R. v. Kerr, [2004] 2 S.C.R. 371, 2004 SCC 44

Jason Richard Kerr Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Kerr

Neutral citation: 2004 SCC 44.

File No.: 29714.

2004: January 16; 2004: June 23.

Present: Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ.

on appeal from the court of appeal for alberta

Criminal law — Weapons offences — Possession of weapon for dangerous purpose — Accused killing fellow inmate in self-defence in knife fight in maximum security institution — Trial judge acquitting accused of possession of weapon for purpose dangerous to public peace on basis that he possessed his weapons for purposes of deterrence and defence — Court of Appeal setting aside acquittal and substituting conviction — Whether possession for defensive purpose mandates acquittal — Criminal Code, R.S.C. 1985, c. C-46, s. 88.

Criminal law — Weapons offences — Possession of weapon for dangerous purpose — Elements of offence — Purpose — Proper approach to be applied in determination of purpose — Criminal Code, R.S.C. 1985, c. C-46, s. 88.

The accused, an inmate in a maximum security institution, received death threats from the victim, a fellow inmate and a member of a criminal gang that exerted control over inmates through intimidation and assault. The next morning, as on every other morning, the accused concealed two weapons in his pants. In the dining area, the victim approached the accused brandishing a homemade knife. A physical altercation ensued and the victim was killed by a stab to the head. At trial, the accused was acquitted of second degree murder on the basis of self-defence, and of possession of a weapon for a purpose dangerous to the public peace on the basis that he possessed his weapons for purposes of deterrence and defence. The Court of Appeal upheld the acquittal on the charge of murder, but set aside the acquittal on the second charge and substituted a conviction.

Held (Binnie J. dissenting): The appeal should be allowed. The acquittal on the charge of possession of a weapon for a purpose dangerous to the public peace should be restored.

Per Major and Bastarache JJ.: By virtue of s. 676(1)(a) of the Criminal Code, the jurisdiction of the Court of Appeal is limited to a question of law alone. The Court of Appeal was of the view that the trial judge had applied a purely subjective test, rather than a hybrid subjective-objective test, in determining whether the accused possessed a weapon for a purpose dangerous to the public peace. An error in the qualification of a legal test is an error of law justifying the Court of Appeal’s intervention. The court also viewed the trial judge’s conclusion that a purpose of deterrence and defence is not a purpose dangerous to the public peace as a principle of law having precedential value. It was entitled to consider this matter a question of law and thus had jurisdiction to intervene.

To satisfy the requirements of s. 88(1) of the Criminal Code, the Crown must establish (1) that the accused possessed a weapon; and (2) that the purpose of that possession was one dangerous to the public peace. The only issue in this case is the question of purpose. A hybrid subjective-objective test is the proper approach to be applied in the determination of purpose. The trier of fact must first determine subjectively what the accused’s purpose was. This determination may involve a consideration of objective criteria. The question is what object the accused knew would probably flow from his possession, regardless of whether he desired it or not. Subsequently, the trier of fact must determine objectively whether that purpose was, in all the circumstances, dangerous to the public peace. There is no exhaustive test for dangerousness because of the wide variety of settings and circumstances in which a danger may arise. In s. 88, the concept of “public peace” refers generally to a state of order or to the normal state of society, but violence is not always and without exception a danger to the public peace. It is for the trier of fact, on the basis of all relevant factors, to determine whether the purposeful act would, in the particular circumstances, have endangered the public peace.

The fact that an accused possessed a weapon for a defensive purpose is not itself determinative of guilt or innocence under s. 88, and it is also clear that actual use of a weapon in a manner which is dangerous to the public peace does not establish that the weapon was possessed for a purpose dangerous to the public peace. Where an accused is found to have possessed a weapon for a defensive purpose, it is only where the attack is completely inescapable that possession of a weapon to thwart the attack is not possession for a purpose dangerous to the public peace. Many indicia will be relevant to this determination of avoidability, including location, atmosphere, nature of the threat, imminence of danger, and actual use. A finding that the accused actually used his weapon in a manner which constituted justifiable self-defence is relevant under s. 88, but not sufficient for an acquittal thereunder. It is relevant insofar as it may reveal both whether the accused’s subjective purpose was truly to defend himself and whether, in the circumstances, the attack was escapable.

In this case, the Court of Appeal erred in setting aside the acquittal on the charge of possession of a weapon for a purpose dangerous to the public peace. On the day of the altercation, the accused possessed his weapon for the purpose of defending himself against an imminent attack by specific individuals. His purpose was not, in all the circumstances, dangerous to the public peace, since the attack was clearly unavoidable. The accused was subject to specific credible threats of an imminent assault, in an environment from which there was simply no possibility of escape and in which it was futile to seek protection. It is also particularly relevant that the trial judge specifically found that the accused’s actual use of the weapon constituted justifiable self‑defence.

The Court of Appeal also erred in holding that “the dangerous purpose requirement of s. 88 is found in s. 90 of the Criminal Code”. Although concealment is the determinative factor under s. 90, it is but one relevant factor under s. 88. The Court of Appeal effectively replaced the requirement that the purpose be dangerous with the requirement that the purpose be unlawful.

Per Arbour and LeBel JJ.: Section 88(1) of the Criminal Code requires a subjective mens rea. Constitutional considerations aside, there is a common law presumption that, absent a clear expression of Parliamentary intent, a person is not liable for a criminal offence in the absence of subjective mens rea. However, the elements of the offence must be distinguished from the evidentiary problems that arise in any offence where the trier of fact is called on to determine the subjective intent of an accused. To do this, the trier of fact must look at the externalities or objective indicia of the accused’s state of mind.

Under s. 88(1), an accused’s subjective purpose must be one that is dangerous to the public peace. To avoid importing an objective element into a purely subjective approach, the concept of a “purpose dangerous to the public peace” needs to be given concrete content. Within the meaning of s. 88(1), it is the possession of a weapon with the intention of doing harm to persons or property, or showing reckless disregard for harm to persons or property. Section 88(1) does not require actual use of the weapon, but does require possession of a weapon coupled with an additional intention.

Here, the elements of s. 88(1) have been established. The accused possessed the “shanks” for a purpose dangerous to the public peace, since he intended to use them to harm another person or persons. Self-defence does not negate the mens rea of s. 88(1); rather it is a justification for conduct that would otherwise attract criminal liability. An accused can be excused from criminal liability under s. 88(1) where possession of a weapon is necessary for defending himself. On the facts of this case, the defence of necessity is made out. The accused possessed the weapons to defend himself against an imminent attack and had a reasonable belief that the circumstances afforded him no legal way out; also, the harm he sought to avoid outweighed the breach of s. 88(1).

Per Deschamps and Fish JJ.: On a prosecution under s. 88(1) of the Criminal Code, the relevant purpose is that of the accused. Any statement by the accused as to the purpose of the possession is admissible and entitled to appropriate weight. It is not, however, conclusive. The court must consider all of the evidence, including the declared purpose, in determining the real purpose for which the accused had possession of the weapon at the relevant time. The court, bearing in mind all of the circumstances, must then determine whether that purpose was “dangerous to the public peace” within the meaning of s. 88 of the Criminal Code. That is precisely what the trial judge did. Taking all of the evidence into account, he concluded that the accused had the weapon in his possession “to deter first strike and defend against it should it become necessary”. The Court of Appeal erred in setting aside the acquittal. It found the accused guilty under s. 88, the offence with which he was charged, because he had in its view committed an offence under s. 90 (carrying a concealed weapon) with which he was never charged. Morever, in dealing with the critical issue of the accused’s purpose in possessing the weapon, the court impermissibly substituted its own view of the evidence for the opposite finding of the trial judge, holding that “[the accused’s] decision to conceal his weapons evidences [his] choice of reprisal over deterrence”. These errors are fatal to the Court of Appeal’s decision.

Per Binnie J. (dissenting): The accused’s conviction under s. 88(1) of the Criminal Code should be upheld. The trial judge found that the accused had not a single purpose but a double motive, each given the same emphasis, for carrying his knife on the day in question. The accused’s apprehension of a fight with a fellow inmate was one purpose, but this has to be seen in the broader context of the accused’s more general “purpose” of carrying his weapon on every day of his prison life, subjectively contemplating the use of the “shank” in the violent resolution of disputes within the prison population. This broader context raises a more general question about the lawfulness of prisoners carrying weapons inside a maximum security institution and demonstrates “a purpose dangerous to the public peace” within the Criminal Code prohibition. The concept of the “public peace” in s. 88(1) aims at a state of order, the very opposite of a state of violent confrontation, and is not much concerned with who is the aggressor and who claims to be defending himself.

The dangerous weapon charge relates only to January 16, 2000. But in determining his purpose on that day it is relevant to take into consideration his general modus operandi as part of the factual context. The evidence makes it clear that the accused would have been carrying his knife on the day of the incident irrespective of the threats. As on every other day, he was in possession of a dangerous weapon within a prison culture of violence for the purpose of self-help through the infliction of injury or death. The argument that violent self-help in breach of the peace can be justified as a “necessity” has been rejected since medieval times as inimical to public order and should not be given new credence today.

Cases Cited

By Bastarache J.

Applied: R. v. Nelson (1972), 1972 CanLII 400 (ON CA), 8 C.C.C. (2d) 29; Chandler v. Director of Public Prosecutions, [1962] 3 All E.R. 142; approved: R. v. Calder (1984), 11 C.C.C.

(3d) 546; R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973; referred to: R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286; Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748; R. v. Cassidy, 1989 CanLII 25 (SCC), [1989] 2 S.C.R. 345; R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867; R. v. Théroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5; R. v. Proverbs (1983), 1983 CanLII 3547 (ON CA), 9 C.C.C. (3d) 249; R. v. Dugan (1974), 1974 CanLII 1597 (ON CJ), 21 C.C.C. (2d) 45; R. v. Beeds, 1972 CanLII 750 (SK QB), [1972] 6 W.W.R. 44; R. v. Hinchey, 1996 CanLII 157 (SCC), [1996] 3 S.C.R. 1128; R. v. Lohnes, 1992 CanLII 112 (SCC), [1992] 1 S.C.R. 167; R. v. Chomenko (1974), 1974 CanLII 1465 (ON CA), 18 C.C.C. (2d) 353; R. v. Sulland (1982), 1982 CanLII 495 (BC CA), 2 C.C.C. (3d) 68; R. v. Vandooren, 1969 CanLII 952 (BC CA), [1969] 4 C.C.C. 217; R. v. Felawka, 1993 CanLII 36 (SCC), [1993] 4 S.C.R. 199.

By LeBel J.

