R v Saddleback, 2023 ABCJ 178

In the Alberta Court of Justice Citation: R v Saddleback, 2023 ABCJ 178 Date: 20230808 Docket: 201044740P1 Registry: Wetaskiwin Between: His Majesty the King Crown - and - Dolph Manill Saddleback Accused Reasons for Sentence of the Honourable Ju stice J.G. Neustaeter [ 1 ] On November 7, 2022, I convicted the Accused on two counts of assault causing bodily harm contrary to s. 267(

B) of the Criminal Code after a trial that concluded on October 14, 2022. Sentencing was adjourned so that a Gladue Report could be prepared. After a series of adjournments for varying reasons, I heard sentencing arguments from both Crown and counsel for the Accused on July 6, 2023. A Gladue Report was filed as sentencing exhibit 4. My task now is to determine a fit and appropriate sentence for this Accused.

FINDINGS OF FACT [ 2 ] In my reasons delivered on November 7, 2022, a transcript of which was filed as sentencing exhibit 1 at the sentencing hearing, I described the evidence heard during the trial and my findings of fact. I will summarize these findings. [ 3 ] The victims in this case are Skylar Saddleback (Skylar) and Shaquille Saddleback (Shaquille). Both are adult males. [ 4 ] Skylar and Shaquille were at their aunt Tessa Saddleback’s (Tessa) residence in Maskwacis, Alberta on the evening of October 10, 2020, and into the morning hours of October 11, 2020.

Tessa Saddleback was at the residence along with her partner, Steven Boysis (Steven). [ 5 ] Everyone was drinking alcohol together at Tessa’s. The Accused was also at Tessa’s at various points during the evening and early morning. The Accused is Tessa’s brother and an uncle to Skylar and Shaquille. [ 6 ] Both Skylar and Shaquille became intoxicated at Tessa’s, with Skylar describing himself as 8 out of 10 drunk and Shaquille describing himself as 6 or 7 out of 10 drunk.

[ 7 ] Skylar and Shaquille slept in the garage at Tessa’s overnight. Skylar woke up in the garage at what he thought was near to 8:00 a.m. By this time, he felt sober but hungover. He went from the garage into the house to use the bathroom. He then returned to the garage. As soon as he returned to the garage, the Accused was at the doorway to the garage. Skylar testified he tried to “bro shake” with the Accused which he described as a form of handshake.

The Accused did not shake his hand but, instead, started punching him in the face. [ 8 ] Skylar was punched three times in the face which caused him to fall down hitting the back of his head on something sharp. He thought this was a nail and it caused him to start bleeding. Once on the ground, the Accused punched him four more times in the face and leg and four times in the body.

The Accused also kicked him in the ribs and ankle. [ 9 ] While the Accused was punching and kicking Skylar, the Accused said something like, “It’s all your dad’s fault.” The Accused said he was beat up 10 years earlier and he was blaming Skylar and Shaquille for this. [ 10 ] Shaquille woke up in the garage at what he thought was near to 6:00 a.m. He was awakened by the sound of punching. He said he felt sober when he woke up. When he woke up, he saw the Accused punching Skylar, his brother.

Shaquille tried to step in by pushing the Accused away from Skylar. [ 11 ] The Accused pushed him back and he fell to the ground. The Accused then punched him 8 – 10 times or more in the face. Shaquille said he thought the Accused was putting the full force behind his punches. Shaquille was also punched by Steven at least one time while in the garage. [ 12 ] The Accused told them not to tell anyone about what happened. [ 13 ] Both Skylar and Shaquille felt like they couldn’t leave. They explained they felt this way because Tessa had their phones. Once Skylar got their phones back, they both left and went home.

Home was across a field from Tessa’s house. [ 14 ] Once they were home, an ambulance was called and both Skylar and Shaquille were taken to the Wetaskiwin Hospital. Shaquille was then taken to University of Alberta Hospital. [ 15 ] Photos of Skylar and Shaquille tendered as Exhibit 1 at trial clearly show that both Skylar and Shaquille suffered significant bruising and swelling around the eyes. Skylar also suffered a significant bruise on his ribs where he was kicked by the Accused. [ 16 ] Skylar also suffered a laceration to the back of his head when he fell down after being punched by the Accused.

