R. v. Wainwright, 2016 ONSC 1963

CITATION: R. v. Wainwright, 2016 ONSC 1963

COURT FILE NO.: 12-13778

DATE:20160322

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY Tiffi QUEEN

-aDd-

BENJAMIN GORDON WAINWRIGHT Defendant

) Julian Daller, for the Crown

) Sarah Starkie, for the Accused

) HEARD: October 20, 21, 2015 and March

22,2016

REASONS FOR DECISION

TOSCANO ROCCAMQ J.

Introduction

1Benjamin Gordon Wainwright stands charged with the following offences:

1. Possession of a prohibited weapon, namely a set of brass knuckles, without being the holder of a license permitting the possession contrary to section 91(3) of the Criminal Code, R.S.C. 1985, c. C-46;

2. Possession of the said brass knuckles, knowing he was not the holder of a license permitting such possession, contrary to section 92(3) of the Criminal Code;

3. Attempting to take on board a civil aircraft, namely the passenger aircraft owned by WestJet, an offensive weaponamely the brass knuckles, without the consent of WestJet, contrary to section 78(1) of the Criminal Code; and

4. Attempting to take on board a civil aircraft, namely the passenger aircraft owned by WestJet, an offensive weaponamely a Colt .177 calibre air gun, without the consent ofWestJet, contrary to section 78(1) of the Criminal Code.

Background Facts

2The factual matrix which gave rise to the' crim inal charges was largely admitted, as described in the Prosecution Summary filed as Exhibit #1.

3On December 4, 2012, Mr. Wainwright attended the Ottawa Airport confirmed to board the WestJet flight 611 to Toronto and the connecting WestJet flight 325 to Edmontowhere a job awaited him in the construction industry.

4The email statement of WestJet agent Erin Currie, filed as Exhibit #2 reflects that Mr. Wainwright checked in a camouflage duftle bag at the WestJet counter. He did so without obtaining WestJet's permission to have in his checked luggage a Colt .177 calibre air gun, and a belt buckle resembling brass knuckles. The bag was checked through to Edmontoas appears from the luggage tags entered as Exhibit# 7.

5While Mr. Wainwright proceeded to his gate, an X-ray taken of his duftle bag in the screening area, a copy of which was entered as Exhibit #4, revealed what appeared to be a hand gun in the bag. A subsequent search uncovered a Colt Defender Air Gun loaded with BBs and a Ccartridge marked as Exhibit #8, two Ccanisters with 15 4.5 millimeter BBs marked as Exhibit #9, and a belt buckle shaped like a set of brass knuckles wrapped in a Sons of Anarchy black bandana entered as Exhibits #5 and #6, respectively.

6Police were contacted, and Ottawa Police Service Detective Chris O'Brien obtained a voluntary statement from Mr. Wainwright, entered as Exhibit #11. He was subsequently charged with the offences noted. In the statement provided, Mr. Wainwright confirmed that the air gun and brass knuckleS were his and that he was aware they were in his checked bag, as he had put

them there. Mr. Wainwright also stated that he did not think that what he did was wrong, but in retrospect, he acknowledged that the items could be seen as weapons. Having confirmed a previous conviction for unauthorized possession of a prohibited or restricted weapon that being a hunting knife contrary to section 91(2) of the Criminal Code, as appears on his Criminal Record marked as Exhibit #13, he told Det. O'Brien that this was not his "first rodeo."

7At trial, Mr. Wainwright testified that the air gun was a gift from his grandfather and was used for recreational purposes. In addition, he explained that it was part of his native heritage and family tradition to use the air gun for target practice while camping.

8In cross-examination, he acknowledged that he took firearms safety training, which included training on BB guns. He agreed that he took this training to heart, and that one of the most important rules he learned was that a BB gun should not be stored or transported while loaded. Nonetheless, he checked the BB gun onto the WestJet flight loaded with a C(h canister. He could not state for certain whether the safety guard was employed on the BB gun when he did so.

