SCC/jmj 2003 SKQB 248 Q.B.C.A. A.D. 2002 No. 13 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: SIDNEY K. KULRICH and HER MAJESTY THE QUEEN RESPONDENT Daryl E. Labach for the appellant Perry G. Polishchuk for the respondent JUDGMENT KOCH J. May 28, 2003 [1] This is an appeal from conviction on February 6, 2002 by judge of the Provincial Court sitting at Watrous, Saskatchewan and from the sentence imposed on March 11, 2002 on the charge: That Sidney K. Kulrich on or about the 27th day of April 2000 at Colonsay did steal an electricity generator, the property of Sask Power Corporation of value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code. [2] Although not referred to in the notice of appeal, counsel argued on the appeal the question of the jurisdiction of the learned Provincial Court judge to proceed with the trial. On charge of theft where the value of what is alleged to have been stolen does not exceed $5,000, the Crown may in accordance with s. 334 of the Code proceed on indictment or by way of summary conviction. Should the Crown elect to proceed by indictment, the Provincial Court has absolute jurisdiction pursuant to s. 553 of the Code. The substantive distinction in the proceedings is therefore limited to the range of sentencing upon conviction. On what appears to have been the first appearance of the appellant in the Provincial Court on October 15, 2001, the Court was advised that the Crown was proceeding by summary conviction. On subsequent appearance, the appellant entered plea of not guilty and the case was set over for trial. [3] The information was sworn September 27, 2001 alleging the offence to have occurred on April 27, 2000. In these circumstances the time limitation on summary conviction proceedings imposed by s. 786(2) becomes relevant. That subsection provides as follows: 786(2) No proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose, unless the prosecutor and the defendant so agree. [4] was urged by counsel for the appellant that in the absence of evidence to the contrary, it should be inferred that the accused acquiesced in or implicitly consented to the Crown proceeding by way of summary conviction. Crown counsel does not agree with that position. However both parties prefer that the appeal from the learned Provincial Court judge be heard in this Court now, or alternatively in the Court of Appeal, based on the present trial record, in preference to having the proceedings in the Provincial Court declared null. [5] Section 786(2) contemplates in my view an explicit agreement rather than some form of implied consent arising from the failure of the appellant or his counsel to address the issue. note various precedent cases in which proceedings in circumstances such as the present have been held to be null. R. v. Phelps (1993), 1993 CanLII 14657 (ON CA), 79 C.C.C. (3d) 550 (Ont. C.A.); R. v. Kalkhorany (1994), 1994 CanLII 687 (ON CA), 17 O.R. (3d) 783 (C.A.); Re Parkin and the Queen (1986), 1986 CanLII 4640 (ON CA), 28 C.C.C. (3d) 252 (Ont. C.A.). In such circumstances the procedural irregularity is not subject to the provisions of s. 822(7) pertaining to defect to which the accused has not objected. [6] Both sides wish the Court to adjudicate on the merits of the conviction based on grounds applicable in summary conviction appeal. To facilitate that, counsel expressly agreed at the hearing, pursuant to s. 786(2), that the case at trial proceeded by way of summary conviction by agreement. For the purposes of the appeal they invite me to treat the agreement as having been in place when the trial commenced. Accordingly, have determined that the proceedings before the learned trial judge are not in violation of s. 786(2) and that the learned trial judge had jurisdiction to enter the conviction and sentence. Therefore, this Court has jurisdiction to entertain the appeal. [7]            The appellant contends that the appeal should be allowed and the conviction set aside on the following grounds: 1.         the verdict is unreasonable and not supported by the evidence; 2.         the learned trial judge failed to properly apply the doctrine of recent possession; 3.         the learned trial judge did not provide adequate reasons for his decision to convict the appellant. [8] As one of the grounds of the appeal is that the verdict is unreasonable and not supported by the evidence, it is necessary to briefly renew the evidence. It is not necessary to include all of the details. 1. Honda portable electricity generator owned by SaskPower was found to be missing from SaskPower storage shed at Colonsay, Saskatchewan about the end of April 2000. On August 23, 2001, the same generator, identified by its serial number, was recovered from fishing camp at Robert’s Lake in Northern Saskatchewan. 2. The appellant, as an employee of SaskPower, had access to the storage shed. He was one of the six owners of the fishing camp. Two of the other owners were also SaskPower employees. 3. All SaskPower storage sheds at the time could be accessed by single key, so all SaskPower operating employees would have been able to enter the shed at Colonsay. The appellant however was somewhat more closely connected. The appellant was one of two workers at Watrous. There was another crew of two workers at Colonsay. To some extent they shared work. Both crews were supervised by district operator Gordon Buckingham who worked out of Colonsay. 