HER MAJESTY THE QUEEN Appellant - v. -, 2003 ABCA 92

R. v. Kerr, 2003 ABCA 92 Date: 2003 0321 Docket: 0203-0115-A3 IN THE COURT OF APPEAL OF ALBERTA ____________________________________________________ THE COURT: THE HONOURABLE MADAM JUSTICE McFADYEN THE HONOURABLE MR. JUSTICE BERGER THE HONOURABLE MR. JUSTICE RITTER ____________________________________________________ BETWEEN: HER MAJESTY THE QUEEN Appellant - and - JASON RICHARD KERR Respondent Appeal from the Acquittal by THE HONOURABLE MR. JUSTICE T.D. CLACKSON Dated the 22 nd day of February, 2002

____________________________________________________________________ REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE BERGER CONCURRED IN BY THE HONOURABLE MADAM JUSTICE McFADYEN CONCURRED IN BY THE HONOURABLE MR. JUSTICE RITTER ____________________________________________________________________ COUNSEL: J.A. Bowron For the Appellant C.B.

Davison For the Respondent ____________________________________________________ REASONS FOR JUDGMENT OF THE HONOURABLE MR JUSTICE BERGER ____________________________________________________ [ 1 ] The Crown appeals the acquittal of the Respondent on charges of second-degree murder contrary to s. 235(1) of the Criminal Code and possession of a weapon for a purpose dangerous to the public peace contrary to s. 88(1) of the Criminal Code . FACTS [ 2 ] The Respondent admitted certain facts pursuant to s. 655 of the Criminal Code (A.B. Vol. IV, p. E47): “1.

The deceased was Joseph Garon, an inmate at the Edmonton Institution. 2. Joseph Garon suffered stab wounds in a fight shortly after 8 a.m. on Sunday, January 16, 2000 in the eatery/dining area of Unit B at the Edmonton Institution. 3. Joseph Garon suffered no other injuries subsequent to those stab wounds.

4. Joseph Garon was transported from the prison to the Royal Alexandra Hospital where he was pronounced dead later the same morning. 5. Continuity of the eatery/dining area and of the second floor laundry room is admitted. 6. The forensic reports of Tracy Cody, Ken Okamura, and Beverley Himick are admissible for the proof of their contents without having to call their authors.” [ 3 ] Identification of the Respondent as the deceased’s assailant was not in dispute.

It was also acknowledged that the Respondent, using a homemade knife, was responsible for the multiple stab wounds sustained by the deceased which caused his death. [ 4 ] The Respondent, who at the time was serving a sentence of six years and two months for armed robbery and other offences, testified on his own behalf. He had been in the Edmonton Institution since August 1999. He knew the deceased to be a member of an inmate group called the Indian Posse.

This was confirmed by Charles Stephenson who was qualified as an expert in prison sub-culture and who had occupied the position of Preventative Security Officer at the Edmonton Institution since 1992. Mr. Stephenson, who was responsible for gathering intelligence on activities of inmates, including gang members, acknowledged that homemade weapons were common in the Institution. [ 5 ] The Respondent, who worked in the prison kitchen, testified that on the evening prior to the physical altercation, the deceased demanded coffee from the Respondent.

The Respondent was threatened and told that if the deceased did not receive any coffee the guard would find the Respondent with his head smashed in. Later, another inmate, also a member of the Indian Posse, made the same demand and threatened that if the coffee were not forthcoming the Respondent would do well not to be around the next day. [ 6 ] The Respondent construed these conversations as a threat that he would be “jumped by some guys and most likely stabbed.” (A.B. 476/35). He did not alert the guards to the threats from the deceased and his associate.

He felt that the only option available to the prison authorities would be to place him in protective custody where he would not be safe. He explained “if someone wanted to get you, you’re not really safe anywhere.” (A.B. 492/10-11). [ 7 ] Mr. Stephenson’s account of the situation at the Edmonton Institution lends some support to the Respondent’s contention that protective custody was not a viable solution. First, Mr. Stephenson confirmed that at the time of this incident: “The Indian Posse was kind of in control of the institution and subculture. They ran it basically.

I refer to it as a reign of terror.” (A.B. 318/2-4). Secondly, Mr. Stephenson confirmed that an inmate named Wesley Goosehead, who had cooperated with the police in the investigation, would have to be transferred from protective custody to another institution “in the interests of his safety.” [ 8 ] The next morning at 7.55 a.m., the Respondent, as part of his prison duties, set up the dining room for breakfast.

