Weapons — Prohibited weapons — Automatic weapon — Prohibited weapon defined to include firearm capable of firing bullets in rapid succession during one pressure of trigger — Semi-automatic machine-gun having plate welded to it to prevent it from being moved to automatic position — Weapon not falling within definition — Term ''capable'' meaning capable in its present condition — Cr. Code, ss. 84, 102. [page427]
The appellant appealed from the decision of the summary conviction appeal court confirming an order declaring a weapon to be a prohibited weapon and thus, forfeited to Her Majesty under s. 102(3) of the Criminal Code. The weapon in question was an Uzi machine-gun. The machine-gun had a metal plate welded to the trigger mechanism to prevent it from being moved into the automatic position. Section 84(1) of the Criminal Code defines a ''prohibited weapon'' as a firearm, not being a restricted weapon, ''that is capable of firing bullets in rapid succession during one pressure of the trigger''. The trial judge found that the weapon had the capability to fire bullets in rapid succession during one pressure of the trigger, in view of the evidence that the restraining plate could be removed by anyone with reasonable knowledge of the weapon itself in approximately 10 minutes. As well, the trigger mechanism could be entirely removed and replaced with a fully automatic assembly.
On appeal from the order of forfeiture, held, Tarnopolsky J.A. dissenting, the appeal should be allowed.
Per Carthy J.A., Goodman J.A. concurring: In determining the meaning to be ascribed to the word ''capable'', it was significant that Parliament in defining ''firearm'' had used the expression ''anything that can be adapted for use as a firearm''. There is obviously a distinction between the terms ''adapted'' and ''capable''. The simplest identification of the difference between the two terms is to say that ''capable'' means capable in its present condition, rather than a capability which may be achieved by adaptation. The plate welded to the trigger mechanism prevented automatic firing and thus, the weapon was not a prohibited weapon.
Per Tarnopolsky J.A. dissenting: The weapon in this case could be converted in a matter of minutes to fire bullets in rapid succession during one pressure of the trigger. Such a firearm had the inherent and readily accessible capacity to fire in a fully automatic mode, and was properly found to be a prohibited weapon. Accordingly, the appeal should be dismissed.
R. v. Mai and Cornish, Ont. H.C.J., December 14, 1984 (unreported) folld;
R. v. St. Amour and Marstar Armaments International Inc., Ont. Ct. (Gen. Div.), October 16, 1990 (unreported) overd;
Cases referred to:
R. v. Ferguson (1985), 20 C.C.C. (3d) 256, 16 C.R.R. 21, 10 O.A.C. 5, 14 W.C.B. 237; R. v. Covin (1983), 8 C.C.C. (3d) 240, 3 D.L.R. (4th) 558, [1983] 1 S.C.R. 725, 37 C.R. (3d) 193, 61 N.S.R. (2d) 271, 50 N.R. 378, 11 W.C.B. 199; Re Global Armaments Ltd. (1990), 105 A.R. 260, 10 W.C.B. (2d) 39; R. v. Kulyk, Ont. H.C.J., December 19, 1989 (unreported); R. v. Rutkowski (1990), 112 A.R. 183, 11 W.C.B. (2d) 443; Joy v. Chief Constable of Dumfries and Galloway, Scots Law Times, October 21, 1966, p. 93
Statutes referred to:
Criminal Code, R.S.C. 1985, c. C-46, ss. 84(1), definitions ''firearm'', ''prohibited weapon'', 90, 102(3)
Appeal from a judgment of Higgins J. dismissing an appeal from a judgment of Payne Prov. Ct. J., 9 W.C.B. (2d) 426, declaring a weapon to be a prohibited weapon and thus, forfeited to Her Majesty pursuant to s. 102(3) of the Criminal Code.
[page428]
C. Martin, Q.C., for accused, appellant.
B. McNeely and E. Maksimowski, for the Crown, respondent.
Goodman J.A. concurs with Carthy J.A.
