Décision

[1]                The accused, Ephraim Philip KONIGSBERG stands trial before me on the following charge:

On or about 18 February 2008, while at an aerodrome, made a false declaration to the effect that he was carrying a weapon, to wit: a firearm, contrary to section 13a) of the Canadian Aviation Security Regulations, SOR/2000-111, committing thereby an offence punishable on summary conviction pursuant to Section 7.3(3) of the Aeronautics Act, R.S.C. 1985, c. A-2.

The issue to be resolved:

[2]                The primary issue to be resolved in this judgment is to decide whether or not the alleged false statement made by the Accused, while at Montreal-Trudeau Airport, to the effect that he was carrying a weapon, constitutes an offence contrary to Section 13 of the Aviation Security Regulations, even if, according to the Accused, he immediately retracted the statement.

[3]                This is the primary issue to be resolved because on top of his defence on the merits of the case, the Accused has made a motion to have the proceedings stayed because of the violation of his constitutional rights by the customs officers.

[4]                As is often done in such a situation, the parties have agreed to proceed on the merits of the case, and, should I decide that the prosecution has proven its case against the Accused beyond a reasonable doubt, they have also agreed to verse as part of the evidence on the motion for staying the proceedings, the evidence presented on the merits.

The evidence:

[5]                The evidence can be summarized as follows. At this stage, I will only refer to the evidence that is relevant to the guilt or innocence of the Accused. The evidence that is solely relevant to the motion for staying the proceedings is not to be taken into account on the merits, since it is not relevant to the issue I now need to decide.

[6]                Upon returning from a trip in Florida and after his flight landed at Montreal-Trudeau Airport, the Accused, much to his dismay and displeasure, is referred to the customs secondary counter by the customs officer who welcomes him in Canada at the primary counter. This decision by the customs officer is not well received by the Accused and he makes sure to show his disagreement with the decision. As the events will show, he would not be an easy customer for the officers who would have to deal with him at customs.

[7]                Upon entering the secondary area, the Accused is immediately noticeable. He immediately starts swearing and shouting, and shows abuse towards the officers.

[8]                The Accused is then called to the counter occupied by customs officer Villamagna. The Accused keeps using verbal abuse towards officer Villamagna. He is angry and inquires as to the reason why he was referred to the secondary.

[9]                Villamagna then asks the Accused to put the golf bag he is carrying on the counter so that it could be searched. Before doing so, Villamagna asks the Accused if the golf bag contains any kind of sharp object that can be harmful to him. The Accused answers no. Villamagna then proceeds to search the bag and gives it back to the Accused, who throws it against a mirror situated in the area.

[10]            Villamagna then asks the Accused for his second piece of luggage. As an answer to Villamagna's request, the Accused throws his luggage on the counter. Again, Villamagna inquires as to the presence of sharp objects inside the luggage. Obviously, the Accused is not pleased with being asked the same question again. 

[11]            It is then that, according to Villamagna, the Accused declares that he has a sub-machine gun and 150 rounds of ammunition. Villamagna adds that the Accused did not retract his declaration and has no mention of that fact in his notes.

[12]            At that point, given the declaration made by the Accused, Villamagna puts his hand on the bag, directs the Accused to step back and away from the bag, and calls in his supervisor. Officer Plourde then arrives and Villamagna tells Plourde what the Accused had just said. Plourde asks the Accused if this is what he has just said. The Accused answers yes. Plourde then asks the Accused to turn around and land down on the floor with his arms against his body. Villamagna handcuffs the Accused, advises him that he is being detained for obstruction, and tells him he would read him his rights later in a more secure area.

[13]            Villamagna then proceeds to frisk search the Accused, to no avail. A subsequent search of the Accused luggage also proves to be negative. No sub-machine gun or pieces of ammunition would be found in possession of the Accused. This the case for the prosecution.

[14]            The Accused testified before me. He did not attempt to contradict the testimony of the officers as to his bad temper and bad behaviour while at customs. He readily admitted that he behaved in a terrible manner.

[15]            The Accused then testified to the effect that on the day of the incidents, he was arriving from Fort Lauderdale, after a two-week stay, where he went to play golf and attend the Daytona 500.

[16]            In his testimony, the Accused then explains that on the eve of his return, he asked the hotel employees to wake him up the next morning so that he could travel to Fort Lauderdale and take his return flight to Montreal. Apparently, he is not waken up. Accordingly, he just makes it to the airport to take his return flight. On the way to the Fort Lauderdale Airport, he only has a coffee and an energetic drink.

[17]            Upon arriving at the Airport, he registers his luggage, and goes to the boarding gate where he is told that there are fifteen minutes left before take off. He then goes to the bar and buys a sandwich and a drink called a Miami Hurricane, a 12 ounce drink, containing at least four and a half ounces of rhum, 40% proof. He then goes back to the gate. According to the Accused, his drink did not really taste alcohol. On the contrary, he felt it tasted more like Kool-Aid. As already said, he later learned that indeed, there was much rhum in a Miami Hurricane.

