R. v. Rogan** Unedited **
Indexed as: R. v. Rogan
Between
Her Majesty The Queen, Applicant,
and
Dean Kenneth Rogan, (Respondent)
[1994] A.J. No.341
DRS 94-10020
Action No.20706586H10101
Alberta Provincial Court
Judicial District of Vegreville
Demetrick Prov. Ct. J.
April 28, 1994.
(57 pp.)
Criminal law — Sentencing — Weapons prohibition — Civil rights — Trials, due
process, fundamental justice and fair hearings.
Application for an order prohibiting the respondent from possessing any
firearm, ammunition or explosive substance, as well as for a forfeiture order
for a weapon seized. At issue was whether the seized item was a prohibited
weapon under paragraph 84(1)(c) of the Criminal Code.
HELD: The Sten Mark V receiver was not a prohibited weapon. Parliament
should have spent more time in attacking the underlying causes of crime and in
promoting informed responsible private gun ownership rather than investing time,
effort and expense to make Canada's gun laws more comprehensive and restrictive.
This, given federal and provincial debt, would have enhanced the security of
individuals more. Machine gun part ordered released to the respondent.
STATUTES, REGULATIONS AND RULES CITED:
Criminal Code, R.S.C. 1985, c. C-46, ss. 84(1), 85(1), 100(4), 100(6), 102.
Canadian Charter of Rights and Freedoms, 1982, ss. 1, 7, 8, 11(d), 12.
Prohibited Weapons Order No. 11, SOR/92-465.
Prohibited Weapons Order No. 9, SOR/92-463.
N. Wiberg, for the Applicant (Crown).
The Respondent appeared in person.
1 DEMETRICK PROV. CT. J.:— The present dispute came before the court in
the form of a written application under s. 100(4) of the Criminal Code for an
order prohibiting the Respondent from possessing any firearm, ammunition or
explosive substance. Before evidence was called in the hearing, Crown counsel
made it clear what the Applicant actually wanted was an order of forfeiture for
one specific item seized previously from the Respondent. With consent of the
litigants the hearing went forward on March 3, 1994 only as a forfeiture hearing
under s. 102 of the Code and not as a prohibition hearing under s. 100(6). The
Code in s. 84(1) provides a lengthy definition for the phrase "prohibited
weapon". Paragraph (c) of that definition is the dispute's foundation. The
fundamental issues to be determined are: whether the hollow metal object seized
from the Respondent falls within paragraph (c) and whether it does so in a way
justifying its forfeiture.
2 The dispute incorporates a complex intertwining of gun law and gun
technology. In recent years Canada's gun law has expanded into a large
convoluted legal tangle. Under it responsible persons have been deprived of
their lawfully acquired guns by Government without compensation from Government.
Other persons, irresponsible and ill-intentioned, continue serious crime
undeterred by it. Some portions of that law are straightforward and well suited
to provide protection to the general public without creating unnecessary legal
peril or inconvenience for those honest responsible citizens who prefer to
possess guns. Other portions are abstruse and seem to have the potential for
providing more legal peril and inconvenience to honest responsible gun owners
than real protection to the general public. Canada's foremost jurists disagree
among themselves upon what some key portions of Canada's gun law mean but lay
persons under threat of Criminal Code sanctions are required to understand all
of it perfectly and to obey all of it completely.
3 Current gun law is not only legally complex. It is politically and
socially controversial. Its debate often invokes more emotion than reason. Sane,
honest, intelligent, responsible, law-abiding, "anti-gun" people point to the
current phenomena of suicides, accidents and crimes involving guns. They ask,
"why would any honest responsible private citizen want to possess guns?".
Equally sane, honest, intelligent, responsible, law-abiding "pro-gun people"
point to other phenomena:
(a)numerous past and present political events, such as the European-based
Holocaust of this century, wherein private citizens' own rulers, or those
of some other nation, have herded them about unarmed and defenceless like
sheep and have slaughtered or mistreated them upon whim with the ease of
shepherds butchering lambs;
(b)numerous incidents of violent individuals with or without guns
assaulting, wounding, raping, robbing, or killing law-abiding but
defenceless Canadians in their homes and elsewhere;
(c)the current success of Canada's legal system in curbing violent crime
and in controlling violent criminals young and old;
(d)the harmless, if not beneficial, sporting pleasures to be derived by
responsible private citizens from possessing and using guns;
(e)the historic and artistic value of some guns as artifacts of history or
works of art.
Those pro-gun people ask, "Why would any honest responsible private citizen not
want to possess guns?".
4 This judgment concludes the forfeiture hearing and attempts to
constitute a reasoned legal analysis covering a small but key portion of the
Code's firearm provisions.
