Docket: CACR2098 Her Majesty the Queen Appellant - v. -, 2012 SKCA 84

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 84 Date: 2012-09-18 Between: Docket: CACR2098 Her Majesty the Queen Appellant - and - Kevin Sakebow Respondent Coram: Lane, Caldwell and Herauf JJ.A. Counsel: W. Dean Sinclair for the appellant Terra Lennox-Zepp for the respondent

Appeal: From: QBCR 47/10, J.C. Prince Albert Heard: September 18, 2012 Disposition: Allowed (orally) Written Reasons: September 20, 2012 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Caldwell Herauf J.A. [ 1 ] The respondent was acquitted of a charge pursuant to s. 88 of the Criminal Code . The Crown appealed the acquittal. The appeal was allowed orally with reasons to follow. [ 2 ] The trial judge made a specific finding of fact that the respondent possessed the weapon in question (a .22 caliber handgun) for self-defence.

The Supreme Court of Canada in R. v. Kerr , 2004 SCC 44 , [2004] 2 S.C.R. 371, held that possession of a weapon for self- defence is possession of a weapon for a purpose dangerous to the public peace unless there is evidence that the perceived attack was unavoidable. (See para. 38 per Major and Bastarache JJ. and para. 94 per Arbour and LeBel JJ.) The respondent did not testify at the trial and there was no evidence of an unavoidable attack. [ 3 ] The Supreme Court of Canada in R. v.

H. (J.M.) , 2011 SCC 45 , [2011] 3 S.C.R. 197, at para. 28 , held that the legal effect of findings of fact raises a question of law. In our view, the trial judge made an error of law by holding that the legal effect of finding the respondent had the weapon for a self-defence purpose leads to the legal conclusion the respondent did not possess the weapon for a purpose dangerous to the public peace. [ 4 ] The appropriate remedy in this case is to allow the appeal and enter a conviction for the charge under s. 88 of the Criminal Code .

An examination of all of the evidence including the nature of the weapon and the circumstances under which it was possessed leads to the inescapable inference the weapon was possessed for a purpose dangerous to the public peace. [ 5 ] The Crown appeal is allowed. The acquittal is set aside. A conviction is entered for the charge under s. 88 of the Criminal Code (count number five of the indictment). The case is remitted to the trial judge to impose a fit sentence.