Applied: R. v. Nelson (1972), 1972 CanLII 400 (ON CA), 8 C.C.C. (2d) 29; R. v. Vandooren, 1969 CanLII 952 (BC CA), [1969] 4 C.C.C. 217; R. v. Flack, 1968 CanLII 812 (BC CA), [1969] 1 C.C.C. 55; R. v. Chomenko (1974), 1974 CanLII 1465 (ON CA), 18 C.C.C. (2d) 353; R. v. G. (D.) (1999), 1999 CanLII 3221 (ON CA), 139 C.C.C. (3d) 191; R. v. Howell, [1982] Q.B. 416; referred to: R. v. Pierce Fisheries Ltd., 1970 CanLII 178 (SCC), [1971] S.C.R. 5; R. v. City of Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299; R. v. Hasselwander, 1993 CanLII 90 (SCC), [1993] 2 S.C.R. 398; R. v. Cassidy, 1989 CanLII 25 (SCC), [1989] 2 S.C.R. 345; Vallance v. The Queen (1961), 108 C.L.R. 56; R. v. Mulligan (1974), 1974 CanLII 1662 (ON CA), 18 C.C.C. (2d) 270; Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570; R. v. Magee (1923), 1923 CanLII 126 (SK CA), 40 C.C.C. 10; Frey v. Fedoruk, 1950 CanLII 24 (SCC), [1950] S.C.R. 517; R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973; Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232.

By Fish J.

Applied: R. v. Nelson (1972), 1972 CanLII 400 (ON CA), 8 C.C.C. (2d) 29.

By Binnie J. (dissenting)

R. v. Nelson (1972), 1972 CanLII 400 (ON CA), 8 C.C.C. (2d) 29; R. v. Knudsen (1970), 1970 CanLII 1017 (BC CA), 1 C.C.C. (2d) 576; Timothy v. Simpson (1835), 1 C.M. & R. 757, 149 E.R. 1285; R. v. Biron, 1975 CanLII 13 (SCC), [1976] 2 S.C.R. 56; R. v. Lefebvre (1984), 1984 CanLII 473 (BC CA), 15 C.C.C. (3d) 503; R. v. Howell (1981), 73 Crim. App. Rep. 31; R. v. Magee (1923), 1923 CanLII 126 (SK CA), 40 C.C.C. 10; Frey v. Fedoruk, 1950 CanLII 24 (SCC), [1950] S.C.R. 517; R. v. Sulland (1982), 1982 CanLII 495 (BC CA), 2 C.C.C. (3d) 68; R. v. G. (D.) (1999), 1999 CanLII 3221 (ON CA), 139 C.C.C. (3d) 191.

Statutes and Regulations Cited

Corrections and Conditional Release Act, S.C. 1992, c. 20.

Criminal Code, R.S.C. 1985, c. C-46, ss. 21(1)(b), 30, 31, 34(2), 88 [repl. 1995, c. 39, s. 139], 90 [idem], 175(1)(a), 235(1), 270(1)(b), 343(a), 676(1)(a) [am. 1997, c. 18, s. 93].

Authors Cited

Baker, J. H. An Introduction to English Legal History, 2nd ed. London: Butterworths, 1979.

Black’s Law Dictionary, 6th ed. St. Paul, Minn.: West Pub. Co., 1990.

Harding, Alan. A Social History of English Law. Harmondsworth, England: Penguin Books, 1966.

Lapointe, P. “Les infractions criminelles”, dans Collection de droit 2002-2003, vol. 11, Droit pénal: Infractions, moyens de défense et peine. Cowansville: Yvon Blais, 2003, 55.

Stuart, Don. Canadian Criminal Law: A Treatise, 4th ed. Scarborough, Ont.: Carswell, 2001.

Williams, Glanville. “Arrest for Breach of the Peace”, [1954] Crim. L. Rev. 578.

APPEAL from a judgment of the Alberta Court of Appeal (2003), 13 Alta. L.R. (4th) 35, [2003] 6 W.W.R. 15, 327 A.R. 38, 174 C.C.C. (3d) 359, 12 C.R. (6th) 308, [2003] A.J. No. 308 (QL), 2003 ABCA 92, upholding the accused’s acquittal on the charge of second degree murder but setting aside his acquittal on the charge of possession of a weapon for a purpose dangerous to public peace. Appeal allowed, Binnie J. dissenting.

Charles B. Davison, for the appellant.

Jim Bowron, for the respondent.

The reasons of Major and Bastarache JJ. were delivered by

Bastarache J. —

I. Introduction

1 The appellant, Kerr, an inmate at the Edmonton Institution, was charged with second degree murder and possession of a weapon for a purpose dangerous to the public peace. The deceased, Joseph Garon, was a member of a criminal gang called the Indian Posse, which, according to expert evidence, controlled the institution at the time of the incident giving rise to the accusations. Garon and an associate had both issued threats against Kerr. The trial judge found Kerr not guilty of the charge of murder on the basis of self‑defence; this finding was upheld by the Court of Appeal. The trial judge also found Kerr not guilty of the charge of possession of a weapon for a purpose dangerous to the public peace, but the Court of Appeal set aside the acquittal and substituted a conviction.

2 The issue before this Court is whether the Court of Appeal exceeded its jurisdiction by allowing the appeal, and whether, assuming it had jurisdiction, the conviction should stand. In particular, on this second issue, this Court must determine whether a defensive purpose is, and if so in what circumstances, a purpose dangerous to the public peace.

II. Facts

3 Both the appellant Kerr and the deceased Garon were, at all relevant times, inmates at the Edmonton Institution, a federal maximum security gaol. Garon was a member of the Indian Posse, a gang which exerted control over the other inmates — and the institution at large — through intimidation and assault.

4 Kerr worked at the institution as servery cleaner. On the evening of January 15, 2000, Garon demanded coffee from Kerr, but Kerr refused to provide it. Garon told Kerr that if he were not provided with coffee, the prison guard would later find Kerr with his head smashed in. Later, another inmate, also a member of the Indian Posse, similarly demanded coffee and told Kerr that if he were not provided with coffee, Kerr should not be around the next day.

5 The following morning, Kerr, as part of his duties as servery cleaner, set up the dining area for breakfast. Anticipating an attack, he retrieved two weapons which he had hidden under a sink — a metal knife which he had manufactured by sharpening a big spoon, and an ice pick which he had manufactured by sharpening a steel rod. He concealed the weapons in his pants, and remained vigilant as various prisoners entered the dining area.

6 Garon, as well as other members of the Indian Posse, entered the dining area. Garon told Kerr that he had “punked him off”; Kerr replied “whatever”. The door to the dining area was then closed, and Garon approached Kerr, brandishing a homemade knife. Kerr then retrieved his own metal knife. A physical altercation ensued, during which each stabbed the other multiple times. At some point, Garon jumped back and shrugged as though the fight were over. He began to walk out of the dining area, but collapsed.

7 Garon was transported to the Royal Alexandra Hospital and pronounced dead later that morning. He died of a stab wound to the head delivered by Kerr during the altercation. Kerr was charged on July 9, 2001 with the second degree murder of Garon, contrary to s. 235(1) of the Criminal Code, R.S.C. 1985, c. C-46, and with possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(1) of the Code.

III. Judicial History

A. Alberta Court of Queen’s Bench

8 Clackson J. accepted Kerr’s evidence to the effect that he was defending himself against what he perceived to be a lethal attack. Clackson J. found that Kerr’s evidence was compelling and consistent with the physical evidence at the scene and the observations of other witnesses.

9 Clackson J. acquitted Kerr on the charge of second degree murder on the basis that his actions constituted self-defence. The judge found that Kerr believed that his life was threatened, and that his belief was perfectly justified at the time.

10 With regard to the charge of possession of a weapon for a purpose dangerous to the public peace, Clackson J. found that, on the date in question, Kerr possessed the weapons in part as per his usual practice and in part to prepare for defence against imminent aggression. The judge cited R. v. Nelson (1972), 1972 CanLII 400 (ON CA), 8 C.C.C. (2d) 29 (Ont. C.A.), for the proposition that possession of a weapon for self-defence purposes does not necessarily render that possession lawful. Nevertheless, Clackson J. acquitted Kerr on the charge in question on the basis that he possessed his weapons for purposes of deterrence and defence:

Given the violent atmosphere prevalent at the institution at the time and the number of inmates with homemade weapons, it’s my view that the weapons possessed by Mr. Kerr were not possessed contrary to Section 88(1) of the Criminal Code; rather, it would seem that Mr. Kerr had his weapons, much like the world Super Powers have their weapons, to deter first strike and defend against it should it become necessary.

B. Alberta Court of Appeal (2003), 13 Alta L.R. (4th) 35, [2003 ABCA 92](https://www.canlii.org/en/ab/abca/doc/2003/2003abca92/2003abca92.html)

11 With regard to the charge of second degree murder, the Court of Appeal found that there was ample evidence upon which the trial judge relied in finding that all of the elements of self-defence were made out, and that appellate interference was thus not warranted.

12 As for the second charge, the court identified the essential issue as being whether weapons carried for strictly defensive purposes will support a conviction pursuant to s. 88. The court indicated that no single factor, including acquisition and possession of a weapon only for the purpose of self-defence, is determinative of the issue of guilt or innocence on a charge of possession of a weapon for a purpose dangerous to the public peace; the court cited Nelson, supra, in support of this proposition.

13 The court observed that carrying a concealed weapon is a crime, by virtue of s. 90 of the Code, and found that Kerr’s actions in concealing the weapons play a critical role in the analysis of dangerous purpose in this case. The court held that the dangerous purpose requirement of s. 88 is found in s. 90, since even if one’s purpose is self-defence, concealment of a weapon is itself a crime, and the unlawful purpose is thereby made out. The court indicated that there is an arguable distinction between possession of a weapon for defensive purposes, for example in one’s home where concealment is unnecessary, and possession of a weapon in a penitentiary setting.

14 The court found that had it been Kerr’s intention to deter the apprehended attack, it was open to him to display his weapons to the deceased in a timely manner. The act of concealment, according to the court, rendered it more likely that there would be a breach of the peace. The court found that while concealment facilitated Kerr’s counterattack, it also contributed to an already dangerous situation of which Kerr was fully aware. The decision to conceal, according to the court, evidenced Kerr’s choice of reprisal over deterrence.

15 For these reasons, the court held that 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.

16 The court set aside the acquittal and substituted a conviction for possession of a weapon for a purpose dangerous to the public peace.

IV. Relevant Statutory Provisions

17 The relevant provisions of the Criminal Code are:

88. (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

(2) Every person who commits an offence under subsection (1)

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

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

90. (1) Every person commits an offence who carries a weapon, a prohibited device or any prohibited ammunition concealed, unless the person is authorized under the Firearms Act to carry it concealed.

(2) Every person who commits an offence under subsection (1)

(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.

676. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone;

V. Issues

18 There are two issues raised in this appeal. The first issue is whether the Court of Appeal had jurisdiction to intervene. The second issue is whether Kerr possessed the weapons for a purpose dangerous to the public peace, or more generally, whether possession for a defensive purpose, alone and without more, mandates an acquittal on a charge of possession for a purpose dangerous to the public peace.

