R. v. Felawka, 1993 CanLII 36 (SCC), [1993] 4 SCR 199

R. v. Felawka, 1993 CanLII 36 (SCC), [1993] 4 SCR 199

Kenneth Jay Felawka Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Felawka

File No.: 22783.

1993: April 1; 1993: October 21.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Weapons ‑‑ Firearms ‑‑ Whether a firearm always falls within definition of "weapon" in s. 2 of Criminal Code ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 2 "weapon", 84(1) "firearm".

Criminal law ‑‑ Carrying concealed weapon ‑‑ Mens rea ‑‑ Accused boarding public transportation with rifle wrapped in his jacket after afternoon of target shooting ‑‑ Accused concealing rifle because he felt that it was not proper to carry it openly ‑‑ Whether mens rea of offence of carrying concealed weapon established by proof of accused's intention to conceal the object he knew to be a weapon ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 89.

The accused went target shooting with a friend and took a rapid transit train to return home. When he got on the train, his .22 calibre rifle was wrapped in his jacket because he felt that it was not "proper" to carry his rifle openly. Two passengers became alarmed and notified a train employee. When asked by the employee what he had in his jacket, the accused laughingly replied that he was "going on a killing spree". The accused later left the train and boarded a connecting bus, where he was arrested. At the time of the arrest, there was still a clip with one live round in the rifle. The accused was charged with carrying a weapon for a purpose dangerous to the public peace contrary to s. 87 of the Criminal Code and with unlawfully carrying a concealed weapon contrary to s. 89. At trial, he was acquitted on the first count but convicted on the second. The trial judge held that the only intent required to establish the s. 89 offence was that the accused intended to conceal the weapon. The majority of the Court of Appeal upheld the conviction. Two questions must be resolved on this appeal: (1) whether a firearm is a weapon within the meaning of s. 2 of the Code; and (2) what is the requisite mens rea of the offence of "carrying a concealed weapon".

Held (Lamer C.J. and Sopinka and McLachlin JJ. dissenting): The appeal should be dismissed.

Per L'Heureux‑Dubé, Gonthier, Cory, Iacobucci and Major JJ.: The rifle carried by the accused was a firearm under s. 84(1) of the Code and a firearm always falls within the definition of "weapon" in s. 2, regardless of the intention of the person carrying it. A firearm is expressly designed to kill or wound and can be used for purposes of threatening and intimidating. It presents in itself a threat of death or injury to all those in its presence. The concluding words of the definition of "weapon" in s. 2, which refer specifically to firearms as defined in s. 84 of the Code, would be completely redundant if a firearm became a weapon only when used or intended to be used to cause death or injury, or to threaten or intimidate.

The requisite mental element of s. 89 of the Code is established when the Crown proves beyond a reasonable doubt that the accused concealed an object that he knew to be a weapon. In order to prove concealment it must be established that the accused took steps to hide the weapon so that it would not be observed or come to the notice of others. A person who carries a firearm in a case or tightly wrapped in canvas, as required by some provincial regulations on the transportation of firearms for hunting, does not contravene s. 89 of the Code. A firearm carried in that manner generally resembles the firearm itself and cannot be considered to be hidden. As well, the placing of a firearm in a locked trunk or out of sight in a locked and unattended vehicle, in compliance with the federal regulations on the storage, display, handling and transportation of certain firearms, cannot be considered to be "carrying a concealed weapon". Rather, the federal regulations designed to protect the public from the danger of stolen weapons should be seen as an exception to the s. 89 offence. These regulations and s. 89 must be construed in a manner that avoids conflict and promotes the goals of both provisions. The provincial regulations requiring a firearm to be locked in the luggage compartment of a vehicle if the firearm is not encased or wrapped do not conflict with s. 89 so long as the firearm is locked in that compartment in the circumstances outlined in the federal regulations. Finally, a firearm which breaks down and is carried in a case that resembles a briefcase should not be considered concealed if the carrying case is clearly marked as a firearm case. Here, the mens rea of the offence was clearly established. The accused, knowing the rifle was a weapon, took steps to hide it from observation by others. His excuse that he concealed his rifle in order to avoid alarming the passengers on the train cannot constitute a defence.

Per La Forest J.: While in general agreement with the majority, no definitive position is taken regarding the interaction between the Criminal Code's prohibition against concealing weapons and regulatory provisions respecting their storage, handling and transportation. It would seem that Parliament simply did not contemplate that compliance with such regulations would constitute concealment.

