George, Cliff, you have identified important issues. George, although the authorities do try to use the dangerous weapon provisions and, Cliff, although they also try to rely on the concealment provisions of the Code, they shouldn't be able to. Here's why:
Importing and exporting knives is dealt with by sections 103 and 104 of the Criminal Code. Those provisions do not deal with "weapons": they deal with "prohibited weapon", which is a defined term under the Code, which I quoted above. "Any knife commonly known as a 'push-dagger'..." is a prohibited weapon: Order No. 4, para. 9. That regulation goes on to clarify what such a knife is, in terms of its "design", and to specifically exempt the inuit "ulu". Concealment, and dangerousness are irrelevent. That should be that. Of course, it doesn't actually work that way. The other sections of the Code are often mixed in, which they shouldn't be [unless, of course, there is a basis to suspect that you are "aiding" or "abetting" the commision of one of the following criminal offences].
The "dangerous weapon" provision is actually section 88 which prohibits [or more accurately, punishes] "...carr[ying] or possess[ing] a weapon...for a purpose dangerous to the public peace..." Here the law gets more complicated, but it is perfectly clear that there must be proof of an actual purpose in the mind of the accused that is "dangerous to the public peace". Self-defence[yes, there is a case on this], collecting, hunting, customising, heat treating, scrimshawing, sheathmaking, engraving, exhibiting, evaluating,and photographing, can't in any reasonable opinion be considered "dangerous to the public peace". Our Courts have not gone that far[see, for example, R. vs. Sulland], although there is a risk that eventually they might. Therefor, receiving a knife for resale to someone who has one of these proper purposes in mind[or having that as the vendor/recipient's purpose] must also be a proper purpose, not "dangerous" and not an offence. And what relevence does this section have to importing, even assuming a potential violation? Even if an accused has "possession" while a knife is in the possession of UPS or Customs, a point which obviously is questionable, how are the authorities able to divine the purpose of the accused without ever seeing him, or questioning him, or knowing anything about him? All they have in front of them is the knife. Knives don't form purposes or "mens rea"; people do. That's not the NRA:that's a fundamental principle of criminal law. Anyway, although the courts have left open the possibility that under some circumstances the police might be justified in inferring an unlawful purpose with very little inquiry, that has to be a rare or extraordinary case. The mere fact that someone possesses or is shipping a large blade clearly is not inconsistent with the many possible and probable proper and lawful purposes. Moreover, there is a specific provsion which deals with importation. That should be the controlling provision, since it is more specific and therefore must express the intent of Parliament[our congress] with respect to that specific activity.
The provision with regard to concealment is section 90 which penalizes any person who "...carries a weapon...concealed..."
To prove a violation of this section, the Crown must prove, inter alia, that the accused took steps to hide the knife so it would not be noticed or observed. This has no relevence to importation because while the knife is shipped the accused isn't "carrying". It obviously wasn't meant to apply to shipping in boxes and cartons.
Do the police and customs have a legitimate interest at preventing the potential commission of offences at the earliest possible stage so that they should stop all weapons at the border whether or not they are prohibited weapons? Sure, they have a legitimate concern in some cases. But their powers and the rights of civilians are regulated by laws, and the laws balance these law and order concerns with freedom and due process concerns, which is why we have laws, perhaps the most basic of which is the constitutional principle that to restrict freedom you must do so clearly.
The authorities can't confiscate your knives because they think they should. The Criminal Code is the law for them too. Maybe sometime they should read it.
Some men and women in enforcement and customs are great folks who do a great job. Probably many are knife knuts too, although a special place in hell is reserved for those who steal and damage others' property[eternity with nothing but spoons]. But nobody up here is advocating for the knife community. It's a growing problem.
Believe it or not, this is a simplified statement of some of the relevent legal principles. Do not take it as a legal opinion and it is no substitute for consulting a lawyer if you need something more than general information. But, as an old prof of mine used to say, there it is.
[This message has been edited by HJK (edited 26 October 1999).]
