R. v. Felawka, (1993) 159 N.R. 50 (SCC)

• Judge: Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 01, 1993
• Jurisdiction: Canada (Federal)
• Citations: (1993), 159 N.R. 50 (SCC);33 BCAC 241;21 WCB (2d) 192;25 CR (4th) 70;[1993] SCJ No 117 (QL);JE 93-1777;1993 CanLII 36 (SCC);85 CCC (3d) 248;54 WAC 241;[1993] BCWLD 2824;159 NR 50;[1993] 4 SCR 199;EYB 1993-67112

R. v. Felawka (1993), 159 N.R. 50 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Kenneth Jay Felawka (appellant) v. Her Majesty The Queen (respondent)

(No. 22783)

Indexed As: R. v. Felawka

Supreme Court of Canada

Lamer, C.J.C., La Forest,

L'Heureux-Dubé, Sopinka, Gonthier,

Cory, McLachlin, Iacobucci

and Major, JJ.

October 21, 1993.

Summary:

The accused was charged with possession of a weapon, a rifle, for a purpose dangerous to the public peace, contrary to s. 87 of the Criminal Code and with unlawfully carrying a concealed weapon, contrary to s. 89 of the Code. At trial he was acquitted on the first count, but convicted of concealing a weapon. The accused appealed his conviction.

The British Columbia Court of Appeal, Gibbs, J.A., dissenting, in a decision report­ed 3 B.C.A.C. 241; 7 W.A.C. 241, dismissed the appeal. The accused appealed.

The Supreme Court of Canada, Lamer, C.J.C., Sopinka and McLachlin, JJ., dissent­ing, dismissed the appeal.

Criminal Law - Topic 1123

Weapons - What constitutes a weapon - Section 2 of the Criminal Code defined a "weapon" as anything used or intended for use in causing death or injury to persons whether designed for that purpose or not, anything used or intended for use for the purpose of threatening or intimidating any person and any firearm as defined in s. 84 - It was argued that a firearm was not a weapon as defined by s. 2 unless it was used or intended for use in causing death or bodily injury or for threatening or in­timidating - The Supreme Court of Canada rejected this argument, stating that "a firearm ... is always a weapon" - See paragraphs 12 to 16.

Criminal Law - Topic 1166

Offensive weapons - Carrying concealed weapon - Mens rea - The accused was on his way home from target shooting carry­ing a .22 calibre rifle - He boarded a train, and because he did not want the public to see the gun, he wrapped it in his jacket - He was convicted of carrying a concealed weapon, contrary to s. 89 of the Criminal Code - The Supreme Court of Canada affirmed the conviction - See paragraphs 1 to 42 - The court stated that the mental element requirement of s. 89 was "simply that the accused, knowing the object carried to be a weapon, took steps to hide it from others" - See paragraph 36.

Criminal Law - Topic 1166

Offensive weapons - Carrying concealed weapon - The Supreme Court of Canada discussed the overlap of provincial legisla­tion respecting the transportation and storage of firearms and s. 89 of the federal Criminal Code which prohibited possession of concealed weapons - The court held that it was possible to comply with the provincial restrictions without being in con­flict with s. 89 - See paragraphs 23 to 27, 32.

Criminal Law - Topic 1166

Offensive weapons - Carrying concealed weapon - The Criminal Code, s. 89, pro­hibited possession of concealed weapons - The Storage, Display, Handling and Trans­portation of Certain Firearms Regulations (Can.), enacted under the Criminal Code, provided that a person may transport a firearm in a vehicle that is not attended only if the firearm is unloaded and either locked in the trunk or is not visible from outside the locked vehicle - The Supreme Court of Canada stated that "compliance with this very sensible regulation should not result in a conviction for carrying a concealed weapon. Rather, it should be seen as an exception to the prohibition otherwise in place under s. 89" - See paragraphs 29 to 31.

Criminal Law - Topic 1166

Offensive weapons - Carrying concealed weapon - The Criminal Code, s. 89, pro­hibited the possession of a concealed weapon - The Supreme Court of Canada stated that "a gun which is carried in a gun case will not be considered to be con­cealed. In the vast majority of cases, the gun carrying case will resemble the fire­arm itself so that it cannot be considered to be hidden. Further, wrapping a firearm in a blanket or canvas and securing it with rope as required by some provincial regu­lations should not be considered to be concealing the weapon. Again, in the vast majority of cases the wrapped weapon will still resemble a firearm and will not be considered to be concealed ... " - See paragraph 38.

Criminal Law - Topic 1166

Offensive weapons - Carrying concealed weapon - The Criminal Code, s. 89, pro­hibited the possession of a concealed weapon - The Supreme Court of Canada stated that carrying guns in cases or wrapped as required by provincial regula­tions would not be considered to be con­cealing within the meaning of s. 89 - "Nor should the placing of a firearm in a locked trunk or out of sight in a locked and unat­tended vehicle in compliance with federal regulations be considered to be 'carrying a concealed weapon' so as to infringe s. 89 of the Criminal Code. The regulation and the Code provision must be construed in a manner that avoids conflict and promotes the goals of both provisions" - See para­graph 38.