VI. Analysis

A. Jurisdiction of the Court of Appeal

19 By virtue of s. 676(1)(a) of the Code, the jurisdiction of the Court of Appeal herein was limited to a question of law alone. The qualification of a question as one of law, fact, or mixed fact and law, has presented many problems in the past: see R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286. Further, in some cases, it is difficult to define with precision what the appellate court actually considered to be the error of law alone. In my view, the Court of Appeal in the present case considered the trial judge to have erred in his qualification of the relevant legal test as one that is purely subjective. The Court of Appeal also regarded the trial judgment as having established a legal rule having the potential to apply widely to many cases, which rule it could not endorse.

20 First, the Court of Appeal was of the view that the determination that a person possessed a weapon for a purpose dangerous to the public peace requires the application of a hybrid subjective-objective test: the purpose of the accused is to be determined subjectively, and the dangerousness of said purpose is to be determined objectively. The trial judge referred to proper authority on this issue — Nelson, supra — and specifically indicated that possession of a weapon for self-defence purposes does not itself render said possession lawful. However, the trial judge then proceeded to apply a purely subjective test and concluded plainly that possession of weapons for purposes of deterrence and defence does not constitute possession for a purpose dangerous to the public peace. The trial judge considered the violent atmosphere prevalent at the institution and the high number of inmates with homemade weapons merely as the context illuminating Kerr’s subjective purpose, which purpose it found to be deterrence and defence. On this basis alone — and without consideration of the objective dangerousness of Kerr’s purpose — the trial judge acquitted. An error in the qualification of a legal test is an error of law justifying the Court of Appeal’s intervention: see Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35.

21 Second, the Court of Appeal regarded the trial judgment as having established a rule with wide application, thereby raising a question of law: see Southam, supra, at paras. 36-37. The trial judge ultimately concluded that a purpose “to deter first strike and defend against it should it become necessary” is not a purpose dangerous to the public peace. In my view, the Court of Appeal viewed this conclusion as a principle of law, having precedential value. Interestingly, the Court of Appeal may have underestimated the generality of the trial judge’s proposition, since it may have understood the principle as applying only in prisons with a high prevalence of illegal concealed weapons. Whether limited to a particular prison setting or not, the Court of Appeal regarded the trial judge’s rule as a “recipe for anarchy within a prison setting” (para. 32). Certainly, this question is closely related to that discussed above, since it is the trial judge’s purely subjective approach for determining a “purpose dangerous to the public peace” which led him to formulate a general proposition based solely on subjective purpose. In any event, the Court of Appeal was entitled to consider this matter a question of law and thus had jurisdiction to intervene.

B. Possession of a Weapon for a Purpose Dangerous to the Public Peace

22 I note at the outset that s. 88 seems to create two separate offences: (i) possession of a weapon “for a purpose dangerous to the public peace” and (ii) possession of a weapon “for the purpose of committing an offence”. In this case, we are concerned only with the first of these offences.

23 In R. v. Cassidy, 1989 CanLII 25 (SCC), [1989] 2 S.C.R. 345, at p. 351, this Court set out the two elements which the Crown must prove in order to establish guilt on a charge of possession of a weapon for a purpose dangerous to the public peace:

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.

Thus, the Crown must establish (i) that the accused possessed a weapon, and (ii) that the purpose of that possession was one dangerous to the public peace. The offence is qualified in the doctrine as a specific intent crime since “the prohibited conduct [must] be committed with an intent to achieve a particular result”: see D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), at p. 236. In the present case, there is no issue as to possession; we are concerned squarely with the question of purpose.

24 On the purpose, I note first that a person’s purpose may change during the time that he possesses. I endorse the perspective of the Alberta Court of Appeal in R. v. Calder (1984), 1984 ABCA 45, 11 C.C.C. (3d) 546, where it stated, at p. 549:

Although it is firmly established in law that the element of intent or mens rea must be present for there to be an offence, it does not necessarily follow that a person’s initial intent when he takes possession of a weapon governs throughout his possession. A person’s intent does not necessarily remain constant and may change to a dangerous intent even though the initial purpose in taking possession was not a dangerous one.

There must be, at some point, a meeting of the elements of possession and of a purpose dangerous to the public peace.

25 There is some confusion in the jurisprudence about the proper test to be applied in the determination of purpose. In my view, the correct approach — a hybrid subjective-objective test — was adopted by the Ontario Court of Appeal in Nelson, supra. By this approach, the trier of fact must first determine what was the accused person’s purpose; this is a subjective determination. The trier of fact must then determine whether that purpose was in all the circumstances dangerous to the public peace; this is an objective determination.

26 Section 88 requires simply that the accused person have a purpose dangerous to the public peace. Thus, any purpose will do, so long as that purpose is in consequence dangerous to the public peace. As discussed by this Court in R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, the term “purpose” is capable of two different meanings: purpose as “intention” or purpose as “desire”. In that case, the court concluded that, for the purposes of s. 21(1)(b) of the Code, the former definition should be adopted: “a person who consciously performs an act knowing the consequences that will (with some degree of certainty) flow from it ‘intends’ these consequences or causes them ‘on purpose’, regardless of whether he or she desired them” (para. 29).

27 I would endorse this same definition for the provision at issue. Thus, the question under the first stage of the purpose analysis is what object (or objects) did the accused person know would probably flow from his possession, whether he desired it (or them) or not. Of course, understood in this way, a person may have more than one purpose. Since the provision reads “a purpose”, the Crown is entitled to rely on any of the accused person’s purposes.

28 It is interesting to note that, conceptually, the defence of self-defence is not something which one “intends” in the criminal law sense. A person who is attacked intends to assault the assailant; his motivation is self-protection or self-preservation. Stated otherwise, self-defence does not negate the mens rea of assault, but rather allows the accused to escape criminal liability on the basis of an acceptable motive: Stuart, supra, at p. 453. For the purposes of the present analysis, the phrase “defensive purpose” refers to the intention to assault an aggressor using only as much force as is necessary to repel or thwart the attack.

29 Certainly, the determination of an accused person’s subjective purpose may involve consideration of objective indicia: R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867; R. v. Théroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5. The distinction between a subjective substantive standard and an objective approach to proof is well settled. As stated in Nelson, supra, at p. 31:

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 [what] 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. [Emphasis in original.]

Thus, the testimony of the accused is not the only factor to be considered in determining his purpose; inferences as to purpose can be drawn from objective factors, such as actual use: see also R. v. Proverbs (1983), 1983 CanLII 3547 (ON CA), 9 C.C.C. (3d) 249 (Ont. C.A.).

30 The court in Nelson, supra, suggested that the determination of the accused person’s subjective purpose is only the first part of a two-stage analysis. The trier of fact must in the second stage determine whether the purpose was, from an objective standard, dangerous to the public peace. As stated at p. 32, the fact that an accused person possessed a weapon for a defensive purpose is not itself determinative of guilt or innocence under s. 88:

. . . I disagree with the suggestion that in the light of the fact that the trier of fact accepted the accused’s explanation, such acceptance was inconsistent with a finding that the offence had been committed.

I would prefer to put it that notwithstanding the explanation given by the accused the trier of fact may find that in all the circumstances of the case the possession was in fact for a purpose dangerous to the public peace. 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. [Underlining added.]

Thus, it is not enough to find that the accused person possessed the weapon for a defensive purpose; the judge must then determine whether said purpose was in all the circumstances dangerous to the public peace.

31 These two propositions — that objective factors are relevant to determining subjective purpose and that the dangerousness of a particular purpose is an objective standard — are sometimes conflated. For example, it is unclear in the Alberta Court of Appeal judgment in the present case what significance is to be attributed to Kerr having concealed his weapons. According to the court, the act of concealment “rendered it more likely that there would be a breach of the peace”, but also “evidences the Respondent’s choice of reprisal over deterrence” (para. 30). Of course, in a given case, a particular factor may be relevant to the determination of purpose as well as to the determination of dangerousness; but the analyses of these two questions are conceptually distinct.

32 The plain language of s. 88 strongly supports employment of the objective standard for dangerousness. It is noteworthy, in particular, that the provision reads “for a purpose dangerous to the public peace”, as opposed to, for example, “for the purpose of causing danger to the public peace”. In my view, these two phrases bear very different meanings. The former phrase, “for a purpose dangerous to the public peace”, requires that the purpose, whatever it may be, be dangerous to the public peace. On the other hand, the latter phrase, “for the purpose of causing danger to the public peace”, requires that the purpose specifically be that of causing danger to the public peace. In other words, the former phrase captures any given purpose, so long as that purpose is in consequence dangerous to the public peace; the phrase may as well read “for a purpose that is dangerous to the public peace”. The latter phrase, on the other hand, requires a particular subjective purpose — that of causing danger to the public peace.

33 The conclusion that s. 88 requires application of a hybrid subjective-objective test is further reinforced through consideration of those other specific intent crimes in the Criminal Code, all of which clearly require by the terms of the particular provision an ulterior intention to achieve a specific consequence. For example, s. 270(1)(b) of the Code makes it an offence to “assaul[t] a person with intent to resist or prevent the lawful arrest or detention of himself or another person”. Thus, the accused must specifically intend to resist or prevent arrest. Similarly, s. 343(a) of the Code defines “robbery” as stealing, “and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, us[ing] violence or threats of violence to a person or property”. Once again, the accused must specifically intend to extort or to prevent resistance. Even the provision at issue, s. 88, in addition to establishing the offence in question, establishes the offence of possession “for the purpose of committing an offence”. Here, the accused must specifically intend to commit an offence. It is readily apparent that each of these provisions specifically requires the intention to perform a particular action — be it resisting arrest, extorting what is stolen, or committing an offence. Every other specific intent crime provision in the Criminal Code reads likewise, and is in this regard conspicuously dissimilar from the provision at issue.

34 Thus, given the unique nature of the wording of the provision in question, Canadian decisions addressing the mens rea requirements of other specific intent crimes are of little assistance. What is helpful, however, is the House of Lords decision in Chandler v. Director of Public Prosecutions, [1962] 3 All E.R. 142, where at issue was s. 1(1) of the Official Secrets Act, 1911, which provided as follows:

If any person for any purpose prejudicial to the safety or interests of the state — (a) approaches or is in the neighbourhood of, or enters any prohibited place within the meaning of this Act . . . he shall be guilty of felony . . . .

The similarity in the wording of this provision to that at issue — “for any purpose prejudicial” versus “for a purpose dangerous” — is readily apparent. On the meaning of the term “purpose”, Lord Devlin stated at p. 155:

I shall begin by considering the word “purpose”, for both sides have relied on this word in different senses. Broadly, the appellants contend that it is to be given a subjective meaning and the Crown an objective one.

