R. v. Cassidy, [1989] 2 S.C.R. 345

Gary Lee Cassidy Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General of Canada and

the Attorney General for Alberta Interveners

indexed as: r. v. cassidy

File No.: 20285.

1989: February 23; 1989: September 14.

Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka and Gonthier JJ.

on appeal from the court of appeal for ontario

Criminal law -- Possession of weapon for a purpose dangerous to public peace -- Accused intoxicated when ordering police from home with shotgun -- Appellate court setting aside acquittal and entering conviction ‑‑ Whether or not elements of offence made out -- Whether or not Court of Appeal erred in ordering conviction instead of new trial -- Criminal Code, R.S.C. 1970, c. C-34, ss. 85, 613(4)(a), (b)(i), (ii).

Courts -- Appeal -- Appellate court setting aside acquittal and entering conviction -- Intoxication giving rise to question as to ability to form requisite intent -- Whether or not elements of offence made out -- Whether or not Court of Appeal erred in ordering conviction instead of new trial.

Two police officers attended at the home of the appellant's mother to investigate the recovery of her missing car in a damaged condition. The appellant, who appeared drunk and belligerent during questioning by police, forced the officers from the house with a shotgun. He was arrested when he came out of the house unarmed and was charged with possession of a weapon for a purpose dangerous to the public peace contrary to s. 85 of the Criminal Code. The trial judge found that the elements of the offence ‑‑ possession and a prior intent for a purpose dangerous to the public peace ‑‑ had not been met since on the facts there was no appreciable gap between the possession of the gun and the confrontation with the officers. He also noted that appellant had been in an advanced state of intoxication. The Court of Appeal for Ontario set aside the acquittal and entered a conviction pursuant to s. 613(4)(b)(ii) of the Code. The appellant appealed as of right, requesting that that decision be overturned and that his acquittal be restored or that a new trial be ordered. The issues addressed by this Court were: (1) whether the trial judge erred in determining that the elements of the offence were not made out because there was no gap in time between the formation of the unlawful purpose and the use of the weapon; and, (2) whether the Court of Appeal erred in law in ordering a conviction instead of a new trial, in light of the defence that the appellant was too intoxicated to be able to form the necessary intent. The Court also stated constitutional questions as to whether s. 613(4)(b)(ii) of the Code contravened ss. 7 and/or 11(d) of the Canadian Charter of Rights and Freedoms, and if so, whether it was justified under s. 1.

Held: The appeal should be allowed.

Section 85 requires proof of possession and proof that the purpose of that possession was one dangerous to the public peace. There must at some point in time be a meeting of these two elements. Generally, the purpose will have been formed prior to the taking of possession and will continue as possession is taken. Appellant had stated that the police should leave or he would get them out. Assuming that he was capable of forming the requisite intent notwithstanding his intoxication, his intent, evidenced by the threats to the officers, was to use the gun to expel the officers from his mother's house. At the point that he took possession of the gun for that purpose, the offence was complete.

The test established at common law with respect to setting aside an acquittal and entering a verdict of guilty is as follows: an appellate court may overturn an acquittal and enter a conviction rather than ordering a new trial where the Crown satisfies the Court that, had there been a proper application of the law, the verdict would not have been the same, and further demonstrates that the accused should have been found guilty but for the error of law. All the findings necessary to support a verdict of guilty must have been made, either explicitly or implicitly, or not be in issue. The Court of Appeal did not correctly apply this test because all the findings of fact necessary to a verdict of guilty were not necessarily made. Although the trial judge made reference to the issue of the appellant's state of intoxication, the record did not clearly indicate that he had considered the issue of whether his drunkenness interfered with his ability to form the intent to commit the offence. In fact, once having found that there was no significant gap in time between the formation of the unlawful purpose and the use of the weapon, he was not required to further consider the possible effect of intoxication. There accordingly was room for doubt as to what the trial judge would have found had he fully considered the issue of intoxication. The appeal, therefore, was allowed to the extent that a new trial should be ordered in the stead of entering a conviction.

It was not necessary to deal with the issue of whether s. 613(4)(b)(ii) of the Code contravened the appellant's rights under the Charter in the circumstances of this case.

Cases Cited

Referred to: R. v. Chomenko (1974), 18 C.C.C. (2d) 353; R. v. Flack, [1969] 1 C.C.C. 55; R. v. Chalifoux (1973), 14 C.C.C. (2d) 526; R. v. Chiplick (1960), 128 C.C.C. 45; R. v. Proverbs (1983), 9 C.C.C. (3d) 249; Vézeau v. The Queen, [1977] 2 S.C.R. 277; R. v. Courville (1982), 2 C.C.C. (3d) 118, aff'd sub nom. Courville v. The Queen, [1985] 1 S.C.R. 847.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d), 24(1).

