Un objet (en particulier un pistolet à plombs) « n'est pas une arme à moins d'être utilisé ou destiné à être utilisé dans un but dangereux »

R. v. McManus, 2006 CanLII 26568 (ON CA)

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[1]                The appellant appeals from his conviction for carrying a concealed weapon contrary to s. 90(2) of the Criminal Code.

[2]               At the request of the Crown and with the consent of the appellant we amended the information by deleting the words “without being authorized under the Firearms Act to do so”, and also by deleting the words “a replica handgun” and by substituting therefore the words “imitation firearm”.

[3]               In convicting the appellant, the trial judge accepted the Crown’s submission that the pellet gun seized from the appellant is a firearm. By definition, a firearm is a weapon within the meaning of s. 90(2) of the Criminal Code. The trial judge relied on his finding that the pellet gun is a firearm to conclude that it is a weapon for the purposes of s. 90[1].

[4]               In her evidence at trial, the police officer who seized the pellet gun from the appellant confirmed that it is discharged by a spring mechanism. In addition, she agreed that this type of pellet gun is “also referred to as a toy pellet gun.”  

[5]               The definition of “firearm” in the Criminal Code stipulates that a firearm is “a barrelled weapon…”  On the facts of this case, in our view, the trial judge erred in failing to consider whether the pellet gun seized from the appellant is a weapon prior to accepting the Crown’s submission that it is a firearm. Further, in light of the record at trial and the trial judge’s finding that there was no evidence that the appellant used the pellet gun for a purpose dangerous to the public peace, in our view, a finding that the pellet gun was a weapon was not available.

[6]               In the circumstances, the appeal is allowed, the appellant’s conviction is set aside and an acquittal is substituted.

Une carabine à plombs ou une arme à air comprimé n'est pas considérée en soi comme étant une arme, sauf si elle est utilisée dans un dessein dangereux pour la paix publique ou en vue de commettre une infraction

R. v. Labrecque, 2011 ONCA 360

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[1]               The respondent, Benoit Labrecque, was carrying a gas-powered pellet gun in his waistband.  Acting on a tip, the police stopped and searched the respondent and found the gun.  He was charged with carrying a concealed weapon contrary to s. 90(2) of the Criminal Code.  The respondent was acquitted at trial and his acquittal was upheld on appeal by Rutherford J.  The Crown now seeks leave to appeal to this court.

[2]               Rutherford J. concluded that for the pellet gun to be a weapon under s. 90 there would have to be evidence that the respondent used or intended to use the gun for a harmful purpose.  As there was no such evidence, the respondent was entitled to an acquittal. 

[3]               In reaching his conclusion, Rutherford J. relied on the endorsement of this court in R. v. McManus, 2006 CanLII 26568 (ON CA), [2006] O.J. No. 3175 (C.A.).  There, too, on virtually identical facts, in the absence of evidence Mr. McManus used or intended to use his pellet gun for a purpose dangerous to the public peace the court held that the pellet gun was not a weapon.

[4]               Before us, the Crown submits that a pellet gun is a firearm and therefore a weapon irrespective of the gun holder’s subjective intention.  If the pellet gun is capable of causing serious bodily injury, it is a weapon.  Whether the gun holder used or intended to use it for a harmful purpose is irrelevant.  However, in making this submission the Crown fairly acknowledges that to succeed on this appeal he must show that the reasoning in McManus is wrong.  He points to the policy considerations discussed by the Supreme Court of Canada in R. v. Felawka (1993), 1993 CanLII 36 (SCC), 85 C.C.C. (3d) 248 (S.C.C.) and to a very brief endorsement of this court in R. v. Henry, [1991] O.J. No. 2696 (C.A.), which was not referred to in McManus and arguably is inconsistent with it. 

[5]               It seems to us that this court’s later decision in McManus is controlling.  It provides reasons, albeit brief, why a pellet gun is not a weapon unless used or intended to be used for a dangerous purpose.  Although an endorsement of this court, it nonetheless has precedential value at least to the extent of dictating the result of this appeal.  If McManus is to be overturned by this court, that must be done by a five-judge panel.  Mr. Cappell did by letter request a five-judge panel but no formal application was made and his letter request was denied.  If the issue arises again, the proper course is to make a formal application to the Chief Justice of Ontario or the Associate Chief Justice of Ontario for a five-judge panel.  Sitting as a panel of three, we are bound by the reasoning and the result in McManus.

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.

Il est désormais acquis que pour déterminer si un objet est conçu pour être utilisé comme arme, il convient de se concentrer sur ses caractéristiques physiques objectives

R v Vader, 2018 ABCA 71

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[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.