9Mr. Wainwright gave evidence that he never used a BB gun to harm or threaten harm to any person. He confirmed that he had no intention to do so. One of his stated reasons for bringing the air gun to Edmonton was to shoot at icicles hanging from the roof. He also acknowledged that he used the BB gun in the past for pest control, that being to shoot a mouse inside a residence, with the intent to injure or kill the mouse.

10His evidence was that he checked the WestJet website for information about baggage and carry-ons, to determine whether the BB gun was permitted in checked baggage. Entered as Exhibit #12 was WestJet's Guest Information about Baggage and Carry-Ons for 2015. Mr. Wainwright confirmed that the information he viewed online for 2012 was not identical. He also confirmed that he checked the information online, without reading the fine print. His subsequent testimony that he did not know whether his checked bag would actually go onto the aircraft, as opposed to on a bus or a train, as such was not credible.

[1 I] Regarding the belt buckle in the shape of brass knuckles, Mr. Wainwright testified that he

was a C<?Ilector of belt buckles, and that he had a number of others to which he was "partial",

wrapped in the Sons of Anarchy bandana. He testified that the belt buckle was purchased at the Cataraqui Centre, a shopping mall located in Kingston, where similar articles are sold. He did not consider the belt buckle a weapon. Instead, he called it a novelty item and vigorously suggested it could be considered something other than brass knuckles, noting that it could even be said to look like a strange tree.

12When pressed, Mr. Wainwright reluctantly admitted that the belt buckle looked like brass knuckles, in that it was made of metal and had holes for insertion of one or more fingers. On the other hand, he suggested that his fingers would not comfortably fit into the belt buckle, noting it bad a belt loop welded onto one end, and a prong on the other that fit through a belt hole. When asked to demonstrate how one could hold the buckle, Mr. Wainwright demonstrated that his fingers fit inside the metal holes. However, Mr. Wainwright claimed that he could not use the belt buckle to punch someone because the thinness of the metal grip would cause pain to the palm of his hand. This was in spite of his evidence that he had never used it to punch anyone and despite his admission that he and his friends had joked about the belt buckle looking like brass knuckles.

The Emert Opinion

13The Firearm and Ammunition Examination Report dated January 7, 2013 of Detective Mike Crete was entered in evidence as Exhibit #2 along with the article of Kramer D. Powley et al., "Velocity Necessary for a BB to Penetrate the Eye: An Experimental Study Using Pig Eyes" (2004) 25:4 American Journal of Forensic Medicine and Pathology 273. The Report of Det. Crete confirmed that the subject air gun was test fired and functioned correctly as an air gun. He

concluded that it was a "firearm" as defined in section 2 of the Criminal Code of Canada in

proper firing condition, in that it is "a barreled weapon capable of discharging projectiles that are capable of causing serious bodily injury or death to a person." He further described the item as one having an average projectile velocity of 433.36 feet per second. He reported that this is

187.36 feet per second faster than the 246 feet per second needed to penetrate a pig's eye with a

4.5 millimeter BB (.177 calibre air gun). As such, because a pig's eye shares many features with a human eye, the subject air gun satisfied the pig's eye test, a recognised laboratory procedure used by law enforcement agencies to establish capacity for causing harm.

Evidence of Sergeant O'Brien

14Sergeant O'Brien outlined the details of the police investigation of the alleged offences, including the videotaped interview of Mr. Wainwright. Sgt. O'Brien testified as to the characteristics of the belt buckle entered as Exhibit #5. He con.fumed the fact that the brass knuckles bad a belt loop welded to them did not detract from their function as brass knuckles. He demonstrated that he could put them on without difficulty. He noted that brass knuckles are designed to be used with a fist to inflict heavy damage by inserting the fingers through the metal holes and holding the brass knuckles by the metal grip in the palm of the hand.

15I observed that the belt loop in no way interfered with the placement of the fingers through the holes and the gripping of the device against the palm of the band. While the Defence submitted that the curvature of the item lends it to be seen as a fashion accessory rather than brass knuckles, the curved side of the brass knuckles held against the palm conforms with the natural ergonomics of the band. Moreover, the small metal nubs protruding from the apex of each of the finger holes could serve to enhance the injury inflicted at these contact points if used to punch.