Constitution Act, 1982, s. 52.

Criminal Code, R.S.C. 1970, c. C-34, ss. 85, 613(4)(a), (b)(i), (ii).

APPEAL from a judgment of the Ontario Court of Appeal allowing an appeal from acquittal by Dunlap Dist. Ct. J. Appeal allowed.

Andrew Z. Kerekes, for the appellant.

David Finley, for the respondent.

Bernard Laprade, for the intervener the Attorney General of Canada.

Jack Watson, for the intervener the Attorney General for Alberta.

//Lamer J.//

The judgment of the Court was delivered by

LAMER J. -- Gary Lee Cassidy was acquitted of possession of a weapon for a purpose dangerous to the public peace. The Court of Appeal for Ontario set aside the acquittal and entered a conviction. The appellant now comes before this Court as of right, requesting that the decision of the Court of Appeal be overturned, and that his acquittal be restored or that a new trial be ordered.

The Facts

The facts leading to this case may be summarized as follows. The appellant was residing with his mother, Alice Bieber, at her home in Windsor, Ontario. On the eve of the incident, when Mrs. Bieber went to bed, the appellant had gone out. Early the next morning, Mrs. Bieber found that her car, which she had left parked in the driveway, was missing. She assumed that the appellant had taken it. The appellant told her he had not taken the car and told her to call the police. Shortly thereafter, two uniformed officers attended at her home informing Mrs. Bieber that her car had been recovered earlier that night in a damaged condition. She indicated to the police that perhaps her son knew something about the car. The events that took place after this first conversation lasted less than five minutes.

One of the officers started questioning the appellant but the latter immediately became upset and aggressive, verbally abusing the two officers, accusing them of trespassing and ordering them to get off the property. At that moment, Mrs. Bieber stepped in between her son and the officers and tried without success to persuade her son to go back to bed as she felt that he was drunk and belligerent. The appellant ignored his mother's request and persisted in demanding that the officers leave the house, threatening that he would get them out of the house if they did not leave by themselves. At this point, the appellant ran into the living room where there was a gun rack holding several guns. He grabbed one 12-gauge shotgun from the rack. Both officers, aware of the presence of the guns, tried to draw their guns but in their haste and confusion experienced difficulty in doing so and hurriedly left the house, exiting in opposite directions. A very short time later, the appellant came out of the house without the gun, and in vulgar language continued to exhort the police officers to leave. He indicated that he did not have a gun. He was immediately arrested on a charge of possession of a weapon for a purpose dangerous to the public peace, contrary to s. 85 of the Criminal Code, R.S.C. 1970, c. C-34.

Judgments Below

Dunlap Dist. Ct. J. first outlined the elements that the Crown must prove under s. 85 of the Code: first, possession; and second, the prior intent for a purpose dangerous to the public peace. In his view, the question was whether the possession could be separated in time from the actus reus so as to permit proof of the intent essential to the proof of an offence pursuant to that section. Although he acknowledged that here the possession and the actual use were concurrent and undoubtedly constituted a serious assault vis-à-vis the police officers, he concluded:

Here there is little or no time gap between the formation of the unlawful purpose and the use -- but the accused did not have possession of the gun when he initiated his wild rush towards the gun rack. And on these same facts there is no appreciable gap between his seizing possession of the gun and his confrontation of the officers, whatever offence he committed in law by his rash action. I find that these unique circumstances cannot establish the elements of the offence under s. 85 as defined by Dubin J.A. in Regina v. Proverbs and an acquittal is therefore entered.

In the Court of Appeal for Ontario, the Crown's appeal was allowed and a unanimous bench entered a conviction pursuant to s. 613(4)(b)(ii) for the following brief reasons:

We think this appeal must succeed. On the findings of fact made by the trial judge, the respondent had the intention of using the weapon for a purpose dangerous to the public peace, to wit, assault of a police officer prior to and throughout the taking of possession of the weapon. While on its facts this case is different from R. v. Proverb [sic] (1983), 9 C.C.C. (3d) 249, on its facts as found by the trial judge this case meets the test laid down by Dubin J.A. in R. v. Proverb [sic] at p. 251 in that at the moment in time preceding the taking of possession of the weapon, the respondent intended to possess it for a purpose dangerous to the public peace.

Accordingly, we are of the view that the learned trial judge erred in his understanding and application of the law. The appeal is allowed, the acquittal is set aside, a conviction is entered and the case is remitted to the trial judge for sentencing.

