Her Majesty the Queen - v. -, 2016 SKPC 174

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 174 Date: December 16, 2016 Information: 38551117, 3855115, 90014363 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Christopher McDougall Appearing: Paul Malone For the Federal and Provincial Crown Andrew Hitchcock For the Accused JUDGMENT ON SENTENCING B. HENNING , J [ 1 ] Mr. Christopher McDougall was convicted after trial, or has pleaded guilty to charges on Informations 38551117, 3855115, 90014363 on the following charges. Information 38551117:

(1) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did possess a prohibited weapon, to wit: a Remington 870, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code .

[FOUND GUILTY]

(2) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did possess ammunition, to wit, 12 Gauge Slugs, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code . [FOUND GUILTY]

(3) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan was an occupant in a motor vehicle in which he knew there was a prohibited firearm and that no occupant of the motor vehicle was the holder of an authorization or license to possess the firearm and an authorization or license to transport the prohibited firearm or a registration certificate for the firearm, contrary to section 94(1) (a)(ii) of the Criminal Code . [FOUND GUILTY]

(4) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did have in his possession a weapon, to wit: bear mace for a purpose dangerous to the public peace; contrary to

section 88 of the Criminal Code . [FOUND GUILTY]

(5) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did not being authorized under The Firearms Act to carry concealed, a weapon to wit: a knife, did carry it concealed, contrary to

section 90 of the Criminal Code . [DISMISSED]

(6) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan have in his possession a weapon, to wit: Remington 87 Shotgun for a purpose dangerous to the public peace; contrary to

section 88 of the Criminal Code . [FOUND GUILTY]

(7) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did have in his possession ammunition, to wit: Shotgun Shells for a purpose dangerous to the public peace; contrary to

section 88 of the Criminal Code .

[FOUND GUILTY]

(9) On or about the 15 th Day of December, A.D. 2015 at or near Regina, Saskatchewan did operate a motor vehicle while disqualified from doings so, contrary to section 259(4) of the Criminal Code . [GUILTY PLEA]

(11) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did have in his possession a prohibited weapon prohibited device, to wit: Remington 870 without being the holder of a license under which he may possess it, contrary to section 91(2) of the Criminal Code . [DECISION DEFERRED – CROWN ADMITS DUPLICITOUS, DISMISSED/WITHDRAWN]

(12) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did without lawful excuse, use transport a firearm prohibited weapon, to wit: Remington 870 in a careless manner, contrary to section 86(1) of the Criminal Code . [DECISION DEFERRED UNTIL SENTENCING— DISMISSED AS DUPLICITOUS WITH COUNT 3]

(13) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer pursuant to section 254(3) (

a) of the Criminal Code , to provide samples of his breath for analysis contrary to section 254(5) of the Criminal Code . [GUILTY PLEA, AMENDED FOR DRUG RECOGNITION TESTING RATHER THAN BREATH SAMPLES]

(14) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did have in his possession property to wit: wallet with ID and Xbox One, the property of Adam Baker of a value not exceeding five thousand dollars knowing it was obtained by the Commission in Canada of an offence punishable by indictment, contrary to

section 355 (

b) of the Criminal Code . [FOUND GUILTY]

(15) On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did have in his possession property to wit: Petro Canada Gas cards the property of Finning Canada and Kramer Ltd. And Petro Canada Gas Card (amended to include words in italic) of a value not exceeding five thousand dollars knowing it was obtained by the commission in Canada of an offence punishable by indictment, contrary to

section 355 (

b) of the Criminal Code . (as amended in italics) . [GUILTY PLEA, INCLUDING PROPERTY SUBJECT OF ORIGINAL COUNT 16, AS AMENDED] Information 3855155: On or about the 15 th day of December, A.D. 2015 at or near Regina, Saskatchewan did unlawfully have in his possession a controlled substance to wit: cannabis marihuana for the purpose of trafficking, contrary to section 5(2) of The Controlled Drugs and Substances Act. [FOUND GUILTY OF POSSESSION ONLY]

Information 90014363: On or about the 1st day of September in the year 2015at or near Regina, Saskatchewan did operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code. [GUILTY PLEA] [2] The Court deferred decision on offences relating to firearms as being potentially duplicitous. The Crown conceded that count 11 (possession of a prohibited device – modified) was duplicitous, but argued forconviction on Count 12 (transportation in a careless manner), in addition to count 3 (occupy MV in which weapon located).

