Her Majesty the Queen - v. -, 2017 SKPC 9

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 009 Date: January 19, 2017 Information: 24515876 , 24515877 Location: North Battleford _____________________________________________________________________________ Between: Her Majesty the Queen - and - Perry Pechawis Appearing: M. Piché For the Crown M. Nolin For the Accused JUDGMENT B. BAUER , J Introduction [ 1 ] After trial Perry Pechawis was convicted of attempted robbery. He entered guilty pleas to offences of assault and resisting a peace officer. The Crown seeks to have Mr.

Pechawis declared a Dangerous Offender and receive a determinate sentence and a long-term supervision order. The accused takes the position that he is not a dangerous offender and should be sentenced to a

determinate sentence in the Provincial Correctional Centre. [ 2 ] For the reasons that follow, I find that Mr. Pechawis should be declared a Dangerous Offender and receive a determinate sentence followed by a long-term supervision order. Background [ 3 ] At the sentence hearing, the Crown filed by consent, a number of binders of material which included Mr.

Pechawis’ criminal record, summaries, transcripts, and certified copies of the court proceedings in relation to his convictions for violent offences, copies of Correctional Service of Canada reports in relation to his previous penitentiary sentences, and a Psychiatric Assessment by Dr. Shabehram Lohrasbe, a forensic psychiatrist , ordered pursuant to s. 752.1 of the Criminal Code . [ 4 ] In addition to the filed material the Crown presented viva voce evidence. Dr.

Lohrasbe was qualified as an expert to give opinion evidence regarding the risk of re-offending, the treatability and management of violent offenders, and forensic risk assessment of violent and non-violent offenders. Tim Yont, a former community parole officer, gave evidence about the supervision of Mr. Pechawis when he was on parole. [ 5 ] The defence filed a Glaudue report and called Mr. Pechawis’ partner, Anita Ahenakew, and his mother Norma Johnstone. Ms. Ahenakew is the Director for Child and Family Services for Ahtahkakoop First Nation, and Ms.

Johnstone is the Enhanced Service Delivery Manager for the Agency Chiefs Tribal Council. [ 6 ] The Correctional Service of Canada reports indicate that Mr. Pechawis served two periods of custody in the penitentiary system.

A psychological assessment prepared in 2000 during his first admission identified his risk factors to include substance abuse (particularly drugs), impulsive behaviour, self-seeking of pleasure without regard to others, violent behaviour, limited connection to family, no employment skills, and limited insight into his problems and how they lead to his criminal behaviour. [ 7 ] Between the time of his first term of incarceration in the penitentiary in 2000 and the predicate offence in 2014 he completed programming to address his risk factors, gain insight into his offending, and developed skills to obtain gainful employment.

At the time of the attempted robbery he had been in a relationship with Ms. Ahenakew for over a year and living with her and her children for six months on Ahtahkakoop First Nation. She testified that he was sober, employed and returned once per week to his mother’s residence to take her to church on Sunday. However, in the months preceding the offence he was starting to struggle with addictions again. On the day before the offence they had gotten into an argument and she and the children did not stay at home with him. [ 8 ] Dr. Lohrasbe testified that Mr.

Pechawis’ history demonstrates a longstanding substance abuse problem and although he would maintain periods of abstinence he would “slip” both while in the institution and outside of the institution. These slips were often triggered by negative emotions from which he would try to escape into the oblivion of drugs. These slips could and did lead to violent behaviour. Although his substance abuse was not the cause of his violent behaviour, it was a critical factor in precipitating it. Dr.

Lohrasbe concluded that without significant changes there is a high likelihood that he will commit further acts of violence. [ 9 ] The Gladue report reveals Mr. Pechawis as a 43 year old First Nations man whose life has been affected by alcoholism, drug abuse, exposure to violence and unstable living conditions. His abuse of substances started at an early age and he has struggled with addictions since. He has a lengthy criminal record for offences that have occurred while under the influence of alcohol and drugs. Issues 1) Does Mr. Pechawis meet the criteria for a Dangerous Offender declaration under s. 753(1) (

a) of the Criminal Code ?