Tarnopolsky J.A. (dissenting): This is an appeal from the decision of Higgins D.C.J. who, on May 18, 1990, dismissed an appeal from the decision of Payne Prov. Ct. J. who had, on January 29, 1990, ordered seizure and forfeiture of the appellant's Mini-Uzi sub-machine-gun on the ground that it was a ''prohibited weapon'' within the meaning of s. 84(1) of the Criminal Code. The Provincial Court judge had ordered seizure and destruction of the weapon on the ground that it was easily capable of being transformed into a fully automatic weapon. As the weapon has, in fact, been destroyed, the appellant seeks not just a declaration that the weapon is not a fully automatic firearm and, therefore, not a prohibited weapon, but also sufficient payment to allow replacement with an identical model.
The provision in s. 84(1), which is pertinent to this appeal, is the following definition of a ''prohibited weapon'':
| (c) | any firearm ... that is capable of firing bullets in rapid succession during one pressure of the trigger ... |
The learned Provincial Court judge found that the Mini-Uzi in this case was a ''firearm'' and that it was a semi-automatic, in the sense that normally one bullet was fired with one pressure of the finger, but that it was capable of being made fully automatic in one of three ways:
(1) adjustment of a restraining plate;
(2) replacement of the trigger mechanism with spare parts which are fully automatic, or even
(3) replacement of the trigger mechanism with that of a replica, even toy, gun.
The first method could take up to 10 minutes; the other two, once the replacement part had been obtained (and it was readily available), might take about one minute. As the trial judge expressed it, ''the adaptability of fully automatic parts to this weapon remains an easy exercise''. He concluded that ''because of this capability it is in fact a prohibited weapon''.
His conclusion, in effect, was that the word ''capable'', in the definition of a ''prohibited weapon'', included the ''capability'' of easy alteration or adaptability. The appellant, of course, argues that the definition of a ''prohibited weapon'' does not employ the word ''adapted'', as does the definition of a ''firearm'', or as does another of the definitions of a ''prohibited weapon''. Also, the word [page429] ''altered'', is not included, as it is in one of the definitions of a ''restricted weapon''. Therefore, the word ''capable'', argues the appellant, must refer to the weapon as it is sold.
The Crown argues that the word ''capable'' refers not to ''capacity'' at a given point in time, but rather to ''inherent capacity''. One of the supporting examples given is that of a man tied to a chair. He ''may not be able to move, but it is still true to say that he is capable of walking''. Here, one is concerned with a firearm ''which has an inherent and readily accessible capacity to fire in a fully automatic mode''.
In support of its position the Crown referred us to a number of cases. Of these, the highest authority directly on point and relied upon by the respondent is that of the Alberta Court of Appeal in Re Global Armaments Ltd., released April 10, 1990 [reported 105 A.R. 260; summarized 10 W.C.B. (2d) 39], concerning seizure of, inter alia, 46 Uzi sub-machine-guns. It is true that these had originally been fully automatic weapons, but changes had been made to make them usable as single-shot weapons. Thus, the question before the Provincial Court judge was whether they could be reconverted so as to become fully automatic and so prohibited. Nevertheless, the issue was essentially the same as that in the case before us, i.e., whether a firearm, which can easily be converted into a fully automatic form, is a prohibited weapon within the meaning of s. 84(1)(c). The Provincial Court judge referred to the fact that this ''was a relatively easily accomplished task by either experts or non-experts'', and concluded that they had ''retained their status as prohibited weapons''. The Alberta Court of Appeal upheld this decision by simply asserting [at p. 260]: ''The modified weapons could be reconverted in a matter of minutes to fire bullets in rapid succession during one pressure of the trigger.''
Similarly, in a judgment of the Ontario High Court of Justice, R. v. Kulyk, December 19, 1989 (unreported), the conversion process was described by Farley J. as ''easy (no tools are required), quick (as a matter of a fraction of a minute) and obvious''. In another decision of the Ontario High Court, R. v. St. Amour and Marstar Armaments International Inc., released October 16, 1990 (unreported), Ewaschuk J. held that ''capacity'' in the relevant cases had been interpreted to include ''situations admitting of easy conversion''.
