Court of Appeal for British Columbia

R. v. Sulland

Date:1982-11-17

D. R. Pendleton, for appellant.

A. M. Stewart, for the Crown.

(Vancouver No. CA820276)

[1] 17th November 1982. Seaton J.A. (Macdonald J.A. concurring):— The appellant appeals from a conviction for having in his possession a weapon, a knife, for a purpose dangerous to the public peace. (Criminal Code, R.S.C. 1970, c. C-34, s. 85 [re-en. 1976-77, c. 53, s. 3]).

[2] He was approaching a bus stop at an intersection at about midnight when he was arrested. He had been at school that day, later at work where he used his knife to cut hose, and later at his mother's. He was on his way from his mother's to his own home when he was stopped. He was stopped by the police because he appeared to be hiding something under his jacket. It was a half-full beer can. The knife was visible because it was in "a small leather case" (the police officer's description) that hung part way below his short jacket. The trial judge found that he used the knife for "useful purposes" on occasions but that, at the time of his arrest, he had it "for self-protection or to use if attacked".

[3] About one half hour before the appellant was arrested, there had been, according to the police officer, "a large fight in the area … involving a large number of parties which had scattered from the scene".

[4] The nature of the knife is important. The first question is whether it is a weapon as that term is defined in s. 2 of the Code:

"offensive weapon" or "weapon" means

(a) anything that is designed to be used as a weapon, or

(b) anything that a person uses or intends to use as a weapon, whether or not it is designed to be used as a weapon …

[5] The knife is described by the trial judge as a jack-knife. It is a jack-knife, but a large one. The body, five inches long, is made of wood and brass. The blade, three and a quarter inches long, is heavy and about three quarters of an inch wide. The end is blunt; it appears that the tip has broken off. Where there was once a point, there is now a flat area one quarter inch across. There is a nick or flaw part way down a knife edge that is extremely dull. The blade does not sit firmly when open; there is an arm that appears to be a locking device but it does not work well.

[6] You could not stab very effectively with this knife; the blade would probably fold back on your fingers and the square end would not penetrate readily. You could not slash very effectively either; the blade is too short and its cutting edge too dull. This knife was not designed to be used as a weapon. It does not meet the first definition of a weapon in the Criminal Code. Like anything else, it can meet the second definition if it is shown that the appellant intended to use it as a weapon.

[7] The trial judge made findings of facts:

I find that the police asked the accused what the knife was for and that he answered words to this effect, "For protection. To use if I get jumped on or someone comes on to me." I have no doubt that Sulland does use the knife for useful purposes on occasions. However, I find as a fact from all of the circumstances, including the conversation I have just referred to, that he had it at that time for self-protection or to use if attacked.

The trial judge then concluded his judgment:

On those facts it is my view that the accused is carrying the knife for a purpose dangerous to the public peace. I do not believe that it is proper in our present society for persons to arm themselves when they walk the streets, excusing themselves with the statement that it is for self-protection. This is a matter which I believe, if found as a fact, can be considered in the question of sentence. I am of the view that Parliament intended to prohibit this type of conduct. I conclude then on these facts that the Crown has proved its case and the accused is guilty of the charge.

In my view, s. 85 does not prohibit persons arming themselves for self-protection, and self-protection is to be considered on the question of guilt or innocence as well as on the question of sentence. It is not of itself proof of guilt.

[8] R. v. Nelson, 1972 CanLII 400 (ON CA), [1972] 3 O.R. 174, 19 C.R.N.S. 88, 8 C.C.C. (2d) 29 (C.A.), is the leading case on this question. Gale C.J.O., speaking for the majority, said at p. 32:

It is not inconsistent, in my view, for a trial Judge to say that he believes the accused when the latter says that from his point of view he had the weapon for defensive purposes, and at the same time to find that, notwithstanding such explanation, the accused in all the circumstances of the case did have the weapon in his possession for a purpose dangerous to the public peace. (The italics are Seaton J.A.'s.)

That case dealt with a double-bladed, home-made knife, having an 18-inch blade, that was concealed in the respondent's trousers when he went to a club. In a confrontation he produced the knife and injured several people. He was acquitted at trial because of the finding that he had the weapon for defence, a finding that the trial judge thought inconsistent with a verdict of guilty. Gale C.J.O. said of that at p. 31:

In my view, this was error in law. The subjective purpose of the accused, as testified to by him, is a factor, but only one of the factors, which must be considered by the trial Judge in deciding that was the "purpose of the possession".

A final conclusion as to what that purpose was is to be arrived at after considering all of 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 for that possession, and the use to which he actually put it, if that sheds light on what his purpose was in originally having it.

That approach has been followed in the Ontario Court of Appeal: see R. v. Leschyshyn (1973), 1973 CanLII 1394 (ON CA), 11 C.C.C. (2d) 13, and, in this court, see R. v. Cejka, 24th June 1982 (not yet reported), and R. v. Bresatz, 14th March 1977 (unreported).

