Her Majesty the Queen - v. -, 2011 SKPC 14

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 014 Date: January 13, 2011 Information: 24164524 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jason Paulsen (No. 2) Appearing: Inez J. Cardinal , Q.C. For the Crown Peter A. Abrametz For the Accused JUDGMENT F.M.A.L. DAUNT , J [ 1 ] Jason Paulsen stands charged on Information 24164524 that he did, on or about September 25 th , 2009, at/near La Ronge, SK: Count #4 Without lawful authority, carry a loaded firearm in or on a vehicle to wit: a Remington 7 Millimeter Magnum rifle, contrary to

Section 40(

a) of the Wildlife Act , 1998.

Count # 5 Possess a firearm without lawful authority to wit: a Remington 7 Millimeter Magnum rifle, contrary to Section 91(1) (

a) of the Criminal Code of Canada. Count # 6 Possess a firearm without a lawful registration certificate for that firearm to wit: a Remington 7 Millimeter Magnum rifle, contrary to Section 91(1) (

b) of the Criminal Code of Canada . Count # 7 Possess a firearm without lawful authority in a vehicle to wit: a Remington 7 Millimeter Magnum rifle, contrary to Section 94(1) of the Criminal Code of Canada . Evidence [ 2 ] Between September 20 th and 25 th , 2009, Jason Paulsen went fishing with his sister Nicole and three boys, all under the age of 10. Two undercover conservation officers, known only as PR133 and PR136, observed him angling at Waterbury Lake in northern Saskatchewan at this time. They chatted. PR133 testified: We talked about – got on the topic of moose hunting. Mr.

Paulsen said that he had a gun with him, or a rifle, in case a moose – in case he did see a moose. He made a comment that he didn’t want to shoot the moose on land because it was too much work to get the moose out of the bush into the boat basically by himself. So there was a gun case, when he – he pointed to the back of the boat where there was a gun case and he told us that he did have a rifle with him. [ 3 ] On September 25 th , Mr. Paulsen and his family packed up their belongings and began their long journey back from Waterbury Lake to Prince Albert. Mr.

Paulsen was driving, and the truck was registered to his business, Paulsen & Son Excavating. As they neared La Ronge, they were stopped by local conservation officers armed with a search warrant. At the local Saskatchewan Environment compound, the vehicle and boat were searched and numerous items seized. In plain view in the back seat area were two soft-sided gun cases. There was a third firearm un-encased, lying on the floor. Officer Keast opened one case. Inside was a Remington 7mm rifle, bolt action. He opened the bolt and observed shells in the clip that was inserted into the firearm.

There was no round in the chamber. The other two firearms were not loaded. The Remington was seized, but the other two firearms were returned to Mr. Paulsen at the conclusion of the search. Also seized during the search was a hunting licence issued to Jason Paulsen, including moose and game bird endorsements. A check of the Canadian Firearms Information System revealed no record of a licence to possess a firearm issued to Jason Paulsen. Arguments [ 4 ] The Crown argues that all of the elements of each offence have been proven.

The evidence that the accused was planning to hunt moose combined with the evidence that the rifle was found in the vehicle that he was driving is sufficient to establish possession beyond a reasonable doubt. If any exception or exemption operates in Mr. Paulsen’s favour, the burden is on him to establish it, pursuant to s. 794 of the Criminal Code . Regarding the Wildlife Act charge, s. 40 combined with s. 15 of the Regulations shows that Mr.

Paulsen is deemed to “carry” the firearm and it is deemed to be “loaded.” The Crown acknowledges that there was an amnesty in place on Sept. 25, 2009, but argues that it does not apply to Mr. Paulsen in these circumstances. The Amnesty applies only to those non-compliant gun owners who are taking steps to comply with the licensing requirements of the Firearms Act . It does not operate as a blanket exemption to the requirement that gun owners register their firearms and obtain licences to possess them. [ 5 ] Defence argues that the Amnesty was in place at the relevant time, and that is a bar to prosecuting Mr.

