Her Majesty the Queen - v. -, 2019 SKPC 42

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 42 Date: July 5, 2019 Information: 991090576 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Corrine Rose Saddleback Appearing: T. O’Hara For the Crown B. D. Little For the Accused SENTENCING DECISION Q.D. AGNEW, J [ 1 ] On May 14, 2019, a particularly gruesome trial was occurring in Provincial Court in Saskatoon. Several persons were accused of confining a female complainant for several hours, torturing her and ultimately cutting off part of one of her fingers.

As the episode was believed to be gang-related, there was a significant security presence in the courtroom. [ 2 ] During the complainant’s testimony, the present accused, Ms. Saddleback, entered the courtroom in a noisy, disruptive fashion. She attempted to sit near one of the accused, who waved her off. Ms. Saddleback then left the courtroom, in a similar fashion. Once outside the courtroom, Ms. Saddleback was seen in the glass window of the courtroom door, looking at the complainant, who was still testifying.

She waved her arms to attract the complainant’s attention, and mouthed words to the effect that the complainant was lying. Ms. Saddleback then made eye contact with the complainant and drew her hand across her own throat in a slashing motion, several times. She then departed. (Note: these are the facts originally accepted by Ms. Saddleback. In her own remarks at the sentencing

hearing, she resiled somewhat from them, although she did not resile from her admission of the essential elements of the charge.) Shewas thereupon arrested and, as she was being removed from the location, referred to the complainant several times as a “rat”. [3] As a result of these actions, Ms. Saddleback was charged under s. 423.1(

b) of the Criminal Code, which makes it an indictableoffence punishable by up to 14 years’ imprisonment to engage in any conduct with the intention of provoking a state of fear in a justicesystem participant in order to impede them in the performance of their duties. Pursuant to s. 2 of the Criminal Code, “justice systemparticipant” includes “a prospective witness, a witness under subpoena and a witness who has testified”.

Section 423.1(1) reads asfollows: 423.1

(1) No person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear in (

a) a group of persons or the general public in order to impede the administration of criminal justice; (

b) a justice system participant in order to impede him or her in the performance of his or her duties; or (

c) a journalist in order to impede him or her in the transmission to the public of information in relation to a criminal organization. [4] Ms. Saddleback, with the assistance of counsel, pled guilty to that charge on May 30, 2019. The matter was adjourned forpreparation of a pre-sentence report, and the matter came before me for a sentencing hearing on June 20, 2019.

At that time, defencecounsel confirmed that he had complied with the provisions of s. 606(1.1) of the Code, as indeed he had indicated to the Court when theplea was originally given on May 30. [5] The Crown seeks a sentence of 20 months’ incarceration, followed by 18 months’ probation. Defence agrees that a period ofincarceration is required, albeit a short one, and suggests three years’ probation to follow. Ms. Saddleback’s Circumstances [6] An extensive pre-sentence report was prepared regarding Ms. Saddleback. Her counsel made substantial submissions on herbehalf, and Ms.

Saddleback herself addressed the Court at length. [7] She is 42 years old. She has been in a relationship with her current partner since 2014. They have one daughter, who resideswith them. Ms. Saddleback surrendered her first seven children to Social Services in Alberta in 2013. She has struggled with substancesin the past, including trafficking in substances. She became addicted to oxycodone in 2013, as a result of it being prescribed for herfollowing her then-spouse attacking her with a baseball bat. She has been on a methadone program since 2013. She began using crystalmethamphetamine at age 31.

She has attended both detox and substance abuse treatment ten times or more each, and has a number ofcertificates for completion of various courses, ranging from treatment courses to family courses to a course on the use of naloxone foroverdoses. Although she has completed Grade 12 and two years of post-secondary education, she has not been employed in the past 15years. Her daughter was taken into the care of Child Protection in 2017, but this lasted only two months and Ms. Saddleback was thenable to correct herself and get her daughter back. [8] Ms. Saddleback has an extensive criminal record.

Beginning in 1992 as a youth and continuing to 2015, she has accumulatedapproximately 60 convictions. These are mostly property and compliance offences, but include two assaults, a robbery and threeobstruction charges. There are, however, no intimidation charges. She has had no convictions since 2015, roughly coincidental with thebeginning of her current relationship. This would have given cause to hope that she had turned her life around, were it not for the presentoffence. [9] She is a First Nations woman, from Maskwacis First Nation.

She has significant Gladue factors (R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue]) which the Court must consider in determining an appropriate sentence for her.

