Her Majesty the Queen - v. -, 2012 SKPC 168

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 168 Date: October 15, 2012 Information: 24393453 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - Terrance John Ballantyne Appearing: Mr. Robert Mackenzie For the Crown Ms. Alice Robert For the Accused DECISION ON SENTENCE S.I. ROBINSON , J [ 1 ] Terrance John Ballantyne of Deschambault Lake, Saskatchewan is to be sentenced on a charge that he did on June 16, 2012,

at Deschambault Lake, while bound by a recognizance under

section 810.2 of the Criminal Code entered into on April 6, 2011, fail to comply with a condition in that recognizance that he not consume or possess drugs or alcohol and other intoxicating substances, contrary to

section 811 of the Criminal Code . [ 2 ] The accused was arrested on his charge on June 16, 2012. He first appeared in Provincial Court on June 18, 2012, and then again on June 20, 2012. On the June 20 court appearance, the Crown elected to proceed by indictment on the accused’s charge. The accused, appearing with Ms. Alice Robert as his counsel, elected to be tried in Provincial Court and entered a guilty plea to the charge. The matter was then adjourned from time to time. A sentencing hearing finally proceeded before me in La Ronge on September 21, 2012, with Mr. Robert Mackenzie appearing for the Crown and Ms.

Robert appearing with the accused. [ 3 ] At the sentencing hearing, Mr. Mackenzie asked that I sentence the accused to two years in a federal penitentiary. Ms. Robert asked that I sentence the accused to time served. In order to consider these opposing views, I adjourned the accused’s case for decision to October 15, 2012. The Facts [ 4 ] Counsel provided a factual background for this case through oral representations and through documents.

These documents comprise a copy of the accused’s Peace Bond Recognizance dated April 6, 2011, a Pre-Sentence Report prepared by Probation Officer Jody Laliberte, a Statement of Facts filed jointly by Crown and defence, a copy of a Deschambault Lake RCMP curfew check log, and a copy of the accused’s criminal record. [ 5 ] The accused was released from custody on May 18, 2012, after completing a sentence I had given him for an earlier breach of his

section 810.2 recognizance. Upon his release, he went to live with his mother, Mabel Ballantyne, at Deschambault Lake. [ 6 ] When the accused returned to Deschambault Lake, he continued to be bound by the terms of his

section 810.2 recognizance. This recognizance was ordered by Judge Daunt on April 6, 2011. It has a term of two years and will expire on April 5, 2013. Of the nine terms in the recognizance, three pertain especially to the case before me: 3. Reside at a place approved by the NCO of the Deschambault Lake RCMP or his designate and do not change that residence without the prior approval of the NCO or his designate. 4.

Not consume or possess drugs or alcohol and other intoxicating substances, unless prescribed by a medical doctor; however, he shall take all medications as prescribed to him by a licensed medical doctor. 5.

Abide by a curfew between the hours of 11:00 p.m. and 6:00 a.m. seven days a week, unless these hours or curfew are amended in writing by the NCO of the Deschambault Lake RCMP or his designate, and present himself to the door of his residence to any peace officer checking for compliance with the curfew and other conditions of this recognizance. [ 7 ] From the accused’s release from custody on May 18, 2012, until his arrest on June 16, 2012, the Deschambault Lake RCMP attended at the accused’s residence on nine different nights to do curfew checks.

The accused was home on the first eight occasions, but he was not indoors when the RCMP attended on June 16. [ 8 ] On the June 16 date, RCMP Constables McNeil and Boogaard attended at the accused’s home at 1:50 a.m. to do a curfew check. The officers knocked on the accused’s door for about a minute until it was answered by the accused’s mother. She was noted to be showing signs of intoxication. She first advised the officers that the accused was in his bedroom sleeping.

However, after she had checked the accused’s bedroom, she reported back to the officers that the accused was not in the house. [ 9 ] About two minutes later, while making notes in their police vehicle, Cst. McNeil and Cst. Boogaard saw the accused walk from the back of his house and go up to the house entrance. Cst. Boogaard called the accused over to the police vehicle, and the accused complied with this request. When Cst. Boogaard shone his flashlight on the accused, he noted that the accused had glassy eyes.

He asked the accused how much he had had to drink, and the accused replied “one beer” and further said that he had been “at the bottom of the hill”. The accused was arrested at 1:55 a.m. and taken to the Deschambault Lake detachment. The accused was described as being “very co-operative” and also “slightly intoxicated”. [ 10 ] The accused says that on the evening in question, he was at home at his mother’s residence, where he is required to live. His mother, who is an alcoholic, usually drinks away from the home. However, on this night, she was drinking at the house with one of her male friends.

This made it difficult for the accused to get to sleep. His mother then gave him two cans of beer, and he took these back to his bedroom. Because of the noise in the house, the accused next went out his bedroom window and into the backyard which slopes down a hill to the lakeside. He admits that he consumed the beer his mother had given him (though it is not clear as to whether this was before or after he left his bedroom). He further admits that the beer affected him because he had not previously consumed alcohol since November 2008.

When he noticed the RCMP arrive, he went up to the door of his house and waved at the officers in their vehicle. When Cst. Boogaard asked him to come over, he complied with this request and thereafter co-operated with the police. [ 11 ] The accused’s account of what happened in the early hours of June 16 is generally consistent with the Crown’s version of events, and it has not been disputed by the Crown. I therefore accept it as part of the overall narrative.

Accused ’s Personal Circumstances [ 12 ] Ms. Robert has provided some information respecting the accused’s personal circumstances. Further information is set out in a Pre-Sentence Report prepared in this matter by Probation Officer Jody Laliberte. That report references an earlier Pre-Sentence Report used when I sentenced the accused on other charges on March 21, 2012. [ 13 ] The accused is 34 years old. He is a resident of the community of Deschambault Lake, a Cree community of about 1,000 people located 330 kilometres north-east of Prince Albert. He is a treaty member of the Peter Ballantyne Cree Nation.