Per Lamer C.J. and Sopinka J. (dissenting): The accused's rifle was a firearm under s. 84(1) of the Code but a firearm is not necessarily a "weapon" as defined in s. 2. When the definition of the word "weapon" is properly construed, a firearm under s. 84(1) only becomes a weapon if used or intended to be used to cause death or injury, or to threaten or intimidate. The principles of fundamental justice enshrined in the Canadian Charter of Rights and Freedoms support that conclusion. Given that a conviction under s. 89 of the Code would result in a deprivation of the life, liberty or security of the person of the accused, the principles of fundamental justice require a minimum mental state. A morally blameless person, therefore, should not be found guilty of the offence of "carrying a concealed weapon". Since the essential purpose of a firearm is to kill and wound, the concealment of a firearm creates an inference that it is being carried as a "weapon" pursuant to s. 2. The Crown may rely on this inference unless there is some evidence raising a reasonable doubt as to why the firearm is being carried concealed. Here, the rifle was not a "weapon" as defined in ss. 2 and 89. The accused raised the necessary reasonable doubt that the rifle he carried was not used or intended to be used to kill, injure, threaten or intimidate any person.

Per McLachlin J. (dissenting): Lamer C.J.'s reasons were substantially agreed with. A firearm only becomes a weapon, as defined in s. 2 of the Code, if used or intended to be used to cause death or injury, or to threaten or intimidate. It is unnecessary, however, to comment upon the constitutionality of s. 89.

Cases Cited

By Cory J.

Referred to: R. v. Lemire (1980), 1980 CanLII 334 (BC CA), 57 C.C.C. (2d) 561; R. v. Formosa (1993), 1992 CanLII 12828 (ON CA), 79 C.C.C. (3d) 95; R. v. Hanabury (1970), 1970 CanLII 1091 (PE SCTD), 1 C.C.C. (2d) 438; R. v. Coughlan (1974), 1974 CanLII 241 (AB SCTD), 17 C.C.C. (2d) 430; Bank of Montreal v. Hall, 1990 CanLII 157 (SCC), [1990] 1 S.C.R. 121; Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161; Attorney‑General of Canada v. Pattison (1981), 1981 ABCA 98, 59 C.C.C. (2d) 138; R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933; R. v. Chiasson (1982), 1982 CanLII 2959 (NB CA), 135 D.L.R. (3d) 499, aff'd 1984 CanLII 136 (SCC), [1984] 1 S.C.R. 266; Myran v. The Queen, 1975 CanLII 157 (SCC), [1976] 2 S.C.R. 137.

By Lamer C.J. (dissenting)

R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038; Hills v. Canada (Attorney General), 1988 CanLII 67 (SCC), [1988] 1 S.C.R. 513; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486; R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636.

Statutes and Regulations Cited

Constitution Act, 1867, ss. 91(27), 92(13), (16).

Criminal Code, R.S.C. 1970, c. C‑34, s. 87 [en. 1976‑77, c. 53, s. 3].

Criminal Code, R.S.C., 1985, c. C‑46, ss. 2 "weapon" [en. c. 27 (1st Supp.), s. 2(7)], 84(1) "firearm", 88, 89, 116(1)(g) [rep. & sub. 1991, c. 40, s. 28].

Firearm and Bow Regulations, N.S. Reg. 144/39, s. 8(4) [am. 178/90, s. 2(2); am. 176/92, s. 2].

Fish and Wildlife Act, S.N.B. 1980, c. F‑14.1, s. 42(2)(c) [am. 1983, c. 33, s. 10; am. 1987, c. 21, s. 10], (3)(e), (4)(c).

Game and Fish Act, R.S.O. 1990, c. G.1, s. 22(1).

Storage, Display, Handling and Transportation of Certain Firearms Regulations, SOR/92‑459, ss. 10(2), 12(2), (3).

Wildlife Act, R.S.N.S. 1989, c. 504, s. 80(2)(c), (3)(e), (4)(c) [am. 1990, c. 50, s. 7].

Authors Cited

Dussault, René, and Louis Borgeat. Administrative Law: A Treatise, vol. 1, 2nd ed. Translated by Murray Rankin. Toronto: Carswell, 1985.

APPEAL from a judgment of the British Columbia Court of Appeal (1991), 1991 CanLII 5764 (BC CA), 3 B.C.A.C. 241, 7 W.A.C. 241, 68 C.C.C. (3d) 481, 9 C.R. (4th) 291, dismissing the accused's appeal from his conviction on a charge of unlawfully carrying a concealed weapon contrary to s. 89 of the Criminal Code. Appeal dismissed, Lamer C.J. and Sopinka and McLachlin JJ. dissenting.

Richard C. C. Peck, Q.C., for the appellant.

William F. Ehrcke, for the respondent.

The reasons of Lamer C.J. and Sopinka J. were delivered by

Lamer C.J. (dissenting) -- I have read the reasons of Cory J., but am unfortunately unable to concur in them. I agree with Gibbs J.A., dissenting, that it is not necessary to define the mens rea requirement associated with the word "concealed" in s. 89 of the Criminal Code, R.S.C., 1985, c. C-46, to dispose of this appeal. In my opinion, this case can be resolved by determining whether the accused was carrying a "weapon" within the meaning of s. 89. By proceeding in this way, constitutional principles of fundamental justice are respected and the "complicating factors" associated with the majority's treatment of the mental element in s. 89 are avoided.