I have no doubt that it is subjective. A purpose must exist in the mind. It cannot exist anywhere else. The word can be used to designate either the main object which a man wants or hopes to achieve by the contemplated act, or it can be used to designate those objects which he knows will probably be achieved by the act, whether he wants them or not. I am satisfied that in the criminal law in general, and in this statute in particular, its ordinary sense is the latter one. In the former sense it cannot in practice be distinguished from motive which is normally irrelevant in criminal law. Its use in that sense would make this statute quite inept. As my noble and learned friend LORD REID pointed out during the argument, a spy could secure an acquittal by satisfying the jury that his purpose was to make money for himself, a purpose not in itself prejudicial to the state, and that he was indifferent to all the other consequences of his acts. Accordingly, all the results which a man appreciates will probably flow from his act are classifiable as “purposes” within the meaning of s. 1: and since the statute refers to “any purpose”, the prosecution is entitled to rely on any of them. The next question then is whether the selected purpose is “prejudicial” or not and that question is in my opinion to be answered objectively. [Emphasis added.]

This mens rea analysis is precisely that proposed herein: first, the individual’s purpose is to be determined subjectively, and second, the dangerousness of the purpose is to be determined objectively (see also R. v. Dugan (1974), 1974 CanLII 1597 (ON CJ), 21 C.C.C. (2d) 45 (Ont. Prov. Ct.); R. v. Beeds, 1972 CanLII 750 (SK QB), [1972] 6 W.W.R. 44 (Sask. Q.B.)).

35 More generally, I think it important to note that this Court has recognized before that the mens rea of an offence may be comprised of both subjective and objective elements. Thus, in R. v. Hinchey, 1996 CanLII 157 (SCC), [1996] 3 S.C.R. 1128, L’Heureux-Dubé J., writing for the majority, held at para. 80:

I am somewhat uncomfortable with the way Professor Stuart refers to “an offence of subjective mens rea”, suggesting that an offence must be either subjective or objective with no possible middle ground. In fact, quite often the mens rea of an offence will be comprised of both objective and subjective elements. This has been recognized by this Court on more than one occasion. . . .

For example, in R. v. Lohnes, 1992 CanLII 112 (SCC), [1992] 1 S.C.R. 167, McLachlin J. (as she then was) writing for the Court held that to commit the offence of causing a disturbance in a public place under s. 175(1)(a) of the Code, an individual must subjectively intend to cause the underlying act which leads to the disturbance, and the disturbance must be one which may reasonably have been foreseen in the particular circumstances of time and place.

36 Thus, the difficulty with the Nelson judgment, and the cases which follow, is not that it set out a hybrid subjective-objective test for the phrase “for a purpose dangerous to the public peace”, but rather that it did not make absolutely clear what actually constitutes a danger to the public peace. P. Lapointe writes:

[translation] The concept of public peace is at the very least imprecise. Since Parliament mentions this notion as well as that of committing an offence, it covers a situation broader than a contravention of the Criminal Code.

(Barreau du Québec, Collection de droit 2002-2003, vol. 11, Droit pénal: Infractions, moyens de défense et peine (2003), c. II, “Les infractions criminelles”, 55, at p. 75)

This paucity in the case law is hardly surprising; there could be no exhaustive test for dangerousness, because of the wide variety of settings and circumstances in which a danger may arise. While I am prepared to accept, as proposed by Binnie J., that “public peace” refers generally to a state of order or to the normal state of society, I am not prepared to hold, as suggested by Binnie J., that violence is always and without exception a danger to the public peace. It is for the trier of fact, on the basis of all relevant factors, to determine whether the purposeful act would have, in the particular facts, endangered the public peace.

37 What is clear, however, is that actual use of a weapon in a manner which is dangerous to the public peace does not establish that the weapon was possessed for a purpose dangerous to the public peace. Actual use is but one factor to be considered: R. v. Chomenko (1974), 1974 CanLII 1465 (ON CA), 18 C.C.C. (2d) 353 (Ont. C.A.).

38 In my view, the crucial issue in those cases where the accused person is found to have possessed a weapon for a defensive purpose is whether or not the attack which the accused purported to thwart was avoidable. Thus, only where the attack is completely inescapable is possession of a weapon to thwart the attack not possession for a purpose dangerous to the public peace. To the contrary, the purposeful act then constitutes an abatement of a danger to the public peace, namely, an attack on one’s self. Many indicia will be relevant to the determination of avoidability, including, inter alia: location, atmosphere, nature of the threat, imminence of the danger, and actual use.

39 The question arises as to the relevance of a finding that the accused actually used his weapon in a manner which constituted justifiable self-defence. Thus, in R. v. Sulland (1982), 1982 CanLII 495 (BC CA), 2 C.C.C. (3d) 68, the British Columbia Court of Appeal held, at p. 71:

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. [Emphasis added.]

Insofar as the B.C. Court of Appeal was referring, by the use of the phrase “in a lawful manner”, to justifiable self-defence, Jessup J.A., dissenting in Nelson, supra, seemed to agree (at p. 36):

Having a weapon for the sole purpose of abating a breach of the peace threatened to result from an attack on the possessor is not, in my opinion, a purpose dangerous to the public peace. Self-defence, justifiable under the Code, is not confined to tooth and nail. [Emphasis added.]

40 In my view, a finding that the accused actually used his weapon in a manner which constituted justifiable self-defence is relevant under s. 88, but not sufficient for an acquittal thereunder. Under s. 34(2) of the Code, a person is justified in causing death or grievous bodily harm in repelling an unlawful assault if (a) he causes it under reasonable apprehension of death or grievous bodily harm, and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself. A conclusion that a person acted in self-defence under s. 34(2) is thus relevant under s. 88 insofar as it may reveal both whether or not the accused person’s subjective purpose was truly to defend himself, meaning that he intended no more than to use the weapon to thwart the attack, and whether or not in the circumstances the attack was escapable. However, it must be made clear that whereas under self-defence, at issue is the accused person’s conduct, at issue under s. 88 is the accused person’s purpose. The accused may or may not have purported to use the weapon in the manner it was actually used, i.e., for a purely defensive purpose. Moreover, whereas under self-defence we are concerned with the reasonableness of the accused person’s beliefs, under s. 88 we are concerned with the actual objective circumstances. Thus, a belief that one cannot otherwise preserve himself may be reasonable, and yet in the circumstances simply wrong.

41 Having set out what I understand to be the applicable principles, I feel it necessary to express some concerns with the approach adopted by LeBel J. LeBel J. holds that the provision at issue mandates the importation of subjective mens rea, firstly because this Court is not “to enlarge the scope of criminal liability under s. 88(1) beyond what the words of the offence will reasonably and properly bear” (para. 78), and secondly because, in his view, much of the case law adopts a subjective approach to the mental element of the offence. With respect, I believe that LeBel J. is mistaken in both respects. First, the words of the provision, as discussed above, suggest most clearly the application of a hybrid subjective-objective test. In fact, I find it somewhat bewildering to hold that the wording of the phrase “possession for a purpose dangerous to the public peace” more closely attunes with the notion of an intention to cause harm to persons or property, as suggested by LeBel J., than with the notion of a purpose which, in all the circumstances, is dangerous to the public peace. Second, the jurisprudence, by my reading, hardly adopts a subjective approach; at best, some cases are ambiguous. LeBel J. has provided excerpts from a host of cases, all of which state in one form or another that the critical question at bar in an analysis under s. 88 is the intent of the accused, but none of which specify that such intent is alone dispositive. For example, in R. v. Vandooren, 1969 CanLII 952 (BC CA), [1969] 4 C.C.C. 217, the British Columbia Court of Appeal held that “the crucial question [is] whether the Crown had proven beyond a reasonable doubt that the appellant had the intention of using the rifle for a purpose dangerous to the public peace” (p. 220). I cannot understand how LeBel J. reads this extract otherwise than as simply begging the question.

42 More important than statutory construction, however, are the practical implications of adopting the subjective test defined by LeBel J. LeBel J. argues that s. 88(1) targets those who possess with the intention of doing harm to persons or property, or showing a reckless disregard for harm to persons or property. The difficulty is that the provision, understood in this way, simply would not capture the individual who carries a weapon regularly due to a generalized fear of attack, either because he lives in a dangerous neighbourhood or because he is simply overcautious or paranoid. By LeBel J.’s definition, this individual only commits the offence at issue on the day and at the time when his specific intent to cause harm crystallizes, likely because an attack on his person will have become imminent or even will have already begun. Before this particular point in time, the individual does not intend to cause harm to any particular person; he intends only to prepare himself for a potentiality. Even broadening the mens rea element to encapsulate recklessness, as suggested by LeBel J., will not, in my respectful view, sufficiently enlarge the scope of the offence so as to capture these individuals. It could be argued that concealing a knife in one’s pant pocket, for example, does not in itself constitute a reckless disregard for harm to persons, since only if the knife is taken from the pocket and placed in hand does there arise the risk that a person will be harmed.

43 Finally, in my view, LeBel J.’s application of the defence of necessity to the “self-defence” cases is conceptually problematic. As the second requirement for necessity, the act must be unavoidable. The difficulty is that the crucial element under s. 88, as pointed out by LeBel J., is the accused person’s purpose for possession, and not the act of possession itself. Thus, if we ask whether the person’s possession alone was unavoidable, we are asking whether the defence applies before even concluding that the offence was committed. Moreover, under the third branch of the necessity test, the harm inflicted must be less than the harm sought to be avoided. LeBel J. views the harm inflicted in the context of s. 88(1) to be the breach of s. 88(1). With respect, I do not understand how a dangerous purpose can ever constitute a harm inflicted, let alone one that is greater than some harm sought to be avoided.

44 Before applying the proper principles to the present case, I note that the Court of Appeal erred in holding that “the dangerous purpose requirement of s. 88 is found in s. 90 of the Criminal Code” (para. 30). Although concealment is the determinative factor under s. 90, it is but one relevant factor under s. 88. The Court of Appeal effectively substituted the requirement that the purpose be dangerous with the requirement that the purpose be unlawful.

45 Furthermore, I find no justification for the Court of Appeal’s affirmation that “[t]he act of concealment rendered it more likely that there would be a breach of the peace” (para. 30). In effect, I find this reasoning to be rather counterintuitive. The Court of Appeal also held that concealment “contributed to an already dangerous situation of which the Respondent was fully aware” and “evidences the Respondent’s choice of reprisal over deterrence” (para. 30 (emphasis added)). With respect, these are findings of fact which are not consistent with those of the trial judge and which appear to be unsupported by the evidence. To the contrary, the evidence reveals that Kerr possessed the weapons for a purely defensive purpose; concealment was an obvious choice in the penitentiary setting.

C. Application to the Present Case

46 The Edmonton Institution was a dangerous place; it provided a volatile environment in which most inmates possessed homemade weapons and violence amongst inmates was commonplace. The Indian Posse gang, of which the deceased was a member, essentially controlled the penitentiary through intimidation and assault. The day before the altercation in question, both the deceased and another member of the Indian Posse issued threats against Kerr — the former telling Kerr that guards would find Kerr with his head smashed in, and the latter telling Kerr that Kerr should not be around the next day.

