La Cour d'appel de l'Alberta énonce que l'expression « conçu pour être utilisé », qui fait partie de la définition du terme « arme », consiste en un critère objectif.

R v Fuhr, 2018 ABCA 15

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[64]           The appellant’s final ground of appeal concerns whether the sword found at the entrance of the residence meets the definition of a weapon as contained s 2 of the Code with the result that the appellant was in possession of a weapon in breach of a term of his recognizance. The appellant argues that he never used or attempted to use the sword to cause death or injury, or attempted to intimidate or threaten anyone with the sword. The appellant submits that the sword could not have met the definition of a “weapon” based solely on its location and positioning.

[65]           While the Crown conceded during oral argument at trial that the placement of the sword should not result in a conviction, it now submits this concession is trivial because the trial judge found the sword met the definition of a weapon after examining the object, and found that this conclusion was merely supported by its placement next to the front door.

[66]           Section 2 of the Code defines a weapon as follows:

“weapon” means any thing used, designed to be used or intended for use

(a)   in causing death or injury to another person, or

(b)   for the purpose of threatening or intimidating any person

and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thing used, designed to be used or intended for use in binding or tying up a person against their will

[67]           The appellant testified he did not use the sword or threaten anyone with the sword, it was blunt, and he did not bring it inside his house. On cross-examination, the appellant testified that at least two days prior to this incident, he woke up to find the sword leaning up against the wall on his porch. He assumed it was put there by a man he believed had recently robbed him. However, he said that he did not know how it then went from the porch into the house. At no time did he attempt to get rid of the sword even though he knew he was bound by the weapons prohibition. The appellant testified that he did not consider it to be a weapon, but rather a “figure piece” akin to a “butter knife”.

[68]           The trial judge found that the sword was located just inside the front door of the house, leaning against a window, in plain view. He found that “indeed it may be used as a decoration”, but its location and its position (“point down, handle up”) led the trial judge to conclude it was not placed there for display. He observed that the sword was about four feet long, made of heavy steel, of considerable weight, with edges that were not sharp but a point that was “extremely sharp”. He concluded that the sword presented as a weapon and not as decoration.

[69]           The trial judge drew an inference from the physical characteristics of the sword that it was “designed to be used [...] in causing death or injury [...] or for the purpose of threatening or intimidating”. There was no explanation of how the sword came to be in the appellant’s house “other than he put it there”. Therefore, the trial judge found the appellant was in possession of a weapon, the sword, and the appellant’s evidence that he did not intend to use it for a violent purpose did not avail him. This was a finding of fact available on the record before the trial judge, and accordingly, this ground of appeal is dismissed.