2011 MBPC 20, 2011 MBPC 20

Date: 20110307 CITE# 2011 MBPC 20 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Michael Desautels, ) for the Crown - and - ) ) Steven Minh Tran, ) Ian Garber, Accused ) for the Accused ) ) ) ) Judgment delivered: March 7, 2011 in The City of Winnipeg in the Province of Manitoba ) R.L.

Pollack P.J. [ 1 ] Steven Minh Tran (the “Accused”) stands charged that he ….did have in his possession a prohibited weapon, to wit: brass knuckles without being the holder of a license under which he may possess it contrary to section 91(2) of the Criminal Code …. [ 2 ] The case for the prosecution proved that, at the material time and place, the Accused possessed a brass knuckles weapon that is the subject of a valid Criminal Code prohibited weapons order. [ 3 ] Upon the close of the prosecution’s case, the defence immediately elected not to call evidence. [ 4 ] The prosecution thus addressed the Court first, citing the evidence of knowledge and control that implied possession:

a) Accused was found at a lottery terminal in a beverage room;

b) Accused was asked if he had any weapons;

c) Accused produced the brass knuckles. [ 5 ] The defence then addressed the Court, citing the absence of any evidence that the Accused was not a holder of a license for the brass knuckles. The defence say that the decision of the prosecution to include in the count the allegation that the Accused did not hold a permit carried with it a proof burden. [ 6 ] Criminal Code

section 117.11 clearly states that, in a case such as this, if: ….any question arises as to whether a person is the holder of an authorization, a licence or a registration certificate, the onus is on the accused to prove that the person is the holder of the authorization, licence or registration certificate …. but the defence say that no “question” arose here because the prosecution failed to adduce any evidence of an essential averment. [ 7 ] The defence did not move for dismissal at the conclusion of the prosecution’s case on the ground that no evidence had been tendered on an essential ingredient of the charge.

To put it another way, the defence did not challenge the Court’s jurisdiction to put the Accused to his election whether to call evidence. [ 8 ] The defence having rested, I am now considering the evidence. The only evidence before me establishes that, at the material time and place, the Accused possessed a brass knuckles weapon that is the subject of a valid Criminal Code prohibited weapons order.

There is no evidence from the prosecution or the defence that the Accused had, at the material time and place, a brass knuckles possession license. [ 9 ] The clarity of the evidence satisfies me beyond a reasonable doubt and I therefore find the Accused guilty. “ORIGINAL SIGNED BY:” R. L. Pollack P.J.