R v Pameolik, 2020 NUCA 13

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Pameolik, 2020 NUCA 13 Date: 20201030 Docket: 14-19-003-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Edmund Pameolik Appellant _______________________________________________________ The Court: The Honourable Mr. Justice Thomas W. Wakeling The Honourable Madam Justice Ritu Khullar The Honourable Madam Justice Elizabeth Hughes _______________________________________________________ Memorandum of Judgment

Appeal from the Conviction by The Honourable Mr. Justice Earl D. Johnson Dated the 7th day of March, 2019 ( Docket: 14-18-55) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I. Introduction [ 1 ] This is an offender conviction appeal. II. Questions Presented A.

Direct or Preferred Indictment [ 2 ] There was some confusion as to whether the Crown proceeded by a direct or preferred indictment. [ 3 ] This confusion was attributable to the Crown counsel’s statement after the preliminary inquiry that the Crown intended to file a direct indictment and the fact that the Crown subsequently filed a direct indictment. [ 4 ] But the Crown withdrew the direct indictment and filed a preferred indictment. [ 5 ] The accused pled to the preferred indictment. [ 6 ] Can an indictment be characterized as a direct indictment if the Crown never filed in court the written permission of the Attorney General or the Deputy Attorney General, as required by

section 577 of the Criminal Code ? [1] [ 7 ] Is the Crown precluded from preferring an indictment under

section 574 after the Crown advised the Court that the Crown would proceed by direct indictment under

section 577 of the Criminal Code and filed a direct indictment? [ 8 ] Did the Crown proceed by a preferred indictment under

section 574 of the Criminal Code or a direct indictment under

section 577 ? B.

Section 650 Issue [ 9 ] There was also some confusion as to whether Justice Johnson, in a pretrial conference at which the accused was not present, had ruled on the Crown’s right to withdraw the direct indictment and to prefer an indictment under

section 574 of the Criminal Code . [ 10 ] Justice Johnson, at the commencement of the trial, stated that in the pretrial conference he had made a “ruling” on the validity of the preferred indictment.

But the accused never applied for an order quashing the indictment and the Crown did not prefer an indictment until February 28, 2019, after the pretrial conference concluded. [ 11 ] Can a trial judge rule on the validity of an indictment in the absence of an application by the accused to quash the indictment? [ 12 ] Did the trial judge rule on the validity of the direct or preferred indictments in the absence of the accused and in violation of section 650(1) of the Criminal Code ?

This is important because section 650(1) of the Criminal Code declares that “an accused ... shall be present in court during the whole of his or her trial”. C. Included Offence [ 13 ] Is break and enter and the commission of mischief an included offence of break and enter and the commission of robbery?

D. Guilty Plea [ 14 ] After the jury found the accused guilty of break and enter and the commission of mischief, the accused pled guilty to breach of probation and the trial judge convicted the accused. He now argues that this Court should set aside this conviction because the accused would not have pled guilty had he not been convicted of the break-and-enter-and-commit-mischief count. [ 15 ] Must an offender who pleads guilty file a notice of appeal against the conviction based on a guilty plea before an appeal court can review the conviction? III. Brief Answers A. Preferred Indictment [ 16 ] The prosecutor preferred an indictment. Section 574(1)(

b) states that a “prosecutor may ... prefer an indictment against any person who has been ordered to stand trial in respect of ... any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry”. This is what happened here. The justice who conducted the preliminary inquiry ordered the accused to stand trial and the indictment is based on evidence taken on the preliminary inquiry. [ 17 ] It is regrettable that Crown counsel had announced in court that he intended to proceed by direct indictment and subsequently filed an indictment labeled “Direct Indictment”.

This created an understandable expectation on the part of the accused that he was the subject of a direct indictment. [ 18 ] Nonetheless, the Crown preferred a valid indictment, defence counsel eventually understood that the Crown was not proceeding by direct indictment, and the accused pled to the preferred indictment. While the prosecution got off to a rocky start, it was not invalid or unfair. B.

Section 650 Issue [ 19 ] Justice Johnson did not rule in the pretrial conference on the validity of the direct indictment. He did not have to. The accused never asked him to quash either the direct indictment or the soon-to-be-filed preferred indictment. The Crown did not prefer an indictment until after the pretrial conference. [ 20 ] It follows that Justice Johnson made no decision that affected the vital interests of the accused when the accused was not present. C.

