Her Majesty the Queen - v. -, 2013 SKPC 109

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 109 Date: July 4, 2013 Information: 24467922 & 24467919 Location: Fort Qu’Appelle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cassidy Goforth Appearing: Kelly Kaip For the Crown Murray Pelletier For the Accused JUDGMENT B. J. TOMKINS , J [ 1 ] Cassidy Goforth pleaded guilty to one count of robbery and one count of

section 266 assault regarding three separate

incidents. [ 2 ] The Crown seeks a sentence of four years on the robbery charge and six months concurrent on the

section 266 assault. [ 3 ] The defence submitted that a sentence of three to four years was appropriate for the robbery, coupled with concurrent time for the

section 266 assault conviction. [ 4 ] The main issue between the Crown and Accused is as to credit for the time Mr. Goforth has spent on remand pending plea and sentence. CIRCUMSTANCES OF THE OFFENCE [ 5 ] The circumstances of the offence indicate that Mr. Goforth was among a number of people at Joseph Bellegarde's house for a party. When the liquor ran out, most of those at the party left. [ 6 ] Mr. Goforth, in company with four other men, made a plan to return to the house, force Mr. Bellegarde outside and then steal marihuana they knew he possessed. An assault on Mr.

Bellegarde was planned and anticipated. [ 7 ] In keeping with the plan, Mr. Watetch knocked at the door of the house, while Mr. Goforth and Mr. Goodwill hid beside the door, outside Mr. Bellegarde's view. When Mr. Bellegarde opened the door, the three men pulled him out of the house and into the back yard. There, Mr. Watetch and Mr. Goodwill punched and kicked Mr. Bellegarde and Mr. Goforth, while he was down, rummaged through his pockets and took the marihuana.

The men then fled the scene in company with the other two men, one who stood look-out and the other who waited in the car. [ 8 ] The robbery went horribly wrong. Unknown to Mr. Goforth, Mr. Watetch pulled a knife and stabbed Mr. Bellegarde. This was not part of the plan. Mr. Bellegarde was left injured in the yard and died at hospital. [ 9 ] After the robbery, the five men went to one of their homes. En route, Mr. Watetch told the others that he had stabbed Mr. Bellegarde. None of them went back to see how seriously he was injured or to offer assistance. Instead, they continued to Mr.

LaSwisse's home and smoked the marihuana they had stolen. SENTENCE Personal [ 10 ] Mr. Goforth is 24 years old and single. He is an active father to a four year old child. He obtained a grade 12 education. [ 11 ] Mr. Goforth has strong support from his family, particularly his parents and grandparents. [ 12 ] Mr. Goforth also has the support of Peepeekisis Cree Nation, conveyed in a letter to the Court from Chief Koochicum. In addition to advising of Mr. Goforth's remorse, Chief Koochicum advised of the resources that are available to Mr.

Goforth and which will be available to him when he is released from custody.

[ 13 ] Mr. Goforth has a short but serious criminal record. In August 2006, he was convicted of uttering threats and given a conditional discharge. In May 2008, he was convicted of failing to comply with a probation order - presumably the probation on which the prior discharge was conditioned - and received a sentence of one month in custody concurrent. (I am uncertain what sentence this month was concurrent to.) In November 2009, he was convicted of assault with a weapon and breach recognizance and sentenced on the primary offence to 20 months in custody and to one month concurrent for the breach charge.

Aggravating and Mitigating Circumstances [ 14 ] I consider it aggravating that: · the robbery was planned; · the attack was brutal and three-on-one; and · Mr. Goforth had a prior record for significant violence and threatening violence. [ 15 ] In mitigation, I will consider that: · Mr. Goforth did not punch or kick the victim himself (though he was party to the planned actions of others who did); · Mr. Goforth was cooperative with the authorities; · Mr. Goforth has family and community support; · Mr. Goforth entered a guilty plea; and · Mr. Goforth apologized to Mr.