[9] In my view, one does not commit the offence with which we are concerned if one carries a weapon for self-defence that is an appropriate instrument with which to repel, in a lawful manner, the type of attack reasonably apprehended, and if the person carrying it is competent to handle the weapon and is likely to use it responsibly. In the absence of other circumstances, such as conduct calculated to provoke an attack, the purpose is unlikely to be dangerous to the public peace. That an attacker might be repelled forcefully, and even injured, is not a danger that the section refers to. In that case the attack, not the response to it, breaches the public peace.

[10] It might be unwise to defend yourself or even prepare to defend yourself. The presence of a weapon might result in greater injury. In the secure surroundings of a courthouse we might think it better that people be beaten or raped than that they, or their assailant, be injured with a weapon. But those who must walk unsafe streets and who are not robust might feel quite differently. They might not be prepared to accept a beating. Some might choose to defend themselves, and they might carry something with which to defend themselves. A woman might have a hat pin and no hat. Is she, without more, guilty of this crime? Surely not. This is a very serious crime that warrants imprisonment for up to ten years.

[11] The Code does not prohibit instruments for self-defence and s. 85 should not be converted into such a prohibition. There are many other prohibitions in the Code. They focus on the weapon (for example, s. 89 [re-en. 1976-77, c. 53, s. 3]) or the place it is taken (for example, s. 86 [re-en. 1976-77, c. 53, s. 3]), or the manner in which it is carried (for example s. 87 [re-en. 1976-77, c. 53, s. 3]), or a combination of factors (for example s. 88(2) [re-en. 1976-77, c. 53, s. 3]). Section 85 is narrow; it focuses on purpose. It does not carry the weapons prohibition burden by itself. It is part of the group of prohibitions considered by Parliament in the Criminal Law Amendment Act, 1977 (Can.), c. 53.

[12] I conclude that when the trial judge equated self-protection with a purpose dangerous to the public peace he erred.

[13] Should the conviction stand, notwithstanding the error? I think not. The appellant was walking alone and at night in an area in which trouble could be anticipated. There had been a fight involving a large number of persons only half an hour earlier. He carried the knife closed, in a case, and unconcealed. It was a modest tool that was not designed as a weapon and was not likely to cause serious injury. He had it for many purposes, at home, at work and at his mother's. He was not coming from or going to a place where his jack-knife would be inappropriate. His carrying of the knife did not endanger the public peace at all.

[14] Should there be a new trial? This court, in R. v. Sparrow, 10th November 1969 (unreported), dealt with a case much like this one. The appeal was allowed and an acquittal entered. A number of trial judges faced with similar cases have acquitted. R. v. Winn (1978), 1978 CanLII 2361 (BC SC), 41 C.C.C. (2d) 259 (B.C. Co. Ct.), is an example. R. v. Udy, an unreported decision of the County Court of Vancouver, 5th October 1981, and Re M. D., an unreported decision of the Provincial Court, 15th August 1982, are others. Accepting the trial judge's findings of fact, I conclude that this case belongs with that group of cases.

[15] I would allow the appeal, quash the conviction and direct that a verdict of acquittal be entered.

[16] Lambert J.A.:— I agree with the reasons of Seaton J.A. and with his proposed disposition of this appeal.

[17] Mr. Sulland, an 18-year-old high school student, was stopped by the police because he seemed to be concealing something. It turned out to be a half-full bottle of Old Style. He was carrying a clasp knife, quite openly, in a small leather case attached to his belt. I have seen the knife. It would have been ineffective either for stabbing or slashing. He said he was carrying it for protection, though there is conflicting evidence about whether he said so in response to a neutral question or to a leading question by the police. No other significant relevant evidence was introduced by the Crown. The accused gave evidence about using the knife in his part-time job and in odd jobs about the house.

[18] The trial judge convicted the accused. Seaton J. A. has quoted the relevant part of the reasons. I think the trial judge considered that, as a matter of law, if a person was carrying a knife for self-protection on a public street then he was guilty of this offence, under s. 85 [re-en. 1976-77, c. 53, s. 3] of the Criminal Code, R.S.C. 1970, c. C-34, without more. I think that is an error in law. I think the law is correctly stated in both sets of majority reasons for judgment in R. v. Nelson, 1972 CanLII 400 (ON CA), [1972] 3 O.R. 174, 19 C.R.N.S. 88, 8 C.C.C. (2d) 29 (C.A.). Carrying a weapon for self-protection in public may be consistent with either guilt or innocence. Other factors must be considered. In this case there was no other evidence that would tend to establish guilt.

[19] Counsel for the Crown said that this was a case governed by Corbett v. R., 1973 CanLII 199 (SCC), [1974] 2 S.C.R. 275, 25 C.R.N.S. 296, [1974] 2 W.W.R. 524, 42 D.L.R. (3d) 142, 14 C.C.C. (2d) 385. But, as I have said, I think otherwise, because I think the trial judge made an error in law.

[20] I would allow the appeal and quash the conviction. I do not think that the Crown introduced evidence at trial on which trier of fact, properly instructed as to the law, could convict. So I would not order a new trial; I would direct a verdict of acquittal to be entered.

Appeal allowed; acquittal entered.