The medical records of Skyler tendered as Exhibit 2 at trial revealed that Skylar received staples in his head to close this laceration. [ 17 ] The medical records of Shaquille tendered as Exhibit 3 at trial revealed that Shaquille suffered fractures to both his right and left orbital bones. Shaquille testified that the injury to his left eye is still causing him problems and he must get his eyes regularly checked. VICTIM IMPACT STATEMENT [ 18 ] Four Victim Impact Statements were filed with the court.

Both Skylar and Shaquille filed one as did each of their parents, father Ivor Crier and mother Candace Saddleback. [ 19 ] Skylar said he suffered trauma and anxiety as a result of what happened and he could not go out much because his face was beat up. [ 20 ] Shaquille said he felt he could not trust his own family members and no longer wanted to socialize, not even with family and friends. He was traumatized and left feeling helpless. He felt like he couldn’t leave his house because the Accused might be there.

He was unable to see for 3 or 4 days after the incident and he must continue to see an optometrist every 4 months to monitor his eyes. [ 21 ] Ivor Crier said that both Skylar and Shaquille were unrecognizable after the incident. He no longer trusts the Accused because of what he did. They had to help Shaquille for 6 weeks because his eyes were so bad. He has observed that Shaquille has not wanted to do anything in public for the last two years.

He said the Accused lives only five minutes from them and they have fear that he will do this again. [ 22 ] Candace Saddleback said she was very worried, especially for Shaquille, because he couldn’t see after the incident. He did not even want to celebrate his birthday that year. She was worried both her sons might lose their eyesight. She no longer trusts the Accused and was worried he would come to their house as he lives close by. POSITION OF THE CROWN [ 23 ] The Crown argues that the appropriate sentence is 18 – 24 months jail followed by 12 months of probation.

The Crown also seeks ancillary orders including a DNA order, a firearms prohibition pursuant to s. 109 of the Criminal Code , and an order pursuant to s. 743.21(1) of the Criminal Code prohibiting the Accused from having contact with the victims and their parents while he is incarcerated. POSITION OF THE ACCUSED [ 24 ] Counsel for the Accused argues that the appropriate sentence is 12 months jail served as a conditional sentence. CIRCUMSTANCES OF THE ACCUSED [ 25 ] The Accused is 40 years old. He is indigenous and lives on Samson Cree Nation. [ 26 ] When he was two years old, his father died by suicide.

The Accused attempted suicide when he was in his early twenties.

[ 27 ] His mother attended residential school at the Ermineskin Indian Residential School. The Accused attended day school at the same school. He reports suffering emotional and physical abuse at this school. [ 28 ] The Accused was in a relationship with Verlyn for 18 years which he describes as on and off. They separated several times over the years, the final time being when their youngest child was two weeks old.

There was domestic violence in this relationship although the Accused says neither of them were ever charged. [ 29 ] The Accused has three children with Verlyn: a daughter aged 19, a son aged 13, and another son aged 5. His youngest son resides with him full time. [ 30 ] His youngest son was apprehended by child welfare authorities while in the care of Verlyn. The Accused spent two years in court to have his son returned to his care. [ 31 ] The Accused dropped out of school in grade 10. In 2018, he attended four semesters of upgrading at Maskwacis Cultural College and has completed his grade 12 equivalency.

He later completed one semester of the University and College Entrance Preparation program. COVID-19 intervened and the course moved to online only. This type of learning wasn’t working for the Accused and he stopped attending. [ 32 ] The Accused began using marihuana at 10 or 11, alcohol at 13, and cocaine at 17. He has not used cocaine in the last 18 months. The Accused has attended substance abuse treatment on four separate occasions. He has maintained periods of sobriety over the years. He reports that all of his charges have come when he was not sober.

I note that I did not hear any evidence that the Accused was intoxicated when the events giving rise to the charges in this case occurred. [ 33 ] In the last three years, the Accused has lost 16 people in his life due to alcohol or drug addiction. The Accused has also lost employment due to his alcohol use. [ 34 ] The Accused has a prior criminal record which was filed as sentencing exhibit 3. It begins in 2001 and continues up to his last conviction on February 9, 2023.