Unless one has some knowledge of how the various pieces of a gun function and
has some acquaintance with the technical names for gun parts it can be difficult
to understand fully the factual and legal complexities of this case. To assist
those unfamiliar with firearms and firearms terminology a contrived dialogue
between a Crown counsel and a judge is provided as a prelude. The dialogue
relates to cars - things likely more familiar to many than guns are. It is meant
to portray the essence what this present dispute is about and to function as a
reference base for the legal discussion coming after it which specifically
relates to firearms and the law applicable to them.
COUNSEL(having brought a frame for a car into the courtroom):
Your Honour, the Crown wants you to determine
whether this car is a "high speed" car.
JUDGE:That is a strange request. It is plain to see what you have here is
just a car frame. In reality it is not a car at all.
COUNSEL:I agree, but Parliament wants us to pretend this car frame is
really a car.
JUDGE:Are you sure that's what Parliament wants?
COUNSEL:It would seem so because Parliament says three basic things are
cars: (1) cars are cars; (2) car frames are cars; and (3) all things that
can be adapted to be cars or car frames are cars.
JUDGE:Okay, I pretend your car frame is a car. What test does Parliament
say I should use to determine whether your "pretend car" is a high speed
car?
COUNSEL
arliament says a high speed car is a car that is capable of high
speed. Perhaps Your Honour will be interested to hear I recently took a
real fully functioning car - not a mere car frame as I have here - before
eight high ranking judges. I asked them to use Parliament's test and
determine whether that real car was a high speed car.
JUDGE:What answer did they give you?
COUNSEL:Using Parliament's test four judges said it was a high speed car
and four said it wasn't. Because of differences in ranking among the
judges I had to accept it was a high speed car. If Your Honour is
concerned that perhaps you don't fully understand Parliament's test I have
some news for you.
JUDGE:What news?
COUNSEL:Three of the higher ranked judges who looked at my real car and
found it to be a high speed car have reworded Parliament's test.
JUDGE:What's their wording of Parliament's test?
COUNSEL:They began by saying the word "capable" as used in the test must
be given some reasonable restriction. They went on to say in their view a
high speed car should mean a car capable of conversion to a high speed car
in a relatively short period of time with relative ease. They ended by
saying where a car can be quickly and readily converted to a car capable
of high speed it must fall within the definition of a high speed car.
JUDGE:On the matter of conversion did they have in mind conversion by
experienced car mechanics possessed of all the necessary technical data,
tools, parts and raw material? Did they have in mind a car owner possessed
of household tools, no car parts, no technical knowledge and little
knowledge of where to obtain those things? In other words, did they have
in mind conversion by an ordinary modern day car owner who knows how to
put gas in the tank, how to start it up, how to drive it, how to clean it
and who knows little about how or why the car actually works?
COUNSEL:It seems they had the latter group in mind. The car expert who
looked at my car before the eight judges did, said it could be converted
to a high speed car in any one of three ways:
(1)by drilling a bigger hole in the fuel line which he said was a
ten-minute job for anyone with "reasonable knowledge" of the car.
(2)by pulling out one pin and replacing the whole fuel injector assembly
with another one readily available at local car dealerships.
(3)by pulling out one pin and replacing the whole fuel injector assembly
with a toy car one readily available at local toy stores.
JUDGE:When the three judges spoke of "a relatively short period of time"
and "relative ease" did they say what "time" and "ease" were relative to?
COUNSEL:I don't think so.
JUDGE:I'll examine this car frame presently in front of me and let you
know in due time whether I'm satisfied it is a high speed car.
The Facts
The evidence in this hearing consists of:
(1)Some facts agreed upon by the litigants.
(2)Viva voce testimony under oath from the Respondent and two persons
having expert knowledge concerning the mechanical workings of firearms.
(3)Seven exhibits in document form and two in the form of metallic objects.
5 The hearing is in substance a s. 102 hearing. If the forfeiture sought
by the Applicant is to occur the Crown must prove through the evidence and to a
balance of probabilities the hollow metal object, Exhibit 1, seized from the
Respondent is a prohibited weapon within meaning of the Code.
6 All three witnesses testified in a candid and forthright manner.
Nothing about their behaviour during their presence at the hearing on March 3,
1994 suggested any one of them was trying to mislead the court in any way. Each
witness appeared to have been making an effort to be as accurate as possible in
giving testimony. Of the three the Respondent's firearms expert, Mr. D.A.
Tomlinson, was the witness best able to testify accurately about the history and
workings of Sten guns. His detailed knowledge about the mechanical aspects of
many other firearms too was obvious. The Applicant's firearms expert, Mr. A.J.
Voth, displayed the type of detailed knowledge one would expect a firearms
expert to have but it was clear he was not as familiar with the mechanical
workings of Sten guns as Mr. Tomlinson was. The Respondent himself displayed
some knowledge about the mechanical workings of firearms including Sten guns but
his knowledge was not equal to that of the two experts.
7 Established to a balance of probabilities by the hearing's evidence are
the following specific facts:
(1) In early September, 1991, Mr. Rogan, the Respondent, came upon an
opportunity to purchase a Sten gun that had been converted to fire in
semi-automatic fashion only.