Paulsen for the offences under the Criminal Code . Further, the Crown has not proven possession, as there were two adults in the vehicle, and two of the

firearms were returned to the occupants, notwithstanding the lack of a licence. Further, defence argues that s. 794 does not apply here, as it only applies to

summary conviction offences. There is no equivalent

section dealing with indictable matters. The Criminal Code offences were deemed indictable until the Crown elected to proceed by

summary conviction. There was an oversight, and that election was not made until after the trial commenced and some evidence had been taken. Therefore, defence argues, the onus remains on the Crown to prove that Nicole, the other adult in the vehicle, had no licence to possess the firearm, and that the firearm was not registered, and that Mr. Paulsen was not otherwise exempt from registration and licensing requirements. Analysis I

Section 40 Wildlife Act [ 6 ] This is provincial legislation. The elements of the offence and relevant

definitions differ from the Criminal Code charges, so I will consider them separately. As well, the federal Amnesty does not apply to this charge. It applies only to proceedings and offences under

Part III of the Criminal Code . ( s. 117.14 Criminal Code ) [ 7 ]

Section 40(

a) of the Wildlife Act , 1998, states that “no person shall, at any time, except as authorized by the minister … carry a loaded firearm in or on a vehicle or while on horseback.”

Section 15 of the Wildlife Regulations, 1981 states that: For the purposes of

section 40 of the Act : (

a) a person is deemed to be carrying a firearm in or on a vehicle or while on horseback if the firearm is in the vehicle or on the horse, as the case may be, or in physical contact with the person; (

b) a firearm in contact with a magazine containing loaded shells or cartridges is deemed to be loaded; and (

c) swing or hinge magazines are deemed to be a part of a firearm unless they are completely removed from the firearm. [ 8 ] In this case, the firearm was in the vehicle. The firearm was in contact with a magazine containing loaded shells or cartridges. Mr. Paulsen was in control of the vehicle. He owned the vehicle and he was driving it. I therefore find beyond a reasonable doubt that did carry a loaded firearm in a vehicle, contrary to

section 40(

a) of the Wildlife Act , 1998. I also find, as alleged in the Information, that the firearm was a Remington 7 Millimetre Magnum rifle, and that Mr. Paulsen carried it without lawful authority. II

Section 794: Reverse Onus [ 9 ]

Section 794 of the Criminal Code states:

(1) No exception, exemption, proviso, excuse or qualification prescribed by law is required to be set out or negatived, as the case may be, in an information.

(2) The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information. [ 10 ]

Section 794 is found in

Part XXVII of the Criminal Code , which applies to

summary conviction matters. Counsel for Mr. Paulsen argues that, because no Crown election was entered until evidence had already been taken,

section 794 does not apply to these

proceedings. I cannot agree. Although there was an oversight, everyone assumed that the Crown had elected to proceed by

summary conviction. When called upon, the Crown did actually elect to proceed summarily. The election was recorded well before the Crown closed its case, and well before Defence was called upon to elect whether or not to call evidence. The burden of proof of any exceptions, therefore, was well and truly on the defence at the close of the Crown’s case.

III Amnesty [ 11 ] In May of 2006, the federal government declared an Amnesty on prosecutions on firearms offences, pursuant to s. 117.14(1) of the Criminal Code . (P.C. 2006-385; SOR/2006-95 May 17, 2006) That Amnesty has been extended from time to time, and was in operation on September 25 th , 2009, when the rifle was seized from Mr. Paulsen’s truck. (SOR/2008-139 May 7, 2009; SOR 2008-844 May 8, 2008, e.g.) [ 12 ] When such an Amnesty period is declared,

Section 117.14 of the Criminal Code states that:

(3) No person who, during an Amnesty period declared by an order made under subsection (1) and for a purpose described in the order, does anything provided for in the order, is, by reason only of the fact that the person did that thing, guilty of an offence under this Part.

(4) Any proceedings taken under this Part against any person for anything done by the person in reliance of this

section are a nullity. [ 13 ] Therefore, if Mr. Paulsen falls within the ambit of the Amnesty, anything he does “in reliance of” the Amnesty is exempt from prosecution. [ 14 ] Section 2(1) of the Amnesty states as follows: NON-RESTRICTED FIREARMS — INDIVIDUALS 2 .