A Firearm is Not Necessarily a "Weapon" Within the Meaning of the Code

To be found guilty under s. 89, an accused must be shown beyond a reasonable doubt to have (1) carried, (2) a weapon, (3) that the accused concealed. On the facts of this case, the accused did "carry" a rifle. This rifle was a "firearm" under s. 84 of the Code, which read:

84. (1) For the purposes of this Part,

"firearm" means any barrelled weapon from which any shot, bullet or other missile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm;

But was the rifle a "weapon" in the circumstances of this case? Section 2 of the Code defined a "weapon" as follows:

"weapon" means

(a) anything used or intended for use in causing death or injury to persons whether designed for that purpose or not, or

(b) anything used or intended for use for the purpose of threatening or intimidating any person,

and, without restricting the generality of the foregoing, includes any firearm as defined in section 84;

There are several reasons why I cannot agree that a firearm is always a weapon, irrespective of the intention of the person carrying it. First, I agree with Gibbs J.A.'s construction of s. 2 that,

[t]he "foregoing generality" referred to, in my opinion, is the word "anything" and what the clause means is that "anything", without restricting its ordinary meaning, includes a firearm as defined in s. 84, and that it only becomes a weapon if used or intended for use to cause death or injury, or to threaten or intimidate.

((1991), 1991 CanLII 5764 (BC CA), 68 C.C.C. (3d) 481, at p. 496.)

I also agree with Gibbs J.A. (at p. 497) that an interpretation of s. 2 which finds that a firearm is a weapon regardless of use or intended use by an accused,

. . . would produce an undesirable anomaly or inconsistency by way of two classes of persons at risk under s. 89. One class would be concealers of non-firearms objects, regardless of how lethal the objects may be, who will enjoy the benefit of paras. (a) and (b). The other would be concealers of firearms who would be denied that benefit with the result that for that class of persons, s. 89 becomes in essence, an absolute prohibition section.

Furthermore, I am concerned that s. 2 not be interpreted in a manner which could produce unjust results. I do not think that the morally blameless person who conceals a gun simply to keep it away from a curious child, and not for the purpose of causing death or injury, or to intimidate or threaten, should be guilty of the criminal offence of concealing a weapon.

This Court has stated on numerous occasions that where there are two possible interpretations of a statute, the one consistent with the Canadian Charter of Rights and Freedoms is to be preferred: see R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, at p. 660; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, per Lamer J., at p. 1078; and Hills v. Canada (Attorney General), 1988 CanLII 67 (SCC), [1988] 1 S.C.R. 513, per L'Heureux-Dubé J. for the majority, at p. 558. Given that a conviction under s. 89 of the Code would result in a deprivation of the life, liberty or security of the person of the accused, the principles of fundamental justice must be respected. In Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, this Court found that whenever an offence is created the principles of fundamental justice require a minimum mental state. This was reiterated in R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, where I stated for a majority at p. 653:

It may well be that, as a general rule, the principles of fundamental justice require proof of a subjective mens rea with respect to the prohibited act, in order to avoid punishing the "morally innocent".

In Re B.C. Motor Vehicle Act, this Court found that absolute liability combined with a deprivation of life, liberty or security of the person represented a prima facie violation of s. 7 of the Charter.

I agree with Gibbs J.A. that the principles of fundamental justice enshrined in the Charter, combined with the logic of the language and the format of s. 2 of the Code lead to the conclusion that a firearm can only be a "weapon" within the meaning of ss. 2 and 89 if its possessor has used it, or intends to use it to cause death or injury to persons, or to threaten or intimidate any person.

However, unlike a hammer or a brick, the essential purpose of a firearm is to kill and wound. It is inevitable, therefore, that the concealment of a firearm should create an inference, unless contradicted, that it is being carried as a "weapon" pursuant to s. 2. While the Crown has the burden of proving beyond a reasonable doubt the necessary elements of the offence of concealing a weapon, it will be able to rely on this inference unless there is some evidence on the record raising a reasonable doubt as to why the firearm is being carried concealed.

Application of Principles to this Case

On the facts of this case, I find that the appellant did raise the necessary reasonable doubt that the rifle he carried was not used or intended to be used to kill, injure, threaten or intimidate any person. In the words of Gibbs J.A. (at p. 497):

It may seem contradictory to refer to the absence of blameworthy conduct or intent, and the absence of a guilty mind, in conjunction with carrying a rifle in public. However, the appellant had a firearms acquisition permit so he had a right to have the rifle in his possession. And, given the present state of the gun laws in Canada, he was not in breach of any law in having it in his possession in a public place. Furthermore, he concealed it with his jacket for a perfectly laudable purpose, because he was of the view that "it's not proper to carry a gun out in the open". He was, therefore, innocent of any blameworthy or antisocial conduct or intent.

