Cotnam, Lavallée, Bachand

Appeal from a judgment of the Superior Court dismissing a motion for non-suit and rendering a guilty verdict. Allowed.

During a search carried out in a trailer, police officers seized a .22 calibre rifle. The weapon’s barrel and butt had been sawed off so that it could be held in one hand, like a pistol. Due to this modification, the length of the rifle and its barrel constituted a “prohibited firearm” as defined in section 84 of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.). When it was discovered, the weapon was not under lock and key and was loaded with one ammunition. In the rifle’s immediate vicinity, the officers also found a bag containing 71 .22 calibre shells, in bulk, and a magazine compatible with the rifle that contained another 7 ammunitions. The appellant was therefore charged with possessing a loaded prohibited firearm without being the holder of a licence under which he could possess the firearm (s. 95(2)(a) Cr. C.).

The appellant contests the dismissal of his motion for non-suit and argues that one of the essential elements of the offence, that is, the characterization of the sawed-off rifle as a “firearm” within the meaning of the law, had not been proved beyond a reasonable doubt by the prosecution.

The offence described in section 95 Cr. C. presupposes the presence of both the material and psychological elements underlying one of the three forms of possession recognized under the law: personal possession, constructive possession, and joint possession. The essential elements also include the prohibited circumstances in which the weapon in question must be found, that is, that the weapon is loaded or that ammunition that could be used for this weapon is “readily accessible”. The prosecution must also prove that the accused did not have the authorization required or the registration certificate for the weapon. Finally, with regard to the object of this possession, the prosecution must establish that the weapon in question constitutes a “prohibited firearm” within the meaning of the Criminal Code. This requires proof that the weapon is [translation] “operable”, that is, capable of causing bodily injury or death by discharging a projectile through the barrel.

The weapon’s good working condition may be proved by direct, indirect, or circumstantial evidence. In light of the case law, the accused’s behaviour with respect to the firearm may, in certain circumstances, lead to the conclusion that it was operable. It is also recognized that circumstantial evidence must be based on specific facts involving the accused himself, the use of the firearm, or observations concerning its condition. The prosecution cannot simply raise the fact that the weapon was loaded or that ammunition was readily accessible. To find otherwise would be to assume that the weapon is operable as soon as it is found in these circumstances, which constitute two of the essential elements of the offence described in section 95 Cr. C. Alone, they cannot establish a third essential element, that the weapon is a firearm within the meaning of section 2 Cr. C.

In this case, the prosecution, although it was in possession of the weapon, chose to rely on circumstantial evidence. Despite the deference owed, it appears that, absent an indication arising from the appellant’s earlier activities or his actual, not hypothetical, use of the weapon, the mere fact that a loaded weapon was found in plain sight in an isolated trailer is as consistent with a finding that the weapon was operable as it is with an inference to the contrary. The prosecution failed to prove that the weapon was operable and therefore failed to discharge its burden of proof.

Text of the decision: http://citoyens.soquij.qc.ca