Her Majesty the Queen - v. -, 2021 SKPC 51

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 51 Date: October 21, 2021 Information: 991083490 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Richard Aaron Stonechild Appearing: Arjun Shankar For the Crown Brendan Pyle For the Accused TRIAL DECISION M. HINDS , J [ 1 ] The accused, Richard Stonechild faces a total of eight offences. In particular, Mr. Stonechild is charged that on or about March 6, 2019 at or near Regina, Saskatchewan he did:

(2) Have in his possession a weapon to wit: a sawed off .22 rifle for a purpose dangerous to the public peace, contrary to

section 88 of the Criminal Code .

(3) Possess a firearm to wit: a sawed off .22 rifle knowing he was not the holder of a licence under which he may possess it, contrary to section 92(1) of the Criminal Code .

(4) Did possess a prohibited firearm with readily accessible ammunition capable of being discharged in the said firearm and was not the holder of an authorization or licence under which he may possess the said firearm contrary to

section 95 of the Criminal Code .

(5) Was, without lawful excuse in possession of a firearm, to wit: a sawed off .22 rifle, knowing that the serial number on it had been removed, contrary to section 108(1) (

b) of the Criminal Code .

(6) Possess a firearm to wit: sawed off .22 rifle, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code .

(7) Possess ammunition to wit: .22 ammunition, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code .

(8) Have in his possession a hatchet for a purpose dangerous to the public peace, contrary to

section 88 of the Criminal Code .

(9) Being bound by a probation order made by a judge of Provincial Court of Saskatchewan on November 20, 2017, without reasonable excuse fail to comply with a condition thereof, to wit, that the offender shall keep the peace and be of good behaviour, contrary to

section 733.1(1) of the Criminal Code . [ 2 ] At trial, the Crown entered a stay of proceedings on Counts 1 and 10. [ 3 ] For the reasons which follow, I find Richard Stonechild is not guilty of Counts 2, 3, 4, 5, 6 7, 8 and 9. Facts [ 4 ] On April 7, 2015, Madam Justice E.J. Gunn of the Court of Queen’s Bench for Saskatchewan ordered that Richard Aaron Stonechild was prohibited from possessing (

a) any firearm (not including a prohibited firearm or a restricted firearm ), cross-bow, restricted weapon, ammunition or explosive substance for a period of 10 years and (

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life (Exhibit P-4). Counsel for the accused admitted that on March 6, 2019 a firearms prohibition pursuant to

section 109 of the Criminal Code was in place against the accused. [ 5 ] On November 20, 2017 Mr. Justice T.J. Keene of the Court of Queen’s Bench suspended the passing of sentence on three offences which Richard Aaron Stonechild had been convicted of and placed Richard Aaron Stonechild on probation for 24 months on the conditions that he was to:

(1) Keep the peace and be of good behavior

(2) Appear before the court when required to do so by the court and

(3) Have no contact with a named individual (Exhibit P-3). Police Evidence [ 6 ] On March 6, 2019 four members of the Regina Police Service (RPS) were dispatched to a call for service at 2222 East College Avenue around 23:26 (11:26 p.m.). Cst. Jason Earl and his partner, Cst. Shumay arrived at the residence around two minutes later. Cst. Plomp and his partner Cst. Daku arrived about the same time. The police officers were met by Richard Stonechild at the back door of the residence which lead to a basement suite. Police asked Richard Stonechild what his name was. He gave the officers a false name, Michael Creely.

Richard Stonechild also told the police that his cousin, Ryan Stonechild was in the basement suite and was suicidal. He then invited the police officers into the basement suite. Cst. Earl followed Richard Stonechild to his bedroom which was to the right at the bottom of the stairs. Cst. Plomp also went into the basement suite. He turned to the left at the bottom of the stairs. He located Ryan Stonechild and Chelsea Crowe-Buffalo in a separate bedroom. [ 7 ] Cst. Pomp observed that Ryan Stonechild was sitting on the floor behind the door to the second bedroom.

