Her Majesty the Queen - v. -, 2021 SKPC 49

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 49 Date: September 24, 2021 Information: 991118468, 991118469, 991118470, 991125690 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ryley Lorne Olynik and Brandon Jeffrey Lupkoski Appearing: C. Bliss For the Crown G. Combe For the Accused, Ryley Lorne Olynik A. Oberholzer For the Accused, Brandon Jeffrey Lupkoski JUDGMENT R.D.

JACKSON , J I INTRODUCTION [ 1 ] Ryley Lorne Olynik and Brandon Jeffrey Lupkoski stand charged with multiple offences stemming from a home invasion incident at 374 Marlatte Street, Saskatoon, on January 18, 2020 as follows:

a) jointly on Information ending 468 :

1) with intent to wound did discharge a firearm, to wit: a sawed-off .22 calibre rifle, at Calvin Boschman, contrary to s. 244(1) (

a) of the Criminal Code ; 2) break and enter a place, to wit: a dwelling house situated at 374 Marlatte Street, Saskatoon and did commit therein the indictable offence of discharge firearm, contrary to s. 348(1) (

b) of the Criminal Code ; 3) without lawful excuse carry a firearm, to wit: a sawed-off .22 calibre rifle , in a careless manner, contrary to s. 86(1) of the Criminal Code ; 4) carry a firearm, to wit: a sawed-off .22 calibre rifle, for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code ; 5) possess a firearm, to wit: a sawed-off .22 calibre rifle knowing that he was not the holder of a licence under which he possess it, contrary to s. 92(1) of the Criminal Code ; 6) was an occupant of a motor vehicle in which he knew there was a firearm, to wit: a sawed-off .22 calibre rifle, for which or any other occupant of the motor vehicle was not the holder of an authorization or licence to possess the firearm, contrary to s. 94(1) (a)(

i) of the Criminal Code ; and 7) possess a loaded prohibited firearm, to wit: a sawed-off .22 calibre rifle, not being a holder of an authorization or licence under which he may possess the said firearm in that place, contrary to s. 95(1) (

a) of the Criminal Code .

b) jointly on Information ending 690: 1) intentionally discharge a firearm, while being reckless to the life or safety of another person, contrary to s. 244.2(1) (

b) of the Criminal Code ;

c) Ryley Olynik solely on Information ending 469: 1) being at large on a release order did fail to comply with a condition thereof other than the condition to attend court, to wit, to keep the peace and be of good behaviour and not possess any firearms or ammunition, cross-bow, prohibited weapon, restricted weapon, prohibited device, prohibited ammunition or explosive substance or other weapons, contrary to s. 145(5) (

a) of the Criminal Code ; 2) operate a motor vehicle or vessel while being pursued by a peace officer and fail without reasonable excuse to stop the motor vehicle or vessel as soon as reasonable in the circumstances, contrary to s. 320.17 of the Criminal Code ; and 3) possess a firearm, to wit: a sawed-off .22 calibre rifle, while he was prohibited from doing so by reason of an Order made pursuant to s. 109 of the Criminal Code , contrary to s. 117.01(1) of the Criminal Code .

d) Brandon Lupkoski solely on Information ending 470 : 1) possess a firearm, to wit: a sawed-off .22 calibre rifle, while he was prohibited from doing so by reason of an Order made pursuant to s. 109 of the Criminal Code , contrary to s. 117.01(1) of the Criminal Code . [ 2 ] The Crown called 19 witnesses at trial. Neither accused elected to call evidence. II ISSUES [ 3 ] At the conclusion of trial, the following issues emerged for determination:

a) Whether identity of the two accused as the perpetrators, based entirely on circumstantial evidence, has been proven;

b) Whether the Crown should be permitted to amend those Informations referencing “to wit: a sawed-off .22 calibre rifle” by deleting same;

c) Whether the Crown has proven the constituent elements of the offences as charged. III BACKGROUND [ 4 ] On January 18, 2020, a short time prior to 8:00 p.m., two individuals attempted forcible entry to a basement suite located at 374 Marlatte Street, Saskatoon. The intruders attempted to gain access, one by battering the basement door with blunt objects, and the other by smashing a bedroom window and firing gunshots into the room. [ 5 ] The occupants of the suite included the tenant, Calvin Boschman, and a friend, Jordan Patterson. Both sustained injuries in the attack – Boschman by gunshot wounds to his arm and shoulder and Patterson by blunt weapon trauma when he briefly opened the

door at the outset. [ 6 ] The attackers left after a few minutes without gaining entry. Both occupants were unable to either identify or explain who these individuals might be. [ 7 ] An upstairs tenant, James Ulch, witnessed matters unfolding from his suite above and called 911. Once the incident ended, he observed the intruders depart in a vehicle watching until the vehicle turned out of sight travelling in a westerly direction.

