[1] The applicant was arrested while driving a truck. The handle of a machete was protruding from under the driver’s floor mat and a filleting knife was located in an uncovered cubbyhole on the lower part of the driver’s door. At the time of his arrest, the applicant was on interim judicial release and subject to the terms of a recognizance which prohibited him from possessing any type of weapon. The trial judge concluded that the applicant was in possession of the machete and the filleting knife and that they were weapons. He convicted the appellant on one count of breach of the recognizance. The applicant’s summary conviction appeal was dismissed.
[2] The applicant seeks leave to appeal to this Court on the following ground:
Did the learned summary conviction court judge err in failing to find that the learned trial judge committed reversible error in applying the wrong legal test to the words “designed to be used” as contained in the definition of “weapon” in s. 2 of the Criminal Code?
Leave to appeal may be granted on a reasonably arguable question of law of sufficient importance.
[3] The applicant argues that the test for determining whether an item is designed to be used as a weapon requires clarification by this Court. The trial judge adopted the two-step test proposed in R v DAC, 2007 ABPC 171 at para 78, 428 AR 355:
1) Is the object’s design such that it could be readily usable to cause death or injury to any person or to threaten or intimidate any person?
2) In all of the circumstances, would the carrying of the concealed object cause the reasonable person to fear for his own safety or for the public safety, if he were aware of the presence of the object?
[4] The summary conviction appeal judge was of the view that the trial judge concluded, without expressly saying so, that the only reasonable inference was that the applicant intended to use the items as weapons. There was no error in that conclusion, so the appeal failed. The summary conviction appeal judge proceeded, in obiter, to consider the test for the words “designed to be used” as a weapon. In his view, it was not the manufacturer’s design of the item or the modification of it performed by others which determined the character of the item. Rather, it was the accused’s design which was determinative. The summary conviction appeal judge said (R v Vader, 2018 ABQB 1 at paras 18 – 20):
. . . the test I have proposed places greater emphasize [sic] on the objective factors associated with the accused’s possession and the nature of the item. . . .
In summary, then: an item which has been found to have been objectively designed to use as a weapon, and which has no other use, is a weapon.
An item which is both violent and non-violent in potential use will be found to be a weapon where the context supports the inference that that was the accused’s design and the context does not support any other reasonable possibility.
[5] The applicant submits that leave to appeal should be granted to allow this Court to consider the correct test to be applied to the words “designed to be used” as a weapon. If leave is granted, he proposes to argue that the focus of the test should be upon the actual design features of the item and whether or not those features objectively reveal that the item was designed to be used as a weapon, or for some non-violent purpose.
[6] Near the time the application for leave to appeal was filed, this Court released its decision in R v Fuhr, 2018 ABCA 15. In that case, the appellant’s conviction for breach of a recognizance condition prohibiting possession of a weapon arose from the presence of a sword, about four feet long, made of heavy steel, of considerable weight, with edges that were not sharp but a point that was extremely sharp. This Court dismissed the appeal because the trial judge drew an inference, available on the record, from the physical characteristics of the sword that it was designed to be used as a weapon. Therefore, it is now clear that in determining whether an item is designed to be used as a weapon, the focus is on the objective physical characteristics of the item. This is very similar to the focus suggested by the applicant.
[7] I am not satisfied that the applicant has raised a reasonably arguable question of law of sufficient importance. This Court has already addressed the correct approach to be taken by a trial judge in considering the words “designed to be used” as a weapon in R v Fuhr, and it is not reasonably arguable that the application of that approach to the facts of this case would result in a successful appeal.
Aucun commentaire:
Publier un commentaire