Bellegarde's family. [ 16 ] In determining an appropriate sentence, I must of course be mindful of the purpose and objectives of sentencing set out in

section 718 of the Criminal Code . These are denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, reparation for harm to the victim and community and the promotion of a sense of responsibility in offenders, as well as acknowledgement of harm done. [ 17 ] I must also consider the parity principle set out in

section 718.2(

b) which states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. In this respect, I am particularly interested in the sentence imposed on Kyle Goodwill, another of the five men involved in this incident. [ 18 ] By joint submission, Mr. Goodwill was sentenced to three years in custody for his role in this offence. Like Mr. Goforth, Mr. Goodwill did not know that Mr. Watetch had stabbed Mr. Bellegarde until they were travelling away from the scene. Like Mr. Goforth, he did not return to check Mr.

Bellegarde's condition or offer assistance. [ 19 ] Mr. Goodwill, like Mr. Goforth, hid beside the door and helped pull Mr. Bellegarde from the house and into the back yard. Unlike Mr. Goforth, however, Mr. Goodwill did actually commit an assault on Mr. Bellegarde by punching and kicking him. Mr. Goodwill also, with another of the five men, cleaned and disposed of the knife Mr. Watetch used to kill Mr.

Bellegarde. [ 20 ] While the five men acted in concert in committing the robbery and are liable for the offence as planned and committed irrespective of their specific roles, I can, in fixing sentence, consider the specific actions of each. On this basis, Mr. Goforth's role was somewhat less serious and less violent than that of Mr. Goodwill. I find Mr. Goodwill's role in cleaning and disposing of Mr. Watetch's weapon particularly distasteful and aggravating, especially when compared to counsel's submission that Mr. Goforth was cooperative with authorities from the time of his arrest. [ 21 ] The records of Mr.

Goforth and Mr. Goodwill at the time of their respective sentencings are similar. While Mr. Goforth had previously been sentenced for assault with a weapon and threatening, Mr. Goodwill was sentenced for assault causing bodily harm,

threatening and breach recognizance in November 2012 for offences committed while this charge was pending. [ 22 ] In Mr. Goodwill's favour, he is younger than Mr. Goforth and was only 18 at the time this offence occurred. His personal circumstances are perhaps more stable and likely more promising than Mr. Goforth's. [ 23 ] I have difficulty reconciling a sentence of four years for Mr. Goforth with Mr. Goodwill's sentence of three years.

Parity suggests that the sentences should be similar, subject to differences in their records and circumstances. [ 24 ] The Crown suggested that a significant difference lies in the two men's records. In particular, Mr. Goforth has pleaded guilty to a global count of

section 266 assault encompassing three assaults on his common-law partner, all of which occurred prior to or on the day of the robbery. Mr. Goodwill's convictions for assault causing bodily harm and threatening relate to incidents which occurred after the robbery. [ 25 ] I do not understand nor am I convinced that this distinction has the significance Ms. Kaip suggests. Arguably, the offences on Mr. Goodwill's record are more aggravated than Mr. Goforth's given that Mr.

Goodwill was apparently on bail for this robbery offence when the new offences occurred. [ 26 ] On the other hand, I do think it is of significance that Mr. Goforth had served a significant sentence for violence previously and apparently it did not achieve its objective of individual deterrence. [ 27 ] Considering the circumstances of the offence, Mr. Goforth's record and the purpose, objectives and principles of sentencing, I sentence Mr. Goforth to serve a term of three and one-half years in custody for the offence of robbery. For the

section 266 assault, he will be sentenced to a term of six months in custody concurrent to the robbery sentence. CREDIT FOR PRE-TRIAL CUSTODY [ 28 ] This brings us to the matter of credit for pre-trial custody, which today comes to approximately 19 months. Mr.