Although he was able to give descriptions of the individuals, he was unable to make trial identification. [ 8 ] Officers responding to the call at 8:00 p.m. observed two vehicles in the vicinity, one of which was stuck in a snowbank in a nearby roundabout and the other proceeding through the roundabout and then turning west on McOrmond Drive toward the Mistawasis bridge located several kilometers away. [ 9 ] Approximately six minutes later, officers positioned near the Mistawasis bridge observed a vehicle approaching at a high rate of speed.

As it slowed and passed, the officers observed both the two occupants and the vehicle description to match their lookout bulletin. Emergency equipment was activated and pursuit engaged by several police units when the vehicle failed to stop. The chase terminated in nearby Warman a short time later. Upon stopping, the passenger, identified as Lupkoski, fled on foot and was arrested quickly thereafter. The operator, Olynik, was arrested at the vehicle. [ 10 ] Lupkoski advised the arresting officers that he had thrown a hammer while fleeing which police recovered nearby.

As well, a .22 calibre magazine was found resting on top of fresh snow adjacent to the chase route. [ 11 ] Located in the vehicle, which Olynik had borrowed from an acquaintance, Jessica Fredsberg, was a yellow Stanley hammer (Exhibit P-10), a yellow Stanley crowbar with the initial “R” on it (Exhibit P-11) and a pair of bolt cutters (Exhibit P-12). Ms.

Fredsberg confirmed that these items were not in the vehicle prior to lending it to Olynik. [ 12 ] Subsequent forensic investigation at the crime scene yielded photographic evidence of the suite door, basement window, interior of the suite and footprints in the snow. Also located were two .22 calibre shell casings outside the smashed window and the floor of the room inside. IV DETERMINATION

a) Whether identity of the two accused as the perpetrators, based entirely on circumstantial evidence, has been proven; [ 13 ] The leading authorities concerning proof by way of circumstantial evidence was articulated by the Supreme Court of Canada in R v Villaroman [1] , recently canvassed by our Court of Appeal in R v Learning [2] . [ 14 ] Scott, J in R v Paul Lister [3] succinctly set out the following template referencing these authorities when having to consider and evaluate circumstantial evidence, at paras 50 – 53: [50] When assessing circumstantial evidence, the Court should consider “other plausible theories” and “other reasonable possibilities” that are inconsistent with guilt.

The question is whether the circumstantial evidence, viewed logically and in light of human experience and common sense, is reasonably capable of supporting an inference other than that the accused is guilty: R v Villaroman , 2016 SCC 33 , [2016] 1 SCR 1000 , paras 37 , 38 [ Villaroman ] . [51] In R v Learning , 2019 SKCA 5 , [2019] SJ No. 8, para 24 , the Court of Appeal summarized the principles set out in Villaroman as follows: (a) “The inferences that may be drawn from [an] observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” (at para 30). (b) “In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” (at para 35). (c) “The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt” (at para 35). (d) “[A] reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus , a reasonable doubt ‘is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence ’”: para 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” (at para 36). (e) “When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonable possibilities’ which are inconsistent with guilt” (at para 37). (f) “[T]he Crown thus may need to negative these reasonable possibilities, but certainly does not need to ‘negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’…‘[O]ther plausible theories’ or ‘other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation” (at para 37; emphasis in the original).

[52] Therefore, to justify a conviction, the circumstantial evidence assessed in light of human experience should be such that it excludes any other reasonable alternative. The alternative inferences must be reasonable, not just possible: Villaroman , para 41, 42 . [53] Further, the Court must be careful that the inferences drawn be distinguished from conjecture or speculation: R v Switucka , 2009 SKQB 260 , 336 Sask R 311. [ 15 ] The Crown posits that the large web of established evidence before the Court leads to no reasonable conclusion other than the two accused were the home invaders.

Defence counsel argue that there are several gaps and inconsistencies in the evidence sufficient to raise a reasonable doubt in this regard. [ 16 ] After having carefully considered all of the evidence and having due regard to the legal analysis as enunciated in Villaroman and Learning , the Court is satisfied beyond a reasonable doubt that the Crown has proven the identity of the two accused as the perpetrators of the charges before the Court. [ 17 ] The Court reaches this conclusion based upon several factors as follows: The Suspect Vehicle [ 18 ] Mr.