The Issues

16There are two main issues raised by these proceedings:

1. In relation to counts 3 and 4, whether the air gun and belt buckle meet the definition of "offensive weapon" in section 78 of the Criminal Code.In addition, the Defence raises a question of statutory interpretation in submitting that Mr. Wainwright did not attempt to

''take on board" the WestJet flight the noted items as required by section78.

2. In relation to counts 1 and 2, whether the belt buckle meets the definition of "weapon" in sections 91 and92 of the Criminal Code and whether the Crown has established beyond reasonable doubt that Mr. Wainwright bad the necessary mens rea to be convicted of these offences.

The Section 78 Offences (Counts 3 and 4)

17Section 78 of the Criminal Code provides as follows:

78. (1) Every one, other than a peace officer engaged in the execution of his duty, who takes on board a civil aircraft an offensive weapon or any explosive substance

(a) without the consent of the owner or operator of the aircraft or of a person duly authorized by either of them to consent thereto, or

(b) with the consent referred to in paragraph (a) but without complying with all terms and conditions on which the consent was given,

is guilty of an indictable offence [...]

18By reference to the definition of ''take" found in the Oxford Dictionary and the Merriam­ Webster Dictionary, the Defence submits the word ''take" connotes an element of active possession, and that the actus reus of the offence cannot be made out unless the accused actually brings the offensive weapon onto the plane with him.

19Noting that the Oxford Dictionary defines ''take" as "lay hold of, get into one's hands; acquire, get possession of, capture or win" or "cause to come or go with one", while the Merriam-Webster Dictionary defines ''take" as "to get into one's hands or possession" or "to lead, carry, or cause to go along to another place", the Defence suggests that the word ''take" can convey a number of meanings, from personally carrying on board to causing it to be moved. The Defence submits that this amounts to ambiguity which must be resolved in favour of an accused and in accordance with the basic rule of statutory interpretation requiring that ''the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of parliament" (Ruth Sullivan, Sullivan on the Construction ofStatutes, 8th ed. (Markham: LexisNexis, 2008), at 1).

20The Defence relies on the Hansard Debates preceding the enactment of sections 76, 77, and78 of the Criminal Code, referred to as ''the high jacking offences" as having as their object, as part of an omnibus crime bill, the enhancement of aircraft safety.

21The Defence submits that section 77(d) of the Criminal Code addresses the situation in which an individual "places or causes to be placed on board an aircraft in service anything that is likely to cause damage to the aircraft, that will render it incapable of flight or that is likely to endanger the safety of the aircraft in flight", and that section 78.1(1) of the Criminal Code

addresses the situation where an individual ''places or causes to be placed on board a ship or fixed platform anything that is likely to cause damage to the ship or its cargo or to the fixed platform".

22By conthe Defence submits that section78 focuses on the specific criminal act of bringing a weapon on board an aircraft. The Defence contends that the interpretation of section

78 most consistent with the underlying intent behind the provisions providing for the high jacking offences is one that requires the person to physically bring a weapon with him or her into the passenger area of a plane. The Defence posits that the offences set out in sections77(d) and

78.1(1) of the Criminal Code are aimed at items placed or caused to be placed on board an aircraft or a ship, such as in the luggage hold, whereas section78 is aimed at offensive weapons actually brought into the passenger area of a plane by an individual.

23I accept the Crown's submissions that there is no genuine ambiguity in section 78 of the

Criminal Code.

24As expressed by the Supreme Court of Canada in Bell ExpressVu Ltd Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R 559, at para. 26 [Bell ExpressVu]:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

25The preferred approach to statutory interpretation is buttressed by section 12 of the Interpretation Act, R.S.C. 1985, c. 1-21, which provides that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects." This approach takes precedence over other principles of interpretation, such as the strict construction of penal statutes favouring an accused in the event of ambiguity and the "Charter values" presumption, applied where there is ambiguity as to the meaning of a provision (Bell ExpressVu, at paras. 26, 28).

