ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-10-90000504-0000
DATE: 20140709
B E T W E E N:
HER MAJESTY THE QUEEN
Sabrina Montefiore, for the Crown
Respondent
- and -
JEREMY GAUVIN
Royland Moriah, for the Defendant/Applicant
Defendant/Applicant
HEARD: June 24, 2014,
at Toronto, Ontario
Michael G. Quigley J.
Ruling No. 3
Re: Directed Verdict on Count 5
[1] Jeremy Gauvin is charged with possession of controlled substances and possession of a prohibited weapon, to wit, a “push-dagger”. The formal charge is set out in count 5 of the indictment.
[2] In order for the jury to find the accused guilty of “possession of a prohibited weapon, to wit, a push-dagger”, Crown counsel must prove three essential elements beyond a reasonable doubt: (i) that the cane/sword found by P.C. Saeed in the trunk area of the blue SUV that Jeremy Gauvin was driving at the time of his arrest was a prohibited weapon, by reason of being a “push-dagger”; (ii) that Jeremy Gauvin possessed that prohibited weapon; and (iii) that Jeremy Gauvin knew that what he possessed was a “push-dagger” and thus a prohibited weapon.
[3] At the end of the Crown’s case, counsel for the defence made a motion for a directed verdict of acquittal on that count on the basis, in his submission, that there was no evidence before the court upon which the jury could find beyond a reasonable doubt that the black dragon head-handled cane/sword found in the back of Mr. Gauvin’s SUV was a “push-dagger” as defined in the Regulations. Consequently, there was no evidential basis to conclude that Mr. Gauvin possessed a prohibited weapon, and thus no basis upon which he could be convicted of that offence.
[4] Having heard the evidence at Mr. Gauvin’s trial on this issue and the submissions of counsel for the defence and the Crown, I have no hesitation to order that a directed verdict of acquittal shall be entered on that charge. There are fatal flaws in the Crown’s case on that issue, and I review them briefly in the reasons that follow. I am satisfied that there is no evidence before the court upon which the jury could find beyond a reasonable doubt that the cane/sword that is the subject of the charge meets the definition in the Regulations. The motion for a directed verdict on count 5 is granted.
Factual background and evidence
[5] On October 20, 2006, as part of the search of the defendant’s vehicle, P.C. Saeed located what appeared to the untrained eye to be a black walking cane with an intricate handle. But that was not a simple walking cane. It had an elaborate “L”-shaped handle that appeared to be positioned more or less perpendicular to the shaft of the cane. However, when the handle was unscrewed from the shaft of the cane by turning it 360 degrees several times, the handle could be removed from the shaft. When pulled out from the shaft, the handle was revealed to also be the handle of an 18” sword-like instrument with two blades that converged at a pointed tip, concealed inside the shaft of the cane.
[6] The determination was made by the detective in charge of the case that this instrument was a prohibited weapon within the meaning of ss. 88(1) of the Criminal Code and the Regulations to the Code, which prescribes certain types of items to be “prohibited weapons.” Mr. Gauvin was charged with the offence of possession of “a prohibited weapon, to wit: a push dagger,” contrary to ss. 91(2) of the Code.
[7] To set the framework within which to consider the evidence proffered by the Crown at Mr. Gauvin’s trial, it is helpful to refer to several definitions in the Criminal Code. A weapon is defined as anything that is used, or designed or intended for use in killing, hurting, threatening or intimidating another person. For these purposes, a “prohibited weapon” is defined in the Criminal Code as “any weapon, other than a firearm, that is prescribed to be a prohibited weapon.”
[8] The Regulations to the Criminal Code prescribe that numerous items are prohibited weapons. Included in those Regulations is the definition of the particular type of instrument which is prescribed to be a prohibited weapon and which is at issue here. That definition includes:
“any knife commonly known as a ‘push-dagger’ that is designed in such a fashion that the handle is placed perpendicular to the main cutting edge of the blade and any other similar device other than the aboriginal ‘ulu’ knife.”
[9] So looking more closely at the elements prescribed as necessary for an item to be a prohibited weapon under this definition, in my view it requires that each of the following elements be met:
(i) The item must be a knife;
(ii) It must be commonly known as a “push-dagger”;
(iii) It must have a handle;
(iv) It must have a blade;
(v) The blade must have a main cutting edge; and
(vi) The handle must be placed perpendicular, that is, at a right angle to that main cutting edge.
