R. v. LeMoel Date:, 2013 BCPC 307

Citation: R. v. LeMoel Date: 20130722 2013 BCPC 0307 File No: 19855-1 Registry: Rossland IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CASEY KEITH LEMOEL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MROZINSKI Counsel for the Crown: S. Sinclair Counsel for the Defendant: B. Suffredine, Q.C. Place of Hearing: Rossland , B.C. Date of Hearing: May 28, July 3, 2013 Date of Judgment: July 22, 2013

[ 1 ] Casey Keith LeMoel pleads not guilty to charges that from August 1, 2010 to October 5, 2010 he was in possession of prohibited weapons contrary to ss. 91(2) and 92(2) of the Criminal Code and that he transferred prohibited weapons to two persons, namely Mike Fairhurst and Connor Philips contrary to s. 101(1) of the Code . [ 2 ] In this trial, the Crown alleges that Mr. LeMoel was the owner/operator of Bargain Pawn in Trail BC.

On the dates alleged, there is no question and I find, that various prohibited weapons, namely a butterfly knife, and a set of brass knuckles also useable as belt buckles were either available for sale or sold in the store. [ 3 ] The question in this trial is whether the Crown has proven beyond a reasonable doubt that Mr. LeMoel was in possession of the prohibited items and or transferred those items as charged. [ 4 ] It is clear on the evidence and I find that the business license under which Bargain Pawn was operating in 2010 was issued further to an application for a license for that business by Mr.

LeMoel which was filed with the City of Trail on February 4, 2010. As Mr. LeMoel’s application, filed as Exhibit 2 evidences, the license number issued under that application was BAR350/#9659. It is the same number on the license shown in photograph 19 of Exhibit 15 which license was hanging on the wall of the premises in October, 2010. [ 5 ] The Crown relies on this evidence, the fact that Mr. LeMoel was in the store on the day police executed a search warrant on October 5, 2010, and the evidence of Mr. Philip who the Crown says ordered a butterfly knife from Mr. LeMoel, as proof that Mr.

LeMoel had the requisite control over these prohibited items to constitute possession for the purposes of the Criminal Code . [ 6 ] In his defence, Mr. LeMoel called his common law spouse, Ms. Filipelli, who testified that she was in fact the owner of Bargain Pawn at the material time and the person in control of the business, including the ordering of items at issue, being the prohibited weapons. [ 7 ] It is the case that even though Mr. LeMoel made his application for a business license for Bargain Pawn in February 2010, the license was not issued until May, 2010. Ms.

Filipelli testified on May 1, 2010, she submitted an application for a business license for Bargain Pawn, the very same business, on behalf of herself and Mr. Taz Cameron. [ 8 ] Ms. Filepelli produced her application and a letter to the City in which she apologized for sending an incorrect application only moments earlier in the name of Mr. Le Moel and Mr. Cameron, and indicated the owners should be herself and Mr. Cameron. Ms.

Filipeli testified that she faxed this application and letter, as well as the previous application to the City and she produced a fax transmission verification report for both applications indicated they were sent in quick succession on May 1, 2010 to 250-364-0830. The City of Trail Business License Application indicates that is the City number. [ 9 ] There is no evidence the City ever received or at least filed these documents and as I say the City did issue a business license but it was clearly based on the application by Mr.

LeMoel. [ 10 ] I accept that there is nothing on the face of the business license to indicate it was issued on the basis of Mr. LeMoel’s application. If Ms. Filipelli made an application, she would not have known that the license issued in May was not based on her application. [ 11 ] This coupled with Ms. Filipelli’s testimony that she did all of the ordering in the store and that Mr. LeMoel did not do any ordering at least at the material time is some evidence to suggest that it was Ms. Filipelli and not Mr. LeMoel who had the care and control of the prohibited weapons at the material time.

It is true that some subsequent actions by the couple involving the Bargain Pawn store such as changing its name and ownership both informally and formally makes Ms. Filipelli’s claim somewhat suspicious but I cannot conclude that Ms. Filipelli is not being truthful. [ 12 ] I find on the evidence that there is reason to suspect at least that Ms. Filipelli operated the store and did some if not most of the ordering. [ 13 ] Given her evidence, I cannot be satisfied beyond a reasonable doubt that Mr.

