R. v. DONAWA, 2025 SCC 10, MARCH 26, 2025.
FACTS: The accused was acquitted at trial of a number of firearm offences. The trial judge held that a handgun upon which the charges were based was not a “firearm” as defined in the Criminal Code.
On appeal to the Ontario Court of Appeal (2024 ONCA 279), the circumstances involved were described as follows (at paragraphs 2 to 4):
During 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 police sent the handgun to the Centre of Forensic Sciences (“CFS”). For reasons that are not explained, the police did not send the magazine or the ammunition to the CFS. The CFS was able to test the handgun to determine that it was operable by using a magazine from a similar model of handgun which the CFS had in their inventory.
At trial, the expert from the CFS testified that a Swiss Arms SA 22 handgun cannot be fired easily without the magazine because it has a safety mechanism intended to prevent the trigger from operating without the magazine being inserted. However, with a magazine inserted, the handgun operates properly.
The appeal was allowed and the acquittals set aside. The Court of Appeal concluded that the handgun was a firearm. The Ontario Court of Appeal adopted the conclusion of the British Columbia Court of Appeal in R. v. Watkins (1987), 33 C.C.C. (3d) 465, in which it concluded:
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 accused appealed as of right to the Supreme Court of Canada.
HELD: The appeal was dismissed. In a brief oral judgment, the Supreme Court stated:
The only issue on this appeal as of right is whether the handgun found by the police in the appellant’s car was a firearm as defined in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46. We are unanimously of the view it was a firearm. We substantially agree with the decision of the Ontario Court of Appeal. Accordingly, we would dismiss the appeal.