His record includes seven convictions for breach of probation, four convictions for breach of release conditions, five convictions for failing to attend court, two convictions for unlawfully at large in the context of not attending to serve an intermittent sentence, three convictions for assault, one conviction for possess a weapon dangerous to the public peace, and one conviction for robbery. [ 35 ] His two most recent convictions are for one offence that occurred prior to the offence that is the subject of this decision and one that occurred after.

They are as follows: 2022-10-21 s. 343 CC robbery 6 mos jail, 12 mos probation 2023-02-09 (1) s. 320.15 CC refusal (1) 120 days jail, 3 year proh. (2) s. 145(2)(

a) CC (2) 5 days jail, consec. [ 36 ] The robbery sentencing occurred in the Court of King’s Bench before Mr. Justice Henderson. Counsel for the Accused made reference to this sentencing and the decision of Justice Henderson throughout her submissions. Given that, I took the liberty of listening to the recording of that proceeding and I will have more to say about that later in my reasons. [ 37 ] The Accused has begun incorporating indigenous cultural practices into his daily life and this has assisted him in remaining sober now. He has attended several Sundances over the last couple of years.

He is also regularly participating in sweat lodge ceremonies. [ 38 ] Counsel for the Accused, at paragraph 48 of her written submissions, has provided a detailed description of what a sweat lodge ceremony entails and what participants experience. This has been instructive. She describes a sweat lodge ceremony as being akin to the western idea of intense therapy sessions. [ 39 ] Over the past six months, the Accused has completed numerous courses and programming.

Through Alberta Health Services addictions counselling, he has completed the following: - Stress Management - Healthy Relationships and Boundaries - Relapse Prevention - Emotional Regulation - Balance in Recovery Through Norquest College, he has completed the following: - 1500 Skills for Learning - Worker Education - Building Service Worker - Introduction to Digital Communications

- Computer Basics - Layout and Design Basics - Press and Bindery Basics (to be completed August 14, 2023) [40] Counsel for the Accused has also provided me with numerous worksheets and a certificate showing the Accused completed abible study course while serving his most recent sentence in custody. [41] The Accused has employment with an oilfield company called Yuuse Industries Ltd. Counsel tells me that if he receives asentence of actual jail, he will lose this employment opportunity.

PURPOSE AND PRINCIPLES OF SENTENCING [42] The fundamental principle of sentencing is that the sanction imposed must be proportionate to the gravity of the offence and thedegree of responsibility of the offender (s. 718.1 Criminal Code). This recognizes that a fit sentence must carefully balance the societalgoals of sentencing against the moral blameworthiness of the offender and the circumstances of the offender, while at all times takinginto account the needs and current conditions of and in the community: R. v. M(C.A.) (SCC), [1996] 1 SCR 500 atpara. 91.

The Supreme Court continued at paragraph 92: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . . Sentencing is an inherentlyindividualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be afruitless exercise of academic abstraction. (see also R. v. Lacasse, 2015 SCC 64, para. 54) [43] In R. v.

Proulx, 2000 SCC 5, at paragraph 82, Chief Justice Lamer repeated that principle stating: Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the punishment fits thecrime.

As a by-product of such an individualized approach, there will be inevitable variation in sentences imposed for particular crimes. [44] In imposing a just sanction, the Criminal Code directs that a court takes into account certain objectives including denouncingunlawful conduct, deterrence, separation of offenders from society where necessary, rehabilitation, providing reparations, and promotinga sense of responsibility in offenders and acknowledging harm which they have done to victims and to the community (s. 718 CC). [45] A sentencing court must take into account relevant aggravating and mitigating factors, and a fit sentence should be similar tosentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(

a) and (

b) CC). [46] In fashioning an appropriate sentence a court must take into account that an offender should not be deprived of liberty if lessrestrictive sanctions may be appropriate in the circumstances (s. 718.2(

d) CC). [47] In addition, the Criminal Code directs that a court should consider all available sanctions, other than imprisonment, that arereasonable in the circumstances and consistent with the harm done to victims or to the community, with particular attention to thecircumstances of Aboriginal offenders (s. 718.2(

e) CC). GRAVITY OF THE OFFENCE [48] The assaults in this case were committed by the Accused against his nephews. Even though the victims had no previousrelationship with the Accused, the fact that he assaulted a member of his own family elevates the gravity of the offence. [49] The assault on Skylar, in particular, began with the Accused taking Skylar by surprise by starting to punch him when Skylarwas just trying to shake hands. [50] Both Skylar and Shaquille were fairly quickly knocked to the ground by the Accused.

