Her Majesty the Queen - v. -, 2021 SKPC 46

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 46 Date: September 8, 2021 Information: 991126020, 991129829 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Keenan Noname Appearing: Jackie Lane For the Crown Rod Simaluk For the Accused SENTENCING DECISION D. KOVATCH , J BACKGROUND [ 1 ] The accused is a member of the Piapot First Nation. He is 22 years of age, his date of birth being January 23, 1999. [ 2 ] His criminal record, prior to the incidents presently before the court, is quite minor.

He has convictions for assault and failure to appear in court. He has now entered a guilty plea to a charge that on April 6, 2020, he breached a release order by possession or consumption of alcohol or drugs. Also, that on June 5, 2020, he was in possession of an unloaded prohibited firearm, a sawed-off

shotgun, capable of being discharged, with readily available ammunition contrary to section 95(1) (

a) of the Criminal Code [ Code ]. He also entered a guilty plea to breach of probation by being in possession of that same firearm. The Crown proceeded by indictment on these two charges, and takes the position that the

section 95 charge is a very serious one. The Crown asks for a sentence of penitentiary time. [ 3 ] A pre-sentence report (PSR) was prepared. It identifies numerous Gladue [1] factors applicable to the accused and a very unstable childhood. Defence counsel, Mr. Simaluk, notes that the accused has done very well since this last mentioned incident on June 5, 2020. He has incurred no further breaches or charges. He has made very positive changes in his life. Mr.

Simaluk says that the Court should take these factors into account, and give a sentence significantly less than penitentiary time, and focus upon rehabilitation. The Facts of the Incident [ 4 ] As a result of the earlier convictions on his record, the accused was placed on probation. One of the conditions of probation was that he was not to possess any firearms, prohibited or restricted weapons or explosive substances. [ 5 ] Also, it appears that in the early part of 2020, he was also charged with some other offences and released on a release order.

That release order contained a clause that prohibited him from possessing or consuming any alcohol or drugs that were not prescribed by a medical doctor. [ 6 ] On April 6, 2020, police received a complaint of individuals going through vehicles. They located the accused in the area. It is important to note that no charges were laid against him respecting the vehicles. However, the accused was very drunk and almost incoherent. He was arrested and charged with breach of the release order, by possession or consumption of alcohol or drugs.

He was again released. [ 7 ] On June 5, 2020, the police saw a vehicle that had earlier been reported as stolen. Two individuals were in that vehicle. The accused was in the passenger seat. Police made some attempt to stop the vehicle. The vehicle did not stop, and increased speed. The vehicle then stopped and the two males ran. The accused was tracked and located hiding under a raised deck. Near to the accused, they located a sawed-off 12 gauge shotgun. It was unloaded at the time. It appears the accused was attempting to get rid of or dispose of the shotgun.

He admitted that he had ownership or control of the shotgun. Because it was a sawed-off shotgun, it was a prohibited weapon. Later, the police searched the vehicle and located shotgun shells that could be used in this weapon. Mr. Noname was on probation at the time, and was also charged with breach of probation by possession of that same weapon. Mr. Noname’s Life Growing Up – The Gladue Factors [ 8 ] According to the pre-sentence report, Keenan’s parents are both from Piapot First Nation and he spent his early life on that First Nation. When Keenan was two years old, his father went to prison for three years.

Thereafter, his parents separated. His father is presently incarcerated in a federal penitentiary. Keenan does not have a positive relationship with his father. [ 9 ] From about age 3 to about age 14, around grade 7 or 8, Keenan lived mostly with his maternal grandparents on Piapot First Nation. He attempted to live with his mother on a number of occasions. She suffered from substance abuse. As a result, he often returned to live with his maternal grandparents. However, his grandparents also had substance abuse problems. He started to be away from their home more and more, and lived a fairly transient lifestyle.