(2) In an effort to make sure there was nothing illegal about the
proposed purchase he consulted gun dealers and the Commanding Officer of the
R.C.M.P. detachment at Vermilion, Alberta.
(3) Mr. Rogan showed the said Officer a photocopy of the previous owner's
registration of the Sten gun.
(4) The Officer said he didn't see why Mr. Rogan would have a problem to
register the gun and signed a form allowing the gun to be shipped to the
detachment for registration purposes.
(5) On October 19, 1991 Mr. Rogan attended at the detachment. He
observed a Constable handling the gun. The Constable finished filling out a
registration form for the gun and released the firearm to the Respondent.
(6) On January 18, 1992 the Constable phoned Mr. Rogan at his farm saying
he had a request to send the gun into the police laboratory for testing.
(7) The Respondent tried to convince the Constable to test the gun
himself on the Respondent's farm or at a local gun range.
(8) Mr. Rogan felt if his gun went into the laboratory for testing he was
unlikely to see it again and told the Constable about his concern.
8 This Court digresses to observe Mr. Rogan's fear was not necessarily
unreasonable. As has happened to him, in Ontario in 1989 a responsible citizen
with a special interest in collecting firearms, Bernhard Hasselwander, had his
gun seized from him by the police when he tried to register it as a restricted
weapon. He too was subjected to s. 102 forfeiture proceedings. Before the
Supreme Court of Canada could rule on the legality of his gun which was worth
approximately $1600 the police inadvertently destroyed it. In fact they
destroyed it even before the Court of Appeal for Ontario could rule on its
legality. That Ontario Court ruled the gun was not a prohibited weapon but said:
The appellant [Hasselwander] asks for an order directing payment of
the value of the weapon, which was destroyed after seizure. I know of no
authority to make such an order but would urge the Attorney General that
it seems fair to do so.
9 The Supreme Court of Canada ruled the gun to be a prohibited weapon.
Although that Court obviously would have known the police destroyed Mr.
Hasselwander's gun before legal proceedings concerning it were complete, the
Supreme Court of Canada in judgment said nothing critical of that police action;
nor did that Court by way of an order or suggestion say Mr. Hasselwander ought
to at least receive some compensation for the fact his gun was destroyed before
all legal proceedings concerning it were ended. See: R. v. Hasselwander (1993),
81 C.C.C. (3d) 471 (S.C.C.) sometimes referred to hereafter as the "Hasselwander
case" or "Hasselwander". See also the Hasselwander "Case on Appeal transcript
to the Supreme Court of Canada" pp. 1, 61, 81 and 107. The transcript is
hereafter called the "Hasselwander transcript".
(9) On January 18, 1992 Mr. Rogan turned over to the Constable just the
receiver of his Sten gun which receiver is now Exhibit 1 in the hearing.
(10) On January 20, 1992 the Constable phoned Mr. Rogan and said the
laboratory didn't need the rest of the gun to see if the gun had been properly
converted to fire in semi-automatic fashion only.
(11) On January 22, 1992 thinking he would not get his receiver back Mr.
Rogan sold the rest of the Sten gun's parts.
(12) Some days later the Constable contacted Mr. Rogan saying the
laboratory now wanted the rest of the parts for the Sten gun.
(13) Mr. Rogan never did get back his Sten gun parts from the person to
whom he sold them.
(14) Mr. Voth from the police laboratory eventually used other Sten gun
parts from the Edmonton and Vancouver police laboratories to make up a real
functioning gun which incorporated Mr. Rogan's Sten receiver as one of its
parts.
(15) The receiver, Exhibit 1, is a hollowed out piece of metal
approximately 12" long. The major portion of it looks like a pipe about 1" to 2"
in diameter.
(16) Exhibit 1 has no moving parts and by itself has no immediate ability
to fire live rounds of ammunition in any fashion. By itself it can no more
function as a real gun than a hammer or baseball bat can function as a gun.
(17) Exhibit 1, when assembled with a number of Sten gun parts including a
part called a "disconnector" will fire either in fully automatic fashion or in
semi-automatic fashion depending on the exact shape of the disconnector used.
(18) Without a disconnector the assembled gun would not fire in either
automatic or semi-automatic fashion for its trigger mechanism would not
function.
(19) Disconnectors that can fit within Exhibit 1, are "L"-shaped metal
pieces approximately 1116 of an inch thick and four and one-half inches long:
(20) Persons with a gunsmith's understanding of how all the parts of a
Sten gun function could over a period of hours dissemble a Sten gun made up with
Exhibit 1, reshape a "semi-automatic disconnector" into a "fully automatic
disconnector" and then reassemble all the parts into a functioning gun which
then would have the ability to fire in fully automatic fashion.
