R. v. MacLaren, 2013 NSSC 156

SUPREME COURT OF NOVA SCOTIA Citation: R. v. MacLaren, 2013 NSSC 156 Date: 20130515 Docket: TRU410875 Registry: Truro Between: Danielle Christian MacLaren Appellant v. Her Majesty The Queen Respondent DECISION Judge: The Honourable Justice J. E. Scanlan Heard: May 7, 2013, in Truro, Nova Scotia Charge: THAT, Danielle Christian MacLaren, of Truro Heights in the County of Colchester, Province of Nova Scotia, on or about the 23 rd day of April, 2012, at or near Truro in the County of Colchester, Province of Nova Scotia, Did not being authorized by the Firearms Act to carry concealed a weapon, to wit: retractable baton, did carry it concealed, contrary to

Section 90 of the Criminal Code . Counsel: David J. Mahoney, Solicitor for the Appellant Paul Drysdale, Solicitor for Her Majesty The Queen By the Court : [ 1 ] Danielle Christian MacLaren appeals a conviction pursuant to

Section 90 of the Criminal Code , specifically she was convicted on a charge:

THAT on or about the 23rd day of April, 2012, at or near Truro in the County of Colchester, Province of Nova Scotia, DID not beingauthorized by the Firearms Act to carry concealed a weapon, to wit: retractable baton, did carry it concealed, contrary to

Section 90 ofthe Criminal Code. (As per the Information) FACTS [2] On April 23, 2012 the Appellant was arrested on an unendorsed warrant. At the time she was in possession of a purse thatcontained a retractable baton, referred to by the trial judge as an “ASP baton”. This ASP baton is similar to those used by police as partof their weapons arsenal. In this case a police witness described the ASP baton as the second most lethal weapon normally carried aspart of the police kit.

The Appellant concedes the ASP baton had a singular purpose; it was carried as a weapon. [3] The trial judge accepted the Appellant’s explanation that she did not place the baton in her purse with the intention ofconcealing it. She placed it there simply as a manner of convenience, the same manner that her wallet, various cosmetics, andmedication were placed there.

She indicated that she found it easier to carry it and a large number of other things in her purse, ratherthan in her pockets or in some other receptacle such as a waist holster. (See page 6 of the trial judge’s decision, tab 3 of the AppealBook). [4] Referring to the elements of an offence in relation to

Section 90 of the Criminal Code the trial judge noted the requirementfor both mens rea and actus reus. At page 7 of the decision he noted that: Here, the actus reus or physical component of the offence occurred when the accused placed the baton in her purse, and carried it withher. [5] With regards to mens rea the trial judge noted: She contends that it is necessary for the Crown to establish that the baton was placed in her purse with the goal or objective to “concealit”.

As opposed to placing it in her purse merely for a type of convenience. [6] The Learned Trial Judge referred to the Supreme Court of Canada decision in R. v. Felawka (SCC), [1993]4 S.C.R. 199 as well as cases since that decision. I accept that the Felawka case is an appropriate starting point for the purposes of thisappeal. In that case Mr. Felawka had gone target shooting and decided to use public transportation to return home with a rifle. Heboarded a train with the rifle wrapped in his jacket. Mr. Felawka did intend to conceal the weapon and did so because he did not wish toalarm anyone else using the train.

Fellow passengers became concerned and notified a Sky Train employee who approached Mr.Felawka. Mr. Felawka laughingly stated that he carried the gun because he was “going on a killing spree”. The trial judge accepted theaccused’s explanation that the remark was made in jest and that the purpose of wrapping the rifle in his jacket was so as not to alarmanyone else using the train. [7] The Supreme Court of Canada in Felawka noted that at para 25 for the purposes of what is now

Section 90 of the CriminalCode: The Crown is required to prove that the accused is: (1) carrying, (2) an object which is a weapon and known to the accused person to bea weapon, (3) in such a way as to conceal it. What should be the requisite mens rea for this offence? Is it sufficient if the Crownestablishes that the accused intended to conceal the object he knew to be a weapon? That is, that he or she intended to remove theweapon from the knowledge or observation of others, to keep it out of sight, or to hide it.

Or, on the other hand, does the Crown have toprove that the accused had the weapon and was concealing it for some unlawful purpose? There have been a number of cases whichhave dealt with this issue and they are not all in agreement. [8] Justice Cory noted at para 30 after reviewing the authorities that:

What then should be the requisite mens rea for this offence? Perhaps a solution can be arrived at by considering the aim or object of the

section itself. There is something extremely menacing and intimidating about the presence of a naked weapon. There is something even more sinister in the presence of a concealed weapon. No doubt the legislators enacting s. 89 (now s. 90 ) believed that weapons are usually concealed by persons on the way to commit crimes or after leaving the scene. Clearly then one of the goals of the

section is to discourage the prospective bank robber who might be apprehended on the way to the bank with a sawed-off shot gun concealed in his pant leg. Yet, I think the

section has a wider aim. All Canadians have the right to feel protected from the sinister menace of a concealed weapon. If it was ever thought that it was lawful to carry concealed weapons more and more Canadians might come to believe that it would be prudent for them to carry concealed weapons in order to defend themselves and their families. This might lead to a vigilante attitude that could all too readily result in an increase in violence in Canadian Society. Canadians are well satisfied with the security provided by the close regulation of the ownership and use of firearms.