Defenceargued that counts 3, 11 and 12 contained common elements and were duplicitous, or potentially so, depending on which convictions areentered. [3] A finding of guilt was made on Count 3, occupying a vehicle in which a weapon is located. This could apply in situations where primary possession was with another party, and the offence could be committed with onlyknowledge and personal presence in the motor vehicle. The factual situation with respect to weapons is reviewed in the originaljudgment, which supported the finding of guilt on Count 3. Therefore, counts 11 and 12 must be examined for duplicity.

Count 11 theCrown conceded in argument as being duplicitous, which only leaves Count 12 to consider. The Crown also conceded that a finding ofguilt on the additional charge would not be of significance to the sentence to be passed, in its totality. [4] The Defence cited R v Sakebow, 2012 SKQB 81 [Sakebow]. which considered issues in Kienapple v R, [1975] 1SCR 729, (SCC) [Kienapple]. The Crown in Sakebow, supra stayed some charges that were potentially duplicitousrelating to multiple weapons offences.

Kienapple, supra, discussed situations where offences may have substantially the same elements,and that the rule against double jeopardy would prevent conviction for the same offence in substance. In Sakebow, the court did notconsider the principles in detail and stays were entered by the Crown on charges that included, inter alia, both transportation andoccupation charges of a weapon in a vehicle. This is similar to the present case. [5] The Sakebow case is not a clear decision analyzing the elements of these two offences and reflects Crown discretion. The Crown has argued that the two charges may both stand.

One, Count 3, I entered aconviction upon and raised the Kienapple issues with respect to remaining weapons offences. Count 3 encompasses being only anoccupant in a vehicle in which there is a prohibited or unregistered firearm. Count 12 is not as broad an offence, in my opinion, and iscommitted when the vehicle is used to transport such a firearm in a careless manner.

The main aspect of the offence is carelesstransportation, whereas the other offence is broader and designed to cast a net of culpability over anyone in the motor vehicle withknowledge of the firearm, even if the vehicle does not move or ‘transport’ the weapon. Both are offences relating to possession withrespect to an illegal weapon in a vehicle. In my opinion, it is possible that in committing the offence of transportation, Count 12, it wouldnecessarily include the offence of being in occupation of a motor vehicle knowing a weapon was present.

The Crown has conceded thatan additional conviction on Count 12 would not materially affect the sentence imposed. I conclude that as Count 3 is potentially anincluded offence of Count 12, that it would not be proper to convict on both charges. Accordingly Count 12 is dismissed upon theprinciples outlined in Kienapple v R, supra. [6] The facts and circumstances of these offences are set out in the Judgement of September 29, 2016.

No findings were made with respect to the manner in which the Accused acquired property, charges inInformation 38551117: Count 1 (possession of a weapon when prohibited), Count 2 (possession of ammunition when prohibited), Count3 (occupant of vehicle knowing a prohibited weapon present), Count 4 (possession of weapon, bear mace, for a purpose dangerous),Count 6 (possession of weapon, firearm, for a purpose dangerous), Count 7 (possession of ammunition, for a purpose dangerous), Count14 (possession of a wallet, knowing it was unlawfully obtained) and Count 15 (possession of two credit cards and an XBox, knowing itwas unlawfully obtained).

There was also no finding of how the Accused came in possession of cannabis marijuana in Information3851115, on which there was a finding of guilt for possession only. [7] Guilty pleas were entered on Information 90014363, driving while disqualified, which occurred on a different date than the offences contained in Information 38551117. On that last information there were

guilty pleas to Counts 9 (driving while disqualified), Count 13 (refusing to comply with a demand for drug recognition testing) and Count 15, (possession of credit cards, found in the Accused’s wallet). [ 8 ] The various offences fall within particular ‘groups’ which were argued as such for sentencing. They are: a. Driving related offences: operating a vehicle while disqualified on two occasions and refusal of demand for drug recognition testing, as noted above.