Goforth seeks credit at 1.5 to 1 or, at least, some level of enhanced credit in light of the facts that: · he has served 19 months in remand for which he will not be eligible for remission or parole; · he was, by virtue of remand, subjected to 20 to 21 hour lock-up; and · no programming is offered or available to remanded inmates. [ 29 ] Beyond bare submission of these facts, Mr. Goforth offered no evidence in support of his submissions or of any particular impact these conditions had on him personally. [ 30 ] The Crown agrees that Mr.

Goforth ought to be given credit for remand time but opposes any enhancement beyond 1:1. She noted remission is not automatic and Mr. Goforth did not offer any evidence showing that he was likely to receive remission or statutory release. [ 31 ] Remand credit and enhanced remand credit are addressed in sections 719(3) and (3.1) of the Criminal Code and read as follows:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in

custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody .

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [ 32 ] Section 515(9) states that if interim release is refused "primarily because of a previous conviction", this fact is to be endorsed in writing on the record. No such endorsement was made in Mr. Goforth's case but the Crown took the position that Mr.

Goforth's bail was denied primarily because of his record, that as such an endorsement ought to have been made and that I should, therefore, either consider him ineligible for enhanced remand credit or deny enhanced credit. [ 33 ] Counsel made submissions regarding the onus of requesting, requiring or ensuring such endorsement. I do not believe it is necessary for me to resolve that issue, however, because I am satisfied that Mr. Goforth was not denied bail "primarily" because of a previous conviction. [ 34 ] I have reviewed the recording of Mr.

Goforth's show cause hearing and of my decision to refuse him release. Bail was refused in his case for a combination of reasons which I stated to be the following: · That his record and these allegations, if proven, showed a pattern of serious violence; · That Mr. Goforth did not recognize and/or had not taken steps to address his inclination to violence; · That Mr. Goforth offered no "real" release plan, proposing if released to return to substantially the same living arrangements and controls, or lack thereof; · That Mr.

Goforth faced allegations that he attempted to interfere with the administration of justice by encouraging the victim of the

section 266 assaults not to lay charges against him. [ 35 ] It was clearly all of these circumstances which together influenced the decision to refuse release and it is also clear that Mr. Goforth's prior record for violence was not the primary reason for the decision. As such, it was appropriate that no endorsement was made on the record pursuant to section 515(9.1) and Mr.

Goforth is not ineligible for enhanced remand credit. [ 36 ] Sections 719(3) and (3.1) were relatively recently passed and have not yet been the subject of a decision of the Saskatchewan Court of Appeal. [1] However, they have been considered by a number of appellate courts in other jurisdictions and also by judges of the Saskatchewan Court of Queen's Bench. [ 37 ] There is, fundamentally, one question as to the application of the subsections: Does section 719(3.1) contemplate exceptional circumstances in order that enhanced remand credit can be given or can enhanced credit be founded in circumstances which affect all or most inmates?

In particular, does the fact alone that those serving time on remand do not and cannot earn or receive remission for that time justify enhanced credit? Or is something more required? [ 38 ] The appellate courts in Ontario, Nova Scotia, Manitoba, Alberta and British Columbia have each given decisions on the issue.

With the exception of the British Columbia Court of Appeal, all have concluded that a convicted person does not have to demonstrate exceptional circumstances to receive enhanced credit; it will be available if there are circumstances which justify it. [ 39 ] An extensive review of the provisions and relevant case law was undertaken by the Ontario Court of Appeal in R. v. Summers . [2] The Court concluded that: 1. A sentencing judge has wide discretion to consider all circumstances that may warrant enhanced credit, subject to the maximum

ratio of 1.5 days for each day served in remand. 2. Ordinary or common circumstances may be sufficient to ground enhanced credit. There is no requirement that circumstances justifying an enhancement must be rare or ubiquitous. 3. The fact that crediting to a maximum of 1.5 to 1 is a permitted exception to 1 to 1 crediting does not mean that the circumstances relied on to support an enhanced credit must themselves be exceptional. [ 40 ] The Ontario Court's decision was in accord with decisions previously reached by the Manitoba Court of Appeal in R. v. Stonefish [3] and the Nova Scotia Court of Appeal in R. v.

