Un objet (en particulier un pistolet à plombs) « n'est pas une arme à moins d'être utilisé ou destiné à être utilisé dans un but dangereux »

R. v. McManus, 2006 CanLII 26568 (ON CA)

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[1]                The appellant appeals from his conviction for carrying a concealed weapon contrary to s. 90(2) of the Criminal Code.

[2]               At the request of the Crown and with the consent of the appellant we amended the information by deleting the words “without being authorized under the Firearms Act to do so”, and also by deleting the words “a replica handgun” and by substituting therefore the words “imitation firearm”.

[3]               In convicting the appellant, the trial judge accepted the Crown’s submission that the pellet gun seized from the appellant is a firearm. By definition, a firearm is a weapon within the meaning of s. 90(2) of the Criminal Code. The trial judge relied on his finding that the pellet gun is a firearm to conclude that it is a weapon for the purposes of s. 90[1].

[4]               In her evidence at trial, the police officer who seized the pellet gun from the appellant confirmed that it is discharged by a spring mechanism. In addition, she agreed that this type of pellet gun is “also referred to as a toy pellet gun.”  

[5]               The definition of “firearm” in the Criminal Code stipulates that a firearm is “a barrelled weapon…”  On the facts of this case, in our view, the trial judge erred in failing to consider whether the pellet gun seized from the appellant is a weapon prior to accepting the Crown’s submission that it is a firearm. Further, in light of the record at trial and the trial judge’s finding that there was no evidence that the appellant used the pellet gun for a purpose dangerous to the public peace, in our view, a finding that the pellet gun was a weapon was not available.

[6]               In the circumstances, the appeal is allowed, the appellant’s conviction is set aside and an acquittal is substituted.