Included Offence [ 21 ] At common law, break and enter and commission of mischief is not an included offence of break and enter and commit robbery. [ 22 ] The core elements of robbery are an accused using violence to take away the victim’s property with the intent to deprive the victim of his or her property. [2] Generally, mischief involves no carrying away of the victim’s property nor violence towards the victim. It features the destruction or damage or interference with the victim’s property. A person who commits mischief does not have to leave with the victim’s property.

Usually, a robber does. [3] [ 23 ] Nor is break and enter and commit mischief, under the statutory law – the Criminal Code [4] – an included offence of break and enter and commit robbery. [ 24 ] Section 662(6) of the Criminal Code stipulates that “[w]here a count charges an offence under paragraph ... 348(1)(b) [breaks and enters a place and commits an indictable offence] and the evidence does not prove that offence but does prove an offence under ... paragraph 348(1) (a) [breaks and enters a place with intent to commit an indictable offence], the accused may be convicted of an offence under ... [ paragraph 348(1) (a)]”. [ 25 ] This provision does not assist the Crown because the Nunavut Court of Justice convicted Mr.

Pameolik of an offence under section 348(1)(b) – break and enter and commission of mischief – and not an offence under section 348(1)(a) – break and enter with the intention to commit mischief. D. Guilty Plea [ 26 ] Mr. Pameolik has not filed a notice of appeal against his breach-of-probation conviction, nor has he sought to amend his notice of appeal. [ 27 ] It is not before us. IV. Statement of Facts A. Indictments

[ 28 ] On August 23, 2018, at the conclusion of the preliminary inquiry, the justice holding the inquiry ordered the appellant to stand trial [5] on five charges, including break and enter and commit robbery – a contravention of section 348(1) (

b) of the Criminal Code . [ 29 ] The preliminary inquiry justice declined to endorse on the information other charges the Crown requested because the justice believed the other charges were included offences and it was unnecessary to specify them. [6] [ 30 ] Crown counsel subsequently sought permission from the Attorney General to file a direct indictment. [ 31 ] On October 1, 2018 Crown counsel notified the Court and defence counsel of this: [7] Yes, Your Honour. This is a matter that has a little bit of a unique procedure attached to it.

The Crown has sought approval to file a direct indictment on this matter following some issues at the preliminary inquiry. I have received e-mail about an hour ago confirming from HQ in Ottawa that we are allowed to file that direct indictment. Therefore, I will be preparing that this week. It should be filed by Friday. [ 32 ] On October 25, 2018 the Crown filed an indictment labelled “Direct Indictment” charging the appellant with break and enter and the commission of robbery, a contravention of section 348(1) (

b) of the Criminal Code , and other crimes. [ 33 ] The Crown never filed with the Nunavut Court of Justice the written consent of the Attorney General or the Deputy Attorney General or an indictment signed by either. [8] [ 34 ] On February 28, 2019, after the conclusion of the pretrial conference, the Crown filed a preferred indictment under section 574(1) (

b) of the Criminal Code . [9] It sets out three of the four counts that appeared in the October 25, 2018 direct indictment: Count 1 On the 6 th day of June, 2018, in the Community of Arviat … did commit an assault on Michael Verrier contrary to

section 266 of the Criminal Code … . Count 2 On the 6 th day of June, 2018, in … Arviat … did by speaking utter a threat to Michael Verrier to cause death to Michael Verrier, contrary to

section 264.1(1) of the Criminal Code … . Count 3 On the 7 th day of June, 2018, in … Arviat … did break and enter a … dwelling house … in Arviat … , and did commit therein the indictable offence of robbery, contrary to section 348(1) (

b) of the Criminal Code … . B. Pretrial Conference [ 35 ] At the pretrial conference [10] held on either February 26 or 27, 2019, [11] there was some discussion about the direct indictment, the absence of the filed written consent of the Attorney General, and the Crown’s intention to prefer a new indictment.

But the accused did not move to quash the direct indictment or give notice of his intention to move to quash the preferred indictment after the Crown filed it. [ 36 ] On February 28, 2019, after the pretrial conference, the Crown preferred an indictment. [12] [ 37 ] Shortly after the trial commenced defence counsel asked that the pretrial conference discussion be noted on the record. Here are extracts from the submissions made by defence and Crown: [13] Ms.