The Accused continued to viciouslyassault each of them after they were rendered helpless on the ground. [51] The Accused told Skylar and Shaquille not to tell anyone about the assaults. [52] The injuries suffered by Shaquille have been long lasting and continue to impact Shaquille’s daily life. [53] The gravity of the offences in this case is high. DEGREE OF RESPONSIBILITY OF THE OFFENDER [54] Based on the evidence, the Accused, in a sober state, carried out a calculated attack on the two victims in this case causingserious injuries.

This was an unprovoked attack. [55] The degree of responsibility of the Accused in this case is high. CIRCUMSTANCES OF AN ABORIGINAL OFFENDER: s. 718.2(

e) CC [56] The Supreme Court of Canada in R. v. Gladue, (SCC) noted that s. 718.2(

e) of the Criminal Code requiressentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances ofAboriginal offenders, noting this

section is remedial in nature and its purpose was to ameliorate the serious problem of over-representation of Aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach tosentencing.

[ 57 ] I take judicial notice of the broad, systemic and background factors affecting indigenous people, and of the priority given in indigenous cultures to a restorative approach to sentencing. [ 58 ]

Section 718.2(

e) is not to be taken as a means of automatically reducing the prison sentence of indigenous offenders or assuming that an indigenous offender is receiving a more lenient sentence. [ 59 ] The Supreme Court emphasized in R. v.

Ipeelee , 2012 SCC 13 that an offender is not required to establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by a sentencing judge. [ 60 ] The background factors of an indigenous offender, often referred to as Gladue factors, must be considered by a sentencing judge and a judge may find that those factors impact on the moral culpability, or degree of responsibility, of an offender. [ 61 ] The Gladue Report filed in this case was completed on June 14, 2022 and was initially filed in the Court of King’s Bench as part of the sentencing hearing that took place on October 21, 2022.

The information in this report is largely still current with some updated information provided by counsel for the Accused. [ 62 ] I have referenced the Gladue factors that are present for this Accused in my discussion of the circumstances of the Accused. [ 63 ] In light of these unique background factors of this Accused, I find that his degree of responsibility, or moral culpability, is reduced in this case. SENTENCING AUTHORITIES [ 64 ] The Crown provided me with seven authorities to consider. They are as follows: R. v. Bruno , 2018 ABCA 40 R. v. Gladue , 2012 ABCA 118 R. v. Weasel Bear , 2016 ABPC 244 R. v.

Reid , 2015 ABCA 334 R. v. Umpherville , 2016 ABPC 96 R. v. RGB , 2017 ABCA 359 R. v. Proulx , 2000 SCC 5 [ 65 ] Counsel for the Accused focused most of her submissions on the Supreme Court’s decisions in Gladue , Ipeelee , and Sharma ( 2022 SCC 39 ) while also referencing Proulx, Lacasse , Friesen ( 2020 SCC 9 ), and Wells ( 2000 SCC 10 ). [ 66 ] I have reviewed and considered all of these decisions. I have also reviewed and considered a number of additional decisions, including the following: R . v. Buffalo , 2020 ABQB 41 R . v. Laboucane , 2016 ABCA 176 R . v. Lariviere , 2021 ABQB 432 R . v.

T.J.H. , 2022 YKSC 45 R . v. JFK , 2023 ABPC 28 R . v. Wong , 2023 ABCJ 156 R . v. Araya , 2023 ABCJ 174 [ 67 ] I remind myself of the statements from the Supreme Court in M(C.A.) and Lacasse that a search for prior decisions with the same facts and an offender with the same personal circumstances will frequently be a fruitless exercise. MITIGATING FACTORS [ 68 ] The Accused has undertaken a number of courses to improve himself and his prospects of rehabilitation. He has been able to abstain from substance use for the past 18 months.

