Her Majesty the Queen - v. -, 2019 SKPC 36

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 36 Date: June 10, 2019 Information: 991056703 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lee Ryan Appearing: D. Howart h For the Crown Self-Represented For the Defendant JUDGMENT B.G. MORGAN , J Introduction [ 1 ] On a pleasant late spring evening in Saskatoon, Bridgit and Michael Willfong, were putting up posters advertising an upcoming community event when they were approached by Mr. Ryan. A conversation ensued, and Mr.

Ryan took a knife he had in his hand and cut down one of the Willfong posters. He was subsequently charged under s. 88 of the Criminal Code , with possessing the knife for a purpose dangerous to the public peace.

There are two issues: 1) Mr. Ryan raises the issue that what he had was not actually a “knife”, but rather a tool; hence, it is not a weapon; 2) Was the possession of the alleged knife “for the purpose dangerous to the public peace”? Background [ 2 ] The two Crown witnesses were Bridgit Willfong and her husband, Michael. Mr. Ryan testified on his own behalf and called the arresting officer. [ 3 ] As there is defence evidence and Mr. Ryan testified, I, of course, have to consider the test in W.D.

I will therefore at this point fill out the background in more detail, complete with my findings of fact, and make assessments of credibility. [ 4 ] Bridgit Willfong was both credible and reliable as a witness. She was in the immediate area when this occurred, and although she left part way through the incident, I found she had both good observation and good recall of what she observed.

She did get somewhat frustrated during cross-examination, and although obviously unhappy with the tenor of that cross-examination, she maintained her composure and gave fair and responsive answers to what she was being asked. [ 5 ] I have the same impression of Michael Willfong. He was likewise credible and reliable, and he, although quite assertive at times, was fair in his answers both in examination-in-chief and cross-examination. [ 6 ] Mr.

Ryan’s attitude when he testified was likewise very polite and non-confrontational, although he did have a tendency to somewhat deflect issues both in examination-in-chief and cross-examination. I did not find him to be particularly credible nor his testimony to be reliable. [ 7 ] When the evidence of either Willfong conflicts with the evidence of Mr. Ryan, I prefer and accept the evidence of Bridgit or Michael Willfong. [ 8 ] Based on all the evidence, I find that as the Willfongs were putting up the posters, Mr. Ryan approached them on rollerblades. As Mr.

Willfong worded it “he was unsteadily wielding a large kitchen knife”. Mr. Willfong went on to say Mr. Ryan’s “lack of stability” was “very unsettling”. [ 9 ] Both Crown witnesses testified that Mr. Ryan was making comments to them that they could not put up those posters and made comments about how he had been arrested earlier for putting up posters, that the police had taken away the Exacto knife he had then, so he had to get another knife. As Ms.Willfong put it, she felt “something was wrong. . . off”, in Mr. Ryan’s demeanour and behavior. She was very clear that she herself was not concerned or afraid.

Rather, her overall concern was that Mr. Ryan was on rollerblades in possession of a large kitchen knife, something she did not think was common. She commented that it seemed to her that Mr. Ryan’s comments of being arrested earlier was “almost like he was warning us”. [ 10 ] Mr. Willfong had much the same comments. He stated that he had no concerns for his personal safety but was again more concerned for the public by the fact that this gentleman was acting somewhat erratically, and was in possession of an approximately 12- inch knife while on rollerblades, again referring to the unsteadiness of Mr.

Ryan’s posture. [ 11 ] Mr. Willfong was clear that it did not seem to him that Mr. Ryan was using the knife as a weapon, although he “definitely used it as a way of domination”. He also agreed that the knife may have been used as a method of Mr. Ryan stabilizing himself. [ 12 ] I find the Willfong’s assessment of the situation and what happened correct. Much was made during the trial as to precisely what happened at the bulletin board, and to the extent that the Willfongs have slightly different perceptions of precisely what happened, that did not affect their credibility in any way.

Each person has a different vantage point, different perspective, and may have been looking at different things, etc. The precise size of the poster, where it may have been placed, what posters may have been taken before Mr. Ryan was successful in getting his poster up, are not relevant.

[ 13 ] What I do find happened as a fact is that Mr. Ryan was using this knife to both take down other posters in order to put up his poster, and/or putting posters up. That was his own evidence. He also said he did this for the purposes of shedding light on some problems with the City bylaws respecting postering, and he acknowledged that he knew the knife would be visible and, in his word, “elevate” the statement he was trying to make respecting postering. It was clear during Mr.

Ryan’s testimony that he has an ongoing dispute with the City of Saskatoon (and, collaterally, Saskatoon Police Service) with respect to what should and should not be allowed with both the contents of posters and where the posters can be placed. Throughout his evidence, this theme repeated itself. This trial is not about any bylaw or policy of the City of Saskatoon. [ 14 ] I also find that Mr. Ryan did use the knife to stab at the poster Mr. Willfong was trying to put up, and in doing so, came within inches of Mr. Willfong’s splayed fingers. This was not done in an effort to actually strike Mr.

Willfong, or to frighten him: it was done in furtherance of Mr. Ryan’s work in taking down and putting up posters. It was, however, a dangerous thing to do, irrespective of his motive or intention. What must the Crown prove? [ 15 ] In order to secure a conviction, the Crown must establish two things: a. That the accused possessed a weapon; and b.

That the purpose of the possession was one dangerous to the public peace ( R v Kerr , 2004 SCC 44 at para 23 , 185 CCC (3d) [ Kerr ]) [ 16 ] The first determination is fact-specific and does not need a deep analysis. [ 17 ] The second leg, however, requires that “…the trier of fact must first determine what was the accused person’s purpose; this is a subjective determination.