Chelsea Crowe- Buffalo was sitting on the floor next to a bed. Ryan had blood on his nose and face. Cst. Plomp got Ryan to standup. Cst. Plomp saw a .22 magazine with some rounds in it on the floor where Ryan had been sitting. Cst. Plomp picked up the magazine, placed Ryan and

Chelsea in handcuffs and began a weapons investigation. He advised Cst. Earl that he had found a .22 magazine and joined him in Richard Stonechild’s bedroom. [ 8 ] Richard Stonechild was asked by police if he had any identification. He said he was going to go into his room to get some identification. When Richard Stonechild got into his room he said that he did not have any identification. Shortly thereafter Cst. Earl was advised by Cst. Plomp that he had located a magazine with ammunition in it in another bedroom. Cst. Earl then detained Richard Stonechild for a weapons investigation. While Cst.

Earl was in Richard Stonechild’s bedroom he observed a wooden handle sticking out from between a mattress and box spring which was in the bedroom. Cst. Earl thought the wooden handle looked similar to the buttstock of a gun. [ 9 ] Cst. Earl located a wallet on Richard and confirmed his identity as being Richard Stonechild. A CPIC search revealed that Richard Stonechild was also wanted on some outstanding warrants for his arrest. Cst. Shumay then took Richard Stonechild outside to a police vehicle. [ 10 ] Constables Earl and Plomp together carried out a weapons investigation in Richard Stonechild’s bedroom. Cst.

Plomp lifted the mattress up. He and Cst. Earl located two objects sandwiched between the mattress and the box spring. The first object which was initially observed to be a wooden handle which turned out to be foot long hatchet. The second object was located within approximately three feet of the hatchet it was a .22 calibre bolt action sawed-off rifle which was wrapped in a bandana. The serial number on the rifle had been removed. Cst. Plomp gave the .22 magazine to Cst. Earl. [ 11 ] Cst. Earl sent the .22 calibre rifle off to the National Forensic Laboratory for analysis.

He got confirmation in the form of a Certificate of Analysis (Exhibit P-2) dated September 15, 2019 from the Martin Champion, who is designated by the RCMP as an analyst of weapons, prohibited devices and ammunition. The Certificate of Analysis indicates that the .22 rifle is a firearm within the meaning of

Section 2 of the Criminal Code and is also a prohibited firearm within the meaning of

section 84 of the Criminal Code . The Laboratory Report (also part of Exhibit P-2) states that the serial number of the rifle has been obliterated and that during a chemical restoration process, a number of characters were observed. [ 12 ] Cst. Earl did not testify that he sent the magazine or its contents to the National Forensic Laboratory for analysis. However, the Certificate of Analysis (Exhibit P-2) reveals that Martin Champion also received three (3) .22 long rifle calibre cartridges for analysis.

After testing, Martin Champion certified that the said cartridges are of a design suitable for use in the .22 rifle, and that they were discharged in the said rifle and are ammunition within the meaning of section 84(1) of the Criminal Code in that they are cartridges containing a projectile designed to be discharged from a firearm. Chelsea Crowe-Buffalo [ 13 ] Chelsea Crowe-Buffalo also testified on behalf of the Crown. Ms. Crowe-Buffalo was dating Ryan Stonechild for about the first three months in 2019. She testified that Ryan Stonechild and his cousin Richard Stonechild lived in a basement suite in Regina.

She described the basement suite as being small with three rooms. Ryan had a room. Richard has a separate room. A third bedroom was a junk room. Ms. Crowe-Buffalo testified that she would come and go from the basement suite, however, she would stay with Ryan in his bedroom five out of seven days a week. She knew Richard Stonechild through Ryan. No one else stayed at the basement suite. [ 14 ] Ms. Crowe-Buffalo testified in-chief that she does not recall the incident leading up to the police coming to the basement suite. She was very intoxicated.

On cross-examination she stated she was too intoxicated to remember anything from that night of March 6, 2019. [ 15 ] Ms. Crowe-Buffalo testified that neither she nor Ryan Stonechild owned a gun. She further testified that on one occasion, around March 2019 Richard showed Ryan and her a sawed-off gun. She was unable to recall anything else about the gun. She did not know where Richard kept the gun. [ 16 ] On cross-examination Ms. Crowe-Buffalo testified that while she was with Ryan, he tried to kill himself by hanging. She found Ryan, cut him down and called for help. Richard Stonechild

[ 17 ] Richard Stonechild testified in his own defence. He moved into the basement suite of 2222 East College Avenue around the end of January 2019 with his cousin Ryan Stonechild and his girlfriend Chelsea Crowe-Buffalo. [ 18 ] About two weeks prior to March 6, 2019, Ryan Stonechild tried to hang himself and was admitted to a psychiatric ward. Ryan was discharged from the hospital in the morning of March 6, 2019 and returned to 2222 East College Avenue. Richard, Ryan and Chelsea then went shopping at the Victoria Square Mall. While they were out, he purchased a forty (40) ounce bottle of Wiser’s Whisky.