(1) The Amnesty period set out in subsection (3) is declared under

section 117.14 of the Criminal Code for an individual who, at any time during the Amnesty period, (

a) is in possession of a non-restricted firearm, holds a licence to possess firearms or a licence to possess and acquire firearms but does not hold a registration certificate for the firearm; or (

b) is in possession of a non-restricted firearm, does not hold a registration certificate for the firearm and will have held a licence to possess firearms or a licence to possess and acquire firearms (

i) that expired during the period beginning on January 1, 2004 and ending on the day before the day on which this Order comes into force, or (ii) that will have expired during the period beginning on the day on which this Order comes into force and ending one year later. [ 15 ] The Amnesty has been extended from year to year since May of 2006. This Amnesty therefore applies to an individual who held a licence to possess a firearm, but whose licence expired at any time after January 1, 2004. There is no evidence before me that Mr. Paulsen ever held a licence to possess a firearm.

[ 16 ] Subparagraph (1)(

a) does not apply because Mr. Paulsen did not hold a licence to possess a firearm on September 25 th , 2009. Subparagraph (1)(

b) applies only if Mr. Paulsen had a licence that expired during the Amnesty period.

Section 794 of the Code requires him, if he possessed such a licence, to produce it in evidence or risk conviction. There is no evidence before me that Mr. Paulsen ever held a licence to possess firearms, never mind one that expired between January 1, 2004 and September 25, 2009. [ 17 ] Therefore, the accused is not an individual to whom the Amnesty applies pursuant to section 2(1). Even if he were, however, he would have to possess the firearm for one of the purposes enumerated in subsection (2):

(2) The purpose of the Amnesty period is to permit the individual to (

a) in the case of an individual described in paragraph (1)( a ), obtain the registration certificate; (

b) in the case of an individual described in paragraph (1)( b ), obtain the licence and registration certificate; (

c) deactivate the firearm so that it is no longer a firearm; (

d) export the firearm in accordance with all applicable legal requirements, including the legal requirements of the country to which the firearm is exported; (

e) turn in the firearm to a police officer or a firearms officer for destruction or other disposal; (

f) sell or give the firearm to a public service agency, to a business, including a museum, that holds a licence authorizing the acquisition of firearms or to an individual who holds a possession and acquisition licence for firearms; or (

g) possess the firearm before doing one of the things described in paragraphs (

a) to ( f ). [ 18 ] Subparagraph (2)(

g) allows a person to possess a firearm before obtaining a licence or registration, before turning it in for destruction or disposal, etc. However, there is no evidence before me that Mr. Paulsen intended to do any of the things enumerated in subsection 2(2). As he was on his way back from fishing trip, I’m pretty sure he was not intending to turn his firearms in to the local authorities. Neither was he about to donate them to a museum. It is clear from the evidence that he had the firearms for the purpose of hunting moose or game birds.

Hunting is not one of the purposes for which he is allowed to possess the firearm, if he wants to claim the protection of the Amnesty. [ 19 ] Neither is he protected by s. 117.14(3), as nothing he was doing was “for a purpose described in the order.” Nor can I find that his actions were done in reliance of s. 117.14 , and so the proceedings are not statute-barred. [ 20 ] In short, the immunity promised by the declaration of Amnesty does not apply to Mr. Paulsen on these facts. III Possession [ 21 ] Defence argues that the Crown has not proven that Mr.

Paulsen was in possession of the Remington rifle, as there were two adults in the vehicle, and there is no way to tell who was in possession of which firearm. There were three firearms in the vehicle, two of which were not seized. That suggests that someone was in lawful possession of at least two of them.

[22] “Possession” is defined in s. 4(3) of the Criminal Code: For the purposes of this Act, (

a) a person has anything in his possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [23] As well, the Supreme Court of Canada in R. v. Beaver, (SCC), [1957] S.C.R. 531, 118 C.C.C. 129, 26 C.R.193 says that possession consists of knowledge of what the thing is combined with

an act of control. [24] Here, Mr. Paulsen had to know the rifle was in the vehicle, as it was simply lying on the floor in the back seat area. He hadcontrol over the vehicle, and could grant or withhold his consent to the presence of any of the objects in the vehicle. Combined with theevidence of an intention to hunt, I find that Mr. Paulsen had knowledge of the firearm and control over it. He therefore had “possession”of it, within the meaning of the Criminal Code. [25] Having found that Mr.