This is the judgment that is appealed from before this Court.

Points in Issue

This appeal raises three issues.

• First, did the trial judge err in determining that the elements of the offence were not made out because there was no gap in time between the formation of the unlawful purpose and the use of the weapon?

• Second, does s. 613(4)(b)(ii) of the Criminal Code permitting the Court of Appeal to substitute a conviction for an acquittal contravene the appellant's rights under the Charter in the circumstances of this case?

• Finally, did the Court of Appeal err in law in entering a conviction instead of ordering a new trial, in light of the defence of intoxication submitted by the appellant?

Legislation

I reproduce the sections of the Code which are relevant to the present case:

85. Every one who carries or has in his possession a weapon or imitation thereof, for a purpose dangerous to the public peace or for the purpose of committing an offence, is guilty of an indictable offence and is liable to imprisonment for ten years.

86. . . .

(4) Where an appeal is from an acquittal the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) order a new trial, or

(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error of law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

Analysis

The first issue: did the trial judge err in determining that the elements of the offence were not made out because there was no gap in time between the formation of the unlawful purpose and the use of the weapon charged?

Section 85 requires proof of possession and proof that the purpose of that possession was one dangerous to the public peace. There must at some point in time be a meeting of these two elements. Generally, the purpose will have been formed prior to the taking of possession and will continue as possession is taken. That is the case before us. Assuming that the appellant was capable of forming the requisite intent notwithstanding his intoxication (a matter dealt with under the third issue), he intended to use the shotgun to expel the police officers from his mother's house. This is evident from his shouting "You get out, or I'll get you out". He then took possession of the gun. At that point in time, the offence was complete.

There are sometimes evidentiary problems in cases involving s. 85. They mainly arise out of three situations. First, when what is being used is not designed to be a weapon and where it is through the use of the instrument that it is concluded that it is a weapon under s. 2 of the Code (see R. v. Chomenko (1974), 18 C.C.C. (2d) 353 (Ont. C.A.)) The second kind of evidentiary problem arises when proof of the purpose is through the actual use of the weapon (see as an illustration of this problem, R. v. Flack, [1969] 1 C.C.C. 55 (B.C.C.A.); R. v. Chalifoux (1973), 14 C.C.C. (2d) 526 (B.C.C.A.)) The third evidentiary problem is when the possession is lawful and prior to the formation of the unlawful purpose, which problem is compounded when proof of the latter is solely through the use of the weapon (see R. v. Chiplick (1960), 128 C.C.C. 45 (Ont. C.A.)) Proof of the dangerous use of the weapon standing alone has been said not to be sufficient to constitute the offence as Dubin J.A., for the Ontario Court of Appeal, stated in R. v. Proverbs (1983), 9 C.C.C. (3d) 249, at p. 251:

The use of the weapon in a manner dangerous to the public peace does not constitute the offence although the formation of the unlawful purpose may be inferred from the circumstances in which the weapon was used

and noted later, at p. 251:

The formation of the unlawful purpose, which may be inferred from the circumstances in which the weapon is used, must precede its use. The interval of time between the formation of the purpose and the use of the weapon need not be long. It may in some cases be very short, but the gap must be significant. [Emphasis in original.]

These situations and the cases addressing them need not be considered as in this case possession followed the formation of the purpose, and the purpose need not be inferred from the use of the gun; but assuming the accused was not incapable because of drunkenness of forming the requisite intent, and assuming that the purpose continued up to and including the time of possession, the purpose would clearly be established by the accused's threats to the police officers. The trial judge, in my respectful view, was wrong in applying the decisions in R. v. Proverbs and R. v. Flack to the facts in this case, that is, a case in which the use of the weapon is not the sole evidence of the purpose.

The second issue: does s. 613(4)(b)(ii) of the Criminal Code permitting the Court of Appeal to substitute a conviction for an acquittal contravene the appellant's rights under the Charter in the circumstances of this case?

On January 13, 1989, an order issued from Chief Justice Dickson calling for notice of constitutional questions. Those were stated as follows:

1. Is section 613(4)(b)(ii) of the Criminal Code of Canada inconsistent with s. 7 and/or s. 11(d) of the Canadian Charter of Rights and Freedoms in that s. 613(4)(b)(ii) permits the Court of Appeal to substitute a verdict of guilty for an acquittal at trial?

2. If section 613(4)(b)(ii) is inconsistent with s. 7 and/or s. 11(d) of the Canadian Charter of Rights and Freedoms, is s. 613(4)(b)(ii) justified under s. 1 of the Canadian Charter of Rights and Freedoms?