They returned to 2222 East College Avenue at 4 p.m. Richard testified that he left the residence shortly thereafter to visit some people. He returned to the residence around midnight. [ 19 ] Upon Richard’s return to the residence he observed that his cousin Ryan was crying and was “all bloody”. He also observed that Chelsea was drunk, mad and upset. The three talked for a while. He recalls telling Ryan to be quiet because he heard a knock at the door to the suite. [ 20 ] Richard went upstairs to the door to find police. He acknowledged that he provided a false name to the police because he was “on warrants”.

He invited the police to come into the residence. He testified that a police officer grabbed his wallet from him, handcuffed him and said he was going to search the house. He was placed in a police car. He was advised by police that they had found a gun. [ 21 ] Richard testified that the gun which police found was Ryan’s gun. He stated that Ryan had the gun before he went to psychiatric ward. To his knowledge the gun and a magazine was in Ryan’s bedroom when he let the police into the suite. He does not know why the police say a gun was found in his room.

When asked about the hatchet which had been found by police, he testified that the hatchet was his. [ 22 ] On cross-examination Richard testified that he knew the gun was in Ryan’s room. He had seen it by Ryan’s bed. He acknowledged that he was worried that Ryan might shoot himself. He told Ryan to get rid of the gun. He maintained that he never touched the gun and he does not know how the gun got into his bedroom. He also acknowledged that he was prohibited from having guns. He also testified that there was no lock on the door to his room and that he never saw the gun in his bedroom.

He confirmed that the hatchet was his and that he kept it to do work on the reserve with his father. He maintained that there was only one key to the basement suite and that he relied on Ryan and Chelsea to let him into the suite. He also maintained that at no point in time was he alone in the basement suite during the entire time he lived there. Issues [ 23 ] There are several issues raised in this trial.

They are as follows: 1) Did Richard Stonechild possess the hatchet found by police in his bedroom? 2) If yes to question one, has the Crown proved that Richard Stonechild possessed a weapon for a purpose dangerous to the public peace? 3) Did Richard Stonechild possess the sawed-off rifle found by police in his bed? 4) If yes to question three, has the Crown proved that the sawed-off rifle found by the police is a weapon, firearm and/or prohibited firearm within the meaning of sections 2 and 84 of the Criminal Code ? 5) Did Richard Stonechild possess the ammunition found by the police in the bedroom of Ryan Stonechild?

Analysis [ 24 ] For many of the counts set out in the Information, the Crown must prove possession . The Criminal Code provides for three forms of possession at section 4(3): personal possession, constructive, and joint possession. Section 4(3) of the Criminal Code provides as follows:

Possession … (

a) person has anything in 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. [25] In R v Morin, 2021 SKCA 3 Justice Tholl considered section 4(3) of the Criminal Code and stated as follows at paragraph 14: [14] From this definition, there are three separate ways a person can be in possession of an item for the purposes of an offence underthe Criminal Code. The most obvious way is personal possession, which occurs when an accused, knowing what the object is, manuallyhandles it.

Next, a person can be in constructive possession if he or she has knowledge of the item and some measure of control over itslocation.

Lastly, an accused can be in joint possession if the object is in the personal possession of a different person with the accused'sknowledge and the accused has some measure of control over it: see R v Fisher, 2005 BCCA 444 at paras 20-24, 200 CCC (3d) 338; R vDipnarine, 2014 ABCA 328 at paras 17-20, 316 CCC (3d) 357; R v Groshok, 2019 SKCA 39 at para 44; and R v Moberly, 2020 SKCA63 at para 9. [26] In R v Latimer, 2014 ABQB 325 [Latimer] police conducted surveillance on the accused who was observed to have accesseda storage locker from which she took two duffle bags.