Ulch, the upstairs tenant, observed the two suspects clad in dark clothing exit the yard near the garage leading to the alley. From his vantage point he could see the front of the vehicle. Within approximately 10 seconds, the vehicle headlights came on and the car drove slowly away. [ 19 ] The vehicle description according to Mr. Ulch was a dark four door sedan possibly a Corolla or a Camry. As it pulled away he could make out LED type taillights “kinda turned up on a slight angle. . . sort of rectangle-ish, out to the side” (T-79, L-18-19). [ 20 ] Mr.

Ulch was able to keep continuous sight of the car as it travelled through a nearby roundabout and then turn right (west) on McOrmond Drive toward the new bridge. He estimated the police then arrived at his residence within one minute. [ 21 ] Constables Garland and Stanviloff were first on scene at approximately 8:00 p.m. As they approached the residence, Constable Garland testified that they could see two vehicles – one stuck in the snow and the other going through a roundabout and then turning west on McOrmond Drive. He described this vehicle as dark in colour with LED taillights that “. . . stood out.

Very bright” (T- 101, L-23–33). [ 22 ] Constable Garland’s partner, Constable Stanviloff stated that it “appeared to be like a four door black sedan” and that he “. . . could see red taillights, which appeared to be kinda like a newer style LED taillight” (T-116, L-31-35). [ 23 ] Six minutes later at 8:06 p.m., Constables Kemp and Lapointe, who were parked at the Mistawasis bridge, encountered a dark sedan approaching at a high rate of speed of approximately 100 kph from the Evergreen direction, where 374 Marlatte Street is located.

The vehicle slowed abruptly to 40 - 45 kph when the police vehicle shone their overhead lights upon it.

There were no other vehicles that came through their surveillance in that time frame matching the vehicle described in their dispatch information. [ 24 ] Constables Forsyth and Bouvier responding to the call driving on Central Avenue, which intersects McOrmond about a kilometer prior to the Mistawasis bridge, did not see any vehicle on Central matching the suspect vehicle. [ 25 ] As shown in the Google Maps tendered as Exhibits P-2 and P-3, the Mistawasis bridge is located several kilometers west of the Evergreen district on McOrmond Drive, a four lane roadway of largely undeveloped terrain on each side.

According to Constable Ingrouille it would take roughly 5 - 10 minutes to traverse this distance travelling the speed limit. This evidence was not challenged by defence. [ 26 ] The suspect vehicle encountered at the Mistawasis bridge was described by Constable Kemp as a “. . . newer four door black car. . .” [4] with two male occupants in dark clothing.

Constable Lapointe testified it was a dark four door car with “LED headlights and taillights . . .” [5] The in-car video of the subsequent pursuit corroborated the description provided by officers Kemp and Lapointe (Exhibit P-5). [ 27 ] Accordingly, there was only a six minute interval from the time the suspect vehicle observed by Mr. Ulch and Constables Garland and Stanviloff turned west towards the Mistawasis bridge and the car matching both occupant and vehicle description was encountered at the bridge by Constables Kemp and Lapointe.

No other vehicles matching the description were noted either by the officers stationed at the bridge or intersecting McOrmond Drive on Central Avenue. [ 28 ] In Learning , there was a surveillance gap of several hours where the suspect vehicle was being tracked between Saskatchewan and Alberta. In reviewing this aspect of the decision the Court of Appeal stated at para. 28: [28] First, as to the gaps in surveillance, I start from the proposition, built on the principles set out in R. v.

Villaroman , that a gap in surveillance or an alleged flaw in a police investigation does not of itself necessarily give rise to a reasonable inference inconsistent with guilt. In appellate terms, the mere existence of such circumstances does not render a verdict unreasonable. In any case based on circumstantial evidence, there will likely be an “evidentiary gap” at some point in the timeline. Here, Mr. Learning suggests that, because the police surveillance of the van had not been continuous, it was not open to the trial judge to infer he had been the operator of the van at all relevant times.

I agree that gaps in the surveillance record opened the door to a possibility that Mr. Learning had not been the driver at all relevant times, but that is not enough. To negate the inference of guilt sought by the Crown, an alternative, inconsistent explanation for the circumstances must be such that, applying common sense, human experience and logic to determine the probability of outcomes, it is a reasonable inference to draw (see: R. v. Villaroman at para 36 ). [ 29 ] There was additional evidence tendered in the present case concerning identification of the vehicle leaving the scene at 374

Marlatte Street. Home security video from 410 Marlatte Street (Exhibit P-4) showed a dark coloured sedan with distinctive LED type taillights exiting the alley. Mr. Ulch, as well as officers involved in the pursuit testified that it bore a strong resemblance to the vehicle all three had observed. [ 30 ] Problematic with Exhibit P-4 however is the time stamp showing 18:44:13 which does not accord with the incident time of roughly 8:00 p.m.