Lorsqu’il s’agit d’un objet qui n’est pas spécifiquement conçu pour blesser (et dont la possession pourrait être bénigne), il doit y avoir une preuve d’intention malveillante de la part de l’accusé, associée à la possession

R. v. Constantine, 1996 CanLII 11099 (NL CA)

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[8]                           The more favoured approach in recent years, however, appears to be one of treating "carrying" as a separate determination, but dealing with the issues of "weapon" and "concealment" together in the sense of the court's determining, either directly or by inference, from the facts and circumstances of a particular case what was the purpose of the accused.

[9]                           Obviously, a handgun or a switch-blade knife or brass knuckles may generally be regarded as being weapons because they are designed to be such. Thus, in the absence of evidence to the contrary, the cases generally state that concealment of any of these may create the offence because unlawful purpose may be assumed or implied.

[10]                       The same, however, cannot be said of a carving knife or a steak knife or a hunting knife, or many other objects which are intended for peaceful purposes. Thus, the key to the entering of a conviction in such matter has to be the establishing by the prosecution that the object is being concealed for an unlawful purpose. This is, however, not necessarily an easy method of dealing with the problem in all cases because obviously the lines as to the nature of the object, the extent of the concealment and the determination of purpose can become easily obscured.

[11]                       A very useful treatment of the issues may be found in Peter J. Harris' Weapons Offences Manual (1995). The author acknowledges that courts have had difficulty over the years in dealing with the problem, but he states:

"However, if the statute is not concerned with the concealment of the potential weapon for its own sake, but only on account of its concomitants or consequences, and if concealing a weapon can be done for a variety of purposes not all of which are necessarily socially harmful or unlawful, then the purpose of the accused in concealing a weapon is necessarily relevant to determining whether the offence has been committed. A necessary consequence follows. If the intended purpose is relevant, then whether the object was a 'weapon' and whether it was 'concealed' are indissolubly related issues. … Neither ingredient of the offence can be determined independently of the other."

[12]                       Harris also provides various examples of cases where the courts have determined that (a) it was necessary to establish an unlawful purpose and, (b) where such was not required. In R. v. Lemire (1980), 1980 CanLII 2800 (BC SC), 54 C.C.C.(2d) 50 (B.C.S.C.), affd. (1980), 1980 CanLII 334 (BC CA), 57 C.C.C.(2d) 561 (C.A.), the British Columbia Court of Appeal assumed that a lead pipe which weighed about 450 grams, covered with tape and with a length of chain attached, was unquestionably a weapon. The only issue left to be determined was whether it had been concealed. In R. v. Acoose (1982), 1982 CanLII 2495 (SK KB), 17 Sask.R. 240 (Q.B.), a woman was found to have been carrying inside her sock, out of sight, an 11 inch fish-filleting knife in a leather sheath. The court drew the inference that she had intended to use the knife as a weapon should the occasion arise and rejected her explanation that she had obtained the knife from a friend immediately before the incident. Another interesting case out of Saskatchewan is R. v. Starr (1983), 1983 CanLII 2610 (SK KB), 24 Sask.R. 161 (Q.B.). There, a woman who was stopped for a traffic infraction was found to have a steak knife and a paring knife in her purse. She admitted that she carried the steak knife for protection. Her conviction was upheld on appeal because she admitted she carried the knife for self-protection and such could ground the inference that the knife was a weapon.

[13]                       The more common cases are those where the courts felt that it was necessary to establish purpose because of the nature of the object alleged by the prosecution to be a weapon. One example is R. v. Crawford (1980), 1980 CanLII 2889 (ON CA), 54 C.C.C.(2d) 412 (Ont. C.A.), where a closed knife was found under the floor mat of the accused's vehicle. He testified that he had borrowed the knife from his father and that he had used it as a screwdriver and hid it to protect it from theft. He was convicted at trial, the judge referring to the accused's criminal record and stating that people with records should not carry weapons and, especially, should not conceal them. The Ontario Court of Appeal allowed the appeal because it had not been established on the evidence that the accused had used or intended to use the knife as a weapon. In the case of R. v. Wees (1992), 15 W.C.B.(2d) 335 (B.C.S.C.) an accused who had been charged with a drug offence was found in possession of a pocket knife. The court held that the requisite purpose of an intention to use an otherwise neutral object as a weapon must exist at the time of discovery and such was not established here.