26In Bell ExpressVu, the Supreme Court held, at para. 29, that Justice Major's statement in CanadianOxy Chemicals Ltd v. Canada (Attorney General), 1999 680 (SCC), [1999] 1 S.C.R 743, at para 14 was correct: before there is resort to "external interpretive aids" including other principles of

interpretation, an ambiguity between two or more plausible readings must be found to be •'real" and the words of the provision must be •'reasonably capable of more than one meaning".

27I accept the Crown's submission that it is not plausible that Parliament intended that section 78 of the Criminal Code could be circumvented simply by having the offensive weapon or explosive substance in question handled by a proxy before it is taken on board an aircraft into the luggage hold. To suggest otherwise departs from the grammatical and ordinary sense of the words in section78 and undermines the operative purpose of the section, which is to obtain the consent of the airline, not to define the means by which the weapon is taken on board.

28I accept the Crown's submission that under the Defence's interpretation of section 78, anyone deliberately checking in luggage at an airline counter, knowingly concealing a weapon and knowing that it will be brought on board the aircraft by airline staff or anyone else, including unwittingly by a travel companion, would not be "taking on board an aircraft" an offensive weapon or explosive device. In my opinion, this would defy common sense and the obvious intent of the section, which is to prevent weapons and explosive devices from being taken onto civil aircrafts without airline authorization, whether in carry-on baggage or checked into the cargo hold.

29Therefore, I do not accede to the Defence's suggestion that the language of section 77(d) of the Criminal Code, which reads "[everyone who] places or causes to be placed on board an aircraft in service anythiltg that is likely to cause damage to the aircraft, that will render it incapable of flight or that is likely to endanger the safety of the aircraft in flight", suggests that Parliament intentionally declined to criminalize acts including those of Mr. Wainwright on the basis that Parliament could have also said "takes or causes to be taken on boarcf' in section78.

30Moreover, as the Crown observes, section 77(d) makes no reference to "offensive weapon" as defined by the Criminal Code, and therefore potentially broader classes of items. Furthermore, section 77(d) requires an element of proof that the item be likely to endanger the aircraft itself, rather than its occupants. Finally, section 77(d) makes reference to any aircraft, whereas section 78 specifically addresses public safety on a "civil aircraft". To this extent, section 77(d) and section 78 of the Criminal Code target different mischief.

31If I am mistaken with respect to the underlying intent of Parliament in section 78 of the Criminal Code, I would in any event accept the argument advanced by the Crown that Mr. Wainwright was charged with "attempt", rather than the full criminal act contemplated by section78. Given that Mr. Wainwright has been charged with an attempt to commit the offence described by section 78, the Crown need only prove that he intended to take an offensive weapon on board a civil aircraft, did not seek the airline's consen4 and took steps to carry out his intention.

32I find that it is no defence to a charge under section 78 that it is impossible for an accused to be the particular person to handle the bag at the point of loading. In this case, I find that Mr. Wainwright took steps to advance his intent by checking in his bag at the WestJet counter, obtaining baggage tags and leaving his bag with airline staff for loading onto the aircraft.

Does the Air Gun meet the definition of"An Offensive Weapon" in Section 78?

33Section 78 requires that an accused take on board an "offensive weapon", defined under section 2 of the Criminal Code, as follows:

"offensive weapon" has the same meaning as ''weapon";

"weapon" means any thing used, designed to be used or intended for use

(a) in causing death or injury to any person, or

(b) for the purpose of threatening or intimidating any person

and, without restricting the generality of the foregoing, includes a firearm [...] "f"uearm" means a barrelled weapon from which any sho4 bullet or other

projectile can be discharged and that is capable of causing serious bodily injury or

death to a person, and includes any frame or receiver of such a barrelled weapon

· and anything that can be adapted for use as a firearm.

34There is little doub4 given the expert opinion contained in the Report of Cst. Crete in Exhibit #2 as well as the description of the air gun found in the excerpt taken from the Owner's Manual for a CBB pistol found in Exhibit #10, that Mr. Wainwright's air gun met the definition of"firearm" in section 2 of the Criminal Code.