In addition to what isnoted above, she reports: a. she has many memories of being abandoned by her mother while her mother worked in the sex trade; b. both she and her mother were physically abused by her mother’s boyfriend/pimp; c. she was placed in over 20 foster homes; d. while in foster care, she was physically and sexually abused; e. she was eventually placed with an uncle, who continued the abuse until she ran away permanently at age 14; f. both she and her mother went through residential schools;

g. her first spouse, and the father of her first five children, was abusive toward her. He was eventually sentenced to a 15-month term of incarceration for assaulting her with a baseball bat. [ 10 ] Ms. Saddleback has herself been in a similar position to the witness whom she threatened. Approximately 10 years ago, Ms. Saddleback was a witness in a murder trial, an experience which she apparently found very stressful; indeed, she emphasized, both through her counsel and directly to the Court, that she understood what the witness had been going through, and could empathize with her. [ 11 ] Ms.

Saddleback addressed the Court directly, and at some length. Her comments originally were in accordance with her counsel’s as to the sequence of events which brought her into the courtroom on that day. Her story lacked a certain coherence, and as I attempted to clarify it with her, it changed. Over the course of her comments, it continued to change, and I was left with the overwhelming impression that Ms. Saddleback was straining to put forward more and more reasons why her actions should be treated lightly - indeed, as her story continued to change, it became more and more internally inconsistent.

She indicated that drugs were involved, although what drugs and when they were taken evolved over the course of her statement. It was not clear what, if any, actual effect she was alleging these drugs might have had on her, or how they might have affected her behaviour at the time of the offence. Ms. Saddleback never attempted to resile from her admission of the essential elements of the offence; that was almost the only consistent feature in her statement. In essence, she admits that she committed the offence; beyond that, it is not clear exactly what her story is.

The only other consistent feature was her unwillingness or inability to offer any explanation, coherent or not, as to why she committed the present offence. I am left with no motive, no rationale at all for her to have done acts which, she admits by her plea, she did expressly in order to put fear into the witness. [ 12 ] According to the pre-sentence report, Ms. Saddleback believes that her actions were “not that big of a deal”, and that she was not treated fairly by the judge or the police. It is not clear which judge she meant.

The judge at the trial she interrupted had no contact with her whatsoever - she acted outside of the courtroom, she was arrested outside of the courtroom, and the trial judge had no interaction with her. She was thereafter in custody, and has had only docket appearances. She was never denied bail, but has consented to her remand throughout: she accordingly cannot be referring to a judge at a bail hearing. She made this comment to the report writer prior to the sentencing hearing, so she cannot have been referring to her treatment before me. There is simply no judge to whom this statement can apply.

Her comment, nonsensical as it is, bolsters the report writer’s opinion that Ms. Saddleback minimizes her actions. [ 13 ] The report indicates, however, that Ms. Saddleback feels remorse for making her victim feel “scared”. Case Law [ 14 ] Crown counsel filed a brief reviewing the case law with respect to sentencing in this area. Defence agreed that it fairly represented the law.

Defence further agreed with the Crown that the primary consideration in sentencing in this matter has to be denunciation and deterrence, although not, of course, to the exclusion of other sentencing considerations. [ 15 ] Sentencing under s. 423.1(1) was recently considered in Saskatchewan in R v Morrisseau , 2017 SKQB 76 . In that case, the Court accepted a joint submission for a period of 12 months’ incarceration on the charge, consecutive to incarceration for certain charges related to a home invasion.

The accused telephoned the victims of the home invasion, and had a note delivered to them, in an attempt to convince them not to testify. [ 16 ] A one-year period of incarceration, followed by a three-year period of probation, was ordered in R v MacDonald , 2005 CarswellNB 796 (NB Prov Ct) , leave to appeal refused: 2006 NBCA 6 . The accused made a threat to a witness in the court house prior to that witness testifying. In the courtroom during the testimony of another witness, he made a gun shape with his fingers and mimed shooting the witness.

He approached a third witness during a break in the court proceedings, and made a further threat. He then made a number of threatening telephone calls. He alleged that the words and actions were not meant in the way they were received. The accused had a significant record, although he had had no convictions for three years prior to these incidents. [ 17 ] In R v Michel , 2010 NWTTC 9 [ Michel ], the accused attempted to intimidate a complainant into dropping charges against him.

He was charged with a number of other offences relating to the same series of events, but specifically with respect to the charge of intimidation of a justice system participant, he was sentenced to 15 months in jail, followed by three years of probation. The sentencing judge made the following observations regarding the significance of this offence specifically with respect to a witness: [16] 'Justice system participant' is broadly defined in the Criminal Code to include many groups, witnesses and prospective witnesses being one of those groups. Many of the groups of participants that this

section applies to, e.g. prosecutors, lawyers, officers of the court,

even judges, play a role in the justice system, but their role is not confined to a specific case. If the intimidation of a member of one of those groups is successful, there is likely another member of the group that can step in and the process will continue - there will always be another prosecutor, another lawyer, another judge, another court officer. Intimidation of any of them while still a very serious crime will not necessarily frustrate a prosecution. [17] But if an accused successfully intimidates a witness , the result can be that the prosecution of that accused will be frustrated.

