Court Information

Ontario Court of Justice Central West Region Brampton, Ontario

Parties

Between:

Her Majesty the Queen

-and-

Joshua Canning

Reasons for Judgment

Judge: Duncan J.

Facts

1The defendant is charged with possession of a weapon for a purpose dangerous to the public peace, offence date July 6, 2011. He defends the case on the basis that the weapons were possessed for a defensive purpose which he contends was not, in the circumstances, dangerous to the public peace.

2The facts are simple: A police officer suspicious of drug activity detained the defendant and his passenger, who had just left the defendant's car. Eventually the defendant's vehicle was searched and the items in question – an expandable baton, brass knuckles and a pellet gun – were found. The defendant admitted to being in possession of these items, though he disputed the exact location where the police said they found them.

3The defendant told the police that the baton and brass knuckles were for his own protection because "people are after me". At trial he elaborated that in 2009 he was beaten up by the new boyfriend of his ex, a man named Grewal, and Grewal's friends. Since then there were other instances of assaults, attempted assaults, and threatening conduct towards him by Grewal. He said that he acquired the brass knuckles about 6 months before and the baton about one month before he was arrested in July. His intention was to use them only to defend himself.

4As for the pellet gun, the defendant said that he had owned it since he was a child. It had been kept in his room but recently his parents insisted that it be removed from the house. He told them that he would get rid of it but did not do so – he just kept it in the car. He had no plans to do anything with it and no purpose to use it at any time.

5I don't believe the defendant (or his mother who also testified) about the gun. It is not believable that a child would be given a gun of this type as a toy and yet several years later the parents would become anxious about it and insist on its removal from the house. I think he had the gun for the same purpose as he had the other items and though I am skeptical about his evidence I have at least a reasonable doubt that he possessed these items for use in his own defence should he again be confronted by Grewal.

The Defensive Purpose "Defence"

6For a brief period of time in Ontario, it was the law that possession of a weapon for the purposes of self defence was not a purpose that was dangerous to the public peace. In fact it was considered to be the opposite, that is, a possession designed to preserve the peace: R v Thornton, [1971] 2 CCC 2d 225 (Ont CA).

7However, in R v Nelson, 8 CCC 2d 29, a five member panel of the Court of Appeal held that the defendant's subjective purpose of self defence was "but one factor" to consider and was not determinative of the issue. [1] Depending on the circumstances, such possession, albeit for self defence, could still be possession for a purpose dangerous to the public peace. Such circumstances could include the time and place of the use or possession, the nature of the weapon and whether its use would constitute illegal (excessive) self defence. In dissent, Jessup J.A. who had authored the Thornton decision expressed concern that if a solely defensive purpose was only to be a "factor", it would be impossible to determine whether any given set of circumstances should result in a conviction or an acquittal. (para 25).

8Some answer to the problem flagged by the dissent in Nelson emerged in the case of R v Kerr, 2004 SCC 44 , 185 CCC 3d 1 (SCC). Kerr was charged with murder and possession of a weapon for a purpose dangerous arising from a knife fight between Kerr and the deceased Garon, both inmates of a maximum security penitentiary. The institution was a place where violence was rampant and nearly out of control. Like many or most inmates Kerr armed himself with a homemade knife on a daily basis for self protection. But specifically in relation to the murder, Kerr had received specific death threats for having disrespected Garon. At a time when he knew he would likely have to come in contact with Garon, Kerr took the knife from its hiding place and concealed it on his person. When he and the deceased met, they both produced and used their knives. Kerr inflicted a wound from which Garon died.

9The trial judge acquitted Kerr on both charges finding that he acted in self-defence in respect of the murder and that he possessed the weapon for justifiable defensive purposes. He referred to Nelson and found that the other circumstances, specifically the absence of any other alternative course of action, justified an acquittal. On appeal by the Crown, the Alberta Court of Appeal affirmed the acquittal on the murder charge but allowed the appeal and imposed a conviction on the weapon dangerous charge. The Court said (para 15 SCC judgment):

…it could not endorse the trial judge's suggestion that the prevalence of illegal concealed weapons in the prison system entitled Kerr to possess his weapons for self-defence. The Court regarded the trial judge's reasoning as a recipe for anarchy in the prison setting, encouraging the proliferation of illegal homemade weapons, exacerbating an already violent atmosphere and making it more likely that violent outbursts would result in grievous bodily harm or death.