(35] The Defence contends, however, that the onus is upon the Crown to demonstrate that the air gun also meets the definition of "weapon", thereby imposing upon the Crown the onus to demonstrate that the item is used, designed to be used or intended to be used to cause death or injury to any person or to threaten or intimidate any person. The Defence argues that the air gun does not meet the definition of ''weapon" in section 2 of the Criminal Code, as there is no evidence that the air gun was designed to be used to cause death or injury to any person or to intimidate any person. The Defence submits that the air gun was designed for recreational purposes and that it comes with a caution in its manual that if misused or used carelessly, it could cause serious injury or death.

36The Defence concedes that in 1993, the Supreme Court of Canada in R. v. Felawka, 1993 36 (SCC), [1993] 4 S.C.R 199, held that firearms always fall within the definition of "weapon" within the meaning of section 2 of the Criminal Code, and in so doing, cited with approval at para. 17 the reasons of the Ontario Court of Appeal R. v. Formosa (1992), 1992 12828 (ON CA), 79 C.C.C. (3d) 95, where the Court concluded that an air gun fell within the definition of a ''weapon" in section 2 of the Criminal Code.

37On the other hand, the Defence contends that subsequent to the decision in Felawka, and at the time that Mr. Wainwright is alleged to have contravened section 78, the Ontario Court of Appeal in R. v. McManus (2006), 2006 26568 (ON CA), 214 O.A.C. 77, held that because the definition of "firearm" included the term "barreled weapon", a court was first required to find an item to meet the definition of "weapon" under section2. Subsequently, in R. v. Labrecque, 2010 ONSC 754, at para. 7, summary conviction appeal judge Rutherford J. found that the Felawka decision was not referring to air guns, but rather to power-fired bullet-shooting guns. Noting that the Court in McManus did not refer to the Felawka decision, the Ontario Court of Appeal in R. v. Labrecque, 2011 ONCA 360, at para. 5 nonetheless considered itself bound by its earlier decision in

McManus.

38On September 4, 2013, only nine months after the events giving rise to these charges, the Court of Appeal in R. v. Dunn, 2013 ONCA 539, 117 O.R. (3d) 171, determined that its earlier decisions in McManus and Labrecque were wrongly decided and that an air gun meeting the definition of "firearm" is in fact a "weapon".

39The Defence contends that the Charter values in sections 11(i) and ll(g) would make it unfair to preclude reliance on the benefit of the law that stood in place at the time of an alleged offence. In reference to a statutory change to the self-defence provisions, the Defence adopts the reasoning of Justice Paciocco of the Ontario Court of Justice in R. v. Parker, 2013 ONCJ 195, at para. 5, where he found that where a defence was available at the time of an offence, Charter values would dictate that an accused be entitled to rely on law as it existed at the time of such offence. This would permit Mr. Wainwright to argue that the air gun did not meet the definition

of ''weapon" in section 2, if it is found that the air gun was not used, designed to be used or

intended for use in causing death or injury to any person or for the purpose of threatening or intimidating any person.

40In my opinioR. v. Dunn clarified the law by reference to prior binding authority. It did not eliminate a defence available to Mr. Wainwright. In R. v. Dunn, the Court of Appeal declared that its earlier holding in McManus was wrongly decided. At para. 34, the Court of Appeal held:

...Felawka is controlling and an object, whether it is a conventional powder-fired gun or a spring or gas fired will fall within the definition of "firearm" in s. 2 provided there is proof that any shot, bullet or other projectile can be discharged from the object and that it is capable of causing serious bodily injury or death to a person. I say this primarily because of the majority's approval of Formosa, a case that involved a pellet or air gun and the very issue engaged in this case. Admittedly, some of the language used by Cory J. in Felawka is most easily applied to conventional firearms. But there is nothing in his decision that limits the definition of "firearms" to those types of weapons. Cory J. did not suggest that his reasoning was limited to conventional firearms and the reasoning, particularly in the reference of this court's decision in Formosa, suggests otherwise. The interpretation of "firearm" was not obiter, and was central to the court's analysis of the accused's appeal. The prosecution need not prove that the object also falls within paragraph (a) and (b) of the weapon definition.

