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POSSESSION RESTRICTED OR PROHIBITED FIREARM


R. v. Williams, 2009 ONCA 342 (CanLII)


... he was carrying a loaded handgun in the waistband of his pants.

[2]               The handgun was a Krieghoff Suhl 9 millimetre Luger – a prohibited firearm.  It had ammunition in the magazine and in the chamber ready to fire, although the safety was on.  

[3]               Mr. Williams was charged with eight counts relating to the unauthorized possession and storage of the handgun, but he was convicted on one count only – possession of a firearm without a licence or a registration certificate.  He was acquitted on the charge of possessing a loaded prohibited firearm.  The other charges were either dismissed or withdrawn at the request of the Crown.

[4]               On the appeal, the Crown attacks only the acquittal for possession of a loaded prohibited firearm.  The issue is narrow: did the respondent have the necessary mens rea for that offence?  The respondent says he did not because he was unaware that the barrel was shorter than 105 millimetres, which is the demarcation point between a prohibited firearm and a restricted firearm under the Criminal Code.  He therefore did not know that the firearm was “prohibited.”  The Crown chose to particularize the offence by charging possession of a prohibited firearm, he says, and was accordingly required to prove that he had the requisite knowledge that the handgun was prohibited as opposed to restricted.

[5]               The trial judge agreed.  I do not, and would allow the appeal for the reasons that follow.

II.               ADDITI

III.            ONAL FACTS & ANALYSIS

Mens Rea for Possession of a Loaded Prohibited Firearm

Relevant Provisions of the Criminal Code

[6]               When the respondent was charged, s. 95(1) and (2) of the Criminal Code read as follows:

Possession of prohibited or restricted firearm with ammunition

95(1) Subject to subsection (3) and section 98,[1] every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, unless the person is the holder of

(a)    an authorization or a licence under which the person may possess the firearm in that place; and

(b)    the registration certificate for the firearm.


Punishment

(2)              Every person who commits an offence under subsection (1)

(a)         is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of [THREE YEARS] one year; or

(b)         is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.


[7]               Section 84(1) of the Code defines a “prohibited firearm,” so far as is relevant for the appeal, as “a handgun that … has a barrel equal to or less than 105 mm in length.”

Respondent’s Argument that he Lacked the Requisite Mens Rea

[8]               There is no dispute that the Krieghoff Suhl 9 millimetre Luger in question is a prohibited weapon.  Its barrel measures 102.07 millimetres.  The respondent admits the handgun in question is a prohibited weapon.  He admits it was found on his person.  He admits there was ammunition in the gun and that it was ready to be fired.  He admits that he did not have a licence or a registration certificate for the gun, or “any of that stuff.”  And he admits that he knew he was not allowed to “have any kind of gun, whether it was prohibited or restricted or legitimate”.

[9]               The respondent testified, however, that he had never measured the gun or made any enquiries about it, and had no reason to believe it was 102.07 millimetres in length.  He had had the handgun for about two weeks prior to his arrest.

[10]         It is clear that the offence created by s. 95(1) of the Code is an offence requiring mens rea.  It is punishable by imprisonment – indeed, a mandatory minimum sentence in the case of indictment – and there is nothing in the section to indicate that no mental element is required:  see R. v. Phillips (1979), 44 C.C.C. (2d) 548 (Ont. C.A.); R. v. Archer, reflex, (1984) 6 C.C.C. (3d) 129 (Ont. C.A.); R. v. Prue, 1979 CanLII 227 (S.C.C.), [1979] 2 S.C.R. 547.  Phillips and Archer concerned possession of a prohibited weapon – a knife that opened automatically by gravity or centrifugal force – under what was then s. 88(1) of the Code (now s. 91(2)), which provided that “every one who has in his possession a prohibited weapon” commits an offence.  With respect to the mens rea of that offence, Martin J.A. said this in Archer, at p. 132:

The mens rea required to constitute the offence under s. 88(1) consists in either knowledge or recklessness with respect to the characteristics of the knife in question which, in fact, make it a prohibited weapon.

[11]         From these authorities the respondent argues that he did not have knowledge of the characteristics of the handgun that make it a prohibited firearm, i.e., that its barrel measured 105 millimetres or less.  He therefore lacked the requisite mens rea.