Like the great majority of people living in Deschambault Lake, he speaks Cree as his first language. [ 14 ] The accused’s mother, Mabel Ballantyne, raised the accused and his four younger siblings as a single parent. The accused’s father, Isaac Custer, who lives in Pelican Narrows, played no significant parenting role. The accused’s childhood years were difficult. His mother was an alcoholic and continues to drink to excess. His mother’s drinking resulted in the accused being separated from his family at different times.

When he was about 10 years old, he went to live with a relative in Deschambault Lake and stayed there about a year and a half. He then returned to live with his mother but then, at 11 years old, he was apprehended by Social Services and placed in a foster home. This was a very negative experience as the foster parents’ grandchildren beat him up. He therefore ran away and returned to his mother’s home. He was re-apprehended and placed in a foster home in Pelican Narrows. This was a more positive experience, but he became homesick and once again ran away to return to his mother’s home in Deschambault Lake.

By this time, being 12 or 13 years old, he was already involved in the youth criminal justice system. [ 15 ] The accused has a limited education. When I dealt with him in 2000, Ms. Robert, who also then acted as his lawyer, advised that he had quit school at age 12, was illiterate, and might also be suffering the effects of FAS. When interviewed for the current Pre- Sentence Report, the accused said that he had completed Grade 8 in Deschambault Lake. He also said that he can read but that to write English “is difficult”.

The Pre-Sentence Report does not refer to any recent testing to determine his present academic level. [ 16 ] During his school years, the accused spent three years in residential school at Prince Albert. Not surprisingly, this was a difficult time for him. The Pre-Sentence Report, at page 11, states: Terrance advised he was lonely when he had to spend time at the foster homes and residential school. Terrance reported he did not like attending residential school because he missed his home and his family while there.

He added he was bullied by other students and was often “beat up.” [ 17 ] The accused has a significant substance abuse history. At about the age of 13, he began using solvents and went on to sniff gasoline or camping fuel three to four times a week. The solvents caused him to hallucinate but also made him feel “invincible” and immune from getting caught for his actions. He continued to use solvents until he was arrested on a major sexual assault charge in 2002. [ 18 ] The accused began using alcohol when he was about 14.

Alcohol then became a problem for him, and family members voiced concerns about his drinking. He took addictions programming for aboriginal inmates while he was in the penitentiary. Upon his release, he had some lapses after friends pressured him to drink. He says, however, that more recently, he has been a non-drinker. He says that before drinking on June 16, 2012, he had not consumed alcohol for four years. [ 19 ] The accused says he first used marijuana at the age of 18 and has used it since then.

His marijuana use has apparently been limited to some degree by the drug’s cost and its availability in the community. [ 20 ] Like his education, the accused’s work history has been limited. When not in custody, he has worked at commercial fishing, wild rice harvesting and doing odd jobs. His last employment was in the fall of 2011 when he helped his uncle Isaac Ballantyne harvest wild rice for a month. [ 21 ] The accused was in a relationship with one Melanie Beatty, and he has a 3-year-old daughter, Marley, from that relationship. The accused and Melanie are now separated, and Melanie has Marley in her care.

The accused is currently single. [ 22 ] The accused has spent lengthy periods of time in custody. His interactions with the criminal justice system could hardly be described as positive experiences for him. Since I have sentenced him to jail on more than one occasion, he could well see me as the author of much of his misfortune. However, in my dealings with him, he has always been polite and respectful. Accused ’s Criminal Record [ 23 ] The accused has a very long criminal record comprising over 50 convictions—some as a youth under the Young Offenders Act and some as an adult under the Criminal Code .

These include at least 26 convictions for property-related offences, 20 convictions for failing to comply with court orders or otherwise interfering with the administration of justice, two convictions for assault with a weapon, two convictions for assault, and, most significantly, three convictions involving sexual assault. Sadly, the accused was first sentenced on a theft charge when he was only 12 years old. The accused’s history of offending continues to the present.

However, his most serious offences are not recent. [ 24 ] The accused’s criminal record must be examined carefully as it appears to contain errors. An example of this is the entry for January 23, 1991, which states that the accused, then 13 years old, received 26 months secure custody on charges of theft, escape custody, and break and enter. The accused disputes receiving a custodial sentence for this, and the record itself corroborates the accused.

[ 25 ] Even if the reference to custody on January 23, 1991, is excised, the accused has spent a great deal of time in custody over the past 30 years. Ms. Robert adds that the record does not tell the whole story. She says that the accused has also spent a considerable amount of time in custody on remand and that remand time is not always reflected in the official record. Accused ’s Record for Violence & Sexual Assault [ 26 ] The accused’s convictions for offences of violence and sexual assault are of particular concern. The information available respecting those convictions is as follows: a.

May 9, 1991, Assault with a Weapon : The CPIC record indicates the accused was dealt with as a youth and received 1 year of probation. b. September 12, 1996, Assault with a Weapon : There was initially some confusion respecting the facts alleged by the Crown. However, I was eventually able to determine that the accused had struck one Ivan Ballantyne in the arm with a bat and fractured his elbow. The accused says he had been drinking at his own home when Ivan Ballantyne called him on. During a confrontation outside the residence, the accused hit Ivan Ballantyne with the bat.

The accused received 6 months less a day in jail for the assault with a weapon consecutive to a sentence of 18 months in jail on property-related offences. The total sentence was therefore 2 years less a day in jail. c. March 13, 2000, Break, Enter & Commit Sexual Assault : The Crown indicates this conviction resulted from an incident that occurred on September 27, 1999. The facts of this matter are touched on in R. v. Ballantyne , 2009 SKCA 27 (a case involving this same accused) where, at paragraph 6, Mr.

Justice Lane writes, “In September of 1999, he broke into a residence at 3:00 a.m. and attempted to rape the occupant. The victim fought back and he fled but he broke in again a week later. The offender attributed this crime to being intoxicated.” On this charge, a charge of possession of stolen property and two charges of breach of probation, the accused received concurrent sentences of 2 years in jail. d. June 19, 2000, Sexual Assault : The accused pleaded guilty to having sexual intercourse with a 15-year-old female victim between March 1, 1998 and September 4, 1998.