47 The following morning, Kerr, anticipating an attack, retrieved two weapons which he had hidden under a sink — a metal knife and an ice pick. The deceased arrived in the servery in the company of five people, four of whom were known by Kerr to be members of the Indian Posse. Kerr knew that members of the Indian Posse did not necessarily fight alone. The door to the servery was then closed.

48 The ensuing altercation between Kerr and Garon was extremely brutish, each party stabbing wildly at the other. Ultimately, Garon was killed by a stab to the head.

49 It is particularly relevant for the present analysis that, as revealed by the indictment, Kerr is said to have committed the offence of possession of a weapon for a purpose dangerous to the public peace on the same date as occurred the altercation with the deceased. The trial judge found that Kerr possessed weapons regularly. But for the purposes of this case, we are concerned with possession in the context of the accusation of murder, on the specific occasion of the altercation with the deceased.

50 Binnie J. points out that the trial judge found that on the day in question, Kerr possessed his weapons “in part of his usual practice and part preparation for possible defence against aggression” (para. 58 (emphasis deleted)). According to Binnie J., this usual practice reveals a more general purpose on the part of Kerr to use his weapon in the violent resolution of disputes within the prison population, and this purpose justifies a conviction under s. 88.

51 With respect, I cannot agree, and this for two reasons. First, while the trial judge found that Kerr’s possession was part of his usual practice, he made no findings as to the purpose underlying this usual practice. It is speculation to suggest that Kerr’s purpose was to use the weapon to resolve with violence any dispute that may arise, as opposed to, for example, to use the weapon only to thwart an attack on his person. Second, if the purpose underlying Kerr’s usual practice was strictly to repel whatever attack he may encounter, then this general purpose conflated with the specific purpose on the day in question. Human motivation is not compartmentalized such that every purpose exists independently of all others, each discretely contributing to human action. A specific defensive purpose to thwart a specific attack surely cannot be segregated in the human mind from a general defensive purpose to thwart any attack. That said, if Kerr were charged with having committed the offence on any other day, the result may very well have been different, either because his purpose on that day would not necessarily be strictly to repel an assault on his person, or because even if his purpose was such, the assault which is anticipated would not necessarily be unavoidable.

52 In my view, on this specific occasion, Kerr did not possess his weapons for a purpose dangerous to the public peace. I agree with the trial judge’s finding that Kerr possessed his weapons on the day in question for the purpose of defending himself against an imminent attack by specific individuals. I find that his purpose was not, in all the circumstances, dangerous to the public peace, since the attack was clearly unavoidable. Kerr was subject to credible threats of an imminent assault, in an environment from which there was simply no possibility to escape and in which, as found by the trial judge, it was futile to seek protection. It is also particularly relevant that the trial judge specifically found that Kerr’s actual use of the weapon constituted justifiable self-defence.

53 One might ask what the difference is between possession of a concealed weapon on a daily basis to defend oneself, if need be, specially in a dangerous place, and possession to deal with an imminent threat. I think that in the first scenario the purpose is inconsistent with the duty to avoid violent confrontation by escaping, asking for police protection or even negotiating. It reflects a willingness to engage in physical conflict, if confronted, with a weapon. This purpose is contrary to public peace. On the other hand, 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 a purpose that is not a threat to public peace as such.

54 The conclusion that Kerr is not guilty on the charge at issue is certainly not to suggest that his possession was completely legal. Kerr would likely have been convicted if charged under s. 90 of the offence of possession of a concealed weapon. Moreover, the Corrections and Conditional Release Act, S.C. 1992, c. 20, contains provisions prohibiting the possession of contraband. This case is concerned squarely with the legality of Kerr’s possession with respect to a particular offence.

55 Before concluding, I wish to reemphasize that, as discussed above, a “purpose” under s. 88 is any result which the person knows will probably flow from his actions. Thus, a defensive purpose will not mandate an acquittal, even where the assault anticipated is unavoidable, if that purpose is coupled with a second purpose which the person knows will probably result from his possession and which in fact is a danger to the public peace. For example, a person’s possession may, to the person’s knowledge, likely result in mass panic or in a public brawl. This issue, however, does not arise on the present facts and should be left for another day.

56 In closing, it is crucial to note again that a subjective defensive purpose is not alone sufficient to establish a valid defence to a s. 88 accusation. Further, a general atmosphere of violence or a simple fear of an attack do not alone justify the possession of weapons, whether in a penitentiary or elsewhere. It is worth, in this regard, repeating here the conclusion of this Court in R. v. Felawka, 1993 CanLII 36 (SCC), [1993] 4 S.C.R. 199, at pp. 214-15, regarding concealed weapons:

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.

In this case, the result is mandated only by the fact that the accusation is made in respect of a particular incident, following credible threats of an imminent danger, and where the danger simply could not be avoided.

VII. Conclusion

57 For the foregoing reasons, I would allow the appeal and restore the acquittal on the charge of possession of a weapon for a purpose dangerous to the public peace.

The following are the reasons delivered by

58 Binnie J. (dissenting) — I have read the majority reasons of my colleagues Bastarache, LeBel and Fish JJ. My point of disagreement with them, and therefore with their proposed disposition of the appeal, rests on the stubborn fact the trial judge found that the appellant had not a single purpose but a double purpose for carrying his knife on the day in question, January 16, 2000. I repeat for convenience what the trial judge actually said:

. . . there is no doubt that Mr. Kerr possessed weapons. He possessed them regularly, and on the occasion of January 16th, his possession appears to have been in part part of his usual practice and part preparation for possible defence against aggression. [Emphasis added.]

The appellant’s apprehension of a fight with Joseph Garon on January 16 provided one purpose, but this has to be seen in the context of the appellant’s more general “purpose” of carrying his weapon on this as on every other morning of his prison life, subjectively contemplating the use of the “shank” in the violent resolution of disputes within the prison population. The charge relates only to January 16, 2000. But in determining his purpose on that day it is relevant to take into consideration his general modus operandi as part of the factual context: R. v. Nelson (1972), 1972 CanLII 400 (ON CA), 8 C.C.C. (2d) 29 (Ont. C.A.), at p. 32; R. v. Knudsen (1970), 1970 CanLII 1017 (BC CA), 1 C.C.C. (2d) 576 (B.C.C.A.), at p. 583. In my view, this broader context demonstrates “a” prohibited purpose within s. 88 of the Criminal Code. This appeal therefore raises a more general question about the lawfulness of prisoners carrying weapons inside a maximum security institution.

59 The evidence shows that in January 2000 the guards at the Edmonton Institution had, to a significant extent, lost control over the inmates, who had gathered themselves into warring gangs. The dominant gang was called the Indian Posse, which had about 30 known members in the Edmonton Institution at the time, not all of them being of aboriginal descent. Other gangs included a small white supremacist group, the White Aryan Resistance, various offshoots of the Indian Posse (e.g., the Native Syndicate, Manitoba Warriors, Saskatchewan Warriors, Alberta Warriors) and a small group called Death Do Us Part whose members had graduated into serious criminal activity from youth detention centres. There was a hierarchy amongst the gangs and differences were settled violently either by prearranged fist fights or fights with weapons. Following the killing at issue in this case, a guard was employed as a search coordinator and in the course of a year found over 200 handmade knives (or “shanks”) amongst the inmate population. Prison fights were often precipitated by one inmate showing disrespect to another, which in prison jargon was called “punking-off”. Under the code of “honour” observed by the prisoners, failure to retaliate for a “punking-off” would result in a loss of face.

60 Living in such a violent environment, the appellant took care to arm himself. He always carried a “shank” during the day, and occasionally kept it with him in his cell at night. More often, he concealed his weapon at night under the sink in the kitchen where he worked as a cleaner. He testified as follows:

Q All right. And tell me, how long had you had those knives under the sink?

A I put them there every night.

Q Every night?

A Yeah.

Q So just as you – every morning you get up, go down, set up the dining room. As part of that regime, when you’re finished doing that, you go and arm yourself, correct?

A Yes.

Q All right. And you carry either one knife or two knives depending upon the outlook for the day?

A I usually – well, I have two for about ten minutes every day until I give my friend his.

Q Your friend meaning [Mihaly] Illes, right?

A Yes.

Q And Mr. Illes, that was his shall we call it the ice pick?

A If you want.

Q All right. And the other object, the other knife you say was made out of some, a kitchen spoon by yourself?

A Yes.

Q And you would also carry that around with you every single day of your time there?

A Yes.

Q All right. And so in the morning you arm yourself and in the evening you put it away?

A Yes.

Q Do you carry it with you to your cell sometimes?

A Yes.

Q All right. So it would be fair to say that you, sir, are ready for any possibility?

A Pretty much.

61 Subsequently, the appellant confirmed that when he armed himself on the morning of January 16, 2000 it was in many ways no different from any other morning at the Edmonton Institution:

Q Okay. So, and if I suggested to you that you put -- these two knives you put in, this is what you do every single morning?

A Yes.

Q All right. And one you’re going to hand off to Mr. -- to Mihaly later on, the other is for yourself?

A Yes.

Q Just in case you need it, right?

A Yes.

Q So in many ways this morning, Sunday the 16th, was no different from any other morning for you in your job as cleaner at the Edmonton Institution, right?

A Not really.

62 We are therefore not dealing with a weapon carried for the purpose of an isolated instance of self-defence. On the morning in question the appellant armed not only himself (as usual) but his fellow prisoner, Mihaly Illes, even though the latter, so far as the record shows, was not at that time threatened with any attack by the Indian Posse. In these circumstances, I believe we are required to address in this appeal whether the existence of an armed population within a prison, where possession of any weapon is prohibited by prison rules, is compatible with the Criminal Code prohibition against carrying a weapon for a purpose dangerous to the public peace.

What Is “The Public Peace”?

63 The foundational notion of the “public peace” reaches back to the roots of Anglo-Canadian history prior to the Norman Conquest.

A self-respecting Anglo-Saxon king would always try to bring order and tranquillity to his people, and in Ethelbert’s laws there was already one principle by which kings could extend their influence. That was the principle of the peace.

The mitigation of the disastrous effects of ‘self-help’ was attained by the extension of the idea of the king’s peace and the responsibility of all, not just of the parties to a quarrel, to see that it was observed. [Italics in original; underlining added.]

(A. Harding, A Social History of English Law (1966), at pp. 15-21)

The general purpose of “the peace” was to reduce the resort to violence. “The Crown developed the scope of breach of the king’s peace in order to preserve public order” (J. H. Baker, An Introduction to English Legal History (2nd ed. 1979), vol. 1, at p. 13).