The Regulation provides that any other device that is similar also qualifies. “Similar” means to have a likeness or resemblance to something else or another thing, especially in a general way. However, it is of particular note that the definition excludes an aboriginal “ulu” knife.
[10] Central to the question here is, just what is “commonly known” as a “push-dagger”? It is an important question because if there is no evidence that answers that question, and on the basis of which the cane/sword could be found to be a “push-dagger”, then there is no evidence upon which the jury could convict and the motion for a directed verdict ought to be granted. There was some evidence relative to that question provided by several witnesses, but the Crown did not call any expert in weaponry to testify relative to what constitutes a “push-dagger.”
[11] Detective Margetson was accepted by the court as an expert in drugs and provided his expert opinion evidence on certain drug-related questions that arose relative to other counts in the indictment, but he acknowledged that he has no expertise in weaponry. Nonetheless, he testified that in his understanding, based on a 24-year career as a police officer, a “push-dagger” is a short-bladed instrument or knife with a handle perpendicular to, rather than being an extension of, the cutting surface of the blade. He said that it is typically held in the hand between the first and second or the second and third fingers and that, as its name describes, it is deployed using a forward punching motion.
[12] In the one instance in which Detective Margetson could recall coming across an item that was considered to be a “push-dagger”, during his 24-year career as a police officer, he described it as a short knife, with a short blade that was about 4” in length, with two angular cutting edges that came to a point and with a handle on the other end that formed a “T” shape relative to the blade and the point of the blade. It was held with the handle lying across the palm of the hand, like one would grip a handle on a door to open it, with the bladed portion protruding from between the middle fingers on the hand. He testified that the handle would not be visible in the hand of the person holding it as it protruded from between the fingers. So he described that when a “push-dagger” was in use, to the person on the receiving end, it would appear merely as a fist, but with a short, sharp-pointed blade protruding from it, but with the handle itself not being visible.
[13] P.C. Saeed also acknowledged that he has no expertise in weaponry. Nonetheless, as limited as his knowledge or experience plainly was, when asked what his understanding was of a “push-dagger” he claimed to have such an understanding, derived in part from researching on the Internet. He also said that it would be used in that kind of forward punching motion. However, unlike Detective Margetson’s evidence, he also stated his belief that it could be held between the thumb and the first finger, rather than between the first and second or second and third fingers of the hand.
[14] When P.C. Saeed gripped the cane/sword that was found and seized in this case, he held it in the palm of his hand, with his hand wrapped around the handle and with the 18” blade protruding from between his thumb and his first finger, and with the thumb resting on the short stub side of the dragon-headed cane/sword handle, similar to the way one would hold the handle of a hacksaw. However, in his holding of the instrument, the blade itself protruded from the top of his fingers, below the thumb, not from between the fingers themselves. He admitted that he had never seen a “push-dagger”, nor had he ever seen one used.
[15] P.C. Watt had nothing useful to add to this evidence. He had even less experience with “push-daggers” than P.C. Saeed.
[16] That was the extent of the evidence presented before the jury on this issue. There was no other evidence, expert or otherwise, presented to assist the jury in deciding whether or not the cane/sword found in the blue SUV that Jeremy Gauvin was driving was a “push-dagger”, and thus a prohibited weapon under our law, and there was no all-embracing legal definition to which jurors would be able to resort to help them answer that question.
The test for a directed verdict
[17] The test for granting a directed verdict is quite restricted. It arises from the decision of the Supreme Court in United States of America v. Shepard[^1]. It is the same test that is applied by preliminary inquiry judges in deciding whether a matter ought to be sent for trial. The test is this:
Whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The “justice” [is] required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.
[18] In his text Criminal Procedure[^2], Professor Coughlin observes at page 320 that the nature of the test means that a directed verdict is not available where the Crown’s evidence is merely weak. It is a verdict that is only possible to be granted where there is an absence of evidence on some point that must be proven. Put affirmatively, the author states on the authority of R. v. Charemski[^3] that the Crown must “produce some evidence of culpability for every essential definitional element of the crime for which the Crown has the evidential burden.”
[19] A motion for a directed verdict is only to be granted if the Crown has not produced such evidence. The reason is because an absence of evidence relative to an essential element of the offence charged against the accused by the Crown causes the question of the accused’s guilt to become one that can be settled exclusively by legal determinations, not questions of fact. The absence of evidence relative to an essential element of an offence is not a question of fact, but a question of law.