The first driving while disqualified charge in time was prosecuted by the Crown for Saskatchewan, and the second driving while disqualified and refusal charges were prosecuted by the Federal Crown, which separate argument from each. The Accused was prohibited from driving by court orders. b. One drug possession charge, as noted above. c.

Firearms, ammunition and the bear mace charge are weapons- related offences, while a specific order of prohibition for same was in effect. [ 9 ] The Accused has an extensive criminal record that includes more than seventy-five convictions from the age of fourteen to the Accused’s present age of thirty-one. There are entries of significance to each of the above groups of offences, and the Accused has served many provincial-length terms of imprisonment. In particular it must be noted that it includes: a. Many charges relating to breach of court orders and conditions; b. Many fraud and property-related offences; c.

Two assault convictions, both as a youth, and one instance of carrying a concealed weapon as an adult; d. Drug related offences, including two instances of possession of a substance for the purpose of trafficking, and for possession of drugs and monetary proceeds of related activity. e. Criminal Code driving offences, including four (4) instances of flight when pursued by police, impaired driving causing bodily harm, one ‘exceed .08’, and one charge of driving while disqualified, for a total of seven entries. [ 10 ] The Provincial Crown spoke first with respect to the incident of driving while disqualified.

A significant and serious accident had occurred with an unregistered motor vehicle that was destroyed and ended up on the front lawn of a house. The Provincial Crown pointed out the number of serious Criminal Code driving convictions, including multiple instances of evading police, as well the continuous and extensive record of convictions generally. The Provincial Crown argued for a 12 month sentence for the instances of driving while disqualified, consecutive to any other sentence, plus a five-year prohibition against driving.

However, the possible application of the totality principle was admitted, depending on what other sentences are imposed. [ 11 ] The Federal Crown also indicated that a substantial separate and consecutive sentence was justified for the instance of driving while disqualified and refusal of drug testing.

The situation in which the Accused was found, that is, passed out behind the wheel of a running motor vehicle, in gear, on an access ramp of the Ring Road in Regina, with only his foot on the brake in his unconscious state to stop the vehicle from going into motion was argued as highly dangerous and egregious, and I must agree with that characterization. The Accused when taken to the police headquarters was abusive and uncooperative in all interaction with police. The Crown argued for a sentence of 18 months consecutive for those offences. The following cases were cited in support of that position.

R v Briltz, 2016 SKCA 2 http://www.canlii.org/en/sk/skca/doc/2016/2016skca2/2016skca2.pdf - Offender with 25 Criminal Code Driving convictions, including dangerous driving, and many violent offences, was sentenced on three evade police charges, one driving while disqualified, and one breath demand refusal, and other charges – sentence calculated at 109 months, reduced on totality principle to five years.

Court of Appeal discussed this principle at length, accepting that the original total was correct, and increased the total sentence to eight years after reviewing the level of culpability and public protection needs with respect to the offender.

R v Clarke , 2013 SKCA 130 http://www.canlii.org/en/sk/skca/doc/2013/2013skca130/2013skca130.pdf - Sentenced on one count of over .08, with risky driving observed, to 14 months with a record of 14 Criminal Code driving convictions, including 9 alcohol-related offences. Court of Appeal increased sentenced to two years, less one day. R v Pawliw , 2006 SKCA 51 http://www.canlii.org/en/sk/skca/doc/2006/2006skca51/2006skca51.pdf - Sentenced on one .08 and one drive while disqualified to 9 months, with 8 previous alcohol-related driving offences. On appeal increased to 18 months.

R v Anaquod , 2005 SKCA 109 http://www.canlii.org/en/sk/skca/doc/2005/2005skca109/2005skca109.pdf - Sentenced on impaired driving and driving while disqualified to a conditional sentence of two years less one day, with four months of electronic monitoring following a sentencing circle. Record was 3 .08 or impaired offences, 4 refusal of breath test, 2 driving while disqualified and 1 dangerous driving for a total of 11 Criminal Code driving offences. Varied to 18 months incarceration.

R v Obal , 2004 SKCA 167 http://www.canlii.org/en/sk/skca/doc/2004/2004skca167/2004skca167.pdf - Sentenced for obstruction, two impaired driving and driving while disqualified to 12 months incarceration. On appeal one impaired driving charge was dismissed, and the sentence reduced to 8 months, notwithstanding serious aggravating factors. [ 12 ] The Defence argued that the Accused had substantially fewer prior driving convictions than the persons sentenced in the above cases, and that is correct, although his driving record is serious and significant.