(21) Exhibit 1, being a receiver for a Sten Mark V gun, could also be made
to function as part of a fully automatic firearm if it lacked welding which at
present prevents its "selector button" from moving to a position that would
enable a fully assembled gun incorporating it to fire in a fully automatic
manner.
(22) Exhibit 1's selector button welding is substantial. Tampering with
that weld would damage the receiver to a point where its ability to function as
a Sten gun receiver would be lost.
(23) Obtaining any parts for a Sten gun would be difficult if one had no
parts for such a gun.
(24) Sten gun parts are not available in hardware stores or in common
every day gun shops.
(25) Such parts are available commercially but are uncommon.
(26) An average person having no special knowledge of firearms would have
to do much searching to obtain Sten gun parts including disconnector bars
suitable for use in Sten gun receivers.
(27) Virtually any firearm can be made to fire in fully automatic fashion
by skilled, knowledgeable persons who possess the desire, time and tools needed
to cut, shape, drill, and modify metal objects. By like means virtually any
firearm receiver can be incorporated with other gun parts into a real gun
capable of firing in fully automatic fashion.
(28) Just as some criminals with some understanding of firearms and
hacksaws easily convert sporting rifles and sporting shotguns into handguns,
persons possessing the desire and technical knowledge about how firearms
function can easily modify some common sporting rifles, sporting shotguns and
handguns to fire in fully automatic fashion.
(29) Above-mentioned facts 27 and 28 are known by the R.C.M.P. as a police
force and are known by other officials who administer Canada's gun laws.
(30) Unless one had the other Sten gun parts needed to make Exhibit 1 into
a real functioning gun it would be difficult and very time consuming to make
that receiver into any kind of real gun capable of firing gun ammunition in any
fashion.
(31) Lacking other Sten gun parts, to hand-make Exhibit 1 into a real
functioning gun of any kind one would need all of:
(a)a strong desire to do so;
(b)a technical knowledge of firearms' mechanisms much greater than that
needed to operate a factory-made gun or to take apart and re-assemble a
factory-made gun';
(c)metal working tools of various types;
(d)gunsmithing skills; and
(e)hours - if not days - of time to work on the task.
10 The evidence in this hearing fails to establish to a balance of
probabilities the following:
(1)That Exhibit 1, the receiver of the Sten gun purchased by the
Respondent and handled by R.C.M.P. Constable on October 19, 1991 did not
have its selector button solidly welded in place as part of the steps
taken at the time the receiver was being manufactured and before that
receiver was ever incorporated into a real functioning gun.
(2)That the Respondent's gun ever had the immediate ability to fire in
fully automatic fashion after it left its place of manufacture.
(3)That those who manufactured Mr. Rogan's specific gun ever intended it
to be capable of firing automatically.
(4)That Mr. Rogan, himself, ever intended to modify or attempted to modify
the gun to make it fire in fully automatic fashion.
11 The hearing's evidence fails to establish to any level of proof Mr.
Rogan is other than he appears to be - that is an intelligent, sane,
responsible, honest, middle-aged rural dweller who made a substantial and
sincere effort to comply with Canada's gun laws while purchasing the Sten gun
which led to this hearing.
The Law
12 What is the legal result when Canadian firearm legislation is applied
to those facts? In this present analysis the words "firearm" and "gun" are used
interchangeably as are the words "frame" and "receiver'. When the phrase "firing
automatically" and other similar phrases are used what is meant is "firing
projectiles in rapid succession during one pressure of the trigger". When the
phrase "fire non-automatically" and other similar phrases are used what is meant
is "all methods of fire other than firing automatically including semi-automatic
fire". When the term "machine gun" is used it refers to automatically firing
guns. Several judicial decisions must be taken into account in determining the
legal result of applying Canada's gun legislation to the facts established by
the evidence called in the hearing.
13 Before examining previous judicial decisions the fundamental legal
nature of two key definitions in the Code will be assessed. Those definitions
embrace both that which is real (i.e. truly possessing the essence of what it is
called) and that which is fiction (i.e. an intentional fabrication, a convenient
assumption that overlooks known facts in order to achieve an immediate goal).
14 Parliament has legislatively defined the word "firearm". In s. 84(1)
of the Code's English language version that definition, divided into its basic
components and read literally is:
1.any barrelled 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,
2.any frame or receiver of such a barrelled weapon
3.anything that can be adapted for use as a firearm.
15 The definition is externally convoluted with the legislative
definition of weapon. It employs the word "weapon" while the definition of that
latter term employs the word "firearm". Something in the nature of a circular
legal puzzle flows from that convolution. To know the Code's total definition of
"firearm" one must first know the Code's total definition of "weapon" but to
know that one must first know the Code's total definition of "firearm".