He has also obtained full time employment. [ 69 ] For the past two years, the Accused has followed his conditions of release and has not been charged with any further offences. Although this is a positive fact, and may be relevant to an assessment of whether a conditional sentence is appropriate, this is not a mitigating factor. ( see R. v. Sarrasin , 2021 ABCA 253 ) [ 70 ] As a result of the unique personal circumstances of this Accused, his degree of responsibility is reduced and this is mitigating. AGGRAVATING FACTORS

[ 71 ] This was a surprise attack on an unsuspecting victim in the case of Skylar.

In the case of both victims, the attack was vicious and most of the blows were struck after each victim had been knocked to the ground and rendered helpless. [ 72 ] It is aggravating that the victims in this case are members of the Accused’s own family. (s. 718.2(a)(ii) CC) [ 73 ] It is aggravating that the injuries inflicted on Shaquille in particular have had a serious impact on him and continue to require ongoing treatment. (s. 718.2(a)(iii.1) CC) [ 74 ] The Crown argued that because Steven inflicted at least one blow to Shaquille, this was a group assault.

In fact, the Crown suggested this was a three on one assault on each of the victims and argued Tessa was also involved. If I were to find this was a group assault, this would be an aggravating factor. ( see R. v. McIntyre , 1992 ABCA 319 ) [ 75 ] I am not prepared to find that this was a group assault. First, the Crown argued Tessa was involved somehow because she had the phones of the victims which led them to feel they couldn’t leave. However, the evidence was that Skylar simply went to another room in the house, retrieved the phones, and he and Shaquille then left.

Second, although I found that Steven inflicted a blow to Shaquille, the evidence has led me to conclude this was really two one-on-one assaults committed by the Accused. This was not a group assault. [ 76 ] The Crown also argued that it is an aggravating factor that the Accused was the uncle of the victims and, therefore, he had abused a position of trust in committing the assaults against them. The victims in this case are adult males. The evidence was that, although they knew who the Accused was, they had not ever really met the Accused and they had no previous relationship with him.

The Accused was not in a position of trust with respect to the victims. [ 77 ] The Accused telling the victims not to tell anyone about the assaults is an aggravating factor. In the case of R. v. Payne , 2007 BCCA 541 , at para. 48 , the court stated: Criminal conduct that makes victims afraid to report crimes to police and makes witnesses afraid to co-operate with police in the investigation of crimes subverts the rule of law and must be checked by an exemplary sentence. [ 78 ] The conduct at issue in Payne was much more serious than in this case.

The victims in this case were not dissuaded and the incident was reported to police very shortly after it occurred. The conduct of the Accused, however, was surely part of the reason for the fear expressed in the Victim Impact Statements that the Accused would come to their home to continue the assault. [ 79 ] The Accused has a prior criminal record which is an aggravating factor.

However, I adopt Justice Henderson’s description of this criminal record during the sentencing hearing on October 21, 2022 when he described it as “not minor, but not serious” and also described it as “lengthy but not surprising given his background”. The three prior assault convictions are reason for concern. The last of these is five years ago and the sentences imposed – fines for two of them and one day jail for the 3 rd – suggests they were all minor which mitigates this concern.

CONDITIONAL SENTENCE [ 80 ] Because I have been asked to consider the imposition of a conditional sentence, I must undertake the analytic framework spelled out in Proulx .

Section 742.1 of the Criminal Code lists four criteria that a court must consider before deciding to impose a conditional sentence: 1. The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; 2. The court must impose a term of imprisonment of less than two years; 3. The safety of the community would not be endangered by the offender serving the sentence in the community; and 4.

A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [ 81 ] Because the Crown has proceeded summarily in this case, the maximum sentence is less than 2 years and there is no mandatory minimum sentence.

Therefore, the first two criteria are met . [ 82 ] The Crown argues that the third criteria is not met as allowing the Accused to serve his sentence in the community would endanger the safety of the community. [ 83 ] An assessment of this criteria requires a consideration of two factors: 1) the risk of the offender re-offending; 2) the gravity of the damage that could ensue in the event the offender re-offends. [ 84 ] The Crown points to the prior criminal record as evidence of the risk of the Accused re-offending and suggests that the damage that could ensue from his re-offending is high.