During his teenage years, he would frequently reside with friends, aunts and uncles, and grandparents. In April of 2020, his maternal grandmother passed away from an overdose. [ 10 ] During his teenage years and with his transient lifestyle, he drank heavily, and used a number of illicit and illegal drugs. It would also appear that during this time, he had some involvement with gangs in Regina. He was reluctant to discuss his involvement in the gangs with the writer of the PSR. He did advise however that the weapons offence occurred because he was “in a really bad place at the time”.

He thought carrying the weapon was cool. His friendships and relationships were not at all positive. Events since June 5, 2020

[ 11 ] Keenan advised that he was in an and off relationship with Aaliyah Okeeweehow for 3 or 4 years. Aaliyah’s mother is Amanda Okeeweehow. According to the PSR, in the summer of 2020, Keenan moved into Amanda’s home. She allowed him to move in because she felt he needed support; he seemed to be lost and unstable. Amanda advised that she has been sober for more than 10 years, and does not allow any alcohol or drug use in her home. Keenan agreed to comply with the abstinence condition. He states he has been completely sober and drug free since early September of 2020.

The writer of the pre-sentence report makes the following comments: When speaking with Amanda, she expressed she was really proud of Keenan and the changes he has made in his life regarding his friends, and substance abuse. She explained he has done a total turn around from when she first met him six years ago. She attributes this change to Keenan having a more stable life since moving into her home in the summer of 2020.

Further: Since living with her, Keenan has turned his life around but Amanda feels Keenan could benefit from counselling to address some of the abandonment issues he may face due to never having a stable adult figure in his life growing up. The report also notes that she does not support his criminal behaviour, and encourages spiritual and cultural practices. During the last year, Keenan has become connected to family members who have included him in cultural programing on Piapot First Nation.

Keenan reports that he attends Piapot with his uncles each week and assists with arranging the sweat lodges and singing groups. Keenan has expressed an interest in being connected further with his culture. [ 12 ] Keenan has also expressed an interest in returning to school to obtain his grade 12 education. [ 13 ] Last, but certainly not least, since Keenan moved into the Okeeweehow home, his girlfriend Aaliyah has become pregnant. She was due in August. I presume that child has now been born.

The pre-sentence writer noted: Keenan indicates he is motivated to remain sober for his unborn child as he states he “does not want his child growing up in the same environment” that he did with his grandparents, and father. What is the Appropriate Sentence? [ 14 ] Crown counsel, Ms. Lane, referred to R v Nur , 2015 SCC 15 , [2015] 1 SCR 773; R v Holt , 2015 BCCA 302 , 326 CCC (3d) 524; R v Kachuol , 2017 BCCA 292 ; R v Chowdhury , 2018 ABPC 22 and R v Charles , 2014 SKPC 189 . She argued that

section 95 is a very serious charge and protection of the public and denunciation and deterrence are the primary sentencing factors. She argued that the sentence in this case should be 3 years. [ 15 ] Mr. Simaluk referred me to R v Morin , 2019 SKPC 69 and R v Gamble , 2005 CarswellSask 937 . I believe he suggested a sentence in the range of 18 months. [ 16 ] It is clear that all of the sentencing decisions referred to by both counsel speak to a custodial sentence in excess of a year for conviction on a

section 95 offence. [ 17 ] In the case of R v McKenzie , 2020 SKPC 31 [ McKenzie ], his Honour Judge Evanchuk dealt with a sentencing for an offence under section 94(1) of the Code , being an occupant in a motor vehicle in which he knew there was a prohibited firearm. Judge Evanchuk noted that the

section 94 offence reflected a lower moral culpability than a

section 95 offence. He also noted that firearm offences cover a broad range of fact situations, and result in a very broad range of sentences. At paragraph 18:

Counsel for both parties have emphasized the broad range of available sentences for firearm offences and agree that a spectrum exists for firearm sentences. On one end is regulatory-type offences involving an otherwise law-abiding responsible gun owner. On the other end is “true crime” offences where a person is engaged in criminal conduct that poses a real and immediate danger to the public. [ 18 ] At paragraph 23, he stated: Given the facts of the case, there cannot be a legal and safe purpose for the possession of the firearm and ammunition; the firearm was illegal and posed a serious risk to public safety.