The appellant relies mainly on three cases. The earliest of these is R. v. Mai and Cornish, released December 14, 1984 (unreported). This is a decision of the High Court of Ontario, in which Montgomery J. dismissed an appeal from a refusal of forfeiture by a Provincial Court judge on the ground that ''at the [page430] relevant time the weapons were not 'capable' of rapid succession of firing by one pressure of the trigger within the meaning of s. 82 [now s. 84] of the Code ''. He based this finding upon the fact that, as found by the judge below, the selection lever of the weapons in question ''had been solidly welded so they could not be put into a fully automatic position or setting''. There is nothing to indicate how permanent or temporary the change was.
The second case relied upon by the appellant, in which the weapon was not found to be prohibited, is the Alberta case of R. v. Rutkowski, released November 15, 1990 (unreported) [since reported 112 A.R. 183; summarized 11 W.C.B. (2d) 443]. However, in that case Marshall Prov. Ct. J. specifically distinguished the situation before him from those where ''certain additions, repairs or alterations can, easily and quickly'' result in a firearm being considered to have ''present ability''. There was no evidence that the weapon could be converted into a fully automatic firearm, while there was uncontradicted evidence of the accused that he never did and never intended to convert or alter the firearms in question.
The third case relied upon by the appellant is Joy v. Chief Constable of Dumfries and Galloway, Scots Law Times, October 21, 1966, p. 93. In that case the sheriff-substitute, one S.A. Lockhart, considered an appeal by Major Joy from the refusal of the Chief Constable of Dumfries and Galloway to grant him a firearms certificate in respect of two rifles and a carbine on the grounds that: (a) Major Joy had illegally possessed the firearms without a certificate and so ''was unfitted to be entrusted with a firearm''; (b) the carbine was capable of adaptation to become a fully automatic, and thus, prohibited weapon, and (c) the carbine was unsuitable for shooting deer because it ''lacked accuracy and had insufficient muzzle velocity''.
The first ground posed no barriers as the sheriff-substitute had already found, at p. 93, that:
It is not in dispute that [Major Joy] is a man of excellent character, that he is competent to handle firearms, and that he is an outstanding sporting shot. |
It is no doubt the latter ''capacity'' of Major Joy which led to the decision (at p. 95) that, following ''a considerable amount of evidence, both expert and otherwise'', one could conclude that, although the carbine ''was not the ideal weapon for the purpose [i.e., the shooting of deer] ... in the hands of a good shot, satisfactory results could be obtained''.
On the second ground, which is relevant to this appeal, the sheriff-substitute concluded (at p. 95) that the chief constable ''has gone off the rails again''. A ''well-known firearms expert'' from the [page431] Glasgow police had testified that the carbine, which was a semi-automatic weapon, could be made a fully automatic weapon by carrying out ''certain comparatively simple modifications''. However, the learned sheriff-substitute was ''not at all convinced that the modifications were as simple as contended, at any rate for a person who was not an expert, and I am also satisfied that [Major Joy] has no intention of carrying out such modifications''. He must have been referring to Major Joy as the person who was not an expert, and not himself. And, despite his other comments in recognition of Major Joy's sterling character and expertise as a ''sporting shot'', he must have been convinced that Major Joy was not an expert in carbine modification. In any case, we have no means of knowing how complicated or uncomplicated the required modification was.
In considering all of these cases, I have come to the conclusion that the approach taken in Re Global Armaments Ltd. was the right one.
I am supported in this conclusion by two other decisions which, although not specifically concerned with facts exactly as in this appeal, do consider ''capacities'' of weapons in relation to the question of whether they are ''firearms'' used in a prohibited manner.