Intimidation of a witness can result in significant damage to the administration of justice. When a matter is set for trial and a witness does not attend, or does attend but refuses to testify, or recants on a previous statement, and the prosecution is terminated, the community may well lose respect for and confidence in the criminal justice system. If the process is frustrated, a criminal charge will not be resolved on its merits.

When an accused attempts to influence a witness to achieve such a result, there has to be meaningful consequences that will deter both the accused and others from such tactics and will express the court's and the community's condemnation of this conduct. [ 18 ] In R v Hefferan , 2014 Carswell NFLD 93 (NL Prov Ct) [ Hefferan ], the accused accosted the complainant in public, yelling and screaming at her, as a result of the complainant having provided a statement to police regarding the accused’s son.

The sentencing judge identified many positive circumstances relating to the accused: only one prior, unrelated offence on her record; a long-term relationship; a history of mental health and addictions issues; and a willingness to engage in treatment. The accused received a 90-day intermittent sentence and two years’ probation as a global sentence for these actions as well as for a fraud and a breach of probation. The Court explicitly stated that this was “a very lenient disposition and one significantly lower than what will be normally imposed for a breach of

section 423.1 of the Criminal Code ” (para 4). [ 19 ] The Court in Hefferan also reviewed several Quebec decisions translated from French: a. R v Bédard , 2011 QCCS 518 - the accused, who had a history of convictions for criminal harassment and contempt of court, and who was at the time undergoing trial for another charge of criminal harassment, threatened the Crown prosecutor in the hallway outside of the courtroom. He repeated the threats when subsequently in custody.

Although the court rejected the Crown’s application to have the accused declared a long-term or dangerous offender (affirmed 2014 QCCA 628 ), the Court sentenced him to five years in prison for the intimidation charge, together with three months concurrent for a breach of recognizance; b. R v Charrette , 2011 QCCS 5886 - while imprisoned, the accused made threats against two corrections officers. He was sentenced to 18 months; c. R v Anglehart , 2012 QCCA 771 - another case involving threats by an inmate against corrections staff. He had previously received a six-month sentence for a similar offence.

The Quebec Court of Appeal overturned the trial judge’s sentence of four years imprisonment, and substituted a sentence of 18 months, consecutive to time being served on other matters; d. R v Veillette , 2012 QCCS 4720 - the accused gave “menacing looks” to a police officer scheduled to testify at a preliminary inquiry, then followed the officer in his vehicle and confronted him in person. The accused had no criminal record, and cared for his schizophrenic wife, his adolescent daughter and his two handicapped brothers. He had spent seven days in pretrial custody.

The Court held that the principles of denunciation and deterrence did not require further custody, despite a danger of recidivism, and imposed a period of three years’ probation, including 120 hours of community service. [ 20 ] In R v Horton , 2014 ONCA 616 , the accused was convicted of intimidating a justice system participant and assaulting a peace officer. Both charges arose out of an incident where the accused kicked an occupied police cruiser, with the intention of intimidating or causing fear in the officer, who was at the time performing police duties.

The Ontario Court of Appeal upheld a sentence of 10 months’ imprisonment and two years’ probation for the s. 423.1 charge, and imposed a concurrent six months’ incarceration for the assault. [ 21 ] In R v Redgun , 2016 ABPC 236 [ Redgun ], the accused encountered a person who had alleged that the accused’s daughter had been involved in certain criminal acts. The offender accused that person of lying, threatened to assault her, and followed her for a short distance.

The accused was 48, had no previous record, and was a First Nations woman who had been abused as a child and who had attended residential school, as had both of her parents and all four of her grandparents. The Court stated that the primary sentencing considerations were denunciation and deterrence (paras 33 and 35), quoted Michel on the importance of protection of witnesses, and stated (para 43) that a violation of s. 423.1 will usually result in incarceration.