Although it is not uncommon for video time stamps to be inaccurate in the Court’s experience, the resident of 410 Marlatte, Alex Szeto, testified he believed it should be accurate because it is an Internet based home security system. Accordingly, little weight can be attributed to this evidence to support the inference that it was the suspect vehicle leaving the crime scene at 374 Marlatte Street. Description of Intruders [ 31 ] Mr. Ulch testified that the two assailants were both wearing hoodies with the hoods up. They were dressed in dark colours top to bottom and he could not see their faces.

He described them as not over 6’ with neither looking particularly stocky and one being a lot thinner than the other. [ 32 ] Mr. Patterson testified that when he opened the door briefly he saw two figures dressed in all black and that both were wearing toques with the hoods pulled up. He described them to be 5’10” – 6’ with medium build and were Caucasian males. [ 33 ] When apprehended following the pursuit, the physical description and clothing matched that of the eye-witness evidence. One notable exception were the red running shoes seized from Mr. Lupkoski. In cross-examination of Mr. Ulch by Mr.

Lupkoski’s counsel, the following exchange occurred in regard to same: Transcript p 92, Lines 18 – 35 Q Yeah. Like, if they were wearing, like, Timberlands or something, do you know what I’m talking about? A Yeah. I tend not to pay attention to shoes, I’m sorry. It’s just naturally a little bit who I am. I don’t notice shoes very -- very much. Q Right. A And it was snowing, so I wasn’t really looking at that -- or there was snow on the ground. So I wouldn’t -- if they were bright coloured, it probably would’ve caught my eye. Q Okay, okay.

A If they were tan or something, they would’ve just looked like shoes to me. Q Right. But if they were, like, a bright red or something? A Possibly. Q Yeah. Okay. That would’ve stuck out to you, you think? A Bright red, maybe. [ 34 ] In the circumstances, the fact that these red shoes were not identified or referred to by Mr. Ulch does not negate the weight of the other evidence presented.

In light of the chaotic and violent episode unfolding, it is not surprising that this detail might have been overlooked, being a small part of the overall description of the two individuals clothed in dark hooded outerwear top and bottom. Nor is it significant that the officer who arrested Lupkoski would agree that red shoes would be distinctive. In ordinary circumstances this may be the case, however, what Mr. Ulch observed was relatively brief and certainly not ordinary.

Items Seized [ 35 ] Upon arrest following the police pursuit to Warman a yellow handled Stanley hammer, a yellow Stanley crowbar and bolt cutters were found in the vehicle. As well, a black handled hammer and .22 calibre magazine were found on the foot chase route (the hammer being admitted by the accused, Lupkoski, as having just been thrown).

In addition, two .22 calibre shell casings were located at the crime scene. [ 36 ] Also found outside the broken bedroom window was a “red substance . . . consistent with that of blood” (T-143, L-24) together with a small green propane cylinder which Calvin Boschman said he threw at the intruder striking him in the upper part of his body. [ 37 ] This “red substance” was never analyzed.

However, during Olynik’s interview subsequent to arrest, he was noted to have a small injury (photo Exhibit P-1) described as a “cut right on top of his head . . . approximately an inch long . . . obviously recently sustained and there was some fresh blood that was kind of dried and pooled around the area” (T-293, L-4-6).

[ 38 ] Sergeant Joslin of the Forensic Identification

Section of the Saskatoon Police Service testified as to certain comparisons he was able to make from crime scene photos and seized items. He was not qualified as an expert in this regard but rather only to what the comparisons showed and the methodology in enhancing and printing the photos to enable him to make such comparisons. [ 39 ] The photographs of the suite door revealed indentations and yellow paint smears from what appeared to be pry marks which, according to the tenants, had not been present previously.

As far as the dents were concerned, one matched generally with the striations found on the head face of the black handled hammer seized. Another door indentation showed a small grid pattern of horizontal and vertical lines similar to the indented grid pattern on the head face of the yellow Stanley hammer (Exhibit P-10). [ 40 ] Calvin Boschman described a “curved metal bar” being used to smash the window. Jordan Patterson testified that when he answered the door he was struck with a yellow object which left two puncture type wounds above his eye.

He described these as “two incision lines that looked like the teeth of a crowbar” (T-355, L-38). The crowbar seized has a two-pronged claw on the curved end which could well have made such wounds. Footprint Evidence [ 41 ] Sergeant Joslin also made comparisons between the shoes seized from the two accused, the black Nike pair from Mr. Olynik and the red Adidas pair from Mr.

Lupkoski with photographs of footprint impressions in the snow at the crime scene. [ 42 ] Sergeant Joslin explained that exact or positive identification could not be made unless there was some “randomly acquired characteristics” like a nick or cut in the sole tread pattern that would make it uniquely distinctive. Notwithstanding, he was able to discern strong visual patterns of similarity between the shoe treads and the footprint impressions. [ 43 ] In one footprint photo the ubiquitous Nike swoosh symbol is very visible.