The police subsequently obtained a warrant to perform a surreptitious entry intothe storage locker and located several firearms and ammunition. I am of the view that Latimer provides a very helpful

summary of thelaw respecting possession as follows: [18] Since none of the items in question were found on the Accused's person, the Crown must establish the Accused was in constructivepossession under s 4(3)(b)(ii). This requires the Crown to prove the Accused had knowledge of and a measure of control over the item inthe place it was found. The knowledge must extend beyond mere quiescent knowledge. Control means the Accused exercised control orhad a right to exercise control over the item. See R v Pham (2005), (ON CA), 77 OR (3d) 401 (CA) at paras 15; R vCaldwell, 1972 ALTASCAD 33 , [1972] 5 WWR 150 (Alta.

C.A.) at para 21. [19] Knowledge for the purposes of finding constructive possession can be established in law by proof of wilful blindness, which I willdiscuss shortly. See R v Nguyen, 2009 ABQB 234, aff'd 2010 ABCA 145. [20] I note that for joint possession under s 4(3)(b), the requirements are similar. There must be knowledge, consent, and a measure ofcontrol on the part of the person deemed to be in possession. See R v Pham at para 16; see R v Terrence, (SCC), [1983]1 SCR 357. [21] The Crown must establish each of the constituent elements of an offence beyond a reasonable doubt.

As is often the case withalleged constructive possession, the evidence here is largely circumstantial. To convict on circumstantial evidence, the court must besatisfied beyond a reasonable doubt that guilt is the only reasonable inference to be drawn from all the proven facts. In other words, theproven facts must be such that the constituent elements of possession are the only reasonable inferences to be drawn.

See R v To (1992), (BC CA), 16 BCAC 223, citing R v Cooper (1977), (SCC), 34 CCC (2d) 18 (SCC) per Ritchie J at 33. [27] More recently, the Supreme Court of Canada in R v Villaroman, 2016 SCC 33 at para 20, [2016] 1 SCR 1000 [Villaroman] setout the test to be applied when the Crown seeks to prove an element of the offence through circumstantial evidence. In such cases, thetrier of fact must be satisfied beyond a reasonable doubt that the defendant's guilt is the only reasonable inference to be drawn from theevidence as a whole.

The Alberta Court of Appeal in R v Bjornson, 2018 ABCA 282, 365 CCC (3d) 175, offered a helpful application ofthe principles set out in Villaroman as follows: [22] When deciding whether the only reasonable inference is that the accused is guilty, the trial judge has an obligation to considerwhether there are "other reasonable possibilities" that are inconsistent with guilt: Villaroman at paras 36-37. This duty is not limited toconsidering only reasonable inferences that arise from proven facts.

"Requiring proven facts to support explanations other than guiltwrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by

considering all of the evidence": Villaroman at para 35. A gap in the evidence, or an absence of evidence, may support a reasonableinference other than guilt, if the inference is supported by logic, common sense and human experience: Villaroman at para 37.

Thus, atrial judge is required to consider whether any reasonable inferences other than guilt arise from the application of common sense andhuman experience to the evidence and the absence of evidence. (See also R v Dipnarine, 2014 ABCA 328 at para 24, 584 A.R. 138.) [28] Wilful blindness can substitute for actual knowledge whenever knowledge is a component of the mens rea.

The SupremeCourt of Canada in R v Briscoe, 2010 SCC 13 at para 21, [2010] 1 SCR 411, stated: [21] The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she seesthe need for further inquiries, but deliberately chooses not to make those inquiries. See R. v. Sansregret, (SCC), [1985] 1S.C.R. 570 ((S.C.C.)), and R. v. Jorgensen, (SCC), [1995] 4 S.C.R. 55 ((S.C.C.)).

As Sopinka J. succinctly put it inJorgensen (at para. 103), "[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyesbecause he knew or strongly suspected that looking would fix him with knowledge?" 1) Did Richard Stonechild possess the hatchet found by police in his bedroom? [29] In this case Richard Stonechild admitted that the hatchet found by the police in his bedroom was his.

