Cite as: R. v. Muise, 1992 NSCO 31 1991 C.Y. No. 6153 IN THE COUNTY COURT OF DISTRICT NUMBER THREE BETWEEN: ROBERT ARNOLD MUISE APPELLANT - and -HER MAJE:STY THE QUEEN RESPONDENT ' HEARD: At Yarmouth, Nova Scotia, on the 26th day of March, A.D. 1992 BEFORE: The Honourable Judge Charles E. Haliburton, J.C.C. CHARGE: Section 90(1) of the Criminal Code DECISION: The 30th day of April, A.D. 1992 COUNSEL: Paul B. Scovil, Esq., for the Appellant Robert M. J. Prince, Esq., for the Respondent D E C I S I 0 N 0 N A P P E A L '
; ' HALIBURTON, J.C.C. The Accused has appealed entered the 23rd of July, 1991, (now retired), on the charge: THAT on or about the 9th day of March, 1991, at or near Yarmouth, in the County of Yarmouth, Scotia, (he) did unlat.~lfully have prohibited weapon, to wit: to Section 90(1) of the Criminal Code. The circumstances which brought Court are a little curious and about 10:15 on the evening in passenger in a motor vehicle which was stopped on the highway. The driver of the vehicle w·as ' R.C.M.P. Constable Bouchard was arresting officer because there vehicle and the arresting officer had determined to have the car towed away and impounded. When Constable "asked" the Accused and the other passenger to alight car. The Accused proved to be immediately placed under arrest place". The Constable testified that he felt obliged to arrest Muise "because he wasn't in no condition just to leave him walk away. He was ... very very intoxicated". before placing him in the police pat-down search and found i.:1 his pocket This knife, according to the evidence, ' by centrifugal force and is, "prohibited weapon" as defined ins. 84(l)(b). his conviction which was by Phillip R. Woolaver, J.P.C. Province of Nova in his possession a a butterfly knife, contrary Mr. Muise before the may be briefly summarized. At question, the Accused was a arrested for impaired driving. called to the scene by the were two passengers in the Bouchard arrived, he from the drunk and, as a result, was "for being drunk in a public As a standard procedure car, the constable did a a "butterfly knife". had a blade which opens therefore, by definition, a
- Under cross-examination, Constable that Muise was not, in the result, charged with being drunk in a public place, but was charged with th~ present offence "because we always go by the most serious offence, weapon". The Crown closed its case witness, and Defence Counsel at the trial evidence of the weapon excluded, arguing that the Charter rights (s. 8) of the Accused had been infringed. arrest of the Accused was invalid and the .search which could be justified only on the basis unreasonable search. He pointed out that the Accused committed no offence until effectively ordered out of the motor vehicle by the police constable. If I having been "ordered" by the offence which caused his arrest, criminally responsible for the discoveries made by the policeman as a consequence. Defence Counsel raised whether or not the knife in question prohibited weapon. After hearing the Crown with relation to the motion, Judge Woolaver gave his decision in the following terms: (Page 24) Thank you. It's my view that what took place was that the Officer was confronted the seizure of a motor vehicle. was within his right to ask any persons in the vehicle to get out of the vehicle. Accused getting out of the vehicle, 2 -Bouchard testified which is prohibited having presented the one sought to have the He argued that the of the arrest, was therefore an follow the argument, it is that police constable to commit the Muise should not be held a second issue relating to had been proven to be a with being present during It's my view that he I'm satisfied that upon the the Officer then
- determined that he was drunk ' dangerous to leave him in the area and in my was ... it was proper from being drunk in the position that out of the vehicle. It's my lawful. It's my view that it's totally reasonable for an officer to search drunken accompanying in a police denied. When the Defence ·called found the Accused guilty, saying: (Page 26) It's my view that the ... the definition of possession is knowledge and control . person of the Accused. He control of that item. It's my square within the definition of a prohibited weapon. find that all the ingredients present, adequately proven beyond a reasonable doubt. ' The sentence he imposed was that the Accused pay a fine of Fifty ($50.00) Dollars. THE ISSUES ON APPEAL Counsel for the Appellant raises the following issues on appeal: 1) Was there a lawful arrest? 2) Was the search of the accused lawful? 3) Entrapment? 4) Should the result of the search evid"3nce? To these issues, there was time of argument, the fifth issue being whether or not it was established that the knife :.n question is a prohibited weapon. 3 and that it would be view, it (sic) him to arrest him for he was after he got view that the arrest was persons who he will be vehicle. The Motion is no evidence, Judge Wool aver This i tern was found on the clearly had knowledge and view that it falls four I of the offence are be admit ted in to added a fifth issue at the