In addition, there appears to be three columns of square hollows that make up the grids surrounding the center Nike swoosh logo. The width of the impression from the unknown (photo) and the width of the known shoe (Olynik’

s) is identical across the heel and middle. [ 44 ] Concerning Mr. Lupkoski’s shoes, the footprint photo shows a raised portion in the snow – the width and length which corresponds very similarly to that of the shoe itself. Further, the orientation inside the impression – the depression in the middle of the shoe instep, shows double lines which look very similar to Mr. Lupkoski’s shoe tread wear. Again, there were no randomly acquired characteristics to make positive identification. [ 45 ] Although the footprint evidence is not positively conclusive, it is nonetheless highly persuasive.

Further, there is nothing to suggest the converse i.e. that the shoes seized could not be from the crime scene given the lack of any “randomly acquired characteristics” being distinguishing marks or flaws that would exclude them. [ 46 ] Defence counsel pointed out appropriately that no gun or ammunition was located in the vehicle or on the persons of the two accused, which was a significant factor in raising a reasonable doubt that the two accused were the ones involved in the incident.

This argument would carry a great deal more weight if the suspect vehicle had been followed continuously with no evidence that any weapon or ammunition had been thrown out. However, there would have been ample opportunity to do so on the six minute drive from the Evergreen neighbourhood to the Mistawasis bridge, a stretch of several kilometers of undeveloped terrain, when the suspect vehicle was not being surveilled.

Summary [ 47 ] The suspect vehicle leaving the crime scene as witnessed continuously by Mr. Ulch, was seen turning west on McOrmond Drive toward the Mistawasis bridge. Officers Garland and Stanviloff arriving simultaneously at the crime scene at 8:00 p.m. also viewed this vehicle turning west toward the bridge. Six minutes later police situated at the Mistawasis bridge encountered a matching vehicle with two male occupants dressed in the manner as described by the witnesses. The vehicle failed to stop when signaled to do so resulting in the pursuit culminating in the arrest of the two accused.

The accused fit the general description provided by Mr. Ulch and Mr. Patterson and as well, tools and clothing recovered also matched forensic evidence garnered at the crime scene and as described by eye- witnesses. [ 48 ] In the circumstances, there is no doubt that the vehicle leaving the crime scene at 374 Marlatte Street was the exact same vehicle intercepted only moments later at the Mistawasis bridge.

To believe otherwise would mean that the suspect vehicle would have had to exit somewhere after turning toward the bridge and be replaced within a six minute span by the accused’s vehicle which just happened to match in all respects the evidence particulars as referenced above. This alternative explanation defies common sense and is neither reasonable or plausible in the circumstances. [ 49 ] Accordingly, the suspects identified as the two accused, Ryley Olynik and Brandon Lupkoski, have been proven beyond reasonable doubt to be the perpetrators of the offences before the Court.

b) Whether the Crown should be permitted to amend those Informations referencing “to wit: a sawed-off .22 calibre rifle” by deleting same [ 50 ] In argument, defence counsel raised inter alia , that the Crown had failed to prove that the weapon utilized was a “sawed-off .22 calibre rifle” as particularized in the Informations. [ 51 ] The Crown then sought to amend the Informations pursuant to s. 601 of the Criminal Code , having due regard to s. 601(4) : 601(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider

(

a) the matters disclosed by the evidence taken on the preliminary inquiry; (

b) the evidence taken on the trial, if any; (

c) the circumstances of the case; (

d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and (

e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done. [ 52 ] Defence counsel strenuously objected, arguing that such application should have been made prior to close of the Crown’s case as defence had predicated their decision not to call evidence based upon presentation of the Crown’s case as particularized in the Informations. [ 53 ] The Court agrees.

To permit amendment after the Crown has closed its case may be permissible in certain instances on a fact specific basis but this is not one of them. [6] Both accused relinquished their right to call evidence on the strength of counsel’s advice as to how the charges stood at the close of the Crown’s evidence. It would be highly prejudicial and would impact trial fairness in this situation to retroactively remove the basis upon which such decisions were taken. Accordingly, the application to amend is denied. [7]

c) Whether the Crown has proven the constituent elements of the offences as charged. Legal Issues [ 54 ] The Court is indebted to Taylor Roufosse, articling clerk to the Provincial Court, for her valuable research assistance on these matters. [ 55 ] The accused are charged with numerous counts spread over several informations, both jointly and in their sole capacities, raising a variety of legal issues. These will be first addressed briefly and applied accordingly thereafter to the counts where required for determination.