41I would observe that in R. v. Goard, 2014 ONSC 2215, 310 C.C.C. (3d) 491, at para. 123, Justice Trotter relied, in part, upon R. v. Dunn in addressing a factual situation that transpired in

42As such, I conclude that the definitions found in the Criminal Code resolve this issue. In short, the Crown has demonstrated that the BB gun is a "firearm" by tendering the unchallenged expert opinion of Cst Crete, that all "firearms" are "weapons", and that all "weapons" are

"offensive weapons". Therefore, the BB gun is an "offensive weapon" within the meaning of section 78 of the Criminal Code. As such, it is unnecessary to consider whether the BB gun, as designed, affords a dual purpose, including both recreational and other uses potentially injurious to persons: seeR. v. Archer (1983), 1983 3510 (ON CA), 6 C.C.C. (3d) 129 (Ont. C.A.), at para 9.

Does the Belt Buckle meet the definition of"Offensive Weapon" in Section 78 of the

Crimilull CtHk?

43Section 15 of Part 3 ofthe Schedule to Regulation S.O.RJ98-462 defines brass knuckles as follows:

The device commonly known as "Brass Knuckles" and any similar device consisting of a band of metal with one or more finger holes designed to fit over the fingers of the hand. [Emphasis added]

44Section 84(1) of the Criminal Code defines ''prohibited weapon" as follows:

''prohibited weapon" means

(a) a knife that has a blade that opens automatically by gravity or centrifugal force or by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, or

(b) any weapon, other than a firearm, that is prescribed to be a prohibited weapon;

45As such, brass knuckles are proscribed to be a ''prohibited weapon" under section84(1)

of the Criminal Code.

46The Defence submits that this issue turns on whether the belt buckle was designed to be used as a weapon, there being no evidence that the belt buckle was used by Mr. Wainwright as a weapon, and no evidence that he intended to use the belt buckle as a weapon. Because the item was fitted with a belt loop and a prong so as to serve as a belt buckle, and was marketed and sold as such, the Defence urges me to find a reasonable doubt as to whether it was designed to be used as a weapon.

47In my opinion, the prohibition in the definition of brass knuckles is expansive. It captures brass knuckles or "any similar device" made of metal with finger holes designed to fit over the fingers of the hand. These inherent characteristics exist independently of what Mr. Wainwright

may have believed or intended. Had the brass knuckles been designed as a fashion accessory only, it stands to reason that they would not be made of a band of metal, and/or would preclude the insertion of fingers in the finger holes. The additional design feature of nubs at the apex of each finger hole could only inflict additional damage or injury if used or intended to be used as brass knuckles. Because the belt buckle possesses characteristics in part designed for a nefarious purpose, in my opinion, it meets the objective test set out in section 15 of Part 3 of the Schedule, and section 84(1) of the Criminal Code.

48I accept the Crown's submissions that due to the fact that R. v. Murray (1985), 7 O.A.C.

127 (C.A.), and subsequently R. v. Murray (1991), 1991 7116 (ON CA), 4 O.R (3d) 97 (C.A), addressed older Criminal Code definitions of "weapon", and that the Regulations I am bound to apply post-date the Murray cases and the changes to the definition of ''weapon" in the Criminal Code, the Murray cases cannot be relied upon to support the argument that the belt buckle must meet the definition of "weapon" under s.2 before it can be classified as a "prohibited weapon".

