R. v. A.K., (1991) 4 B.C.A.C. 244 (CA)

• Judge: McEachern, C.J.B.C., Wallace, Toy, Proudfoot and Gibbs, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 14, 1991
• Jurisdiction: British Columbia
• Citations: (1991), 4 B.C.A.C. 244 (CA)

R. v. A.K. (1991), 4 B.C.A.C. 244 (CA);

    9 W.A.C. 244

MLB headnote and full text

Regina (respondent) v. A.K. (Y.O.A.) (appellant)

(CA011638)

Indexed As: R. v. A.K.

British Columbia Court of Appeal

McEachern, C.J.B.C., Wallace, Toy, Proudfoot and Gibbs, JJ.A.

October 22, 1991.

Summary:

The accused young offender was charged with unlawful possession of a prohibited weapon, namely, nunchaku sticks (Criminal Code, s. 90(1)). He was acquitted by a Provincial Court judge. The Crown appealed.

The British Columbia Supreme Court allowed the appeal, set aside the acquittal and ordered a new trial. The accused appealed.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 1142

Prohibited weapons - Intent or mens rea - A youth, who was near a bus stop, was searched by police under authority of the Narcotic Control Act - He was found to have a pair of nunchaku sticks concealed inside his jacket - His friend had taught him to use the sticks for exercise and had made the sticks for the youth - The youth was on his way home and did not intend to use the sticks as a weapon - He did not know that the nunchaku sticks were a prohibited weapon - He was acquitted at trial on a charge of possession of a prohibited weapon - The British Columbia Court of Appeal affirmed that the acquittal should be set aside and a new trial ordered.

Criminal Law - Topic 1142

Prohibited weapons - Intent or mens rea - The Criminal Code, s. 90(1), provided that everyone who has in his possession a prohibited weapon is guilty of an offence - The British Columbia Court of Appeal held that the offence created by s. 90(1) required mens rea, consisting of either knowledge or recklessness with respect to the characteristics of the item in question, which, in fact, make it a prohibited weapon - See paragraphs 12, 13.

Criminal Law - Topic 1144

Prohibited weapons - What constitute - The Criminal Code s. 2 defined "weapon" and s. 84(1)(e) defined a "prohibited weapon" as a "weapon of any kind ... that is declared by order of the Governor-in- Council to be a prohibited weapon" - The British Columbia Court of Appeal discussed the relationship between these two provisions - See paragraphs 21 to 33.

Criminal Law - Topic 1144

Prohibited weapons - What constitute - [See first Criminal Law - Topic 1142 ].

Cases Noticed:

R. v. Kilpatrick (1986), 31 C.C.C.(3d) 334 (Ont. Dist. Ct.), refd to. [paras. 11, 17].

R. v. Coleman (1987), 81 A.R. 208; 37 C.C.C.(3d) 569 (Q.B.), refd to. [paras. 11, 17].

R. v. Archer (1983), 6 C.C.C.(3d) 129 (Ont. C.A.), agreed with. [para. 12].

Beaver v. The Queen, [1957] S.C.R. 531, refd to. [para. 14].

R. v. Hess (1949), 94 C.C.C. 48 (B.C.C.A.), refd to. [para. 14].

R. v. Murray (1985), 7 O.A.C. 127; 24 C.C.C.(3d) 568 (C.A.), not folld. [paras. 17-32].

R. v. Provo (1989), 97 N.R. 209; 59 Man.R.(2d) 1; 49 C.C.C.(3d) 417, refd to. [para. 23].

R. v. Ferguson (1985), 10 O.A.C. 5; 20 C.C.C.(3d) 256 (C.A.), refd to. [para. 24].

R. v. Arrance (1971), 46 C.C.C.(2d) 341 (B.C.C.A.), refd to. [para. 27].

R. v. Halvorsen (1979), 46 C.C.C.(2d) 543 (B.C.C.A.), refd to. [para. 28].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 2 [para. 9]; sect. 84(1) [para. 7]; sect. 90(1) [para. 1].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 15 [para. 26].

Counsel:

Simon Buck, for the appellant;

   W.F. Ehrcke, for the respondent.

This appeal was heard in Vancouver, British Columbia, on January 14, 1991, before McEachern, C.J.B.C., Wallace, Toy, Proudfoot and Gibbs, JJ.A., of the British Columbia Court of Appeal. The following decision was delivered by the court on October 22, 1991.