2) If not, does Mr. Pechawis meet the criteria to be declared a long-term offender? 3) What is the appropriate sentence for his offences? Analysis

a) Is this a serious personal injury offence? [10] The first requirement is that the predicate offence be a serious personal injury offence. [11]

Section 752 of the Criminal Code defines a serious personal injury offence as follows: an indictable offenceinvolving the use or attempted use of violence against another person or conduct endangering or likely to endanger the life or safety ofanother person or inflicting or likely to inflict severe psychological damage on another person, for which the offender may be sentencedto imprisonment for ten years or more. [12] Mr. Pechawis was found guilty of attempted robbery.

He gave the bartender a note upon which was written “giveme all your money or I will shoot you” as he was leaning forward with his hand behind his back under his jacket as if he had a weapon.The bartender testified that his immediate thoughts were about his kids and calling the police. Section 344(1)(

b) of the Criminal Codesets out the penalty for robbery as imprisonment for life.

Section 463(

a) of the Criminal Code sets out the sentence for an attempt tocommit an offence (where the sentence for the full offence is life) as imprisonment for a term not exceeding 14 years. [13] I find that this is a personal injury offence as it involved the accused threatening violence to the victim and holdinghimself in such a position that the victim believed that Mr. Pechawis had the ability to carry out that violence and the offence is one forwhich he is subject to imprisonment for a period of ten years or more.

b) Is there a pattern of offending as contemplated by

section 753 of the Criminal Code? [14] The onus is on the Crown to prove that the present offence is part of a pattern of failure by Mr. Pechawis to restrain his violentbehaviour and that he is likely to cause death or injury to other persons through failure in the future to restrain his behaviour. Thestandard of proof is beyond a reasonable doubt. [15] The relevant principles to follow in relation to this determination have been set out by Kalenith J. in R v Bird, 2016 SKPC 37. [9] .... a.

Generally the evidence to be considered will be i. the offender’s past criminal record; ii. extrinsic evidence relevant to those acts and the surrounding circumstances; iii. relevant expert evidence - R v Neve, 1999 ABCA 206 [Neve]; b. The relevant expert evidence is to be considered in deciding whether there is a pattern and whether, as a whole, it provesdangerousness – Neve, paragraph 23;

c. The pattern of repetitive behaviour that includes the present offense must contain enough of the same elements of unrestraineddangerous conduct to be able to predict the offender will likely offend in the future. This will ensure a level of gravity is the same andthat the last straw is not a much more minor infraction – R v Hogg, 2011 ONCA 840 ; d. The pattern need not equate to similar fact evidence – general similarity is sufficient.

There need not be a lengthy history ofviolence or aggression for a pattern, as long as there are sufficient elements of similarity in the offender’s behaviour – R v Casemore, 2009 SKQB 306 ; e. The past incidents must be criminal in nature – Neve, paragraph 109; f. Violent conduct as a youth may be considered – R v Knife, 2015 SKCA 82 [Knife]; g. The offences need not be serial offences and the offender’s behaviour need not be intractable for a pattern to be made out – R vSzostak, 2014 ONCA 15 ; h. Similarities may be in the type of offences and the degree of violence used – Knife, paragraph 67; i.

The degree of violence is the same as the nature of violence. For example, an offender who continues to use weapons and commitviolent offenses regardless of what the specific type of offense is, will have used a similar degree of violence – Knife, paragraph 69. [16] In addition, at this stage of the sentencing there must be a meaningful evaluation of s. 718.2(e): R v Toulejour, 2016 SKQB84, paragraphs 193 - 195. [17] Mr.