Common Purpose [ 56 ] There is no doubt that the two accused at all times acted in concert for a common purpose within the meaning of s. 21(2) of the Criminal Code : Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [ 57 ] Counsel for Mr.

Olynik conceded in argument that if identity was proven, this issue was not being contested. Counsel for Mr. Lupkoski made no representations in this regard. Accordingly, where jointly charged, each accused is equally culpable as a party to the offence where same is proven. Firearms [ 58 ] The following Criminal Code

definitions and charging sections are germane to the offences charged:

a) s. 2 “firearm” means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm; b) s. 84(1) “prohibited firearm” is . . . (

b) a firearm that is adapted from a rifle or shotgun, whether by sawing, cutting or any other alteration, and that, as so adapted, (

i) is less than 660 mm [8] in length, or (ii) is 660 mm or greater in length and has a barrel less than 457 mm [9] in length, . . . c) s. 84(1) “prohibition order” means an order made under this Act or any other act of Parliament prohibiting a person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things; d) “restricted firearm” means

a) a handgun is not a prohibited firearm;

b) a firearm that (

i) is not a prohibited firearm,

(ii) has a barrel less than 470 mm[10] length, and (iii) is capable of discharging centre-fire ammunition in a semi-automatic manner;

c) a firearm that is designed or adapted to be fired when reduced to a length of less than 660 mm by folding, telescoping or otherwise, or

d) a firearm of any kind that is prescribed to be a restricted firearm; e) s. 86(1) every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports, or stores a firearm, aprohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or withoutreasonable precautions for the safety of other persons. f) s. 92(1) subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm knowing that the person is not the holder of

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

b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it. g) s. 94(1) subject to subsections (3) and (4), every person commits an offence who is an occupant of a motor vehicle in which theperson knows there is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, aprohibited device, other than a replica firearm, or any prohibited ammunition unless

a) in a case of a prohibited firearm, a restricted firearm or a non-restricted firearm, (

i) the person or any other occupant of the motor vehicle is the holder of (

A) a licence under which the person or other occupant may possess the firearm and (

B) in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it, . . . Break and Enter [59] The term “break” is defined in s. 321 of the Criminal Code: “break” means

a) to break any part, internal or external, or

b) to open any thing that is used or intended to be used to close or to cover an internal or external opening. [60] “Enter” is defined in s. 350(

a) and 350(

b) of the Criminal Code, deeming a person to have broken and entered in thecircumstances defined: Entrance s. 350 for the purposes of ss. 348 and 349,

a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; Surplusage Rule Re: Particulars [61] Defence counsel argued broadly that in any of the counts on Informations where “sawed-off .22 calibre rifle” is referenced,the Crown should be held to the strict proof thereof. The evidence, defence submits, falls short in this respect, entitling the accused to beacquitted on any such charges. [62] The only evidence before the Court describing the firearm comes from Mr.

Ulch who stated “. . . some kind of gun” (T-60, L-15), “. . . it wasn’t a pistol, it – and it was in both hands” (T-65, L-19), “a foot and a half to two feet” in length (T-66, L-30). The Courtagrees that this dearth of evidence does not meet the precision required to classify it as a prohibited weapon pursuant to the CriminalCode, supra, at para. 56(b). However, this does not determine the matter. [63] In R v Maurer[11] at para. 13, citing R v Canadian National Railway[12], the Court stated at paras 41, 42 and 45: [41] The surplusage rule deals with unnecessary detail in an indictment. As noted by Helper J.

A., in R. v. JBM (2000), (MB CA), 145 Man.R. (2d) 91 (Man. C.A.) (at para. 29): That rule is succinctly stated in Eugene G. Ewaschuk, Q.C., Criminal Pleadings and Practice in Canada (Toronto: Canada Law BookLimited, 1983), at pp. 222 -223, as: If the particular, whether as originally drafted or as subsequently supplied, is not essential to constitute the offence, it will be treated assurplusage, i.e., a non-necessary which need not be proved. [42] Particulars, of course, are facts that specify the act charged.

They need not be, but sometimes are, essential elements of the offence.So everything that is essential to be proved by the Crown must be alleged in the charge, but it does not necessarily follow that everythingthat is alleged must be proved. An unnecessary allegation may be treated as surplusage if the essential elements of the offence are allegedand established.

. . . [45] The surplusage rule and the requirement that the Crown be required to prove even non-material particulars alleged are reconciled by the existence of prejudice. Where an accused has been prejudiced by inclusion of a particular, which would otherwise be surplusage, the surplusage rule cannot apply . [ 64 ] For each charge then, where so articulated, the Court must assess whether the impugned particulars – here “sawed-off .22 calibre rifle” form part of the actus reus necessary to prove the charge or conversely, whether such particulars are mere surplusage.