Criminal Law - Topic 1166

Offensive weapons - Carrying concealed weapon - The Criminal Code, s. 89, pro­hibited the possession of a concealed weapon - The Supreme Court of Canada stated that "... the shotgun which breaks down and is carried in a case that resembles a briefcase should not be con­sidered concealed if the carrying case is clearly marked as a gun case" - See para­graph 39.

Statutes - Topic 1800

Intrinsic aids - Bilingual statutes - Gen­eral - In deciding whether the definition of weapon in the English version of s. 2 of the Criminal Code included a firearm, the Supreme Court of Canada looked to the French version of s. 2 - See paragraphs 15.

Cases Noticed:

R. v. Lemire (1980), 57 C.C.C.(2d) 561 (B.C.C.A.), refd to. [para. 7].

R. v. Formosa (1993), 18 W.C.B.(2d) 318 (Ont. C.A.), refd to. [para. 16].

R. v. Hanabury (1970), 1 C.C.C.(2d) 438 (P.E.I.S.C.), refd to. [para. 18].

R. v. Coughlan (1974), 17 C.C.C.(2d) 430 (Alta. T.D.), refd to. [para. 19].

Bank of Montreal v. Hall, [1990] 1 S.C.R. 121; 104 N.R. 110; 82 Sask.R. 120, refd to. [para. 25].

Multiple Access Limited v. McCutcheon et al, [1982] 2 S.C.R. 161; 44 N.R. 181; 138 D.L.R.(3d) 1; 18 B.L.R. 138, refd to. [para. 25].

Canada (Attorney General) v. Metcalf; Canada (Attorney General) v. Pattison (1981), 30 A.R. 83; 59 C.C.C.(2d) 138 (C.A.), refd to. [para. 26].

Canada (Attorney General) v. Pattison - see Canada (Attorney General) v. Metcalf; Canada (Attorney General) v. Pattison.

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81 (S.C.C.), refd to. [para. 26].

R. v. Chaisson (1982), 39 N.B.R.(2d) 631; 103 A.P.R. 631; 135 D.L.R.(3d) 499, affd. [1984] 1 S.C.R. 266; 56 N.R. 213; 77 N.B.R.(2d) 179; 195 A.P.R. 179, refd to. [para. 26].

R. v. Myran, [1976] 2 S.C.R. 137; 5 N.R. 551, refd to. [para. 26].

R. v. Nova Scotia Pharmaceutical Society (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 47].

Da­vidson v. Slaight Communi­cations Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416, refd to. [para. 47].

Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; 84 N.R. 86, refd to. [para. 47].

Reference Re s. 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 69 B.C.L.R. 145; 36 M.V.R. 240; 18 C.R.R. 30; 24 D.L.R.(4th) 536, refd to. [para. 47].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281; 60 C.R.(3d) 289; 39 C.C.C.(3d) 118, refd to. [para. 47].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 47].

Constitution Act, 1867, sect. 91(27), sect. 92(13), sect. 92(16) [para. 26].

Criminal Code, R.S.C. 1970, sect. 87 [para. 7].

Criminal Code, R.S.C. 1985, c. C-46, sect. 2 [para. 11]; sect. 84(1) [para. 13]; sect. 88 [para. 14]; sect. 89 [para. 11]; sect. 116(1)(g) [para. 30].

Criminal Code Regulations (Can.), Storage, Display, Handling and Transportation of Certain Firearms Regulations, SOR/92-459, sect. 10(2), sect. 12(2), sect. 12(3) [para. 29].

Firearm and Bow Regulations (N.S.) - see Wildlife Act Regulations (N.S.).

Fish and Wildlife Act, S.N.B. 1980, c. F-14.1, sect. 42(2)(c), sect. 42(3)(e), sect. 42(4)(c) [para. 32].

Game and Fish Act, R.S.O. 1990, c. G-1, sect. 22(1) [para. 23].

Storage, Display, Handling and Transpor­ta­tion of Certain Firearms Regulations (Can.) - see Criminal Code Regulations (Can.).

Wildlife Act, R.S.N.S. 1989, c. 504, sect. 80(2)(c), sect. 80(3)(e), sect. 80(4)(c) [para. 32].

Wildlife Act Regulations (N.S.), Firearm and Bow Regulations, Reg. 144/39, sect. 8(4) [para. 24].

Authors and Works Noticed:

Dussault, René and Louis Borgeat, Ad­ministrative Law: A Treatise (2nd. Ed. 1985), vol. 1, p. 409 [para. 30].

Counsel:

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

William F. Ehrcke, for the respondent.

Solicitors of Record:

Peck & Tammen, Vancouver, British Co­lumbia, for the appellant;

Ministry of the Attorney General, Vancouver, British Columbia, for the respondent.

This appeal was heard on April 1, 1993, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci, and Major, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on October 21, 1993, including the following opinions:

Cory, J. (L'Heureux-Dubé, Gonthier, Iacobucci and Major, JJ., concurring) - see paragraphs 1 to 42;

La Forest, J. (partially concurring) - see paragraph 43;

Lamer, C.J.C., dissenting (Sopinka, J., concurring) - see paragraphs 44 to 51;

McLachlin, J., dissenting - see para­graphs 52 to 54.