10On further appeal to the Supreme Court of Canada, the seven member Court restored the acquittal but was divided 2:2:2:1 in its reasoning. All members of the Court cited and agreed with Nelson that a defensive purpose was not determinative of the issue and the question of whether the possession was for a purpose dangerous to the public peace depended on all of the circumstances. All members of the Court agreed that in the circumstances immediately surrounding the fatal attack, the possession was not for a purpose dangerous to the public peace. Bastarache J. (Major J concurring) held that the crucial issue was whether the attack which the accused defended against was avoidable, which issue in turn involved a consideration of location, atmosphere, nature of the threat, imminence of the danger and actual use of the weapon (Para 38). Possession in a particular situation on a particular day to meet an immediate threat to one's life with no real opportunity of avoiding it is not a threat to the public peace as such (Para 53). [2]

11The question arises whether Kerr has pronounced an exhaustive definition of justifiable defensive weapon possession or, more narrowly, has engaged in a case-specific application of the "all the circumstances" test that it adopted from Nelson. While the question is not free from doubt, I think it is the latter. The Court has explained why, in the specific circumstances of a violent prison environment, the possession of the knife by Kerr was not contrary to the public peace, notwithstanding the inarguable concerns voiced by the Court of Appeal, quoted above, about escalation of violence in the prison setting.

12In my view the door is still open to recognize a wider latitude for possession of weapons for defensive purposes in other situations than the one dealt with in Kerr. One can readily envision situations – the young woman who has to walk home or take the subway late at night; the home-owner who keeps a weapon at hand in case of a night-time intruder - where society would approve of - or at least tolerate - possession of some form of weapon for potential use against the possibility of violent attack, even though such attack is not specific or imminent. It is significant that the Court in Kerr referred to the cases of R v Sulland, 2 CCC 3d 68 (BCCA) and R v Proverbs, 9 CCC 3d 249 (Ont.CA), both cases recognizing a "defence" in situations similar to those I have posited. Binnie J. specifically distinguished Sulland as being "entirely different" while Bastarache J cited both cases with approval of at least some aspect of each decision.

13It really comes back to the "all of the circumstances" test from Nelson and the words of the section – is the possession for a purpose dangerous to the public peace or, to put it in negative terms, can it be said that it is not contrary to the public interest in the maintenance of peace and the control of violence and harm that the accused possess the particular weapon in the particular circumstances? The answer may involve several considerations: Is the possessor of the weapon unacceptably vulnerable without it (woman walking home at night); Can the situation of vulnerability be avoided by alternative means; Is the weapon potentially lethal (Nelson) or is it "modest": (jack knife as in Sulland): Is it almost certain to be used, if at all, only in defence (woman at night) or might it readily be used as an instrument of aggression as well (gang members); Will its use in defence likely be excessive and potentially cause greater harm than the initial attack (Nelson)?

14Whether there is a wider scope for justifiable defensive possession beyond that applied in Kerr does not have to be answered in this case. Even if there is, it does not assist this defendant. The circumstances do not favour acquittal. There was no imminent peril; any significant assault by Grewal was dated; alternative action was available - the defendant did not even report the initial incident to police; no weapon was involved in the Grewal assault and a response with weapons would be a considerable escalation in violence; two of the weapons found in the defendant's possession are prohibited weapons, so designated due to their exceptionally dangerous and lethal character; their use would be unlikely to fall within lawful self defence. [3]

15The defendant is found guilty.

Disposition

June 5, 2012

B Duncan J

A Wainright for the defendant F McCracken for the Crown

Footnotes

1The facts in Nelson were a big stretch of the concept of self defence. The accused was beaten up by thugs named the Bougie brothers. Nelson then armed himself with a huge knife and went to a bar where he knew the brothers might be. Hostilities resumed and when the fight broke out, Nelson used the knife, injuring both Bougies. The Court of Appeal doubted the correctness of the trial judge's finding of defensive purpose but considered that it was a finding of fact that could not be disturbed on a Crown appeal.

2Lebel J (Arbour J concurring) analyzed the issue somewhat differently but ultimately came to much the same conclusion – that the key point was necessity – whether the peril was imminent and unavoidable. The judgment of Fish J (Deschamps J concurring) turned on the factual findings of the trial judge. Binnie J in dissent would have convicted based on Kerr's routine daily possession prior to the time immediately preceding the fatal confrontation.

3Admittedly it is difficult to predict what would be lawful self defence since it is unknown what sort of attack the enemy might launch. But the law cannot grant a licence to possess formidable weapons on the basis of speculation that the opponent might attack in kind.