Coupled with the amount of ammunition, McKenzie’s actions fall squarely in the ‘true crime’ category. The Supreme Court and the Saskatchewan Court of Appeal have stated that sentencing courts must acknowledge the inherent danger of illegal firearms in our communities and send a message that the possession, transportation, and use of illegal guns must not be tolerated. As such I find that a conditional sentence in this case is not appropriate and that a period of actual incarceration is required.

Judge Evanchuk went on to impose a sentence of 16 months. [ 19 ] Arguably, the facts in McKenzie were a little less severe than in the case at bar. Clearly Mr. Noname’s offence under

section 95 fits in the true crime category. Clearly the public was in danger. The sentence here must impose significant custody to speak to the denunciation of the conduct, and indicate that possession of illegal prohibited firearms will not be tolerated. [ 20 ] Having stated that this goal must be achieved, I am of the view that a sentence in the range of 3 years would be grossly disproportionate. I believe I can express the Court’s denunciation of the conduct with a considerably shorter sentence. The authorities referred to above did not consider Gladue factors in relation to each of those accused.

In addition, there was not a lengthy period of good post offence conduct that was considered by the Court. [ 21 ] In a recent decision in R v Hotomanie , 2021 SKPC 38 [ Hotomanie ] (presently under appeal) I referred to a number of Saskatchewan Court of Appeal decisions dealing with the impact of Gladue factors when sentencing Indigenous offenders. There is a lengthy quotation from the Court of Appeal in R v Charles , 2021 SKCA 75 , [2021] 7 WWR 734.

Following that quotation, I reached the following conclusion, which I believe is equally applicable in the case at bar: In my view, by the above mentioned passages, the Saskatchewan Court of Appeal is mandating that

section 718.2(

e) and the unique systemic or background factors should be considered in all sentencing cases involving Aboriginal people. Of course the Court makes clear that this will not always result in a reduction in the sentence. Nevertheless, these factors must be considered in arriving at the appropriate sentence. As a result, I must consider Mr. Noname’s upbringing and background factors in considering and determining an appropriate sentence in this case. It is clear that during his childhood, Mr. Noname witnessed substance abuse and lived in poverty.

This lead directly to his leaving school early, living a transient lifestyle, and then becoming involved with substance abuse and gangs. These factors lead very directly to his present involvement in the criminal justice system. His moral blameworthiness in these offences is decreased, and I must consider this in arriving at an appropriate sentence. [ 22 ] In Hotomanie , at paragraph 28 , I referred to Judge Koskie’s decision in R v Katcheech , 2021 SKPC 6 .

I stated that in cases where an accused has taken strong steps towards rehabilitation, the Court may be justified in a more radical alteration of the sentence with a real emphasis on rehabilitation. The rationale for this approach is really quite simple. Where the Court sees positive and strong steps taken in the post offense conduct, and real steps toward rehabilitation, the Court should seize upon that conduct and the opportunity to really promote and advance the rehabilitative process. [ 23 ] Since writing the Hotomanie decision, I became aware of R v Sellars , 2018 BCCA 195 .

In that case, the accused was convicted of three firearms offences, including a

section 95 conviction. He had been involved in gangs for a considerable period of time. He was an Aboriginal person with significant Gladue factors. He had “a multi-generational family of substance abuse, familial instability, fragmentation and breakdown, and premature death”. After being charged, he then took a series of exceptional steps towards rehabilitation. He disassociated himself from the gangs and moved to new community. He stopped his consumption and use of alcohol and illicit drugs, and dealt with his chronic substance abuse. He obtained full time employment, and settled down and maintained his family in his new community. At paragraph 34, the Court stated:

In addition to the Gladue factors, exceptional circumstances can justify a sentence outside the established range for an offence. Madam Justice Bennett explained what may amount to exceptional circumstances in R v Voong , 2015 BCCA 285 as follows: [59] …Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. [ 24 ] The Court stated that general deterrence and denunciation are the primary sentencing factors when considering firearms offences, and the range for such offences begins at approximately 3 years.