In R. v. Ferguson (1985), 20 C.C.C. (3d) 256, 16 C.R.R. 21, 10 O.A.C. 5, this court considered an appeal by an accused who had been arrested in a motor vehicle and who, at the time of arrest, had a sawed-off shotgun. He was convicted of, inter alia, possession of a prohibited weapon. On behalf of the court, Lacourciere J.A. dealt with this aspect of the case in the following terms (at pp. 262-3):
The expert evidence was that the firing mechanism was easily obtainable and could be inserted in 30 seconds to one minute. In view of that evidence we are satisfied that the inoperable gun in this case could be adapted for use as a firearm from which bullets capable of causing serious bodily injury or death could be discharged and that being a ''firearm'' it was a ''prohibited weapon'' as defined in s. 82(1)(d). |
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If this were not so, anyone in possession of a firearm falling within the prohibited category, could evade conviction under s. 88(1) by removing a portion of the weapon thereby rendering it inoperable, while retaining the ability to render it operable on short notice. This would clearly be contrary to the purpose of the legislation. We would not therefore give effect to this ground of appeal from the appellant's conviction on count 3. |
In his judgment, Lacourciere J.A. referred to the decision of Lamer J. for the Supreme Court of Canada in R. v. Covin (1983), 8 C.C.C. (3d) 240, 3 D.L.R. (4th) 558, [1983] 1 S.C.R. 725. This case concerned a charge of using a firearm during commission or [page432] attempted commission of an indictable offence or flight therefrom. The test applied by Lamer J. at p. 243 was:
In my view the acceptable amount of adaptation and the time required therefore for something to still remain within the definition is dependent upon the nature of the offence where the definition is involved. The purpose of each section should be identified and the amount, nature and the time span for adaptation determined so as to support Parliament's endeavour when enacting that given section. |
Since the weapon used was an inoperable pellet gun from which several essential parts were missing, Lamer J. suggested, at pp. 243-4:
If inoperable, then, as regards s. 83, it is a firearm if, given the nature of the repairs or modifications required and the availability of the parts on the scene, whatever was used could, during the commission of the offence, have been adapted by an ordinary person or by the accused if possessing special skills so as to be capable of firing and of causing serious injury. |
It is true that in this particular case the pellet gun was held not to be a ''firearm'' within the meaning of the Criminal Code , but this determination is clearly based upon the following conclusion of Lamer J. at p. 244:
In the present appeals, there is no evidence that there were at the time and place of the offence or during the flight thereafter, to use the words of Hart J.A. in R. v. Haines (1981), 45 N.S.R. (2d) 428 at p. 436, ''... the necessary ingredients for an operable firearm together with the ability to place it in operable form''. |
In our case, the time dimension was not limited as it was in the Covin case. One cannot say that ''the necessary ingredients'' and ''the ability'' to change the nature of the weapon were not available. Possession, as my colleague Lacourciere J.A. said in Ferguson , supra, at p. 262, is a continuing offence so that, for purposes of s. 82(1)(d) (in our case s. 84(1)(c)):
... the acceptable amount of adaptation and the time-span required to render the gun operable is longer than that required for a s. 83 offence, where the adaptation has to be made on the scene in order to support the charge of using a firearm during the commission or attempted commission of an indictable offence or during the flight thereafter. |
In the result, although I would grant leave to appeal, I would dismiss it.
Carthy J.A.: This is an appeal from the order of Higgins D.C.J., confirming the order of B.E. Payne Prov. Ct. J., declaring a weapon to be a prohibited weapon and thus forfeited to Her Majesty under s. 102(3) of the Criminal Code.
Section 84(1) of the Criminal Code defines a ''prohibited weapon'' as, among other things: [page433]
| (c) | ... any firearm, not being a restricted weapon described in paragraph (c) of the definition of that expression in this section, that is capable of firing bullets in rapid succession during one pressure of the trigger... |
(Emphasis added.)
In the same section ''firearm'' is defined as:
''firearm'' means 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; |
(Emphasis added.)
An Uzi sub-machine-gun is certainly a firearm and the question before the court is whether its possession is prohibited, and whether it is thus subject to forfeiture, or if it alternatively falls into the category of a restricted weapon which must be registered.
The Uzi sub-machine-gun is manufactured in two models, automatic and semi-automatic, the only essential difference being that the semi-automatic, which is the subject of this appeal, has a metal plate spot welded to the trigger mechanism to prevent it from being moved into the automatic position and thus ''firing bullets in rapid succession during one pressure of the trigger''.
The Provincial Court judge found this weapon had the capability to fire automatically upon the basis of evidence which satisfied him:
(a) the restraining plate could be removed by anyone with reasonable knowledge of the weapon itself in approximately 10 minutes;
(b) the trigger mechanism can be removed as a unit by pushing out a pin, and replaced with a fully automatic assembly available at certain gun shows;
(c) the trigger mechanism from a replica model, intended for wall mounting, could be used to convert this gun to a fully automatic weapon, albeit one that would be unsafe to use because of inferior materials.