16 The first part of the definition of "firearm" is realistic in nature
despite the external convolution just described. It incorporates the factual
essence of firearms designed specifically for military use. According to the
Supreme Court of Canada it incorporates the legal essence of all firearms. See
R. v. Felawka (1993), 85 C.C.C. (3d) 248 (S.C.C.).
17 The second part of the definition is not realistic. Even apart from
any problems caused by definitional convolution it does not correlate with
reality. It is a legal fiction and one time removed from reality. A firearm
frame is no more a firearm in reality than a car frame is a car. Just as few
people are likely to think of a car frame as being a car; few are likely to
think of a gun frame as being a gun.
18 The third part of the definition, due to internal convolution, creates
an even bigger legal fiction than the second part does. It is twice removed from
reality. The s. 84(1) definition of "firearm" in its third part reads "anything
that can be adapted for use as a firearm". In effect the definition uses itself
to help define itself. As a matter of logic that internal convolution results in
the word "firearm" as used in the third part of the definition obtaining its
meaning through the words stated in the first and second part of the definition.
Logically in the third part of the definition the word "firearm" is merely a
short form substitute for all those words contained in the first and second part
of the definition. Read literally the third basic part of the Code's definition
of "firearm" makes not only anything that can be adapted for use as a real gun -
a firearm: it makes anything that can be adapted for use as a gun frame - a
firearm. Such an extended definition for a gun is very "unreal" or fictitious.
It is tantamount to saying not only are things that can be adapted for use as
cars - cars, things that can be adapted for use as car frames, such as the metal
beams needed to construct them, are cars too. Just as few people are likely to
think of metal beams as being cars, few people are likely to think of all those
things that can be adopted for use as gun frames as being guns.
19 As just illustrated when the fictitious portions of Parliament's
Criminal Code definition for "firearm" are accepted for what they say a very
wide legal net is cast - a net as likely to ensnare the innocent as it is likely
to protect them. Taken literally and to their grammatical and semantic limits
those fictitious portions would force Canadians to obtain a firearms acquisition
certificate (FAC) before they acquired any metal pipe, such as household gas
pipe, that could be adapted for use as a gun frame, which frame in turn could be
adapted for use as a gun by being incorporated into a real functioning gun.
20 The Code's s. 84(1) definition of "prohibited weapon" contains several
paragraphs. This analysis deals only with its paragraph (c) which itself
contains several basic parts and which is subject to major exceptions of a very
detailed nature. Those exceptions are noted but not analyzed. They are found in
s. 84(1) as paragraphs (c) and (c.1) within the definition of "restricted
weapon" and in s. 84(2).
21 The paragraph (c) portion of the Code's "prohibited weapon" definition
has six major components. Paragraph (c) expressed in basic form states all of
the following are prohibited weapons:
1.any firearm capable of firing automatically and not altered to fire in
non-automatic fashion.
2.any firearm capable of firing automatically but altered to fire
non-automatically.
3.any firearm assembled with the capacity of firing automatically and not
altered to fire non-automatically.
4.any firearm assembled with the capacity of firing automatically but
altered to fire non-automatically.
5.any firearm designed and manufactured with the capacity of firing
automatically and not altered to fire non-automatically.
6.any firearm designed and manufactured with the capacity of firing
automatically but altered to fire non-automatically.
22 On the surface and viewed generally parts 1, 3 and 5 seem realistic
while parts 2, 4 and 6 seem fundamentally fictitious. In a first reading parts
1, 3 and 5 appear to describe things which the lay public understand to be
machine guns even without having to refer to the Code. In contrast parts 2, 4
and 6 all seem to "talk out of both sides of their mouth". They appear to
describe things the lay public would say were once machine guns but would say
are no longer machine guns. Parts 2, 4 and 6 seem in their fundamental legal
nature equivalent to legislation that would provide: a car, a car frame, and
metal beams needed to make car frames are all high speed cars if they once were
high speed cars or once were some component of a high speed car.
23 To understand the fundamental legal nature of paragraph (c) one must
remember its six basic parts, in using the word "firearm", begin by inheriting
the legal fictions bound up in that word. How realistic or fictional those six
parts are after their point of commencement depends on what paragraph (c)'s
phrases and word "is capable of", "the capacity of" and "altered" mean. The Code
provides no definition.
24 If the two "capacity phrases" are interpreted broadly and the word
"altered" is interpreted narrowly, the Code's definition of "prohibited weapon"
becomes very unrealistic and fictitious indeed. Using that interpretive approach
pieces of plumbing pipe which could be made into a frame or receiver which in
turn could become one piece in a functioning gun which could be made into an
automatically firing gun would be prohibited weapons under paragraph (c) unless
altered by complete destruction in some fashion.
25 In contrast if the two "capacity phrases" are interpreted very
narrowly and the word "altered" is interpreted very broadly, paragraph (c) is
more realistic and less fictional in its fundamental legal nature. The
ramifications of this latter approach are several:
1.any legal need to pretend plumbing pipes and indeed any other objects
not being in reality gun parts, are firearms capable of automatic fire and
to neat them as such is avoided.
