R. v. M.
Ontario Superior Court of Justice
Brampton, Ontario
Hill J.
Oral judgment: October 21, 2004.
Counsel:
Ms. A. Esson, counsel for the Crown
Mr. R. Rusonik, counsel for Mr. McKennon
Mr. T. MacKay, counsel for Mr. McLean
RULING
1 HILL J. (orally):– The court has before it an application for a directed verdict on count two in the indictment. That application must succeed.
2 The count alleges unlawful possession of a loaded restricted firearm. It seems to me that the mischief aimed at by Parliament is specifically the danger of ammunition in a restricted firearm capable of being discharged from the barrel of the firearm, endangering the lives and safety of citizens in the community.
3 The evidence here is that the ammunition was oversized for the barrel of Exhibit #2, the seized firearm. The firearms expert was clear that the ammunition found in the vehicle could only be partially chambered in Exhibit #2. She was unable to say that the bullets in question could be discharged from the firearm, because of their oversize, in the way that ammunition for Exhibit #2 would ordinarily be discharged. Indeed, of the three options she explored in her evidence, only on one of the options could the oversized .9 millimetre bullet emerge from the end of the barrel and in her view that would be with “very” little velocity.
4 Accordingly, the essential element of Exhibit #2 being a loaded restricted firearm is absent in the prosecution case and there will be a directed verdict on count two.
5 With respect to counts three and four, both are dependent upon proof that Exhibit two, seized from the vehicle, is a “firearm”. It was agreed between the parties that on the evidence Exhibit two is an inoperable firearm, because of the condition of the firing pin mechanism. This then launches the inquiry into the adaptability of Exhibit #2 to become an operable firearm.
6 It is clear that one is required to consider the purpose of the particular legislative prohibition in which the word firearm appears. Count three alleges an offence contrary to s. 86(1) of the Criminal Code and count four, an offence contrary to s. 94(1) of the Criminal Code.
7 The jurisprudence brought to the court’s attention and in particular the Hasselwander and Covin cases indicate that the issue of adaptability requires one to consider whether the inoperable weapon could be adapted during the commission of the offence taking into account the “time and place of the offence” or that immediately proximate time of flight thereafter. The court is required to consider the amount of energy to be expended to make the relevant exhibit operable, the nature of the defect and the time span for adaption, and of course, required to consider the evidence relating to the nature of the repairs or modification. A factor is the availability of any parts on the scene. The courts have looked to the adoption by an ordinary person in terms of whether tools are required, the availability of the replacement part and the capacity of an ordinary person to make the conversion.
8 There was no evidence in this case that either accused possesses any special skills which would allow them to assemble the gun to the point of an operable firearm. On the evidence the expert believed that the gun, in a five to ten minute time span, could be disassembled, the defective firing pin removed and in another five to ten minutes the replacement firing pin put into Exhibit #2 and the gun reassembled. This operation would not be considered a part of ordinary cleaning or maintenance of a gun such as Exhibit #2. The witness who gave this evidence is herself an expert. She relied upon reference instructions in disassembling the pre-1956 firearm in giving us the times in question.
9 Additional evidence this morning suggests that certain web-sites are a vehicle for ordering a firing pin for the particular weapon before the court or that a local gun store would be in a position to order the appropriate firing pin with approximately a two-week wait.
10 In looking at the parliamentary purpose and objective of the offences alleged in counts three and four involving respectively transport and being an occupant of a motor vehicle, I take into account that there is some temporal restraint implicit in both of these offences unlike the offence of possession of a firearm which has more indefinite borders. It seems to me to make logical sense of the purpose of Parliament, one has to look at the issue of adaptability during the course of either the transport of the firearm or the currency of being an occupant of a motor vehicle.
11 There is no suggestion that there was a replacement firing pin or tools or instructions in the vehicle. Based upon the evidence that the court has as to the availability of the firing pin, I am unable to see how there is any evidence which would meet the adaptability standard for the offence of transport or occupancy of a motor vehicle. Accordingly, there will be a directed verdict on counts three and four.
12 Mr. McLean challenges the sufficiency of the evidence respecting count six in the indictment by way, as well, of a directed verdict application. In other words, he maintains that there is no evidence upon which a reasonable trier of fact could convict of the unlawful possession alleged.
13 At the relevant time, Mr. McLean was the front seat passenger in a small motor vehicle. The prosecution led evidence to the following effect, during a “traffic stop” of the Honda driven by Mr. McKennon, the driver opened the glovebox of the car to obtain driver/car documentation he was required to have under the Highway Traffic Act. Mr. McKennon fumbled in the glovebox for some time flipping up papers, although the documentation required was said by the officer to be clearly visible.
14 While the driver was engaged at the glovebox, Mr. McLean averted eye contact with the officer, looking out the passenger window, at times stealing glances toward the activity at the glove compartment. As he held a cellphone in his lap, his hands were trembling, described by McSherry as “obvious nervousness”. The documentation available was produced to Constable McSherry. The glovebox remained open. From a position to the rear of the Honda, according to McSherry, he saw McLean’s head go forward and disappear out of view. McSherry also stated that McLean “leaned forward”.
15 The photos of the car interior show the confinement of space in this small car. Forward of the passenger seat and within easy reach is the glovebox. McSherry reported seeing a great deal of head movement by both parties from the vantage point he described in his testimony.
16 On returning to the Honda, while seated in the passenger seat of the car, on McSherry’s evidence, he saw one inch of wood visible on the extreme right of the open glovebox which “seemed out of place”. Exhibit #2, the gun, was behind the wall or divider at the rear of the glovebox. By pulling the divider forward, the officer extricated Exhibit #2, then learning what the item was. No fingerprint evidence links either accused to the exhibit.
17 The Crown theory is that the accused were in joint possession of the gun and that McLean’s proximity to the gun’s partially secreted location, his nervousness and his forward movement, once the officer left the side of the Honda, affords some evidence of the knowledge and control aspects of the element of possession.
18 Given the minimal threshold at this point, I am persuaded that the circumstantial evidence meets the relevant standard. In so ruling, the prosecution evidence is taken at its highest without credibility/reliability assessment of Constable McSherry’s testimony where such matters as the competing inferences that might exist fail to be considered, for example that McLean was nervous because he was in possession of an illicit narcotic. The application for a directed verdict on count six is dismissed.
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