As a result, I find thatRichard Stonechild possessed the hatchet. 2) If yes to question one, has the Crown proved that Richard Stonechild possessed a weapon for a purpose dangerous tothe public peace? [30] I have previously found that the accused was in possession of a hatchet. There are two remaining questions: (1) whether theCrown has proved that the hatchet is a weapon within the meaning of

section 2 of the Criminal Code (2) if so, did the accused possess itfor a purpose dangerous to the public peace. Has the Crown proved that the hatchet is a weapon within the meaning of

section 2 of the Criminal Code? [31]

Section 2 of the Criminal Code sets out the definition of weapon as follows: “weapon” means any thing used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thingused, designed to be used or intended for use in binding or tying up a person against their will; [32] In this case, Constables Earl and Plomp testified that they found a foot long hatchet wedged between the box spring and themattress. Neither officer provided any further details regarding the hatchet.

Neither the hatchet itself or a photograph of the hatchet wastendered as an exhibit by the Crown. [33] In R v Laplante, 2011 SKQB 62 the accused was at a recycling centre and was observed by a witness to be actingsuspiciously. At one point the accused pulled up his shirt to scratch his side, exposing a sword which was tucked into the waistband ofhis pants. Police were called and a black handled sword in a sheath was recovered from the accused. The trial judge acquitted theaccused on the charge of carrying a concealed weapon.

Madam Justice McMurtry upheld the acquittal on appeal and stated as follows atparagraphs 19 to 20:

[19] The Crown argues that the sword should have been found by the trial judge to be prima facie a weapon, in the same manner that afirearm, or brass knuckles or other inherently dangerous items are considered weapons. On this basis, a sword would be distinguishedfrom a knife, which is not necessarily a weapon. (See R. v. Brooks (1988), (SK CA), 71 Sask. R. 297, [1988] S.J. No.643 (Sask. C.A.) and R. v. Jimmy, 2003 SKPC 112, 237 Sask. R. 84, [2003] S.J. No. 461 (Sask. Prov. Crt.) In R. v. Arrance, (1971), (BC CA), 3 C.C.C. (2d) 341 (B.C.

C.A.) at p. 345 the British Columbia Court of Appeal provides a usefuldescription of when an instrument may be found to be a weapon on a prima facie basis: One must, I think, start with the premise that a knife, being an instrument that is universally used for utilitarian, peaceful purposes isnot prima facie designed to be used as a weapon, that is to say, in warfare, fighting, or combat to overcome an enemy in attack or defence— and this, notwithstanding that a knife, like a multitude of other things (e.g. baseball bats, hatchets, pipe wrenches and ice picks) can onoccasion be used effectively in fighting offensively or defensively.

There is nothing to show that the knife in question here was designedto be used as a weapon when it is closed, it is as innocuous as any other jackknife; in order to open it, two hands must be used; thelocking device renders the knife safer when it is used for peaceful purposes.

The switch-blade I have described affords a useful contrast:there is no apparent normal, peaceful use to be served by the device that can arm the closed instrument in a flash; the purpose, or one ofthe purposes, of the device is to enable a person who is looking for or expects a fight to carry the closed knife concealed or partlyconcealed in one hand and, by the application of pressure to the button by the same hand, to have instanter in that hand a knife with theblade pointing forward from the handle. [20] In this case the trial judge found that the sword had a blunt edge.

Combined with the evidence that it is a decorative item, shedetermined that it was not designed for use as a weapon. The Crown argues that the learned trial judge ignored evidence that the swordalso had a tip. However, I disagree that this one factor should have led her to find the sword was designed to be used as a weapon. Iagree with the learned trial judge when she suggested that the "sword in question is not in the category of brass knuckles, firearms orswitch blades, which are weapons”. [21] The learned trial judge was required to address s. 2 of the Criminal Code with respect to the definition of a weapon.

There wasevidence upon which she could conclude that the Crown had not proved beyond a reasonable doubt that the accused intended to use thesword as a weapon, or that the sword was designed to be used as a weapon. Accordingly, the Crown's appeal is dismissed. [34] I adopt this statement of the law. [35] In the present case I too, start with the premise that a hatchet, being an instrument that is universally used for utilitarian,peaceful purposes is not prima facie designed to be used as a weapon. In addition, there is nothing to show that the hatchet in questionhere was designed to be used as a weapon.

