Kerr was an inmate and worker in a prison. Another inmate who was a member of the "Indian Posse" gang threatened him. For this reason he carried a sharpened weapon to work the next day. There was a fight between the two people and while both parties were stabbed multiple time, the wounds inflicted on the gang member resulted in his death. Kerr was charged with second-degree murder, and "possession of a weapon for a purpose dangerous to the public peace" under s.88. The trial judge found Kerr not guilty on both charges; on appeal he was found guilty of the possession charge which he appealled to the Supreme Court.
- Is a defensive purpose a "purpose dangerous to the public peace" pursuant to s.88 of the Code?
Appeal allowed, conviction quashed.
Major and Bastarache write that the Crown must prove two things in order for a conviction on this charge:
- that the accused possessed the weapon, and
- that the purpose of the possession was one dangerous to the public peace.
There is no problem proving the first requirement. They also state that to prove the second step they must prove that the purpose of the possession was objectively a threat to the public. In order to do this they must determine what his purpose is (self defence) and then objectively determine if this is a danger to the public peace. They find that his purpose was, in consideration of all the circumstances, not a threat to the public peace. They make it clear that he would have been convicted if his purpose were objectively deemed to have threatened the public, despite his subjective view of the purpose.
LeBel and Arbour agreed with the allowing of the appeal and entering an acquittal, however they disagree with the test. They say that the purpose must be determined wholly subjectively. This is because it is a common law presumption that no one will be convicted without a subjective mens rea unless the legislature has included specific wording in the legislation. They state that the correct interpretation of s.88 is that in order to be convicted, the defendant’s subjective purpose must be seen as a threat to the public.
Fish and Deschamps also agreed with allowing the appeal, but as a result of the Court of Appeal erroneously substituting their own interpretation of the evidence in place of that of the trial judges.
Binnie dissented on the facts, stating that the trial judge had found a double purpose for Kerr holding the weapons; one, for self-defence and two, as "part of his usual practice". This second reason, in Binnie's judgment, was sufficient for a conviction under s.88.
- A "purpose" must objectively be deemed to be contrary to the specific prohibition mentioned in legislation in order for a conviction.
- Although the defendant's subjective purpose is important, they can be convicted if the objective purpose is deemed to be contrary to the prohibition despite their subjective point of view.