In interpreting a written document, here a statute, first impressions can often be the most reliable. It is the simplest form of analysis and, unless the issue itself is complicated and requires deeper searches for meaning, probably reflects what the author intended. Here, Parliament has used the expression ''anything that can be adapted for use as a firearm'' in the definition of firearm, and the expression ''that is capable of firing bullets in rapid succession ...'' in the definition of prohibited weapon (emphasis added). There is an intended difference between the two and the simplest identification of that difference is to say that ''capable'' [page434]
means ''capable in its present condition'' rather than a capability which may be achieved by adaptation.
The Crown contends that this is too literal and narrow a construction to serve the purpose of s. 102 of the Code , which does not create a criminal offence, and is intended to serve the public interest by seizure and forfeiture of extremely dangerous weapons. This misses the point that the same definition applies to s. 90, which makes it an offence punishable by up to five years' imprisonment for possession of a prohibited weapon. It should be noted as an aside that the appellant is a collector who presented this gun for registration when it was seized.
The Crown is concerned that this manufacturer is assembling these semi-automatics with knowledge that there is a market for illegal automatics and is using a narrow interpretation of the definition to reach that market legally. The unstated fear is that these guns will be converted in the hands of criminals. This may be true, but it does not add to or take away from the interpretive process. It is a matter for legislative attention.
The Crown contends that the word ''capable'' is ambiguous and should be interpreted as including any firearm that has an inherent and readily accessible capacity to fire in a fully automatic mode. That argument would be easier to apply if it were not for the contrasting word ''adaptable'' in the definition of firearm. Anything that fits the Crown's definition also is adaptable. Where does one mark out a difference between capable and adaptable? It would have to be at a point between the two, which might be identified as ''readily adaptable''. Part of the Provincial Court judge's reasoning in finding this weapon to be automatic was that the trigger mechanism could be replaced with that from a replica. The evidence indicates that the trigger mechanism is 40% of the whole gun. Taken to its logical conclusion ad absurdum, this means that a replica on a wall is a prohibited weapon because by adding a barrel from a real Uzi it can be readily rendered an automatic. This example is merely illustrative of the difficulties presented when a simple formula of interpretation gives way to accomplish the suggested purpose of the statute.
I prefer the simple approach, both because it gives the words their ordinary meaning and because it may serve to clarify in the public mind whether or not it is an offence to be in possession of a particular weapon, a clarity that does not emerge from cases decided to date.
There are no decisions of the Ontario Court of Appeal on point. R. v. Ferguson (1985), 20 C.C.C. (3d) 256, 16 C.R.R. 21, 10 O.A.C. 5, dealt with the definition of firearm. The Supreme Court of [page435] Canada decision in R. v. Covin (1983), 8 C.C.C. (3d) 240, 3 D.L.R. (4th) 558, [1983] 1 S.C.R. 725, provides an example of the difficulty in applying the word ''adaptable'' under the definition of ''firearm'' but says nothing about the definition of ''prohibited weapon''. In R. v. Mai and Cornish, Ont. H.C.J., released December 14, 1984, Montgomery J. held that a welded plate preventing automatic firing rendered a prohibited weapon a restricted weapon. He looked to the condition of the weapon at the relevant time and, in support of my concern as to the difficulty of applying any other test, pointed out that a shotgun is not even a restricted weapon yet may be ''adapted'' to become a prohibited weapon by the comparatively easy step of sawing off a portion of the barrel. In R. v. St. Amour and Marstar Armaments International Inc., a judgment of the Ontario Court (General Division), released October 16, 1990, Ewaschuk J. held that ''capacity'' includes ''situations admitting of easy conversion from semi-automatic to the fully automatic state''. There were several other cases cited by counsel but none adds measurably to the analysis.
I agree with the conclusion of Montgomery J. in Mai and Cornish , supra, and would therefore set aside the orders below. The appellant 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. Appeal allowed.