The only evidence as to the purpose to which the hatchet was used came from the accusedwhile being cross-examined. Richard Stonechild testified that he kept the hatchet to do work on the reserve with his father. In my viewthis suggests the hatchet was being used for utilitarian, peaceful purposes. [36] I am of the view that the Crown had not proved beyond a reasonable doubt that the hatchet was designed to be used as aweapon or that the accused intended to use the hatchet as a weapon. As a result I am unable to conclude the hatchet is a weapon withinthe meaning of

section 2 of the Criminal Code. Has the Crown proved that the accused possessed the hatchet for a purpose dangerous to the public peace? [37] In R v Maurice, 2019 SKQB 112 Justice McMillan-Brown had occasion to summarize the law respecting an offence pursuantto

section 88 of the Criminal Code as follows: [25] In R. v. Kerr, 2004 SCC 44 (S.C.C.) at para 23, [2004] 2 SCR 371 (S.C.C.) [Kerr], the Supreme Court adopted the two-part test thatmust be satisfied in order to convict an accused alleged to have carried or possessed a weapon for a purpose dangerous to the publicpeace contrary to s. 88. The court stated: [23] In R. v. Cassidy, (SCC), [1989] 2 S.C.R. 345, at p. 351, this Court set out the two elements which the Crown mustprove in order to establish guilt on a charge of possession of a weapon for a purpose dangerous to the public peace:

Section 85 requires proof of possession and proof that the purpose of that possession was one dangerous to the public peace. There mustat some point in time be a meeting of these two elements. Generally, the purpose will have been formed prior to the taking of possessionand will continue as possession is taken. [26] In terms of the required mens rea for the offence, the Supreme Court in Kerr at para 25 made it clear that a determination of"purpose" has both objective and subjective elements that must be considered against the backdrop of all of the circumstances of thecase.

It is a hybrid objective/subjective test. [25] There is some confusion in the jurisprudence about the proper test to be applied in the determination of purpose. In my view, thecorrect approach — a hybrid subjective-objective test — was adopted by the Ontario Court of Appeal in Nelson, [(1972), (ON CA), 8 CCC (2d) 29 (Ont CA)]. By this approach, the trier of fact must first determine what was the accused person's purpose;this is a subjective determination.

The trier of fact must then determine whether that purpose was in all the circumstances dangerous tothe public peace; this is an objective determination. [27] Thus, in order to convict, the Crown must prove beyond a reasonable doubt that an accused possessed a weapon and that thepurpose in possessing the weapon was one that is dangerous to the public peace. [28] Breaking the second element — that of purpose — down even further, the court must decide: 1. what was the accused's subjective purpose in possessing the weapon; and 2. in all the circumstances, was that purpose objectively dangerous to the public peace? [38] I adopt this statement of the law. [39] In this case Richard Stonechild expressed his subjective purpose was in possessing the hatchet.

He kept it to do work on thereserve with his father. [40] I must look to the surrounding circumstances to determine whether Richard Stonechild’s purpose was objectively dangerousto the public peace. The hatchet was found in Richard Stonechild’s private bedroom, albeit it in an unusual place, wedged between thebox spring and mattress. There is no evidence that he shared this room with anyone or that anyone else was allowed access to it. Underthese circumstances, I do not consider Richard Stonechild’s possession of the hatchet was for a purpose dangerous to the public peace.

As a result, I am of the view that the Crown has not established that Richard Stonechild possessed the hatchet for a purpose dangerous tothe public peace. [41] For the reasons as stated above, I acquit Richard Stonechild on Count 8. 3) Did Richard Stonechild possess the sawed-off rifle found by police in his bed? [42] The Crown’s theory is that Richard Stonechild personally possessed or jointly possessed the sawed-off rifle. [43] While the sawed-off rifle was not found on Richard Stonechild’s person, it was found sandwiched between the box spring andmattress in his private bedroom over which he had control. [44] There are two very different accounts as to whether Richard Stonechild had any prior involvement with a sawed-off gun.

Onthe one hand, the Crown urges the court to accept the evidence of Ms. Crowe-Buffalo who testified that (1) neither she nor RyanStonechild owned a gun and (2) that once, around March 2019 Richard showed Ryan and her a sawed-off gun. [45] On the other hand there is the evidence of Richard Stonechild who testified that the gun which police found in his bed wasRyan’s gun. He testified that to his knowledge the gun and a magazine were in Ryan’s bedroom when he let the police into the suite. Hedoes not know why the police say a gun was found in his room.