The Respondent had the Requisite Mens Rea


[12]         In my view, the mens rea under s. 95(1) is satisfied where the offender knew that he or she was in possession of a loaded firearm.  Knowledge of the length of the handgun’s barrel is not part of the mens rea required for the offence created by s. 95(1), and consequently, the trial judge erred in acquitting the respondent on this count.

[13]         Section 95(1) makes it an offence to possess “a loaded prohibited firearm or restricted firearm …,”[2] unless the person possessing the firearm has a licence to do so and a registration certificate for the firearm.  There are not two offences – possession of a loaded prohibited firearm, and possession of a loaded restricted firearm.  Rather, there is only one offence: possession of a loaded firearm, whether prohibited or restricted.  This is made abundantly clear by the French version of the Code which uses the “either/or” structure in relation to the type of firearm:

95(1) … commet une infraction quiconque a eu sa possession dans un lieu quelconque soit une arme à feu prohibée ou une arme à feu à autorisation restreinte chargées … [Emphasis added.]


[14]         Moreover, the structure of the language creating the s. 95(1) offence is different than that of s. 91(2) creating the offence of possession of a “prohibited weapon” (emphasis added), which is the offence that was at issue in Phillips and Archer.  When those cases were decided, the predecessor of s. 91(2) provided that “every one who [had] in his possession a prohibited weapon” was guilty of an offence.  When the respondent was charged, s. 91(2) – the comparable provision – read:

[E]very person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, unless the person is the holder of a licence under which the person may possess it.

[15]         From the structure of s. 91(2) – using as it does the commas that s. 95(1) lacks – it is evident that the provision creates different offences: possession of a prohibited weapon; possession of a restricted weapon; possession of a prohibited device; possession of prohibited ammunition.  For purposes of the appeal, I need not determine what “knowledge … with respect to the characteristics” of the weapon or device – to use the language of Archer – may be necessary to bring the offender within one or another of the s. 91(2) offences.  Those offences are not in play here.    

[16]         It is clear that s. 95(1) creates only one offence, the gravamen of which is the possession of a loaded firearm[3].  It matters not whether the firearm is “prohibited” or “restricted.”  The offence is the same.  The potential penalties are the same under s. 95(2).  The mens rea required for conviction under s. 95(1), therefore, is simply knowledge by the offender that he or she is in possession of a firearm – in this case, a handgun – that is loaded.  Here, there is no doubt the respondent knew he was in possession of a loaded handgun.  It is therefore unnecessary to consider whether some other mental state – for example, wilful blindness – would be sufficient to establish “knowledge”.

[17]         This interpretation is consistent with the language of the Code and with the purpose of the provision and the intent of Parliament.  The offence created by s. 95(1) is designed to protect the public from the danger posed by people with loaded firearms.  It is intended to catch all unauthorized loaded handguns.  A “prohibited firearm” – in the context of handguns – is defined in s. 84 as a handgun that has the characteristics set out therein.  A “restricted firearm” is defined in s. 84 (again, in the context of handguns) to mean “a handgun that is not a prohibited firearm”.  Consequently, a handgun is either a restricted or a prohibited firearm.  There are no other handguns under the Code.  That is why the language forbids the possession of “a loaded prohibited firearm or restricted firearm” (emphasis added).    

[18]         To adopt the respondent’s argument that the Crown must prove mens rea in relation to the type of weapon specified in the indictment would create an unwarranted hurdle for the Crown.  Accused persons could always assert that they had not measured or made any enquiries about the length of the handgun’s barrel.  Accordingly, regardless of the way in which the charge is framed, the Crown would rarely, if ever, be able to obtain a conviction.  Where the charge is possession of a loaded prohibited firearm, the argument will be that the accused person did not know that the length of the barrel was 105 mm or less and therefore lacked the requisite mens rea that the gun was a prohibited firearm.  Where the charge is possession of a loaded restricted firearm, the same argument would be made with respect to the length over 105 mm.  If the Crown charged possession of a loaded prohibited firearm or restricted firearm – adopting the exact language of the offence created – the accused will submit that the Crown must prove knowledge of one or the other, but he or she just did not know either!  To give effect to the language and purpose of s. 95(1), and to the intention of Parliament, it is only necessary to give to the mens rea component its common sense meaning: the requisite mental element will be established where the Crown proves that the accused was knowingly in possession of a loaded prohibited or restricted handgun that he or she was not legally entitled to possess.  Knowledge that the barrel of the handgun measures 105 millimetres, or more or less than that length – i.e., of whether the handgun is “prohibited” or “restricted” – is immaterial.

