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A recent British Columbia Court of Appeal decision examined the legal status of a pellet gun and whether it qualified as a “replica firearm” or a “firearm” under the Criminal Code

What Happened?

A member of the Royal Canadian Mounted Police arrested the suspect on outstanding warrants. While searching the suspect during the arrest, the officer found an Umarex Px4 Storm pellet gun tucked into the left side of the suspect’s waistband. The pellet gun was seized and the suspect was charged with possessing a “replica handgun”, which he was prohibited from doing. He was not charged with possessing a “firearm”.

Two previous prohibition orders had been made against the suspect. The first had been made on March 29, 2007, under s. 109(3) of the Criminal Code, following the suspect’s conviction on two robbery charges. It prohibited him from possessing any firearm, cross-bow, restricted weapon, ammunition, and explosive substance for life. The second prohibition order had been made on April 23, 2008, under s. 110 of the Criminal Code, following the suspect’s conviction for possession of a weapon for a dangerous purpose. It prohibited him from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, and prohibited device for ten years.

At trial, the pellet gun was marked as an exhibit. It had the following stamped on its side:

“WARNING

Not a toy.  Misuse or careless use may cause serious injury or death.

Before using read owner’s manual available free from Umarex U.S.A.,

Fort Smith, AR. Beretta Trademarks licensed by Beretta Italy.”

The Law

Section 84(1) of the Criminal Codeprovides the following definition of “replica firearm”:

“‘replica firearm’ means any device that is designed or intended to exactly resemble, or to resemble with near precision, a firearm, and that itself is not a firearm, but does not include any such device that is designed or intended to exactly resemble, or to resemble with near precision, an antique firearm”

Lower Court Decision

At trial, the judge accepted that the pellet gun closely resembled a Beretta semi-automatic pistol and qualified as a “replica firearm”. With respect to mens rea, the trial judge held it was not necessary for the Crown to prove the suspect was aware the pellet gun was a prohibited device; it was sufficient that he knew he was in possession of the pellet gun.

The suspect was convicted. 

The suspect appealed the conviction, arguing that the Crown failed to prove the pellet gun was a “replica firearm”. He contended the pellet gun fell within the definition of “firearm”, for which he had not been charged. He also stated that the Crown failed to prove the mens rea element of the offence, because his intent was to possess a pellet gun, not a replica firearm. Lastly, he said that the trial judge erred in reversing the burden of proof because the Crown failed to lead evidence that the pellet gun was not an actual firearm.

Court of Appeal Decision

At the outset, the court stated that the Crown was required to prove beyond a reasonable doubt that the pellet gun was a replica firearm as that term is defined in s. 84(1) of the Criminal Code. In other words, the Crown had to establish that the pellet gun: (1) resembled with near precision an actual firearm; and (2) was itself not a firearm. With respect to the second criterion, the Crown had to establish that the gun was not capable of causing serious bodily injury or death.

Ultimately, the court agreed with the suspect’s argument that the Crown had failed to prove that the pellet gun was not a firearm capable of causing harm, stating:

“Given that [the Crown’s witness’] report is silent with respect to the capability of the pellet gun seized from [the suspect] to cause harm, the trial judge’s finding that it is a replica firearm is unsupported and unreasonable. As a result, [the suspect]’s conviction cannot stand.

As the foregoing analysis is dispositive of this appeal, I need not address the mens rea issue.

I appreciate some may find the result in this case incongruous, as [the suspect] was prohibited from possessing both firearms and replica firearms. The result, however, turns on how the Crown chose to word the charge and the evidence it tendered in support of that charge.”

The court therefore allowed the appeal and entered an acquittal.

Get Advice

Being criminally convicted can have a significant impact on your life, leading to a permanent record, significant fines, and/or jail time. This can seriously impact your reputation, your employment opportunities, and even your ability to travel outside of Canada. If you have been charged with a criminal offence, it is imperative to consult with a knowledgeable criminal defence lawyer as soon as possible to learn about your options and to protect yourself.

At Campbell Bader LLP, we can help. Our team of exceptional Mississauga criminal defence lawyers has been representing clients charged with criminal offences since 1999. We are highly skilled litigators and have conducted trials in the Superior Court and Ontario Court of Justice. We have the knowledge, experience, and skill-set to effectively defend clients charged with even the most serious of offences. We will listen, consider, and provide you with practical options. Contact us online or at 905-828-2247.