R. v. DONAWA, 2024 ONCA 279, APRIL 17, 2024.
FACTS: The accused was charged with a number of firearm offences. The evidence at the trial established that “[d]uring a roadside stop, the police found a handgun in the fanny pack belonging to the respondent. The handgun was a Swiss Arms SA 22. It contained a magazine with multiple rounds of .22 calibre ammunition.
The trial judge entered acquittals, concluding that it had not been proven beyond a reasonable doubt that “the item seized by the police from the fanny pack of Amari Donawa, is a firearm because making it operational, according to the CFS [Centre of Forensic Sciences] expert, required special expertise, considerable time, and parts not readily available”.
The Crown appealed.
HELD: The appeal was allowed, convictions entered and the matter was remitted for sentencing. The Ontario Court of Appeal concluded that the trial judge “the trial judge made a number of errors in reaching his conclusion” (at paragraphs 6 to 9):
First, the trial judge does not make any reference to the fact that there was a magazine in the handgun when the police found it. The CFS expert testified that the handgun was operable if a magazine was inserted in it. Second, the trial judge did not make any reference to the evidence that the respondent gave, in his police statement, that he had fired the handgun on previous occasions at a gun range. Third, a firearm is defined in the Criminal Code as either an operable firearm or anything that can be adapted into an operable firearm. The trial judge focussed entirely on the second definition but failed to consider whether the handgun, as found, was operable, based on the evidence.
The issue raised here is directly addressed in R. v. Watkins (1987), 33 C.C.C. (3d) 465 (B.C.C.A). In that case, the accused was charged with firearms offences for possession of a handgun that was found without a magazine. The issue was whether the fact that the handgun did not have a magazine meant that the handgun was not a firearm under the definition contained in the Criminal Code. McLachlin J.A. rejected that submission. She said, at para. 40:
If the gun is complete and capable of firing when loaded, then, in my opinion, it should be considered a firearm under s. 82(1) of the Criminal Code.
The respondent urges us not to follow the reasoning in Watkins. No persuasive argument is advanced why we should adopt a different approach than that enunciated by the British Columbia Court of Appeal. The analysis and conclusion in Watkins are sound. Watkins is also consistent with the seriousness that Parliament has indicated should be applied to offences involving the use and possession of handguns.
On a separate point, the trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 31-32. The trial judge was obliged to explain how his conclusion could be rationalized in light of the evidence that the magazine was in the handgun and that the respondent had previously fired the handgun.