Further, the Defence filed Court of Appeal for Saskatchewan case summaries that show a wide range of sentences for serial offenders in driving cases. The appropriate sentence for all driving offences will be discussed further below. [ 13 ] The Federal Crown then turned to the firearm weapons-related offences in respect of which the Accused was prohibited from possession due to past convictions.

The Crown conceded that the principles of sentencing would make any sentences imposed concurrent as they all arose in relation to one firearm weapon in one incident, though offences were of differing character and seriousness. The bear mace charge is a lesser offence than the firearm and ammunition offences for which the Crown sought concurrent time also. The Crown relies upon the following cases in support of their position that a sentence of four years is appropriate for the firearms offences, consecutive to other unrelated charges.

R v Nur , 2015 SCC 15 [ Nur ] http://www.canlii.org/en/ca/scc/doc/2015/2015scc15/2015scc15.pdf - Supreme Court considered the constitutionality of minimum sentencing provisions with respect to weapons charges, and appropriate sentencing generally. Loaded prohibited weapons were involved. Court of Appeal struck down mandatory minimums, but upheld sentences. Supreme Court upheld Court of Appeal, and noted inherent danger in certain prohibited weapons. Nur did not engage in threatening behavior, and had no previous weapons convictions.

Nur had spent 20 months in custody and was given two for one credit, so the sentence was taken to be 40 months, (over the three year minimum that was struck down), and two years of probation. - In the related appeal of Charles, an illegal, loaded semi-automatic handgun was involved with the serial number removed. He had a serious and length criminal record, more serious than the Accused in the present case, including a prior robbery conviction using a firearm. A sentence of seven years was imposed.

R v Witchekan , 2016 SKCA (SentDig) 9 [scan of digest attached] - Accused was a passenger in a motor vehicle with a loaded rifle. All persons in the vehicle were gang members. Sentence of 18 months on weapons and other offences.

R v Foster , 2015 SKCA 114 http://www.canlii.org/en/sk/skca/doc/2015/2015skca114/2015skca114.pdf - Home invasion case using an imitation firearm and egregious threats of violence to homeowner who did not know the firearm was an imitation. The Accused had been on conditions in the community for three years and had many positive personal characteristics, and the victim had been guilty of serious misconduct against the Accused, though such cannot justify what occurred.. A sentence of two years less one day and probation was made at first instance.

Total sentence was increased to three years, with the home invasion circumstances requiring particular denunciation. R v Gamble , 2006 SKCA 46 http://www.canlii.org/en/sk/skca/doc/2006/2006skca46/2006skca46.pdf - G. charged with a multiplicity weapons offences arising from one incident, including being in possession of a loaded pistol for a purpose dangerous to the public peace and carrying a concealed weapon. The totality of the sentence was 18 months, in part because the weapon had not been intended to be used or threatened as part of a criminal offence.

The Accused had a very extensive record that included violence, driving and property offences. On appeal, the Court did not accept the conclusion that the Accused did not represent a threat to public safety. A total sentence of three years was imposed, less various credits. R v Charles , 2014 SKPC 189 (under appeal) http://www.canlii.org/en/sk/skpc/doc/2014/2014skpc189/2014skpc189.pdf R v Phinn , 2015 NSCA 27 http://www.canlii.org/en/ns/nsca/doc/2015/2015nsca27/2015nsca27.pdf - Charges of being an occupant in a motor vehicle with a firearm, carrying a concealed firearm, sentenced to 72 months imprisonment.

Firearm was not used or threatened. The Accused had a very serious record which included two firearms offences considered by the Court previously and extensively referred to. Particular community concerns and needs were referred to, as well as more general sentencing considerations. A sentence of three years was considered fit in the circumstances of this case, notwithstanding prior serious weapons offences.

R v Kennedy , 2016 MBCA 5 http://www.canlii.org/en/mb/mbca/doc/2016/2016mbca5/2016mbca5.pdf - The Accused’s residence was searched and multiple firearms were found, including some unusual and collectable firearms. There was also a collection of non-firearm weapons. The Crown characterized this collection as an ‘arsenal’ which was not neatly or safely stored. The Accused lived in a trailer. There was a considerable amount of ammunition, and some of the weapons were prohibited and all were unregistered.