Further, whether lack of such proof would prejudice the accused must also be considered. Specific charges Information #991118468 (jointly) 1) with intent to wound did discharge a firearm, to wit: a sawed-off .22 calibre rifle, at Calvin Boschman, contrary to s. 244(1) (

a) of the Criminal Code ; [ 65 ] The constituent elements of this offence are proof of “an intent to wound” by a “firearm”. Particularizing the type of firearm would be surplusage that need not be proven. Rather, just that it was a firearm need be proven. [ 66 ] The evidence disclosed that several gunshots were fired through the suite bedroom window, two of which struck and wounded Calvin Boschman. This evidence coupled with the testimony of Mr. Ulch meets the Criminal Code definition of a firearm, supra , at para. 56 (a). However, the shots were fired “from the waist” according to Mr.

Ulch and were into a darkened room. Therefore, there is reasonable doubt that same was done intentionally to wound Mr. Boschman rather than simply randomly and accordingly, this count fails. 2) break and enter a place, to wit: a dwelling house situated at 374 Marlatte Street, Saskatoon and did commit therein the indictable offence of discharge firearm, contrary to s. 348(1) (

b) of the Criminal Code ; [ 67 ] The act of shooting through the bedroom window, in the Court’s view, constitutes the offence of break and enter as set out in the Criminal Code , supra , at paras. 57 and 58.

In this case, “break” being smashing of the window and the “enter” constituting “any part of an instrument that he uses is within anything that is being entered” - here being the bullets from the gun entering the suite and thereby “crossing the threshold”. [13] Further, the definition of a firearm has been proven and therefore the offence has been made out. 3) without lawful excuse carry a firearm, to wit: a sawed-off .22 calibre rifle, in a careless manner, contrary to s. 86(1) of the Criminal Code ; [ 68 ] The essence of this count is carrying a firearm in a careless manner.

Whether or not the firearm was a “sawed-off .22 calibre rifle” would be surplusage not requiring proof. Irrespective, there was little or no evidence that this firearm was carried in a “careless manner”.

In the context of proving this offence “careless” simply means “without care”. [14] This has not been proven by the Crown and accordingly this count is dismissed. 4) carry a firearm, to wit: a sawed-off .22 calibre rifle, for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code ; [ 69 ] The essential elements of this offence are carrying a firearm for a purpose dangerous to the public peace and therefore the particulars “to wit: a sawed-off .22 calibre rifle” are non-material elements of the charge.

If the Crown proves the definition of “firearm” (which it has) and “for a purpose dangerous to the public peace” (obvious on the facts of this case) the charge has been made out. [ 70 ] Further, there is no evidence or inference of any prejudice to the accused that would render the surplusage rule inapplicable. Arguably, any time the Crown is not required to prove a fact in issue prejudices the accused. On this basis, there would be no point to application of the surplusage rule as everything material or non-material would have to be proven by the Crown failing which the accused would be “prejudiced”.

In the Court’s opinion, prejudice would have to be real and substantial impacting trial fairness or ability to properly prepare in regard to the actus reus of the offences charged. 5) possess a firearm, to wit: a sawed-off .22 calibre rifle knowing that he was not the holder of a licence under which he possess it, contrary to s. 92(1) of the Criminal Code ; [ 71 ] In order to found a conviction under s. 92(1) Criminal Code , the Crown bears the onus of establishing that the accused possessed a firearm and that the accused lacked the necessary licence or registration. [15] The reverse onus placed on the accused to prove this as set out in s. 117.11 Criminal Code does not apply to s. 92 (nor s. 94(1) infra ) as it is not one of the enumerated sections therein.

As no evidence was led to establish this essential element nor any evidence that the accused either knew or could be inferred to know this, this count is dismissed. [16]

6) was an occupant of a motor vehicle in which he knew there was a firearm, to wit: a sawed-off .22 calibre rifle, for which or any other occupant of the motor vehicle was not the holder of an authorization or licence to possess the firearm, contrary to s. 94(1) (a)(

i) of the Criminal Code ; and [ 72 ] Similar to s. 92(1) Criminal Code , s. 94(1) Criminal Code requires proof by the Crown, inter alia , as part of the actus reus , that no one in the vehicle had the relevant authority to possess the firearm. [17] Further, proof of the mens rea involving a prohibited weapon requires the Crown to prove that the accused knew or was reckless to the fact that the firearm was prohibited.