LeMoel had the requisite care and control of Bargain Pawn such that he could be found in possession of the various prohibited weapons found in that store. For these reasons, he is entitled to an acquittal on counts 1 and 2. [ 14 ] That brings me to count three which is the charge that Mr. LeMoel transferred prohibited weapons to Mr. Philips and Mr. Fairhurst. [ 15 ] I have no difficulty finding that Mr. Fairhurst purchased some throwing stars from Bargain Pawn. Even accepting that these are prohibited weapons, there is no evidence tying Mr.

LeMoel to this sale. [ 16 ] On the other hand, I have no difficulty finding that Mr. Philips ordered a butterfly knife from Bargain Pawn and that he paid Mr. LeMoel for the knife in that same transaction. I accept that Mr. Philips later picked the knife up at the store from another individual. [ 17 ] Mr. LeMoel asks this court to disregard the evidence of Mr. Philips for two reasons. First, as counsel put it in argument, Mr. Philips testified that he thought he dealt with “Casey” at the store. Secondly, counsel indicated that Mr.

Philips testified he purchased the knife from Bargain Pawn in August 2011, obviously well outside the time period set out in count 3. [ 18 ] Mr. Philips, a young man age 19, briskly recounted the circumstances under which he acquired a butterfly knife from Bargain Pawn. He testified that he bought the knife intending to give it to his girlfriend for a present but did not in the end because it fell apart

almost as soon as he got it home. Mr. Philips testified that he acquired the butterfly knife from Bargain Pawn in two stages. When hefirst went to the store he ordered and paid for the knife. He testified that during this first transaction, he dealt with Casey. The secondtime he went to the store he picked the knife up from another older man, whom he recalled was skinny and who had a dog. [19] Mr. Philips did not say he thought he dealt with Casey. He testified that he dealt with Casey. He described the man he dealtwith, which description fit Mr. LeMoel and he then identified Mr.

LeMoel who was sitting in the gallery of the court room in between aman and woman. [20] I am left with no doubt that Mr. Philips knew Mr. LeMoel and that he dealt with Mr. LeMoel at Bargain Pawn. I accept hisevidence that he looked through a catalogue in the store and there spotted a butterfly knife. I accept that Mr. LeMoel was present whenMr. Philips filled out his order form and that Mr. Philips paid Mr. LeMoel cash for the knife and received a receipt generated by the cashregister which he did not keep. [21] It may well be that Mr. LeMoel did not subsequently order the knife for Mr. Philips as Ms.

Filipelli testified. [22] As for timing, while Mr. Philips did estimate that he ordered the butterfly knife from Mr. LeMoel at Bargain Pawn in August,2011, he agreed that only a month or so later police seized the knife from him. I find on the evidence that police seized the butterflyknife from Mr. Philips on October 7, 2010. In the result, it is clear that Mr. Philips is wrong on the year in which he purchased theknife. Obviously he purchased it in 2010 and well within the time period set out in count three. I would not discount his evidence on thisbasis. [23] The question becomes whether Mr.

LeMoel in the circumstances described by Mr. Philips, ran afoul of s. 101(1) of the Code. That

section provides that: Every person commits an offence who transfers a firearm, a prohibited weapon, a restricted weapon, a prohibited device, anyammunition or any prohibited ammunition to any person otherwise than under the authority of the Firearms Act or any other Act ofParliament or any regulations made under

an Act of Parliament. [24] As I have noted earlier, I am left with no doubt that a butterfly knife such as the one obtained by Mr. Philips from Bargain Pawnis a prohibited weapon under the Criminal Code. [25] As to whether under the circumstances Mr. LeMoel transferred the knife to Mr. Philips, I have considered the definition set outin s. 84 of the Code which provides that “transfer” means sell, provide, barter, give, lend, rent, send, transport, ship, distribute or deliver. [26] I have found that Mr.

