Q.B.C. A.D. 1994 No. 1040 J.C.M. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF MELFORT BETWEEN: HER MAJESTY THE QUEEN and WILBERT DAVID HEAD APPELLANT R.N. Saretzky for the appellant D.W. Dahl for the respondent JUDGMENT GROTSKY J. October 6, 1994 INTRODUCTION On June 1, 1994, the accused (hereafter the appellant) was charged in an Information that he, on or about the 29th day of May, A.D. 1994, at Red Earth, in the Province of Saskatchewan, did commit an assault on Janet Head contrary to s. 266 of the Criminal Code. On June 1, 1994, the appellant appeared before judge of the Provincial Court of Saskatchewan. The Crown elected to proceed against the appellant by way of summary conviction. The appellant entered plea of guilty to said charge. The matter of sentencing was then adjourned to July 7, 1994, and on said latter date was further adjourned to August 4, 1994, pending the receipt of the pre-sentence report directed to be prepared on June 1, 1994. On August 4, 1994, the then presiding judge ofthe Provincial Court of Saskatchewan sentenced the accused toserve a term of six months\' imprisonment and to enter into aprobation order for a term of 18 months on certain specificconditions. As well, a ten-year firearm, ammunition andexplosive substance prohibition order was made against theappellant pursuant to the provisions of s. 100(1) of theCriminal Code, R.S.C. 1985, c. C-46. NATURE OF PRESENT APPLICATION This is an appeal against (1) said six-month termof imprisonment and (2) said s. 100(1) prohibition order. RE: TERM OF IMPRISONMENT APPEAL Following the imposition of said sentence on him on August 4, 1994, the appellant was immediately taken into custody. He, on that date, commenced serving the noted sentence imposed upon him. On August 18, 1994, the accused's application for release from custody pending the hearing and determination of his present appeal was granted by member of this court pursuant to the provisions of s. 81(1)(a) of said the Criminal Code. The subject appeal came before me on September 29, 1994. Counsel for the appellant, after reviewing, inter alia, the circumstances surrounding the commission of this offence, and particularly that this was in effect the accused's first offence, his only previous conviction having occurred in 1989 when he was convicted of an ".08" offence at time when he was only about 20 years of age, submitted that in the particular circumstances the term of imprisonment imposed on the appellant at trial was too severe. He submitted that as the appellant had now served 15 days' of said sentence, in the particular circumstances, the sentence imposed ought to be reduced to the time already served. Counsel for the Crown candidly advised that he could not seriously oppose reduction of said sentence to time already served. In these circumstances, having regard for theapplicable sentencing principles of protection of society,punishment, general and specific deterrence, reformation andrehabilitation, and the need to maintain the public\'sconfidence in the administration of justice, and, afterapplying thereto the various applicable factors as discussedby and with both counsel during the hearing of this appeal, Iallowed the appeal against sentence and reduced the termimposed at trial from six months\' imprisonment to "timeserved" and maintained the 18 month probation order (againstwhich no appeal was taken) subject only to amending the timewithin which the appellant was to report to the chiefprobation officer as therein provided. RE: SECTION 100(1) PROHIBITION ORDER As earlier observed the appellant was charged andon his plea of guilty thereto was convicted of an offencecontrary to s. 266 of the Criminal Code which provides asfollows:266. Every one who commits an assault isguilty of(a) an indictable offence and is liable toimprisonment for a term not exceeding fiveyears; or(b) an offence punishable on summaryconviction. Here, as earlier observed, the Crown elected toproceed against the appellant by way of summary conviction. In these circumstances, following his conviction, the appellant was subject to the penalties prescribed by s. 787(1) of the Criminal Code which provides as follows: 787.(1) Except were otherwise provided by law, every one who is convicted of an offence punishable on summary conviction is liable to fine of not more than two thousand dollars or to imprisonment for six months or to both. Section 100(1) of the Criminal Code, the material portions of which read as follows, provides that: 100.(1) Where an offender is convicted of an indictable offence in the commission of which violence against person is used, and for which the offender may be sentenced to imprisonment for ten years or more ., the court that sentences the offender shall, ., in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from possessing any firearm or any ammunition or explosive substance for (a)in the case of first conviction for such an offence, ten years, and (b). (emphasis added) As will be observed from detailed examination of said s. 100(1) of said the Criminal Code, supra, before its provisions can be invoked there must exist two pre-conditions: FIRST:the offender must be convicted of an indictable offence in the commission of which violence against person is used; and SECONDLY:on said conviction the offender may be sentenced to imprisonment for ten years or more. In the particular circumstances, as the requisitetwo pre-conditions did not exist, the Provincial Court judgeerred in making the noted s. 100(1) prohibition order. On September 29, 1994, the appeal against saidprohibition order was allowed and it was set aside.
The Crown elected to proceed summarily and the accused entered a plea of guilty to a charge of assault under S.266 of the Code. He was sentenced to 6 months imprisonment, 18 months probation and a 10 year fire arm prohibition was imposed. He appealed his sentence. HELD: Appeal allowed. 1)Because the accused had no related record and given the circumstances of the assault, the sentence of imprisonment was reduced to time already served (15 days). 2)The trial judge erred in imposing the 10 year fire arm prohibition under S.100 of the Code. S.100 requires a conviction on an indictable offence involving violence against a person where the maximum sentence available is 10 years imprisonment or more. 3)The maximum sentence for assault under S.266 is 5 years if the Crown proceeds by indictment and 6 months if, as here, the Crown proceeds summarily.