Again, no evidence being led by the Crown on these issues, this count is also dismissed. [18] 7) possess a loaded prohibited firearm, to wit: a sawed-off .22 calibre rifle, not being a holder of an authorization or licence under which he may possess the said firearm in that place, contrary to s. 95(1) (

a) of the Criminal Code . [ 73 ] The Crown has particularized a type of prohibited weapon being a “sawed-off .22 calibre rifle” which has not been proven. These particulars form the actus reus of this charge being a material element which must be proven and therefore, this count fails. Information #991125690 (jointly charged) 1) intentionally discharge a firearm, while being reckless to the life or safety of another person, contrary to s. 244.2(1) (

b) of the Criminal Code ; [ 74 ] Mr. Ulch observed the shooter aiming from the waist and firing multiple shots into the bedroom window, stopping on a couple of occasions to bang the stock of the gun on the ground before resuming. The Court is satisfied beyond a reasonable doubt that, as noted, this was a firearm being discharged and further, that it was being fired intentionally through the window. In the circumstances, it could not be said this was not reckless as to the life or safety of any occupants within and accordingly, the Crown has proven this count.

Information #991118469 (Olynik solely) 1) being at large on a release order did fail to comply with a condition thereof other than the condition to attend court, to wit, to keep the peace and be of good behaviour and not possess any firearms or ammunition, cross-bow, prohibited weapon, restricted weapon, prohibited device, prohibited ammunition or explosive substance or other weapons, contrary to s. 145(5) (

a) of the Criminal Code ; [ 75 ] The Crown tendered Exhibit P-9 proving that the accused was on a release order bearing these conditions.

On the evidence established before the Court, the accused Ryley Olynik in the circumstances was breaching this order by failing to keep the peace and possessing a firearm. 2) operate a motor vehicle or vessel while being pursued by a peace officer and fail without reasonable excuse to stop the motor vehicle or vessel as soon as reasonable in the circumstances, contrary to s. 320.17 of the Criminal Code ; and [ 76 ] Olynik was signaled to stop his vehicle by police when first encountered at the Mistawasis bridge.

He failed to do so which continued through close quarters of police pursuit with full emergency lights activated culminating in the town of Warman. The Crown has therefore proven the elements of this offence. 3) possess a firearm, to wit: a sawed-off .22 calibre rifle, while he was prohibited from doing so by reason of an Order made pursuant to s. 109 of the Criminal Code , contrary to s. 117.01(1) of the Criminal Code . [ 77 ] The Crown tendered Exhibit P-23 proving the accused was on a s. 109 prohibition order at the time of the offence.

For the reasons articulated previously, the Crown has not established beyond a reasonable doubt that the firearm possessed was a “sawed-off .22 calibre rifle” as particularized. The essence of this charge however is possession of a firearm. The fact that it was particularized as “a sawed-off .22 calibre rifle” in the Court’s view is not required to prove the charge as long as it has been proven that it was in fact a firearm. For the reasons stated previously, the Crown has proven this element of the offence and therefore this count has been made out.

Information #99118470 (Lupkoski solely) 1) possess firearm, to wit: a sawed-off .22 calibre rifle, while he was prohibited from doing so by reason of an order made pursuant to s. 109 of the Criminal Code , contrary to s. 117.01(1) of the Criminal Code ; [ 78 ] The Crown tendered Exhibit P-8 proving that the accused was prohibited from possessing a firearm pursuant to s. 109 of the Criminal Code . For the same reasons as set out above, the essence of this charge is that a firearm was possessed which has been proven and therefore, the accused is guilty of this count.

V CONCLUSION [ 79 ] The accused, Ryley Lorne Olynik , is found guilty of the following (paraphrased): Information #991118468

Count #2: break and enter and discharge firearm. Count #4: carry a firearm for a purpose dangerous to the public peace. Information #991118469 Count #1: breach a release order by failing to keep the peace and possess a weapon; Count #2: failing to stop for police when signaled to do so; Count #3: possessing a firearm while prohibited from doing so. Information #991125690 Count #1: intentionally discharge a firearm while being reckless for the life and safety of another person. [ 80 ] The balance of the counts of the Informations pertaining to Mr.

Olynik are dismissed. [ 81 ] The accused, Brandon Jeffrey Lupkoski , is found guilty of the following (paraphrased): Information #991118468 Count #2: break and enter and discharge firearm; Count #4: carry a firearm for a purpose dangerous to the public peace. Information #991118470 Count #1: possess firearm while prohibited from doing so. Information #991125690 Count #1: intentionally discharge a firearm while being reckless for the life and safety of another person. [ 82 ] The balance of the charges against Mr.

Lupkoski are dismissed. [ 83 ] Upon representation from counsel on the return date of this matter, the Court shall affix a date for sentencing. ___________________ R.D. Jackson, J