R. v. Powers

2016 BCSC 2606 R. v. Powers IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Powers, 2016 BCSC 2606 Date: 20161117 Docket: 39609-5 Registry: Courtenay Regina v. Jeremy John Powers Restriction on Publication: Pursuant to s. 539 of the Criminal Code of Canada Before: The Honourable Madam Justice S. Griffin Oral Reasons re Kienapple Application Counsel for the Crown: Richard L. Ellsay Counsel for the Accused: Bobak Movassaghi Place and Date of Hearing: Nanaimo, B.C. November 17, 2016 Place and Date of Judgment: Nanaimo, B.C. November 17, 2016 [1] On September 7, 2016, a jury convicted Mr. Powers of six of seven counts arising out of an incident that occurred on November 6, 2015. The present issue is whether the rule against multiple convictions for the same wrong applies and there should be a conditional stay of proceedings of a conviction on any charges. [2] The incident involved Mr. Powers bringing a shotgun to the home of his ex-wife, Ms. Cunningham, and her partner of over a year at the time, Mr. Routley, and the two children of Ms. Cunningham and Mr. Powers, a boy aged five and a girl aged two. There Mr. Powers held the shotgun in one hand and tried to force open glass doors leading from the deck of the home into the main living area, where the occupants were. Ms. Cunningham was telling him to leave while he did this, but he forced his way into the home. This evidence was uncontradicted. [3] There was a dispute on the evidence about whether Mr. Powers brought the shotgun into the home, which was the evidence of Ms. Cunningham and Mr. Routley. Mr. Powers' evidence was that he left the shotgun on the deck after forcing his way in. Either way, there was evidence that for a time Mr. Powers leaned the gun on the outside wall of the home or the deck wall, went inside the home, and momentarily forgot where he put it. [4] Also, Mr. Powers admitted that he had attached a magazine to the shotgun with two live rounds in it and that he had not put the safety on the gun, and he believed the safety was not on at the time. [5] Mr. Powers admitted that at a point after forcing his way into the home, and it seemed it was just before he left, he took the shotgun and manipulated the action on it three times to pop out the two live shells, which fell on the floor. Ms. Cunningham and Mr. Routley said he did this in the home. Mr. Powers said he did this after going back out of the interior of the home to retrieve the gun outside, but standing close enough to the interior that the shells dropped on the floor and one rolled into the home. [6] There was evidence that once inside the home, Mr. Powers said words to Mr. Routley that Mr. Routley considered a threat to his family. [7] The jury found Mr. Powers guilty on the following counts [Indictment 39609‑5]: Count 1, break and enter and committing an indictable offence therein, contrary to s. 348(1)(b) of the Criminal Code; Count 2, using a firearm, a shotgun, while committing or attempting to commit the indictable offence of break and enter, contrary to s. 85(1) of the Code; Count 4, possession of a weapon, a Grizzly 12 gauge shotgun, for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to s. 88(1) of the Criminal Code; Count 5, knowingly conveying a threat to Robert Routley to cause death or bodily harm to Robert Routley or his family, contrary to s. 264.1(1)(a) of the Criminal Code; Count 6, without lawful excuse, using a firearm, a Grizzly 12 gauge shotgun, in a careless manner or without reasonable precautions for the safety of other persons, contrary to s. 86(1) of the Criminal Code; Count 7, possession of a prohibited firearm, restricted firearm, or a non-restricted firearm, a Grizzly 12 gauge shotgun, without being the holder of a licence under which he may possess a firearm, or without being the holder of a registration certificate for the firearm, contrary to s. 91(1) of the Code. [8] The jury found Mr. Powers not guilty on Count 3, a charge of pointing a firearm without lawful excuse at Mr. Routley, contrary to s. 87(1) of the Criminal Code, R.S.C. 1985, c. C-46. Parties' Positions [9] The defence focuses on Counts 2, 4 and 6, all of which involved either use or possession of a weapon. [10] The defence relies on the principle in R. v. Kienapple, [1975] 1 S.C.R. 729, ["Kienapple"], to argue that Count 4, possession of the gun for a dangerous purpose, and Count 6, use of the gun in a careless manner, should be conditionally stayed due to the conviction on Count 2, use of a firearm to commit an indictable offence, break and enter. [11] The Crown's position changed during submissions. The Crown ended up conceding that Count 4 should be conditionally stayed, but submitting that Count 2 should not be. [12] Both counsel relied on only one authority, R. v. Briscoe (1992), 76 C.C.C. (3d) 563, [1992] B.C.J. No. 2083 (B.C.C.A.), [Briscoe]. Legal Principles [13] I turn to Briscoe for a summary of the Kienapple principle, which is set out at paras. 