Proving the Existence of Firearms and Related Issues

< Criminal Law
< Firearms

General Principles

See also: Weapon Offences

The standardized test to determing 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.^[1]

↑ R v Goard, 2014 ONSC 2215 (CanLII), 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)}}, 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

Certificate of analyst

117.13 (1) A certificate purporting to be signed by an analyst stating that the analyst has analyzed any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or any part or component of such a thing, and stating the results of the analysis is evidence in any proceedings in relation to any of those things under this Act or under section 19 of the Export and Import Permits Act in relation to subsection 15(2) of that Act without proof of the signature or official character of the person appearing to have signed the certificate.

Attendance of analyst

(2) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for the purposes of cross-examination.

Notice of intention to produce certificate

(3) No certificate of an analyst may be admitted in evidence unless the party intending to produce it has, before the trial, given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the certificate.
(4) and (5) [Repealed, 2008, c. 18, s. 2]
1995, c. 39, s. 139; 2008, c. 18, s. 2.

– CCC

Note up: 117.13 (1), (2) and (3)

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.^[1] 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.^[2]

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.^[3]

↑ R v Cater, 2014 NSCA 74 (CanLII) (CanLII)], 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), 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), 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.")
↑ Gordon, ibid.
R v Grizzle, 2012 ONSC 2478 (CanLII) (CanLII)], 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, [2005] OJ No 6079 (ONSC)(*no CanLII links)
R v Charbonneau, [2004] OJ No 1503 (ONCA)(*no CanLII links)
R v Carlson, 2002 CanLII 44928 (ON CA), per curiam
R v Mills, [2001] OJ No 3675 (ONSC)(*no CanLII links)
R v Carrie, [1998] B.C.J. No. 1535 (BCCA)(*no CanLII links)
R v Osiowy, 1997 ABCA 50 (CanLII) (CanLII)], per curiam
R v Robbie, 1989 ABCA 182 (CanLII) (CanLII)], per Laycraft CJ
R v Lemoine, [1988] OJ No 601 (ONCA)(*no CanLII links)
R v Downey, 1987 ABCA 65 (CanLII) (CanLII)], per Laycraft CJ

Certificate of Authorization or Registration

Onus on the accused

117.11 Where, in any proceedings for an offence under any of sections 89 [carrying concealed weapon to meeting], 90 [carrying concealed weapon], 91 [unauthorized possession of a firearm], 93 [Possession at unauthorized place], 97 [repealed offence], 101 [transfer firearm without authority], 104 [unauthorized importing or exporting] and 105 [losing or finding firearm], any question arises as to whether a person is the holder of an authorization, a licence or a registration certificate, the onus is on the accused to prove that the person is the holder of the authorization, licence or registration certificate.
1995, c. 39, s. 139.

– CCC

Note up: 117.11

Authorizations, etc., as evidence

117.12 (1) In any proceedings under this Act or any other Act of Parliament, a document purporting to be an authorization, a licence or a registration certificate is evidence of the statements contained therein.

Certified copies

(2) In any proceedings under this Act or any other Act of Parliament, a copy of any authorization, licence or registration certificate is, if certified as a true copy by the Registrar or a chief firearms officer, admissible in evidence and, in the absence of evidence to the contrary, has the same probative force as the authorization, licence or registration certificate would have had if it had been proved in the ordinary way.
1995, c. 39, s. 139.

– CCC

Note up: 117.12 (1) and (2)

Definitions

Definitions

84 (1) In this Part [Pt. III – Firearms and Other Weapons (ss. 84 to 117.15)],
...
"authorization" means an authorization issued under the Firearms Act; (autorisation)
...
"chief firearms officer" means a chief firearms officer as defined in subsection 2(1) of the Firearms Act; (contrôleur des armes à feu)
"Commissioner of Firearms" means the Commissioner of Firearms appointed under section 81.1 of the Firearms Act; (commissaire aux armes à feu)
...

Meaning of holder

(4) For the purposes of this Part, a person is the holder of

(a) an authorization or a licence if the authorization or licence has been issued to the person and the person continues to hold it; and

(b) a registration certificate for a firearm if
(i) the registration certificate has been issued to the person and the person continues to hold it, or

(ii) the person possesses the registration certificate with the permission of its lawful holder.

...

– CCC

Note up: 84 (1) and (4)

[1] R v Goard, 2014 ONSC 2215 (CanLII), 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)}}, 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.")

[2] R v Cater, 2014 NSCA 74 (CanLII) (CanLII)], 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.")

[3] R v Wills, 2014 ONCA 178 (CanLII), 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), 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.")

[4] Gordon, ibid.
R v Grizzle, 2012 ONSC 2478 (CanLII) (CanLII)], 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, [2005] OJ No 6079 (ONSC)(*no CanLII links)
R v Charbonneau, [2004] OJ No 1503 (ONCA)(*no CanLII links)
R v Carlson, 2002 CanLII 44928 (ON CA), per curiam
R v Mills, [2001] OJ No 3675 (ONSC)(*no CanLII links)
R v Carrie, [1998] B.C.J. No. 1535 (BCCA)(*no CanLII links)
R v Osiowy, 1997 ABCA 50 (CanLII) (CanLII)], per curiam
R v Robbie, 1989 ABCA 182 (CanLII) (CanLII)], per Laycraft CJ
R v Lemoine, [1988] OJ No 601 (ONCA)(*no CanLII links)
R v Downey, 1987 ABCA 65 (CanLII) (CanLII)], per Laycraft CJ

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