|This page was last substantively updated or reviewed January 2018. (Rev. # 84406)|
The standardized test to determining whether a pellet gun is "capable of causing serious bodily injury or death". Generally, a travel speed, as measured by a chronograph, exceeds 124 ft/s will penetrate a pig's (or human's) eye.
R v Goard, 2014 ONSC 2215 (CanLII), 310 CCC (3d) 491, per Trotter J, at para 46 ("P.C. Scott had a working knowledge of the “Pig’s Eye Test”, a standardized test used by police forces to determine whether a pellet gun is capable of “causing serious bodily injury or death”, as required by the definition in s. 2 of the Criminal Code. Simply put, the speed of BBs fired from a device is measured with a chronograph. If a BB can travel more than 214 feet per second, it is capable of penetrating a pig’s eye, which shares many of the same features with a human eye. A reading of 246 feet per second means that it can consistently penetrate a pig’s eye and is capable of “causing serious bodily harm.” ") and , at para 121 ("I accept the evidence of P.C. Dwayne Scott and Detective Richard Rossel that it was established that the device was capable causing this type of harm through the use of the Pig’s Eye Test, a recognized laboratory procedure used by law enforcement agencies:")
R v Dunn, 2013 ONCA 539 (CanLII), 305 CCC (3d) 372, per Rosenberg JA, at para 40 (one way of proving a firearm "...is by focusing on the capability of the object to cause serious bodily injury or death. ... The evidence in this case 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. This is the so-called pig’s eye test, which is a standard for determining the capabilities of a barrelled object for causing serious death or bodily injury. The evidence was that if the velocity was 246 ft./s. the object would meet the “V50 standard”, which is the speed required for the projectile to penetrate the eye 50 percent of the time.")
Certificate of Analysis
Proof Where Firearm Not Recovered
There is no obligation upon the Crown to produce testing results in order to prove that a weapon is a firearm. It is possible to prove that a weapon was a "firearm" within the meaning of s. 2 from the totality of the circumstances even where the weapon was not fired or recovered.
The trier-of-fact is permitted to make an inference that the weapon is a actual firearm within the meaning of s. 2 based on the observations of witnesses and actions of accused.
R v Cater, 2014 NSCA 74 (CanLII), 314 CCC (3d) 359, per Saunders JA, at para 46 ("It cannot be seriously suggested that it was incumbent upon the Crown to produce “testing scores” or “certificates” to “prove” that these guns could be fired, in order to convict the appellant. The Crown is under no such obligation (or limitations) in marshalling its evidence and presenting its case. It is up to the trier of fact, based on the totality of the evidence, to determine if a gun is a firearm, as defined by s. 2 of the Criminal Code. The circumstances surrounding the transactions, the words used, and the conduct of the accused are obviously highly relevant. A judge is entitled to draw the inference that a gun is operable, and thus within the definition of “firearm”, provided sufficient evidence is presented to permit such a conclusion. Obviously, the conclusion must be based on evidence and not speculation or conjecture.")
R v Wills, 2014 ONCA 178 (CanLII), 308 CCC (3d) 109, per Doherty JA, at para 50 ("I do not conclude from Parliament’s decision to criminalize the use of imitation firearms, an obviously dangerous activity, that the normal rules of proof do not apply to an allegation that an accused used a firearm, as defined in s. 2 of the Criminal Code. The Crown may prove that the alleged firearm fell within the definition by inference from the totality of the circumstances, even if the alleged firearm was not fired or recovered. This court has upheld trial decisions that have drawn that inference even though the firearm was not discharged or recovered:")
R v Gordon, 2017 ONCA 436 (CanLII), 348 CCC (3d) 426, per Doherty JA, at para 31 ("There was ample evidence from which the trial judge could infer that the gun used in the robbery was a real gun capable of firing bullets. Certainly, the victims thought it was real and the robbers acted as if it was real. A trier of fact is entitled, although clearly not obligated, to take a robber at his word when, in the course of the robbery and to subdue the victims, the robber points what appears to be a gun at the victim and threatens to shoot them. It is a fair inference that the threat is not an idle one and that the robber has the means at hand to make good on the threat.")
R v Grizzle, 2012 ONSC 2478 (CanLII), OJ No 1795, per Benotto J
Cater, supra, at para 46 ("It is up to the trier of fact, based on the totality of the evidence, to determine if a gun is a firearm, as defined by s. 2 of the Criminal Code. The circumstances surrounding the transactions, the words used, and the conduct of the accused are obviously highly relevant.")
R v Abdullah,  OJ No 6079 (ONSC)(*no CanLII links)
R v Charbonneau,  OJ No 1503 (ONCA)(*no CanLII links)
R v Carlson, 2002 CanLII 44928 (ON CA), 159 OAC 342, per curiam
R v Mills,  OJ No 3675 (ONSC)(*no CanLII links)
R v Carrie,  B.C.J. No 1535 (BCCA)(*no CanLII links)
R v Osiowy, 1997 ABCA 50 (CanLII), 113 CCC (3d) 117, per curiam
R v Robbie, 1989 ABCA 182 (CanLII), 96 AR 302, per Laycraft CJ
R v Lemoine,  OJ No 601 (ONCA)(*no CanLII links)
R v Downey, 1987 ABCA 65 (CanLII), per Laycraft CJ
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