In addition, he denies handling the gun. [46] As is sometimes the case in prosecutions involving firearms, in this case the Crown presented no evidence in the form ofphotographs of the sawed-off rifle or the magazine found by police with accompanying police exhibit numbers. Nor was there any DNAor fingerprint evidence linking Richard Stonechild to these items.

[47] The credibility and reliability of the witnesses testifying before the court is always important for a judge to consider. On thispoint, I am reminded of the words of my brother Judge Scheifner in R v Bird, 2021 SKPC 41 at paragraphs 45-46: Credibility and Findings of Fact: [45] It is a fundamental principle of criminal law that the Crown must present evidence to the Court to establish each element of theoffence and that such evidence must provide proof beyond a reasonable doubt.

If the Crown cannot discharge this burden, I must acquit.If there is evidence inconsistent with guilt and I accept that evidence, I must also acquit. If, after hearing all the evidence, I am left inreasonable doubt by it, I must acquit. In a criminal trial, the burden never shifts from the Crown to prove its case and to do so beyond areasonable doubt. See: R v W. (D.), (SCC), [1991] 1 SCR 742 [W.(D.)] at pages 757-58. [46] Before I set forth my findings of fact, I will note that credibility was central to my findings. Credibility is concerned with a witness’veracity.

It’s about a witness’s honesty - their willingness to tell the truth without amplification or obfuscation. Credibility is not an all ornothing proposition. A trier of fact may believe all, part or none of a witness’ evidence. Furthermore, a trier of fact may attach differentweight to different parts of a witnesses’ evidence. See: R v R. (D.), (SCC), [1996] 2 SCR 291 at para 93. See also: R vWolff, 2019 SKCA 103 at para 38, 380 CCC (3d) 223. In the end, the central question is whether or not the witness’ evidence is accurate. [47] A number of factors can be used to assess the accuracy of evidence, including: (

a) the overall likelihood or plausibility of theevidence, (

b) the presence of independent supporting evidence, (

c) consistency of a witness’ evidence with verifiably surrounding events,(

d) the internal consistency of the evidence, and (

e) the demeanor of the witness and the “balance” of his/her evidence. [48] I adopt this statement of the law. [49] Ms. Crowe-Buffalo testified that she was in a relationship with Ryan Stonechild from Christmas 2018 until April 4, 2019. During this time she spent a good deal of time with Ryan at the basement suite which he shared with his cousin, Richard. She also got toknow Richard, who she identified. She testified that she was very intoxicated on the evening of March 6, 2019 and does not rememberanything of that night.

She says she ended the relationship with Ryan on April 4, 2019 because he was talking to other girls. [50] Ms. Crowe-Buffalo was quite clear that neither she nor Ryan owned a gun. The Crown relies on a key segment of Ms.Crowe-Buffalo’s testimony, where she testified that on one occasion Richard showed Ryan and her a sawed-off gun prior to March 6,2019. Such testimony if accepted, leads to the inference that Richard Stonechild had knowledge of and personally possessed a sawed-offgun, shortly before the events on March 6, 2019.

This evidence also leads to the inference that the sawed-off rifle found in RichardStonechild’s bed on March 6, 2019 is the same gun. [51] There are several examples of Ms. Crowe-Buffalo willingness to tell the truth. For instance, she candidly testified as to theunpleasant event of finding Ryan hanging in the laundry room, cutting him down and calling the police. In addition, she testified that shewas intoxicated on March 6, 2019. Cst. Plomp’s testimony certainly corroborates that Ms.

Crowe-Buffalo was intoxicated that evening. [52] I do, however, have some concerns about her testimony particularly as it relates to the sawed-off gun she claims that theaccused, Richard Stonechild showed to her. Ms. Crowe-Buffalo initially testified in-chief that she could not remember when Richardshowed Ryan and her the gun. After a leading question by the Crown, she then testified that it would have been around the time she wasstaying at the house (basement suite). In addition, she could not initially remember where she was when Richard showed her the gun.

After a leading question put to her from the Crown, she said she was inside the house (basement suite) when Richard showed her thegun. Ms. Crowe-Buffalo eventually expanded upon her testimony, saying that just once Richard showed her and Ryan a gun inside thebasement suite around March 2019. In this case I find that Ryan had been in the hospital for approximately two weeks prior to March 6,2019. While I appreciate the phrase “around March 2019” could encompass dates prior to March 2019, I have some very real concernsas to whether this event occurred as described by Ms. Crowe-Buffalo.