2.any legal need to pretend frames and receivers of and by themselves are
firearms capable of automatic fire and to treat them as such is avoided.
3.any legal need to treat as a prohibited weapon under paragraph (c) any
gun manufactured to fire in non-automatic fashion only and not changed to
fire automatically by its possessors is avoided.
4.The legal need to treat as prohibited weapons some guns originally
manufactured to fire automatically but truly and substantially changed to
fire only in non-automatic fashion is avoided.
5.Any legal need to neat as a prohibited weapon any gun manufactured to
fire in non-automatic fashion only but which through breakage, wear or
other accidental means took on the ability to fire automatically would be
avoided so long as its possessor did not attempt to use it in that fashion
and either got the gun repaired to its original non-automatic condition,
dismantled it, or destroyed it.
6.An opportunity would be created for some persons to legally possess some
guns that for all practical purposes would be machine guns (and would be
regarded as such by the lay public) despite Parliament's desire that they
not do so. That legal opportunity of course would not accrue to those
persons unable for any reason to obtain a firearms acquisition certificate
for they would still need that document to legally acquire any firearm not
exempted from the FAC provisions.
7.The legal ability and need to treat as a prohibited weapon any firearm
meant by its possessor to be a machine gun and having the immediate
ability to fire in automatic fashion would be maintained subject to s.
84(2)(d) and other statutory exceptions.
26 It should be apparent from this analysis of the Code definitions
mentioned that if private citizens are to avoid being unjustifiably convicted of
crime when they intend no crime some control must be placed on Parliament's "gun
control" legislation. Indeed it seems if the Canadian Charter of Rights and
Freedoms is to be complied with some control and restriction must be placed by
the judiciary on Parliament's legal ability and present inclination to
fictionalize or to pretend things when enacting gun control laws.
27 Among other things the Charter provides:
s.1 The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed
by law as can be demonstrably justified in a free and democratic society.
s.7 Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
s.8 Everyone has the right to be secure against unreasonable search or
seizure.
s.11 Any person charged with an offence has the right
(d)to be presumed innocent until proven guilty according to law in a fair
and public hearing by an independent and impartial tribunal.
s.12 Everyone has the right not to be subjected to any cruel and
unusual treatment or punishment.
28 Does all of Canada's present gun legislation comply fully with the
Charter, especially if with its fictions it is given the broad interpretation
those strongly opposed to any possession of guns by private citizens might want?
29 For example concerning s. 7 of the Charter can it be said that
depriving responsible persons of their lawfully acquired guns without
compensation when they have committed no crime does not in practical effect
cause insecurity of the person? How secure in person can any citizen be living
under a law of that type? In a very fundamental way doesn't the security of each
person ultimately depend on the security of their property. To express the idea
in lay terms: man may not be able to live by food alone but at least it
prevents starvation. Can it be said gun storage regulations so stringent they
remove the practical ability of home-owners to defend themselves in their own
homes with firearms in circumstances of immediate danger to life do not
interfere with the security of person of numerous law-abiding home-owners?
30 With reference to s. 8 of the Charter can it be said for example a law
which allows confiscation of lawfully acquired firearms from responsible
citizens without compensation is a reasonable law? Isn't it now trite Charter
law that for a seizure to be reasonable the law upon which it is based must be
reasonable? One pauses to wonder how the public and the judiciary would react if
Parliament passed a law requiring all persons possessed of high speed cars to
surrender those vehicles to the Government without compensation or face criminal
prosecution.
31 Concerning s. 11 of the Charter how fair are those firearms provisions
that are so complicated the Nation's top jurists struggle to understand them -
especially when the legislation is backed by penal sanctions? If unreasonable
search law can prevent a search based upon it from being reasonable for purposes
of the Charter, can an unfair law prevent a trial based on it from being fair
within meaning of s. 11 in the Charter?
32 Looking at s. 12 of the Charter can it not be said that a law which
forces responsible citizens to surrender up their lawfully acquired and lawfully
used firearms without compensation is a law which subjects them to cruel and
unusual treatment or punishment? Isn't that exactly what those regulatory Orders
which converted a large number of previously non-restricted and non-prohibited
guns directly into the "prohibited weapon" category have done? See Prohibited
Weapons Order, No. 11 SOR/92-465. It is perhaps worth noting those who have the
legal power to make such Orders have even gone so far as to make a certain type
of stock for guns itself a "prohibited weapon". The stock is one called a "bull
pup". See Prohibited Weapons Order, No. 9 SOR/92-463. Because of that Order
those who previously lawfully owned such stocks suddenly had to destroy or
surrender them to Government or face the peril of criminal prosecution. What
lawful justification can exist for not at least compensating them in such cases?
33 If some of Canada's current gun laws do interfere with the rights and
freedoms guaranteed in the Charter are those portions saved by s. 1? Do they
satisfy the judicial tests stated in R. v. Oakes (1986), 24 C.C.C. (3d) 321
(S.C.C.)?