11-12 as follows: 11 The basic principle of law is that there should not be multiple convictions for the same "delict", "matter", or "cause". While that principle itself is not difficult to understand, its application has been the subject of great difficulty, particularly in those cases where one or more of the offences charged have been continuing offences. I do not propose to review all of the cases to which counsel have referred, nor to attempt a re-statement of the propositions set out by Dickson, C.J.C. in the Prince case, [1986] 2 S.C.R. 480. For the purposes of this appeal I find it necessary to consider and apply only three of the many authorities which adorn this vexing area of law. The first is the decision of this Court in R. v. Andrew (1990), 46 B.C.L.R. (2d) 325. The other two are the Supreme Court of Canada decisions in Loyer and Blouin and Krug. 12 In Andrew this Court sat five judges to consider the rule against multiple convictions in the context of certain driving offences. Writing on behalf of the full Court, Mr. Justice Lambert reviewed the decision of the Supreme Court of Canada in Prince and then summarized the tests relevant to the application of the rule in the following terms; at p. 331 of the report: One step is to look at the facts, in the context of the offences, and to decide whether the facts that underlie the two convictions are in a relationship of sufficient proximity that only one wrongful act, in its physical and mental elements, is involved. The other step is to look at the offences, in the context of the facts, to decide whether, in this particular case, the apparently distinguishing element in one count should be regarded merely as a particularization of the apparently distinguishing element in the other count. [14] It is not always easy to determine if two offences were based on the same set of facts if the offender was convicted by a jury and there was more than one possible factual basis for a conviction. I find guidance from the case law dealing with sentencing following a jury verdict as articulated by Joyce J. at para. 5 in R. v. Brisson, 2009 BCSC 1606, [Brisson]. [15] In the situation of a Kienapple application following a jury conviction on multiple charges, I would take the approach in Brisson and modify it as follows: 1. The judge must determine the facts necessary for the Kienapple application from the issues before the jury and from the jury's verdict. 2. The judge is bound by the express and implied factual implications of the jury's verdict, and must accept as proven all facts express or implied that are essential to the jury's verdict. 3. The judge must not accept as fact any evidence consistent only with a verdict rejected by the jury. 4. When the factual implications of the jury's verdict are ambiguous, the judge should not attempt to follow the logical processes of the jury, but should come to his or her own independent determination of the relevant facts. 5. Any finding that two convictions were based on separate or different facts and that there should, therefore, not be a stay of one of the convictions based on Kienapple, is to the prejudice of the accused and should, therefore, only be reached if the judge is satisfied beyond a reasonable doubt that there was a different factual basis for the multiple convictions at issue. [16] This approach is consistent with the approach taken by the Court of Appeal in Briscoe. In Briscoe, the Court found that the principle in Kienapple applied to bar a conviction for having possession of a weapon dangerous to the public peace in a case where the accused was also convicted of assault with a weapon. There, the circumstances of the offences involved the accused taking a replica handgun, which was an operating BB gun, to the door of the complainant, saying to him when he came to the door, "You're going to pay for all the trouble", and then pointing it at him. [17] The Court of Appeal in Briscoe noted that the accused was convicted by a jury and inferred what facts were implicit from the jury's verdict (at para. 7). [18] In addition to the evidence that was before the jury and the jury verdict itself, the Court in Briscoe, at paras. 8 and 17, mention two additional factors that the court should consider when considering what facts are implicit from the jury's verdict: the submissions of the Crown and the jury charge. [19] The Court in Briscoe noted that neither the Crown's presentation of the case nor the trial judge's charge sought to divide the possession of the weapon into two separate time intervals, one which would support two distinct offences in two distinct time frames. Analysis [20] I turn now to my analysis of the issues. [21] The parties agree that based on the possible sentences that apply, the most serious of the three offences was Count 2, use of the shotgun while committing the offence of break and enter. [22] Count 4 is the next most serious offence, possession of the shotgun for a dangerous purpose. [23] Count 6 is the least serious of the three offences, use of a firearm in a careless manner. [24] All three of these offences involve possession of the shotgun, but both Counts 2 and 6 require the additional element of use of the shotgun. [25] The parties agree that Count 4, possession for a dangerous purpose, and Count 6, careless use, are not duplicative of each other. Since Count 6 has an additional element of use as compared to Count 4 and is a less serious offence than Count 4, it is not subject to the Kienapple principle in relation to Count 4. Since Count 4 is a more serious offence than Count 6, it is not subsumed in Count 6 and thus not subject to the Kienapple principle in relation to Count 6. [26] In summary, the issues are whether: a) Count 4, possession of the shotgun for a dangerous purpose, is subsumed in Count 2, use of the shotgun while committing break and enter; and, or b) Count 6, careless use of a firearm, is