64 The concept of the “public peace” thus aims at a state of order, the very opposite of a state of violent confrontation, and is not much concerned with who is the aggressor and who claims to be defending themselves. As Professor G. Williams wrote in “Arrest for Breach of the Peace”, [1954] Crim. L. Rev. 578, at p. 578:

. . . “breach of the peace” as a technical expression has a narrower meaning than the breach of the Queen’s peace which is supposed to underlie every crime . . . . The most flagrant instance of a breach of the peace is a riot . . . . So also a fight between two or more persons is a breach of the peace; and both parties may be arrested, for the arrester does not have to decide the merits of the affair. [Emphasis added.]

Authority for this proposition includes the observations of Baron Parke made in the course of a 1835 case:

If no one could be restrained of his liberty, in cases of mutual conflict, except the party who did the first wrong, and the bystanders acted at their peril in this respect, there would be very little chance of the public peace being preserved by the interference of private individuals, nor indeed of police officers, whose power of interposition on their own view appears not to differ [at common law] from that of any of the King’s other subjects. [Emphasis added.]

(Timothy v. Simpson (1835), 1 C.M. & R. 757, 149 E.R. 1285, at p. 1288; see now Criminal Code, R.S.C. 1985, c. C-46, ss. 30-31; R. v. Biron, 1975 CanLII 13 (SCC), [1976] 2 S.C.R. 56; and R. v. Lefebvre (1984), 1984 CanLII 473 (BC CA), 15 C.C.C. (3d) 503 (B.C.C.A.).)

65 In R. v. Howell (1981), 73 Crim. App. Rep. 31 (Eng. C.A.), the court noted with approval that violence is “of the essence of a breach of the peace” (p. 37), and affirmed that the “reasonable apprehension of imminent danger of a breach of the peace” justifies arrest not only by a police constable but by “the ordinary citizen” (p. 36). See also Black’s Law Dictionary (6th ed. 1990), at p. 189:

Breach of the peace is a generic term, and includes all violations of public peace or order and acts tending to a disturbance thereof.

66 In R. v. Magee (1923), 1923 CanLII 126 (SK CA), 40 C.C.C. 10 (Sask. C.A.), it was noted by Haultain C.J.S., at pp. 11-12:

“Public peace” may be taken as equivalent to “the King’s Peace,” in its broader and later signification. The King’s Peace is “the legal name of the normal state of society” (Stephen’s History of the Criminal Law, vol. 1, p. 185). “The Peace” is defined in Murray’s New English Dictionary, vol. 7, p. 582, as being “the king’s peace in its wider sense, the general peace and order of the realm, as provided for by law.” [Emphasis added.]

See also Frey v. Fedoruk, 1950 CanLII 24 (SCC), [1950] S.C.R. 517, at p. 529.

67 The existence of warring armed camps within a prison is antithetical to the whole concept of “public peace”. The inmates’ purpose in carrying their handmade weapons was to enable them to inflict harm or death on other inmates, whether by way of defence or otherwise. One can assume that each of the two hundred inmates who yielded up “shanks” during searches of the Edmonton Institution would all have pleaded that they carried weapons need for self-defence. Had self-defence indeed been everybody’s paramount preoccupation one would have expected there would have been a state of peace guaranteed by mutual deterrence. But violence was endemic in the Edmonton Institution.

68 Acceptance of “defensive” weapons in prisons would have implications outside as well as inside prisons. The prospect of the general population arming itself purely for “defensive” purposes to protect life and property would carry us back, in terms of self-help, to the type of violent society which the concept of the “public peace” was designed to eradicate. The argument that violent self-help in breach of the peace can be justified as a “necessity” has been rejected since medieval times as inimical to public order and should not be given new credence in 21st century Alberta.

The Events of January 16, 2000

69 The previous evening, the appellant had refused a request for coffee from a couple of members of the Indian Posse, including the eventual victim, Joseph Garon. This refusal was apparently interpreted as “punking-off”, and retaliation against the appellant was both threatened and expected. The reality was that carrying his dangerous weapon on January 16th was a prudent course of action on the part of the appellant, but prudence did not make it lawful.

70 The evidence previously set out makes it clear that the appellant would have been carrying his knife on January 16th irrespective of the threats from the Indian Posse.

71 My colleagues seek to draw a circle around the fight on January 16, 2000 and to isolate it from the appellant’s general practice of arming himself on that day and every day. I agree that with respect to any particular armed confrontation a court could properly conclude, as here, that the person bearing a weapon acted in self-defence, but such a conclusion does not detract from the fact that on January 16, 2000, as on every other day, the appellant was possessed of a dangerous weapon within a prison culture of violence for the purpose of self-help through the infliction of injury or death. Thus, in Nelson, supra, at p. 32, Gale C.J.O. observed that:

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. [Emphasis added.]

It seems to me Gale C.J.O. had in mind precisely the sort of double purpose present again in this case. In Nelson, supra, the accused was convicted.

72 It is quite true that on this particular morning the appellant had a specific threat to contend with, as a result of his “punking-off” two members of the Indian Posse, and he was no doubt on a higher level of alert than normal. However, the trial judge made a specific finding of a double purpose, each given the same emphasis, and I do not think it is the legislative intention behind the Criminal Code to exculpate a prison culture of violence from the general prohibition of s. 88(1) of the Criminal Code because of an increase in the state of anxiety of an accused inmate from one day to the next.

73 Certainly, it is open to a prisoner facing charges arising out of a particular knife fight to plead self-defence, but in my view the underlying offence of possession of a weapon for a purpose dangerous to the public peace is not thereby defeated. I make no comment about the entirely different facts at issue in cases such as R. v. Sulland (1982), 1982 CanLII 495 (BC CA), 2 C.C.C. (3d) 68 (B.C.C.A.), and R. v. G. (D.) (1999), 1999 CanLII 3221 (ON CA), 139 C.C.C. (3d) 191 (Ont. C.A.).

74 Were the appellant to be convicted of the charge under s. 88 the specific circumstances of January 16, 2000 would of course have to be taken into account in the matter of sentencing. The appellant found himself in an appallingly difficult position. It was open to him to seek protective custody but he had decided that he could not really expect much assistance from the prison authorities. He testified that the guards were not in a position to protect him and this explanation was accepted by the trial court, which ruled that his plea of self-defence to murder was justified. A conviction of carrying a weapon under s. 88 would have been considered in that light for purposes of imposing a fit sentence.

75 For these reasons, I would dismiss the appeal.

The reasons of Arbour and LeBel JJ. were delivered by

LeBel J. —

I. Overview

76 I have read the reasons of my colleague Bastarache J. While I agree with his disposition of the appeal, I remain in disagreement with some aspects of his analysis of the applicable principles.

77 In my opinion, the jurisprudence supports the view that the accused’s purpose in s. 88(1) of the Criminal Code, R.S.C. 1985, c. C-46, must be determined wholly subjectively. Rather than mire the analysis in a needlessly complex subjective‑objective approach, I would suggest simply defining “a purpose dangerous to the public peace” as the intent to do harm to persons or property, or being reckless in that regard. Of course, harm need not actually ensue from the possession of the weapon. Finally, the applicable defence under s. 88(1) is necessity and not self‑defence. I will discuss each of these issues in turn.

II. Subjective Purpose

78 Constitutional considerations aside, it is a common law presumption that, absent a clear expression of Parliamentary intent, a person is not liable for a criminal offence in the absence of subjective mens rea: see, e.g., R. v. Pierce Fisheries Ltd., 1970 CanLII 178 (SCC), [1971] S.C.R. 5, at p. 13; R. v. City of Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, at p. 1303. It is not for this Court to enlarge the scope of criminal liability under s. 88(1) beyond what the words of the offence will reasonably and properly bear. It is well established that when attempts at a neutral interpretation of a penal provision leave a reasonable doubt as to its meaning, any ambiguity should be resolved in favour of the accused: R. v. Hasselwander, 1993 CanLII 90 (SCC), [1993] 2 S.C.R. 398, at pp. 411-13. In my view, s. 88(1) is a traditional Criminal Code offence in which the mens rea is not otherwise stated, and is formulated in such a way as to require the usual subjective mens rea.

79 Further, my reading of s. 88(1) as requiring a subjective mens rea is supported by the jurisprudence on s. 88(1) and its predecessors. While certain cases may appear ambiguous to some on this point, I believe the balance of the case law adopts a subjective approach to the mental element of the offence. A brief review may be helpful.

80 This Court has not extensively considered the requisite mental element in s. 88(1). In R. v. Cassidy, 1989 CanLII 25 (SCC), [1989] 2 S.C.R. 345, at p. 351, it would appear that this Court held that s. 88(1) requires that the accused subjectively intended a dangerous use:

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 point in time, the offence was complete.

By contrast, the requisite mens rea required under s. 88(1) caused some confusion in R. v. Nelson (1972), 1972 CanLII 400 (ON CA), 8 C.C.C. (2d) 29 (Ont. C.A.).

81 Respectfully, I do not believe that Nelson, supra, should be read as mandating a subjective-objective approach. The discussion by Gale C.J.O. is best understood as making the distinction between subjective intent and the evidentiary issues in determining that intent. Gale C.J.O. held for the majority that the accused’s testimony as to his or her intent is but one factor to be considered in determining the purpose of possession (at p. 31):

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 [what] 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. [Emphasis in original.]

Gale C.J.O.’s reasons have occasionally been interpreted as suggesting that the offence requires only an objective purpose. This possibility was averred to by Jessup J.A. in dissent in that case (at p. 36), where he observed that:

If Parliament had wished to make it an offence to possess a dangerous weapon simpliciter it could have readily said so in plain language. . . . Having a weapon for the sole purpose of abating a breach of the peace threatened to result from an attack on the possessor is not, in my opinion, a purpose dangerous to the public peace. Self-defence, justifiable under the Code, is not confined to tooth and nail.

In my view, the correct interpretation of Gale C.J.O.’s rule is that the trier of fact should take into account not only the accused’s stated purpose, but also all the surrounding circumstances as evidence of the accused’s subjective intent. I will return to this distinction below.

82 A review of other cases demonstrate that the requirement of a subjective intent is the prevailing view. The British Columbia Court of Appeal in R. v. Vandooren, 1969 CanLII 952 (BC CA), [1969] 4 C.C.C. 217, at p. 220, although not dealing explicitly with this question, suggests that s. 88(1) (then s. 82(1)) requires subjective intent. Relying on R. v. Flack, 1968 CanLII 812 (BC CA), [1969] 1 C.C.C. 55, Tysoe J.A. for the court held that “the crucial question [is] whether the Crown had proven beyond a reasonable doubt that the appellant had the intention of using the rifle for a purpose dangerous to the public peace” (emphasis added). This follows from McFarlane J.A.’s decision in Flack, at p. 59, that “[i]t will be apparent that the intention of the appellant is the essential matter to be proved by the Crown in order to bring about a conviction for the offence charged”, and at p. 61, “[t]he test is not the alarm or fear in the minds of the men in the camper, but the purpose and intention of the accused.”