Numerous firearms charges were laid, including breach of conditions of prior release and one count of carrying a concealed weapon. The Accused had an old, unrelated criminal record, and was of mature age. An 18 month conditional sentence was imposed initially, with other orders. The Crown wanted five years. Considerable discussion occurred on questions of duplicity and dismissal of one charge, and the first sentencing judge’s deeming of some of the antique firearms not to be firearms. The trial judge minimized the risk to the community.

The appeal court considered the Nur case, supra at length, and also the considerations for an older offender with little or no record. The Court also comprehensively reviewed firearm possession cases following Nur , supra , as well as the number of weapons and the insecure storage.

A sentence of three years was imposed due to the public danger and risk presented by improperly stored, prohibited and restricted weapons, notwithstanding positive aspects of the Accused person. [ 14 ] The Federal Crown conceded that any sentence on Information 38551117 charges, Count 4 which related to the bear mace should be concurrent to the firearm offences sentence. Similarly, the Crown was of the opinion that Counts 14 and 15, the credit card and wallet property possession charges, and the count in Information 38551115, possession of cannabis, could also be concurrent.

Considering the Federal Crown position in total, it is for a period of incarceration of five years and six months. The Provincial Crown argues for a sentence of one year added to that. With the Federal and Provincial positions combined, the sentence argued for would be six years and six months. [ 15 ] When making these arguments, it was pointed out that few mitigating circumstances exist with respect to the Accused. There were some guilty pleas, but the most significant drug and weapons charges were convictions following trial where the Accused gave evidence that was not accepted.

In giving evidence, the Accused outlined extensive driving and use of alcohol and other substances which he was under the influence of when found in the vehicle. The ammunition for the firearm was in close proximity to it, but it must be noted that the weapon was not loaded, and was not utilized in any manner. The possession of cannabis charge is for possession only, and the purpose of trafficking was not proven.

The existence of a modified firearm loose in the front of a vehicle that was driven by the Accused for a considerable period of time while he was under the influence of substances is risky and dangerous as there would have been potential for others to come into or acquire this firearm. The precise facts

cannot be known, but these are risks that are apparent. [16] However, while the Federal Crown does not concede the applicability of the totality principle to reduce that period, it recognizes existence of the principle, and the applicability of the following cases: R v Bear, 2016 SKCA 140 http://www.canlii.org/en/sk/skca/doc/2016/2016skca140/2016skca140.pdf - Case involved multiple possession for the purpose of trafficking charges for a large and diverse quantity of substances, cash anddrug paraphernalia. The Accused had an extensive record including similar offences.

The first sentence of three years and six monthswas considered appropriate, but the trial judges consideration of consecutive and concurrent sentencing and totality was not adequate. Asentence of seven years was calculated as appropriate with the following comment on the concept of ‘totality’, Ottenbreit, J. [30] The purpose of the totality principle is to ensure that the cumulative sentence rendered does not exceed the overall culpability of theoffender (R v M.(C.A.), (SCC), [1996] 1 SCR 500 at 531).

Expressed a different way, the sentence must not be crushingto a particular accused given his or her age, circumstances and prospects. In this case, sentences for counts 2-5 consecutive to count 1would result in a total period of incarceration of seven years. Applying the totality principle, such a sentence would, in my view, beunduly harsh taking into consideration Ms. Bear’s record, future prospects and personal circumstances. Accordingly, a global sentence offour years and six months is appropriate in all the circumstances.

R v McLean, 2016 SKCA 93 http://www.canlii.org/en/sk/skca/doc/2016/2016skca93/2016skca93.pdf - Offences relating to child pornography and four counts of luring of children resulted in a trial court sentence of two years less oneday that was increased to three years with the following commentary, [83] The sentences of two years less a day for each of the making child pornography and luring offences are in themselves not unfit. Inthis case, the making child pornography offence sentences must be concurrent to each other on the basis that although there were fourvictims, Mr.

