On April 23, 2010, private investigators working on behalf of the Workplace Safety Insurance Board were watching the respondent. The evidence of one of the investigators was that after running a number of errands, the respondent met with another man. Following a short conversation, the respondent pulled out what looked like a pistol from the side pocket of his jacket, and appeared to point it at the man. He then returned the pistol to his jacket, went back to his car, and drove away. The investigators were concerned about what they had seen and informed the Ottawa Police Service.

The police went to the respondent’s trailer. The officer who ultimately found and seized the apparent pistol in question testified that he saw a black handgun resting on a chair in plain view in a shed beside the trailer. Further investigation determined that the handgun was a Crosman Pro77 airgun that fires .177 calibre spherical BBs propelled by means of compressed air from a canister. The airgun was fully functional and loaded with a partly used CO2 cartridge. There was no ammunition in the magazine. The person the respondent had pointed the gun at was a friend. The respondent had not pointed the gun to threaten or intimidate him.

A firearms examiner who gave expert evidence agreed in cross-examination that this type of airgun can be purchased without the purchaser’s having to produce any documentation, as long as the muzzle velocity does not exceed 500 feet per second (“ft./s.”). The respondent’s airgun had an average velocity of 261.41 ft./s.

The expert further testified that this particular airgun is built to closely resemble a Steyr MA1 9mm pistol, a conventional semi-automatic handgun.

The respondent was charged with the following offences: handling a firearm or imitation thereof in a careless manner, contrary to s. 86 of the Criminal Code; pointing a firearm, contrary to s. 87; carrying a weapon or imitation thereof for a purpose dangerous to the public peace, contrary to s. 88; and carrying a concealed weapon or imitation thereof contrary to s. 90.

The trial judge held that the Crown had failed to prove that the airgun was used or intended for use in any of the ways specified in s. 2. It was therefore not a weapon, and could not be a firearm. It was also not shown to be a replica firearm.

On appeal, the main issue was the proper interpretation of the terms “firearm” and “weapon” in the Criminal Code. I.e. must an object (to use a neutral word) that falls within the definition of “firearm” in s. 2 also meet the definition for “weapon” in the same section. The interpretation issue arises from the fact that each definition refers to the other.

The judge on appeal concluded there was no ambiguity in the definition of firearm in s. 2 when regard is had to the legislative history and the context and scheme of the legislation. Barrelled objects that meet the definition of firearm in s. 2 need not also meet the definition in para. (a) or (b) of weapon to be deemed to be firearms and hence weapons for the various weapons offences in the Code, such as the offences charged against the respondent in this case.

Accordingly, the appeal was allowed, on counts 1, 3 and 4 (careless handling of a firearm, carrying a weapon for a purpose dangerous to the public peace, and carrying a concealed weapon) and a new trial ordered on those charges.