R. v. Kennedy (A.A.), (2016) 323 Man.R.(2d) 265 (CA)

• Judge: Hamilton, Beard and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 04, 2015
• Jurisdiction: Manitoba
• Citations: (2016), 323 Man.R.(2d) 265 (CA);2016 MBCA 5

R. v. Kennedy (A.A.) (2016), 323 Man.R.(2d) 265 (CA);

      657 W.A.C. 265

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. JA.018

Her Majesty The Queen (appellant) v. Allan Austin Kennedy (accused/respondent)

(AR 15-30-08331; 2016 MBCA 5)

Indexed As: R. v. Kennedy (A.A.)

Manitoba Court of Appeal

Hamilton, Beard and Monnin, JJ.A.

January 14, 2016.

Summary:

The accused was charged with several offences, including those respecting a revolver and an assault rifle. Respecting the revolver, he was charged with unauthorized possession of a prohibited firearm (count 7). Respecting the assault rifle, he was charged with unauthorized possession of a prohibited device (count 8), storage of a firearm contrary to the regulations (count 13), unauthorized possession of a prohibited firearm (count 14), and possession of a prohibited or restricted firearm with readily accessible ammunition (count 15). The trial judge acquitted the accused of count 7. The accused pleaded guilty to counts 8 and 14 and was convicted of counts 13 and 15, but the trial judge stayed counts 13 and 15 pursuant to the Kienapple principle. The accused was sentenced to an 18 month conditional sentence on count 14 and lesser concurrent sentences on the remaining convictions. The Crown appealed the acquittal, the stays of conviction, and the conditional sentence.

The Manitoba Court of Appeal allowed the appeals. The accused was convicted of all five counts. A conditional stay was entered on count 14. The accused was sentenced to three years' imprisonment, less credit for time already served.

Criminal Law - Topic 76

General principles - Res judicata (multiple convictions for same subject matter precluded) - General principles - [See Criminal Law - Topic 1439 ].

Criminal Law - Topic 78

General principles - Res judicata (multiple convictions for same subject matter precluded) - Where the offences are of different degrees of gravity - [See Criminal Law - Topic 1439 ].

Criminal Law - Topic 82

General principles - Res judicata (multiple convictions for same subject matter precluded) - Bars to raising the defence - [See Criminal Law - Topic 1439 ].

Criminal Law - Topic 1439

Firearms - General - Unlawful possession - Kennedy was charged with a number of offences respecting an assault rifle, including storage of a firearm contrary to the regulations (count 13), unauthorized possession of a prohibited firearm (count 14), and possession of a prohibited or restricted firearm with readily accessible ammunition (count 15) - Kennedy pleaded guilty to count 14 and was convicted of counts 13 and 15, but the trial judge stayed counts 13 and 15 pursuant to the Kienapple principle - The Crown appealed the stays of conviction - The Manitoba Court of Appeal allowed the appeal - Count 13 did not involve the "same transaction" as counts 14 and 15, and its elements were different - The trial judge also erred in law when he stayed count 15 instead of count 14 - All of the elements of the count 14 offence (Criminal Code, s. 91(1)) were encompassed in the count 15 offence (s. 95), and the count 15 offence had the additional element of having a loaded prohibited weapon or one with readily accessible ammunition that was capable of being discharged in the firearm - Count 15 was the more serious offence - No distinction was to be made between a guilty plea and a conviction for the purpose of applying the Kienapple principle - The court entered convictions on counts 13 and 15 and entered a stay of conviction on count 14 - See paragraphs 23 to 31.

Criminal Law - Topic 1441

Firearms - General - What constitutes a firearm - Kennedy was charged with unauthorized possession of a prohibited firearm (a British Bulldog revolver), contrary to s. 91(1) of the Criminal Code - He argued that the revolver was an antique firearm and therefore, in accordance with s. 84(3), it was not a firearm for the purpose of s. 91 - Section 84(1)(a) defined "antique firearm" as "any firearm manufactured before 1898 that was not designed to discharge rim-fire or centre-fire ammunition and that has not been redesigned to discharge such ammunition" - The trial judge acquitted Kennedy, finding that the Crown's expert witnesses were unable to determine whether the revolver was manufactured before or after 1898 - The Manitoba Court of Appeal allowed the Crown's appeal and entered a conviction - The trial judge erred in law by only considering the evidence concerning the year of manufacture - He failed to consider the requirement that a firearm could not be designed or re-designed to discharge rim-fire or centre-fire ammunition - The unchallenged evidence of the Crown's expert was that the revolver fired centre-fire ammunition - For that reason alone, the revolver did not fall within the definition of antique firearm - See paragraphs 17 to 22.

Criminal Law - Topic 1442

Firearms - General - Storage of - Contrary to regulation - [See Criminal Law - Topic 1439 ].

Criminal Law - Topic 5834.1

Sentencing - Considerations on imposing sentence - Seriousness of offence - [See Criminal Law - Topic 5871 ].

Criminal Law - Topic 5848.8

Sentencing - Considerations on imposing sentence - First offence - [See Criminal Law - Topic 5871 ].

Criminal Law - Topic 5849.20

Sentencing - Considerations on imposing sentence - Use or possession of firearms - [See Criminal Law - Topic 5871 ].