Amin: … The defence position, just to be clear on the record, Your Honour, is that the defence has always been under the understanding that the Indictment was pursuant to

Section 577 , and it wasn’t until the matter was discussed with Crown counsel that we learned just days before the trial that the indictment was actually proceeding under

Section 574 . So the defence’s position is that the Indictment is a nullity, which results in a loss of jurisdiction. The matter was brought up in a pretrial conference. I understand that Your Honour has ruled the matter was not a nullity requiring the Indictment to be quashed. Rather the Indictment can be withdrawn and a new Indictment filed. … Mr.

Plourde: … The Crown submits that the original Indictments were not a nullity on the basis that it was always the intention, after the Attorney General Counsel got back to Crown and advised that we did not need to proceed by 577, we could go by 574(1)(b), after that, it was always the intention of the Crown to proceed by 574(1)(b). And when we filed the Indictment, it was a clerical error. The

section number was reflected wrongly when the Indictment was filed, and I take full responsibility for that. But the intention and the nature of the Indictments were to go by 574(1)(b). My friend said that it was raised a few days before trial, which I will just point out for the record that was approximately two weeks. … The defence did not bring any formal motion to quash the Indictment. … …

I submit there is no prejudice in filing a new Indictment before the court. [ 38 ] And here is a portion of the trial judge’s assessment of what had transpired at the pretrial conference: [14] So before we start the trial with the jury, I understand counsel wanted to raise on the record the issue that we dealt with in the pretrial conference, and that was that the Crown, in the first Indictment filed October … 12 th , 2018, filed it pursuant to

Section 577 . … I’m open to hear from counsel as to whether my ruling , which was that I thought the Crown was able to do what it did, which is to file a new Indictment. I didn’t quash it.

I’m treating it as being withdrawn and then replaced with the other new Indictment. … There was not a motion to quash, but in effect, the Crown withdrew the original Indictment once the issue [the fact that the indictment filed October 25, 2018 is described as a “Direct Indictment”] had been raised with the Crown and preferred a new Indictment. … And under all the circumstances, I don’t think there has been any prejudice to the accused and that the court has jurisdiction to continue with the trial. C.

Jury Charge [ 39 ] Justice Johnson’s charge to the jury included this segment: [15] If you find the accused not guilty of robbery, you will have to consider whether he is guilty of the lesser offences that are included in a charge of breaking and enter and committing robbery. Our law provides that an accused person may be convicted of a lesser or included offence where the Crown has failed to prove the more serious offence. … … The first included offence is break and enter and assault with a weapon. … If you find Mr.

Pameolik not guilty of assault with a weapon, you should consider whether he is guilty of breaking and entering and committing mischief. Breaking the lamp and damaging the table and door frame would constitute mischief under Section 430(1) of the Criminal Code . D. The Jury’s Verdict [ 40 ] On March 7, 2019, the jury found Mr. Pameolik guilty of break and enter and commit mischief – a contravention of section 348(1) (

b) of the Criminal Code – and not guilty of the other charges in the preferred indictment. [16] [ 41 ] After the jury found the accused guilty of break and enter and commit mischief and the trial court convicted him of this offence, the accused pled guilty to the breach of probation charge – a contravention of

section 733.1 of the Criminal Code – and the trial court convicted him of this offence, as well. [17] E. Notice of Appeal [ 42 ] Mr. Pameolik filed a notice of appeal and sought “[a]n order quashing the conviction under ss. 348(1) (

b) and an acquittal entered”. [18] [ 43 ] He listed three grounds of appeal. First, he argued that break and enter and commit mischief is not an included offence of break and enter and commit robbery, contrary to the trial judge’s charge to the jury. Second, he argued that the direct indictments were nullities. Third, he maintained that the trial judge should not have allowed the Crown to amend the indictments. [ 44 ] Mr. Pameolik did not appeal his conviction for breach of probation. V. Applicable Criminal Code Provisions [ 45 ] The relevant portions of the Criminal Code [19] are set out below: 322.

(1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his own use or to the use of another person, anything whether animate or inanimate, with intent (

a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it

(2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable. …

343 Every one commits robbery who (

a) steals, [20] and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person; (

c) assaults any person with intent to steal from him, or (

d) steals from any person while armed with an offensive weapon or imitation thereof. … 348.

(1) Every one who (

a) breaks and enters a place with intent to commit an indictable offence therein, (

b) breaks and enters a place and commits an indictable offence therein, … is guilty (

d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life.

