R. v. Kerr

R. v. Kerr
Collection
Supreme Court Judgments
Date
2004-06-23
Neutral citation
2004 SCC 44
Report
[2004] 2 SCR 371
Case number
29714
Judges
Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie; Fish, Morris J.
On appeal from
Alberta
Subjects
Criminal law
Notes
SCC Case Information: 29714
Decision Content
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), 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] 2 S.C.R. 973; referred to: R. v. Morin, [1992] 3 S.C.R. 286; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; R. v. Cassidy, [1989] 2 S.C.R. 345; R. v. Hundal, [1993] 1 S.C.R. 867; R. v. Théroux, [1993] 2 S.C.R. 5; R. v. Proverbs (1983), 9 C.C.C. (3d) 249; R. v. Dugan (1974), 21 C.C.C. (2d) 45; R. v. Beeds, [1972] 6 W.W.R. 44; R. v. Hinchey, [1996] 3 S.C.R. 1128; R. v. Lohnes, [1992] 1 S.C.R. 167; R. v. Chomenko (1974), 18 C.C.C. (2d) 353; R. v. Sulland (1982), 2 C.C.C. (3d) 68; R. v. Vandooren, [1969] 4 C.C.C. 217; R. v. Felawka, [1993] 4 S.C.R. 199.
By LeBel J.
Applied: R. v. Nelson (1972), 8 C.C.C. (2d) 29; R. v. Vandooren, [1969] 4 C.C.C. 217; R. v. Flack, [1969] 1 C.C.C. 55; R. v. Chomenko (1974), 18 C.C.C. (2d) 353; R. v. G. (D.) (1999), 139 C.C.C. (3d) 191; R. v. Howell, [1982] Q.B. 416; referred to: R. v. Pierce Fisheries Ltd., [1971] S.C.R. 5; R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Hasselwander, [1993] 2 S.C.R. 398; R. v. Cassidy, [1989] 2 S.C.R. 345; Vallance v. The Queen (1961), 108 C.L.R. 56; R. v. Mulligan (1974), 18 C.C.C. (2d) 270; Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Magee (1923), 40 C.C.C. 10; Frey v. Fedoruk, [1950] S.C.R. 517; R. v. Hibbert, [1995] 2 S.C.R. 973; Perka v. The Queen, [1984] 2 S.C.R. 232.
By Fish J.
Applied: R. v. Nelson (1972), 8 C.C.C. (2d) 29.
By Binnie J. (dissenting)
R. v. Nelson (1972), 8 C.C.C. (2d) 29; R. v. Knudsen (1970), 1 C.C.C. (2d) 576; Timothy v. Simpson (1835), 1 C.M. & R. 757, 149 E.R. 1285; R. v. Biron, [1976] 2 S.C.R. 56; R. v. Lefebvre (1984), 15 C.C.C. (3d) 503; R. v. Howell (1981), 73 Crim. App. Rep. 31; R. v. Magee (1923), 40 C.C.C. 10; Frey v. Fedoruk, [1950] S.C.R. 517; R. v. Sulland (1982), 2 C.C.C. (3d) 68; R. v. G. (D.) (1999), 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), 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
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] 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] 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] 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), 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] 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] 1 S.C.R. 867; R. v. Théroux, [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), 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 subject