Anticipating the prospect of an attack, he grabbed his weapons which he had hidden under a sink (a metal knife that he had made from a big spoon, sharpened so that it had one edge and a point, and an ice pick made by sharpening a steel rod from an oven rack). He concealed the weapons in his pants and remained vigilant as various prisoners, including members of the Indian Posse, entered the dining room. The deceased and the Respondent exchanged words.

The deceased asserted that the Respondent had “punked him off.” The Respondent replied: “whatever.” The Respondent next heard the door to the dining room shut and saw that the deceased was coming at him with a homemade knife. The Respondent pulled out his steel knife. The deceased tried to stab him, but missed. The Respondent moved back and stabbed the deceased in the arm injuring him. The deceased jumped back, paused, and then struck the Respondent with his fist. The Respondent fell back into a chair whereupon the deceased tried to stab the Respondent in the face.

The Respondent attempted to evade the deceased with the result that the deceased stabbed him twice in the left shoulder. The Respondent then stabbed the deceased a number of times as they both attempted to stab each other. The Respondent then stood up and the deceased jumped back. The Respondent asked if they were done. The deceased shrugged and started to walk out of the dining room where he collapsed and died. [ 9 ] On cross-examination, the Respondent acknowledged that he pulled out the second weapon, the sharpened oven rack piece, after the deceased had punched him.

That weapon was intended for another prisoner, his “back-up”, but he did not have an opportunity to hand the weapon to him.

REASONS FOR JUDGMENT AT TRIAL [ 10 ] The trial judge accepted the Respondent’s evidence that he was defending himself against what he perceived to be “a lethal attack”. His testimony was adjudged to be compelling and consistent with both the physical evidence at the scene and the observations of other witnesses. The trial judge concluded that the Respondent’s perception of an “armed attack on his life” was “perfectly justified”.

Accordingly, he acquitted the Respondent of second-degree murder on the basis of self-defence. [ 11 ] On the charge of possession of a weapon for a purpose dangerous to the public peace, the trial judge held that the Respondent possessed his weapons for purposes of self-defence and, on that basis, found him not guilty. ANALYSIS A. Second-Degree Murder [ 12 ]

Section 34 of the Criminal Code reads as follows: “34.

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.” [ 13 ] The Crown argues that the recent decision of the Supreme Court of Canada in R. v. Cinous , 2002 SCC 29 (CanLII) , [2002] S.C.J. No. 28 applies to the case at bar. In Cinous , the Respondent had anticipated a lethal assault, and pre-empted that assault by shooting one of the people that he feared was planning to execute him. He testified that it did not occur to him to run away or to call the police. He also stated that the police would have arrived too late to save him.

The Court found that although there was evidence that would permit a jury to conclude that the accused’s perception that he was in mortal danger was reasonable, as was his perception that he was going to be attacked (the first two elements of self-defence), there was no evidence that would give an air of reality to the assertion that the accused believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm as required by s. 34(2) (

b) of the Criminal Code . [ 14 ] In so concluding, McLachlin, C.J. and Bastarache, J., speaking for the majority, stated (at para. 123): “Section 34(2) does not require that an accused rule out a few courses of action other than killing.

The requirement is that the accused have believed on reasonable grounds that there was no alternative course of action open to him at that time, so that he reasonably thought he was obliged to kill in order to preserve himself from death or grievous bodily harm. ...” [ 15 ] In the case at bar, there was ample evidence upon which the trial judge relied in finding that all of the elements of self-defence were made out. Appellate interference on this record is not warranted. B. Possession of a weapon for a purpose dangerous to the public peace

[ 16 ]

Section 88 of the Criminal Code reads as follows: “88.

(1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

(2) Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or (

b) is guilty of an offence punishable on

summary conviction.” [ 17 ] The critical issue is whether the Crown has proved beyond a reasonable doubt that the Respondent “unlawfully had in his possession a weapon, to wit: a knife, for a purpose dangerous to the public peace”. All remaining essential ingredients of the offence, it is conceded, are made out. [ 18 ] There is no onus on the accused to prove a lawful purpose for carrying a weapon. The onus is on the Crown to prove the dangerous purpose: R. v. Rent (2000), 1999 CanLII 1188 (ON CA) , 139 C.C.C. (3d) 447 (Ont.

C.A.). [ 19 ] The essential dispute is whether weapons carried for strictly defensive purposes will support a conviction pursuant to s. 88. [ 20 ] The Respondent contends that because he was carrying the weapon on the day in question for the purpose of defending himself from aggression, no conviction should result. He argues that having a weapon for the sole purpose of abating an apprehended breach of the peace from a threatened attack on the possessor is not a purpose dangerous to the public peace. [ 21 ] The Respondent relies upon the decision of the Ontario Court of Appeal in R. v.