At the time of the offence, he was 20 years old. My notes of the matter, taken as the sentencing judge, show that the Crown alleged the accused and the victim were “romantically involved” and had had sexual intercourse on at least seven occasions. However, the victim’s mental capacity was diminished, possibly by Fetal Alcohol Syndrome (FAS), to the extent that she could not give valid consent to sexual contact. Ms. Alice Robert, also then acting for the accused, indicated that the accused suffered from a history of substance abuse.

She also indicated that he had quit school at age 12, was illiterate, and might also be suffering the effects of FAS. Following the joint submission of Crown and defence, I sentenced the accused to 20 months in jail to be served concurrently with the sentence handed down on March 13, 2000. e. July 8, 2002, Assault : The accused appeared before me unrepresented to plead guilty to a charge of assaulting a male victim. The Crown alleged that the accused, while drunk, approached the victim and punched him in the head five times for “talking behind his back.” The accused confirmed these facts.

I fined the accused $500.00 on the assault and a further $100.00 on a related breach of probation. f. November 20, 2002, Sexual Assault : The accused appeared before me with counsel in Deschambault Lake on September 23, 2002, to plead guilty to a charge of sexual assault on a 25-year-old female victim. On sentencing, the RCMP Court Officer reported that the accused and co-accused saw the victim walking on an outdoor path. The co-accused indicated he would like to have sex with the victim. The accused, after engaging the victim in conversation, grabbed her and pulled her off the trail.

The co-accused pulled down the victim’s pants and placed his fingers in her vagina and anus. The accused then had sex with the victim while he held his hand over her mouth. The victim reported that the accused smelt strongly of gasoline during the assault. The victim pleaded with the accused and co- accused to stop. They finally ran off, and the victim was able to escape. The RCMP Court Officer requested a minimum sentence of 2 years in jail. On November 20, 2002, I sentenced the accused to 4 years in a penitentiary in addition to approximately 2 months the accused had spent on remand. g.

July 18, 2007, Assault : This conviction, which does not appear on the accused’s CPIC record, arose from an incident on April 14, 2007. The accused entered a guilty plea. My notes of the matter, taken while acting as the sentencing judge, indicate that on the April 14 date, the victim, Glen Ballantyne, who is approximately the same age as the accused, had invited the accused to come to his house to drink. The accused did so and became highly intoxicated. At some point, Glen Ballantyne became belligerent with the accused, and the accused in turn became angry.

The accused left the residence, returned with his brothers, and then assaulted Glen Ballantyne. My notes indicate that, pursuant to a joint submission, I sentenced the accused to 9 months in jail in addition to 76 days he had spent on remand. [ 27 ] The 2007 conviction for assaulting Glen Ballantyne is the accused’s last conviction for an offence of a violent nature. Accused ’s Record Respecting

Section 810.2 Peace Bond Recognizances [ 28 ] The accused is all too familiar with

section 810.2 of the Criminal Code . He believes he has been placed on a total of four

section 810.2 peace bonds since the end of his four-year jail sentence for sexual assault. The material before me is somewhat lacking and makes it difficult to create a complete synopsis of those peace bonds. However, relying in part on Provincial Court records, I will set out details indicating that the accused has been the subject of four applications for a

section 810.2 peace bond and the subject of three actual orders:

a. February 16, 2007 : The accused says that he was first placed on a

section 810.2 peace bond prior to February 22, 2007, the date he was granted statutory release on his four-year jail sentence for sexual assault. (If the accused had been incarcerated until his warrant expiry date on his four-year sentence, he should ordinarily have been released on November 19, 2006. Presumably, an intervening, undisclosed event resulted in an extension of the accused’s sentence.) The accused says he appeared on the application for this first

section 810.2 peace bond before he was released from custody and consented to the peace bond order being made. Records at the La Ronge Provincial Court office confirm that on February 16, 2007, the accused was brought before a justice of the peace at the Saskatchewan Penitentiary to appear on a Crown application for a

section 810.2 peace bond. The accused was released on an undertaking to appear in Deschambault Lake Provincial Court on March 7, 2007, to deal with the application. The undertaking required the accused to comply with 17 separate conditions. The accused was on this undertaking until he was taken into custody on April 14, 2007, for assaulting Glen Ballantyne. Eventually, on July 18, 2007, the Crown withdrew its application for a

section 810.2 peace bond. It thus appears that the accused is mistaken in his belief that he was bound by a peace bond from February 2007. He was, however, bound by strict conditions in a related undertaking from February 16 to April 14, 2007. b. December 19, 2007 : On December 19, 2007, the accused, while an inmate at the Prince Albert Provincial Correctional Centre, appeared in Provincial Court at Prince Albert and entered into a

section 810.2 peace bond recognizance. The recognizance had a term of one year and bound the accused to comply with 16 conditions. This peace bond is referred to in Ballantyne , supra , at paragraph 2 . c. December 11, 2009 : According to Ms. Robert, on December 11, 2009, while the accused was still serving the 15-month sentence handed down by the Court of Appeal on February 12, 2009, in Ballantyne , supra , the accused entered into a second

section 810.2 peace bond. Ms. Robert says that the accused did so without being represented by counsel and without a hearing being held. d. April 6, 2011 : The accused entered into a third

section 810.2 peace bond on April 6, 2011. Regarding this third peace bond, Ms. Robert says the accused was living in Deschambault Lake when he received process requiring that he appear in Provincial Court in Regina to deal with the Crown’s application for another peace bond. He telephoned the La Ronge Legal Aid office but was told that since the case was out of Regina, he would have to contact Regina Legal Aid. The accused therefore travelled by bus to Regina in advance of his court day and stayed the night at the Salvation Army.

When he went to court the next day and talked to a Legal Aid representative, he was told that he would have to make an application for Legal Aid and that it would be a week before a Legal Aid lawyer could appear in court with him. Since he did not have money to stay in Regina another night, he talked to a Crown prosecutor to find out what he should do. The prosecutor agreed to waive the peace bond application to Deschambault Lake if the accused agreed to consent to an order being made. As the accused felt he had no choice in the matter, he agreed to this course of action.