(2) For the purpose of proceedings under this section, evidence that an accused (

e) broke and entered a place … is, in the absence of evidence to the contrary, proof that he broke and entered the place … with intent to commit an indictable offence therein … . … 430.

(1) Every one commits mischief who wilfully (

a) destroys or damages property; (

b) renders property dangerous, useless, inoperative or ineffective; (

c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or (

d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property. … 574.

(1) Subject to subsection (3), the prosecutor may, whether the charges were included in one information or not, prefer an indictment against any person who has been ordered to stand trial in respect of (

a) any charge on which that person was ordered to stand trial; or (

b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any charge on which that person was ordered to stand trial. … 577. Despite

section 574, an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if (

a) in the case of a prosecution conducted by the Attorney General … , the personal consent in writing of the Attorney General or the Deputy Attorney General is filed in court … . … 606.

(3) An accused is not entitled as of right to have his trial postponed but the court may, if it considers that the accused should be allowed further time to … move to quash … adjourn the trial to a later time … . … 650(1) Subject to subsections (1.1) to (2) and

section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial. … 662(6) Where a count charges an offence under paragraph … 348(1)(

b) and the evidence does not prove that offence but does prove an offence under … paragraph … 348(1)(a), the accused may be convicted of an offence under … [ paragraph 348(1) (a)].

VI. Analysis A. The Crown Proceeded by a Preferred Indictment [ 46 ] On February 28, 2019 the Crown preferred an indictment under section 574(1) (

b) of the Criminal Code . [ 47 ] As the trial judge correctly noted, [21] the Crown withdrew the suspect direct indictment [22] filed on October 25, 2018.

The common law authorizes the Crown [23] to do this. [24] No provision in the Criminal Code prohibits the Crown from withdrawing an indictment before an accused has pled. [25] [ 48 ] The Court arraigned the accused on the preferred indictment. [26] [ 49 ] While it is regrettable that Crown counsel filed the direct indictment when he intended to file a preferred indictment and unnecessarily caused considerable confusion, subsequent steps remedied the problem. [ 50 ] The accused suffered no prejudice as a result of Crown counsel’s mistake. [27] [ 51 ] It is obvious that the Crown proceeded by preferred indictment.

It was entitled to do so. B.

Section 650(1) of the Criminal Code Does Not Assist the Appellant [ 52 ] A trial judge must make any decision that affects the vital interests of the accused after the trial commences and in the presence of the accused. [28] “It is important for the accused to see and hear the entire process by which he or she is tried so that he or she sees that the trial is fair”. [29] [ 53 ] The appellant argues that Justice Johnson decided on the validity of the preferred indictment during the course of the pretrial conference – which he argues is part of a trial – in his absence. [ 54 ] We cannot accept this argument. [ 55 ] Justice Johnson did not rule on the validity of the direct indictment that was in existence at the time of the pretrial conference or the anticipated preferred indictment. [ 56 ] The accused did not invoke section 606(3) of the Criminal Code and ask Justice Johnson to quash any indictment.

There was nothing for the trial judge to decide. [ 57 ] Justice Johnson misspoke when he said that he had made a “ruling”. [30] [ 58 ] As Justice Johnson noted, “the Crown withdrew the original indictment ... and preferred a new Indictment”. [31] [ 59 ] The trial judge made no decision during the pretrial conference that adversely affected the vital interests of the accused. [ 60 ] If the accused believed the discussion at the pretrial conference was an improper process, he should have moved at the commencement of the trial to quash the preferred indictment filed on February 28, 2019, after the pretrial conference had concluded. [32] This never happened. [ 61 ] Section 650(1) of the Criminal Code does not assist the appellant.

C. Break and Enter and Commit Mischief Is Not an Included Offence of Break and Enter and Commit Robbery [ 62 ] The trial judge concluded that break and enter and commit mischief is an included offence of break and enter and commit robbery. [ 63 ] This is not the case – under either the common law or the statutory law. 1.

The Distinguishing Features of an Included Offence at Common Law [ 64 ] At common law an included offence has two distinguishing features. [ 65 ] First, an included offence describes the relationship between two or more offences of different degrees of gravity that contain common essential elements. [33] If crime A, the graver offence, has essential elements Q, R, S, and T, and crime B, the less grave offence, has essential elements Q, R, and S, crime B is an included offence of crime A.