G.(D.) (2000), 1999 CanLII 3221 (ON CA) , 139 C.C.C. (3d) 191. The Court overturned a conviction where the accused had a pool ball in his back pocket and had testified that it was carried as a deterrent against possible reprisal from certain individuals with whom he had fought earlier. Critical to the disposition was the Court’s conclusion that the trial judge mis-perceived the accused’s evidence as to his intention for possessing the weapon.

Importantly, the Court ordered a new trial without expressing any opinion as to whether the testimony of the accused, even if uncontradicted, would be dispositive on the issue of “dangerous purpose”. The fact that the Court in R. v. G.(D.) elected to order a new trial rather than substitute an acquittal is consistent with those cases that hold that no single factor, including acquisition and possession of a weapon only for the purpose of self-defence, is determinative of the issue of guilt or innocence. I would respectfully reject earlier decisions that may have suggested otherwise. ( R. v.

Thornton (1971), 1970 CanLII 374 (ON CA) , 2 C.C.C. (2d) 225 (Ont. C.A.) and R. v. Yaskowitch (1938), 1938 CanLII 102 (ON CA) , 70 C.C.C. 15 (Ont. C.A.)). In Yaskowitch , Middleton, J.A., delivering the judgment of the Court, stated (at p. 16): “On this appeal the accused complained of the conviction upon the ground that the weapons were for the purpose of defence and not for the purpose of offence and upon the ground that they were assembled in a private place. Both these contentions are, I think, entirely ill- founded.

An offensive weapon is defined by the Criminal Code, s. 2(25) , in terms which amply covered the weapons here in question. It is no answer to the charge that these weapons were intended for defensive purposes. They were offensive weapons. The purpose for which they are used is immaterial save when the crime is committed when the weapons are possessed for any purpose dangerous to the public peace.” [ 22 ] In R. v. Knudsen (1971), 1970 CanLII 1017 (BC CA) , 1 C.C.C. (2d) 576 (B.C.C.A.), Robertson, J.A. underlined the importance of taking all circumstances into account and rejected the rigid

interpretation of the language used in Yaskowitch , supra , in the following terms (at p. 583): “... it might be construed to mean that a person who kept a firearm in his home because he or she was afraid of burglars, or a man holding public office who, in troublous times such as we are going through now, kept a firearm in his home because he feared that it might be

invaded by persons intent on kidnapping him, had the weapon for a purpose dangerous to the public peace and so was guilty of a breach of s. 82 ... I would not therefore decide this case solely because it can be brought within the language quoted when read in a general way.” [ 23 ] In R. v.

Nelson (1972), 1972 CanLII 400 (ON CA) , 8 C.C.C. (2d) 29, the Ontario Court of Appeal, in overturning the acquittal and substituting a conviction, concluded that a claim of possession of a weapon for a purpose dangerous to the public peace could not be defeated even if the court accepted the accused’s explanation that it was being possessed for self-defence only. Gale, C.J.O., speaking for the majority, stated (at p. 32): “...

It is not inconsistent, in my view, for a trial Judge to say that he believes the accused when the latter says that from his point of view he had the weapon for defensive purposes, and at the same time to find that, notwithstanding such explanation, the accused in all the circumstances of the case did have the weapon in his possession for a purpose dangerous to the public peace.” [ 24 ] Gale, C.J.O. explained what he meant by “the circumstances of the case” (at p. 31): “A final conclusion as to what that purpose was is to be arrived at after considering all of the relevant circumstances of the case, including the nature of the weapon, the circumstances under which the accused had it in his possession, his own explanation for that possession, and the use to which he actually put it, if that sheds light on what his purpose was in originally having it.” [ 25 ] I would respectfully adopt the position taken by McGillivray, J.A. in R. v.

Nelson , supra , at p. 35: “... Subjective evidence is to be considered and weighed just as is evidence regarding the weapon but, in each case, only in relation to all other relevant evidence. A major factor in one case may or may not be of importance in the next. All evidence must come under review.

As various cases have demonstrated this would include evidence regarding the nature of the weapon, how it was acquired, the manner of its use, the person in question, the time, the place as well as relevant statements or actions of the accused and other related matters bearing upon the issue.” [ 26 ] It follows that, notwithstanding that a weapon was acquired or possessed only for the purpose of self-defence, regard must be had to other relevant evidence before an acquittal or conviction is recorded.