subsumed in Count 2, use of the shotgun while committing break and enter. Factual Basis of Counts 2 and 4 [27] Let me begin with finding of facts that are implicit from the jury's verdict in relation to Counts 2 and 4. [28] It is clear in relation to Count 2 that the jury must have been persuaded beyond a reasonable doubt that Mr. Powers took the shotgun to the Cunningham-Routley home and used it in the course of breaking and entering the home. The evidence was overwhelming in this regard. [29] As noted in Briscoe, possession is a continual offence. [30] There was evidence that Mr. Powers first possessed the shotgun at his own home and must have formed his intentions there before he took it in his car to the Cunningham-Routley home and used it in the course of the break and enter. However, his taking possession of it and his formation of a purpose to use it was all in very close temporal proximity to his actual use of the gun in the commission of the break and enter. The evidence was that he was in his own home and reacted angrily to a phone call with his ex-spouse, immediately grabbed his shotgun, and went over to her house, which was close by, and where he forced himself into the house. [31] Neither the Crown submissions nor the jury charge focused on any purpose for Mr. Powers' possession of the shotgun that evening, other than to use it to break and enter the Cunningham-Routley home. [32] I find that the approach to this case at trial was similar to that analyzed in Briscoe. Neither the Crown's presentation of the case nor the jury charge attempted to divide the possession or use of the weapon into two distinct time frames: before Mr. Powers got to the Cunningham-Routley home and once he got to their home. Rather, the Crown's case and the jury charge in relation to these two offences were based on what took place at the Cunningham-Routley home in a matter of a few minutes and inferences drawn from that conduct. [33] I find that to convict Mr. Powers of Counts 2 and 4, the jury must have been satisfied beyond a reasonable doubt that Mr. Powers used the shotgun in the course of the break and enter and that this was the same evidence that supported the conviction for his possession of the gun for a dangerous purpose. The inference as to his purpose being dangerous had to have been drawn from his actual use of the shotgun in the break and enter. The evidence and convictions did not clearly support any other dangerous purpose for possessing a gun. [34] I find that the possession of the gun for dangerous purpose, Count 4, was the beginning part of a continuing transaction which ended in Count 2, use of the gun for the same dangerous purpose, which was to commit break and enter. There was therefore considerable factual proximity between the two offences. [35] That being so, I agree with the defence position and the Crown's concession that Count 4 should be subject to a conditional stay based on the Kienapple principle and the application of Briscoe. Factual Basis of Count 6: Careless Use of the Gun [36] As for Count 6, careless use of the gun, the jury heard undisputed evidence that the gun was loaded and the safety was off; that Mr. Powers held the gun in one hand while angrily pulling on door handles, separated only by glass from the occupants of the house and yelling at the occupants of the house; that at one point he leaned the gun up outside the house and then forgot where it was momentarily when he was inside the house; that he manipulated the action on the gun to cause one or two live shells to fall out in front of the occupants, close enough for a shell to roll a few feet into the house. The evidence was that there were two young children in the house. [37] These facts could be said to be distinct from the elements that made up the use of the gun in the break and enter. [38] Carelessness in the use of the gun is not a necessary element of Count 2, using the gun in the course of the break and enter. Carelessness is an additional element that describes the manner of use of the gun. [39] The jury was instructed that the use of firearms is an activity that involves control over a thing that has the potential to cause serious harm to life and limb. They were told that the criminal law pays special attention to persons who have control over things like firearms and expects those who voluntarily assume control over guns to act in a way that indicates respect for the inherent potential for harm of those guns. They were instructed that carelessness is the absence of the required state of care. [40] I conclude that the jury's conviction on Count 6, careless use of a firearm, was based on the jury being satisfied beyond a reasonable doubt of facts regarding the manner of use of a firearm that were in addition to the facts relied on by the jury to convict on Count 2. They had to be satisfied of the additional element of carelessness to convict on Count 6. Because careless use is an additional element of the offence sought to be stayed, I conclude that Kienapple does not apply to Count 6. Conclusion [41] In summary, I have concluded that Count 4 is subsumed in Count 2 and ought to be conditionally stayed based on the Kienapple principle. [42] I find that Count 6 was based on conduct that contains additional and separate elements of conduct from the conduct in Count 2, and so Kienapple does not apply. [43] That concludes my ruling. "The Honourable Madam Justice S. Griffin"