[24] I am satisfied the sentencing judge was wrong to interpret s. 10 of the CDSA as she did, finding that the presence of the weapons did not trigger s. 10(2) of the Act so that the weapons were an aggravating factor in the sentencing. The respondent had pleaded guilty to possession of a replica gun for a purpose dangerous to the public peace, contrary to s. 88(2) of the Code. There were other weapons in his immediate proximity. It appears the sentencing judge felt that he had to actually have weapons in hand to trigger the operation of s. 10(2) of the CDSA. The sentencing judge failed to acknowledge the presence of the replica handgun, baton and knife in close proximity to the driver in a vehicle driven by a person in possession of Schedule 1 drugs, for the purpose of trafficking. As noted in R. v. Greencorn, 2014 NSPC 10:
[6 ] The combination of drugs with firearms, particularly prohibited firearms -- such as Mr. Greencorn's sawed-off 12 gauge -- is emblematic of the level of danger that this sort of trade poses to the public. It is not at all uncommon to find those who traffic in cocaine and other illegal substances armed with illegal firearms. The risks of this trade are obvious. Someone's going to try to rip you off or you try to rip someone else off or someone's not getting paid on time, …
[25] Section 10(2) of the CDSA makes it clear that if a weapon is carried, used or threatened to be used in relation to the commission of an offence under s. 5(2) of the CDSA, that it is an aggravating factor. The presence of weapons in the motor vehicle in immediate proximity and readily accessible by the person who possessed narcotics in cases such as this, I am satisfied, constitutes the carrying of a weapon envisaged by s. 10(2) of the CDSA whether those weapons are in hand or simply in his immediate proximity. I am satisfied that the presence of the weapons should have been considered an aggravating circumstance in this case. (See Hanabury v. The Queen, 1970 CanLII 1091 (PE SCTD), [1970] P.E.I.J. No. 9 (S.C.) ¶ 15 and 16; R. v. Crawford, 1980 CanLII 2889 (ON CA), [1980] O.J. No. 1047 (C.A.) ¶6).
[26] I cite with approval R. v. Myroon, 2011 ABPC 36:
[52] Carrying and possessing are related terms. Indeed, the Dictionary of Canadian Law (3rd edition) defines the word carry as including "to store or to possess." Other dictionary definitions differentiate between the two terms. Possess is a transitive verb which is used in many contexts. Carry is also used in different contexts. For example, in the Canadian Oxford Dictionary (2nd Edition) sets out the three primary meanings of "carry" as follows:
"carry - verb (-ries, -ried)
1 - transitive support or hold up, esp. while moving.
2 - transitive convey with one from one place to another.
3 - transitive have on one's person (should the police carry guns?; I never carry much money with me)."
[53] The courts have also recognized that offence of carrying an offensive weapon can be committed when the item is hidden in a vehicle that is in the care or control of the accused.
[54] In R. v. Hanabury (1971), 1970 CanLII 1091 (PE SCTD), 1 C.C.C.(2d) 438 (P.E.I.S.C.) (Hanabury) the police found a bayonet under the front seat on the driver's side. The accused argued that he was not carrying a concealed weapon. Nicholson J. disagreed and wrote at p. 444:
"The main argument advanced by the appellant on this appeal was that the appellant was not carrying the weapon in question. As is said in the ground of appeal, "the evidence showed that the accused did not carry a weapon, but showed that the accused had a weapon in his motor vehicle." I am unable to accept this contention, and I am of the opinion that a person could be convicted under s. 85 of the Criminal Code on a charge of "carrying a concealed weapon" if he is carrying a weapon in an automobile of which he has the care and control. In this modern day, with the use of automobiles so widespread, it cannot be seriously contended that the section of the Code relating to the carrying of weapons is restricted to carrying the weapon on or about the person of the accused."
[55] Hanabury was cited with approval by the Ontario Court of Appeal in R. v. Crawford (1980), 1980 CanLII 2889 (ON CA), 54 C.C.C. (2d) 412 (Ont. C.A.).
[56] Both these cases involved circumstances where the accused was the driver and the knife was under the driver's floor mat.
[57] The ordinary grammatical meaning of the word "carries" in the section must be considered in light of the other terminology in the section. Included in that consideration is the object of the section.
[58] In Felawka the Court explained the object of the s. 90(1) as follows:
"Perhaps a solution can be arrived at by considering the aim or object of the section itself. There is something extremely menacing and intimidating about the presence of a naked weapon. There is something even more sinister in the presence of a concealed weapon. No doubt the legislators enacting s. 89 believed that weapons are usually concealed by persons on the way to commit crimes or after leaving the scene. Clearly then one of the goals of the section is to discourage the prospective bank robber who might be apprehended on the way to the bank with a sawed-off shotgun concealed in his pant leg. Yet, I think the section has a wider aim. All Canadians have the right to feel protected from the sinister menace of a concealed weapon. If it was ever thought that it was lawful to carry concealed weapons more and more Canadians might come to believe it would be prudent for them to carry concealed weapons in order to defend themselves and their families. This might lead to a vigilante attitude that could all too readily result in an increase in violence in Canadian society. Canadians are well satisfied with the security provided by the close regulation of the ownership and use of firearms. They have every right to expect the concealment of weapons would also be prohibited or properly regulated. To fulfil the aim and object of s. 89, it would then appear that the requisite intent or mental element should be that the accused intended to hide from others an object he knew to be a weapon."
[59] Applying the object of the section, the jurisprudence and the ordinary grammatical meaning of "carry" it is clear that it is meant to apply to situations where movement of an object is taking place or might take place. It can also apply to situations where a concealed weapon is readily handy.
[60] In this case, the accused had the knife on his person and was conveying the weapon in a motor vehicle. There could be little doubt that he was "carrying" that weapon.
[27] The meaning of the word “carry” in s. 10 of the CDSA should be given the same meaning as set out in Myroon above in relation to s. 85 of the Criminal Code.
[28] The sentencing judge should have considered the presence of the weapons including the replica handgun, and the close proximity of those items to the driver as an aggravating factor.
Aucun commentaire:
Publier un commentaire