As previously noted, the Accused has been convicted seven times for breaching conditions of probation and four times for breaching conditions of release. His most recent conviction for breaching his probation was September 27, 2019. [ 85 ] As the Supreme Court in Proulx noted at paragraph 69 : If the judge finds there is a real risk of re-offence, then incarceration should be imposed.... In certain cases, the minimal risk of re- offending will be offset by the possibility of a great prejudice, thereby precluding a conditional sentence. [ 86 ] The Crown’s concerns about the risk of re-offending have merit.

However, I cannot ignore what the Accused has done in the

past two years. [ 87 ] The Accused has taken numerous programs to address addiction as well as to improve his job skills. I have not lost sight of the fact many of those programs were completed while the Accused was serving a jail sentence. However, he has been applying those programs since his release and has secured employment.

There have been no allegations that he has breached his conditions of release with respect to this matter since being charged almost three years ago. [ 88 ] I am satisfied that the safety of the community would not be endangered by allowing the Accused to serve a conditional sentence. [ 89 ] The more difficult question is whether service of a sentence in the community would be consistent with the fundamental purpose and principles of sentencing.

Would a conditional sentence satisfactorily fulfil the objectives of denunciation and deterrence which are paramount in this case? [ 90 ] A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be.

There may be some circumstances, however, where the need for denunciation and deterrence is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct or to deter similar conduct in the future. [ 91 ] Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction.

This may be so notwithstanding the fact that restorative goals might be achieved. [ 92 ] However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served. ( Proulx , para. 127 ) [ 93 ] The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration.

Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence . ( Proulx , para 22 : emphasis in the original) [ 94 ] The majority of the Supreme Court in Sharma , at paragraph 73 , state: We accept that there is a link between the Gladue framework relating to s. 718.2(

e) and the conditional sentencing regime. Both were adopted as part of the same legislation aimed at reducing the use of prison as a sanction and expanding the use of restorative justice principles in sentencing ( Gladue, at para. 48; Proulx , at para. 15 and 18-21 ; Wells , at para. 6 ). [ 95 ] The fact that the reference to aboriginal offenders is contained in s. 718.2(e), in particular, dealing with restraint in the use of imprisonment, suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction ( Gladue, para. 37). [ 96 ] The minority of the Supreme Court in Sharma , at paragraph 215 , note:

Section 718.2(

e) provided the substantive equality direction ; conditional sentences provided a means of implementation . Conditional sentences “changed the range of available penal sanctions in a significant way” by “altering the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only where no other sentencing option is reasonable in the circumstances”. The provision creating them – s. 742.1 – suggested, “on its face, a desire to lessen the use of incarceration”. And the “general principle expressed in s. 718.2(

e) must be construed and applied in this light” ( Gladue, para 40). [ 97 ] As Justice Tyndale noted in R. v. Araya , 2023 ABCJ 174 , at paragraph 55 : Further, the increased use of Conditional Sentence Orders is consistent with Parliament’s present intent. On November 18, 2022, the date that Bill C-5 received Royal Assent, Justice Minister David Lametti issued a statement, which included the following: With this law, we have repealed the mandatory minimum penalties that have most contributed to the overincarceration of Indigenous people, Black persons and racialized Canadians.

These reforms will ensure a fairer, more effective justice system for all, while maintaining public safety.

These reforms also offer the courts greater use of conditional sentences and provide for the judicial discretion needed to impose sentences that reflect the seriousness of the offence and maintain public safety, while addressing the obvious and damaging overrepresentation of Indigenous people, Black persons, racialized Canadians, and members of marginalized communities in the criminal justice system. [ 98 ] I have come to the conclusion that the imposition of a conditional sentence order in this case would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

FIT SENTENCE [ 99 ] I am satisfied that 18 – 24 months jail, as suggested by the Crown, is the appropriate range of sentence considering the circumstances of this offence and the circumstances of this Accused. [ 100 ] I sentence the Accused to 18 months jail to be served as a conditional sentence. This will be followed by a further period of supervised probation of 18 months. This sentence will be served concurrently on each of the counts. [ 101 ] As part of her submissions, counsel for the Accused provided me with proposed terms of a conditional sentence order. She did not

select one of the compulsory conditions mandated by s. 742.3 – to remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor. [ 102 ] Since her written submissions included information that the Accused’s employment may require him to go outside of Alberta, I’m making the assumption that condition was left out on purpose to make things easier for the Accused. [ 103 ] However, I do not have discretion as it relates to this condition.

