R. v. Duong, 2019 BCPC 344

Citation: R. v. Duong 2019 BCPC 344 Date: 20191223 File No: 29696-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TANG BA DUONG ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. MEYERS Counsel for the Crown: J. Khan Counsel for the Defendant: M. LeHouillier Place of Hearing: Vancouver , B.C. Date of Hearing: December 23, 2019 Date of Judgment: December 23, 2019 [ 1 ] THE COURT: All right. Thank you. This is a Decision now on a charge against Mr. Duong. On the 18th of August, 2019, in Vancouver, he did carry or have in his possession a weapon, a knife, for a purpose dangerous to the public peace or for the purpose of

committing an offence, contrary to s. 88(1) of the Criminal Code. [2] I am indebted to both Counsel for bringing to my attention a number of cases that establish that the mens rea required in acharge such as this is that the accused intended to possess or have in his possession a knife an intended purpose dangerous to the publicpeace, or for his purpose of committing an offence. In other words, there is a subjective nature to the charge which requires the intentionof the accused to be proven beyond a reasonable doubt. That is to be distinguished from what the actions of an accused would“objectively” indicate.

In other words, just holding a knife or a rifle in a public place certainly could be interpreted, “objectively”, as apurpose dangerous to the public peace. [3] But the case law sets out that that is not good enough. The actions, in fact, must constitute a danger to the public or the publicpeace and it has to be the accused's intention to have the knife in his possession -- for the purpose of being dangerous to the public peace. [4] The cases that the Defence have produced and the Crown have not taken an issue with are R. v.

Chomenko, (ON CA), 1974 18 C.C.C. (2d) 353, a Decision of the Ontario Court of Appeal; R. v. Flack, a decision reported at (BCCA), 1969 1 C.C.C. 55, a Decision of the B.C. Court of Appeal. In the Flack case, Mr. Justice Davey, quite succinctly summarized whatI have probably said in a less elegant manner. At page 56, Mr. Justice Davey said: One of the elements of the offence is the purpose for which the person has or carries the weapon.

When he has possession of theweapon lawfully, I do not think an unpremeditated use of the weapon out of sudden anger or annoyance for the forbidden purpose isenough to convert a lawful possession or carrying of it into an unlawful one within the meaning of the section. The formation of theunlawful purpose, which may be inferred from the circumstances in which the weapon is used, must precede its use. The interval of timebetween the formation of the purpose and the use of the weapon need not be long.

It may in some cases be very short, but the gap mustbe significant. [5] At Bar, we have a case where two police officers come upon the scene from the back of where the action is happening. Theyare in a cruiser car and they see Mr. Duong with a knife in his hand. The two police officers’ observations are slightly different oncertain aspects, and the same on other aspects.

One of the officers has 10 years' experience; and the other officer was a trainee with abouttwo days of experience. [6] The main part that differs between the two officers, is that the more experienced officer said that from the cruiser car he sawMr. Duong facing, within arm's length another gentleman, holding a knife in his hand; that is, Mr. Duong was holding a knife in hishand, and pointing the knife at the other gentleman. He said that a woman was a little off to the side. He said that he saw Mr.

Duongappearing to be talking, his lips moving up and down, yelling, but he could not hear what was actually being said because he was still inthe cruiser car. However, he does see what he described as the person in a fighting stance, getting ready to have an altercation. [7] This is an observation made by a police officer with 10 years' experience. The two are facing one another. He does not see aweapon, a knife or anything in the hands of the other person. He does say the knife, though, was in Duong's hand and was pointeddirectly at the body of the other person.

He was unable to see what part of the body of the other person or at what height, the knife isheld on Duong's body. However, he does say the knife is being held directly in the direction of the body of the other person. He said thathe could see it was a tense situation and, per his observations, he believed that the people were face to face. He said they appeared to beverbally engaged. They were chest to chest, within an arm's length. He said that Mr.

Duong had what he called, a “boxer stance”, and hesaid that, from his point of view, it looked to him as if a fight was to break out and he jumped out of the car along with his partner, inorder to prevent the fight. Before jumping out, he put on the -- what do they call it again -- the what? [8] MR. LEHOUILLIER: One officer called it an air horn. [9] THE COURT: Yes. [10] MR. LEHOUILLIER: And Constable Wells said it wasn't an air horn, it was a siren. I don't think anything turned on. [11] THE COURT: Yes. I thought that was the difference that I heard. Okay. So Cst.

Wells, who was the more experienced officer,said it was a siren and he gave an illustration of the sound it made. The other officer said it was an air horn. [12] In any event, what happened was that, both of them got out of the car and immediately, the inexperienced officer, who was inthe passenger seat, said to Duong “drop the knife”. Duong dropped the knife. He told him to come forward. Duong came forward a bit.The officer told him to drop to the ground. The officer said that Duong was cooperative. Duong was then handcuffed and taken intocustody. The knife was seized.

The knife was a folding knife at the time that Duong was holding it. Both officers said that the knife wasout of the case. [13] What is interesting here is the differences between the Senior Officer and the Junior one is that he Senior Officer said that theknife was pointing directly at the body of the other person, whereas the Junior Officer said no, Duong had both of his arms down,extended fully downward, which means the knife was pointing to the ground in Duong's hand, and not directly at the other person.

Thisis, of course, is a significant factor to look at when I am assessing the case. [14] In any event, what both of them said, based on one's long tenure and experience and the other is only two days' of experience, isthat the situation was one where Duong appeared to be yelling, appeared to be agitated, appeared to be in a stance equivalent to a fightabout to start.

No other witnesses were called to give me any indication of any other inference which I could draw on in terms of whatwas going on there. [15] If I have one man with the knife, the other man without a knife, the two at arm's length apart, one yelling, one in what wasdescribed as a fighting stance, the other officer described Duong as being in an aggressive stance, about to fight, how can I infer anythingother than that the intent of Mr. Duong was to use that knife for a purpose dangerous to the public peace, or for the purpose ofcommitting an offence?

There is no other rational conclusion, based on the circumstances given in the evidence that I have for me tocome to any other conclusion.

[ 16 ] The cases that were provided by the Defence do, of course, say that the Judge has to rely on the evidence before them and the inferences that can reasonably be drawn from the evidence. I can conclude no other alternative in the absence of any other witness, unfortunately, including the victim. I have nothing that I can base Mr. Duong's intention on other than what is observed: Duong in an aggravated, agitated state, in a fighting position holding a knife.

Whether he is holding it down towards the ground or holding it in his hand, pointing it at the body of the other, there is no other inference that I could draw other than that his intent was either to threaten, intimidate, or use the knife to hurt the other individual. [ 17 ] Accordingly, he has to be convicted. (REASONS CONCLUDED)