R. v. Willis, 2007 ONCJ 605
[31] I agree with Mr. Genua’s submission that where a firearm is not recovered, the case law requires more than just a reference in conversation to a gun, or a mere depiction of one in an image, in order to come to a reasonable conclusion that the gun is an operable firearm. Other factors such as the circumstances of its use, its description, the conversation or images surrounding its possession, or any expert evidence tendered must permit a jury to conclude beyond a reasonable doubt that it was a real firearm. In short, the totality of the circumstances and evidence must be taken into account. In this regard, I have considered the following cases provided by the Crown and defence: R. v. Charbonneau, 2004 CanLII 9527 (ON CA), [2004] O.J. No. 1503 C.A.); R. v. Richards, 2001 CanLII 21219 (ON CA), [2001] O.J. No. 2286 (C.A.); R. v. Abdullah, [2006] O.J. No. 3936 (C.A.); R. v. Carlson, [2002] O.J. No. 1884 (C.A.); R. v. Fakomi et al. (unreported decision of Hackett J., Ontario Court of Justice, released February 28, 2007) and upheld on review by Trafford J. in R. v. Campbell, [2007] O.J. No. 2578 (S.C.J.); R. v. Wilson, [2006] O.J. No. 3065 (O.C.J., Lipson J.); R. v. Mills, [2001] O.J. No. 3675 (S.C.J.); R. v. Guzzo, 2007 CanLII 36639 (ON SC), [2007] O.J. No. 3306 (S.C.J.); R. v. Sibbeston, 1991 CanLII 13201 (NWT SC), [1991] N.W.T.J. No. 85 (S.C.); and R. v. Osiowy, [1997] A.J. No. 98 (C.A.).
[32] I agree with Lipson J. in the Wilson case that the principle which emerges from the case law was succinctly stated by Eberhard J. in R. v. Mills when he said:
Where all the circumstances lead to an inference that the item looking like a firearm is a
firearm, it is open to the trier of fact to draw such an inference.
Aucun commentaire:
Publier un commentaire