The circumstances proven in evidence in each case must, in the end result, be carefully canvassed. [ 27 ] In evaluating those circumstances, the trier of fact must bear in mind that to justify a conviction, the Crown must prove that the accused intended to possess the weapon for a purpose dangerous to the public peace and not simply that what was done was in fact dangerous to the public peace. R. v. Chomenko (1975), 1974 CanLII 1465 (ON CA) , 18 C.C.C. (2d) 353 (Ont. C.A.); R. v. Vandooren (1969), 1969 CanLII 952 (BC CA) , 4 C.C.C. 217 (B.C.C.A.). The use of the weapon does not constitute the offence: R. v.

Proverbs (1984), 1983 CanLII 3547 (ON CA) , 9 C.C.C. (3d) 249 (Ont. C.A.). That having been said, the use of the weapon is a factor which may furnish cogent evidence as to the purpose. It is not of itself dispositive. R. v. Ernst (1983), 1982 CanLII 357 (BC CA) , 1 C.C.C. (3d) 454 (B.C.C.A.). [ 28 ] It is a crime to carry a concealed weapon.

The actions of the Respondent in concealing the weapons fashioned from a spoon and an oven rod, in my opinion, play a critical role in the analysis of dangerous purpose in this case. [ 29 ] For reasons not entirely clear, the Crown elected not to proceed in reliance upon s. 90 of the Criminal Code which reads as follows: “90.

(1) Every person commits an offence who carries a weapon, a prohibited device or any prohibited ammunition concealed, unless the person is authorized under the Firearms Act to carry it concealed.

(2) Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (

b) is guilty of an offence punishable on

summary conviction. [ 30 ] It is trite that prisoners at the Edmonton Institution are precluded from possessing weapons of any kind for any purpose. A weapon openly brandished would be immediately confiscated and the offender charged with a disciplinary offence under the Prisons and Reformatories Act, R.S.C. 1985, c. P - 20 . In my opinion, the dangerous purpose requirement of s. 88 is found in s. 90 of the Criminal Code .

That is because there is an arguable distinction between possession of a weapon for defensive purposes, say in one’s own home where concealment is unnecessary, and possession of a weapon in a penitentiary setting. The very fact of concealment is sufficient to establish the ingredients of the crime set out in s. 90 . Even if the intended purpose is self-defence, concealment of a weapon is itself a crime and the unlawful purpose is thereby made out. Had it been the Respondent’s intention to deter the apprehended attack, it was open to him to display his weapons to the deceased in a timely manner.

The act of concealment rendered it more likely that there would be a breach of the peace. While concealment facilitated the Respondent’s counter-attack, it also contributed to an already dangerous situation of which the Respondent was fully aware. The decision to conceal his weapons evidences the Respondent’s choice of reprisal over deterrence. His unlawful purpose, one that is dangerous to the public peace, is thereby made out. [ 31 ] Cory, J., speaking for the majority in R. v. Felawka , 1993 CanLII 36 (SCC) , [1993] 4 S.C.R. 199, referred to the concern Canadians should have regarding concealed weapons.

At pp. 214-215 of the judgment, he said: “... 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. ...” [ 32 ] Accordingly, I cannot agree with the trial judge’s suggestion that the prevalence of illegal concealed weapons in the prison system entitled the Respondent to do the same in self-defence. The trial judge reasoned as follows (at A.B. 566/21-28): “Given the violent atmosphere prevalent at the institution at the time and the number of inmates with homemade weapons, it’s my view that the weapons possessed by Mr.

Kerr were not possessed contrary to Section 88(1) of the Criminal Code ; rather, it would seem that Mr. Kerr had his weapons, much like the world Super Powers have their weapons, to deter first strike and defend against it should it become necessary.” That reasoning, with respect, is a recipe for anarchy within a prison setting.

It encourages the proliferation of illegal homemade weapons, exacerbates an already volatile atmosphere, and makes it more likely that violent outbursts will result in grievous bodily harm or death. [ 33 ] Mindful of all of the circumstances of this case, I would allow the appeal, set aside the acquittal, and substitute a conviction for possession of a weapon for a dangerous purpose. The Respondent shall be brought before the learned trial judge for sentencing. APPEAL HEARD on JANUARY 30 , 2003 REASONS FILED at EDMONTON , Alberta, this 21 st day of MARCH , 2003

_____________________________ BERGER, J.A. I concur: _____________________________ as authorized by: McFADYEN, J.A. I concur: _____________________________ RITTER, J.A.