83 Contrary to Nelson, supra, the Ontario Court of Appeal subsequently held that a subjective intention is necessary under s. 88(1) (then s. 83(1)) in R. v. Chomenko (1974), 1974 CanLII 1465 (ON CA), 18 C.C.C. (2d) 353, at p. 355. Martin J.A. held for the majority that:

[I]t was essential in this case for the learned trial Judge to direct his mind to the question as to whether the appellant intended to possess the imitation pistol for a purpose dangerous to the public peace and that issue cannot be determined in this case against the appellant simply by the fact that he did an act which was in fact dangerous to the public peace in the manner in which he used this imitation weapon. [Emphasis added.]

Martin J.A. goes on to speak in terms of the “premeditated use” of the weapon. The words chosen by Martin J.A. indicate that it is the subjective dangerous intention of the accused that is the proper test, and not the objective dangerous purpose. This view is confirmed more recently by the Ontario Court of Appeal in R. v. G. (D.) (1999), 1999 CanLII 3221 (ON CA), 139 C.C.C. (3d) 191. A unanimous court held that a conviction could not stand because the weapon had been carried as a deterrent against a possible attack and not as an offensive weapon (at p. 192):

[T]he appellant did not testify that he was carrying the pool ball to intimidate nor did he state that he had never lost a fight. To the contrary, the appellant testified that he had won a particular fight with the two specific youths and he was concerned that the two would return for revenge, perhaps with reinforcements. According to the evidence then of the appellant, the pool ball was being carried for defensive purposes. It was intended as a deterrent against possible reprisal, not as an offensive weapon as the trial judge held.

Based on the foregoing review of the cases, I conclude that the correct interpretation of s. 88(1) is that Parliament mandated that the accused’s subjective purpose must be one that is dangerous to the public peace.

84 The elements of the offence must be distinguished from the evidentiary problems that arise in any offence where the trier of fact is called on to determine the subjective intent of the accused. No earthly judge can enter the mind of the accused. Rather, one must look at externalities or objective indicia of an accused’s state of mind. The classic statement explaining this distinction is found in Vallance v. The Queen (1961), 108 C.L.R. 56 (Aust. H.C.), Windeyer J. at p. 83, and adopted by the Ontario Court of Appeal in R. v. Mulligan (1974), 1974 CanLII 1662 (ON CA), 18 C.C.C. (2d) 270, at p. 275:

A man’s own intention is for him a subjective state, just as are his sensations of pleasure or of pain. But the state of another man’s mind, or of his digestion, is an objective fact. When it has to be proved, it is to be proved in the same way as other objective facts are proved. A jury must consider the whole of the evidence relevant to it as a fact in issue. If an accused gives evidence of what his intentions were, the jury must weigh his testimony along with whatever inference as to his intentions can be drawn from his conduct or from other relevant facts. References to a “subjective test” could lead to an idea that the evidence of an accused man as to his intent is more credible than his evidence of other matters. It is not: he may or may not be believed by the jury. Whatever he says, they may be able to conclude from the whole of the evidence that beyond doubt he had a guilty mind and a guilty purpose. But always the questions are what did he in fact know, foresee, expect, intend. [Emphasis in original.]

I believe that this is what Gale C.J.O. meant in Nelson, supra, at p. 31, when he stated that 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 [what] was the ‘purpose of the possession’” (emphasis in original). In other words, the trier of fact must weigh the credibility of the accused’s testimony against all other evidence of his subjective intent. I believe that this is also what McGillivray J.A. meant in Nelson, supra, at p. 35, when he stated: “[s]ubjective evidence is to be considered and weighed just as is evidence regarding the weapon but, in each case, only in relation to all other relevant evidence.”

85 Before leaving this point, I should not be understood as suggesting that this Court has not occasionally imported a modified subjective test, or subjective-objective approach, into the mens rea of true crimes. But I am of the view that s. 88(1) mandates a purely subjective approach, and that an objective element should not be imported in the absence of a clear expression of Parliament’s intention to that effect. Bastarache J. places great weight on the absence of the word “causing”, which in his view makes all the difference in interpreting this section. Though I have tried, I fail to see any substantive distinction that would displace the presumption of subjective intent. It suggests a unity and coherence in the drafting of the Code which does not exist in this case.

III. A Definition of “Dangerous to the Public Peace”

86 Not only does s. 88(1) mandate a purely subjective approach, subjective‑objective tests are notoriously difficult to implement in practice. Moreover, I am concerned that a subjective-objective approach may result in slippage to a purely objective test. This may be avoided by adopting a definition of “dangerous to the public peace”. In my view, a danger to the public peace is one that is potentially harmful to persons or property. A “purpose dangerous to the public peace” needs to be given concrete content. Within the meaning of s. 88(1), it is the possession of a weapon with the intention of doing harm to persons or property, or showing a reckless disregard for harm to persons or property.

87 To be clear, s. 88(1) requires that the possession of a weapon coincide at some point with the intention of using that weapon to harm persons or property, or being reckless thereto. There must be at some point a meeting between these two elements: Cassidy, supra, at p. 351. It is not a possession simpliciter offence. It requires possession coupled with an additional intention, but it does not require the actual use of the weapon.

88 Recklessness in this context needs to be distinguished from negligence. Recklessness was explained by McIntyre J., for the Court, in Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at p. 582:

In accordance with well‑established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance. It is in this sense that the term ‘recklessness’ is used in the criminal law and it is clearly distinct from the concept of civil negligence.

Criminal liability under s. 88(1) thus applies not only to an accused who intends to do harm to persons or property, but also an accused who is aware of a risk of harm to persons or property and persists with his or her intention despite that risk. It does not establish an objective standard of dangerousness however.

89 In order to find a wider definition of “public peace”, one has to look back to early last century. It has been defined in the following manner in R. v. Magee (1923), 1923 CanLII 126 (SK CA), 40 C.C.C. 10 (Sask. C.A.), per Haultain C.J.S., at pp. 11-12:

“Public peace” may be taken as equivalent to “the King’s Peace,” in its broader and later signification. The King’s Peace is “the legal name of the normal state of society” (Stephen’s History of the Criminal Law, vol. 1, p. 185). “The Peace” is defined in Murray’s New English Dictionary, vol. 7, p. 582, as being “the king’s peace in its wider sense, the general peace and order of the realm, as provided for by law.” [Emphasis added.]

The normal state of society is the absence of harm to persons or property.

90 The concept of “public peace” seems very much an old concept from the time that common law offences still existed. Understood in the context of the modern Criminal Code, it is difficult to imagine that the public peace could be endangered by something short of harm to persons or property. This Court considered the definition of “peace” or “King’s Peace” in the classic case of Frey v. Fedoruk, 1950 CanLII 24 (SCC), [1950] S.C.R. 517. In determining whether an officer had falsely imprisoned Frey for a breach of the peace, the majority rejected a definition of “breach of the King’s peace” that was given indefinite and overbroad content (at pp. 529-30):

It appears to me that so understood, the genus is wide enough to include the whole field of the criminal law. As it is put in Pollock and Maitland, History of English Law (1895) Volume 1, page 22:

all criminal offences have long been said to be committed against the King’s peace.

and in Volume 2 of the same work at page 452, it is stated:

to us a breach of the King’s peace may seem to cover every possible crime.

Once the expression “a breach of the King’s Peace” is interpreted, as O’Halloran, J.A. undoubtedly does interpret it, not to require as an essential ingredient anything in the nature of “riots, tumults, or actual physical violence” on the part of the offender, it would appear to become wide enough to include any conduct which in the view of the fact finding tribunal is so injurious to the public as to merit punishment. If, on the other hand, O’Halloran, J.A. intended to give to the expression a more limited meaning so that it would include only conduct of a nature likely to lead to a breach of the peace in the narrower sense of which he speaks, the authorities referred to elsewhere in this Judgment seem to me to show that this is not an offence known to the law.

I am of opinion that the proposition implicit in the paragraph quoted above ought not to be accepted.

91 The definition I propose of a danger to the public peace is supported in the English authorities. In R. v. Howell, [1982] Q.B. 416 (C.A.), at pp. 426-27, Watkins L.J. held for the court that there is no breach of the peace unless an act is done or threatened to be done which (a) actually harms a person or, in his presence, his property; (b) is likely to cause such harm; or (c) puts someone in fear of such harm:

A comprehensive definition of the term “breach of the peace” has very rarely been formulated so far as, with considerable help from counsel, we have been able to discover from cases which go as far back as the 18th century. The older cases are of considerable interest but they are not a sure guide to what the term is understood to mean today, since keeping the peace in this country in the latter half of the 20th century presents formidable problems which bear upon the evolving process of the development of this breach of the common law.

We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. . . .

I see no principled reason why a similar definition, with the incorporation of recklessness, should not apply to “dangerous to the public peace” under s. 88(1) of the Code.

92 On January 16, 2000, Kerr took possession of the shanks with the intention of using them against Garon or other members of the Indian Posse in the event of an attack. Although the trial judge found that it was part of his routine to carry the shanks, on this day he possessed them for the purpose of meeting force with force. Clackson J. found that “[t]he Crown’s case is that the accused went to B Unit servery on January 16th, 2000 anticipating an attack by Mr. Garon and armed himself to meet that challenge.” On the principles I have articulated above, Kerr possessed the weapon for a purpose dangerous to the public peace, he intended to use them to harm another person or persons. The elements of s. 88(1) have been made out. Before criminal liability may be imposed, one must assess whether Kerr had a defence at law.

IV. Necessity Is the Appropriate Defence

93 Defence counsel argued at trial and on appeal that Kerr possessed the shanks for the purpose of self-defence and, therefore, did not satisfy the elements of s. 88(1). The lower courts have traditionally found that possessing a weapon for the purpose of self-defence negates the mens rea of s. 88(1). In my view, however, the possession of a weapon for the purpose of defending oneself does not make that possession lawful. Self-defence does not vitiate the mens rea of an offence, rather it is a justification for conduct that would otherwise attract criminal liability: R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, at para. 47. I would go further than this and add that properly conceived it is necessity and not self-defence that would be available to an accused as a defence under s. 88(1).

94 In my opinion, under s. 88(1) an accused who otherwise satisfies the requirements of the offence should be excused from criminal liability where the possession of a weapon is necessary for defending himself. The usual limits on the common law defence of necessity apply. First, the defence of necessity is limited to situations of clear and imminent peril. Thus, necessity would not excuse the possession of a weapon simply because the accused lived in a high-crime neighbourhood or finds himself among a dangerous prison population. Second, the act must be unavoidable in that the circumstances afford the accused no reasonable opportunity for a legal way out, such as escaping or seeking police protection. Finally, the harm inflicted must be less than the harm sought to be avoided: Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232, at pp. 251-52.