In light of the fact that I find the appellant was not carrying a "weapon" within the meaning of ss. 2 and 89 of the Criminal Code, I do not find it necessary to consider the third element of the offence in s. 89 -- that is, whether he "concealed" a weapon.

Disposition

Accordingly, I would allow the appeal and direct an acquittal.

The following are the reasons delivered by

La Forest J. --I am in general agreement with Justice Cory. I prefer, however, not to take a definitive position regarding the interaction between the Criminal Code's prohibition against concealing weapons and regulatory provisions respecting their storage, handling and transportation. At first blush, I am inclined to think that Parliament simply did not contemplate that compliance with such regulations would constitute concealment. Parliament must be taken to have recognized the need for such regulations and have known of their existence.

The judgment of L'Heureux-Dubé, Gonthier, Cory, Iacobucci and Major JJ. was delivered by

Cory J. -- Two questions must be resolved on this appeal. The first, and simpler one, is whether a firearm is a weapon as that word is defined by s. 2 of the Criminal Code, R.S.C., 1985, c. C-46. The second requires a determination of the mens rea component of the offence of carrying a concealed weapon described in s. 89 of the Code.

Factual Background

Felawka held a valid firearms acquisition certificate. In April 1988 he took his .22 calibre rifle and went shooting with a friend outside the town of Hope, British Columbia. He stopped at the friend's house in Burnaby on his way home. When he decided to return to his own home he took public transportation in the form of the Skytrain.

When he got on the Skytrain at Metrotown, he was carrying his rifle wrapped in his jacket. He did this, because he felt that it was not "proper" to carry his rifle openly. Two passengers became alarmed. They notified a Skytrain employee that Felawka appeared to be wearing fatigues and carrying a gun. Mr. Felawka, as it turned out, was not wearing fatigues but green coloured work clothes. When the Skytrain employee asked the appellant what he had in his jacket, he laughingly replied that he was "going on a killing spree". The trial judge accepted the appellant's evidence that he made this unfortunate comment in jest.

Felawka left the Skytrain and boarded a connecting bus that would take him to his home. Three plain clothed officers boarded the same bus around 11:30 p.m. They went to the back of the bus where the appellant was sitting. When one of the officers called out "City Police", Mr. Felawka appeared to reach for his rifle. The officers drew their revolvers and arrested him. This episode might have had tragic consequences. This is evidenced by the fact that there was a clip with one live round in the rifle and Felawka was carrying another clip with a live round in his pocket.

The appellant was charged with two counts; first, with carrying a weapon for a purpose dangerous to the public peace, and secondly, with unlawfully carrying a concealed weapon.

Courts Below

(a) Trial Court (Smith Prov. Ct. J.)

The trial judge acquitted the appellant on the first count of possession of a weapon for a purpose dangerous to the public peace. He found that the appellant's statement that he was going on a killing spree, although foolish, was made in jest. He was not convinced beyond a reasonable doubt that Felawka was reaching for his gun when the police confronted him. Rather, he thought that it might have been a natural reaction for Felawka to move towards his right in order to get away from what he took to be the danger presented by the three plain clothed officers. There was then no evidence that the appellant had any intention to use the weapon for a purpose dangerous to the public peace and that charge was dismissed.

However, the trial judge did find the appellant guilty of carrying a concealed weapon contrary to s. 89 of the Criminal Code (formerly s. 87). Relying upon R. v. Lemire (1980), 1980 CanLII 334 (BC CA), 57 C.C.C. (2d) 561 (B.C.C.A.), he held that the only intent required to establish the offence was that the appellant intended to conceal the weapon.

(b) British Columbia Court of Appeal (1991), 1991 CanLII 5764 (BC CA), 68 C.C.C. (3d) 481

(i) Majority Judgment

Toy J.A. writing for four members of the court upheld the conviction. He made a careful review of the applicable authorities and concluded that it was incumbent upon the Crown to prove that the accused was (1) carrying, (2) a weapon, and (3) that the accused, knowing that the object that he was carrying was a weapon, concealed it. He was of the view that the sole issue in dispute in this case was the nature of the mens rea required by s. 89. On that he wrote (at p. 494):

The mens rea requirement of the offence is the accused's knowledge of the characteristics of the article or device that is alleged to be a weapon and a co-existent intention that its presence will not be detected or observed by other citizens while it is being carried.

He found that the appellant's assertion that the requisite mens rea was lacking because of his innocent purpose in concealing the weapon could not be accepted. He expressed the opinion that the purpose of concealing the weapon was not an essential element of the crime set out in s. 89. He went on to state that in his opinion not even the most commendable motive for concealing a weapon was available to an accused as a defence to a charge under s. 89.

