Common Sense Prevails in R v Eastgaard
Establishing criminal liability requires that there be an actus reus, a mens rea, and that the actus reus and mens rea overlap. Unless the offence makes it clear that an objective standard is intended, a subjective standard of mens reas will be applied, which often involves making inferences about the state of mind of the accused at the time of the actus reus. This can lead to difficulties, especially when knowledge is a required element of the mens rea.
Such was the case in the recently decided Supreme Court case of R v Eastgaard, 2012 SCC 11, in which the SCC upheld the Alberta Court of Appeal’s decision (R v Eastgaard, 2011 ABCA 152) which in turn upheld the trial court decision to convict Mr. Eastgaard for possession of a loaded hand gun under section 95 of the Criminal Code, RSC 1985, c C-46.
Mr. Eastgaard was travelling in a Suburban vehicle which was under police surveillance when he was observed exiting the vehicle by an officer conducting aerial surveillance in a police helicopter. The appellant then approached some bushes and rocks, where he crouched down for 2 to 3 seconds, and then got back into the Suburban and left. After the police stopped the Suburban thirty minutes later, officers returned to the exact spot the appellant had crouched down where they discovered a loaded, prohibited firearm: a handgun.
In a brief judgment, the trial judge arrived at three conclusions allowing him to sustain a conviction under section 95.
- Mr. Eastgaard had placed the firearm under the rock where it was found by the police.
- Mr. Eastgaard had had physical or actual possession of the gun and clearly had a substantial measure of control over it.
- Mr. Eastgaard clearly must have known what the gun was.
Mr. Eastgaard appealed on the grounds that:
(a) the trial judge failed to properly consider that knowledge that the firearm was loaded was an essential element of the offence under s. 95;
(b) the trial judge failed to provide an explanation for the conviction, capable of permitting appellate review; and
(c) the circumstantial evidence was insufficient for a properly instructed jury acting reasonably to find that the appellant knew that the gun was loaded, and therefore the conviction was unreasonable.
The Court of Appeal held that the trial judge’s conclusion that “Mr. Eastgaard clearly must have known what the gun was” was an implicit, albeit ambiguous, finding that Mr. Eastgaard knew the gun was loaded, as this was the element in contention at trial, not whether Mr. Eastgaard knew that the firearm was indeed a firearm. On this basis, they were able to dismiss the first two grounds of appeal. The true issue on appeal, therefore, was whether the Crown proved that the appellant knew that the firearm which he abandoned was loaded.
When knowledge is an element of mens rea, the Crown must prove beyond a reasonable doubt that the accused knew, or was wilfully blind to, some requisite fact(s). In the case of section 95 this requires proving that the accused knew that, or was wilfully blind to the fact that, the firearm was loaded.
Proving a positive state of mind such as knowledge in an arena where the accused need not testify creates some obvious difficulties. As a result, knowledge can be inferred from the circumstances if that is the only reasonable inference to be drawn from the evidence.
The Court of Appeal was split 2-1 on the decision, with the dissenting judge disagreeing that the only reasonable inference which could be drawn from the evidence in this case was that the appellant knew the firearm he hid was loaded. The dissenting judge proposed a variety of scenarios which could have played out in which the accused had no such knowledge.
The Supreme Court, however, upheld the majority decision with a two-sentence decision:
Despite the very complete and able argument of counsel for the appellant, we agree with the majority of the Court of Appeal that the verdict was not unreasonable. The appeal accordingly is dismissed.
Subjective mens rea is an important element of most criminal offences, and is even a constitutionally entrenched requirement for many offences. In this case, however, the SCC and the Alberta Court of Appeal may have recognized the difficulty that proof of subjective mens rea can impose on the Crown. A common sense inference, such as that made by the trial judge in this case, is based on the premise that a sane and sober person can usually be taken to intend the natural and probably consequences of his or her actions. Proving positive states of mind such as intent and knowledge as an element of mens rea frequently rely on such inferences. In this case, the majority of the Alberta Court of Appeal held that the circumstances only pointed to one possible conclusion: that Mr. Eastgaard knew the gun was loaded. This is a strict test which does not readily lead to convictions, which may be a reflection of the hefty mandatory minimum (three years for a first offence) associated with this offense. However, the SCC was convinced it had been met in this case.