However, the appellant fails to argue before this Court that s. 613(4)(b)(ii) of the Code should be declared of no force or effect pursuant to s. 52 of the Constitution Act, 1982. Further, that issue was not raised in the courts below. In fact, in his order requested, the appellant seeks no such declaration. Instead, he has chosen to frame his argument as whether s. 613(4)(b)(ii), by permitting the Court of Appeal to substitute a conviction for an acquittal, contravenes the Canadian Charter of Rights and Freedoms in the circumstances of this case. By requesting that the acquittal be restored or a new trial ordered, the appellant is in effect requesting a remedy pursuant to s. 24(1) of the Charter on the ground that the Court of Appeal erred by exercising their option in favour of substituting a conviction rather than ordering a new trial. This raises an important issue regarding the applicability of the Charter to a court which has exercised discretion given to it by a provision of the Code. Further, can remedy be sought under s. 24(1) of the Charter if the exercise of that discretion is shown to infringe one's guaranteed rights? In my view, though important, a discussion of these issues should be reserved for a more appropriate case as this case can be disposed of in favour of the appellant by reference to well-established principles of common law under the third issue. I note, in addition, that this issue was not addressed by counsel in their submissions before this Court.

The third issue: did the Court of Appeal err in law in ordering a conviction instead of a new trial, in light of the defence of intoxication submitted by the appellant?

On that point, the debate emerges over the meaning of the trial judge's following assertion:

The accused was present at the time, in an advanced state of intoxication, when the officers interviewed his mother concerning her complaint. [Emphasis added.]

In the appellant's view, the trial judge's finding of fact of his "advanced state of intoxication" raises a reasonable doubt as to whether he had the capacity to form the unlawful purpose. That being so, an appellate court may find support for upholding an acquittal when the mental processes of an intoxicated person are in issue. However, the converse is not true. An appellate court, which has not had the opportunity to observe the demeanour of the witnesses and which is acting on a Crown appeal restricted to a question of law alone, cannot say, with the required degree of certainty demanded for a criminal conviction that, notwithstanding the advanced state of intoxication of the appellant, he still had the requisite mental capacity to form the unlawful purpose. An appellate court can, at most, grant the remedy of a new trial and cannot order a conviction in substitution for the acquittal originally granted. In other words, the appellant contends that he is entitled to have this defence appropriately dealt with in the course of a new trial.

The Crown replies that the Court of Appeal may allow a Crown appeal against an acquittal entered by a trial judge and substitute a verdict of guilty where the Crown establishes that an error of law was committed at trial, satisfies the Court of Appeal that, had there been a proper application of the law, the verdict would not have been the same, and further demonstrates that the accused should have been found guilty but for the error of law. In this respect, the principle that has been established at common law is that all the findings necessary to support a verdict of guilty must have been made, either explicitly or implicitly, or not be in issue (Vézeau v. The Queen, [1977] 2 S.C.R. 277, at pp. 291-92, and R. v. Courville (1982), 2 C.C.C. (3d) 118 (Ont. C.A.), at p. 125, aff. sub nom., Courville v. The Queen, [1985] 1 S.C.R. 847). In the Crown's view, the trial judge made all the findings of fact necessary to support a verdict of guilty. His error was in his application of the law to the facts, when he imposed on the Crown the additional burden of having to prove, in effect, deliberation on the part of the appellant. Concerning the issue of intoxication, the Crown submits that this matter was raised at trial, considered by the judge, who nevertheless went on to find that the appellant formed the unlawful purpose. Finally, the Crown pointed out that the appellant did not testify on that point at trial.

What is at issue, then, is whether the Court of Appeal correctly applied the test established at common law to the facts of this case. I am not satisfied that the trial judge made all the findings of fact necessary to support a verdict of guilty. Although he adverted to the issue of the appellant's state of intoxication, it is not clear on the record that he fully considered whether his intoxication interfered with his ability to form the intent to commit the offence charged. In fact, once having found that there was no significant gap in time between the formation of the unlawful purpose and the use of the weapon, he was not required to further consider the effect that intoxication might have had on the appellant's ability to form the requisite intent. In short, we cannot be sure what his finding would have been if he had fully considered the issue of intoxication.

In view of the appellant's right to a fair hearing, it is important that the test established at common law be strictly applied. Therefore, this matter should be sent back for a new trial where the issue of intoxication could be fully considered. Accordingly, I would allow the appeal, but only to the extent that a new trial should be ordered in the stead of entering a conviction.

Appeal allowed.

Solicitors for the appellant: Kerekes, Collins, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.

Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.

Solicitor for the intervener the Attorney General for Alberta: The Attorney General for Alberta, Edmonton.