The Court then stated in paragraph 37 as follows: To be balanced against those factors, is that Mr. Sellars is an Aboriginal offender to whom

section 718.2(

e) applies, who is found by the judge to have undertaken exceptional rehabilitative steps, and whose moral culpability was diminished, by his background circumstances. In particular, by the judge’s own account, the community leaders and police of the Williams Lake area and in Mr. Sellars’ home community were at their wits end in trying to address the violence of competing gang activity. In the face of this turbulence, Mr.

Sellars demonstrated the strength of character, not only in coming to grips with his substance abuse, but to disassociate himself from the people involved in the gangster lifestyle because it required him to effectively leave his home community. It seems to me that this dynamic makes his personal circumstances more commendable and favourably distinguishes his case from the circumstances of the offenders in Nur , Holt , Kachuol , and other appellate authorities on firearm offences. Additionally, Mr. Sellars no longer poses a risk to the public; specific deterrence was not an issue in his sentencing.

As a result, in my view, a sanction below the general range established in Holt is justified in Mr. Sellars’ case. [ 25 ] In this case, the Crown has quite properly referred to a number of sentencing decisions that indicate denunciation and deterrence and protection of the public, are very important sentencing features, when sentencing for a

section 95 conviction. Further, that significant jail sentences must be imposed. I must also weigh and balance the Gladue factors and the exceptional steps taken by Mr. Noname and his family since this offence was committed. This balancing will result in a not insignificant term of incarceration for Mr. Noname, to denounce his conduct in committing the

section 95 offence. I will however, impose a considerably shorter term than the norm outlined by the Crown. Following his release, he will be placed on probation for a period of time, to mandate and assist in his efforts towards rehabilitation. [ 26 ] Mr. Noname, on the charge under

section 95 of the Criminal Code that you have entered a guilty plea to, I sentence you to 9 months to be served at the Regina Provincial Correctional Centre, to be followed by a period of probation of 2 years. The conditions of probation will be as follows: 1. Keep the peace and be of good behaviour; 2. Appear before the court as and when required to do so; 3. Report to the Regina probation office within 2 business days of your release from the correctional centre, and thereafter as and when required to do so by the probation officer; 4.

Live in a residence approved by the probation officer and not change that residence without the prior written permission of the probation officer or the court; 5. You are not to possess or consume any alcohol or marijuana or drugs that are not prescribed for you by a medical doctor, and not be in any establishment where the primary purpose is the sale or consumption of alcohol or marijuana, such as bars or liquor stores or cannabis dispensaries; 6. You will also be required to participate in personal counselling as may be directed by the probation officer.

This may include counselling in relation to addictions, educational programming, or other personal counselling that may be identified by the probation officer.

[ 27 ] There will also be a

section 109 firearms prohibition order in existence from today’s date until 10 years following your release from custody. [ 28 ] Crown Counsel asked the Court to make a DNA Order. This is a secondary designated offence under s. 487.04 in that it is a Criminal Code offence prosecuted by Indictment for which the maximum punishment is imprisonment for five years or more. A DNA Order is appropriate here. There will be an Order in Form 5.03 authorizing the authorities to take bodily samples from Mr.

Noname reasonably required for forensic DNA analysis and registration in the DNA databank. [ 29 ] On each of the other two charges where guilty pleas were entered, I sentence Mr. Noname to 30 days at the Regina Provincial Correctional Centre, each of these sentences to run concurrently with each other and with the sentence on the s. 95 charge. [ 30 ] Mr. Noname is without income, and accordingly, I waive the criminal victim surcharges. [ 31 ] I express my thanks to both counsel for very comprehensive and helpful submissions.

Dated at the City of Regina, the Province of Saskatchewan this 8 th day of September 2021. ______________________ Kovatch, J