4. careful examination of the premises yielded no evidence of forced entry into the shed. Notably it was on the same site as the Colonsay R.C.M.P. detachment. Also notable is that there were various valuable and portable items such as chainsaws in the shed, but the only thing missing other than the generator was an electrical cord especially made to use with the generator. similar cord was missing from the Watrous storage shed at about the same time but later it was found to be back in its place. 5. In earlier times there was lower capacity generator at the fishing camp, but in about 1998, water system was installed and larger generator was required. Sometime in 1999 the replacement generator failed and the small generator was back in use. Therefore, by early 2000 the camp owners wanted viable higher capacity generator for the coming season. 6. It happened that SaskPower had been purchasing generators of that kind late in 1999 in anticipation of potential emergency needs arising out of the Y2K concern just ahead. SaskPower paid $2,486.00 for the generator in question. 7. About the end of March 2000, the appellant mentioned to others of the camp owners that he had found suitable generator which had come from the Winnipeg flood which he could buy for $800.00. Thereafter he advised them of such transaction and received cheque from the account of the camp owners for $800.00 made out to cash. 8. About the end of May one of the other owners picked up generator at the garage at the appellant’s residence at Watrous. It was in wooden crate that appeared to have been made especially for the generator and there was some kind of paper tag on the crate. Some owners including the appellant took that generator to Robert’s Lake. When it was put into service the generator did not work properly. It was put back in the crate and the appellant took it back to Watrous for repairs. 9. There is conflicting evidence as to whether one person could lift the generator onto truck without assistance or whether it was too heavy and awkward. This is not in my view critical issue. 10. On September 10 and 11, 2001, person identifying himself as Sid Kulrich telephoned the R.C.M.P. at Southend near Robert’s Lake to report the theft of generator from the fishing camp. The caller said he could not provide the serial number due to computer problem, that he had purchased the generator in January 2000 either in Saskatoon or in Melfort, and that its value was $2,700.00. [9] Counsel for the appellant contends that the conviction was not supported by the evidence and could not be supported without application of the doctrine of recent possession. He contends that the doctrine of recent possession should not enter into the Court’s consideration because of lack of proof that the generator that was in the appellant’s garage in Watrous in June 2000 was the same generator that was seized at Robert’s Lake more than year later. [10] Crown counsel concedes that to sustain the conviction, the doctrine of recent possession must be relied upon. He contends however that the evidence that the generator at the appellant’s garage in Watrous was the same one that was taken from the SaskPower storage shed and recovered from the fishing camp at Robert’s Lake is ample if not indeed overwhelming. [11] The learned trial judge found as fact, as he was entitled to do, that the generator that was at the garage at the accused’s residence was the one that was stolen from the shed at Colonsay. However that funding does not stand on its own. It is part of strong circumstantial case against the appellant. [12] As understand the law, the unexplained recent possession of stolen goods standing alone will permit but not necessarily require the inference that the possessor was the person who stole the goods. If recent possession is the only evidence connecting the accused with the theft, then elements of recent possession must be strictly proven. However, if recent possession is not relied upon as the sole evidence connecting the accused with the crime, then possession should be considered as circumstantial evidence and weighed accordingly. See R. v. Kowlyk, 1988 CanLII 50 (SCC), [1988] [13] In rendering his decision, the learned trial judge summarized the facts in considerable detail and concluded his decision with the final paragraph as follows [at p. 474]: Taking all the evidence into account, find that the generator that the partners saw in May at the home of the accused in Watrous, Saskatchewan, was the generator that had earlier been stolen in Colonsay, Saskatchewan. There’s therefore an inference of guilt that the accused, in fact, stole the generator. Taking into account all of the evidence, the only reasonable inference that can draw is that the stolen that the accused stole the generator. am therefore compelled to conclude and am satisfied beyond any reasonable doubt that the accused committed the offence alleged and find him guilty as charged. [14]                       There is nothing in the decision that convinces me that the learned trial judge in any way misconstrued or misapplied the doctrine of recent possession. [15]                       Neither is there in my view any