Her Majesty the Queen - v. -, 2015 SKPC 138

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 138 Date: August 13, 2015 Information: 24535253 Location: Carrot River _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brent Branscombe Appearing: Tom Healey For the Crown Grant Carson For the Accused JUDGMENT I.J. CARDINAL , J INTRODUCTION [ 1 ] On September 20, 2014 John Gabrysh, a licensed private investigator and bailiff, attended to a field in the Carrot River district to serve documents on Mr. Branscombe concerning a civil matter. He was greeted with a firearm and immediately left the area.

[ 2 ] Mr. Branscombe is now charged with pointing a firearm at Mr. Gabrysh contrary to s. 87(2) of the Criminal Code . He is also charged with possessing a firearm knowing that he is not the holder of a license under which he may possess it contrary to s. 92(3) (

a) of the Criminal Code . ISSUE What is the effect of the Crown having elected to proceed by way of

summary conviction on the charge of possession of firearms knowing he was not the holder of a licence to do so, contrary to section 93(2)(a) , when it is an indictable offence at law which does not allow for the Crown to proceed summarily? [ 3 ] A review of the endorsements indicates the Crown, represented by a police officer as is often the case, elected to proceed by way of

summary conviction on both counts on the Information at Mr. Branscombe’s first appearance on November 13, 2014. He entered not guilty pleas and, as it was noted, he had retained Mr. Carson (who was not present), the matter was set for trial to January 22, 2015. [ 4 ] On January 22, 2015, the trial did not proceed as the Crown, represented by Mr. Healey, requested an adjournment due to the unavailability of a witness. Mr. Carson was present with Mr. Branscombe and opposed the adjournment. The Court granted the adjournment and a new trial date of July 9, 2015 was set.

No one raised the issue of the Crown having proceeded summarily on a purely indictable matter. [ 5 ] On July 9, 2015 the trial proceeded before me. Again, neither counsel raised the issue that the Crown had proceeded by

summary conviction on a purely indictable matter, nor did I note this error. Mr. Healey represented the Crown and Mr. Carson represented Mr. Branscombe. The trial evidence and oral arguments by counsel concerning both counts was heard and concluded. I requested counsel file any supplementary case law by July 20, 2015, and the matter was adjourned for decision to August 13, 2015 in Carrot River. [ 6 ] On July 20, 2015 the Court received a supplementary brief of law where Mr. Carson raised the issue that the Crown had proceeded summarily on a purely indictable matter.

He submits the Court should dismiss the charge. [ 7 ] Mr. Branscombe is charged in Count 2 of Information 24535253 that he did possess a firearm, to wit : a long barrel gun, knowing that he was not the holder of a licence under which he may possess it contrary to section 92(3) (

a) of the Criminal Code .

Section 92 states: 92(1) ...every person commits an offence who possesses a firearm knowing that the person is not the holder of (

a) a licence under which the person may possess it.

(3) Every person who commits an offence under subsection (1)... is guilty of an indictable offence and liable (

a) in the case of a first offence, to imprisonment for a term not exceeding ten years; [ 8 ] Clearly this is a purely indictable offence at law where the accused is entitled to an election pursuant to s. 536(2). The offence in s. 92(3) (

a) is not one listed in s. 469 nor is it one over which a provincial court judge has exclusive jurisdiction pursuant to s. 553.

[9] Counsel for the accused relies upon R v Abramczuk

(1982) CanLII 2261 ONSC where the Crown proceeded summarily on apurely indictable offence. The trial was underway when the trial judge noted the offence was purely indictable. Another judge heardthe application for a stay of proceedings and that judge entered a stay of proceedings and declared a mistrial. He stated: ...There has been inadvertently or otherwise an abuse of the court’s process in that there has been a loss of the appearance of justice beingdone in the circumstances peculiar to this case.

The Crown appealed and the Superior Court dismissed the appeal and indicated that this situation was labelled an exceptionalcircumstance which supported the decision to stay the proceedings as an abuse of process. [10] In R v Shia,

(2015) ONCA 190 (CanLII Ont) the accused was charged with the unlawful production of marijuana, and the Crownelected to proceed by way of

summary conviction even though it was a purely indictable offence. A joint submission was presented foran absolute discharge, and the presiding Provincial Court Judge sentenced him accordingly. However, it was not mentioned that therewas a mandatory firearm prohibition pursuant to s. 109 of the Criminal Code, and the judge did not make the order. When Mr. Shiarequested his firearms be returned, the police refused. He appealed on the basis of the improper election and the Court ordered a newtrial. At paragraph 26 and 27 the Ontario Court of Appeal noted: 26.

As a person charged with an indictable offence not listed in either s.469 or s. 553 of the Criminal Code, the appellant was entitled toelect his mode of trial under s. 536(2) of the Criminal Code. He was never afforded this statutory requirement. 27. The presiding judge had no inherent jurisdiction to try the appellant or receive his plea of guilty. The judge’s authority to do eitherdepended entirely on the appellant’s election “to be tried by a provincial court judge without a jury and without having had a preliminaryinquiry” as s. 536(2) requires.

The absence of an election meant that the provincial court judge had no authority to try the appellant or toreceive his plea of guilty: R. v. Varcoe, 2007 ONCA 194, 219 C.C.C. (3d) 397 (Ont. C.A.), at paras. 15 and 22; R. v. Mitchell (1997), (ON CA), 121 C.C.C. (3d) 139 (Ont. C.A.), at paras. 28-30. [11] The trial judge in Shia was functus as the plea was taken, a conviction registered and sentence proclaimed. That is not the casehere. I am not functus as I have not yet made a final determination. As observed in Shia, supra, at para 24: ...The trial Crown had no right to elect to proceed by

summary conviction. Consequently, that election was a nullity and of no force oreffect. The offence remained an indictable offence despite this flawed election... [12] In this case, I prefer the reasoning in Shia over that of Abramczuk and I am not prepared to dismiss the charge in Count 2. Rather, I am going to adjourn the matter to a future date in Carrot River for defence election and plea. Perhaps discussions betweencounsel can occur to determine the next course of action. [13] As the Crown was entitled to elect to proceed by

summary conviction on Count 1 (pointing a firearm) that election remains. Thetrial properly proceeded on Count 1 and I will proceed to give my decision concerning that count only. ______________________________________ I. J. Cardinal, J