They have every right to expect that concealment of weapons would also be prohibited or properly regulated. To fulfil the aim and object of s. 89, (now s. 90 ) it would then appear that the requisite intent or mental element should be that the accused intended to hide from others an object he knew to be a weapon. [ 9 ] I am satisfied that a compelling aspect of this case is that the Appellant knew this ASP baton was a weapon. She possessed it only for the purpose of having a weapon. The weapon, she said was for the purpose of dealing with her ex-partner who she was afraid might physically confront her.

The Appellant did assume a ‘ vigilante attitude ’ referred to in Justice Cory ’ s comments in Felawka . [ 10 ] This is distinct from a number of cases that have grappled with the issue where an accused person carries a knife, a commerative sword or just about any other item which could be used as a weapon. In fact common sense would suggest that almost any object has the potential to be used as a weapon, for example a fist full of keys could do as much damage as a set of brass knuckles.

An individual may be carrying a pocket knife or decorative sword which could have potential to be used as a weapon but are perhaps not carried for the purpose of being used as a weapon. I am satisfied that the line of cases dealing with concealment of those duel purpose items should be considered on a case by case basis. In the present case the ASP baton was a weapon and nothing else. [ 11 ] This case falls squarely within the comments envisaged by Justice Cory at para 30. That is, and I repeat: There is something extremely menacing and intimidating about the presence of a naked weapon.

There is something even more sinister in the presence of a concealed weapon...if it was ever thought that it was lawful to carry concealed weapons more and more Canadians might come to believe that it would be prudent for them to carry concealed weapons in order to defend themselves and their families. This might lead to a vigilante attitude that all too readily result in an increase in violence in Canadian Society. [ 12 ] In Felawka , the accused ’ s goal was to conceal the weapon so as not to alarm his fellow passengers. Mr. Felawka was convicted on the basis that he intended to conceal it.

As it relates to the Appellant, at page 12 of the Learned Trial Judge ’ s decision he noted: In Ms. MacLaren’s case, her purpose was not to conceal, but rather convenience. [ 13 ] I emphasize, however, the trial judge went on to say in that same paragraph: She was aware, however, that when she placed the object in her purse for that purpose, it was concealed from view. [ 14 ] I am satisfied that in situations where an accused person is carrying something that they know to be a weapon, and which is carried solely to be used as a weapon they must not conceal it.

Even though the reason for the putting of the ASP baton in the purse was not to conceal it, the result is the same. Persons choosing to carry weapons must do so in such a way as not to conceal those weapons. [ 15 ] It was noted by Judge Dalton in R. v. C(D.A.) , 2007 ABPC 171 :

Parliament has recognized the public danger in the carrying of concealed weapons - even with a minimally blameworthy state of mind - and has chosen to create an offence to avert the public danger. [ 16 ] In the present case, the Learned Trial Judge noted: The bottom line appears to be that society has an interest in seeing to it that people who knowingly carry weapons should do so visibly....Having chosen to carry what she knew to be a weapon, Ms. MacLaren was not without options.

For example, she could have obtained a holster to be worn at the belt (per Officer Degroot’s testimony), which would have made carriage of the baton both visible and convenient. Instead, she chose to carry it in her purse. The clear result of her action was to conceal it from view.

One is generally taken to have also intended the plain and obvious consequences of one’s actions, even if one such consequence (concealment), on its own, was not the motive or purpose of the act in the first place. (Page 14 & 15, tab 3 of the Appeal Book) [ 17 ] When persons such as the Appellant arm themselves with a weapon they assume certain obligations. For the purposes of this case the Appellant was obliged to carry the weapon in such a way that it is not concealed. [ 18 ] Persons carrying such weapons must do so openly.

To rule otherwise would simply encourage individuals to carry lethal weapons in a way that is most convenient to suit their personal preferences as opposed to carrying them in such a way as to address the concerns addressed by the laws created by parliament. The apparent goal of

Section 90 is to prevent people from being afraid that others may well be walking around with concealed weapons. [ 19 ] In R. v. Coughlan [1974] A.J. 136 , the Alberta Supreme Court Trial Division was dealing with an individual who was in possession of a “ knuckle-duster ” . The trial judge reviewed the

definitions of concealment and stated at para 9: In my view, these

definitions clearly import the idea of an intentional putting out of sight for the purpose of being out of sight. [ 20 ] The trial judge concluded that the mens rea of concealment required the accused to have the intention of putting the weapon out of sight for the specific purpose of keeping it out of sight as opposed to the situation of Mr. Coughlan where he simply put it in his jacket pocket not to hide it nor did he intend to use it as a weapon. He simply thought it was a convenient way to take the “ knuckle- duster ” to a friend he thought might be interested in seeing it and then return it to its owner.

In Coughlan as in many others there was the overriding confusion arising because the accused was not carrying the “ knuckle duster ” as a weapon. He was taking it to show a friend who might be interested. On that basis Coughlan may well be distinguishable. Even were it not distinguishable, I would choose not to follow the Coughlan decision which pre-dated the Felawka decision. I am satisfied that the mens rea required is the intention to place the ASP baton in an area where it was in fact concealed. It matters not whether the motive or purpose of the act was to conceal it.

The Appellant intended to place the weapon in her purse. A consequence of the Appellant placing the ASP baton in her purse was that it was concealed. The Appellant was obliged to take care that whatever means she chose to possess or carry the weapon it was not to be concealed. [ 21 ] The appeal on the conviction stands dismissed. J. 05/10/15