[14]                       The authorities seem to follow a standard pattern of the prosecution having of necessity to establish that an object which could be used for peaceful purposes was intended to be used as a weapon. Conversely, where the object in issue was one which could obviously be deemed to be a weapon because of its very nature, the evidentiary burden would fall on an accused to establish that no unlawful purpose was intended. One case which appears to have caused some problems within the courts of the country, however, is that of R. v. Felawka, 1993 CanLII 36 (SCC), [1993] 4 S.C.R. 199; 159 N.R. 50; 33 B.C.A.C. 241; 54 W.A.C. 241, where, by a four to three majority, the Supreme Court upheld a conviction of a person who was carrying a .22 calibre rifle wrapped in his jacket on his way home from target shooting. He was found guilty of carrying a concealed weapon because he intended to conceal it, he having stated, "it was not proper to carry it out in the open". It is interesting to note in that case the majority felt that a firearm as defined in s. 84 of the Criminal Code will always come within the definition of a weapon because it is expressly designed to kill or wound. While mens rea is required to be proved to establish a s. 89 offence, that mens rea will be established if the Crown proves beyond a reasonable doubt that the accused concealed an object that he knew to be a weapon, without more. Lamer, C.J.C., dissenting, was strongly of the view that it had not been shown that the accused was carrying a "weapon" within the meaning of s. 89. Further, in his view, the majority's interpretation of s. 2, which would include a firearm as a weapon regardless of its use or intended use, could produce unjust results.

[15]                       Felawka does appear to deviate somewhat from the norm. However, in any event, it may be distinguished for our purposes because we are not here dealing with a firearm, but rather a hunting knife. That object was not designed to kill or maim persons and therefore the matter of purpose or intent of the accused becomes most relevant. While there does appear to have been concealment of a sort by the appellant, the trial judge has expressly found that:

"There is nothing to suggest that (the appellant) had (the knife) there for any evil or unlawful purpose, that he intended to use it in any way or that he intended to do any damage with it."

That being so, the unlawful purpose to make out the offence has not been established and, in my view, the appellant should not have been convicted of the offence.

Les tribunaux tiennent compte de toutes les circonstances entourant la possession d'un couteau par un accusé lorsqu'ils déterminent si ce dernier avait ou non l'intention d'utiliser le couteau comme arme

R v S (WEQ), 2018 MBCA 106

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[37]                     Section 2 of the Code currently defines the word “weapon” as follows:

 

[W]eapon means any thing used, designed to be used or intended for use

 

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

 

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

 

and, without restricting the generality of the foregoing, includes a firearm [remaining definition excluded as inapplicable].

 

[38]                     There are thus three ways in which a knife may be determined to be a weapon:  (1) the knife is actually used as a weapon—i.e., to cause death or injury to a person or for the purpose of threatening or intimidating any person; (2) the knife is designed to be used as a weapon—i.e., to cause death or injury to a person or for the purpose of threatening or intimidating any person; or (3) the knife is intended to be used as a weapon—i.e., to cause death or injury to a person or for the purpose of threatening or intimidating any person.

[39]                     There is no allegation in this case that the young person actually used the knife as a weapon.  As well, a knife is normally designed to be used for utilitarian, peaceful purposes and not as a weapon, notwithstanding the fact that it can, on occasion, be used effectively in fighting and notwithstanding that some types of knives have been recognised as having been “designed to be used” as a weapon (see Regina v Arrance (1971), 1971 CanLII 1296 (BC CA), 3 CCC (2d) 341 at 345 (BC CA); see also Regina v Crawford (1980), 1980 CanLII 2889 (ON CA), 54 CCC (2d) 412 (Ont CA); and R v Constantine, 1996 CarswellNfld 24 (CA)).

[40]                     However, where there is no evidence that the young person actually used a knife as a weapon and no evidence that a knife was “designed to be used” as a weapon, then, as indicated in section 2 of the Code, a court must consider whether the knife was “intended for use”:  (a) in causing death or injury to any person; or (b) for the purpose of threatening or intimidating any person.

[41]                     The courts will consider all of the circumstances surrounding an accused’s possession of a knife when attempting to determine whether or not he or she intended to use the knife as a weapon.  Courts have relied upon many different circumstances to support the inference that the accused intended to use the knife as a weapon, including:

•                    the type of knife and its usual or designed purpose;

•                    what the accused was doing and where he or she was at the time he or she was seen or arrested;

•                    where the knife was located;

•                    whether the accused had other weapons with him or her; and

•                    any explanations the accused offered for the knife’s possession.

See Regina v Blondell (1972), 1972 CanLII 1291 (BC CA), 8 CCC (2d) 130 (BC CA); and R v Roberts (1990), 1990 CanLII 2524 (NS CA), 60 CCC (3d) 509 (NS CA);

[42]                     A trial judge must consider the circumstances surrounding the possession of the items and, if there is evidence upon which the trial judge could have inferred that the accused intended to use the knives as weapons, then an appeal court should not interfere (see R v Vigneau, 1978 CarswellNS 176 at para 22 (Co Ct); R v Mantee, 1982 CarswellSask 1022 at para 13 (QB); R v Starr, 1983 CarswellSask 538 at para 7 (QB); R v Martin, 1986 CarswellBC 1839 at para 6 (Co Ct); R v SK, [1995] BCJ No 2529 at para 17 (CA); R v M (DM), 1999 CarswellBC 1820 at para 30 (SC); and R v Vader, 2018 ABQB 1 at para 9, leave to appeal to Alta CA refused 2018 ABCA 71 (in chambers)).