2012 QCCA 153, 2012 QCCA 153

Unofficial English Translation R. c. Leblanc 2012 QCCA 153 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004438-097 760-01-037894-067 MINUTES OF HEARING DATE: January 27, 2012 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A. JACQUES DUFRESNE, J.A. APPELLANT COUNSEL HER MAJESTY THE QUEEN Mtre Hélène Langis CRIMINAL AND PENAL PROSECUTOR RESPONDENT COUNSEL CLAIRE LEBLANC Mtre Karl-Emmanuel Harrison KARL-EMMANUEL HARRISON, ATTORNEY

Appeal from an acquittal rendered on June 22, 2009, by the Honourable Judge Michel Mercier of the Court of Quebec (Criminal and Penal Division), District of Beauharnois. NATURE OF APPEAL : Guilt – possession of a prohibited weapon Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING Following the hearing of January 24, 2012. Judgment delivered from the bench. Marcelle Desmarais Hearing clerk PER CURIAM: JUDGMENT

[1] Reading between the lines, it seems obvious that the trial judge granted the motion of no evidence on the ground that theindictment did not allege an offence known to the law. [2] The indictment was worded as follows: [translation] On or about March 16, 2006, at Les Coteaux, District of Beauharnois, did have a prohibited weapon in her possession, to wit: pepperspray, without being the holder of a licence under which she could possess it, thereby committing the indictable offence set out inparagraph 91(2)(3)(

a) of the Criminal Code. [3] It goes without saying that "pepper spray" cannot be considered a prohibited weapon and that only the devices described in theregulation can (see

section 1,

Part 3 of the

Schedule to the Regulations Prescribing Certain Firearms and other Weapons, Componentsand Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted). [4] After elaborating on the necessity of including a device in the description of the offence and the fact that it seems obvious thatthe mere possession of pepper spray cannot constitute an offence,[1] the judge had the following to say: [translation] [51] In this case, there is a total lack of evidence as to the device in the charge as laid.

Saunders specified that there is a fundamentalprinciple in criminal law that the offence identified in the indictment must be proved and that a jury, properly directed in law, could notreasonably arrive at a guilty verdict if one of the essential elements is missing.

For this reason, the motion of no evidence must begranted. [Emphasis added.] [5] In other words, even if all the essential elements of the offence, as described in the indictment, had been proved, the prosecutioncould not have gotten a conviction. [6] It should be noted, however, that a few paragraphs earlier, the judge had deemed the evidence to be sufficient with respect to theexistence of an offence: [translation] [27] ...

These prohibited weapons – pepper spray cans – can be purchased off the shelf. [42] In this case, we can infer from the evidence that the accused was in possession of a prohibited weapon, that is, a described andprohibited device, with intent to traffic, or simply stated to sell them ... ". [7] In our view, as held by the Supreme Court in R. v. Moore, (SCC), [1988] 1 S.C.R. 1097, the judge could notgrant the motion for this reason. Taking into account sections 581 and following, the judge should have amended the charge and made itin keeping with the evidence and the requirements of the Code. Indeed:

(1) There was no prejudice in amending the charge since both parties proceeded on the basis of an offence alleging possession of aprohibited device and focused their arguments on the issue of intent (see the arguments at 165-240 of the appellant's factum).

(2) The reference to

section 91 Cr. C. was relevant to the analysis and could have compensated for the defect (subsection 581(5) Cr. C).

(3) The Criminal Code specifically authorizes an amendment if the charge "fails to state or states defectively anything that is requisite toconstitute the offence", if this thing is revealed by the evidence (paragraph 601(3)(b)(

i) Cr. C.) and the accused is not prejudiced by thevariance (section 601(5) Cr. C.). [8] There is not a total lack of evidence with regard to the offence or to several of the exhibits seized at the respondent's business – abusiness specializing in the sale of alarm systems.[2] At the very least, a court of first instance would have to consider the issue.

FOR THESE REASONS, THE COURT: [9] ALLOWS the appeal; [10] MODIFIES the charge as follows: [translation] On or about March 16, 2006, at Les Coteaux, District of Beauharnois, did have aprohibited weapon in her possession, to wit: a device designed to injure a person, immobilize or incapacitate them, by dispersing a liquid,whether or not vaporized, a powder, or another substance that could injure a person, immobilize or incapacitate them, in this case asolution of capsaicinoids, without being the holder of a licence under which she could possess it, thereby committing the criminaloffence set out in paragraph 91(2)(3)(

a) of the Criminal Code. [11] ORDERS a new trial to be held on this amended charge.

FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A. JACQUES DUFRESNE, J.A.