Criminal Law - Topic 5871

Sentence - Possession and use or sale of weapons or ammunition - Kennedy was convicted of possession of a prohibited or restricted firearm with readily accessible ammunition (count 15), unauthorized possession of a prohibited firearm (count 7), unauthorized possession of a prohibited device (count 8), and storage of a firearm contrary to the regulations (count 13) - Respecting count 15, an assault rifle was found in the headboard of Kennedy's bed with 200 rounds of ammunition close by - The Manitoba Court of Appeal sentenced Kennedy to three years' imprisonment for count 15, nine months concurrent for each of counts 7 and 8, and five months concurrent for count 13 - It was important that Kennedy was a first offender, did not threaten anyone with the rifle, and did not use it in any criminal activity - However, these considerations did not detract from the fundamental seriousness of the offence - Count 15 demonstrated Kennedy's alarming disregard for the law, the result of which posed a serious risk to the public, especially considering that he previously had guns stolen from him during a break-in - In addition, Kennedy was found to have two loaded handguns in the pockets of his pants at the time of his arrest, and four more were found during a search of his residence - See paragraphs 49 to 64.

Criminal Law - Topic 5877.1

Sentence - Improper or careless storage of firearm - [See Criminal Law - Topic 5871 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 1].

R. v. Nur (H.), [2015] 1 S.C.R. 773; 469 N.R. 1; 332 O.A.C. 208; 2015 SCC 15, refd to. [para. 1].

R. v. Morin, [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81, refd to. [para. 22].

R. v. Rocheleau (M.) (2013), 311 O.A.C. 295; 2013 ONCA 679, refd to. [para. 25].

R. v. Cairns (G.R.) (2007), 248 B.C.A.C. 287; 412 W.A.C. 287; 227 C.C.C.(3d) 149; 2007 BCCA 572, refd to. [para. 28].

R. v. Loyer, [1978] 2 S.C.R. 631; 21 N.R. 181, refd to. [para. 30].

R. v. Provo, [1989] 2 S.C.R. 3; 97 N.R. 209; 59 Man.R.(2d) 1, refd to. [para. 31].

R. v. Danvers (Q.) (2005), 201 O.A.C. 138 (C.A.), refd to. [para. 35].

R. v. Lawes (B.), [2007] O.A.C. Uned. 6; 2007 ONCA 10, refd to. [para. 35].

R. v. Hasselwander, [1993] 2 S.C.R. 398; 152 N.R. 247; 62 O.A.C. 285, refd to. [para. 35].

R. v. Violette (J.J.) et al., [2009] B.C.T.C. Uned. 1025; 2009 BCSC 1025, refd to. [para. 35].

R. v. Nur (H.) (2013), 311 O.A.C. 244; 303 C.C.C.(3d) 474; 2013 ONCA 677, consd. [para. 40].

R. v. Smickle (L.) (2013), 311 O.A.C. 288; 2013 ONCA 678, consd. [para. 47].

R. v. Dufour (C.) (2015), 336 O.A.C. 52; 2015 ONCA 426, refd to. [para. 53].

R. v. Holt (T.D.) (2015), 374 B.C.A.C. 155; 642 W.A.C. 155; 2015 BCCA 302, consd. [para. 53].

R. v. Aubichon (W.M.) (2015), 606 A.R. 220; 652 W.A.C. 220; 2015 ABCA 242, refd to. [para. 53].

R. v. Abdullahi (M.), [2015] O.A.C. Uned. 533; 2015 ONCA 549, refd to. [para. 53].

R. v. Marshall (J.) (2015), 340 O.A.C. 201; 2015 ONCA 692, refd to. [para. 53].

R. v. Beals, 2015 ONSC 2911, dist. [para. 56].

R. v. Muir, 2015 ONSC 3119, dist. [para. 56].

R. v. McKinnon (T.D.) et al., [2015] B.C.T.C. Uned. 1116; 2015 BCSC 1116, dist. [para. 56].

R. v. Bullock, 2015 ONSC 4243, dist. [para. 56].

R. v. Sadikov, 2015 ONSC 4447, dist. [para. 56].

R. v. Brereton (K.A.), [2015] B.C.T.C. Uned. 1553; 2015 BCSC 1553, dist. [para. 56].

R. v. Doyle, 2015 ONCJ 492, dist. [para. 56].

R. v. Green, 2015 QCCQ 8377, dist. [para. 56].

R. v. Wiwchar (D.), [2015] B.C.T.C. Uned. 1702; 2015 BCSC 1702, dist. [para. 56].

R. v. Rutledge, 2015 ONSC 6625, dist. [para. 56].

R. v. Ulysse, 2015 QCCQ 10576, dist. [para. 56].

R. v. Fice (L.), [2005] 1 S.C.R. 742; 333 N.R. 243; 198 O.A.C. 146; 2005 SCC 32, refd to. [para. 63].

R. v. MacDonald (K.) (2009), 236 Man.R.(2d) 239; 448 W.A.C. 239; 2009 MBCA 36, refd to. [para. 63].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 84(1)(a) [para. 19].

Counsel:

C.R. Savage, for the appellant;

A.A. Kennedy, on his own behalf.

These appeals were heard on September 4, 2015, before Hamilton, Beard and Monnin, JJ.A., of the Manitoba Court of Appeal. Hamilton, J.A., delivered the following judgment for the court on January 14, 2016.