(ii) Dissenting Judgment

The dissenting judge would have allowed the appeal. He would have done so on the ground that a firearm only becomes a weapon if it is used or if it is intended for use to cause death or injury or to threaten or intimidate.

Relevant Sections of the Criminal Code

2. . . .

"weapon" means

(a) anything used or intended for use in causing death or injury to persons whether designed for that purpose or not, or

(b) anything used or intended for use for the purpose of threatening or intimidating any person,

and, without restricting the generality of the foregoing, includes any firearm as defined in section 84;

89. Every one who carries a weapon concealed, unless he is the holder of a permit under which he may lawfully so carry it,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

Is a Firearm a Weapon Pursuant to Section 2?

The appellant contends, as did the minority of the Court of Appeal, that a firearm is not a weapon as defined by s. 2 unless it is used or intended for use in causing death or bodily injury or for threatening or intimidating. I cannot accept that contention.

A firearm was defined at the time in s. 84(1) as follows:

"firearm" means any barrelled weapon from which any shot, bullet or other missile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm;

In my view, a firearm must come within the definition of a weapon. A firearm is expressly designed to kill or wound. It operates with deadly efficiency in carrying out the object of its design. It follows that such a deadly weapon can, of course, be used for purposes of threatening and intimidating. Indeed, it is hard to imagine anything more intimidating or dangerous than a brandished firearm. A person waving a gun and calling "hands up" can be reasonably certain that the suggestion will be obeyed. A firearm is quite different from an object such as a carving knife or an ice pick which will normally be used for legitimate purposes. A firearm, however, is always a weapon. No matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence.

The definition of "weapon" in s. 2 must include a firearm as defined in s. 84. For example s. 88 of the Criminal Code provides that anyone who, without lawful excuse, has a weapon in his possession while he is attending or on his way to attending a public meeting is guilty of an offence. The presence of a firearm at a public meeting would, in itself, present a threat and result in the intimidation of all who were present. It really cannot have been the intention of the framers of the legislation that people would be permitted to brazenly take their guns with them to public meetings provided that they did not use them or intend to use them to cause injury or to threaten or intimidate. Indeed, to state the proposition reveals that a definition with such a result is unthinkable.

My interpretation of weapon as including a firearm is reinforced when the French version of s. 2 is read. It is in these terms:

"arme"

a) Toute chose utilisée ou qu'une personne entend utiliser pour tuer ou blesser une personne, qu'elle soit ou non conçue pour cela;

b) toute chose utilisée pour menacer ou intimider quelqu'un;

le terme s'entend notamment d'une arme à feu au sens de l'article 84.

This makes it crystal clear that a firearm is, by definition, a weapon.

Lastly, I am in complete agreement with the submission of the respondent that if the definition of "weapon" sought by the appellant were to be accepted then the concluding words of the definition which refer specifically to firearms as defined in s. 84 of the Criminal Code would be completely redundant. See as well the reasons of the Ontario Court of Appeal in R. v. Formosa (1993), 1992 CanLII 12828 (ON CA), 79 C.C.C. (3d) 95, wherein the court also concludes that a firearm falls within the definition of a weapon set out in s. 2 of the Criminal Code.

The Requisite Mens Rea for Section 89

Section 89 describes an offence comprised of three elements. The Crown is required to prove that the accused is: (1) carrying, (2) an object which is a weapon and known to the accused person to be a weapon, (3) in such a way as to conceal it. What should be the requisite mens rea for this offence? Is it sufficient if the Crown establishes that the accused intended to conceal the object he knew to be a weapon? That is, that he or she intended to remove the weapon from the knowledge or observation of others, to keep it out of sight, or to hide it. Or, on the other hand, does the Crown have to prove that the accused had the weapon and was concealing it for some unlawful purpose? There have been a number of cases which have dealt with this issue and they are not all in agreement.

In R. v. Hanabury (1970), 1970 CanLII 1091 (PE SCTD), 1 C.C.C. (2d) 438 (P.E.I.S.C.), a bayonet was found under the front seat on the driver's side of a car driven by the accused. The accused admitted that he knew that the bayonet was a weapon. He stated that he had bought it for use when he was camping. However, he said that it was not sharp enough for his camping purposes, so he never used it. He was tried and convicted. On appeal, although Nicholson J. rejected his argument that he had not been "carrying" the weapon, he quashed the conviction on the grounds that the requisite intent had not been established. At page 445 he wrote:

Concealment . . . must involve a conscious attempt or effort on the part of the one charged to conceal the weapon in such a way or in such a place as it would not readily be found. I think the carrying of the weapon must be unlawful or for an unlawful purpose before concealment can be attributed to the accused. This bayonet is not the kind of an article which one would carry in plain view or on the front seat of an automobile, not because to do so is unlawful, or that the person might have some unlawful purpose ascribed to him, anymore than for the reason of not having it stolen or merely to put it out of the way. [Emphasis added.]