49I would also observe that the Murray cases were expressly not followed in R. v. A. K (1991), 1991 416 (BC CA), 4 B.C.AC. 244 (C.A.). InA.K, the appellant was acquitted by a provincial courtjudge for possession of nunchaku sticks which he intended to use for martial arts exercise and did not know were classified as ''prohibited weapons." His acquittal was reversed on appeal and a new trial ordered. In upholding the decision to remit the matter for a new trial, the British Columbia Court of Appeal noted there was uncontradicted evidence that the appellant knew the nunchalru sticks could be used to inflict injuries, and the fact that he did not intend to use them for those purposes was no excuse, based on the definition of "weapon" in section 84(1) including any article or device that can in any circumstances be used to inflict harm. The appeal court in A.K specifically rejected complete reliance on an accused's subjective belief in respect of the design or intended use of a device in relation to the definition of a "prohibited weapon", and specifically agreed with the principle annunciated by the Ontario Court of Appeal in Archer to the effect that the mens rea required to constitute the offence of possession of a prohibited weapon involves knowledge or recklessness with respect to the characteristics of the item.

50I would also observe that the Supreme Court of Canada granted leave to appeal A.K, but dismissed the appeal without reasons: [1991] S.C.C.A. No. 517.

51I lean to the view that the Murray decisions have limited utility, as further suggested by the favorable citation of A.K in R. v. Lambrecht, 2008 14892 (Ont. S.C.), at paras. 49-51, and R. v. Ramsaran, 2008 40969 (Ont. S.C.), at para. 55.

52I echo the reasoning expressed in R. v. Tielsch, [1996] O.J. No. 2575 (Ont. C.J.), at para.

13, where the Court declined to reconcile the holdings in R. v. Murray and R. v. A.K as to whether an item proscribed expressly under section 84(1) of the Criminal Code must also meet the definition of "offensive weapon", which includes an objective basis of proof, regardless of the accused's intent:

It is immaterial whether the item was designed to be used exclusively for a proscribed (nefarious) purpose, or whether it was designed to be used also, or even mainly, for an innocent purpose, so long as (from an actus reas viewpoint), it was designed (at.least alternatively or in part) to be used for the proscribed (nefarious) purpose, and (from a mens rea view point), the accused knew, or was reckless as to whether the item possessed the characteristics that thus rendered it a "prohibited weapon".

53In the case before me, there is little doubt that Mr. Wainwright joked with friends as to the design characteristics of the belt buckle, and was reckless as to its characteristics when he transported it on board the WestJet flight among other items in his checked luggage. I am satisfied that the Crown has met its onus to demonstrate the necessary mens rea required in section 78(1) of the Criminal Code.

Does the Belt Buckle Meet the Definition of"Prohibited Weapon" in Sections91(3) and

92(3) of the Criminal Code in Counts 1 and 2?

54The Defence quite properly concedes that the offences under sections 91 and92 of the Criminal Code rely on the definition of "prohibited weapon" as set out in section 84(1) of the Criminal Code, and that brass knuckles are proscribed to be a prohibited weapon.

55I find that the belt buckle meets the definition of brass knuckles and that Mr. Wainwright was reckless as to those characteristics that make it a prohibited weapon, as required by R. v. Archer, at para. 9.

56Mr. Wainwright admitted that be possessed the brass knuckles, packed his own bags, and knew that be bad no license to possess the brass knuckles.

57Mr. Wainwright's belief that he was not thereby doing anything illegal affords him no defense pursuant to section 19 of the Criminal Code.

58In my opinion, the result in R. v. Boyce, [2002] O.J. No. 3707 (Ont. C.J.), at paras. 23, 26, is unhelpful. In that case, the Court dealt with knives incorporating elements of brass knuckles into their handles. The result may be distinguished on its facts in that the Court held that the pull knife was not functionally similar to brass knuckles, and therefore could not be described to be "a similar device" captured by the definition of brass knuckles in the Regulation. I have already found that Mr. Wainwright's belt buckle could function as "brass knuckles".

59As the Defence quite properly concedes by reference toR. v. Chan, 2005 ONCJ 360, at para. 16, evidence on how an accused uses the item in question "does not determine the purpose for which it was designed", although it may demonstrate a dual or multiple purposes for which it may have been designed.

Conclusion

60In summary, I find Mr. Wainwright guilty on all counts, and as requested by the Crown

in this case, enter a stay on Count 1 pursuant toR. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.

61I am grateful to counsel for their direction with respect to the legal issues arising in·this

case.

Released: March 22,2016

t TC. l- r_L. -,.,, /------'