It must be imposed as part of a conditional sentence. [ 104 ] I am imposing a conditional sentence with the knowledge that the Accused has employment that may take place outside of Alberta. I am leaving it to the Supervisor to exercise his or her discretion as it relates to this condition based on the information provided by the Accused.

ANCILLARY ORDERS [ 105 ] Given that this Accused has employment, he will be required pay a victim surcharge of $100 for each count for a total of $200. [ 106 ] Assault causing bodily harm is a primary designated offence and I order that the Accused provide a sample of his DNA pursuant to s. 487.051. The Accused shall attend at the Maskwacis RCMP detachment within two weeks of today so that a sample of his DNA may be taken. [ 107 ] The Crown has asked that a firearms prohibition order pursuant to s. 109 be made against the Accused.

When I read through the provisions of s. 109 , I do not see that it applies to the offences in this case. I am, however, prepared to exercise my discretion and make an order pursuant to s. 110. [ 108 ] The Accused is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of ten years Heard on the 6 th day of July, 2023. Dated at the City of Wetaskiwin, Alberta this 8 th day of August, 2023. J.G.

Neustaeter A Justice of the Alberta Court of Justice Appearances: Emily Nguyen for the Crown Laura Phypers for the Accused Attachments: Terms of the CSO and Terms of Probation TERMS OF THE CSO

Mandatory Terms 1. Keep the peace and be of good behaviour; 2. Appear before the court when required to do so by the court; 3. Report to a Supervisor within two working days and thereafter report when required by your Supervisor and in the manner directed by your Supervisor; 4. Remain within the Province of Alberta unless prior written permission to go outside the Province is obtained from the court or your Supervisor; 5.

Notify the court or your Supervisor in advance of any change of name, address or telephone number and promptly notify the court or your Supervisor of any change in employment or occupation; Restriction on Liberty House Arrest 6. You shall reside at NE-14-44-24 W4M, House 496, or at an address for which you have prior written approval from your Supervisor and you shall not change that residence without the prior written approval of your Supervisor; 7.

You shall immediately provide to your Supervisor the full names of all occupants in your residence and advise your Supervisor in writing of any changes in the people who reside at your residence; 8. During the first nine consecutive months from the date of this order, you shall remain in your residence 24 hours per day and not be absent from your residence except where specifically permitted by this order. Curfew 9.

After the expiration of the period of time specified as house arrest, you shall observe a curfew and remain in your residence between the hours of 10:00 p.m. to 6:00 a.m. every day and you shall not be outside your residence unless you have prior written permission from your Supervisor; Verification During the period of time that you are required to be in your residence while under house arrest or curfew: 10. You shall physically present yourself to your Supervisor or to any peace officer who attends at your residence; and 11.

You shall speak to your Supervisor on the telephone whenever your Supervisor telephones your residence. This telephone number must not utilize a call transfer service and you must restrict the use of the telephone line to 15 minutes of consecutive use or less so that your Supervisor can contact you. Exceptions to House Arrest and Curfew You may be absent from your residence during any period of house arrest or curfew for the following reasons only: 12. To attend at an educational institution to take courses or training approved by your Supervisor; 13.

To attend at your place of employment, or at any other place where you are seeking employment; 14. To perform any community service obligations;

15. To attend appointments with your lawyer, or attend court as required by law; 16. To attend for medical, dental or health appointments for yourself, spouse/partner, or dependant children residing with you at your approved residence; 17. To attend for any assessment, treatment or counseling as directed by the court or directed or approved by your Supervisor; 18. To shop for the necessities of life, which cumulatively shall not exceed four hours per week; 19. To participate in such other programs or services deemed appropriate by your Supervisor; 20. For religious services or native cultural ceremonies; 21.

