1993: April 1; 1993: October 21.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Weapons ‑‑ Firearms ‑‑ Whether a firearm always falls within definition of "weapon" in s. 2 of Criminal Code ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 2 "weapon", 84(1) "firearm".

Criminal law ‑‑ Carrying concealed weapon ‑‑ Mens rea ‑‑ Accused boarding public transportation with rifle wrapped in his jacket after afternoon of target shooting ‑‑ Accused concealing rifle because he felt that it was not proper to carry it openly ‑‑ Whether mens rea of offence of carrying concealed weapon established by proof of accused's intention to conceal the object he knew to be a weapon ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 89.

The accused went target shooting with a friend and took a rapid transit train to return home. When he got on the train, his .22 calibre rifle was wrapped in his jacket because he felt that it was not "proper" to carry his rifle openly. Two passengers became alarmed and notified a train employee. When asked by the employee what he had in his jacket, the accused laughingly replied that he was "going on a killing spree". The accused later left the train and boarded a connecting bus, where he was arrested. At the time of the arrest, there was still a clip with one live round in the rifle. The accused was charged with carrying a weapon 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. At trial, he was acquitted on the first count but convicted on the second. The trial judge held that the only intent required to establish the s. 89 offence was that the accused intended to conceal the weapon. The majority of the Court of Appeal upheld the conviction. Two questions must be resolved on this appeal: (1) whether a firearm is a weapon within the meaning of s. 2 of the Code; and (2) what is the requisite mens rea of the offence of "carrying a concealed weapon".

Held (Lamer C.J. and Sopinka and McLachlin JJ. dissenting): The appeal should be dismissed.

Per L'Heureux‑Dubé, Gonthier, Cory, Iacobucci and Major JJ.: The rifle carried by the accused was a firearm under s. 84(1) of the Code and a firearm always falls within the definition of "weapon" in s. 2, regardless of the intention of the person carrying it. A firearm is expressly designed to kill or wound and can be used for purposes of threatening and intimidating. It presents in itself a threat of death or injury to all those in its presence. The concluding words of the definition of "weapon" in s. 2, which refer specifically to firearms as defined in s. 84 of the Code, would be completely redundant if a firearm became a weapon only when used or intended to be used to cause death or injury, or to threaten or intimidate.

The requisite mental element of s. 89 of the Code is established when the Crown proves beyond a reasonable doubt that the accused concealed an object that he knew to be a weapon. In order to prove concealment it must be established that the accused took steps to hide the weapon so that it would not be observed or come to the notice of others. A person who carries a firearm in a case or tightly wrapped in canvas, as required by some provincial regulations on the transportation of firearms for hunting, does not contravene s. 89 of the Code. A firearm carried in that manner generally resembles the firearm itself and cannot be considered to be hidden. As well, the placing of a firearm in a locked trunk or out of sight in a locked and unattended vehicle, in compliance with the federal regulations on the storage, display, handling and transportation of certain firearms, cannot be considered to be "carrying a concealed weapon". Rather, the federal regulations designed to protect the public from the danger of stolen weapons should be seen as an exception to the s. 89 offence. These regulations and s. 89 must be construed in a manner that avoids conflict and promotes the goals of both provisions. The provincial regulations requiring a firearm to be locked in the luggage compartment of a vehicle if the firearm is not encased or wrapped do not conflict with s. 89 so long as the firearm is locked in that compartment in the circumstances outlined in the federal regulations. Finally, a firearm 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 firearm case. Here, the mens rea of the offence was clearly established. The accused, knowing the rifle was a weapon, took steps to hide it from observation by others. His excuse that he concealed his rifle in order to avoid alarming the passengers on the train cannot constitute a defence.

Per La Forest J.: While in general agreement with the majority, no definitive position is taken regarding the interaction between the Criminal Code's prohibition against concealing weapons and regulatory provisions respecting their storage, handling and transportation. It would seem that Parliament simply did not contemplate that compliance with such regulations would constitute concealment.

Per Lamer C.J. and Sopinka J. (dissenting): The accused's rifle was a firearm under s. 84(1) of the Code but a firearm is not necessarily a "weapon" as defined in s. 2. When the definition of the word "weapon" is properly construed, a firearm under s. 84(1) only becomes a weapon if used or intended to be used to cause death or injury, or to threaten or intimidate. The principles of fundamental justice enshrined in the Canadian Charter of Rights and Freedoms support that conclusion. Given that a conviction under s. 89 of the Code would result in a deprivation of the life, liberty or security of the person of the accused, the principles of fundamental justice require a minimum mental state. A morally blameless person, therefore, should not be found guilty of the offence of "carrying a concealed weapon". Since the essential purpose of a firearm is to kill and wound, the concealment of a firearm creates an inference that it is being carried as a "weapon" pursuant to s. 2. The Crown may rely on this inference unless there is some evidence raising a reasonable doubt as to why the firearm is being carried concealed. Here, the rifle was not a "weapon" as defined in ss. 2 and 89. The accused raised the necessary reasonable doubt that the rifle he carried was not used or intended to be used to kill, injure, threaten or intimidate any person.

Per McLachlin J. (dissenting): Lamer C.J.'s reasons were substantially agreed with. A firearm only becomes a weapon, as defined in s. 2 of the Code, if used or intended to be used to cause death or injury, or to threaten or intimidate. It is unnecessary, however, to comment upon the constitutionality of s. 89.