Pechawis’ history of violent conduct is contained in his record and the materials filed as exhibits in this hearing. [18] His convictions relating to failure to restrain violent behaviour consist of the following:

i) Assault Causing Bodily Harm s. 267 of the Criminal Code - April 7, 1998. While in custody in North Central Youth Camp in Prince Albert, Saskatchewan he was exiting the washroom when without an exchangeof words he suddenly grabbed a fellow inmate by the throat and choked him until he blacked out. He then let the unconscious youthdrop to the floor causing his head to strike the floor. This resulted in immediate swelling to his temple area. He then stood a shortdistance away and laughed at the unconscious youth. After guilty plea he was sentenced to 3 months custody. ii) Take

Part in a Riot s. 64; Uttering Threats s. 264.1(1)(a) - August 6, 1998 While in custody on remand in the Saskatoon Provincial Correctional Centre another inmate took exception to being told that he wasgoing to be placed in confinement. The inmate started to act out by throwing items and yelling at staff. Mr. Pechawis joined the otherinmate in causing damage to the unit. He yelled words to the effect “we are warriors, bring on your goon squad” and while pointing andglaring at a SPCC staff member he shouted “you’re dead”.

The two inmates broke lights, smashed and entered the gyprock ceiling,smashed a sprinkler head, and attempted to smash a sliding glass door. He also smashed windows in the unit and attempted to break theentry gate with a steel. After guilty plea Mr. Pechawis was sentenced to a total of 5 months imprisonment.

iii) Robbery s. 344 and Forcible Confinement s. 279(2) - March 30, 2000 A woman brought the victim to an apartment after he agreed to pay her for sexual services. She brought him to an apartment. While the victim was undressing Mr. Pechawis and another woman entered the room. Mr. Pechawis demanded all of his money and jewelry. When the victim refused to give over his wedding band Mr. Pechawis threatened to cut off his finger to get it. Mr. Pechawis repeatedly threatened the victim while waving a knife in his face. He then took the victim to an ATM and demanded that the victim take money from his account. Mr.

Pechawis kept the victim’s watch and $40.00. This offence occurred while he was on interim release from custody on charges of sexual assault causing bodily harm. After guilty plea he was sentenced to 14 months jail. Mr. Pechawis indicated to Dr. Lohrasbe he had difficulty recalling the details of the offence but did recall that he was using a lot of needles at that time and that the motivation for the offences was to obtain money to buy more drugs for himself and his companions. iv) Assault Causing Bodily Harm - September 11, 2000 Mr. Pechawis and the female victim met at a bar.

After bar closing they went to a party where they consumed more alcohol. Although the victim indicated that she wanted to go home she went into the basement area where they had sexual intercourse. After the intercourse he struck her in the eye causing an abrasion and bruise around the eye. The victim’s black eye lasted for about a week. He received a sentence of 5 years .

v) Assault - November 28, 2005 Mr. Pechawis and his common-law spouse were at a casino when an argument occurred between them. They left the casino in a vehicle. Mr. Pechawis stopped the vehicle in the parking lot of a business where he punched her in the face and ran off with her purse. She suffered a cut lip. He was sentenced to an 8 month conditional sentence and 8 months probation on October 3, 2006. He indicated to Dr.

Lohrasbe that he and his girlfriend were using cocaine and that his motivation for striking her and grabbing her purse was because she had more cocaine in her purse and he was frantically trying to maintain his high. vi) Assault with a Weapon - May 20, 2006 Mr. Pechawis and his common-law spouse were involved in an argument. He began to damage her vehicle by breaking her windows. Her sister arrived at a point where he was using a hatchet to hit the vehicle. An argument then began between Mr. Pechawis and his spouse’s sister culminating in his swinging the hatchet at her and finally throwing the hatchet at her.

She was not struck with the hatchet. He was sentenced to an 8 month conditional sentence and 8 months probation on October 3, 2006. He indicated to Dr. Lohrasbe that he cannot recall what the confrontation was about and that he was intoxicated at the time. vii) Robbery, Uttering Threats, Forcible Confinement - January 20, 2008 Shortly before midnight on January 20, 2008 Mr. Pechawis went to the front desk of the Comfort Inn in Prince Albert, SK where the female clerk was working alone.

