Our client was recently found not guilty of criminal charges for possession of a handgun after a trial in Ottawa. The case illustrates the difficulties in proving that a non-recovered gun was in fact a real “firearm”.

Background

Our client’s friend pulled out an alleged handgun and pointed it at the victim’s face.  The victim disarmed the assailant.  Our client allegedly picked up the gun and ran away with it. The victim told the police that a real handgun was used. The gun was never found by the police.

Based on the victim’s testimony that he believed the gun was real, our client’s friend was convicted at his own trial of using an actual firearm. Would our client be convicted too?

Our client’s handgun trial in Ottawa: Not guilty

We prepared an extensive cross-examination to show that the victim could not identify a real handgun. In the separate trial of our client, the victim admitted under cross-examination by Brett McGarry that:

1. He was in a “very poor” position to say whether the gun was real, a fake, or an air-gun.

2. He no knowledge or training with respect to firearms.

3. He could not describe any mechanical parts of the alleged handgun.

4. He could not say whether or not the handgun had a barrel or opening.

5. He had only a brief chance to see the gun, while his adrenalin was pumping and he was distracted.

As a result of Brett McGarry’s cross-examination of the victim, the judge ruled that the item was not a real gun and our client was acquitted.

How can the Crown prove that an unrecovered firearm is real?

In Canada, the Criminal Code defines as “firearm” as “a barrelled weapon from which any shot, bullet or other projectile 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.”

If the police recover a firearm, the Crown will have the gun analyzed by an expert to prove that it is in fact a real firearm. In many cases, such as robberies or wiretap cases, the alleged gun is never recovered by the police. How then can the Crown prove the gun is real?

The case law is clear that someone can be found guilty of possessing a firearm that is never recovered. Some factors that a judge will look at in deciding whether a non-recovered gun is in fact a real firearm include:

 1. How good an opportunity did the victim have to look at the gun?

2. How was the gun brandished or used by the accused?

3. What words were said by the accused? For example, did the accused suggest the gun was real or threaten shoot the gun?

4. Did the accused act like the gun was real? For example, did the accused rack or cock the gun?

5. How much experience does the victim have with guns?

6. How confident was the victim that the gun was real?

7. Is there evidence that the accused had access to guns?

8. Is there expert evidence that the gun was real?

9. Was ammunition present?

10. Was the gun fired? 

Charged with a gun offence in Ottawa?

Contact us now to discuss the best defence for your criminal firearm charges.