R v Parchomchuk, 2021 SKCA 145

Court of Appeal for Saskatchewan Docket: CACR3459 Citation: R v Parchomchuk , 2021 SKCA 145 Date: 2021-11-01 Between: Christopher John Parchomchuk Appellant And Her Majesty the Queen Respondent Before: Jackson, Ryan-Froslie and Tholl JJ.A. Disposition: Conviction appeal allowed (orally) Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Mr.

Justice Tholl On appeal from: Provincial Court, Regina Appeal heard: November 1, 2021 Counsel: Christopher Parchomchuk, self-represented Andrew Davis for the Respondent Jackson J.A. [ 1 ] When this appeal was heard, the Court allowed the appeal, expunged Mr. Parchomchuk’s guilty plea with respect to one count of break, enter and theft under s. 348(1) (

b) of the Criminal Code and quashed the conviction for that charge. We gave brief reasons with written reasons to follow. These are those written reasons. [ 2 ] On April 18, 2021, someone entered Regina Line-X, located at 1865 McAra Street in Regina, through an unlocked door. The suspect’s presence was captured on video. The owner advised the police that the following items were missing: (

a) a 2015 Dodge Ram 2500 pickup truck; and (

b) a dozen chocolate bars, two hats, two bottles of liquor, an iPhone 6, and two key fobs for a vehicle located elsewhere on the premises . [ 3 ] On April 19, 2021, Mr. Parchomchuk was found driving the stolen pickup truck in the Swift Current area. He was arrested and charged with the following offence: Christopher John Parchomchuk … did … (2) have in his possession property, to wit a 2015 Dodge Ram 2500, of a value exceeding five thousand dollars knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment contrary to section 354(1) (

a) and 355 (

a) of the Criminal Code . [ 4 ] On April 21, 2021, Mr. Parchomchuk pleaded guilty to the above offence [s. 354 offence] and a charge of evading the police. He was sentenced to six months of imprisonment, which was ordered to be served in the community under a conditional sentence order [CSO]. He promptly breached the terms of his CSO. He was arrested a short while later. [ 5 ] At some point in this process, the police determined that Mr. Parchomchuk was the person who stole the 2015 Dodge Ram 2500. The exact date does not appear in the transcript. It is known, however, that on April 29, 2021, Mr.

Parchomchuk was charged with the following offence: Christopher J Parchomchuk … did break and enter a place, to wit: business situated at 1865 McAra St and did commit therein the indictable offence of theft of motor vehicle, contrary to section 348(1) (

b) of the Criminal Code . [ 6 ] On May 19, 2021, Mr. Parchomchuk, with the assistance of counsel, pleaded guilty to the above offence [s. 348 offence]. He was sentenced to ten months of imprisonment (less pre-sentence custody). On the same day, Mr. Parchomchuk was sentenced to 45 days of imprisonment for a charge stemming from an unrelated event. His counsel also agreed that the CSO should be terminated. In the final result, the ten-month sentence and the 45-day sentence were ordered to run consecutively to each other and consecutively to the terminated CSO, i.e., to the sentence for the s. 354 offence. [ 7 ] Mr.

Parchomchuk appealed his sentence for the s. 348 offence only, saying that the ten-month sentence should run concurrently with the six-month sentence for the s. 354 offence. He did not initially appeal his conviction under s. 348, but a judge of this Court extended the time to file his appeal. [ 8 ] In his notice of appeal from the s. 348 conviction, which Mr. Parchomchuk prepared without counsel, he set out his grounds of appeal, arguing largely that he had not been effectively represented. He expanded on what he meant by this in his written memorandum.

The basis of his allegation of ineffective counsel was that he had not been sufficiently informed about what was happening or what was meant by breaking and entering. He said he would not have pleaded guilty if he had understood everything or if he had known that he would receive consecutive time. In short, he seeks to withdraw his guilty plea and have his s. 348 conviction set aside on the basis that it was not an informed plea. [ 9 ] A person who seeks to withdraw their guilty plea, and have their conviction set aside, must bring themselves within the law

that governs such matters. The most-often cited statement of that law from this Court is R v Arcand, 2000 SKCA 60, 199 Sask R 4, whereCameron J.A. stated as follows: [3] As for the request to erase his plea, we note the law empowers an appellate court to expunge a guilty plea, which constitutes a formaladmission of guilt, and to quash the resulting conviction, but only on valid grounds. It is not within the power of an appellate court toexpunge a voluntary, unequivocal, and informed plea of guilty, made by a person aware of the nature of the allegations, the effect of theplea, and its consequences: R. v.