She noticed that some luggage was missing and when she approached him in the parking lot she saw the luggage in the back seat of his vehicle. She told him that he had stolen the luggage and she was going to call the police. As she walked back to the hotel he pushed her from behind. She stumbled and when she turned he grabbed her by the throat. She again said she was going to call the police and went into the hotel. He followed closely behind her and when she reached the front desk he punched her in the face.

She fell down and when she got up he punched her again and pushed her into the bathroom, said “stay there, bitch” and closed the door on her. Bleeding from the nose and lip she opened the door. He was still there. He kicked her, punched her a few times, and told her to “stay there, bitch” and again closed the door. She again came out of the bathroom. He was still by the door and demanded the key to the cashbox. Before she could answer, he punched her in the face and then kicked her in the face when she fell down. He then stole the cash drawer and left the building.

The clerk indicated that he appeared to be high on some substance.

viii) Pointing a Firearm, Possession of a Firearm while Prohibited January 20, 2008 Earlier on the same day as the robbery at the Comfort Inn, Mr. Pechawis went to the residence of a woman that he had known for approximately one month. He entered her suite with a rifle and loaded it while there. He then told her to go sit on the couch because he was going to kill her. He then pointed the rifle at her. She refused and after a few moments she pushed the barrel towards the floor. He pulled the trigger but the bullet ejected from the gun without firing. He then ran from the building.

He returned later that evening (after the robbery at the Comfort Inn) with blood on his hands. According to the victim he was freaking out and not making sense. He told her that he was going to rape her; he told the other people in the residence that they were his hostages; he barricaded the front door with a chair and warned people not to move the chair; he slapped a man who was in the apartment; he told everyone that he had a shotgun and that he would use it; he removed all of his clothes and ran around the house naked. After some time he asked her for her sleeping pills and ingested some of them.

After approximately ninety minutes he passed out and she opened the door to the waiting police. He told Dr. Lohrasbe that he was on a cocaine binge with his partner at the time. He was using intravenous cocaine and Restoril. On May 12, 2009 he was sentenced to 42 months imprisonment. ix) Attempted Robbery - August 23, 2014 The predicate offence of attempted robbery began when Mr. Pechawis went to the liquor vendor till at the Shell Lake Hotel bar and purchased a 26 ounce bottle of rum and a two litre wine cooler.

He then went to the ATM and then to the bar till where he was observed writing a note which he gave to the bartender. On it were the words “ give me all the money from the till, or I will shoot you ” . At this point Mr. Pechawis was leaning forward with his hand behind his back under his jacket like he had a weapon. The bartender initially laughed because he thought that the accused was just messing around. He told the accused to “ get the fuck out of here ” . However, he also said that his immediate thoughts were about his kids and calling the police.

He dropped the note on the counter and grabbed the phone, attempting to call the police. Mr. Pechawis grabbed the phone out of his hand. When the bartender went to another till to call the police Mr. Pechawis ran from the bar. He drove to the Shell Lake Esso where he placed merchandise in his pocket, threw objects on the floor and swore at the owners telling them to go back to their country. When told to leave he pushed one of the owners and began yelling at a female employee. He left the store, returned moments later and punched the employee two or three times in the head before leaving on foot.

Shortly afterward he was seen walking down the road by an RCMP officer. When the officer stopped his vehicle Mr. Pechawis walked toward him quickly in an aggressive manner. The officer got out of his vehicle and told Mr. Pechawis to stop as he was under arrest for robbery. Mr. Pechawis continued to walk toward the police officer with one hand in his pocket. The officer drew his firearm and backed away from Mr. Pechawis. On more than one occasion Mr. Pechawis told the officer to shoot him. Only after the officer sprayed him with OC spray was he able to get Mr. Pechawis under control. Mr.

Pechawis pleaded guilty to assault and resist peace officer. Mr. Pechawis told Dr. Lohrasbe that he had been on a binge of pills and alcohol for a number of hours before the offence. [ 19 ] I find that a pattern of repetitive aggressive behaviour emerges with the robbery of 2000, the Comfort Inn robbery of 2008, the hostage taking and pointing a firearm in 2008, and the predicate offence. This pattern is one of excessive use of substances resulting in violent offending to continue to maintain his highs.

