Firearms: The Law

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1.0 Judicial Acceptance of Forensic Firearms Analysis

Canadian courts have long accepted forensic firearm analysis as a valid forensic discipline, with cases from as early as 1931 [1] and 1945 [2] relying on the testimony of firearms experts. One of the common tasks of a forensic firearms analyst is to prove whether or not a questioned weapon is in fact a “firearm” under Canada’sFirearms Act and Part III of the Criminal Code and—if it is—which of the three firearm categories it falls under: non-restricted, restricted or prohibited.

Generally, the long guns used for sporting or hunting purposes, such as ordinary rifles and shotguns, come under the non-restricted category. Handguns or semi-automatic centre-fire rifles and shotguns with a barrel less than 470 mm in length generally come under the restricted category, as do rifles and shotguns that can be fired when their overall length has been reduced by folding, telescoping or other means to less than 660 mm. The prohibited category includes all automatic firearms as well as “converted automatics”—full automatics that have been altered so that they fire only one projectile when the trigger is depressed; handguns with barrels equal to or less than 105 mm in length; handguns that discharge .25 or .32 caliber ammunition and “sawn-off” shotguns or rifles that are less than 660 mm total in length or have barrel lengths of less than 457 mm [3]. There are also exceptions and special cases prescribed by regulation. A common task of the forensic firearms analyst is the classification of firearms into the above three categories.

 2.0 Classification and Proof of a “Firearm”

2.1 Statutory Definitions

“Firearm” means a barreled 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 barreled weapon and anything that can be adapted for use as a firearm: section 2 Criminal Code

Devices designed and used exclusively for signaling, notifying of distress, firing blanks/industrial projectiles or slaughtering domestic animals are not firearms: section 84(2) Criminal Code

A barreled weapon that is not designed or adapted to discharge a projectile at a muzzle velocity exceeding 152.4 meters per second, or at a muzzle energy exceeding 5.7 Joules, is not a firearm: section 84(2)Criminal Code

Any gun manufactured before 1898, provided it was not designed to fire rim-fire or centre-fire ammunition and has not been since modified to do so, is not a firearm: section 84(3) Criminal Code

2.2 Jurisprudential Definitions/Interpretations

In order to prove that a weapon used in the commission of a crime is a firearm, the Crown must prove that it was capable, either at the outset or through adaptation or assembly, of being loaded, fired and thereby of having the potential to cause serious bodily harm during the commission of the offence, or during the flight after the commission of that main offence.

An unloaded but otherwise operable gun or air pistol is a firearm because it could be loaded and fired during the offence, causing bodily injury. 

An inoperable gun will be considered a firearm if the nature of the repairs or modifications required—and the availability of parts on scene—is such that the gun could be adapted during the commission of the offence to fire and cause serious bodily injury: R v Covin, [1983] 1 SCR 725  

The Crown bears the burden of proving that a weapon used during an offence falls within the definition of a firearm, and the simplest way of doing so is to establish that it was fired during the offence and thereby operable. Failing that, expert evidence may be adduced to determine that the firearm, if available for examination, was operable: R v Osiowy, 1997 ABCA 50 at para 125

Even if the weapon is not available for examination, the testimony of witnesses and surrounding circumstances may leave it open to the trial judge to conclude that it was a firearm: R v Richards, 2001 CanLII 21219 at paras 3-4 (ONCA)

In determining whether a gun unavailable for examination was real or fake, evidence of a complainant or witness’s clear belief that it was a firearm, his or her description of the object and the accused’s conduct in relation to it may be sufficient foundation for the trial judge to find that it was real and an operable firearm under the law: R v Charbonneau, 2004 CanLII 9527 (ONCA)

3.0 Imitation Firearms 

3.1 Statutory Definitions

“Imitation firearm” means any thing that imitates a firearm, and includes a replica firearm: section 84(1)Criminal Code

It is an indictable offence to use an “imitation firearm” while committing or attempting to commit ­an indictable offence, or during flight from said offence, whether or not the person caused or meant to cause bodily harm to anyone as a result of using the imitation firearm: section 85(2) Criminal Code

“Imitation firearm” includes any object that:

(a)    could reasonably be mistaken for a firearm but is not a firearm nor a replica firearm as defined in s.84 of the Criminal Code, or

(b)    is a firearm but is not designed or adapted to discharge: (i) a shot, bullet or other projectile at a muzzle velocity exceeding 152.4 metres per second, or (ii) a shot, bullet or other projectile that is designed or adapted to attain a velocity exceeding 152.4 metres per second: section 1 Imitation Firearms Regulation Act, Ontario

3.2 Jurisprudential Definitions/Interpretations

The purpose of s. 85(2) is to prohibit people from using an object that has the appearance of a gun during the commission of a crime, in order to prevent the alarm and trauma that such use would create. This provision was enacted so that the Code would cover offenders who commit indictable offences using what appears to be a firearm, but cannot be charged under s. 85(1): either because it was a "fake" gun such as a toy gun; or because it was a real gun that could not be recovered for investigation: R v Scott, 2000 BCCA 220 at paras 43-44

4.0 Classification of “Toy” Guns as Firearms

A firearm is a barreled weapon from which a projectile can be discharged, and that is capable of causing serious bodily injury or death to a person. A recreational barreled weapon, such as an air pistol (BB/pellet gun), Airsoft or paintball gun, can therefore be classified as a firearm if the Court finds it is capable of causing serious bodily injury or death to a person.