[18]            The Accused then explains that while on board, he fainted and that a flight attendant had to revive him before take off.

[19]            During the flight, he went to the restrooms and fainted again. He was found there, and had to be revived again. He said that during the whole flight, he was in a bizarre state of mind, and that he was not in his normal state of mind.

[20]            At customs, he had to wait for his golf bag for about ten minutes, and this is when he became "angry drunk". After retrieving his golf bag, he then proceeded to customs, where he was referred to the secondary customs. He then told himself "asshole". A customs officer asked him to repeat the word, which he did a number of times.

[21]            The Accused readily admits having poured out his anger on his golf bag.

[22]            He adds that when officer Villamagna asked him the "famous" question as to the sharp objects that could be in his golf bag, and asked the same question before searching each piece of luggage, he then became sarcastic towards the officer. He also explains that he could not control his mouth anymore, that he was drunk.

[23]            According to the Accused, he then lost it and told the officer: "You know what? I have a machine gun and ammunition." He could not remember in his testimony how many pieces of ammunition he then referred to.

[24]            He says that he immediately retracted his declaration, and told the officer that he was sorry and that he did not mean to say that. He says he immediately ceased to be sarcastic. He was then advised that he was being detained for obstruction.

[25]            In cross-examination, the Accused stated that the words he uttered "just came out like that", that he was not able to connect his mouth to his brain. In the state of intoxication he was in. He was "possessed". On the other hand, he also stated in his testimony that everything was clear in his head as to what was happening, but that he could not control himself.

[26]            In summary, he admits having made the declaration to officer Villamagna, but says that he immediately retracted the declaration.

Position of the Accused:

[27]            The Accused position is two-fold on the merits.

[28]            First, the Accused argues that he did not pretend, "il n'a pas prétendu au sens du Règlement". The Accused argues that the French version of the Regulation uses the word "en prétendant" and that in the circumstances, he did not make his false statement "en prétendant avoir en sa possession une arme". Interestingly, the English version of the same Regulation does not use such word, but simply refers to "making a false declaration".

[29]            Secondly, the Accused argues that his state of mind was such that he did not have the mens rea required by the Regulation. He says he did make the declaration but immediately retracted what he had just said.

Position of the Crown:

[30]            The position of the prosecution is that a declaration such as the declaration made by the Accused is unacceptable within an airport, that within the confines of an airport, every threat must be taken seriously, and that behaviour such as the one of the Accused causes a direct prejudice in the operation of an airport.

[31]            The prosecution further argues that the fact that the Accused retracted his declaration does not alter his responsibility.

Analysis:

[32]            At this stage, since I have contradictory versions on the fact that the Accused retracted his declaration or not, but since I have no reason not to believe the Accused on that part of his testimony, I am ready to give him the benefit of the doubt on that specific issue and I do accept his testimony to the effect that he did retract the false declaration he made to the customs officer, and, as he stated in his own testimony, that he did not mean to say that.

[33]            On the other hand, the evidence clearly shows that the Accused did make the declaration. He himself admits having told to the officer that he did not mean to make the said declaration.

[34]            As to the first argument put forward by the Accused, i.e. the fact that he did not "pretend" having a firearm in his possession, when adopting the sense to be given to the French word "prétendre". According to the Accused, the word "prétendre" in French means more than simply making a false declaration, as those words are used in the English version. According to the Accused, the word "prétendre" in French is defined as "affirmer avec force". Given the discrepancy, the French version should be preferred.

[35]            I do not agree with the Accused. The two versions of the Section are not irreconcilable and do not show a discrepancy between each other. As pointed out in Le Petit Robert, the word "prétendre" not only means "affirmer avec force" but also means "déclarer" which is akin to the words used in the English version of the Section. Since no discrepancy has been shown between the two versions, the principles of interpretation of a bilingual text proposed by the Supreme Court of Canada in R v. Daoust [2004] 1 S.C.R. 217 do not apply. The usual principles of statutory interpretation should therefore be followed.

[36]            In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 R.C.S. 27 , the Supreme Court wrote as follows (par.21):

Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely.  He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone.  At p. 87 he states:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[37]            It is apparent to me that the scheme, the object and the intent of the drafters of the Canadian Aviation Safety Regulations is to prohibit any kind of false declaration relating to the possession of a weapon when made within an airport, and wherever the declaration is made within the airport, be it in the area of the airport accessible to the general public, at the security check-in areas, during the boarding process, while on board of an aircraft, or when at the customs counters, as in this case.

[38]            It cannot be required that the violator "affirme avec force" that he/she has a weapon in his/her possession to contravene Section 13a) of the Regulations. As stated before, this does not correspond with the clear intent shown by the words used in the Section and would defeat the very purpose of the Section and of the Regulations. An airport is a location where it cannot be tolerated that a person make a false declaration as to the possession of a weapon, whether it is made jokingly, or whether the violator did not mean to utter the words he/she did. And it is so for obvious reasons.

