Pretending to have a gun in one’s pocket during a robbery is not “use of an imitation firearm” contrary to s. 85(2) of the Criminal Code

R. v. Benedict 2014 ONSC 4918 – Benedict plead guilty to charges of robbery and 3 counts of breach of recognizance. He plead not guilty to use of an imitation firearm, specifically a 9 millimetre gun, while committing the robbery.

Benedict attended the convience store in a white limo which he had rented as his means of transportation for the night. He entered the store and asked to purchase a 25 pack of John Player’s cigarettes from the store clerk. During the transaction, Benedict while holding his right hand in his jacket, told the clerk that he had a 9 mm gun in his jacket and that he would shoot him if he did not provide him with the money from the cash register. As a result, the clerk provided Benedict with the cash from the register totalling approximately $440.00, as he feared for his safety and believed that Benedict was carrying a concealed firearm. Benedict then left the store with the stolen $440.00 and the stolen 25 pack of John Player’s cigarettes. Benedict then entered the limo and the clerk immediately contacted police.

Section 84 CC defines “imitation firearm” as any “thing that imitates a firearm, and includes a replica firearm”. The prosecution submitted that “thing” in the context of this section must be interpreted to include intent, words and gestures that lead the intended target of the offence, in the present case, the robbery, to reasonably believe that there is a firearm present and available for use by the offender. The defence took the view that the words “imitation” and “thing” must be interpreted to mean a physical object, either brandished or in some way discernable or observed by the intended victim.

The Honourable Robert Pelletier said there is a rather remarkable absence of any jurisprudence on this specific point. Whether a person committing a robbery, hand in pocket, claiming to have a gun, commits the offence of using an imitation firearm in the commission of an indictable offence, the Court informed and despite counsel’s exhaustive review of the jurisprudence, had never been determined. The determination of this issue revolved around the interpretation of “any thing that imitates a firearm” (s. 84).

Justice Pelletier examined the dictionary definition of “thing” and other contexts, but was unable to endorse the prosecution’s definition of “thing” for the following reasons:

“On its face, the use of the words “imitation firearm” and “thing” would tend to suggest that the section contemplates the presence of a physical object, brandished, partially revealed or otherwise detectable, which would give the intended victim to believe that a firearm is present and ready for use. That the penalty for using a firearm in the commission of an offense is the same as the penalty for the use of an imitation firearm in the commission of an offense would tend to support the view that the gravamen of the offense, and its moral blameworthiness, is the vulnerability and horror experienced by the intended victim confronted by an offender in possession of either an actual firearm of an imitation firearm intended to be perceived, and perceived as a real firearm.”

Further, said Justice Pelletier, the word “thing” appearing elsewhere in the Criminal Code is used to denote a physical object, notably section 491, as opposed to references to words or gestures, as opposed to tangible items (things), as in s. 264.1 CC.

In the end, the Justice concluded that on the specific facts of this case, the offence under section 85(2) had not been made out.

“Mr. Benedict threatened to use a firearm in robbing Mr. Amit. His plea of guilty to the charge of robbery is based on those facts. Mr. Amit must certainly have believed that Mr. Benedict possibly had a gun in order to carry out that threat. However, based on this Court’s conclusion that imitation firearm means an object which must be brandished, visible or otherwise detectable, Mr. Benedict’s conduct does not amount to the use of an imitation firearm in the commission of an offense.”

An acquittal was entered.

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