- FINDINGS I will deal first with the question of the "weapon". Counsel have referred the Court to a R. v. Walsh 107 N.S.R. (2d) 9; ( 2d) 81; and Her Majesty The unreported decision ~f R. Brian Gibson, J.P.C., numbered 138283. In the context of these cases, it is argued on behalf of the Accused/Appellant that it was incumbent upon the Crown to prove the subjective intent of the Accused to possess that term is defined in Section 2 greatest deference, I cannot take that meaning from the cases. Section 84(1), subparagraphs (a), specific implements or contrivances "prohibited weapons". Under subparagraph Council is authorized, by executive order, yet unidentified instruments as "prohibited weapon(s)". this latter class of prohibited weapon created by "declaration" which has been the subject matter of the "subjective/objective" test which imports a consideration instrument meets the definition Section 2. I agree with what I understand to be the comments of Clark, D.C.J., when he said Kilpat~ick 31 C.C.C. (2j) 344 (as quo~ed in Roberts): "Parliament has created prohibited weapons under s. 82(1), specific devices, knives characteristics are spelled out ins. 82(1), definition "prohibited weapon", paras. 4 -number of cases including R. v. Roberts (1990) 99 N.S.R. Queen v. Lisa Jean Neveau, an a "weapon" as of the Criminal Code. With (b), (c) and (d) describes which are, by definition, (e), the Governor in to define other as It is of whether or not the of "weapon" as set out in at page 338 339 of R. v. two distinct categories of namely, (i) certain and firearms whose (a), (b), (c) and (d), and
- 5 ( ii), a catch-all category ' comprises a weapon of any kind declared by the order of the Governor in Council to Although declared to be "object" does not become one if it does definition of "weapon" as Criminal Code: see R. v. Murray, supra. The former category consists of absolute prohibitions. The specific mens rea required to find liability flows from mere possession and is set in Archer and Phillips, supra. The evil that paras. designed to suppress was knives or firearms whic:h constitute a particular danger to the public ••• The latter category found in para. It consists of "objects" which must meet the threshold test of "weapon" ••• There is thus no question of a subjective or objective test where an instrument or "weapon" falls squarely within the ' definitions provided in clauses (a), case here. What I have referred to as the fifth ground of appeal, or issue, as raised at the time of argument is without merit. The remaining four issues will be dealt with as one. The concerns raised by the facts practical as legal. There is no suggestion that the police here were acting in bad faith in any way. was apparently totally unar..ticipated. that the police constable, in arresting the Accused, motivated by his cuncern for the safety Accused in his drunken state as he was with enforcing any in this case, the Liquor Control ' suggest that the pat-down search he did was anything other than - found in para. (e) which be prohibited weapons. a prohibited weapon, an not meet the set out in s. 2 of the (a} , ( b} , ( c} and ( d} was the possession of devices, (e) is different. (My emphasis) (b), (c) or (d) as is the in this case are as much The result of the search The evidence suggests was as much and we.:.lbeing of the law, Act. There is nothing to
- 6 a perfunctory compliance with his operating instructions. result of the search, he located real entirely separate and apart from constable which disclosed that the Accused, the car or standing on the specific, and well defined, criminal offence. an act which was prohibited public protection grounds. There is no question Bouchard neither encouraged nor carry the prohibited weapon. charged Muise with "being drunk in a public place", of entrapment might arguably have had some merit, but here, the action of the Police Constable offence committed by the Accused. committing before he encountered the police constable. As a practical matter, have avoided arresting the Accused? the motor vehicle which was about to be not leave him on the street because he place him in his police cruiser without searching him because of his own procedural orders. In Accused, it was, as a practical matter, necessary to arrest him. The Accused clearly was in technical Control Act and was subject to arrest. The search was lawful. The results of the search were properly admitted into evidence. As a evidence which existed the conduct of the police whether sitting in pavement, was in breach of a He was committing on well founded and legitimate of "entrapment". Constable enabled Muise to obtain and If the pol iceman had, in fact, the theory is entirely unrelated to the .. J Indeed, the Accused was how could the police constable He could not leave him in towed away. He could was drunk. He could not order to take control of the breach of the Liquor The arrest was lawful.
- 7 - ' CONCLUDING REMARK While I have no doubt about the guilt of the Accused, nonetheless, the circumstances would make the subject matter of an interesting philosophical prosecution in the circumstances is justified. had the Accused simply faced the charge of public place". Whether or not however, is a matter for the discretion of the prosecutor. charge under this section, if carries with it the possibi.li ty of five years. I presume it was circumstances that the Crown proceeded C., matter and Judge Woolaver, upon conviction, fine. The appeal is, accordingly, conviction and sentence confirmed. DATED at Digby, Nova Scotia, this 30th day of April, A.D. 1992. ~~E?-H~ JUDGE OF ' debate as to whether or not Particularly so "being drunk in a to proceed with any charge, A proceeded with by indictment, imprisonment for a term of a reflection of these unusual with it as a summary imposed a minimal dismissed, and the OF THE COUNTY COURT DISTRICT NUMBER THREE
- 8 -TO: Mrs. Diane Hamilton Clerk of the County Court P.O. Box 188 Yarmouth, Nova Scotia B5A 4B2 Mr. Paul B. Scovil Barrister & Solicitor Nova Scotia Legal Aid P.O. Box 163 Yarmouth, Nova Scotia B5A 4B2 Solicitor for the Appellant Mr. Robert M. J. Prince Crown Attorney Department of Attorney General P.O. Box 550 Yarmouth, Nova Scotia B5A 4B6 Solicitor for the Respondent CASES AND STATUTES CITED: R. v. Walsh 107 N.S.R. (2d) 9 R. v. Roberts (1990) 99 N.S.R. (2d) 81 Her Majesty The Queen v. Lisa Jean Neveau, unreported, No. 138283 R. v. Kilpatrick 31 C.C.C. (3d) 344
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