In R. v. Coughlan (1974), 1974 CanLII 241 (AB SCTD), 17 C.C.C. (2d) 430 (Alta. S.C.), the accused was found to have a knuckleduster in his pocket. By way of an explanation he testified that he had been taking it to show an interested friend. He said that by placing it in his pocket he had intended neither to conceal the knuckleduster nor to use it as a weapon. On appeal Cavanagh J. set aside the conviction. Although he agreed with Nicholson J. in Hanabury, supra, that concealment must involve a conscious effort to place the weapon out of sight, he did not go as far as Nicholson J. by requiring that there be an unlawful purpose involved before a conviction could result.

The section was considered next in R. v. Lemire, supra. In that case, the accused had been found carrying a lead pipe covered with tape to which a length of chain was attached. This device, which could be a fearsome weapon at close range, had been placed underneath the accused's jacket and tucked in his belt. However, there was no evidence adduced that the accused intended to hide it. The trial judge acquitted the accused based on the reasons of Cavanagh J. expressed in R. v. Coughlan, supra. On appeal, Nemetz C.J.B.C. rejected the reasoning in the Coughlan case and substituted a verdict of guilty. He expressed the opinion that in so far as the Coughlan case held that the mens rea element required proof of putting a weapon out of sight for the purpose of concealment, it was wrongly decided. He went on to express the view that the only intent required to be shown by the Crown is that the accused intended to place the weapon in a place of concealment.

In the present case Toy J.A. thought that Nemetz C.J.B.C. had misapprehended the reasoning in Coughlan which he thought was correctly decided. He reconciled Lemire and Coughlan by finding that there was no significant difference between the two as to the mental element required for concealment.

What then should be the requisite mens rea for this offence? Perhaps a solution can be arrived at by considering the aim or object of the section itself. There is something extremely menacing and intimidating about the presence of a naked weapon. There is something even more sinister in the presence of a concealed weapon. No doubt the legislators enacting s. 89 believed that weapons are usually concealed by persons on the way to commit crimes or after leaving the scene. Clearly then one of the goals of the section is to discourage the prospective bank robber who might be apprehended on the way to the bank with a sawed-off shotgun concealed in his pant leg. Yet, I think the section has a wider aim. All Canadians have the right to feel protected from the sinister menace of a concealed weapon. If it was ever thought that it was lawful to carry concealed weapons more and more Canadians might come to believe it would be prudent for them to carry concealed weapons in order to defend themselves and their families. This might lead to a vigilante attitude that could all too readily result in an increase in violence in Canadian society. Canadians are well satisfied with the security provided by the close regulation of the ownership and use of firearms. They have every right to expect the concealment of weapons would also be prohibited or properly regulated. To fulfil the aim and object of s. 89, it would then appear that the requisite intent or mental element should be that the accused intended to hide from others an object he knew to be a weapon.

There is much to commend that approach to the mental element. Yet there are complicating factors. For example, hunting rifles and shotguns must be carried to and from the hunt camp. Many of the provinces have regulations regarding the transportation and carrying of guns for hunting. For example, s. 22(1) of the Ontario Game and Fish Act, R.S.O. 1990, c. G.1, provides:

22.--(1) In a locality that game usually inhabits or in which game is usually found, no person shall have a firearm in his or her possession, unless it is unloaded and encased, between one-half hour after sunset and one-half hour before sunrise of any day. [Emphasis added.]

The Nova Scotia regulations (N.S. Reg. 144/39, s. 8(4), as amended by 178/90 and 176/92) provide that no person shall possess a firearm in a vehicle at any time unless it is encased. Other provincial regulations require that the firearm be carried either in a gun case or that it be completely wrapped in a blanket or canvas securely tied around the firearm or in the luggage compartment of the vehicle.

As a general principle of Canadian statutory interpretation where a valid federal statute is in conflict with a valid provincial one, the doctrine of paramountcy renders the provincial statute inoperative as noted by La Forest J. in Bank of Montreal v. Hall, 1990 CanLII 157 (SCC), [1990] 1 S.C.R. 121, at pp. 151-52. However, where it is reasonably possible to do so, courts will avoid interpreting the statutes as being in conflict. In Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161, Dickson J. (as he then was) wrote at p. 191:

In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says "yes" and the other says "no"; "the same citizens are being told to do inconsistent things"; compliance with one is defiance of the other.