[39]            As Masse Prov. Div. J. stated in R. v. Rinkenbach, [1991] O.J. No. 272:

[…] in so far as we are concerned, the Air Carriers Security Regulations have as their purpose the general safety of the public making use of airports and civil air carriers. In particular, the regulations are intended to prevent a number of things, first of all, the transportation of weapons, explosives or incendiary devices on board of aircrafts.

  The regulations are also meant to prevent the actual threat of weapons, explosives, or incendiaries in airports and on aircrafts - certainly the danger there need not even be stated, it's so obvious. The regulations also have as their purpose the prevention of false threats or false alarms with respect to weapons, explosives, or incendiary devices in airports and on aircraft.

  The danger there obviously, is that unless security personnel are absolutely certain as to the falsehood of any statement or declaration with respect to such items, then there is the obvious danger that a bomb, a weapon, or an explosive could find its way onto an aircraft with potentially disastrous results. We need only read the newspapers almost on a daily basis in order to confirm this. So security people can't take any chances. Even something that is stated in a joking manner must be fully investigated. And the reason for this, of course, is or the greater public good.

  Now, the evil to be met or the mischief to be controlled by the Air Security Regulations, as I have indicated, is obvious. I don't think anybody would over dispute the necessity of safe air travel and safe public conditions in an airport.

[40]            Therefore, the first argument raised by the Accused cannot succeed.

[41]            The second argument raised by the Accused is that the prosecution did not show he had the culpable intent required to be found guilty. The Accused states that he made the declaration in a moment of impatience, that his mind was altered, and that he was drunk. Furthermore, the Accused also states that the words he uttered just came out of his mouth "like that", and that he was not able to connect his mouth to his brain, According to the Accused, he was "possessed". He states that everything was clear in his head as to what was happening, but that he could not control himself. Furthermore, the fact that he did retract the declaration made to the customs officer, or, as he stated in his own testimony, that he told the officer that he did not mean to say that, negates any kind of blameworthy intent.

[42]            Again, as stated again in Rickenbach:

the actus reus which must be proven where a person makes such a declaration is that a declaration was made that was false in the circumstances indicated in the section. The mens rea from looking at the plain wording of the section is only an intent to make that declaration publicly and openly with the knowledge that it is false.

 I conclude that this offence is a full mens rea offence. However, the mens rea does not extend to an intent that others rely on a false statement of the declaration. It is sufficient only to intend to make the declaration knowing that it is false. If it was intended that the mens rea would include another intention to deceive or an intention to have people rely on the false declaration, then the legislation would have specifically said so.

[43]            I do not believe the Accused when he states that he could not control his mouth anymore, that the words he uttered just came out of his mouth "like that", and that he was not able to connect his mouth to his brain, and that he was "possessed". In his testimony, the Accused himself states that everything was clear in his head as to what was happening.

[44]            Furthermore, according to the Accused, he immediately told officer Villamagna that he was sorry, and that he did not mean to say what he had just said. In those circumstances, he must have known what he had just said.

[45]            Indeed, at that very moment, probably realizing the trouble he had just put himself in, he immediately ceased to be sarcastic (according to the Accused), and again, he told the officer he did not mean to say what he had just said. This is not the sign of an altered mind. It is the mind of someone who states a false declaration, be it in a moment of impatience or otherwise, who realizes what he has just said, and that he might be in big trouble.

[46]            I therefore conclude that the Accused made a false declaration publicly and openly with the knowledge that it was false. The fact that the Accused retracted his declaration has no bearing on his criminal responsibility. In Rickenbach, Masse J. made those comments when faced with a "joke defence":

The fact that Lynda Rinkenbach was joking is no defence because even false alarms or jokes are meant to be prevented by Section 23(b). The evil or mischief that was meant to be avoided by Section 23(b) also includes a prank, a false alarm, or a joke since even a prank can lead to disastrous consequences.

For instance, a bomb hoax in a busy airport can lead to panic, it can lead to great public inconvenience because the airport would have to be cleared, flights can be delayed, and it would lead to great public expense when people such as peace officers who are charged with the duty of disarming a bomb are called to the scene for no reason whatsoever. It's a prank, but still the consequences can be serious.

Therefore, the fact that a person who makes a joke and did not intend any consequences to follow is no defence to this charge. I find that Lynda Rinkenbach, therefore, has made a declaration as that term is used. This declaration was false. She knew it was false. She and Mr. McGuire were in the process of going through screening device with the intention of boarding and therefore she is guilty of the offence charged.

[47]            The same comments can be made in a case like this one, when the violator retracts his declaration and regrets what he has just said. I therefore conclude that the Crown has proven all essential ingredients of the offence beyond a reasonable doubt.

[48]            Given the motion for stay of the proceedings presented by the Accused, this will be my only conclusion for the moment.