The prosecutor gave the accused a list of conditions that the accused was to present to the Provincial Court judge presiding in Deschambault Lake. The accused then travelled back to Deschambault Lake. On April 6, 2011, he appeared without counsel before the presiding judge in Deschambault Lake Provincial Court, handed the judge the list of conditions given to him by the Regina prosecutor, and said he was there to consent to the conditions being sought. The judge accordingly then ordered the accused to enter into a peace bond recognizance for a term of two years. No hearing was held.

This recognizance remains in effect and is due to expire on April 5, 2013. [ 29 ] Along with the

section 810.2 peace bond orders, there have been a number of breaches of those orders. From the material available to me, it appears those breaches are as follow: a. August 20, 2008 : The accused’s CPIC record indicates a conviction under

section 811 of the Criminal Code for which he received a fine of $400.00. b. September 15, 2008 : On September 3, 2008, the accused entered a guilty plea to breaching his

section 810.2 peace bond on September 1, 2008, by drinking alcohol. On September 15, 2008, Judge Daunt sentenced him to 45 days time served plus probation. The Crown appealed this sentence, and on February 12, 2009, the Court of Appeal (as reported in Ballantyne , supra ) varied it by ordering that the accused serve an additional 15 months in jail. c. November 7, 2008 : The accused entered a guilty plea to breaching his

section 810.2 peace bond on November 1, 2008, by drinking alcohol. Judge Daunt sentenced him to 90 days in custody with a recommendation that a portion of the sentence be spent at the Saskatchewan Impaired Driver Treatment Program. The Crown also appealed this sentence, and the Court of Appeal varied it on February 12, 2009, to a sentence of 15 months custody to be served concurrently with the sentence for the breach from September 1, 2008, but consecutively to the sentence originally imposed and served. The actual sentence was therefore effectively one of 18 months in jail for two breaches. d. May 18, 2011 : The accused pleaded guilty to a single charge of breaching his

section 810.2 peace bond curfew contrary to

section 811 of the Criminal Code and was sentenced by Judge Daunt to two and a half months time served. (The CPIC record is in error when it refers to two convictions under

section 811 of the Criminal Code. ) The accused also received a concurrent sentence of two and a half months time served for a breach of recognizance by failing to report “at the Deschambault Lake band office” [sic] contrary to subsection 145(3) of the Criminal Code . He also received a fine of $100.00 on a charge of failing to attend as a witness. e. March 21, 2012 : On January 18, 2012, the accused pleaded guilty to two charges of breaching his

section 810.2 peace bond by not keeping a curfew. The first breach arose from the period September 25 to October 7, 2011, and the second breach from the period October 15 to 19, 2011. I sentenced the accused on March 21, 2012, to three months in jail concurrent on each charge but consecutive to 137 days the accused had spent on remand. [ 30 ] The accused has paid a significant price for breaching his

section 810.2 peace bonds. He has received a total of 28 months in

[30] The accused has paid a significant price for breaching his

section 810.2 peace bonds. He has received a total of 28 months injail for the six breaches noted above. In addition, he has been on remand for an additional 122 days as a result of his current breachwhich, as I will later explain, will be credited as being the equivalent of 183 days. He has therefore essentially now served sentencesadding up to 34 months in jail for breaching his

section 810.2 peace bonds. [31] The stark reality is that the accused’s jail terms, adding up to almost three years, have been imposed for behaviour that would,at least ordinarily, be perfectly legal for Canadian citizens not bound by court conditions. Fairness of the

Section 810.2 Peace Bond [32] Ms. Robert questions the fairness of the accused’s current

section 810.2 peace bond on two grounds: 1) the accused shouldnot have been subjected to more than one application under

section 810.2 of the Criminal Code; and 2) the accused’s current peace bondwas ordered without due process. [33] To support her position that the accused should not have been subjected to more than one application for a

section 810.2recognizance, Ms. Robert relies on the case of Teale v. Noble, (QC CS), [2005] Q.J. No. 17295. In that case,Brunton J. at paragraphs 42, 43 and 44, said: In order to succeed, the informant had to establish on a balance of probabilities that he had reasonable grounds to fear that Ms. Teale[formerly Homolka] would commit a personal injury offence. It was not enough to invoke Ms. Teale’s participation in the sordidhomicides of Ms. French and Ms. Mahaffy. Since s. 810.2 Cr. C. proceedings look to the future, the fear relates to the present portraitwhich is offered of the defendant by the informant.

Nor is it sufficient to equate the fear with a risk that the defendant will commit a personal injury offence sometime in the future. There isa temporal component to s. 810.2 Cr. C. proceedings. The fear must reflect a risk of serious and imminent danger. This is reflected bothin the construction of the

section and its subsequent

interpretation by the courts. The

section itself imposes a twelve month limit on the duration of the recognizance order. If the

section called only for the proof of afear of specified action sometime in the future, why place a twelve month limit on the court’s response? This time limit, combined withthe fact that the fear that is to be established is that the defendant will commit a personal injury offence imports a component ofimminency. [34] Ms. Robert argues that any risk of serious and imminent danger that might have been present when the accused entered intohis first

section 810.2 recognizance would have faded by the time the Crown brought its next application. [35] Regarding Ms. Robert’s contention that the accused’s current peace bond was ordered without due process, it does appear thatthe accused entered into his current recognizance without either the benefit of counsel or the benefit of a hearing.

In hindsight, especiallygiven the present Crown request to have the accused sentenced to two years in a penitentiary, it does seem the accused would havebenefited from the assistance of counsel and from a hearing. [36] I anticipate that future cases will see Provincial Court judges taking a more rigorous approach to Crown applications forsection 810.2 peace bonds. This is illustrated by the articulate and well-considered ruling by our Court’s Nightingale J. in the recent caseof R. v. Toulejour, 2012 SKPC 86 , 2012 SKPC 086, a decision dealing with the admissibility of documents in a

section 810.2hearing. [37] If this were a hearing to determine whether the accused should be placed on a

section 810.2 peace bond or if it were an appealfrom a peace bond recognizance order being made, Ms. Robert’s arguments respecting the fairness of any order could be fullycanvassed. However, as I am now dealing with the breach of an order made some 18 months ago, I have no authority to consider thefairness of the original order. Credit for Accused’s Current Remand Time [38] Because Ms. Robert is asking that I sentence the accused to time served as a fit sentence, it is necessary to consider whatcredit the accused should receive for his 122 days spent on remand. On September 21, 2012, Mr.