In addition, I am concerned about Ms. Crowe-Buffalo’s inabilityto remember anything else about the gun, other than it was a sawed-off gun. These concerns, in my view, negatively affects both thecredibility and reliability of her testimony. [53] On the other hand, Richard Stonechild testified that that the gun which police found in his bed was Ryan’s gun. He had seenthe gun by Ryan’s bed before Ryan was hospitalized. He acknowledged that he was worried that Ryan might shoot himself and that hetold Ryan to get rid of the gun.

He maintained that he never touched the gun and he does not know how the gun got into his bedroom. [54] Richard Stonechild acknowledged in-chief that he initially provided a false name to the police, on the basis that he was aware

there were outstanding warrants for his arrest. Had he been charged with the offence of obstruction, he likely would have been convicted of the same. I find this act of dishonestly with the police somewhat negatively affects his credibility at trial. The Crown also urges the court to reject Richard’s assertion that he never spent any time alone in the basement suite. Although this seems to be unlikely, there is no evidence to the contrary before me. Lastly, I am aware of the self-serving nature of Richard Stonechild’s testimony. [ 55 ] This is a situation where I find Ms.

Crowe-Buffalo and Richard Stonechild to both be equally credible and reliable witnesses. I am unable to decide who to believe regarding the gun. As a result, based on the whole of the evidence before me I have a reasonable doubt as to whether Richard Stonechild had knowledge that the sawed-off rifle was in his bed on March 6, 2019.

Put another way, I am not sure that Richard Stonechild personally possessed the sawed-off rifle on March 6, 2019. [ 56 ] In addition, I am of the view that the Crown has not proved beyond a reasonable doubt that Richard Stonechild jointly possessed the sawed-off rifle with anyone else, in particular, Ryan Stonechild. The evidence does not establish that the sawed-off rifle found in Richard Stonechild’s bed was there with Ryan’s knowledge. [ 57 ] Lastly, I am of the view that the Crown has not proved beyond a reasonable doubt that Richard Stonechild was in constructive possession of the sawed-off rifle.

As stated earlier, I find that the Crown has not proved Richard Stonechild had knowledge that the sawed-off rifle was in his bed.

Summary: Possession of rifle [ 58 ] Although I have my suspicions, based on all the totality of the evidence in this case, I am not satisfied the Crown has proved beyond a reasonable doubt that Richard Stonechild possessed the sawed-off bolt action 22 rifle found in his bed on March 6, 2019. 4) If yes to question three, has the Crown proved that the sawed-off rifle found by the police is a weapon, firearm and/or prohibited firearm within the meaning of sections 2 and 84 of Criminal Code ? [ 59 ] As indicated above, I did not find that the Crown has proved that Richard Stonechild possessed the sawed-off rifle.

It follows that I must acquit him on Counts 2, 3, 4, 5 and 6. [ 60 ] In the event I have erred on my determination on possession, I am of the view that by virtue of evidence provided by Cst. Earl and Exhibit P-2 (see

Section 117.13 (1) of the Criminal Code ) the Crown has proved that this rifle is a weapon, a firearm and a prohibited firearm and Richard Stonechild would have known that the serial number on it had been removed. 5) Did Richard Stonechild possess the ammunition found by the police in the bedroom of Ryan Stonechild? [ 61 ] The magazine containing some rounds was found by Cst. Plomp on the floor in Ryan’s room where Ryan had been sitting. Clearly Richard did not personally possess the magazine.

Nor do I find that on the basis of the evidence before me that the Crown has proved beyond a reasonable doubt that Richard constructively or jointly possessed the magazine. [ 62 ] For the reasons as stated above I acquit Richard Stonechild on Count 7. [ 63 ] Lastly, as I have acquitted Richard Stonechild on Counts, 2, 3, 4, 5, 6, 7 and 8, I find the Crown has failed to prove he has breached the condition to keep the peace and be of good behavior as set out in a probation order made by a judge of the Provincial Court of Saskatchewan on November 20, 2017. As a result I acquit him on Count 9.

Conclusion [ 64 ] For the reasons given, I acquit Richard Stonechild on all of the charges before the court. _____________________________ M. Hinds, J