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Case Name:
R. v. Williams

Between
Her Majesty the Queen, Appellant, and
Cordio Williams, Respondent

[2009] O.J. No. 1692

2009 ONCA 342

248 O.A.C. 323

95 O.R. (3d) 660

95 O.R. (3d) 670

244 C.C.C. (3d) 138

Docket: C42937

Ontario Court of Appeal


Toronto, Ontario

R.J. Sharpe, R.A. Blair and P.S. Rouleau JJ.A.

Heard: December 1, 2008.


Judgment: April 28, 2009.

(32 paras.)

Criminal law -- Criminal Code offences -- Weapons offences -- Possession of prohibited or


restricted firearm or ammunition -- Appeal by Crown from acquittal of accused on a charge of
possession of a loaded prohibited firearm allowed -- Offence included prohibited and restricted
firearms -- Crown was not required to prove that the accused knew that the length of the loaded
handgun in his possession met the threshold for a prohibited as opposed to a restricted firearm --
The knowledge that the handgun was loaded was sufficient -- Criminal Code, ss. 91, 95.

Criminal law -- Elements of the offence -- Mens rea -- Possession of prohibited or restricted
firearm or ammunition -- Appeal by Crown from acquittal of accused on a charge of possession of
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a loaded prohibited firearm allowed -- Offence included prohibited and restricted firearms --
Crown was not required to prove that the accused knew that the length of the loaded handgun in his
possession met the threshold for a prohibited as opposed to a restricted firearm -- The knowledge
that the handgun was loaded was sufficient.

Criminal law -- Constitutional issues -- Canadian Charter of Rights and Freedoms -- Legal rights
-- Procedural rights -- Delay -- Remedies for denial of rights -- Specific remedies -- Variation of
sentence -- Possession of prohibited or restricted firearm or ammunition -- Appeal by Crown from
the acquittal of the accused on a charge of possession of a loaded prohibited firearm allowed --
Crown's delay of three years in perfecting the appeal was not grounds for staying the conviction,
but relevant in sentencing the accused to time served for another weapons conviction -- Canadian
Charter of Rights and Freedoms, ss. 7, 24(1).

Appeal by the Crown from the acquittal of Williams on a charge of possession of a loaded
prohibited firearm. Williams was a passenger in a car stopped by the police, who suspected the
driver was armed. Williams emerged from the car with a loaded handgun in the waistband of his
pants. It was a prohibited firearm. It was loaded but the safety was on. He was charged with eight
offences but convicted only of possession of a firearm without a license or registration certificate.
He was acquitted of the charge of possession of a loaded restricted firearm because he convinced
the judge that he lacked the necessary mens rea, as he was unaware that the barrel of his handgun
was shorter than 105 millimetres, the demarcation point between a prohibited firearm and a
restricted firearm. The judge held that the Crown failed to prove that Williams had the requisite
knowledge that the handgun was prohibited as opposed to restricted, necessitated by the Crown
particularizing the charge as possession of a prohibited firearm. The Crown took three years to
perfect its appeal from Williams' acquittal.
HELD: Appeal allowed. There was no doubt the handgun in Williams' possession was a prohibited
firearm based on its barrel length. Williams had the mens rea necessary for a conviction for
possession of a loaded firearm because he knew his handgun was loaded. The offence included
both restricted and prohibited firearms. The language of the statute made it clear that Parliament
intended to catch all unauthorized loaded handguns. Requiring the Crown to prove knowledge of
the barrel length was an undue burden that would almost prevent the Crown from ever achieving a
conviction on the charge. The sentence imposed for the conviction was to run concurrently to the
sentence Williams had already served for his other offence. The Crown's delay in prosecuting the
appeal, while it did not warrant a stay of the charge, was relevant to sentencing.

Statutes, Regulations and Rules Cited:


Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, s. 7, s.
11(b), s. 24(1)
Criminal Code, R.S.C. 1985, c. C-46, s. 84(1), s. 88(1), s. 91(2), s. 95(1), s. 95(2)

Appeal From:
On appeal from an acquittal entered by Justice Harvey Spiegel of the Superior Court of Justice,
sitting without a jury, on January 10, 2005.
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Counsel:
John Neander, for the appellant.
Leslie Maunder, for the respondent.