Mackenzie took the position that theaccused should only receive one day of credit for each day served on remand. Ms. Robert took the position that the accused shouldreceive credit at a rate of one and a half days for each day served on remand. [39] Subsection 719(3.1) of the Criminal Code states that “if the circumstances justify it”, remand time can be credited to anaccused at a maximum rate of one and a half days for each day spent in custody. The recent cases of R. v. Johnson (2011), 2011 ONCJ77 , 268 C.C.C. (3d) 423 (Ont. C.J.) and R. v. Desjarlais, 2012 NWTTC 2 , [2012] N.W.T.J. No. 3 (N.W.T. Terr.

Ct.)both hold that the justification for a one and a half to one credit for remand time may be found in the loss of remission time experiencedby remand prisoners. In Desjarlais, at paragraph 27, Gorrin Terr. Ct. J. held that an accused should receive a one and a half to onecredit where she was able to establish on a balance of probabilities that her behaviour on remand would justify a one third reduction inher jail term had she been a serving prisoner. [40] In the case before me, Ms. Robert said that the accused had not been in any trouble while on remand.

Indeed, hisopportunities for getting into any trouble were significantly reduced because he was being held in a protective custody unit 23 hours aday. I have therefore ruled that the accused should be granted credit of one and a half days time served for each day he has spent on

remand. As he has now spent 122 days on remand, he is credited with 183 days. [41] I was not provided details with respect to what restrictions applied to the accused while he was in protective custody. But Iunderstood Ms. Robert to mean that the accused had less freedom than other prisoners on remand or in the general prison population. This reduced freedom is a factor that can be taken into account on sentencing separately from the mathematical calculation of anyremand credit.

Section 718 C.C.: Purpose of Sentencing [42] The fundamental purpose of sentencing in Canadian criminal law is set out in

section 718 of the Criminal Code. That sectionreads: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [43] The Criminal Code provides judges with a range of sentencing alternatives that can be used to meet the fundamental purposeset out in

section 718. In the case before me, a fit sentence should serve to denounce the accused’s failure to comply with a court order. It should also serve to deter him from other breaches. The denunciatory and deterrent aspects of any sentence handed down will helpmaintain the integrity of

section 810.2 peace bonds and underscore the purpose of those peace bonds which, as has been set out inBallantyne, supra, is to protect the public by preventing future criminal activity. [44] Denunciation and deterrence can be achieved with a sentence other than a jail sentence. However, jail sentences are oftenhanded down where a court wishes to emphasize those objectives. [45] In almost all cases, even where denunciation and deterrence are emphasized, a sentence should also assist in the rehabilitationof an offender.

In some cases, an offender may have achieved any needed rehabilitation prior to being sentenced. And in some cases, anoffender will be separated from society by a lengthy custodial sentence that supersedes the need for rehabilitation. But those cases willbe rare. Most cases will require a judge to consider what sentence might best help in the rehabilitation of the offender being dealt with. Such a sentence has the potential of being the very best means of protecting the public by preventing future criminal activity. [46] A sentence emphasizing rehabilitation will often be a non-custodial sentence.

However, a jail sentence may also meet theobjective of assisting in rehabilitating an offender. It can do so by offering an offender a chance to participate in in-custody programsthat address addictions and other issues. It can also do so by putting the brakes on an accused who has started moving down a wrongpath. A period in jail, not necessarily a long period, can cause an offender to pause and rethink strategies for living successfully withinsociety. That offender can then, upon release, put those strategies into action.

The hard steps towards positive change can only be takenonce the offender is out in the community and meeting the challenges of everyday life. [47] The Supreme Court of Canada recently emphasized the importance of sentencing judges focusing on the rehabilitation ofoffenders in the cases of R. v. Ipeelee and R. v. Ladue, 2012 SCC 13 , [2012] S.C.J. No. 13 (hereafter referred to as Ipeelee andLadue). Those cases are of particular significance to the case before me because they dealt with breaches of long-term supervisionorders made under

section 753.1 of the Criminal Code. Parliament has provided for more severe sentences for breaches of long-termsupervision orders than it has for breaches of

section 810.2 peace bonds. Nonetheless, long-term supervision orders are somewhatsimilar to

section 810.2 orders, so the Supreme Court’s approach to the former orders is instructive. [48] At paragraph 48 of Ipeelee and Ladue, LeBel J. writing for the majority, said: Reading the Criminal Code, the CCRA and the applicable jurisprudence together, we can therefore identify two specific objectives oflong-term supervision as a form of conditional release: (1) protecting the public from the risk of re offence, and (2) rehabilitating theoffender and reintegrating him or her into the community.

The latter objective may properly be described as the ultimate purpose of anLTSO, as indicated by s. 100 of the CCRA, though it is inextricably entwined with the former. Unfortunately, provincial and appellatecourts have tended to emphasize the protection of the public at the expense of the rehabilitation of offenders. This, in turn, has affectedtheir determinations of what is a fit sentence for breaching a condition of an LTSO. [49] Mr.

Mackenzie for the Crown argues that the decision in Ipeelee and Ladue has no bearing on the present case because thepurpose of long-term offender orders is to facilitate the rehabilitation of offenders. He argues that rehabilitation is not an objective of

section 810.2 peace bonds. [ 50 ] I cannot agree with Mr. Mackenzie’s position. He puts particular emphasis on the fact that the Corrections and Conditional Release Act focuses on the rehabilitation of offenders. However, that is clearly not the CCRA ’s only focus.