95 When one raises a defence in answer to a particular offence, the defence must be applied in light of the elements of that offence. Under s. 88(1), actual use of the weapon is not an element of the crime. Therefore, in considering the third branch of the defence of necessity, the harm inflicted is the breach of s. 88(1), not the actual use of the weapon. In Perka, supra, the harm inflicted was the defendants coming ashore with their cargo of cannabis, in other words, their breach of the prohibitions on importation of cannabis into Canada and possession of cannabis for the purpose of trafficking. This breach had to be weighed against facing death at sea.

96 The defence of necessity is made out on the facts of this case. On January 16, 2000, Kerr possessed the weapons to defend himself against an imminent attack by Garon or by other members of the Indian Posse. He had a reasonable belief that the circumstances afforded him no legal way out. And the harm he sought to avoid — in the words of the trial judge, “a lethal attack” — outweighed the breach of s. 88(1). On this basis, I would allow the appeal and acquit Kerr.

The reasons of Deschamps and Fish JJ. were delivered by

Fish J. —

I. Overview

97 Like Bastarache and LeBel JJ., I would allow the appeal, but on narrower grounds that focus on the Crown’s case against the appellant as framed by its indictment and developed at trial.

98 In my respectful view, the Court of Appeal disregarded those constraints.

99 The appellant was charged under s. 88 of the Criminal Code, R.S.C. 1985, c. C-46; the Court of Appeal convicted him, in effect, for conduct prohibited by s. 90, a separate and different offence.

100 Moreover, the conviction entered by the Court of Appeal largely rests, as we shall see, on a critical — and impermissible — conclusion of fact diametrically opposed to the trial judge’s finding on that very issue.

101 It is essentially for these reasons that I would allow the appeal, set aside the decision of the Court of Appeal ((2003), 13 Alta. L.R. (4th) 35, 2003 ABCA 92), and restore the acquittal entered at trial.

II. Indictment and Proceedings at Trial

102 The appellant was charged with second degree murder and, incidentally, with possession of a weapon for a purpose dangerous to the public peace. I say “incidentally”, because it is apparent from the record that the appellant, but for his assailant’s death, would never have been charged with the weapons offence for which he was convicted in the Court of Appeal.

103 In the words of the trial judge:

The accused is charged with second degree murder and possession of a weapon for [a] purpose dangerous to the public peace as a result of Mr. Garon’s death. There is no doubt that Mr. Garon’s death was caused by the accused. There is no doubt that the death was the result of a stab wound to the head delivered by the accused. There is no doubt that the other wounds suffered by Mr. Garon prior to his death, although serious and not necessarily life threatening, were delivered by the accused.

The Crown’s case is that the accused went to B Unit servery on January 16th, 2000, anticipating an attack by Mr. Garon and armed himself to meet that challenge. [Emphasis added.]

104 The trial judge noted in this regard that the Crown’s key witness was another inmate; that the accused had testified in his own defence; and that “credibility is a key issue in this proceeding”. And he resolved this issue in the appellant’s favour:

This is a case where I accept the accused’s evidence that he was defending himself against what he perceived to be a lethal attack. His evidence is compelling and consistent with the physical evidence at the scene and the observations of the other witnesses.

Mr. Kerr believed his life was under attack, and that appears to be a perfectly justified conclusion at the time of these events. The fact that Mr. Kerr’s injuries turned out to be relatively minor is lucky for him, but not relevant to his right to defend against what appeared [to be] an armed attack on his life. In those circumstances, the actions of the accused were taken in self-defence and justified. [Emphasis added.]

105 I pause here to emphasize the significance of this finding of justification with respect to both counts, for reasons to be later explained.

106 Pursuant to s. 34(2) of the Code:

34. . . .

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

107 Here, the trial judge found that both conditions were established by the evidence. He concluded that the appellant was therefore justified in causing the death of his assailant. The appellant was on this ground quite properly acquitted of murder and his acquittal on that count is no longer in issue.

108 The trial judge then turned his attention to the second count, for possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(1).

109 The trial judge recognized that the possession of a weapon for purposes of self-defence does not necessarily make the possession lawful. In this case, he said, the appellant had possession of his weapon, as I mentioned earlier, “to deter first strike and defend against it should it become necessary”. Taking into account all of the circumstances and applying R. v. Nelson (1972), 1972 CanLII 400 (ON CA), 8 C.C.C. (2d) 29 (Ont. C.A.), the judge concluded that the appellant was not guilty of the offence charged.

III. Proceedings on Appeal

110 The Crown appealed both acquittals on three grounds. The first underlines the accessory nature of the weapons charge:

That the learned trial judge erred in law when he ruled that the respondent’s belief that he had no alternative course of action open to him at the time but to arm himself with lethal concealed weapons in preparation to kill or be killed in the event of a perceived or actual assault was objectively reasonable in the circumstances, and therefore erred in law in considering the defence of self defence. [Emphasis added.]

111 The Court of Appeal rejected this ground and confirmed the appellant’s acquittal of murder.

112 The Crown’s second and third grounds both focussed on the appellant’s possession of a concealed weapon. In allowing the appeal on these grounds, the Court of Appeal stated (at para. 30):

It is trite that prisoners at the Edmonton Institution are precluded from possessing weapons of any kind for any purpose. A weapon openly brandished would be immediately confiscated and the offender charged with a disciplinary offence under the Prisons and Reformatories Act, R.S.C. 1985, c. P-20. In my opinion, the dangerous purpose requirement of s. 88 is found in s. 90 of the Criminal Code. That is because there is an arguable distinction between possession of a weapon for defensive purposes, say in one’s own home where concealment is unnecessary, and possession of a weapon in a penitentiary setting. The very fact of concealment is sufficient to establish the ingredients of the crime set out in s. 90. Even if the intended purpose is self-defence, concealment of a weapon is itself a crime and the unlawful purpose is thereby made out. Had it been the Respondent’s intention to deter the apprehended attack, it was open to him to display his weapons to the deceased in a timely manner. The act of concealment rendered it more likely that there would be a breach of the peace. While concealment facilitated the Respondent’s counter-attack, it also contributed to an already dangerous situation of which the Respondent was fully aware. The decision to conceal his weapons evidences the Respondent’s choice of reprisal over deterrence. His unlawful purpose, one that is dangerous to the public peace, is thereby made out. [Emphasis added.]

IV. Discussion

113 The appellant was charged under s. 88. He was not charged under s. 90, a separate and different offence.

114 Section 88 prohibits the possession of a weapon for a purpose dangerous to the public peace. Section 90, on the other hand, makes it an offence to carry a concealed weapon, whatever the purpose, unless authorized under the governing statute.

115 In concluding that the appellant was not guilty under s. 88, the trial judge relied on Nelson, supra. He committed no error in that regard.

116 Delivering the reasons of the majority in Nelson, Gale C.J.O. stated (at p. 31):

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 [what] 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. [Emphasis in original.]

117 I agree with this statement of the law.

118 On a prosecution under s. 88, the relevant purpose is that of the accused. Any statement by the accused as to the purpose of the possession is therefore admissible and entitled to appropriate weight. It is not, however, conclusive. The court must consider all of the evidence, including the declared purpose, in determining the real purpose for which the accused had possession of the weapon at the relevant time. And the court, bearing in mind all of the circumstances, must then determine whether that purpose was “dangerous to the public peace” within the meaning of s. 88.

119 That is precisely what the trial judge did here. He took into account all of the relevant factors and, in my view, was entitled to decide as he did.

120 The Court of Appeal reached a different result.

121 As its reasons make plain, the Court of Appeal in effect found the appellant guilty under s. 88, the offence with which he was charged, because he had in the Court’s view committed an offence under s. 90, with which he was never charged.

122 Morever, in dealing with the critical issue of the appellant’s purpose in possessing the weapon, the Court of Appeal impermissibly substituted its own view of the evidence for the opposite finding of the trial judge. The trial judge, taking into account all of the evidence, concluded that the appellant had the weapon in his possession “to deter first strike and defend against it should it become necessary”. In convicting the appellant, the Court of Appeal held, on the contrary, that “[t]he [appellant’s] decision to conceal his weapons evidences [his] choice of reprisal over deterrence” (para. 30). His unlawful purpose, said the Court, was “thereby made out” (para. 30 (emphasis added)).

123 These errors, in my respectful view, are fatal to the decision of the Court of Appeal.

124 I add these observations.

125 The Crown’s case against the appellant, again quoting the trial judge, was “that the accused went to B Unit servery on January 16th, 2000 anticipating an attack by Mr. Garon and armed himself to meet that challenge” (emphasis added). Before the Court of Appeal, the Crown alleged that the trial judge had erred in finding reasonable the appellant’s belief “that he had no alternative course of action open to him at the time but to arm himself with lethal concealed weapons in preparation to kill or be killed in the event of a perceived or actual assault” (emphasis added).

126 The trial judge, as we saw earlier, concluded that the appellant met both requirements under s. 34(2): he had acted under reasonable apprehension of death and he believed, on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm. The Court of Appeal found that there was “ample evidence” to support this finding.

127 It has thus been finally decided that the appellant was justified in defending himself as he did with the weapon he had in his possession for that purpose. The trial judge acquitted him of murder on that ground and the Court of Appeal affirmed his acquittal on that very basis.

128 On any view of the matter, it appears to me incongruous to then convict the appellant on a charge of possession of that weapon, on that occasion, for that purpose. And, with the greatest of respect, I believe it was plainly wrong to convict him because the weapon in his possession was concealed — a separate and different offence, with which he was not charged — particularly after noting that “[a] weapon openly brandished would be immediately confiscated” (para. 30).

129 It is true that the appellant had possession of the weapon on earlier occasions as well. But he was not charged with that here. The charge under s. 88 of the Criminal Code bears the same date as the count for murder. And the Crown’s case at trial was, again in the words of the trial judge, “that the accused went to B Unit servery on January 16th, 2000 anticipating an attack by Mr. Garon and armed himself to meet that challenge”.

130 The appellant cannot properly stand convicted under s. 88 because he violated that section on other occasions. Nor can he stand convicted because he violated another section of the Code on the occasion that concerns us here.

V. Conclusion

131 This case arose in unacceptable conditions of violence that, at least at the time, characterized the Edmonton Institution, a maximum security penitentiary. The possession of concealed weapons by prisoners was then a fact of life — and sometimes, as in this case, of death. I share the concern of all who care, and am particularly mindful of the dangers to which prison guards are daily exposed.

132 But those deplorable conditions, and our inability as judges to eradicate them, should in no way deflect our attention from the legal issues on which this case turns.

133 For the reasons given, I would resolve those issues in the appellant’s favour, allow the appeal, set aside the conviction entered in the Court of Appeal, and restore the appellant’s acquittal at trial.

Appeal allowed, Binnie J. dissenting.

Solicitors for the appellant: Abbey Hunter Davison Spencer, Edmonton.

Solicitor for the respondent: Attorney General of Alberta, Edmonton.