In making this finding, I do not consider the episodes of violence in custody as part of the pattern as neither event involved substance use, nor do I consider the assaults in 2000 and 2008 as part of the pattern as each involved a lesser level of violence. Gladue Factors [ 20 ]

Section 718.2 (

e) of the Criminal Code affects a sentence by including the First Nations experience in the individualized proportionality analysis required in sentencing ( R v Whitehead , 2016 SKCA 165 [para 33]). This

section of the Criminal Code is to be included in the consideration of the dangerous offender designation under s. 753. ( R v Moise 2015 SKCA 39 [para 24-26]. [ 21 ] Mr. Pechawis is a registered member of the Mistiwasis Cree First Nation. He was born in 1973, the middle child of five children. His mother reports that she drank alcohol during the first one to two months of her pregnancy. She indicates that she didn’t drink during any of her other pregnancies and notes that none of her other children have been in trouble. [ 22 ] Mr.

Pechawis’s parents both worked outside of the home and the children were well provided for at their home on Mistiwasis. His father reported that he didn’t know how to parent because he had attended residential school and he felt that his parents were never there for him.

[ 23 ] There was violence within the home between his mother and father. During these times Mr. Pechawis would get scared and hide. When he got older he took off during these periods of violence and that is when he started to get into trouble. His parents separated when he was 12. He stated that he would act out on purpose in the hope that his parents would get back together. He started abusing alcohol and drugs at an early age and has struggled with addictions since. [ 24 ] His record of criminal offending started early and he has in excess of 50 criminal convictions.

They include crimes of violence, escapes, property offences, and a large number of breaches of court orders. Substance abuse was a factor in most of them. [ 25 ] While in custody in 2000 he was the subject of a psychological assessment. The assessment identified a number of risk factors that led to his offending. These factors included: a lack of meaningful employment initiative, dysfunctional lifestyle, substance abuse, and a negative peer group.

Between the time period of that report and the predicate offence he had addressed a number of the areas of concern: he had reconnected with his family, he had obtained his GED while incarcerated, he had obtained work skills and gainful employment, and he had established a relationship with Anita Ahenakew, a professional who leads a pro-social lifestyle. He had also gained insight into his offending behaviour, had been reintroduced to his culture, and successfully completed Aboriginal substance abuse programming. Even with all of his efforts to address his risk factors he still committed the predicate offence.

As Dr. Lohrasbe found: He has a pattern of using off-prescription medications. Like others who struggle with addiction and relapse he has a problem with the first drink. Once in the community he has crime free periods but with time convinces himself that he can handle social use of substances. This leads to binging with whatever drug is available. When he binges he abandons restraint which leads to catastrophizing. With the predicate offence he had an argument with his partner about his using. This led him to making himself angry so that he feels entitled to go awry.

After the fact he recognizes his behavior and neither denied nor minimized the facts of the offence. He has a longstanding behavior problem of substance abuse leading to hopelessness and then to violence [ 26 ] In his conclusions Dr. Lohrasbe opined that as things stand Mr. Pechawis remains at significant risk for acts of violence in the foreseeable future. [ 27 ] Notwithstanding his gains since he was first incarcerated in the penitentiary, and the programming available to him as outlined in the Gladue report I find that his risk to re-offend in a violent manner remains high. This is based on:

a) the evidence of Dr. Lohrasbe that he remains at significant risk for violent behaviour;

b) that the offending continued after seemingly successful treatment and commitment to change;

c) that he continued to use alcohol and other intoxicating substances with the knowledge that this led to his bingeing and offending in the past;

d) an inability to control his behavior while he was intoxicated leading to an abandonment of restraint; and

e) that his pattern of offending continued after he had gained insight into his behaviour. [ 28 ] I declare him to be a dangerous offender. Appropriate Sentence [ 29 ] The available sentences are:

Indeterminate sentence; Determinate sentence followed by a long-term supervision order; or Determinate sentence [ 30 ] The position of the Crown is that while Mr.Pechawis’ risk to reoffend violently remains high an indeterminate sentence is not the appropriate sentence. The Crown submits that a determinate sentence with a long term supervision order is appropriate. I agree for the following reasons:

i) Dr. Lohrasbe expressed the opinion that Mr. Pechawis was truly remorseful for his offences and has insight into his offending behaviour. He also concluded that Mr. Pechawis is capable of responding to further treatment interventions, with no obvious obstacles to benefiting from treatment, and that with appropriate treatment there is a realistic possibility that his risk could be reduced to a safe level. ii) Mr. Pechawis has strong support within the community and there are a number of risk-reducing programs in the community available to him which are set out in the Gladue report. [ 31 ] In sentencing Mr.

Pechawis I must take into account all of the sentencing principles set out in ss. 718 to 718.2 of the Criminal Code . It is an individualized process in which the aggravating and mitigating factors are balanced to determine a sentence which is proportional to offender and the offence. The aggravating factors in this case include his record of over 50 convictions with a number of them being for violence, and the fact that he threatened to shoot the victim of the attempted robbery.

The mitigating factors include his remorse and his insight into his criminal behavior with a willingness to address the factors that lead to his offending. [ 32 ] I also take into account the principles set out in R v Gladue. Mr. Pechawis is a First Nations man with strong family connections. He has a supportive partner in Anita Ahenakew. He has a supportive mother, the potential of work with his stepfather, and a grandfather who is willing to work with him in a culturally supportive manner. In the past he has been a member of the Mistawasis Memorial Presbyterian Church.

He has skills as a carpenter, safety tickets and at the time of this offence had a class 1A driver’s licence. He has the ability and supports to be a productive member of society. [ 33 ] In R v Peyachew, 2016 SKCA 21 , the Saskatchewan Court of Appeal reviewed appellate robbery sentences from courts throughout Canada and concluded that “ the courts have meted out sentences for bank robbery ranging from conditional discharges to life imprisonment largely depending on the circumstances of the offender ” . They noted that “ the greater the offender ’ s responsibility, the heavier the sentence will be ” .

Although Mr. Pechawis was found guilty of attempted robbery, the threatened use of a gun, and his previous convictions for violence bring this offender ’ s responsibility more in line with that of a full robbery. [ 34 ] After consideration of his circumstances and the range of sentences imposed by other courts for similar note-type robberies I find that the appropriate sentence for this attempted robbery is four years. [ 35 ] In addition he will be subject to a long-term supervision order for a period of ten years from his release from custody.

I find that a long-term supervision order is necessary in order to adequately protect the public. This is based on the level of his risk to violently re-offend and Dr. Lohrasbe’s opinion that the maximum time period would be best for Mr. Pechawis’ rehabilitation. Mr. Pechawis has expressed a desire to be successful in what he feels is a last chance situation and in the past he has responded well to supervision. [ 36 ] The appropriate sentence for the assault is six months and for the resist a peace officer, six months.

In view of the totality principle these will be concurrent to each other and concurrent to his sentence on the attempt robbery. [ 37 ] He has been on remand since his arrest on 23 August 2014, a total of just under 29 months. Taking into account the lack of available programming while on remand at the Provincial Correctional Centre and the fact the he has previously been held to warrant expiry date, remand credit will be assessed as 40 months. This leaves his remaining time in custody as 8 months.

[ 38 ] Pursuant to s. 487(051) I make an order authorizing the taking of samples of bodily substances from Mr. Pechawis that are reasonably required for the purpose of forensic DNA analysis. [ 39 ] Pursuant to s. 109 of the Criminal Code , I prohibit Mr.

Pechawis from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period commencing this date and continuing for 20 years after his release from custody. [ 40 ] Pursuant to s. 737 of the Criminal Code , I impose a victim surcharge for these three indictable offences in the amount of $600.00. He will be granted time to pay to March 1, 2018. ____________________ B. Bauer, J