R. v. Gagnon (R.J.), (1993) 85 Man.R.(2d) 194 (CA)

• Judge: Huband, Philp and Lyon, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 03, 1993
• Jurisdiction: Manitoba
• Citations: (1993), 85 Man.R.(2d) 194 (CA)

R. v. Gagnon (R.J.) (1993), 85 Man.R.(2d) 194 (CA);

    41 W.A.C. 194

MLB headnote and full text

Her Majesty The Queen (respondent) v. Randall James Gagnon (accused/appellant)

(Suit No. A.R. 92-30-00855)

Indexed As: R. v. Gagnon (R.J.)

Manitoba Court of Appeal

Huband, Philp and Lyon, JJ.A.

May 3, 1993.

Summary:

The accused was convicted of possession of instruments suitable for breaking into any place contrary to s. 351(1) of the Criminal Code and was sentenced to 16 months' imprisonment, consecutive to time being served. The accused appealed against con­viction and sentence.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 1789

Offences against property - Possession of housebreaking instruments - Evidence and proof - The accused was charged with possession of an instrument (screwdriver) suitable for breaking into any place (Crim­inal Code, s. 351(1)) - The accused claimed the Crown failed to call direct evidence to prove the screwdriver was capable of being used as a housebreaking instrument - The Manitoba Court of Appeal stated that in the absence of direct evidence the trial judge may determine the nature of the "neutral tool" in accordance with knowledge commonly possessed by the community - The trial judge did not err in determining that a flat head screw­driver was an instrument capable of being used for housebreaking - See paragraphs 1 to 24.

Criminal Law - Topic 5870

Sentence - Possession of housebreaking tools - The 23 year old accused was con­victed of possession of housebreaking tools (screwdriver) - He had a "horrendous" adult criminal record since 1987, including nine convictions for break and enter - He was on parole and probation at the time of the offence - The trial judge sentenced the accused to 16 months' imprisonment, consecutive to time being served - The Manitoba Court of Appeal dismissed the accused's sentence appeal - The accused was not deserving of leniency and repre­sented an on-going threat as a predator on society - See paragraphs 25 to 27.

Cases Noticed:

R. v. Holmes, [1988] 1 S.C.R. 914; 85 N.R. 21; 27 O.A.C. 321, refd to. [para. 10].

R. v. Kozak (1975), 30 C.R.N.S. 7 (Ont. C.A.), refd to. [para. 14].

R. v. Smith (1957), 27 C.R. 359 (Nfld. C.A.), refd to. [para. 15].

R. v. Robert, [1969] 3 C.C.C. 165 (B.C.C.A.), refd to. [para. 16].

R. v. Ross (1965), 47 C.R. 283 (B.C.C.A.), refd to. [para. 19].

R. v. Paterson (1980), 5 Sask.R. 283 (Prov. Ct.), refd to. [para. 20].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 351(1) [para. 12].

Counsel:

M.D. Glazer, for the appellant;

G.A. Lawlor, for the respondent.

This appeal was heard on December 11, 1992, before Huband, Philp and Lyon, JJ.A., of the Manitoba Court of Appeal.

On May 3, 1993, Lyon, J.A., delivered the following decision for the Court of Appeal.