An adjudicator may convict an offender charged with crime A of crime B if the prosecutor proves Q, R, and S to the requisite degree of certainty but not T. [ 66 ] Second, proof of the essential elements of the graver offence must constitute proof of the essential elements of the lesser offence. [34] Crimes A and B meet this part of the test. Proof of Q, R, S, and T – the essential elements of crime A – also constitutes proof of the essential elements of crime B – Q, R, and S. [ 67 ] These two features are easy to illustrate.

[ 68 ] Assault [35] is an included offence of assault causing bodily harm. [36] In turn, assault causing bodily harm is an included offence of aggravated assault. [37] [ 69 ] The essential elements of assault are the intentional application of force by one person against another without the consent of the other person. [38] O assaults V if O intentionally throws a ball at V with the intention the ball hits V, the ball strikes V, and V does not consent to O hitting him with a ball. [ 70 ] The essential elements of assault causing bodily harm include the essential elements of assault plus the existence of bodily harm caused by the assault. “Bodily harm” is a defined term. [39] It means “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”.

If the ball O threw at V struck him in the eye and caused extensive bruising around his orbital socket so that V could not see out of the eye for several days, the court could convict O of assault causing bodily harm. The damage is an injury that interferes with V’s health and is more than a trifling matter. If the adjudicator concluded that the Crown had proved the essential elements of assault beyond a reasonable doubt but was not satisfied to the requisite degree of certainty that the accused caused the bodily harm the victim exhibited, the adjudicator could find the accused guilty of assault.

This might be the case if V had been in a fight the previous day and complained that the punches to his head may have broken his eye socket. [ 71 ] The essential elements of aggravated assault include the essential elements of assault causing bodily harm plus a harm of a greater degree than is necessary for assault causing bodily harm. The assault must result in the wounding, maiming, disfiguring or endangering the life of the victim. This might be the case if the ball O threw at V caused V the loss of his sight in the eye.

If the adjudicator concluded that the Crown had proved beyond a reasonable doubt the essential elements of assault causing bodily harm but had failed to establish that the harm is of a nature required to qualify as wounding, maiming, disfiguring or endangering the life of the victim, the court could convict the accused of assault causing bodily harm. [ 72 ] If the Crown proves beyond a reasonable doubt the essential elements of aggravated assault, it has also established the essential elements of assault and assault causing bodily harm. [ 73 ] Some crimes pass the first test but not the second test.

Suppose the essential elements of crime C are Q, R, X, and Y. Crime C is a less grave offence than crime A. While Q and R are essential elements of both crimes A and C, proof of the essential elements of crime A – Q, R, S, and T – do not establish the essential elements of crime C – elements X and Y are missing. For example, assault while armed with a weapon – a breach of

section 267 of the Criminal Code [40] – is not an included offence of assault causing bodily harm [41] or aggravated assault. [42] Proof of the essential elements of either assault causing bodily harm or aggravated assault does not prove that the accused was armed with a weapon. [43] A person can cause a victim bodily harm or maim a victim without using a weapon.

This would be the case if the accused threw the victim off a second story balcony and the victim suffered a broken back. [ 74 ] If the indictment asserted that the accused was armed while he committed the offence of assault causing bodily harm, a court could convict for assault while armed with a weapon. We discuss this scenario below. [44] 2.

Included Offences Under the Criminal Code [ 75 ] Section 662(1) of the Criminal Code codifies the general part of the common law dealing with included offences: 662(1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on

summary conviction, the accused may be convicted (

a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or (

b) of an attempt to commit an offence so included. [ 76 ] The Criminal Code has adopted some statutory rules that make an offence an included offence even though it may not be an included offence at common law. [45] [ 77 ] Section 662(6) of the Criminal Code merits comment: [46] 662.

(6) Where a count charges an offence under … [section] 348(1)(

b) and the evidence does not prove that offence but does prove an offence under … [ section 348(1) (a)], the accused may be convicted of an offence under that latter paragraph. [ 78 ] This provision would have been available had the Crown brought it to the attention of the trial judge. [47] It is not of assistance to the Crown now because the Court convicted the appellant of a violation of section 348(1) (b) – break and enter and the commission of mischief – and not a contravention of section 348(1) (a) – break and enter with the intention to commit an indictable offence. [ 79 ] Section 348(2) would have assisted the Crown had the Crown asked for a conviction under section 348(1) (a): 348.