34 It is both understandable and laudable Parliament would want to
protect the Canadian citizenry from gun misuse and gun crime but that public
protection rationale can only take Parliament so far. In the democracy that is
Canada, it is both legally and politically important Parliament be fair and
reasonable with all those individuals who comprise Canada's population. The
Charter makes it legally important and those periodic events called federal
elections make it politically important.
35 As said decades ago in another context in Hamilton v. Long (1903), 2
I.R. 407 (K.B.) per Gibson, J. at 416:
"Hard cases make bad law, and fiction must stop somewhere."
36 From modern day judgments previous to this judgment it appears
Canadian judges generally recognize legal fiction must stop somewhere. They
seem to recognize Parliament's pretending in the matter of gun legislation must
be somewhat controlled by the judiciary if fairness and reason are to be
maintained in such legislation. Forced to work with legislation often very
difficult to comprehend because of its detailed and convoluted form, they
generally have done a reasonable job in bringing common sense to bear on
Parliament's fictions and in providing fair reasonable resolutions in specific
disputes.
37 I now turn to list and summarize several firearms decisions of some
relevance to the present dispute:
(1) R. v. Levson (1958), 26 W.W.R. (N.S.) 495 (B.C. Co. Ct.)
38 Levson had purchased what he thought was an unfireable revolver. He
was charged under the Code provisions of that time for unlawfully receiving
delivery of a revolver before it was registered in his name. At that time the
Code did not define "revolver" but did say a "firearm" meant "a pistol,
revolver, or a firearm that is capable of firing bullets in rapid succession
during one pressure of the trigger".
39 A police armourer said the object was a .455 cal. Webley revolver with
four parts missing, one part broken and one part non-functional due to rust. The
armourer went on to say even if the missing and non-functional parts of the
weapon were replaced, the action of the remainder of the working parts would be
so retarded because of paint and rust the revolver would fail to work properly.
40 Crown counsel argued the capacity reference in the Code's definition
had no relevance since the definition of "firearm" made a revolver a separate
and distinct article.
41 In that context the judge ruled the item was not a revolver. In doing
so he said whether the article could function as a revolver was an important
aspect of the matter and observed it was apparent from the armourer's report no
matter what was done to the article it could not function as a revolver.
(2) R. v. Cairns (1962), 40 W.W.R. (N.S.) 365 (B.C.C.A.)
42 Cairns was charged with having an unregistered firearm. The Code at
that time said a "firearm" means "a pistol, revolver, or a firearm that is
capable of firing bullets in rapid succession during one pressure of the
trigger". The .22 calibre revolver in dispute had all the attributes of a
revolver except it was not in firing condition because the hammer nose
underneath the firing pin was missing. That condition could have been rectified
either by installing a new hammer or by repairing the one it had. Repairs
necessary to put the weapon back into operating condition could have been made
by an experienced person in 15 to 20 minutes.
43 The British Columbia Court of Appeal did not say the item was a
revolver because the "firearm" definition specifically listed revolvers. Instead
the court compared the disputed item to a motor vehicle with one wheel missing
and ruled the .22 had not lost its character of being a revolver merely because
a readily replaceable part was missing.
(3) R. v. Brouillard (1980), 59 C.C.C. (2d) 81 (Que. C.A.)
44 Brouillard was charged under the Code with using a firearm while
committing the indictable offence of robbery. He had used a .22 calibre Crosman
pellet revolver which at the time he committed the robbery had a CO2 gas
cartridge in it but had no pellets in the chamber. At the time the Code defined
"firearm" as it does now in s. 84(1) except now the word "projectile" is used
where back then the word "missile" was used.
45 The deciding judgment held the pellet gun to have been a firearm at
the time of the robbery saying at p. 82 of the above-noted report:
The question then is, what is a firearm? The answer is given by the
definition in s. 82(1). The full text of this definition is given, in
both languages, in my colleague's opinion.
I particularly note that "firearm" is defined as including "any frame or
receiver of such a barrelled weapon and anything that can be adapted for
use as a firearm". It would seem that Parliament intended that the
word should have a wide interpretation, and, with all respect for the
contrary opinion, I cannot accept that a weapon ceases to be a firearm
merely because it is unloaded. I find it illogical to suppose that it was
the intention of Parliament in enacting s. 83(1) to cover something that
is not actually a firearm, if it can be adapted for use as such, and yet
not to cover an unloaded pistol that merely requires loading to make it a
deadly weapon.
The s. 82(1) referred in the quote is now s. 84(1) and s. 83(1) referred to is
now s. 85(1).
46 The dissenting judgment stated Brouillard's gun was not a firearm at
the time of the robbery in that the legislative texts applicable to the case
were not unambiguous and therefore any serious doubt should benefit Brouillard.
(4) R. v. Haines (1981), 86 A.P.R. 428 (N.S.S.C. App. Div.)