Carvery . [4] More recently, the Alberta Court of Appeal reached the same conclusion in R. v. Johnson . [5] [ 41 ] Very recently, the British Columbia Court of Appeal rendered its decision in R. v.

Bradbury . [6] That Court concluded that in enacting subsections 719(3) and (3.1): Parliament intended to replace the previous 2:1 practice with a new statutory general rule of up to 1:1 credit for the loss of remission or parole eligibility, and/or the lack of programs in remand custody. [7] [ 42 ] Further, Madam Justice Smith wrote: In my opinion, however, circumstances that would justify enhanced credit must have a qualitative characteristic; that is, a characteristic that is individual to the offender but also distinct from those characteristics that are universal to, or almost universally held, by other similarly situated offenders.

Examples of commonly held circumstances might include the lack of programs, the conditions of the remand institution, and the loss of remission or parole eligibility.

Individual qualitative circumstances might include the imposition of segregated or protective custody through no fault of the accused, the harsh effect of remand conditions because of a particular health issue by an accused, or a delay in the proceeding that is not attributable to the accused. [8] [ 43 ] The resolution of the dispute among these Court of Appeal decisions is resolved for me by reference to two decisions of the Saskatchewan Court of Queen's Bench - R. v. Mullins [9] and R. v.

Waffle . [10] [ 44 ] In Mullins , the accused sought enhanced credit for 16 months remand time on the basis of limited programming, 20 to 21 hour lock-up, limited recreational opportunities and loss of remission. [ 45 ] Mr. Justice Zarzeczny accepted these as circumstances justifying enhanced remand credit and noted that the delay in bringing Mr. Mullins to trial - which he attributed to inclement weather, the Crown, the defence and both - exacerbated the negative aspects of the accused's time on remand. He credited Mr. Mullins' remand time at 1.5 days for each single day on remand.

In so doing, he necessarily adopted the approach set out in Summers , Stonefish , Carvery and Johnson . [ 46 ] In R. v. Waffle , Madam Justice Gunn, relying on Summers , concluded that loss of remission could support enhanced remand credit. She noted that Mr. Waffle had some negative behaviour during his time on remand which resulted in his serving 30 days in close confinement but he was otherwise a "model prisoner". She also considered that Mr. Mullins had not taken steps to advance his matter to trial, adjourning it on many occasions. She credited Mr.

Waffle with 1.2 days credit for each day he served on remand. [ 47 ] Both of the referenced Court of Queen's Bench decisions accepted the line of reasoning adopted in Summers , Carvery , Stonefish and Johnson , all supra . The decisions in Mullins and Waffle are binding on this Court and I therefore accept that enhanced credit under section 719(3) does not require exceptional circumstances and can be given in respect of circumstances that apply to most or all remanded offenders, including loss of remission. [ 48 ] However, in determining whether circumstances warrant, I am mindful of Mr.

Justice Cronk's caution in Summers :

That said, nothing in these reasons should be understood as suggesting that enhanced credit will be available under s. 719(3.1) to every remand offender on the basis of the absence of remission and parole eligibility. There must be some basis in the evidence or the information before the sentencing judge to support the conclusion that this factor merits enhanced credit for a particular offender in a given case. (Italics mine.) [ 49 ] In this case, I am not persuaded by Mr. Goforth's submission respecting lack of programming.

I was not provided information as to the nature of programming available - limited though it might be - and whether Mr. Goforth took advantage of this opportunity or would have been interested in doing so. [ 50 ] As to 20 to 21 hour lock-up, Mr. Goforth did not provide information as to how this affected him or complicated his time in the Remand Unit. While I can take notice of the fact that being on lock-up is more restrictive than serving in general population, it would have been helpful to better understand its impact on Mr. Goforth. [ 51 ] As to loss of remission, I was not provided any information as to Mr.