(2) For the purposes of proceedings under this section, evidence that an accused (

a) broke and entered a place … is, in the absence of evidence to the contrary, [48] proof that he broke and entered the place … with intent to commit an indictable offence therein. [ 80 ] Mischief is an offence that may be prosecuted by way of indictment or

summary conviction. [49] 3. Subsidiary Offences Identified in an Indictment

[ 81 ] There is one other case that we will refer to because it presents an important practical point – even though it is not a true included offence case under the common law – and illustrates how a component of section 662(1) operates. [50] [ 82 ] In The Queen v. Harmer , [51] the indictment read as follows: “William Joseph Miller and Garnet Roy Harmer stand charged that … they did steal … $9.00 from Raymond McCallum, and at the same time … did use violence which caused bodily harm to Raymond McCallum, and did thereby commit robbery, contrary to

Section 303 of the Criminal Code .” [ 83 ] The trial judge acquitted the accused of robbery and convicted them of assault causing bodily harm on the ground that “the offence of assault occasioning bodily harm is an included offence with respect to the charge of robbery”. [52] [ 84 ] Because a person may commit robbery without even touching the victim, it is obvious that assault causing bodily harm is not an included offence of robbery.

The two-part test for identifying included offences is not engaged at all. [ 85 ] The Ontario Court of Appeal stated that the indictment charging a principal offence may allege the accused committed a subsidiary offence in the course of committing the principal offence: [53] “It is clear that an indictment for robbery may, by particularizing the manner in which the offence was committed, properly include an offence or offences which would not be included offences if the principal offence were charged in general terms, for example, that A robbed B”. [ 86 ] This case makes good sense.

The indictment put the accused on notice that the court could convict him of robbery, the included offences of robbery, assault causing bodily harm, and assault as the included offence of assault causing bodily harm. [54] 4. Application of the General Principles to Mr. Pameolik’s Case [ 87 ] It is not enough to prove beyond a reasonable doubt that the accused broke and entered a place to make any offence under section 348(1) (b) – the commission of an indictable offence – an included offence.

Once the Crown alleged that robbery was the indictable offence the accused committed after breaking and entering a place, to secure a conviction for an included offence the Crown had to prove facts that constituted parts of the essential elements of robbery or an included offence of robbery – theft, for example. [55] [ 88 ] Mischief is not an included offence of robbery under section 662(1) of the Criminal Code . [56] [ 89 ] Sections 1, [57] 322 [58] and 343(a) [59] of the Criminal Code record the essential components of robbery.

Robbery has, as its core elements, the accused using violence to take away the victim’s property with the intent to deprive the victim of his or her interest in the property. [60] [ 90 ] Mischief, according to section 430(1) of the Criminal Code , features the destruction of or damage to the complainant’s property by the accused or interference with the lawful use of property, and not the acquisition by the accused of the victim’s property or the deprivation of the victim of his property. A person can commit mischief without taking the victim’s property away from the victim.

It is not enough that robbery and mischief both deprive the victim of the ability to use his or her property at all or in the manner it was intended to be used. [61] [ 91 ] The Criminal Code has not adopted a special rule to make mischief an included offence of robbery. [ 92 ] As a result, the Court convicted the appellant of a crime with which he could not be convicted. The conviction must be set aside. D. The Appellant Has Not Appealed His Conviction for Breach of Probation Under

Section 733.1 of the Criminal Code [ 93 ] The appellant’s counsel informed us that his client pled guilty to the breach of probation count because the Court convicted him of the break and enter count. He asks us, if we decide to grant his client’s appeal against the conviction for break and enter and commit mischief, to set aside Mr. Pameolik’s conviction for breach of probation. [62] [ 94 ] Assuming, without deciding, that the appellant counsel’s account of his client’s motivation for pleading guilty is accurate, [63] we cannot accede to this request.

The appellant has not appealed his conviction for breach of probation and it is not before us. VII. Conclusion [ 95 ] We allow the appeal and quash the conviction for break and enter and commission of mischief – a contravention of section 348(1) (

b) of the Criminal Code . [ 96 ] Counsel’s written and oral submissions were very helpful. Appeal heard on September 15, 2020

Reasons filed at Iqaluit, Nunavut this day of October, 2020 Wakeling J.A. Khullar J.A. (Authorized to sign for) Hughes J.A. Appearances: Shannon O’Connor for the Respondent Benson Cowan for the Appellant