The Court declared an air pistol to be a “firearm” because it was functional and capable of discharging projectiles with force sufficient to puncture a human eye. A gun does not have to be licensed as a “firearm” if its muzzle velocity does not exceed 500 feet per second. However, it can still be a “firearm” for non-registration and non-licensing offences of it is capable of causing serious bodily harm or deathThis threshold is met when the muzzle velocity is 246 feet per second or greater—at that speed the projectile can puncture an eye. This standard is based on the conclusions of a scientific experiment using pig eyes. The decision of the Court in this case was also based partly on evidence that the air pistol in question had earlier fired projectiles at a velocity sufficient to puncture holes in aluminum cans: R v Tiedeman, 1994 CarswellAlta 183 at para 12 (PC) 

5.0 “Capability” and Modification of Firearms

Most of the cases in this area involve the conversion of firearms to automatic fire (automatic firearms being those that will fire multiple projectiles with one press of the trigger). Automatic firearms are prohibited in Canada.

 5.1 Statutory Definitions

It is an offence to manufacture, assemble or alter any firearm that is capable of discharging projectiles in rapid succession with only one depression of the trigger, barring lawful excuse (i.e. creation of a machine gun): section 102(2) Criminal Code

“Automatic firearm” means a firearm that is capable of, or assembled or designed and manufactured with the capability of, discharging projectiles in rapid succession during one pressure of the trigger: section 84(1)Criminal Code

5.2 Jurisprudential Definitions/Interpretations

The word “capable” includes an aspect of potential capability and should therefore be interpreted as meaning “capable of conversion to an automatic weapon in a relatively short period of time with relative ease”: R v Hasselwander, [1993] 2 SCR 398 

Example of a case involving significant testimony and in-court demonstration by forensic firearms analysts. The case turned largely on the degree of difficulty involved in altering a firearm to make it automatic. The firearms in question were military automatics that had been converted through welds to semi-automatic fire. The experts in question demonstrated to the Court that the firearms could, within an hour’s time and with minimal tools, be converted back to automatic fire. The court concluded that this met the test of “capable”. The fact that the owners of the firearms themselves may have lacked the expertise to make the conversion was immaterial to classification: R v Sheldrake, 1991 CarswellOnt 6321 (CJ)

Application of Hasselwander: The sale of a gun that has been modified to be non-operational or “deactivated” can still constitute the offence of trafficking in a firearm pursuant to s. 99(1)(a) of the Criminal Code if the Crown can prove that the gun was capable of conversion to an operating weapon within a relatively short period of time with relative ease: R v Sinclair, 2006 ABQB 438

This case involved a sawn-off rifle of prohibited length that was missing the firing pin, rendering it inoperable. As “sawn-off” shotguns or rifles that are less than 660 mm total in length or have barrel lengths of less that 457 mm are prohibited weapons, the question at bar was whether this inoperability also negated the firearm’s classification as a prohibited weapon. The court concluded that it did no, as the missing pin was easily obtainable and, once obtained, the process of making the gun operable was less than a minute: R v Ferguson, 1985 CarswellOnt 1376 (CA)

 The accused worked in a store selling starter pistols (which fired blanks) in addition to real and replica firearms. He was charged with possessing and transferring firearms after advising an undercover officer on where to drill out the pistol so it could fire live ammunition: R v Goswami, 2002 CanLII 14520 (ONCA)

6.0 Expert Opinions

Case involving the testimony of a toolmarks and firearms forensic analyst. Defence counsel pressed the witness to testify as to the significance of a muzzle flash observed at the time of the shooting. The witness stated that was beyond his sphere of specific expertise: R v Belic, 2011 ONCA 671

Case involving the testimony of forensic firearm analysts. An important issue in the case was the shape of the victim’s wound track—several witnesses argued it was oval, which suggested to the experts that the shot may have been a “tumbling bullet”—the result of a ricochet as versus a deliberately aimed direct shot: R v Sutherland, 1993 CanLII 6614 (SKCA)

7.0 Tool marks

The Crown planned to introduce as evidence the fractured skull bones of the victim, which showed striations matching those of an axe in the accused’s possession. An identification expert showed photographs taken through a comparison microscope. Defence counsel objected to the introduction of the skull bones as an exhibit on the ground that it was not necessary in order to prove the Crown's case and would have a prejudicial affect on the jury. The trial judge ruled that the bones were admissible, being material evidence: R v Brass, 1984 CarswellBC 2041 at paras 1-6 (CA)

 

[1] Rex v Nahirniak, [1931] 2 WWR 604 at para 14

[2] R v Prince, [1945] BCJ 15 at para 25