In this case, the accused’s Gladue factors affected her moral blameworthiness, the offence did not reflect her true character, and the Court held that the principles of denunciation and deterrence were met by the fact that the accused would now have a criminal record. She was given a suspended sentence and two years’ probation. [ 22 ] There are several common themes which run through these cases:

a. the primary sentencing considerations must be denunciation and deterrence; b. a conviction under s. 423.1 will normally result in a term of imprisonment; c. the range of sentences for a first offence is from a suspended sentence to 18 months in jail. The middle of the range seems to be 12 months’ imprisonment; d. probation is frequently added to the jail term; e. in the case of a second offence, there is a significant increase in penalty. Analysis [ 23 ] The Gladue factors are relevent to sentencing, as per s. 718.2 (

e) of the Criminal Code . No causal link is required to be shown between Ms. Saddleback’s offending behaviour and her First Nations status: R v Ipeelee , 2012 SCC 13 at paras 82 and 83 , [2012] 1 SCR 433. However, the Gladue factors can show a reduced moral culpability: R v Chanalquay , 2015 SKCA 141 at para 52 , 472 Sask R 110 [ Chanalquay ]; R v Slippery , 2015 SKCA 149 at para 47 , 472 Sask R 181 [ Slippery ]; R v Delorme, 2017 SKCA 3 at para 59 . [ 24 ] Gladue does not automatically mean a reduction in sentence.

The first question is whether or not the Gladue factors indicate a reduced moral culpability on Ms. Saddleback’s part. The second question is whether or not, in the particular circumstances of this offender and this offence, there is a restorative-justice approach which could reduce or limit the appropriate term of imprisonment (if any) for Ms. Saddleback while still meeting the applicable sentencing objectives. See: Chanalquay , para 54 ; Slippery , para 56 . [ 25 ] With respect to the first question, that of moral culpability, it is easy to see how Gladue factors could play into a s. 423.1 charge.

In a situation like Redgun , with a mother who went to residential schools, whose parents and grandparents all went to residential schools, who had been abused as a child, who was perhaps simply trying to protect her daughter, and who had no criminal record and thus likely very little knowledge of or familiarity with the criminal system, it is not difficult to see a diminished moral culpability as a result of those factors. [ 26 ] The situation is different with Ms. Saddleback. From her record, she has extensive experience with the justice system.

From the information available, she had very little connection with any of the accused against whom the complainant was testifying. Her own experience as a witness in a murder trial, which she apparently found very difficult, suggests if anything a greater moral culpability: having experienced that stress, she should be (and says she was) more aware of what the witness was undergoing. Ms. Saddleback nonetheless deliberately performed acts intended to intimidate that witness and impede her in testifying. Ms. Saddleback at no time offered any explanation for doing so.

There is nothing in her background to explain this, or to offer any diminution of moral responsibility. [ 27 ] With respect to the second Gladue issue, restorative justice, the question is whether and to what extent a jail sentence is required, or if there is a restorative justice approach which can accomplish the objectives of sentencing either instead of imprisonment, or conjoined with a reduced term of imprisonment. Both counsel agreed that the principles of denunciation and deterrence are the most significant sentencing principles in play with respect to Ms.

Saddleback; I note that this is echoed in the cases, whether they involve a First Nations offender or not. Both counsel also agreed that a term of incarceration is required. [ 28 ] The “restoration” which is required here refers to both the harm done to the witness specifically, by the fear which Ms.

Saddleback instilled in her, and the harm done to society generally: society must believe that witnesses are free to testify without fear, or else our entire system of justice breaks down. [ 29 ] I am unable to find any sentence which satisfies these requirements other than a significant period of incarceration, followed by a period of probation for the protection of the witness. Society’s concerns demand a significant punishment. Without knowing why Ms. Saddleback did what she did, I cannot suggest a sentencing approach to address her own issues in a restorative way. Conclusion [ 30 ] Ms.

Saddleback deliberately acted to cause fear in a witness in a criminal trial, to prevent her from testifying. The witness was the victim of a horrific attack, testifying against her attackers. She was actually on the witness stand, testifying, when Ms. Saddleback acted. Ms. Saddleback’s actions, occurring in the courthouse itself, aimed at a witness actually testifying, are almost the most brazen form of this offence that can be imagined. There is no diminished moral responsibility on Ms. Saddleback’s part; if anything, her own experience as a witness increases her moral responsibility.

Lacking any explanation for her actions, there is nothing I can do to craft a rehabilitative sentence for Ms. Saddleback. Although all sentencing principles remain significant, the most significant here are those of

deterrence and denunciation: witnesses must believe that they can safely testify, and any threat to that idea is a threat to the justice system itself. [ 31 ] Parliament’s view of the seriousness of this offence is shown by the fact that it is indictable by law, and carries a maximum penalty of 14 years’ imprisonment. [ 32 ] Bearing all of the above in mind, I find that the appropriate sentence for Ms. Saddleback is 18 months’ imprisonment, followed by three years’ probation. Ms. Saddleback has spent 53 days in custody: awarding her credit at 1.5, she has a remand credit (rounded up) of 80 days.

She accordingly has 15 months and 10 days to serve. The terms of the probation, other than the statutory ones, will be: a. have no contact, directly or indirectly, with Leanne Morin; b. not be at the place of residence, education or employment of Leanne Morin as may be known to you. ________________________ Q.D. Agnew, J