Section 101 of the Act contained a provision (now re-worded but essentially unchanged in what is now

section 101.1 of the Act ) stating that for the federal Parole Board and provincial parole boards, the protection of society would be the paramount consideration in the determination of any case. The Supreme Court of Canada recognized this when it listed both protection of the public and rehabilitation of an offender as objectives of long-term supervision. [ 51 ] Mr. Mackenzie’s argument also fails to consider that

section 810.2 is itself alive to the prospect of rehabilitating an offender. Subsection 810.2(3.1) speaks of securing “the good conduct of the offender” and, in so doing, surely envisages a rehabilitated defendant. The subsection then goes on to list possible conditions that might be included in a peace bond. The first such condition is one that might require a defendant to “participate in a treatment program”. This condition is clearly aimed at rehabilitation. [ 52 ] Mr. Mackenzie has also suggested that the Saskatchewan Court of Appeal in Ballantyne , supra , should be interpreted to mean that

section 810.2 of the Criminal Code does not have any rehabilitative purpose. I do not see the Ballantyne case in the same light. The Court of Appeal, at paragraph 5, did emphasize that the purpose of a

section 810.2 recognizance is to protect the public by preventing future criminal activity. It did not definitively state that rehabilitation of an offender could never be used to achieve that laudable goal. [ 53 ] The Crown position put forward by Mr. Mackenzie seems to suggest that the protective purpose of a

section 810.2 peace bond takes precedence over the fundamental purpose of sentencing and related principles that a sentencing judge must consider when dealing with a charge. This position is untenable. According to Ipeelee and Ladue , it would be an error in law for me to pass over the purpose and principles regarding sentencing that are set out in the Criminal Code . [ 54 ]

Section 718 of the Criminal Code dictates that any sentence I hand down in the accused’s case must be a just sanction. In my view, a just sanction will have the rehabilitation of the accused as one of its objectives.

Section 718.1 C.C. : Proportionality Principle [ 55 ] The fundamental principle of criminal sentencing is set out in

section 718.1 of the Criminal Code . That

section reads: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 56 ]

Section 718.1 was considered by the Supreme Court of Canada in Ipeelee and Ladue . At paragraph 37 of the Court’s decision, LeBel J. said: . . . Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. . . . Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender.

In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [ 57 ] The charge before me is serious in part because the accused’s breach of his

section 810.2 peace bond shows a lack of respect for court orders. But more importantly, it is a matter of some gravity because the breach has the potential of putting the public’s safety at risk. If the accused drinks, there is the risk of him becoming intoxicated. And if he becomes intoxicated, there is the risk that he will engage in assaultive behaviour that could in turn cause serious injury to someone. [ 58 ] A distinction must necessarily be drawn between the facts giving rise to the accused’s

section 810.2 peace bond and the facts giving rise to his current charge. As it does not appear there was an actual hearing held when the accused entered into his current peace bond, it is somewhat difficult to say what facts underlie the peace bond. One can guess that the peace bond informant was particularly concerned about the accused’s most recent convictions for violence, i.e., his 2002 conviction for sexual assault and his 2007 conviction for assault. That is only reasonable. But it must be remembered that the accused has already been sentenced for his earlier convictions.

With regard to the 2002 and 2007 matters, I sentenced the accused to lengthy jail sentences. I did not intend that the accused would be further sentenced on those matters by jail terms coming in future instalments. [ 59 ] The main fact of the matter before me is that the accused consumed alcohol. For the accused, drinking remains an activity that may put the public’s safety at risk and is therefore something to be avoided by him. However, having said that, on the night in question, the accused’s drinking did not result in gross intoxication.

When he was apprehended by the police, he showed only slight signs of intoxication and was co-operative with the police. Most importantly, he had not committed any offence other than the breach of his peace bond. In sentencing the accused on his current charge, I must be mindful of the risk associated with his breach. But I must also be mindful that I cannot sentence him for a notional crime of violence that he did not indeed commit. [ 60 ] It must also be mentioned that considerable time has elapsed since the accused committed a crime of violence. It has now

been over 10 years since the accused committed his last sexual assault and 5 ½ years since he assaulted Glen Ballantyne. That latter assault resulted in the accused’s last conviction for violence. It may be that the jail sentences the accused has received for breaching his

section 810.2 peace bonds have prevented any further violence. It may also be that, at age 35, he is simply part of a well-established trend that sees the great majority of older offenders drop out of the criminal justice system. Whatever the case, it is reasonable to assume that as time passes without the accused re-offending in a violent manner, his actual risk of violent re-offending lessens. [ 61 ] Ms. Robert has also noted that the sexual assault from 2002 was committed by the accused while he was high on gasoline. Since 2002, the accused has not sniffed gasoline or other solvents.

Again, as time passes, the risk of the accused returning to sniffing is reduced. This in turn helps to reduce his overall risk of re-offending. [ 62 ] In assessing the gravity of the accused’s offence, it is also useful to look at how Parliament has dealt with the offence of breaching a

section 810.2 peace bond. Under

section 811 of the Criminal Code , the breach of a

section 810.2 peace bond is a hybrid offence punishable either by indictment with a maximum sentence of imprisonment for two years or by

summary conviction.

Section 811 creates a sentencing regime similar to that set out in

section 733.1 of the Criminal Code for breach of probation, excepting that a

summary conviction breach of probation has a special sentencing provision allowing for a jail sentence of 18 months or to a fine of $2,000.00 or both. Sentences for breach of probation may vary considerably, but in Saskatchewan, it is common for them to be dealt with by way of fines, more probation, conditional sentence orders or short custodial sentences. Given the similarity between the sentencing provisions set out in

section 811 and

section 733.1 , it is reasonable to suggest that sentences for

section 810.2 breaches should be similar to sentences for probation breaches. [ 63 ] Comparison can also be made to the sentencing regime that Parliament has established for the breach of a long-term supervision order made under

section 753.1 of the Criminal Code . Under

section 753.1, a judge dealing with certain serious offences can find an offender to be a “long-term offender” and then order that the offender be subject to long-term supervision for a period of up to 10 years. A breach of a long-term supervision order is dealt with under

section 753.3 of the Criminal Code . Under that section, non- compliance with a long-term supervision order is an indictable offence punishable by up to 10 years in jail. [ 64 ] In Ipeelee and Ladue , supra , the Supreme Court of Canada dealt with cases where the individual offenders had each been convicted of breach of a long-term supervision order contrary to

