Court of Appeal for Ontario
Date: 2017-10-17 Docket: C62633
Judges: van Rensburg, Pardu and Fairburn JJ.A.
Between
Her Majesty the Queen Respondent
and
John Gallagher Appellant
Counsel
Dan Stein appearing as duty counsel
Jessica Smith Joy, for the respondent
Heard: October 2, 2017
On appeal from the conviction entered on August 5, 2016 by Justice Kim Carpenter-Gunn of the Superior Court of Justice, sitting with a jury.
Reasons for Decision
[1] Charge and Grounds of Appeal
[1] The appellant challenges his conviction on a charge of carrying a concealed weapon, a hunting knife, contrary to s. 90 of the Criminal Code.
[2] Duty counsel advances three arguments on behalf of the appellant:
- The verdict was unreasonable.
- The trial judge failed to adequately warn the jury about the dangers associated with circumstantial evidence.
- The trial judge erred in answering a question from the jury about concealment.
[2] Facts
[3] The accused was stopped by police and arrested for an unrelated matter. Police searched his pickup truck, incident to arrest, and found a hunting knife under the front bench seat of the truck, between the passenger and driver areas. It appears that about 2 cm. of the handle of the knife protruded from under the seat area.
[4] The key issues at trial were as follows:
- Did the appellant have the knife under his care and control in his truck?
- Did the appellant intend to use the knife to kill, hurt, threaten or intimidate another person, thereby qualifying the knife as a weapon as defined in the Criminal Code?
- Did the appellant conceal the knife so that others could not see it?
[3] Trial Judge's Instructions
[5] Duty counsel acknowledges that the trial judge correctly charged the jury as to the elements of the offence. We agree.
[6] The Crown relied on the following to support its theory that the knife was a weapon:
- The knife was hidden under the front seat, but within easy reach of the appellant driver, with the handle facing towards the front.
- It was not found in a tool box or with other tools, but was loose in the otherwise tidy driver's area.
- The blade of the knife was large, more than what was reasonably required for stripping wire. The entire knife was almost a foot long.
- The knife was unsheathed.
[4] Appellant's Defence
[7] The appellant testified and said that the knife produced by police was not the same knife he had. He said others sometimes drove his truck. He said the similar knife he had, had been given to him by his girlfriend and that he used it to strip wire. He argued that there was no evidence he intended to use the knife as a weapon, and that as the knife was protruding out from under the driver's seat, it was not concealed.
[5] Appellate Analysis
Unreasonableness of Verdict
[8] We do not accept the arguments advanced on behalf of the appellant. We cannot say that the verdict is one that a properly instructed jury acting judicially could not reasonably have rendered. See R. v. Biniaris, 2000 SCC 15.
Circumstantial Evidence Warning
[9] The trial judge gave the jury the usual instructions identifying circumstantial evidence and warned the jury that it had to conclude that guilt was the only reasonable conclusion that could be drawn on the whole of the evidence. He reminded the jury of the Crown's obligation to prove guilt beyond a reasonable doubt. Nothing more was required in this case.
Jury Question on Concealment
[10] The jury had a question after beginning deliberations:
For the purpose of determining if a weapon was concealed, are we to determine if the weapon as a whole was concealed, or if only the part defining it as a weapon was concealed?
[11] The trial judge responded after hearing from counsel:
The second element of this offence, concealment is satisfied if a weapon is concealed to prevent others from knowing that the accused is carrying a weapon. For example, you may conclude that if only a small portion of a weapon is visible such that a person could not tell it is a weapon, it is concealed. Ultimately, whether the knife, in this matter was concealed in this way is for you to decide. (emphasis added)
[12] Duty counsel submits that this answer did not adequately alert the jury to the need to consider the appellant's state of mind, and that the jury should have been instructed to consider whether the appellant took steps to hide the weapon so that it would not be seen by others. (See R. v. Felawka, [1993] 4 S.C.R. 199).
[13] This instruction was implicit in the answer given to the jury's question, and explicitly dealt with in the jury charge itself where the trial judge told the jury to consider, when dealing with the mental state for concealment, did "John Gallagher take any steps to hide the weapon so that others would not or could not see it." The trial judge correctly instructed the jury about all of the essential elements of the offence.
[6] Other Grounds Raised by Appellant
[14] The appellant himself raises other grounds of appeal, relying on evidence which is not before us. These include arguments about delay, violation of s. 8 Charter rights, and an argument about a refusal to hear pretrial motions brought on his behalf. The endorsements on the indictment indicate that pretrial motions were not served within the time limits set by the pretrial judge, that there was an order "debarring" the appellant from advancing those motions, and that he did not take advantage of a later opportunity to attempt to set aside that order to allow him to bring the motions. We are not persuaded that there was any miscarriage of justice requiring intervention by this court.
[7] Disposition
[15] Accordingly, the appeal is dismissed. The appellant did not pursue the sentence appeal.
K. van Rensburg J.A.
G. Pardu J.A.
Fairburn J.A.