McLean, for the most part, communicated with some or all of them for the purpose of these offences, on particular daysbetween October 16, 2012, and May 1, 2013. This aspect allows these offences to be considered part of one course of conduct. Theconvictions for luring, on the basis of Miller, justify a sentence of at least two years consecutive. Although, as with the making childpornography charges, the conduct regarding the four victims can be considered to be one course of conduct and the sentences areconcurrent to each other. The sentence of one year for extortion is itself appropriate.

However, a consecutive sentence is justified on thebasis that the substance of the offence is different than the pornography related offences. [84] If consecutive sentences are justified for the four luring offences (concurrent to each other) and each of the sexual interferenceoffence as well as the extortion offence, this together with two years less a day for the making child pornography offence and the oneyear concurrent for possessing child pornography offence would result in Mr. McLean facing a total of six years less a day incarceration.However, such a sentence would be unduly long.

The favourable personal factors appropriately mentioned by the sentencing judge: Mr.McLean’s good prospects for rehabilitation, the absence of a criminal record, his guilty plea and his remorse must be given some effectin the totality analysis. While on the low side, a total sentence of three years incarceration is fit in the circumstances. Such a sentencewould still give proper consideration to the principles of denunciation and deterrence, recognize the gravity of the offences and alsorecognize Mr.

McLean’s good prospects for rehabilitation. [17] The Defence position on sentencing differed from the Crown positions, and provided personal information with respect to Mr. McDougall. He has had difficulties in his life, including the death of a child andthe murder of his father. Counsel advised that he has never had identification, from which it might be inferred that he has not held regularemployment or a stable lifestyle. However, those last observations do not have significance in sentencing. The Defence position was fora sentence in the range of three years.

[18] The Defence pointed out distinguishing factors between the present case and the firearms-related cases cited by the Federal Crown. The firearm here was not utilized, and given the Accused’s highlyintoxicated state, intention to use it was not likely, in the Defence view. It has been noted above that the manner of acquiring the variousunlawful items in the vehicle operated by the Accused was not determined, and for that reason the Defence asserts the least egregiousinterpretation with respect to same.

However, this was still a highly dangerous prohibited weapon, unlawful, per se, and additionally theAccused was personally prohibited with respect to weapons. If the Accused had not been apprehended when he was, this unlawfulweapon would have remained with him, and could have been used by himself or passed to other persons and potentially used in thecommission of other offences.

It is clear, however, there was not any participation in a group or gang activity that was unlawful.However, where this highly dangerous weapon would have ended up is a matter of serious public risk and concern. [19] The Defence filed some Saskatchewan Court of Appeal case summaries on serial offenders in alcohol-related Criminal Code charges which show a wider range of sentencing than the cases cited by the Crownin that regard. The Defence also cited the following cases for consideration. R v Sakebow, 2012 SKQB 81 - Sentence of 18 months for being a passenger in a vehicle with a prohibited weapon.

No other charges were dealt with. R v Filian-Jiminez, 2014 ONCA 601 - A sentence of 18 months imprisonment was upheld even though the appeal court observed that the sentence was at the very lowend of the scale. No criminal record was referred to in this short decision. R v Bear (1994), (SK CA), 120 Sask R 294 (CA) - A somewhat dated case dealing with a serial Criminal Code driving offender with 27 prior convictions. Principles discussed, anda sentence of 3 years and six months imposed.

R v Whitehead (1998), 2006 SKCA 51 , 289 Sask R 1 (CA) - The Bear case, supra, was referred to and a 3 year sentence was imposed for a similar offender. R v Hotomanie, 2001 SKCA 65 R v Crookedneck, 2011 SKCA 89 - The record of the Accused had fewer entries than some cases such as Bear, supra, but included impaired driving causing death,and another instance of causing bodily harm. A sentence of 26 months was not increased, partly due to personal circumstances. Thesentence was stated to be the lowest possible in the range of sentencing.

R v Holt, 2015 BCSC 462, successfully appealed by the Crown in R v Holt, 2015 BCCA 302. - Sentence increased on appeal from 18 to 30 months, which was considered low in the circumstances. - The Defence also filed several other cases in pdf form which cannot be attached in a pdf folio of Saskatchewan Sentencing Digetssummaries. and also R v Witchekan, supra, [20] I am of the opinion that a range of sentencing does exist in the areas in contention in each category of case.