section 753.3 . [ 65 ] In Ipeelee , Mr. Ipeelee, an Inuk man from Iqaluit, was released from the Kingston Penitentiary in 2007 and, over the next year, went back into custody on four separate occasions for breaches of his long-term supervision order (albeit not for drinking alcohol). In August 2008, police found him riding a bicycle while intoxicated in downtown Kingston, Ontario. He had two bottles of alcohol in his possession. He was charged under

section 753.3 and pleaded guilty to his charge. [ 66 ] In Ladue , Mr. Ladue, an aboriginal man from Ross River, Yukon was released from jail and began his long-term supervision order in late 2006. Over the next two and a half years, he was re-admitted to custody on several occasions for breaching his supervision order. In August 2009, he was released from jail to live at a specified residence in downtown Vancouver. He was soon thereafter found to have traces of cocaine in his urine and was charged under

section 753.3 . Like Mr. Ipeelee, Mr. Ladue entered a guilty plea to his charge. [ 67 ] In both Ipeelee and Ladue , the Supreme Court, in a strong majority ruling, held that an appropriate sentence for both Mr. Ipeelee and Mr. Ladue would be a sentence of one year in jail. [ 68 ] The sentencing regime set out in

section 753.3 of the Criminal Code for a breach of a

section 753.1 order is much stricter than that found in

section 811 for a breach of a

section 810.2 peace bond recognizance. It is also noteworthy that an offender bound by a supervision order is still serving his or her sentence for the predicate offence. This is in contrast to someone bound by a

section 810.2 recognizance who is not serving any sentence. All of this suggests that a breach of a

section 753.1 order should attract a stronger sentence than a breach of a

section 810.2 order. [ 69 ] Of course, while the sentencing provision in section753.3 is stricter than those in

section 811, I still need to consider the actual facts before me to determine if they might be more serious than those in Ipeelee and Ladue . Looking at those facts, it appears that while the accused has not been a saint, his criminal record and the circumstances giving rise to his current charge cannot be said to be more egregious than those dealt with in Ipeelee and Ladue . Accordingly, the fundamental principle that a sentence be proportionate to the gravity of the offence suggests that the accused before me should receive a sentence something less than the one-year jail sentences given to Mr. Ipeelee and Mr. Ladue. [ 70 ] Besides focusing on the gravity of an offence,

section 718.1 also refers to the degree of responsibility of an offender. In the case before me, the accused was clearly responsible for accepting alcohol from his mother. It must, though, be kept in mind that the accused developed an alcohol addiction at an early age. He has made efforts to remain sober, but it is well known that those on the road to recovery sometimes have slips. As LeBel J. said, at paragraph 92 of Ipeelee and Ladue , “Relapse is to be expected as he [Mr.

Ipeelee] continues to address his addiction.” The road to recovery for the accused before me is made extra hard by the fact that, lacking other suitable accommodation, he is required to live with his mother who continues to drink alcohol to excess. So, while he remains responsible for his breach, his background and current situation go some distance to explain his actions. [ 71 ] It is my view that the sentence of two years in a penitentiary being sought by the Crown would not be a proportionate response to the accused’s breach and would offend the principle set out in

section 718.1 .

Section 718.2 C.C. : R. v. Gladue Factors

[72]

Section 718.2 of the Criminal Code sets out other sentencing principles that must be taken into consideration by a sentencingjudge. Paragraph (

a) of that

section sets out a list of circumstances which shall be deemed to be aggravating. None of thesecircumstances apply to the case before me. [73] Paragraphs (b), (c), (

d) and (

e) set out other principles that a sentencing judge must consider. Of particular importance to thecase before me is paragraph (

e) which reads: (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to the circumstances of aboriginal offenders. [74] In the landmark case of R. v. Gladue, (SCC), [1999] S.C.J. No. 19, the Supreme Court of Canada, in aunanimous decision, dealt with how sentencing judges should interpret paragraph 718.2(e). The Court underscored that Parliamentintended the paragraph to address the high usage of incarceration as a sentencing tool in Canada and its particular use with respect toaboriginal offenders.

At paragraphs 50 and 51 of Gladue, Cory and Iacobucci JJ, writing on behalf of the Court, said: The parties and interveners agree that the purpose of s. 718.2(

e) is to respond to the problem of overincarceration in Canada, and torespond, in particular, to the more acute problem of the disproportionate incarceration of aboriginal peoples. . . . The fact that the parties and interveners are in general agreement among themselves regarding the purpose of s. 718.2(

e) is notdeterminative of the issue as a matter of statutory construction. However, as we have suggested, on the above points of agreement theparties and interveners are correct. . . . [75] In Gladue, the Supreme Court went through a detailed analysis of how paragraph 718.2(

e) should be interpreted so that itspurpose might best be achieved. In paragraph 93, the Court laid out a general

summary which included, inter alia, the following: a. Paragraph 718.2(

e) requires sentencing judges to consider all available sanctions other than imprisonment and to payparticular attention to the circumstances of aboriginal offenders. b. Paragraph 718.2(e)’s purpose is to ameliorate the serious problem of over representation of aboriginal people in prisons andto encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give 718.2(e)’sremedial purpose real force. c. Paragraph 718.2(

e) directs sentencing judges to sentence aboriginal offenders individually, but also differently, because thecircumstances of aboriginal people are unique. The judge must consider: (

a) the unique systemic or background factors which may haveplayed a

part in bringing the particular aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctionswhich may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. d. If there is no alternative to incarceration, the length of the term must be carefully considered. e. The jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non-aboriginaloffender for the same offence. [76] Unfortunately, more than a dozen years after Gladue was handed down, it appears we are seeing very little improvement inour heavy reliance on incarceration of offenders.

Although our province’s population has seen only modest growth in recent times, itsprison population appears to be going up instead of down. In a recent front-page

article entitled “Sask. Jails ‘Crammed’ with Inmates” inSaskatoon’s daily newspaper, The StarPhoenix, (Saturday, September 15, 2012, page A1), reporter Jason Warick stated that theSaskatoon Correctional Centre had an inmate population of 435 prisoners even though the institution had capacity for only 364. Thisovercrowding was resulting in inmates sleeping in the prison gymnasium, chapel and rooms meant for educational programming. Thearticle reported the problem to be a “system-wide situation”. [77] It also appears that since Gladue, there has been no reduction in the incarceration of aboriginal offenders.

