R. v. Dunn: Why It Is a Good Thing that Airguns are Firearms in Ontario

In Her Majesty the Queen v. Christopher Dunn, 2013 ONCA 539, 117 O.R. (3d) 171, aff’d 2014 SCC 69, [2014] 3 S.C.R. 490, 129 O.R. (3d) 240, a five-judge panel of the Ontario Court of Appeal held that an airgun is a firearm and therefore is a weapon, overturning the previous case of R. v. McManus (2006), 214 O.A.C. 77 (C.A.) but bringing Ontario in line with the rest of the country as per the Supreme Court of Canada’s earlier judgment in R. v. Felawka, [1993] 4 S.C.R. 199.  The vast majority of the firearms community decried the decision: how could “toys” be “guns”?  However, this ignores a quirk of the Criminal Code: if an object looks just like a firearm (as many airsoft rifles and pistols do), but is not a firearm, then that makes it a replica firearm and therefore a prohibited device.

Let’s start with the facts.  On 23 April 2010, Christopher Dunn was being watched by PIs for the WSIB.  The PIs observed Mr. Dunn meeting up with another man and during the conversation pulling out what looked like a pistol from the side pocket of his jacket and pointing it at the man.  The PIs informed the Ottawa Police Service who went to Mr. Dunn’s trailer where they found the Crosman Pro77 airgun which fires .177 cal. spherical BBs by means of compressed CO2.  The airgun was tested and found to produce an average muzzle velocity of 261.41 ft/s.  The court accepted, apparently as it was not challenged, that BBs which could be fired from the Crosman would penetrate a pig’s eye (which is similar in size and composition as a human eye) some of the time at 214 ft/s and half the time at 246 ft/s.  The Crown’s expert further testified that the Crosman in question was built to externally mimic a Steyr MA1 9mm handgun.

Mr. Dunn was charged with Careless Handling of Firearm, Pointing a Firearm, Possession of Weapon for Dangerous Purpose, and Carrying Concealed Weapon.  At trial, the trial judge noted that the offences required proof that the airgun is a firearm.  Relying on the McManus decision, and on R. v. Labrecque, 2011 ONCA 360, the trial judge held that unless the gun is a “real powder fired bullet shooting gun”, the Crown must prove that the object is a weapon, as defined in s. 2 of the Criminal Code, before any finding could be made that it is a firearm.  The definition of “weapon” in s. 2 of the Criminal Code at the time was “any thing used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm.”  The trial judge held that the Crown had failed to prove that the Crosman fit within the uses, designed uses, or intended uses in the definition, and was therefore not a weapon, and could not be a firearm.

The issue on the appeal turned on the definitions of the words “weapon” and “firearm” in the Criminal Code.  The definition of “firearm” at the time was “a 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.”

As can be seen, there is a problem of circular logic here: to be a firearm, a thing first has to be a weapon, but anything that is a firearm is automatically a weapon.  So the basic question becomes: must a thing be “used, designed to be used, or intended for use in causing death or injury to any person or for the purpose of threatening or intimidating any person” in addition to being “a barrelled [thing] 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”, in order to be a firearm?  Or is simply being “a barrelled [thing] 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” sufficient?

In Felawka, the Supreme Court of Canada’s answer, which is and has been the binding law of the land in all of Canada since 1993, is that simply being “a barrelled [thing] 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” is sufficient for a thing to be a firearm, and therefore automatically a weapon.  While a person would think this would settle the matter, in McManus in 2006 and in Labrecque in 2011, the Ontario Court of Appeal held the contrary, that the thing must first be a “weapon” as defined in the Criminal Code before it can be considered to be a firearm.

In Dunn, the Ontario Court of Appeal revisited the issue, reversed McManus and Labrecque, and made Ontario fall in line with the rest of Canada by following Felawka.  In returning to this interpretation of “weapon” and “firearm”, Justice Rosenberg essentially gave us three groups of barrelled objects, at paragraphs 44-46:

Group one: Barrelled objects shooting a projectile with a velocity of less than 214 ft./s. (or 246 ft./s., using the V50 standard) are not firearms because they are not capable of serious injury or death; these objects will only be considered weapons, and thus fall within a prohibition such as the concealed weapon prohibition in s. 90, if they meet paras. (a) or (b) in the definition of “weapon”.

Group two: Barrelled objects shooting a projectile with a velocity of more than 214 ft./s. (or 246 ft./s., using the V50 standard) are firearms, because they are capable of causing serious injury or death, whether or not they also meet paras. (a) or (b) in the definition of “weapon”; these weapons will fall within a prohibition such as that found in s. 90. Nevertheless, they will not be subject to the stricter licensing regime in the Criminal Code and the Firearms Act if they fall within one of the exemptions in s. 84(3), for example, if the velocity of the projectile does not exceed 500 f./s.

Group three: Barrelled objects shooting a projectile with a velocity of more than 500 f./s. These objects fall within the definition of firearm for all purposes of the Criminal Code and the Firearms Act and must be licensed accordingly. Some airguns and most powder-fired bullet-shooting guns will fall within this regime. At a minimum, Felawka has decided that the group three objects do not need to meet the paras. (a) or (b) definition of weapon to be deemed to be weapons.

So now airguns are firearms in Ontario as well as the rest of Canada.  Why is this a good thing?  Well, as many airgun enthusiasts know, many airguns today look very much like real guns.  They can easily be confused for the real thing.  And the Criminal Code defines a “replica firearm” as “any device that is designed or intended to exactly resemble, or to resemblre with near precision, a firearm, and that itself is not a firearm”.  A replica firearm explicity falls into the definition of a “prohibited device”.  So by ensuring that airguns are firearms, they cannot be replica firearms, and therefore are not prohibited devices, which is a good thing.

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