QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 62 Date: 2011 02 03 Docket: Q.B.G. No. 1387 of 2010 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and TERAN DARCY LAPLANTE Counsel: Lee Hnatiuk for the appellant Pearl Baumgartner for the respondent JUDGMENT McMURTRY J. February 3, 2011 [1] The Crown is appealing the acquittal of the accused on a charge of carrying a concealed weapon contrary to s. 90 of the Criminal Code R.S.C. 1985, c. C-46. The Crown appeals on the grounds that the learned trial judge misapprehended the evidence, ignored other evidence and improperly admitted opinion evidence. The Crown submits that the verdict was unreasonable and not supported by the evidence and seeks conviction on the charge. Background: [2] The Crown’s case consisted of an Agreed Statement of Facts (Exhibit P-1) and the admission of the item seized from the accused on July 18, 2009, sword in black plastic sheath (Exhibit P-2). [3] On the morning of July 18, 1009, the accused and Dr. Nick Perry were at the Sarcan Recycling Centre at 1601 Angus Street in Regina. Dr. Perry was standing behind the accused. He believed the accused was acting suspiciously. At one point, the accused pulled up his shirt to scratch his side, exposing a sword type weapon tucked into the back of his waist band. Alarmed, Dr. Perry called 9-1-1. [4] Four members of the Regina Police Service attended to the south end of the 1600 block of Angus Street where they saw the accused walking with an older female. One of the officers asked the accused to stop and place his hands on his head. The accused did not comply. He appeared to be getting ready to run. The officer drew his firearm and again instructed the accused to place his hands on his head. This time, the accused complied as instructed. He slowly lay on the ground, on his stomach, with his hands out to his sides. [5] black handled sword in sheath (Exhibit P-2) was recovered from the accused as well as full can of beer. The accused appeared to be intoxicated. He had strong odour of liquor on his breath and slurred his speech. The female who had been with the accused disappeared. [6] The accused testified that he had been drinking “two-six", at the park with friends the day before. Thereafter, he met up with an uncle and continued drinking. He recalled buying the sword for $10.00 at some point from someone named “Froggy”. As he had no bag or back pack in which to carry it, he tucked it into his shorts. He did not have specific reason for buying the sword and does not usually carry weapons for protection. At eight in the morning, he started to walk home. He cannot recall whether he was alone or with someone. He remembers walking to the “Agribition” and then being at Sarcan. [7] At p. 84 of the transcript, the trial judge described the accused’s recollection of his visit to Sarcan: He testified that he met woman along the way who he thought was his mother, but couldn’t recall for sure because of his intoxicated state. He stated she had some bottles and he had to go take them in for her. The Accused testified that he remembered getting money for the bottles, giving it to the woman and then walking with her, after which the police arrived. The Accused doesn’t recall much about his encounter with the police other than standing there and looking. On cross-examination, the Accused was asked why he didn’t simply carry the sword in his hands. And, he replied that he didn’t want to do that because people would just call the cops on him right away as they would think he was about to do something. The Accused also admitted that swords are dangerous and that he tucked it in his pants knowing that it would alarm people if they knew he had sword. The Accused was questioned in cross-examination about his reason for buying the sword and he said he wasn’t really sure why he got the sword. [8] The defence called Duane Maguire, deputy sheriff, to testify about his experience with items of the same type as Exhibit P-2. Mr. Maguire testified that as teenager, he belonged to an organization called the Society for Period Anachronism, group that studied and reenacted medieval battles. He identified the sword (Exhibit P-2) as decorative copy of samurai sword that can be purchased at variety of local retailers. He offered the opinion, on cross-examination, that the sword’s steel blade did not have an edge, although with effort it could be sharpened. Decision of the learned trial judge: [9] The learned trial judge began her decision by reviewing the evidence. She then stated at p. 86: The issue in this case is whether the sword is weapon within the meaning of s. 90 of the Criminal Code. In order to make this determination, one must have regard to s. of the Criminal Code which provides definition for the term weapon. The definition is as follows: “weapon” 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 firearm. [10] The trial judge held first that “there is no evidence that the Accused either used or intended to use the sword for the purposes enumerated in the definition; namely: (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person.” In making this determination, she relied on the accused’s evidence that he had just purchased the sword and was taking it home to display in his room, or on his television. [11] In addressing the second issue, whether the item was designed to be used as weapon, she found that it only had the appearance of sword. She accepted the evidence of Duane Maguire that it was decorative copy of the samurai sword. She also accepted that the blade of the sword was blunt. While the edges could be sharpened, it would take some time. She concluded that she had reasonable doubt the sword was designed to be used as weapon. Therefore, she acquitted the accused of the charge. The Appeal: [12] The trial judge relied on R. v. Graat, 1982 CanLII 33 (SCC), [1982] S.C.R. 819 in accepting Mr. Maguire’s evidence. At pps. 835-836, Dickson J. (as he then was) stated: ... The line between “fact” and “opinion” is not clear. To resolve the question before the Court, would like to return to broad principles. Admissibility is determined, first, by asking whether the evidence sought to be admitted is relevant. This is matter of applying logic and experience to the circumstances of the particular case. The question which must then be asked is whether, though probative, the evidence must be excluded by clear ground of policy or of law. [13] The defence sought to admit the evidence of Duane Maguire on the basis that he had experience with the type of sword in issue. He was aware that it was readily for sale in novelty stores and that it was of interest to people as decorative item. [14] The defence maintains the position that the evidence was relevant to the trial judge’s determination with respect to the usual use of this type of item. [15] The Crown argues that Mr. Maguire’s evidence misled the trial judge because he was not testifying as to his eye witness perceptions, but about the sword and where it could be purchased. The Crown suggests that Mr. Maguire required special qualifications that would justify his opinion; that Mr. Maguire’s evidence was properly the subject of expert evidence put in under the guise of opinion evidence. [16] In examination-in-chief, Mr. Maguire gave evidence that he recognized Exhibit P-2 as certain type of sword and where it might be available for purchase. Under cross-examination by the Crown, the witness gave further evidence about this particular sword: that the blade was made of steel; that it did not look like it had been sharpened; that it had wear on its tip; and that it had been mass produced. This is the sum total of the witness’s evidence. The witness’s testimony elicited under cross-examination would have been available to the trial judge just by looking at the sword. The evidence provided under examination-in-chief, was relevant, and factual. His particular experience allowed him to recognize the sword. As such, he was in a position to assist the court. [17] In his text Watt’s Manual of Criminal Evidence, (Toronto: Thomson Carswell 2008) Justice David Watt of the Ontario Court of Appeal, provides the following general principles of lay opinion evidence (at p. 410): The same basic principle governs the reception of evidence of lay opinion as is the case with expert opinion. In general, witnesses, lay or expert, give evidence of facts, not of inferences of opinions. The strict application of the opinion rule is equally unworkable in relation to the testimony of lay witnesses. Facts cannot be so easily separated from opinion or inference as the rule would suggest. The standard that is likely applied when determining the admissibility of lay opinion evidence is “helpfulness”. It is not necessary any longer for the party proposing admission to demonstrate that the witness is unable, because of the nature of the subject matter, adequately to convey to the trier of fact the data from which the inference has been drawn or opinion formed. Lay opinion will not be excluded if the witness can more accurately express the facts perceived in the form of an opinion, rather than by stating the primary facts. There continues to be resistance to the reception of evidence of lay opinion that approaches the ultimate issue in the case, although that it does so is not positive of the admissibility question. The categories of lay opinion evidence, as with the opinion evidence of experts, are not closed. The weight of the evidence is for the trier of fact. [18] Mr. Maguire simply stated that this type of sword is readily available in novelty stores. He also stated that in his opinion the sword was novelty sword. No attempt was made by the Crown to call evidence to contradict his testimony. The accused testified that he was unsure why he purchased the sword. He testified at p. 21 of the transcript “probably just — I don’t know. Hang it up in my room. ... or put it on the TV or something”. Bearing in mind that the burden is upon the Crown to prove that the sword is a weapon within the meaning of s. 2 of the Criminal Code, the only