The judgment of the Court was delivered by


R.A. BLAIR J.A.:--
I. OVERVIEW
1 Acting on a tip from a confidential informant, the Guns and Gang Unit of the Toronto Police
made a high-risk takedown of a motor vehicle thought to be driven by an individual armed with a
weapon. Mr. Williams was not that individual, but he was a passenger in the vehicle. When he
emerged from the vehicle, at the request of the police, he was carrying a loaded handgun in the
waistband of his pants.
2 The handgun was a Krieghoff Suhl 9 millimetre Luger - a prohibited firearm. It had
ammunition in the magazine and in the chamber ready to fire, although the safety was on.
3 Mr. Williams was charged with eight counts relating to the unauthorized possession and storage
of the handgun, but he was convicted on one count only - possession of a firearm without a licence
or a registration certificate. He was acquitted on the charge of possessing a loaded prohibited
firearm. The other charges were either dismissed or withdrawn at the request of the Crown.
4 On the appeal, the Crown attacks only the acquittal for possession of a loaded prohibited
firearm. The issue is narrow: did the respondent have the necessary mens rea for that offence? The
respondent says he did not because he was unaware that the barrel was shorter than 105 millimetres,
which is the demarcation point between a prohibited firearm and a restricted firearm under the
Criminal Code. He therefore did not know that the firearm was "prohibited." The Crown chose to
particularize the offence by charging possession of a prohibited firearm, he says, and was
accordingly required to prove that he had the requisite knowledge that the handgun was prohibited
as opposed to restricted.
5 The trial judge agreed. I do not, and would allow the appeal for the reasons that follow.
II. ADDITIONAL FACTS & ANALYSIS
Mens Rea for Possession of a Loaded Prohibited Firearm
Relevant Provisions of the Criminal Code
6 When the respondent was charged, s. 95(1) and (2) of the Criminal Code read as follows:

Possession of prohibited or restricted firearm with ammunition

95(1) Subject to subsection (3) and section 98, every person commits an offence
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who, in any place, possesses a loaded prohibited firearm or restricted firearm,


or an unloaded prohibited firearm or restricted firearm together with readily
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accessible ammunition that is capable of being discharged in the firearm, unless


the person is the holder of
(a) an authorization or a licence under which the
person may possess the firearm in that place; and

1b) the registration certificate for the firearm.

Punishment

1) Every person who commits an offence under subsection (1)

1a) is guilty of an indictable offence and liable to imprisonment for a term not
exceeding ten years and to a minimum punishment of imprisonment for a
term of one year; or
2b) is guilty of an offence punishable on summary conviction and liable to
imprisonment for a term not exceeding one year.
7 Section 84(1) of the Code defines a "prohibited firearm," so far as is relevant for the appeal, as
"a handgun that ... has a barrel equal to or less than 105 mm in length."
Respondent's Argument that he Lacked the Requisite Mens Rea
8 There is no dispute that the Krieghoff Suhl 9 millimetre Luger in question is a prohibited
weapon. Its barrel measures 102.07 millimetres. The respondent admits the handgun in question is a
prohibited weapon. He admits it was found on his person. He admits there was ammunition in the
gun and that it was ready to be fired. He admits that he did not have a licence or a registration
certificate for the gun, or "any of that stuff." And he admits that he knew he was not allowed to
"have any kind of gun, whether it was prohibited or restricted or legitimate".
9 The respondent testified, however, that he had never measured the gun or made any enquiries
about it, and had no reason to believe it was 102.07 millimetres in length. He had had the handgun
for about two weeks prior to his arrest.
10 It is clear that the offence created by s. 95(1) of the Code is an offence requiring mens rea. It is
punishable by imprisonment - indeed, a mandatory minimum sentence in the case of indictment -
and there is nothing in the section to indicate that no mental element is required: see R. v. Phillips
(1979), 44 C.C.C. (2d) 548 (Ont. C.A.); R. v. Archer, (1984) 6 C.C.C. (3d) 129 (Ont. C.A.); R. v.
Prue, [1979] 2 S.C.R. 547. Phillips and Archer concerned possession of a prohibited weapon - a
knife that opened automatically by gravity or centrifugal force - under what was then s. 88(1) of the
Code (now s. 91(2)), which provided that "every one who has in his possession a prohibited
weapon" commits an offence. With respect to the mens rea of that offence, Martin J.A. said this in
Archer, at p. 132:

The mens rea required to constitute the offence under s. 88(1) consists in either
knowledge or recklessness with respect to the characteristics of the knife in
question which, in fact, make it a prohibited weapon.
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11 From these authorities the respondent argues that he did not have knowledge of the
characteristics of the handgun that make it a prohibited firearm, i.e., that its barrel measured 105
millimetres or less. He therefore lacked the requisite mens rea.
The Respondent had the Requisite Mens Rea
12 In my view, the mens rea under s. 95(1) is satisfied where the offender knew that he or she
was in possession of a loaded firearm. Knowledge of the length of the handgun's barrel is not part
of the mens rea required for the offence created by s. 95(1), and consequently, the trial judge erred
in acquitting the respondent on this count.
13 Section 95(1) makes it an offence to possess "a loaded prohibited firearm or restricted
firearm ...," unless the person possessing the firearm has a licence to do so and a registration
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certificate for the firearm. There are not two offences - possession of a loaded prohibited firearm,
and possession of a loaded restricted firearm. Rather, there is only one offence: possession of a
loaded firearm, whether prohibited or restricted. This is made abundantly clear by the French
version of the Code which uses the "either/or" structure in relation to the type of firearm:

95(1) ... commet une infraction quiconque a eu sa possession dans un lieu


quelconque soit une arme à feu prohibée ou une arme à feu à autorisation
restreinte chargées ... [Emphasis added.]
14 Moreover, the structure of the language creating the s. 95(1) offence is different than that of s.
91(2) creating the offence of possession of a "prohibited weapon" (emphasis added), which is the
offence that was at issue in Phillips and Archer. When those cases were decided, the predecessor of
s. 91(2) provided that "every one who [had] in his possession a prohibited weapon" was guilty of an
offence. When the respondent was charged, s. 91(2) - the comparable provision - read:

[E]very person commits an offence who possesses a prohibited weapon, a


restricted weapon, a prohibited device, other than a replica firearm, or any
prohibited ammunition, unless the person is the holder of a licence under which
the person may possess it.
15 From the structure of s. 91(2) - using as it does the commas that s. 95(1) lacks - it is evident
that the provision creates different offences: possession of a prohibited weapon; possession of a
restricted weapon; possession of a prohibited device; possession of prohibited ammunition. For
purposes of the appeal, I need not determine what "knowledge ... with respect to the characteristics"
of the weapon or device - to use the language of Archer - may be necessary to bring the offender
within one or another of the s. 91(2) offences. Those offences are not in play here.
16 It is clear that s. 95(1) creates only one offence, the gravamen of which is the possession of a
loaded firearm . It matters not whether the firearm is "prohibited" or "restricted." The offence is
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the same. The potential penalties are the same under s. 95(2). The mens rea required for conviction
under s. 95(1), therefore, is simply knowledge by the offender that he or she is in possession of a
firearm - in this case, a handgun - that is loaded. Here, there is no doubt the respondent knew he
was in possession of a loaded handgun. It is therefore unnecessary to consider whether some other
mental state - for example, wilful blindness - would be sufficient to establish "knowledge".
17 This interpretation is consistent with the language of the Code and with the purpose of the
provision and the intent of Parliament. The offence created by s. 95(1) is designed to protect the
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public from the danger posed by people with loaded firearms. It is intended to catch all
unauthorized loaded handguns. A "prohibited firearm" - in the context of handguns - is defined in s.
84 as a handgun that has the characteristics set out therein. A "restricted firearm" is defined in s. 84
(again, in the context of handguns) to mean "a handgun that is not a prohibited firearm".
Consequently, a handgun is either a restricted or a prohibited firearm. There are no other handguns
under the Code. That is why the language forbids the possession of "a loaded prohibited firearm or
restricted firearm" (emphasis added).
18 To adopt the respondent's argument that the Crown must prove mens rea in relation to the type
of weapon specified in the indictment would create an unwarranted hurdle for the Crown. Accused
persons could always assert that they had not measured or made any enquiries about the length of
the handgun's barrel. Accordingly, regardless of the way in which the charge is framed, the Crown
would rarely, if ever, be able to obtain a conviction. Where the charge is possession of a loaded
prohibited firearm, the argument will be that the accused person did not know that the length of the
barrel was 105 mm or less and therefore lacked the requisite mens rea that the gun was a prohibited
firearm. Where the charge is possession of a loaded restricted firearm, the same argument would
be made with respect to the length over 105 mm. If the Crown charged possession of a loaded
prohibited firearm or restricted firearm - adopting the exact language of the offence created - the
accused will submit that the Crown must prove knowledge of one or the other, but he or she just did
not know either! To give effect to the language and purpose of s. 95(1), and to the intention of
Parliament, it is only necessary to give to the mens rea component its common sense meaning: the
requisite mental element will be established where the Crown proves that the accused was
knowingly in possession of a loaded prohibited or restricted handgun that he or she was not legally
entitled to possess. Knowledge that the barrel of the handgun measures 105 millimetres, or more or
less than that length - i.e., of whether the handgun is "prohibited" or "restricted" - is immaterial.
19 There is some support for this approach to the mens rea component of the s. 95(1) offence in
the jurisprudence arising from drug-related prosecutions. In trafficking, importing or possession
cases, it is not necessary for the Crown to demonstrate that the accused knew he or she possessed
(or was importing or trafficking in) the very prescribed drug identified in the indictment provided
the accused knew the drug was a narcotic - for example, the actual drug involved is cocaine whereas
the accused believed it to be hashish, or is LSD but was believed to be mescaline: see R. v. Burgess,
[1970] 2 O.R. 216 (C.A.); R. v. Blondin (1971), 2 C.C.C. (2d) 118 (B.C.C.A.), aff'd (1971), [1971]
S.C.J. No. 42, 4 C.C.C. (2d) 566; R. v. Custeau, [1972] 2 O.R. 250 (C.A.); R. v. Kundeus, [1976] 2
S.C.R. 272. In Burgess, at p. 217, Brooke J.A. said:

[We] are all of the opinion that in these circumstances where the evidence is clear
and consistent only with the conclusion that the accused knew the substance that
he had in his possession was indeed a drug the possession of which was contrary
to the statute, the fact that he mistakenly believed the drug to be hashish rather
than opium is of no moment.
20 Paraphrased in the context of the case at bar, it can be said that "the evidence is clear and
consistent only with the conclusion that the accused knew [the loaded handgun] that he had in his
possession was indeed [a loaded handgun] the possession of which was contrary to the statute", and
therefore that "the fact that he mistakenly believed the [handgun measured more or less than 105
millimetres] is of no moment."
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21 Under the narcotics control regime, the offence in question forbids the possession of (or the
importing of or trafficking in) a narcotic. Which narcotic does not matter, as long as it is included in
a forbidden schedule. Similarly, under s. 95(1) of the Code, the offence is the possession of a loaded
firearm. Whether the firearm is prohibited or restricted does not matter. The common denominator
in the comparison between the two types of offences is that the actus reus (possession of a
forbidden item) and the mens rea (knowledge of the characteristics that make it a forbidden item) do
not relate to different crimes but rather to the same crime in each case.
22 It is fundamental that where the actus reus of a criminal offence is proved, there must also be
proof of the mens rea of the same crime. In his text, Criminal Law, 2d ed. (London: Stevens & Sons
Limited, 1961), at p. 129, Glanville Williams states:

What are different crimes for the purpose of the rule depends primarily upon the
arrangement of the statute; each section presumptively creates a different crime
or group of crimes. It is possible for a single sentence of a section to create a
number of different crimes .... If a section is thus held to create different crimes,
it would not be possible to transfer the malice from one crime to another even
within the same section. [Emphasis added.]
23 An example of a number of different crimes being created by a single sentence in a section of
the Code is s. 91(2) discussed above. For the reasons I have articulated above, however, the
language of s. 95(1) creates only one offence: possession of a loaded firearm (prohibited or
restricted). Since a handgun - the loaded firearm in this instance - must by definition be either a
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prohibited or a restricted firearm, convicting the respondent of the offence with which he was
charged (possession of a loaded prohibited firearm) knowing that he was in possession of a loaded
handgun, does not involve transferring to him an intention relevant to one crime in order to convict
him of another.
24 Given the foregoing, it is not necessary to deal with the Crown's alternative argument based
upon wilful blindness.
25 I would therefore give effect to the Crown's submission that the trial judge erred in holding
that the respondent's ignorance of the length of the barrel of the handgun in question negated the
mens rea necessary for a conviction under s. 95(1) of the Criminal Code. I would allow the appeal
on that ground.
Delay in Prosecuting the Appeal
26 The respondent argues that, if we conclude the trial judge erred and that the mens rea for the
offence charged has been made out, we should quash the acquittal but order a stay of the
proceedings on abuse of process grounds - applying ss. 7 and 24(1) of the Charter - because of the
delay in prosecuting the appeal.
27 That there has been considerable delay cannot be gainsaid. The Crown launched its appeal on
January 19, 2005. The transcripts - consisting of 1063 pages - were completed on November 8,
2005. But the appeal was not perfected until September 23, 2008, almost three years after the
transcripts were ready and almost three years after the respondent had finished serving his sentence
on the charge on which he had been convicted.
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28 The length of the Crown's delay here is, indeed, troubling. Mr. Neander forthrightly and
candidly accepts the blame, acknowledging that although there were some extenuating personal
circumstances that impeded his progress in preparing the appeal, the delay is unjustifiable.
29 Appellate delay is not captured by the guarantee to be tried within a reasonable time under s.
11(b) of the Charter. However, extreme delay in perfecting a Crown appeal, and accompanying
prejudice, may contravene fundamental notions of justice and engage the abuse of process
protections of s. 7. A stay of proceedings, nonetheless, is a rarely exercised remedy, and I am not
persuaded that the delay in the circumstances of this case either constitutes a s. 7 breach or, if it
does, warrants such a remedy. As was the case in R. v. B. (L.) (2007), 86 O.R. (3d) 730 (C.A.),
where the Crown delay was 2 1/2 years, the charges are serious, society has a strong interest in
having the respondent tried (and, where properly found guilty, convicted), and there is no evidence
of specific prejudice.
30 Although I would not grant a stay on grounds of delay, as indicated below, delay in
prosecuting the appeal does have a bearing on sentence.
III. DISPOSITION
31 In the end, I would allow the appeal on the mens rea ground, set aside the acquittal on count 1,
and enter a conviction in its stead. I agree with Ms. Maunder, as does the Crown, that in these
circumstances the conviction on count 5 (possession of a firearm without a licence) should be
stayed on Kienapple principles.
32 The appellant was sentenced to 9 months in custody in addition to 15 months credit for pre-
trial custody on count 5 - the equivalent of 2 years' imprisonment. He has served his sentence. Mr.
Neander - partly in recognition of the delay issue, I believe - does not seek anything further in
respect of sentence. In the circumstances, then, I would simply impose a similar sentence on count 1
and order that it run concurrently with the sentence imposed, and served, on count 5 which has now
been stayed.
R.A. BLAIR J.A.
R.J. SHARPE J.A.:-- I agree.
P.S. ROULEAU J.A.:-- I agree.

1 Neither of which is pertinent here.

2 The provisions also encompass possession of "an unloaded prohibited firearm or restricted
firearm together with readily accessible ammunition that is capable of being discharged in
the firearm". That portion of s. 95(1) is not at issue here, but the same principles would
apply.

3 I make this statement in the context of this appeal.


As noted above, s. 95(1) creates two offences: possession of a loaded firearm, whether
prohibited or restricted, and possession of an unloaded firearm (together with readily
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accessible ammunition), whether prohibited or restricted. The latter offence is not pertinent
here, however.

4 Again, see footnote 3 above.