In this area of the law, the regulation of firearms is not monolithic. They are controlled by a variety of statutes for a variety of purposes. At the federal level, the grave danger posed by guns means that firearms regulations come within the scope of the criminal law power under s. 91(27) of the Constitution Act, 1867. See Attorney-General of Canada v. Pattison (1981), 1981 ABCA 98, 59 C.C.C. (2d) 138 (Alta. C.A.), approved of in R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, at p. 1000. At the same time, provincial regulations pertaining to hunting with firearms are within the purview of the provinces as matters of local interest (s. 92(16) of the Constitution Act, 1867) or as matters of property or civil rights (s. 92(13)) as noted by La Forest J.A. (as he then was) in R. v. Chiasson (1982), 1982 CanLII 2959 (NB CA), 135 D.L.R. (3d) 499, affirmed 1984 CanLII 136 (SCC), [1984] 1 S.C.R. 266. Dickson J. in Myran v. The Queen, 1975 CanLII 157 (SCC), [1976] 2 S.C.R. 137, at pp. 141-42, observed that the province has an interest in regulating those who would otherwise "hunt dangerously and without regard for the safety of other persons in the vicinity". We are therefore in a field where both levels of government have a legitimate interest and an overlapping jurisdiction to regulate. The mere presence of provincial restrictions on firearms does not therefore create a paramountcy problem so long as the two sets of enactments can be reconciled.

Taking these principles into account, the question becomes whether the provincial enactments compel citizens to defy a federal prohibition on the concealment of weapons.

Could a person complying with the provincial regulations be said to be in breach of s. 89? I think not. At a practical level, a gun case is a common place item that generally proclaims to all exactly what it is. In a great many instances, a gun case is sold with a hunting rifle or shotgun. Indeed, it is difficult to imagine that a gun owner would not transport his or her gun in a case to prevent it from rusting and eventually malfunctioning. A gun case is in the shape of the firearm and thus cannot be said to conceal the weapon. It could be argued that some of the cases for carrying expensive shotguns used for skeet shooting or trap shooting competitions more closely resemble a briefcase than a gun case. This may be but these cases can and should be marked clearly as the carrying case for the shotgun. A gun in a case or tightly wrapped in canvas should not be considered to be hidden or concealed. It still looks like a gun and carried in that manner does not infringe the provisions of s. 89. Thus, complying with provincial regulations will not result in the gun owner being in breach of s. 89.

The regulations that cause greater difficulty are those that oblige the owner to place his gun in a trunk or luggage compartment -- a container that from the outside does not signal to the public the presence of a gun. Recently enacted federal regulations on the transportation of firearms stipulate that a person may transport a firearm in a vehicle that is not attended only if the firearm is unloaded and either locked in the trunk or is not visible from outside the locked vehicle: Storage, Display, Handling and Transportation of Certain Firearms Regulations, SOR/92-459, ss. 10(2), 12(2) and (3). In my view, this is a sound regulations whose purpose is clearly to prevent the theft of firearms from unattended vehicles. A stolen firearm can be misused and thus constitutes a grave danger to society. Compliance with this very sensible regulation should not result in a conviction for carrying a concealed weapon. Rather, it should be seen as an exception to the prohibition otherwise in place under s. 89.

Of course, generally, regulations cannot create exceptions to their empowering acts. But as R. Dussault and L. Borgeat in Administrative Law: A Treatise (2nd ed. 1985), vol. 1, at p. 409, noted:

. . . there are many statutes containing provisions that permit the enabling statute to be amended by regulation with respect to its scope or field of application. Thus, frequently the nature of the delegated power is such that making a regulation necessarily entails some amendment to the statute. [Emphasis added.]

Here, the federal regulations are made pursuant to s. 116(1)(g) of the Code, as amended by S.C. 1991, c. 40, s. 28, that provides for rules "respecting the storage, display, handling and transportation of firearms". In granting the power to regulate storage -- as distinct from display -- and transportation, Parliament specifically provided for regulations that involve some measure of concealment of the weapons involved. By virtue of s. 116(1)(g), the regulations cited above are not in conflict with s. 89 but derogate from it and allow, in certain narrow circumstances, when the vehicle is unattended, for placing a weapon within a trunk without "concealing" it.

Compliance with federal regulations designed to protect the public from the danger of stolen weapons should not result in a conviction under s. 89 of the Criminal Code. The goals of the regulation and the Code provision are different yet complimentary. They are both designed to protect people from the threat of violence that results from the public presence of firearms. Thus, they must be interpreted in a manner which avoids conflict and promotes the goals of both provisions.

Similar rules exist at the provincial level. New Brunswick, under the Fish and Wildlife Act, S.N.B. 1980, c. F-14.1, s. 42(2)(c), (3)(e) and (4)(c), and Nova Scotia, under the Wildlife Act, R.S.N.S. 1989, c. 504, s. 80(2)(c), (3)(e) and (4)(c), require a firearm to be locked in the luggage compartment of the vehicle if the gun is not encased or wrapped and tied. Here again no conflict with s. 89 arises so long as the firearm is locked in the trunk in the circumstances outlined in the federal regulations. In other situations, for instance when the vehicle is not left unattended, the gun owner should use the other methods of carriage suggested in the provincial legislation -- encasement (where the firearm is restricted it must be encased under the federal rules) or tight wrapping -- neither of which, as outlined above, involve any real concealment for the purposes of s. 89 since the nature of the object so encased is apparent to all. It is possible to comply therefore with both the federal and provincial restrictions.

