



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gallagher, 2017 ONCA 791

DATE: 20171017

DOCKET: C62633

van Rensburg, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Gallagher

Appellant

Dan Stein appearing as duty counsel

Jessica Smith Joy, for the respondent

Heard: October 2, 2017

On appeal from the conviction entered on August 5, 2016
    by Justice Kim Carpenter-Gunn of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

The appellant challenges his conviction on a
    charge of carrying a concealed weapon, a hunting knife, contrary to s. 90 of
    the
Criminal Code
.

[2]

Duty counsel advances three arguments on behalf
    of the appellant:

1.

The verdict was unreasonable.

2.

The trial judge failed to adequately warn the
    jury about the dangers associated with circumstantial evidence.

3.

The trial judge erred in answering a question
    from the jury about concealment.

[3]

The accused was stopped by police and arrested
    for an unrelated matter.  Police searched his pickup truck, incident to arrest,
    and found a hunting knife under the front bench seat of the truck, between the
    passenger and driver areas.  It appears that about 2 cm. of the handle of the
    knife protruded from under the seat area.

[4]

The key issues at trial were as follows:

1.

Did the appellant have the knife under his care
    and control in his truck?

2.

Did the appellant intend to use the knife to
    kill, hurt, threaten or intimidate another person, thereby qualifying the knife
    as a weapon as defined in the
Criminal Code
?

3.

Did the appellant conceal the knife so that
    others could not see it?

[5]

Duty counsel acknowledges that the trial judge
    correctly charged the jury as to the elements of the offence. We agree.

[6]

The Crown relied on the following to support its
    theory that the knife was a weapon:

1.

The knife was hidden under the front seat, but within easy reach of
    the appellant driver, with the handle facing towards the front.

2.

It was not found in a tool box or with other tools, but was loose in
    the otherwise tidy drivers area.

3.

The blade of the knife was large, more than what was reasonably
    required for stripping wire. The entire knife was almost a foot long.

4.

The knife was unsheathed.

[7]

The appellant testified and said that the knife produced
    by police was not the same knife he had. He said others sometimes drove his
    truck. He said the similar knife he had, had been given to him by his
    girlfriend and that he used it to strip wire. He argued that there was no
    evidence he intended to use the knife as a weapon, and that as the knife was
    protruding out from under the drivers seat, it was not concealed.

[8]

We do not accept the arguments advanced on
    behalf of the appellant. We cannot say that
the verdict is
    one that a properly instructed jury acting judicially could not reasonably have
    rendered. See
R. v. Biniaris
,
    2000 SCC 15
.


[9]

The trial judge gave the jury the usual
    instructions identifying circumstantial evidence and warned the jury that it
    had to conclude that guilt was the only reasonable conclusion that could be
    drawn on the whole of the evidence. He reminded the jury of the Crowns
    obligation to prove guilt beyond a reasonable doubt. Nothing more was required
    in this case.

[10]

The jury had a question after beginning deliberations,

For the purpose of determining if a weapon was
    concealed, are we to determine if the weapon as a whole was concealed, or if
    only the part defining it as a weapon was concealed?

[11]

The trial judge responded after hearing from
    counsel,

The second element of this offence, concealment
    is satisfied if a weapon is concealed
to prevent
    others from knowing that the accused is carrying a weapon
. For example, you may conclude that if only a small portion of a
    weapon is visible such that a person could not tell it is a weapon, it is
    concealed. Ultimately, whether the knife, in this matter was concealed in this
    way is for you to decide. (emphasis added)

[12]

Duty counsel submits that this answer did not
    adequately alert the jury to the need to consider the appellants state of
    mind, and that the jury should have been instructed to consider whether the
    appellant took steps to hide the weapon so that it would not be seen by others.
    (See
R. v. Felawka
,
[1993]
    4 S.C.R. 199
).

[13]

This instruction was implicit in the answer
    given to the jurys question, and explicitly dealt with in the jury charge
    itself where the trial judge told the jury to consider, when dealing with the
    mental state for concealment, did John Gallagher take any steps to hide the
    weapon so that others would not or could not see it. The trial judge correctly
    instructed the jury about all of the essential elements of the offence.

[14]

The appellant himself raises other grounds of
    appeal, relying on evidence which is not before us. These include arguments
    about delay, violation of s. 8
Charter
rights,
    and an argument about a refusal to hear pretrial motions brought on his behalf.
    The endorsements on the indictment indicate that pretrial motions were not
    served within the time limits set by the pretrial judge, that there was an
    order debarring the appellant from advancing those motions, and that he did
    not take advantage of a later opportunity to attempt to set aside that order to
    allow him to bring the motions. We are not persuaded that there was any
    miscarriage of justice requiring intervention by this court.

[15]

Accordingly, the appeal is dismissed. The
    appellant did not pursue the sentence appeal.

K. van Rensburg J.A.

G. Pardu J.A.

Fairburn J.A.


