated it was not a firearm since given what they received was simply a flare pen launcher, it fell within the exemption of s. 84(3)(b).
[7] Judicial notice dispenses with the need for the proof of facts that are clearly uncontroversial or beyond reasonable dispute: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48; Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381, at para. 56. Whether the projectiles could cause serious bodily injury or death is certainly controversial in this case.