To report to your Supervisor; 22. To vote in a municipal, provincial or federal election; or 23. For any other reason deemed suitable by your Supervisor. All of which shall be approved in advance, and in writing, by your Supervisor including the addresses of the locations to which you are traveling, and you shall travel by the most direct route to and from the locations noted in the preceding paragraphs. EXCEPTION: Prior approval is not required if you, your spouse/partner, or a dependant child residing with you at your approved residence, require emergency medical or dental treatment.

In the event of such emergency, you shall go directly to the nearest medical facility and you shall return to your residence as soon as possible and immediately notify your Supervisor of your absence, the location you attended, and the specific reasons for the absence. You shall provide to your Supervisor satisfactory proof of the emergency treatment. 24. At all times when you are absent from your residence, you shall carry a legible of this order, including any amendments and any written approvals signed by your Supervisor.

You shall produce these documents to any peace officer or person responsible for the enforcement or supervision of this order upon request. Counseling or Treatment 25. You shall attend for such assessment, counseling or treatment as the court is now directing or as may be directed by your Supervisor including any residential treatment program for: - Alcohol/drug abuse issues; - Traditional counseling and healing sessions, including sweat lodge ceremonies; 26. You shall provide satisfactory written proof of attendance and completion of the program(

s) by the date specified by your Supervisor. 27. You shall sign a release or waiver as requested by your Supervisor permitting access to any information required to assist in your Supervision; Abstention 28. You shall refrain from purchasing, possessing, using or consuming alcohol, other intoxicating substances or any non-prescribed controlled substances or drugs as defined by the Controlled Drugs and Substances Act. You shall not inhale intoxicating vapors. You shall not permit any of these substances to be in your residence; 29.

You shall not enter or be found in any premises whose primary purpose is gambling or the retail sales of alcoholic beverages; Community Service Work 30. You shall perform 50 hours of community service work at such times, places or projects as your Supervisor directs and to the satisfaction of your Supervisor. You must complete the work within the first 15 months of this order and provide satisfactory written confirmation to your Supervisor of completion of those hours by the end of the 16 th month of this order;

No Contact 31. You shall not have any contact or communication, either directly or indirectly with: - Skylar Saddleback - Shaquille Saddleback - Candace Saddleback - Ivor Crier 32. You shall not attend at, or within a 50 metre radius of, the home, workplace or place of learning of any of the four people listed above; Weapons 33. You shall not be in possession of anything designed for use as a weapon or anything intended for use as a weapon; EXCEPTION 34.

Where appropriate, your Supervisor may grant a temporary written exemption from any of the terms of this order, provided that the exemption is for the purpose of addressing an immediate need with respect to your rehabilitation or for a humanitarian purpose. TERMS OF PROBATION Mandatory Conditions 1. You shall keep the peace and be of good behaviour; 2. You shall appear before the court when the court requires you to do so; 3.

You shall notify the court or the probation officer in advance of any change of your name, address or telephone number or numbers and promptly notify the court of the probation officer of any change in your employment or occupation; Report 4. You shall be under the supervision of a probation officer and must report to that probation officer within 48 hours of the conclusion of the conditional sentence order and, after that, you shall report to your probation officer as directed by your probation officer; Counseling or Treatment 5.

You shall attend, participate in and complete any assessment, counseling or treatment your probation officer directs you to do, which could include a residential treatment one, relating to: - Alcohol or drug abuse

- First Nations traditional healing sessions 6. If your probation officer directs you to attend any assessment, treatment or counseling program, you shall give proof of attendance and completion to your probation officer upon demand. You shall sign any release or waiver as directed by your probation officer allowing him or her access to any information needed to assist in your supervision; No Contact 7. You shall not have any contact, either directly or indirectly, with: - Skylar Saddleback - Shaquille Saddleback - Candace Saddleback - Ivor Crier 8.

You shall not attend at, or be within a 50 metre radius of, the home, workplace or place of learning of any of the four people listed above; Weapons 9. You shall not possess anything that is designed for use as a weapon, or anything that is intended for use as a weapon.