The appellant argues that he should not be convicted of a criminal offence because he had no evil intent. That is, he had no intention to break the law or injure others. Rather, he concealed his rifle in order to avoid alarming passengers on the Skytrain.

I cannot accept this argument. It would have been so easy to have made sure that the gun was unloaded and placed in a secured gun case or wrapped and tied and then carried openly on the Skytrain. That way the gun would not be concealed, that is to say hidden or disguised as something other than a gun. The fact that the firearm was enclosed would go a long way to reducing the sense of unease and alarm that would arise in the presence of a naked gun. If a gun is to be used for hunting or for target shooting the owner should be prepared to place it in a case at the end of the day for the safety, protection and peace of mind of all around him.

Yet there is a situation that does give rise to concerns. The criminal law does not punish those that are morally blameless. There must be a guilty mind or intent to constitute an act as criminal. What then of the accused, a resident of a sparsely populated area, returning from a hunting trip who stops on the way to pick up his young children. If he placed the firearms out of sight under the front seat in order to prevent the children from playing with them could he be convicted of carrying a concealed weapon?

Once again if the firearm is placed in a gun case or wrapped in canvas the father would have no concerns as to the safety of his children and the weapon would not have been concealed. It is possible to imagine the unlikely situation where a firearm case or canvas was simply not available. In those circumstances should a defence of reasonable excuse be available to the accused? I think not. Society has a right to be protected from the very real danger of death or injury that may all too readily result from carrying a concealed weapon. It is therefore preferable that the mental element requirement be simply that the accused, knowing the object carried to be a weapon, took steps to hide it from others.

Summary

In summary then, the requisite mens rea or mental element of s. 89 will be established if the Crown proves beyond a reasonable doubt that the accused concealed an object that he knew to be a weapon. In order to prove concealment it would have to be established that the accused took steps to hide the weapon so that it would not be observed or come to the notice of others.

A gun which is carried in a gun case will not be considered to be concealed. In the vast majority of cases, the gun carrying case will resemble the firearm itself so that it cannot be considered to be hidden. Further, wrapping a firearm in a blanket or canvas and securing it with rope as required by some provincial regulations should not be considered to be concealing the weapon. Again, in the vast majority of cases the wrapped weapon will still resemble a firearm and will not be considered to be concealed. Nor should the placing of a firearm in a locked trunk or out of sight in a locked and unattended vehicle in compliance with federal regulations be considered to be "carrying a concealed weapon" so as to infringe s. 89 of the Criminal Code. The regulation and the Code provision must be construed in a manner that avoids conflict and promotes the goals of both provisions.

Similarly, the shotgun which breaks down and is carried in a case that resembles a briefcase should not be considered concealed if the carrying case is clearly marked as a gun case.

I would observe that not only would guns carried in carrying cases not be concealed but if transported in that way they will not cause the same malaise as would a naked weapon. It takes time to open a gun case, to bring out the gun and to load and use it. That is obvious to all and will ease the nervousness produced by an uncased gun.

Application of these Principles to this Case

There can be no doubt that the .22 calibre rifle carried by the appellant was a weapon. It was concealed. The appellant, knowing the .22 rifle was a weapon, took steps to hide it from observation by others. His excuse that he took the steps so as not to upset the other riders on the Skytrain cannot constitute a defence. If he had been truly concerned about the situation he would not have made the immature and frightening remark that he was off on "a killing spree". His actions and attitude could very well have had unfortunate consequences.

Disposition

In the result I would dismiss the appeal.

The following are the reasons delivered by

McLachlin J. (dissenting) -- I have had the benefit of reading the reasons of the Chief Justice and of Justice Cory and find that I am in substantial agreement with the reasons of the Chief Justice. I agree with him that this case can be decided through a determination of whether a firearm is always a weapon as defined in s. 2 of the Criminal Code, R.S.C., 1985, c. C-46. To that end, I also agree with the interpretation given to the section by Gibbs J.A., an interpretation adopted by the Chief Justice, that a firearm only becomes a weapon "if used or intended for use to cause death or injury, or to threaten or intimidate".

I would, however, refrain from commenting upon the constitutionality of s. 89 of the Code. This issue was not argued before us and I prefer to leave it to another day.

I would allow the appeal and set aside the conviction.

Appeal dismissed, Lamer C.J. and Sopinka and McLachlin JJ. dissenting.

Solicitors for the appellant: Peck & Tammen, Vancouver.

Solicitor for the respondent: The Ministry of the Attorney General, Vancouver.