R. v. Korpus (R.), (2000) 189 Sask.R. 256 (CA)

• Judge: Tallis, Cameron and Gerwing, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: March 16, 2000
• Jurisdiction: Saskatchewan
• Citations: (2000), 189 Sask.R. 256 (CA);2000 SKCA 38

R. v. Korpus (R.) (2000), 189 Sask.R. 256 (CA);

    216 W.A.C. 256

MLB headnote and full text

Temp. Cite: [2000] Sask.R. TBEd. MR.097

Raymond Korpus (appellant) v. Her Majesty The Queen (respondent)

(No. 7786; 2000 SKCA 38)

Indexed As: R. v. Korpus (R.)

Saskatchewan Court of Appeal

Tallis, Cameron and Gerwing, JJ.A.

March 16, 2000.

Summary:

The accused gun collector was charged with three counts of possession of prohibited weapons (two machine guns and a large capacity magazine). The accused challenged the issuance of a search warrant to search his home and office. He also argued that the prohibited weapons should not be entered into evidence because of pressure tactics used by police to get him to surrender the weapons.

The Saskatchewan Court of Queen's Bench, in a decision reported at 176 Sask.R. 308, rejected the challenge to the search warrant. The court also held that the police actions were justified, that the surrender of the weapons was voluntary and that admis­sion of the weapons would not offend the accused's Charter rights.

The Saskatchewan Court of Queen's Bench, in a decision reported at 181 Sask.R. 177, convicted the accused. The accused appealed.

The Saskatchewan Court of Appeal dis­missed the appeal.

Civil Rights - Topic 3126.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Onus - [See Crimi­nal Law - Topic 1148 ].

Civil Rights - Topic 4312

Protection against self-incrimination - Statutory defences or exemptions - Whether violation of protection against self-incrimination - [See Criminal Law - Topic 1148 ].

Civil Rights - Topic 4909

Presumption of innocence - Circumstances not infringing presumption - [See Crimi­nal Law - Topic 1148 ].

Civil Rights - Topic 4943

Presumption of innocence - Evidence and proof - Burden of proof in criminal and quasi-criminal cases - [See Criminal Law - Topic 1148 ].

Civil Rights - Topic 4945

Presumption of innocence - Evidence and proof - Reverse onus provisions - [See Criminal Law - Topic 1148 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused gun collector had tried unsuccessfully to register two machine guns as restricted weapons - The machine guns were prohibited weapons and possession of prohibited weapons was a crime - A justice of the peace issued a search warrant to search the accused's home and an office for the purpose of seizing the machine guns - The accused was arrested at the time of the search - The search was not successful and the accused declined to say where the pro­hibited weapons were - The police indi­cated that he would not be released until the weapons were surrendered - The accused arranged for his lawyer to surren­der the weapons - The accused argued that the pressure tactics used by the police offended his Charter rights and the pro­hibited weapons should not be received into evidence - The trial judge held that the police actions were justified, that the surrender of the weapons was voluntary and that admission of the weapons would not offend Korpus's Charter rights - The Saskatchewan Court of Appeal affirmed the decision - See paragraphs 25 to 28.

Criminal Law - Topic 221

Statutory defences or exceptions - Evi­dence and proof of - [See Criminal Law -Topic 1148 ].

Criminal Law - Topic 1122

Offences against public order - Weapons - General - Amnesty order - The accused gun collector was convicted of three counts of possession of prohibited weapons - The accused appealed - He argued that since he tried to register the weapons during the 1992 amnesty, his application should have been accepted and since they should have been registered under the Amnesty Order, he should be exempt from prosecution - The Saskatchewan Court of Appeal rejected the argument - The Amnesty Order did not provide that weapons surren­dered during that period could be regis­tered as of right without regard for regis­tration requirements - A person surrender­ing a prohibited weapon during the amnesty period was exempt from prosecu­tion for its unlawful pos­session - However, the order was not a provision permitting registration of weapons that did not qualify as such - See paragraphs 32 to 35.

Criminal Law - Topic 1139

Offences against public order - Restricted weapons - Registration - [See Criminal Law - Topic 1144 ].

Criminal Law - Topic 1144

Offences against public order - Prohibited weapons - What constitutes - The accused gun collector was convicted of three counts of possession of prohibited weapons - The weapons were prohibited weapons under s. 84(1) of the Criminal Code unless they were registered as restricted weapons before January 1, 1978, and formed part of a gun collection - The accused appealed his convictions - He argued that since he had filed an application for registration as restricted weapons, such application con­sti­tuted a temporary registration certificate that exempted him from prosecution - The Saskatchewan Court of Appeal rejected the argument - The weapons did not qualify for registration as restricted weapons unless the conditions precedent in s. 84(1) were met, i.e., registration before January 1, 1978 - See paragraphs 29 to 31.

Criminal Law - Topic 1148

Offences against public order - Prohibited weapons - Evidence and proof - The accused gun collector was convicted of three counts of possession of prohibited weapons (two machine guns and a large capacity magazine) - The accused appealed, arguing that the Crown was required to prove that the weapons were in fact prohibited weapons within the Crimi­nal Code provisions and that since the machine guns would not be prohibited weapons if they were registered as restricted weapons before January 1, 1978, the Crown was required to prove beyond a reasonable doubt that the guns were not so registered - The Saskatchewan Court of Appeal rejected the argument - It did not offend s. 11(d) of the Charter to require the possessor of a facially prohibited weapon to demonstrate that it was previ­ously registered - Further, the principles of fundamental justice, and in particular the principle against self-incrimination, did not prevent Parliament from requiring an accused to adduce evidence of his exemp­tion from the operation of a law of general application - See paragraphs 8 to 24.

Criminal Law - Topic 3093

Special powers - Issue of search warrants -What constitutes reasonable grounds - The accused gun collector tried unsuccess­fully to register two machine guns as restricted weapons - The machine guns were pro­hibited weapons and possession of pro­hibited weapons was a crime - A jus­tice of the peace issued a search warrant to search the accused's home and an office for the purpose of seizing the machine guns - The accused challenged the issuance of the search warrant - The trial judge rejected the challenge holding that the search war­rant was issued upon rea­sonable grounds - The justice of the peace was informed that there were a series of events, documents and meetings predicated upon the fact that the accused owned the prohibited weapons in question - They had been seen in his possession and he had tried to obtain regis­tration for them - As recently as a few days before the warrant was issued, the accused had raised the question of compen­sation if he was to surrender the weapons -The Saskatchewan Court of Appeal af- firmed the decision - See paragraphs 25 to 28.

Cases Noticed:

R. v. Schwartz, [1988] 2 S.C.R. 443; 88 N.R. 90; 56 Man.R.(2d) 92, appld. [para. 15].

R. v. Oliver, [1943] 2 All E.R. 800 (C.A.), refd to. [para. 16].

Korpus v. Canada (1983), 21 Sask.R. 300 (C.A.), refd to. [para. 23].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, refd to. [para. 26].

R. v. Abell (1979), 3 Sask.R. 181 (C.A.), refd to. [para. 29].

Counsel:

John D. Hardy, for the appellant;

T. Irvine, for the respondent.

This appeal was heard on March 16, 2000, before Tallis, Cameron and Gerwing, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was ren­dered orally on March 16, 2000, and the following written reasons were delivered by Tallis, J.A., on March 23, 2000.