S.C.C. 02385 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Hallett, Matthews and Freeman, JJ.A. BETWEEN: ALBERT D. DOYLE and HER MAJESTY THE QUEEN Respondent Barbara J. Beach for the Appellant Bruce P. Archibald for the Respondent Appeal Heard: March 27, 1991 Judgment Delivered: March 27, 1991 THE COURT: Appeal allowed and new trial ordered per reasons for judgment of Hallett, J.A.; Matthews and Freeman, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: HALLETT, J.A.: This is an appeal from conviction for carrying a concealed weapon, a push dagger, contrary to Section 89(a) of the Criminal Code. It is clear from the remarks of the learned trial judge that he did not consider the definition of weapon as set out in Section 2 of the Criminal Code. He founded the conviction solely on the basis the push dagger was concealed on the accused person. This case was tried before the Appeal Division handed down its decision on November 14, 1990, in R. v. Roberts in which the Court interpreted the 1985 definition of weapon as contained in Section of the Criminal Code. That definition is as follows: "'weapon' means: (a) anything used or intended for use in causing death or injury to persons whether designed for such purpose or not, or (b) anything used or intended for use for the purpose of threatening or intimidating any person, and, without restricting the generality of the foregoing, includes any firearm as defined in section 84." In this case, before convicting the accused of Section 89(a) offence, the trial judge would have to be satisfied that the Crown had proven beyond reasonable doubt not only that the push dagger was concealed but that it was weapon as defined in Section of the Criminal Code. On the second element of the offence, the trial judge would have to be satisfied that the accused intended to use the push dagger to cause injury or death to persons or intended to use it for the purpose of threatening or intimidating any person. That is question for the trial judge. As the trial judge did not consider this, the appeal must be allowed. We disagree with the argument that there is no evidence from which an inference of the accused's intent in having the concealed push dagger on his person might be drawn. It is question for the trial judge, considering all the circumstances, to determine if the Crown has proven the essential intent element of this offence. Considering the evidence, it would be inappropriate to enter an acquittal. The appeal is allowed and a new trial ordered. Under the circumstances, there is no need to consider if the sentence imposed was, fit. Hallett, J.A. Concurred in: Matthews, J.A Freeman, J.A. CANADA PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus ALBERT D. DOYLE HEARD BEFORE: His Honour Judge G. H. Randall DATE HEARD: October 4, 1990 PLACE HEARD: Halifax, Nova Scotia COUNSEL: D. Presse, Esq., for the Crown B. Beach, for the Defence CASE ON APPEAL S.C.C. 02385 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: ALBERT D. DOYLE and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: HALLETT, J.A. (Orally)
This was an appeal from a conviction for carrying a concealed weapon, a push dagger, contrary to s.89(a) of the Criminal Code. For the appellant, that the trial judge failed to consider whether the knife fit the definition of a weapon under s.2 of the Criminal Code and, in addition, failed to satisfy himself that the accused intended to use the dagger to cause injury or death or for the purposes of threatening or intimidating. The matter was remitted for a new trial.