[19]         There is some support for this approach to the mens rea component of the s. 95(1) offence in the jurisprudence arising from drug-related prosecutions.  In trafficking, importing or possession cases, it is not necessary for the Crown to demonstrate that the accused knew he or she possessed (or was importing or trafficking in) the very prescribed drug identified in the indictment provided the accused knew the drug was a narcotic – for example, the actual drug involved is cocaine whereas the accused believed it to be hashish, or is LSD but was believed to be mescaline: see R. v. Burgess, [1970] 2 O.R. 216 (C.A.); R. v. Blondin (1971), 2 C.C.C. (2d) 118 (B.C.C.A.), aff’d (1971) 4 C.C.C. (2d) 566; R. v. Custeau, [1972] 2 O.R. 250 (C.A.); R. v. Kundeus, 1975 CanLII 161 (S.C.C.), [1975] 2 S.C.R. 272.  In Burgess, at p. 217, Brooke J.A. said:

[We] are all of the opinion that in these circumstances where the evidence is clear and consistent only with the conclusion that the accused knew the substance that he had in his possession was indeed a drug the possession of which was contrary to the statute, the fact that he mistakenly believed the drug to be hashish rather than opium is of no moment.


[20]         Paraphrased in the context of the case at bar, it can be said that “the evidence is clear and consistent only with the conclusion that the accused knew [the loaded handgun] that he had in his possession was indeed [a loaded handgun] the possession of which was contrary to the statute”, and therefore that “the fact that he mistakenly believed the [handgun measured more or less than 105 millimetres] is of no moment.”

[21]         Under the narcotics control regime, the offence in question forbids the possession of (or the importing of or trafficking in) a narcotic.  Which narcotic does not matter, as long as it is included in a forbidden schedule.  Similarly, under s. 95(1) of the Code, the offence is the possession of a loaded firearm.  Whether the firearm is prohibited or restricted does not matter.  The common denominator in the comparison between the two types of offences is that the actus reus (possession of a forbidden item) and the mens rea (knowledge of the characteristics that make it a forbidden item) do not relate to different crimes but rather to the same crime in each case.

[22]         It is fundamental that where the actus reus of a criminal offence is proved, there must also be proof of the mens rea of the same crime.  In his text, Criminal Law, 2d ed. (London: Stevens & Sons Limited, 1961), at p. 129, Glanville Williams states:

What are different crimes for the purpose of the rule depends primarily upon the arrangement of the statute; each section presumptively creates a different crime or group of crimes.  It is possible for a single sentence of a section to create a number of different crimes ….  If a section is thus held to create different crimes, it would not be possible to transfer the malice from one crime to another even within the same section. [Emphasis added.]


[23]         An example of a number of different crimes being created by a single sentence in a section of the Code is s. 91(2) discussed above.  For the reasons I have articulated above, however, the language of s. 95(1) creates only one offence: possession of a loaded firearm (prohibited or restricted).[4]  Since a handgun – the loaded firearm in this instance – must by definition be either a prohibited or a restricted firearm, convicting the respondent of the offence with which he was charged (possession of a loaded prohibited firearm) knowing that he was in possession of a loaded handgun, does not involve transferring to him an intention relevant to one crime in order to convict him of another.

[24]         Given the foregoing, it is not necessary to deal with the Crown’s alternative argument based upon wilful blindness.

[25]         I would therefore give effect to the Crown’s submission that the trial judge erred in holding that the respondent’s ignorance of the length of the barrel of the handgun in question negated the mens rea necessary for a conviction under s. 95(1) of the Criminal Code.  I would allow the appeal on that ground.

Delay in Prosecuting the Appeal.

...




Jim O'Neil, LL.B.

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