47 Haines, a part-time gun dealer, stocked guns and gun parts. In
December, 1978 police seized from him a large quantity of guns and gun parts. He
was subjected to charges, one being possession of prohibited weapons, including
a Sten submachine gun, contrary to what is now s. 90(1)(a) of the Code.
48 One gun expert, Staff Sergeant Lapiere, stated this concerning the
Sten which he said he had assembled from parts seized from Haines:
He said that this type of submachine gun is made out of parts and
that there were approximately six different boxes of parts which had been
seized. The principal parts were the magazine housing, which contained
the serial number, the breech block, the spring and the back plate, the
magazine, the stock and the barrel. It took him about fifteen minutes to
find the different parts from the different boxes and place them together.
The submachine gun was then fully operable. It was a weapon which was
designed for quick assembly.
49 Another gun expert, Mr. Allen, gave evidence described as follows:
Mr. Allan explained in his evidence that the Sten gun was a
military weapon used by the services during the war and that all members
of the service who carried guns were expected to be able to dismantle and
assemble this type of gun. He said that once you have taken one of the
weapons apart you could take a thousand apart, and one of the tests during
the war was to assemble these guns in the dark. All parts were
interchangeable so that the weapon could be cannibalized.
The Haines judgment went on to say:
Mr. Allen, who is also a gun dealer, gave evidence to the effect
that very often guns were shipped to customers as parts in separate
packages so that they would not be classified as weapons during the
transfer. It was intended that they be reassembled upon receipt where they
could be legally possessed. He indicated that there were many types of
kits with instructions for assembly of the guns that were used as well.
All three quotes appear at p. 435 of the Haines case.
50 In December of 1977 Haines had taken his large gun collection to
corporal House, the R.C.M.P. officer in charge of the Lunenburg Detachment, for
registration purposes. The Haines decision at p. 436 says this is what happened:
In the course of having these weapons registered, the appellant said
that he asked Corporal House whether he would register the magazine
housing of a Sten gun. The Corporal said that he refused to register the
housing as it would not by itself constitute a firearm. He also admits
that when it was suggested that other parts of automatic weapons by
themselves be registered that he refused on the same basis. He did say,
however, that if all of the parts of a prohibited weapon had been
presented to him in broken down form he would have considered registering
them as a complete weapon.
51 In the above context the three appellate judges upheld an earlier
ruling that Haines had possessed prohibited weapons. Through Hart, J.A. they
expressed the opinion that the determination of whether or not a particular
thing is a prohibited weapon "is to be determined by applying the facts to the
Code's definition of "firearm". At pp. 431 and 432 in the reported decision they
said the Criminal Code defines "firearm" as:
... any barrelled weapon from which any shot, bullet or other
missile 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
barrelled weapon and anything that can be adapted for use as a firearm;
At pp. 436 and 437 they stated:
If a firearm is partially or completely dismantled but can be
rendered "capable of firing bullets" by the simple reassembly of its parts
or the making of some minor alterations to its works, I would think it
could be found as a fact that it was a prohibited weapon. If, on the
other hand, it was in such a condition that it could not be made
inoperable because of lack of all parts or because of physical changes
made to its structure which would be difficult to repair that it may cease
to be in fact a "weapon". There would have to be at the same time and
place the necessary ingredients for an operable firearm together with
the ability to place it in an operable form.
It would seem to me that all these elements were present at the
appellant's residence. The parts were all there to create the operable
prohibited weapons, and the appellant as a dealer in guns and a person
with a special interest in them would, in my opinion, be expected to be
able to render them operable, particularly, in the case of the Sten guns
which merely required the placing together of approximately six standard
parts. (See R. v. Cairns (1962) 40 W.W.R. (N.S.) 365, British Columbia
Court of Appeal)
I do not think it can be said that the R.C.M.P. corporal who refused
to grant registration to the housings of the Sten guns themselves in any
way misled the appellant into believing that parts of prohibited weapons
kept separately could not render the possessor guilty of possession of the
weapons themselves. According to Mr. Allen it was apparently common
practice in the trade to break down weapons for various purposes with the
knowledge that they would eventually be reassembled as operable weapons.
In my opinion it cannot be said that the appellant would not have had this
type of general knowledge and would not have had sufficient mens rea to
justify his conviction for the offence as charged.
52 The Haines judgment doesn't say Corporal House was wrong in taking the
position he did concerning the weapons registration requests of Haines. To the
contrary, the judgment seems to support the position Corporal House took. I
refer back to the last stated quotation from the Haines judgment. It states if a
firearm were in such a condition that it could not be made operable because of
physical changes made to its structure which would be difficult to repair that
it may cease to be in fact a "weapon". It further states in effect that there
would have to be at the same time and place the necessary ingredients for an
operable firearm together with the ability to place it in operable form for it
even to be a "weapon". (Emphasis mine)