T.(R.) (1992), (ON CA), 17 C.R. (4th) 247 (Ont. C.A.). Only if there be something tothe contrary may an appellate court do so. And it is up to the person seeking to withdraw a guilty plea to satisfy the court that a validground of this nature exists. (Emphasis added) See also more recent case law on point: R v Hodgson, 2019 SKCA 79, [2020] 1 WWR 407; R v Aisaican, 2019 SKCA 58, 377 CCC (3d)114; and R v Sunshine, 2016 SKCA 104, 484 Sask R 259.

Normally, the Arcand principles constitute a significant hurdle to overcome,particularly when an appellant was represented by legal counsel before the trial court. [10] In this appeal, however, it became apparent to the Court that there is a problem with the s. 348 conviction – givenMr. Parchomchuk’s earlier guilty plea to possessing the very vehicle that he was convicted of stealing. From the record at trial, it appearsthat neither Crown counsel nor counsel for Mr.

Parchomchuk nor the sentencing judge considered the effect of R v Kienapple, (SCC), [1975] 1 SCR 729, and related case law, on the two guilty pleas in this case: R v Hewson, (SCC),[1979] 2 SCR 82 at 97; R v Prince, (SCC), [1986] 2 SCR 480 at para 22 [Prince]; and R v Ruud, (BCCA), 1990 CarswellBC 1900 (WL) at para 7. [11] The Kienapple principle is difficult to define in brief, yet all encompassing, terms. Nonetheless, it is sufficient for this appeal tosay it prevents “multiple convictions in respect of the same cause, matter or delict …” (Prince at para 31).

When this law is applied to onecount of breaking, entering and committing theft and one count of possessing the property that was stolen, the present practice is to preferan information charging both offences. As a general rule, however, if the person is found guilty of both counts, the trial judge is asked todirect a stay or a conditional stay with respect to the lesser charge: see E.G. Ewaschuk, Criminal Pleadings and Practice in Canada, loose-leaf (Rel 7, October 2021), 2d ed (Aurora, Ont: Canada Law Book, 2019) at §16:335, “Procedure on Multiple Convictions”.

As Crowncounsel indicated, the lesser charge in this case would be the possession of stolen property under s. 354. [12] Here, of course, Mr. Parchomchuk pleaded guilty to and was sentenced for the s. 354 offence, which means it is not possible tostay the conviction based on that offence conditionally or otherwise. Even though it is now not possible to stay the s. 354 count, as Crowncounsel on appeal conceded, the conviction under s. 348, as charged, is rendered unlawful by virtue of the law against multipleconvictions. [13] The question is then one of remedy.

The Crown asked this Court to consider dismissing the appeal and holding thatMr. Parchomchuk was properly convicted on a part of the indictment, as described in s. 686(1)(b)(

i) of the Criminal Code. That sectionreads as follows: Powers of the Court of Appeal Powers 686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal … (

b) may dismiss the appeal where (

i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properlyconvicted on another count or part of the indictment … . [14] Specifically, the Crown submitted that this Court should amend the indictment so that it would read as follows: (

a) that Mr. Parchomchuk did break and enter a place, to wit: business situated at 1865 McAra St with intent to commit anindictable offence therein, contrary to section 348(1)(

a) of the Criminal Code; or (

b) that Mr. Parchomchuk did break and enter a place, to wit: business situated at 1865 McAra St and did commit therein theindictable offence of theft of various items such as chocolate bars, hats, bottles of liquor, an iPhone 6, and key fobs for a vehicle, contraryto section 348(1)(

b) of the Criminal Code. [15] However, this Court was not persuaded that it was appropriate to exercise its powers under s. 686(1)(b)(

i) with respect to eithersuggested amendment. If the Crown remains convinced that it needs to proceed further with respect to this matter, it would be preferablefor such arguments to be made before a trial court, when Mr. Parchomchuk can have the benefit of counsel. [16] In the result, the conviction appeal is allowed, the May 19, 2021, guilty plea with respect to count 1 on information 991159509,dated April 29, 2021, being the charge under s. 348(1)(b), is expunged and the conviction is quashed. As a result, Mr. Parchomchuk’s ten-month sentence is, of course, set aside.