If anything, thingshave got worse. In Ipeelee and Ladue, LeBel J., at paragraph 62, cites a study indicating that in 1999 when Gladue was decided,aboriginal inmates made up 12% of federal prison inmates and that by 2005, aboriginals made up 17% of federal prison admissions. Onehas to suspect that the situation is similar in provincial correctional centres. [78] Aboriginal people continue to make up a disproportionate percentage of the persons sentenced to custody in Saskatchewan. Iam most familiar with northern Saskatchewan. It has a population comprised of both aboriginal and non-aboriginal people.

Despite thisdiversity, over 99% of the people I sentence into custody are of aboriginal descent. [79] Truly, too many aboriginal people have ended up in the criminal justice system. The roots of this problem are no doubtcomplex and poorly understood. Many of the cultural values that were absolutely essential to the survival of indigenous hunting andgathering societies, such as the Cree and Dene societies in northern Saskatchewan, have collided and conflicted with some of the societalnorms found in the broader Canadian community.

Ideally, these two differing value systems could be integrated or at least made to workin harmony to provide benefits to both aboriginal people and their non-aboriginal neighbours. However, events like the residentialschool experience have caused major disruptions that have made it difficult for aboriginal communities to turn their rich heritage to fulladvantage in a modern-day context. Positives have too often given way to negatives. Many aboriginal communities, such as the

accused’s home community of Deschambault Lake, are left dealing with high unemployment, poverty, family breakdown and addictions. As stated by Deschambault Lake’s Holistic Healing Worker, Larry Beatty, at page 10 of the accused’s Pre-Sentence Report, this leaves many aboriginal people “always in a rut”. For some, especially young aboriginal males, that rut deepens rapidly when they end up in court. [ 80 ] Judges have limited control over how many aboriginal people end up in court. But it goes without saying that they have a great deal of control over what happens to those people once they are in court.

Except in the case of mandatory minimums, a judge gets to decide whether an accused person should receive a jail sentence. If such a sentence is ordered, the judge gets to determine its length. [ 81 ] In Ipeelee and Ladue , the Supreme Court made it all too clear that judges must be more diligent in following the direction set out in paragraph 718.2 (

e) of the Criminal Code and amplified by the Court in Gladue . At paragraph 87 of Ipeelee and Ladue , LeBel J. said: The sentencing judge has a statutory duty, imposed by s. 718.2 (

e) of the Criminal Code , to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention. [ 82 ] Mr.

Mackenzie argues that the Gladue principles apply to the case before me but that they can have absolutely no impact on the accused’s sentence. His argument relies, I believe, on the Court of Appeal’s decision in Ballantyne , supra , where the Court underscored the purpose of a

section 810.2 recognizance being the protection of the public. With the greatest respect, I am unable to accept Mr. Mackenzie’s somewhat puzzling argument. If I were to do so, I would essentially be saying that paragraph 718.2 (

e) does not apply to the accused. This would be an error in law. [ 83 ] I recognize that the Court of Appeal in Ballantyne , supra , did not appear to apply 718.2(

e) and the Gladue principles to the accused’s case although Judge Daunt had applied Gladue when she originally sentenced the accused in that matter. Perhaps the Court of Appeal considered Gladue but simply chose not to refer to it. Whatever the case, my respectful view is that Ballantyne must now be read in light of Ipeelee and Ladue . In these cases, the Supreme Court has forcefully said that I must adhere to the direction in 718.2(e). [ 84 ] Many of the Gladue factors directly affecting the accused have already been outlined in the description of his personal circumstances and need not be repeated.

Suffice it to say, the accused has been acutely influenced by those factors. His past offending behaviour must be seen as flowing from them. [ 85 ] Besides the factors that are directly linked to the accused’s situation, I must also take judicial notice of the systemic and background factors affecting aboriginal people in Canadian society, including colonialism, displacement and the residential school experience ( Ipeelee and Ladue at paragraph 60 ).

Those factors have had a very real impact on Peter Ballantyne Cree Nation communities and have helped shape the social milieu that the accused finds himself living in. [ 86 ] The accused’s home community of Deschambault Lake is a particularly impoverished environment. It has high unemployment, a housing shortage, a significant number of broken families, an alcohol problem, a solvent and drug abuse problem amongst some youth, local gang activity, too much school absenteeism, and too many school dropouts.

When the accused was growing up, this environment would not have offered the accused a great deal of support as he tried to cope with living in the home of his alcoholic mother. [ 87 ] It is not difficult to conclude that the accused’s upbringing in an isolated and impoverished aboriginal community has had a direct bearing on how he has turned out. I must keep that conclusion in mind in deciding a fit sentence for the accused. Sentencing the Accused [ 88 ] It is my view that after applying sections 718 , 718.1 and 718.2 of the Criminal Code to the accused’s situation, a fit sentence is one of time served.

That sentence, being the equivalent of 183 days in custody and including at least some time in protective custody, should be more than sufficient to denounce and deter the accused’s actions in failing to keep the curfew set out in his

section 810.2 recognizance. It also allows his release back into the community where he can work towards the goal of becoming a citizen who keeps the peace and is of good behaviour. [ 89 ] In my view, the accused’s release back into the community is critical if he is to make any progress on the restorative path contemplated by the Supreme Court of Canada in both Gladue and also Ipeelee and Ladue . That path will not be an easy one, and the accused will need help along the way. But if all goes well, he will in time be able to fill his days with positive activities. [ 90 ] The accused remains on conditions set out in his

section 810.2 recognizance. Ms. Robert has asked that I consider changing those conditions, particularly the condition that requires him to live with his mother. While that may be a desirable change, I will leave that for a future application when more information can be provided to me. [ 91 ] I recognize that the accused may yet again breach his conditions. If that happens, either I or another judge will no doubt have to look at his situation afresh. But looking to the future, I am hopeful that the accused may one day be able to live in his home

community free of court-ordered conditions. [ 92 ] I wish to thank both Mr. Mackenzie and Ms. Robert for their helpful submissions. ____________________________________ S.I. Robinson, J