[20] The author observes as well, however, that the rule also applies when the Crown’s case rests purely on circumstantial evidence, because in such a case our law establishes that the jury can only convict, can only find the accused guilty of the offence charged, if there is no rational explanation for the circumstantial evidence that is said to support the charge than that the accused committed the crime. However, that is not the circumstance here. Here, it is a simple legal question of whether there is evidence that could satisfy the definitional requirements. As such, relative to whether to grant a motion for a directed verdict in this case, the other case law that deals with the availability of inferences to establish an element of the offence does not appear to me to be relevant.[^4]
[21] Thus, in this case, the question is a simple one: Is there an absence of evidence relative to an essential element of the offence charged? In particular is there an absence of evidence whether the cane/sword found and seized in this case is an instrument commonly known as a “push-dagger”, whether it meets the other stipulated definitional elements, and whether it is an instrument other than an aboriginal “ulu” knife?
Analysis and conclusion
[22] Before looking at whether certain seemingly required evidence is absent, I would commence the analysis by observing that there is evidence before the court relative to a number of the required elements. Based on their common life experience, and ability to observe, the presence of the instrument itself and an observation of its appearance and characteristics would seem to permit several of the required elements to be met. These include that it might reasonably be regarded as a sort of knife, that it has a handle, that it has a blade, that the blade appears to have at least one main cutting edge, leaving aside whether two cutting edges would disqualify it, and that the handle appears to be placed more or less perpendicular or at a right angle to the apparently two cutting edges.
[23] Accepting that it would be adequate to put the question to the jury even if the instrument is not exactly the same as the definition, but merely similar, the real question here is on what evidential basis the jury could conclude beyond a reasonable doubt that the instrument is one that is “commonly known” as a “push-dagger”, and that it is not an aboriginal “ulu” knife?
[24] Counsel for the defence argued that ordinary members of the public cannot generally be presumed to have a knowledge of weaponry, and what might be “commonly known as a push-dagger.” As such, he argued that the jury can only be in a position to know that where the Crown, who bears the burden of proof of the elements of the offence, adduces expert testimony from an individual qualified as an expert in weaponry.
[25] He says that the Crown did not do that here. The non-expert views of Detective Margetson, and to an even lesser extent those of P.C. Saeed, cannot substitute for that in his submission. Neither has any expertise in weapons. Thus, defence counsel argued that leaves an evidential gap that cannot be filled. There was no evidence produced at the trial that would fill it. He argues that to permit the jury to try on their own to fill in that gap amounts to impermissible speculation.
[26] The Crown advanced a more permissive approach. She contended (i) that individual jurors could commonly know or reasonably conclude that a particular weapon was a “push-dagger”, (ii) that the presence of the language “commonly known as…” shows that the concept is meant to be in the common knowledge of persons, and not something on which expert testimony is required, and (iii) that there is no need to have evidence before the court and the jury of what an aboriginal “ulu” knife is in order to satisfy the element of the offence by proving that the weapon being considered is not an “ulu” knife. I disagree with each of those three lines of argument.
[27] The Crown argued that individual jurors could commonly know or reasonably conclude or infer that a particular weapon was a “push-dagger”. She said they could do so applying their common sense and life experience. It is true that jury instructions encourage jurors to reach common sense conclusions applying their life experience, but they are asked to do that on the basis of the evidence presented at trial, and nothing else. They are cautioned that while all of us draw inferences in our daily lives as we are guided by our common sense and experience, the basis upon which such inferences or conclusions may be drawn in a trial is the evidence.
[28] While we all regularly draw inferences from the range of circumstantial evidence that presents itself to us every day of our lives, and we all understand and accept that certain facts are known to lead to certain results, in a trial inferences may not be drawn based on “understandings” or assumptions or intuition. They must instead be based solely on the evidence, which has been given in this case. They may not be based on conjecture or speculation. In my view, in the absence of evidence to inform it, to conclude that a thing “is commonly known as a push-dagger” with no evidence to support such a conclusion amounts to mere unfounded speculation. Jurors are not permitted to engage in speculation, nor are you permitted to reach speculative conclusions.
[29] Secondly, Crown counsel argued that the presence of the language “commonly known as…” shows that the concept is meant to be in the common knowledge of persons, and not something on which expert testimony is required. This is an argument that necessarily follows from the first. It may be true that persons could commonly know what a “push-dagger” is, although to assume that would be improper. Consequently, as I have noted, the evidence that is required is that the thing they are considering is a “push-dagger”. I accept that jurors could rely on their life experience and common sense if the expression in issue was that the thing is “commonly known as a knife”, or “commonly known as a sword”, or that it has a blade, or that it has a handle perpendicular to the blade. That follows because most of us would know those answers based on our life experience, because the items or questions themselves are common.