indication that the learned trial judge in weighing the evidence committed any palpable and manifest or overriding error. [16] In this regard should note that if understand correctly, counsel for the appellant argues that the appellant bought generator from someone for $800.00. There is no evidence of that except the general unsworn statements of the appellant to others of the camp owners. His statements were entirely self-serving and quite correctly accorded no weight by the learned trial judge. [17] Counsel for the appellant contends that the learned trial judge failed to provide adequate reasons for convicting the appellant. He relies on the case of R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] S.C.R. 869, decision of the Court delivered by Binnie J. In that case the Supreme Court provides detailed guidelines for the triers of fact in criminal cases. The Court imposes on trial judges an obligation to provide reasoned judgments comprehensible to the accused, counsel, the appellate courts and the public. In the Sheppard case the trial judge’s reasons were limited to the following: Having considered all the testimony in this case, and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, find the defendant guilty as charged. [18] In the present case, the learned trial judge before stating his conclusion quoted above commented on the facts and arguments in detail in dissertation which occupied approximately six pages of the trial transcript. In the Sheppard case, Binnie J. at para. 25 states: If deficiencies in the reasons do not, in particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention under s. 686 of the Criminal Code. That is exactly the situation in the present case. [19]                 The appeal from conviction is dismissed. [20] The appellant also appeals the sentence which was nine-month suspended sentence with victim surcharge of $100.00. He requests that this sentence be set aside and conditional or absolute discharge granted. [21] Unfortunately, there is no transcript of the sentencing proceedings except for couple of lines and without being able to examine the sentencing judge’s reasons it is as contended on behalf of the appellant impossible to determine whether the sentencing judge applied correct principles or whether the sentence is excessive or otherwise unreasonable or demonstrably unfit. Counsel for the appellant submits that the sentence should be vacated and sentence imposed in this Court in lieu of it. It appears that in these unique circumstances, s. 687 of the Criminal Code permits that to be done. [22] At the hearing of the appeal, counsel indicated that an effort would be made to locate tape recording of the sentencing proceedings and arrange for it to be transcribed. If that has occurred, invite counsel to arrange for the Court to be reconvened for oral argument on the sentence appeal. If the transcript is not available, invite counsel to arrange for the Court to be reconvened to address submissions as to the applicability of s. 687 and to argue whether it is appropriate to vacate the sentence and embark on the sentencing process afresh.
An appeal from conviction and sentence for theft of an electricity generator valued at under $5,000 contrary to Criminal Code s.334(b). On the first appearance in October, 2001, the Crown advised it would proceed by summary conviction. The appellant pled not guilty. Defence argued that, in the absence of evidence to the contrary, it should be inferred that the accused acquiesced or implicitly consented to proceeding by way of summary conviction. Counsel agreed pursuant to s.786(2) to proceed by way of summary conviction and invited the court to treat the agreement as having been in place when the trial began. Both preferred the appeal to be heard in this Court or in the Court of Appeal. The appellant sought to have the conviction set aside on the grounds the verdict was unreasonable and not supported by the evidence; the trial judge failed to properly apply the doctrine of recent possession and did not provide adequate reasons for his decision. HELD: The conviction appeal was dismissed.  1)This Court had jurisdiction to entertain the appeal. The Provincial Court judge had jurisdiction as the trial proceedings did not violate s.786(2). 2)The trial judge did not misconstrue nor misapplied the doctrine of recent possession. The unexplained recent possession of stolen goods standing alone will permit, but not necessarily require, an inference that the possessor was the person who stole the goods. The elements of recent possession must be strictly proven if possession is the only evidence connecting the accused with the theft. Otherwise possession should be considered circumstantial evidence and weighed accordingly. There was no palpable and manifest or overriding error made by the trial judge in weighing the evidence.  3)Criminal Code s.687 appears to permit this Court to set aside the 9 month suspended sentence and to grant a conditional or absolute discharge. However, there was no transcript of the sentencing proceedings except for a few lines. If the transcript is not available, this Court may be reconvened to address the applicability of s.687 and whether it would be appropriate to vacate the sentence and embark on the sentencing process afresh.