evidence before the trial judge was (a) that the accused probably bought it as a decorative item and (b) that it likely came from a novelty store. On this basis, the learned trial judge concluded that she had a reasonable doubt that the sword was designed to be used as a weapon. In my view, the learned trial judge properly placed Mr. Maguire’s evidence in the context of the issues she had to address. Is sword prima facie weapon? [19] The Crown argues that the sword should have been found by the trial judge to be prima facie weapon, in the same manner that firearm, or brass knuckles or other inherently dangerous items are considered weapons. On this basis, sword would be distinguished from knife, which is not necessarily weapon. (See R. v. Brooks (1988), 1988 CanLII 5207 (SK CA), 71 Sask. R. 297, [1988] S.J. No. 643 (QL) (Sask. C.A.) and R. v. Jimmy (B.W.) 2003 SKPC 112 (CanLII), (2003), 237 Sask. R. 84, [2003] S.J. No. 461 (QL) (Sask. Prov. Crt.) In R. v. Arrance, (1971), 1971 CanLII 1296 (BC CA), C.C.C. (2d) 341 at p. 345 the British Columbia Court of Appeal provides useful description of when an instrument may be found to be weapon on prima facie basis: One must, I think, start with the premise that a knife, being an instrument that is universally used for utilitarian, peaceful purposes is not prima facie designed to be used as a weapon, that is to say, in warfare, fighting, or combat to overcome an enemy in attack or defence — and this, notwithstanding that a knife, like a multitude of other things (e.g. baseball bats, hatchets, pipe wrenches and ice picks) can on occasion be used effectively in fighting offensively or defensively. There is nothing to show that the knife in question here was designed to be used as weapon: when it is closed, it is as innocuous as any other jackknife; in order to open it, two hands must be used; the locking device renders the knife safer when it is used for peaceful purposes. The switch-blade have described affords useful contrast: there is no apparent normal, peaceful use to be served by the device that can arm the closed instrument in flash; the purpose, or one of the purposes, of the device is to enable person who is looking for or expects fight to carry the closed knife concealed or partly concealed in one hand and, by the application of pressure to the button by the same hand, to have instanter in that hand knife with the blade pointing forward from the handle. [20] In this case the trial judge found that the sword had a blunt edge. Combined with the evidence that it is decorative item, she determined that it was not designed for use as weapon. The Crown argues that the learned trial judge ignored evidence that the sword also had tip. However, disagree that this one factor should have led her to find the sword was designed to be used as weapon. agree with the learned trial judge when she suggested that the “sword in question is not in the category of brass knuckles, firearms or switch blades, which are weapons”. [21] The learned trial judge was required to address s. of the Criminal Code with respect to the definition of weapon. There was evidence upon which she could conclude that the Crown had not proved beyond a reasonable doubt that the accused intended to use the sword as a weapon, or that the sword was designed to be used as a weapon. Accordingly, the Crown’s appeal is dismissed. J. J. E. McMURTRY
The Crown appealed the acquittal of the accused on a charge under s. 90 of the Criminal Code for carrying a concealed weapon. The accused was spotted at a recycling facility with a sword stuffed in the back of his pants. At trial, defence called evidence suggesting that a sword of that type could be purchased at a novelty store and had a blunt edge. The accused testified that he bought the sword with the intention of hanging it on the wall or putting it on his television. The trial judge found that the Crown had not established that the sword was a weapon or that the accused intended to use it as a weapon. The Crown appealed on the basis that the trial judge misapprehended evidence, ignored other evidence and improperly admitted opinion evidence. HELD: The evidence from the defence 'expert' indicated that he had particular experience that allowed him to recognize the sword and he was able to be of assistance to the Court because of his experience. No attempt was made by the Crown to contradict the evidence that the sword could be purchased at a novelty store and had a blunt edge. The Crown bore the burden of establishing that the sword was a weapon within s. 2 of the Criminal Code and the only evidence before the Court was that the accused probably bought it as a decorative item and that it likely came from a novelty store. On that basis, it was open to the trial judge to conclude that she had a reasonable doubt that the sword was designed to be used as a weapon. The trial judge properly considered the evidence in the context of the issues to be addressed. The Court held that a sword is not prima facie a weapon. The Crown appeal was dismissed.