The trier of fact must then determine whether the purpose was in all the circumstances dangerous to the public peace; this is an objective determination (Kerr, supra, para. 23 ) [ 18 ] In undertaking this, a judge can look at what the accused person testified to, and: A final conclusion as to what the purpose is to be arrived at after considering all 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, and the use to which he actually put it, if that sheds light on what his purpose was in originally having it”. (para 29 Kerr, supra). 1.

Was this knife a weapon? [ 19 ] Mr. Ryan’s evidence was that what he had was a chef’s knife, not some kind of a meat knife, and he disputed the size of it as testified to by Mr. Willfong. He said it was not sharp because he had sanded the blade and had modified it so it could not cut skin. He said it looked like a knife, and the size and description testified to by the Wilfong’s generally matched, in most ways, the knife. [ 20 ] I have no reason to doubt that, and I find that the knife Mr. Ryan had was what is commonly called a large kitchen knife.

It had a blade approximately 9 or 10 inches long, and it clearly had a sharp point as Mr. Ryan used it in an overhand stabbing motion in order to remove the posters. I cannot say that the blade was sanded, as Mr. Ryan insists, but I do find the knife could cut, if the blade was used for that purpose. Cutting things is the purpose of a kitchen knife, sanded or not. [ 21 ] In argument, Mr. Ryan argued that a knife is something that could cut, and the knife he had could not cut as had sanded it.

He argued that it did not matter if what he had was a knife; it mattered if it was a weapon. [ 22 ] I am not prepared to put such a fine line on what is, and is not, a knife. Whether or not this is a knife is not really a matter that needs to be disputed. Throughout his evidence, Mr. Ryan referred to it as a knife. The fact that it could not cut anybody (allegedly) can equally be said about a butter knife, which is no less a knife. Mr. Ryan seemed quite focused on the issue of how sharp the knife was, saying “I could do anything with that knife a spoon could do”. I disagree with that.

There is no question this was a knife and there is no

point in getting tied up in semantics on that issue. [ 23 ] A knife is not defined in the Criminal Code , although a weapon is. Mr. Ryan is somewhat correct in arguing that the issue is not if he had a knife; rather, the issue is, firstly, if he had a weapon, as that is what the charge specifically refers to. On the facts, I have no hesitation on saying that the Crown has proven that Mr. Ryan possessed a weapon, and that said weapon was a knife. 2. What was the purpose of having the knife? [ 24 ] The live issue in this case deals with the purpose for which Mr. Ryan possessed that weapon. I find as a fact that Mr.

Ryan used that knife to stab at a poster, and in fact rip it down using that knife. However, he testified to have other purposes. [ 25 ] There is no doubt that Mr. Ryan possessed a weapon. Mr. Ryan argues that the purpose was to use it as a tool, and that a reasonable person would not believe that a knife in public would be used for the purpose of a weapon. In essence, he argues that no actual harm could have resulted on the facts of this case.

He argues that his purpose was safety, that is, he wanted to “escalate the situation and bring it to the public’s attention”, referring to the City postering bylaw’s numerous (in his view) defects. [ 26 ] In Kerr the Supreme Court of Canada dealt with s. 88 in a situation in which an inmate at a federal penitentiary had a knife for the purpose of self-defence. In that case, all the justices on the case look at the issue of the “purpose” albeit with different specific requirements. What I take from that case, however, are two main points: a.

The key element is what the purpose of the possession of the knife was for, not what it was actually used for, although that is part of the number of factors the Court has to look at in any particular case; b. There is a subjective element that must be considered. However, one must again look at everything in context. [ 27 ] In this case, the real issue is that of the intention, the purpose of Mr. Ryan in carrying the knife. Based on his own evidence, there is no question the purpose he had was to get involved in some kind of “confrontation” in his words.

In cross-examination, he said his object was to get attention. He was not intending to get charged, but to make a point with the City. That is, if he is in possession of a knife, and gets into some kind of a confrontation, the City of Saskatoon would see the error of its way respecting the bylaws. [ 28 ] Mr. Ryan went on to say he was “enjoying the situation” respecting the Willfong’s as he was “playing the role of law enforcement”, apparently by being forced to carry a knife. He admitted to “violently attacking and stabbing the tape” around the posters. [ 29 ] All of this purpose is confirmed by Mr.

Willfong, who said Mr. Ryan seemed “pretty happy” in his demeanour and that “he was enjoying the confrontation”. Further, he was asked multiple times to put the knife away during this discussion or confrontation, and he refused to do so. Conclusion [ 30 ] The law is abundantly clear that the Crown needs to establish two facts in order to get a conviction. 1) The first is that Mr.

Ryan possessed a weapon, which in this case is indisputable; and 2) That the purpose of that possession was dangerous to the public peace. [ 31 ] Generally speaking, public peace refers to “a state of order, the very opposite of a state of violent confrontation, . . .” (at para 64 of Kerr; see paras 63 - 66 for a general discussion).

The public peace can encompass a number of different situations and what might be dangerous to that public peace is also quite broad. [ 32 ] In this case, when one goes out with a knife, for the purpose of getting into a confrontation or at the very least, some type of behavior that will come to the attention of the City Police, he is clearly carrying the knife for a purpose dangerous to the public peace.

[ 33 ] I find that the Crown has proven both the actus reus and the mens rea of this offence, and I find Mr. Ryan guilty. _______________ B.G. Morgan, J