Philips ordered the butterfly knife after seeing it in the catalogue on display on a counter in Bargain Pawn.I accept that on that day he dealt with Mr. LeMoel. I accept that Mr. LeMoel took money from Mr. Philips for the order and gave him areceipt. In my view this is a sale for the purpose of s. 84 and a transfer for the purpose of s. 101(1) of the Code. [27] The more difficult question is whether the Crown has proven beyond a reasonable doubt that Mr. Lemoel transferred the knife,but that he had the requisite quilty state of mind.

This is particularly important in the case of store employees or personnel, which is themost I can say about Mr. LeMoel given this evidence and whether those persons ought to be convicted of selling items they may notknow are prohibited. [28] In this regard, I note the evidence of Mr. Philips, which I accept, that he had no idea the knife he purchased was prohibited.

Ashe described it, the item in no way bore the hallmarks of a weapon the average person might reasonable conclude was prohibited. [29] The Crown submits that this is no more than a mistake of law which is no defence and that the mens rea requirement in thiscase is simply that Mr. LeMoel know that he is transferring something. That, I agree, has obviously been established. [30] Mr. Suffredine submits that at a minimum, the mens rea in this case would require some knowledge or wilful blindness on Mr.LeMoel’s part as to the fact the knife he assisted in selling to Mr. Philips was prohibited. Mr.

Suffredine submits, and I accept given myfindings above, that at best Mr. LeMoel would be a party to the offence of transferring a prohibited weapon. Mr. Suffredine furthersubmits that as such,“To be guilty of the offense by aiding Mr. Lemoel must knowingly and intentionally assist and encourage theprincipal to commit the offense. The evidence of the crown must prove that he did so and the intention required is a subjective intentionor fault element. On the present facts the evidence is that Mr. Lemoel may have accepted a written order, together with payment andpassed that along.

That falls short of any evidence that he in any way encourage the commission of a crime, intended to commit a crime,or knew a crime would be committed. There is no evidence of subjective mens rea on his part.” [31] Mr. Suffredine adds that in order to succeed the crown must meet the test, as described in Regina v. Roach (ON CA) . There, Mr. Suffredine notes, the court held that to be guilty of aiding the principal the crown must prove actual knowledgeand intent, not merely recklessness.

The court summarized its findings at paragraph 44 where it said “[44] ... the mens rea for party liability is contained in s. 21(1)(

b) of the Criminal Code that requires that the aid given by the accessoryto the principal be "for the purpose of aiding" the principal to commit the crime of which the accessory has been charged. To beconvicted as an aider, the defendant must not only assist the principal in the commission of the offence, but must intend to do so,although it is not necessary that the aider know all the details of the crime committed. It is sufficient that the aider was aware of the typeof crime to be committed and knew the circumstances necessary to constitute the crime that he or she is accused of aiding.

On the basisof Woolworth and McDaid knowledge will include actual knowledge or wilful blindness, but will not include recklessness. This accordswith Professor Roach's approach regarding the high level of mens rea required for party liability and with the opinions of the other legalscholars that I have reviewed.”

[ 32 ] Of course the Crown bears the onus of proving both the actus reas and mens rea in this case. It has proven the act, of that I have no doubt. However, there is as Mr. Suffredine submits, insufficient evidence to conclude beyond a reasonable doubt that Mr. LeMoel had the requisite mens rea necessary for a conviction in this case on the facts as I have found them. I accept that Mr. Lemoel was in Bargain Pawn at the material time, and that Mr. Philips filled out an order form for a knife shown in a catalogue which was open on the counter in full view of customers and store personnel alike. Mr.

LeMoel took payment from Mr. Philips and that I find constitutes the sum total of Mr. LeMoel’s involvement on the evidence in this case. [ 33 ] There is insufficient evidence on these facts from which I can infer any form of knowledge on the part of Mr. LeMoel, objective or subjective, that he was engaged in the transfer of a prohibited weapon. [ 34 ] For these reasons, Mr. LeMoel is acquitted on all three counts. _______________ L.J. Mrozinski