Paulsen was in possession of the Remington 7 Millimeter Magnum rifle, I shall go on to consider theother elements of the offences in counts 5, 6 and 7. IV Counts 5 and 6 [26] Mr. Paulsen is charged with two separate offences contrary to subsections 91(1)(

a) and 91(1)(

b) of the Criminal Code.

Section 91 states: …every person commits an offence who possesses a firearm without being the holder of (

a) a licence under which the person may possess it; and (

b) a registration certificate for the firearm. [27]

Section 91 creates “an offence,” that is, one offence of possessing a firearm. To be in lawful possession, a person must be theholder both of a licence to possess it and a registration certificate. If he has one but not both of these things, he is guilty of an offence. Ifhe has neither of these things, he is guilty of the same offence. Possessing both of those things gives him a defence to the charge. Parliament did not create two separate offences. They created one offence with a defence made out if the accused has both a licence anda registration certificate.

It is akin to the charge of robbery under the Criminal Code, which outlines four different methods forcommitting the same offence. However, Parliament created only one offence of “robbery.” [R. v. Johnson (1977), (BCCA), 35 C.C.C. (2d) 439 (BCCA)]

[28] Even if this were not the case, however, count 5 as worded includes both acts. It alleges that the accused possessed a firearm“without lawful authority.” That is, he possessed neither a licence to possess it, nor a registration certificate, and so he had no lawfulauthority to possess the weapon. [29] Count #5 charges Mr. Paulsen with possessing a firearm “without lawful authority,” and alleges this is contrary to “Section91(1)(a).” Such a charge reflects the substance of s. 91(1). The “(a)” in the count is redundant. The Crown has proven that he was inpossession of the firearm. He has produced no licence or registration for the weapon.

Section 794 puts the onus on him to prove anyexemption, and so I find the Crown has proven beyond a reasonable doubt that he possessed the firearm without lawful authority. [30] Count #6 charges the same offence, with the same elements to be proven. As worded, the count particularizes the lack oflawful authority. It alleges that Mr. Paulsen lacked lawful authority in that he possessed no registration certificate for the weapon. TheCrown has proven those elements beyond a reasonable doubt, but count 6 is substantially the same offence as count 5.

V Count #7 [31] While Section 94(1) of the Criminal Code does not require the Crown to prove possession, the information alleges it and sothe Crown must prove it. For the reasons outlined above, I find they have proven possession.

They have also proven, as mentionedabove, that the possession was “without lawful authority.” They have also proven that the firearm was possessed “in a vehicle.” [32] The elements of the offence as alleged in count 7 include all of the elements of the offences alleged in counts 5 and 6, with theadded element that the actus reus occurs “in a vehicle.” That is, counts 5 and 6 require the Crown to prove that the accused possessed afirearm, that the firearm was a Remington 7 Millimeter Magnum rifle, and that the possession was “without lawful authority.” Countseven as worded requires the Crown to prove that the accused possessed the firearm, that the firearm was a Remington 7 MillimeterMagnum rifle, that the possession was “without lawful authority,” and that the firearm was “in a vehicle.” [33] For those reasons, although the Crown has established all of the elements of the offences in counts 5, 6 and 7 beyond areasonable doubt, I find that convicting the accused on all three charges would offend the rule against multiple convictions as outlined inR. v.

Kienapple, [1975] 1. S.C.R. 729. The elements of the offences in counts 5 and 6 are identical to all but one element of the offencein count 7. All three counts are based on the same act on the part of the accused. I therefore decline to enter a conviction on counts 5and 6. [34] Instead, pursuant to R. v. Provo, (SCC), [1989] 2 S.C.R. 3, I enter a conditional stay of proceedings on counts5 and 6. That conditional stay might then become absolute after any appeal period, or after all appeals have been concluded.

Summary [35] To summarize, I find the accused guilty of Count 4. I find the Crown has proven the elements of the offences in counts 5 and6, but I enter a conditional stay of proceedings on those counts. I find the accused guilty on count 7. _____________________ F.M.A.L. Daunt, J