[30] This is plainly not the case with a “push-dagger.” One of the officers who testified had nothing useful to say on that subject. The second tried to appear more knowledgeable, but failed miserably in the attempt, and it was plain that P.C. Saeed’s evidence of what he thought a “push-dagger” was was informed by neither experience, nor expertise. If anything, it was informed by Internet research, the very kind of information to which we instruct jurors they may not resort to in reaching their conclusions on the facts. Detective Margetson was the only one of the three with any experience that was reliable, but the very fact that he had only encountered a “push-dagger” once in a 24-year career demonstrated that the appearance or use of “push-daggers” in common day-to-day experience or policing was not common.
[31] Further, I cannot escape the conclusion that in order to put the jury in a position where they could conclude that the cane/sword found in the back of Mr. Gauvin’s vehicle was an instrument that is “commonly known as a push-dagger”, there would either have to be an abundance of evidence demonstrating what a “push-dagger” is, and that such an instrument could accordingly fall within the definition, or it requires expert evidence, because of necessity it plainly requires that someone provide an opinion that the instrument in question falls within the definition. The only individuals who are permitted to provide opinion evidence before our courts are properly accepted and qualified experts. In this case, the evidence of an expert in weaponry would have satisfied that requirement. Such an individual could have testified as to what is commonly understood as a “push-dagger”, and further, they could have testified as to their opinion, based on their expertise, of whether the instrument found in Mr. Gauvin’s car is something that is “commonly known as a push-dagger.” The absence of that evidence, in my opinion, inescapably leaves the jury with no evidence before them from which they could conclude that the instrument in this case is a “push-dagger” and as such, a prohibited weapon.
[32] Finally, if that were not enough, the third line of argument would also have doomed the Crown’s case relative to that charge. Crown counsel argued before me that there was no need to have evidence before the court and the jury of what an aboriginal “ulu” knife is in order to satisfy the element of the offence by proving that the weapon being considered is not an “ulu” knife. Plainly, this argument is misguided and cannot succeed. Once again, even if there were evidence upon which they could conclude that the instrument in Mr. Gauvin’s car was a “push-dagger”, which is lacking here, it calls upon jurors to try to determine that it is not an aboriginal “ulu” knife. The last element is clearly important, since legislators saw fit to carve such an item out of the definition.
[33] Yet once again, there was no evidence before the court of what an aboriginal “ulu” knife is, and while some Canadians with knowledge of the customs and lifestyles of the Inuit might have an understanding of what an “ulu” knife is, and that it is a semicircular bladed knife with a shaft meeting the top of the blade at its midpoint at a 90° angle, and with a handle at the top of that shaft perpendicular to the shaft itself, thus having an appearance not dissimilar to that of an anchor, that is not something that can be presumed to be commonly known to most Canadians.
[34] Once again, evidence is required. No such evidence was presented. As such, the jury could not possibly reach a conclusion that the instrument found in Mr. Gauvin’s car was not an aboriginal “ulu” knife, so once again that element of the offence could not be proven.
[35] Crown counsel made the comment in the course of argument that I ought to note that the preliminary inquiry judge obviously felt that the requirement was met insofar as he or she committed the accused to trial on this charge. However, that is irrelevant. It does not answer the question. Plainly, whether the preliminary inquiry judge was satisfied at that time does not bind me. If it did, there would never be an occasion when a directed verdict could ever be granted. The question is whether there was evidence presented at this trial from which a jury properly instructed could convict. It will suffice to say for these reasons that it is clear to me that that requirement could not be met. The Crown cannot possibly succeed in proving count 5. Defence counsel’s motion for a directed verdict of acquittal will be granted.
Michael G. Quigley J.
Released: July 9, 2014
Footnotes
[^1]: [1977] 2 S.C.R.167 at 1080.
[^2]: P. Coughlin, Criminal Procedure, (Irwin Law: Toronto, 2008).
[^3]: [1988] 1 S.C.R. 679 at para. 3.
[^4]: See R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154; R. v. Mezzo, 1986 16 (SCC), [1986] 1 S.C.R. 802; and Charemski, above; and also R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.