Goforth's experience and behaviour while in custody on this or previous occasions. I am not in a position to assess, for example, the likelihood that he might have received or, by his behaviour, lost remission time. [ 52 ] However, I am aware that remission is advanced to all sentenced inmates by virtue of the provisions of The Prisons and Reformatories Act. The relevant sections of the Act provide: 6.

(1) Subject to subsection (7.2), every prisoner serving a sentence, other than a sentence on conviction for criminal or civil contempt of court where the sentence includes a requirement that the prisoner return to that court, shall be credited with 15 days of remission of the sentence in respect of each month and with a number of days calculated on a pro rata basis in respect of each incomplete month during which the prisoner has earned that remission by obeying prison rules and conditions governing temporary absence and by actively participating in programs, other than full parole, designed to promote prisoners' rehabilitation and reintegration as determined in accordance with any regulations made by the lieutenant governor of the province in which the prisoner is imprisoned. . . . . .

(4) Every prisoner who, having been credited with earned remission, commits any breach of the prison rules is, at the discretion of the person who determines that the breach has been committed, liable to forfeit, in whole or in part, the earned remission that stands to the credit of the prisoner and that accrued to the prisoner after July 1, 1978. [ 53 ] Therefore, Mr. Goforth, like every inmate, would be credited with remission and would receive the benefit of remission unless, through his conduct, he would forfeit some or all of remitted days. [ 54 ] Mr.

Goforth has been remanded since December 1, 2010, a period of 19 months. His charges were adjourned from time to time until June 3, 2013 when his guilty plea was entered. The somewhat extraordinary delay was due to the advice of counsel, that plea on Mr. Goforth's charges should be deferred until Mr. Watetch, who stabbed Mr. Bellegarde without the knowledge of his companions, had disposed of his charges. Mr. Watetch eventually pleaded guilty to manslaughter and Mr. Goforth's plea was made shortly after Mr. Watetch was sentenced for that offence. [ 55 ] Similarly, the other men co-accused with Mr.

Goforth in the robbery deferred their pleas until Mr. Watetch was convicted and sentenced. Mr. Goodwill pleaded guilty and was sentenced on June 3, 2013. Mr. LaSwisse's charge is pending. [ 56 ] All three were represented by experienced and respected counsel; it is not for me to discount or question their advice. I am satisfied that the delay, while predominantly at the request of the Accused, was justified and certainly that it was not perpetrated to gain any advantage from enhanced remand credit.

Indeed, in regard to the latter, now that the maximum credit is 1.5 to 1, there is no advantage available and no certainty that any enhancement will be given.

[ 57 ] I also note that the matter was delayed for almost two months after plea and pending argument due to Crown prosecutor's schedule. It was delayed another month due to my reserving this decision. For these two periods, totalling three months, Mr. Goforth will be credited 1.5 days for each day he served in remand, or 4.5 months. [ 58 ] For the remaining 16 months, given that the matter was deferred on legal advice and given the likelihood that he would have received significant remission for this time, Mr.

Goforth will receive credit of 1.25 days for each day he served in remand, or 20 months. [ 59 ] Thus, for 19 months remand time, Mr. Goforth will receive 24.5 months credit. Dated at Fort Qu'Appelle, in the Province of Saskatchewan this 4th day of July, A.D. 2013 ________________________________________ B. J. Tomkins, J [1] The question came before the Court of Appeal in R. v. Mullins , 2012 CarswellSask, 2012 SKCA 126 but the Court declined to consider the issue as it was by then academic in Mr.

Mullins’ case. [2] 2013 ONCA 147 [3] 2012 MBCA 116 [4] 2012 NSCA 107 [5] 2013 ABCA 190 [6] 2013 BCCA 280 [7] at para. 43 [8] at para. 48 [9] 2011 CarswellSask 884 , 2011 SKQB 478 [10] 2013 SKQB 186