Considering the driving-related offences under the Criminal Code first, there has been some rangeof sentences, although the Court of Appeal has made it clear that lengthy sentences of imprisonment are appropriate for serial offenders.There are two separate incidents of driving while disqualified, both with dangerous circumstances. Mr. McDougall’s record though not asextensive as some of the cases cited has an element of danger in the prior convictions. He has tried to evade police numbers of times, agenerally dangerous practice, and he has been convicted of impaired driving causing bodily harm.

The first instance of driving whiledisqualified being dealt with resulted in a serious accident which would have had potential for serious harm to any person in proximity tothe accident, including a householder on his or her own property. The circumstances of the refusal charge are egregious and discloseserious risk to the public, not merely when Mr. McDougall was passed out, but immediately prior as well when the vehicle would have

been in operation. Notwithstanding these serious and risky circumstances, Mr. McDougall’s criminal driving record is considerably less than some offenders who have been sentenced in the cases cited by the Crown. Perhaps the most serious entry on his record for driving offences is the previous offence of impaired driving causing bodily harm.

The circumstances of his four convictions for flight from police were not given in court, but these offences are, by their nature, potentially very dangerous situations. [ 21 ] I am of the opinion that if the driving-related charges were considered in isolation, a sentence of nine months on the first offence in time due to the seriousness of the circumstances, notwithstanding that there is only one prior instance of driving while disqualified on the record.

A consecutive sentence of fifteen months for the subsequent two offences, driving while disqualified and refusal, would be appropriate because of the high risks in that situation, and consistent with sentencing range in this Province. The appropriate sentence would then be of two years for these offences.

This is a significant increase in sentence over past driving-related offences that is warranted, in my opinion, because of the repeated and careless disregard for the safety of other persons. [ 22 ] With respect to firearms offences, this case involved the possession for some hours of a modified weapon that was made more easy to use as a handgun in confined spaces and against persons rather than as its original purpose as a rifle. The Accused was not in the process of using it, nor were there circumstances that suggested that it might be used at the time in question.

That is a distinguishing factor from most other weapons cases where the circumstances showed unlawful activity that was likely. Although Mr. McDougall’s record shows a high disregard for the rights of others, it does not, except for two early offences as a youth, show intentional violence against persons, or any other weapon-related offence. However, risks with weapons increase with careless and casual attitude. I do conclude, however, that the Crown position of four years for this set of offences is excessive, and the cases where sentences in that range have been imposed are distinguishable.

I would impose a sentence of three years on the Count 6, possession of a weapon for a purpose dangerous, with sentences on the other weapons-related offences (other than Count 4 with respect to bear mace), of two years concurrent on all of the firearm and ammunition offences. A sentence of six months concurrent will apply to the bear mace possession charge.

On the property and drug related charges listed above, sentences of six months concurrent are imposed. [ 23 ] The total sentence is therefore five years, less time in pre-trial and pre- sentence custody, to be credited at 1.5 days for each actual day in custody. The question of whether totality would mandate a decrease in this sentence must also be considered. Applying the principles set out by the Court of Appeal in the cases cited above, I am of the opinion that little reduction is appropriate. A serious and lengthy sentence is warranted for the deterrence of the Accused and the protection of the public.

The Accused has been a continuous offender since the time he could be charged as a youth with increasingly serious offending. The two main categories of offence here, the driving offences, and the firearm offences also have the following aggravating characteristics: a. They were committed in defiance of court orders directly pertinent to the offences which were made for public protection; and b. They involved serious and significant risk to the public. c.

These offences are separate and distinct categories of offending and consecutive sentences are appropriate. [ 24 ] For these reasons, the imposition of a substantial term is warranted, but not so great as exceed the culpability of the Accused in these matters, in accordance with the principles and practices in the cases cited above. I would therefore reduce the total sentence by six months only, to four years and six months. This would be effected by decreasing the sentence for Count 6, possession of a weapon for a purpose dangerous from three years to two years and six months.

Accordingly, the total sentence is for a period of four years and six months. For any further reduction of sentence, the Accused may look to early release on parole for recognition of progress in dealing with personal issues. He will also have enhanced credit for time in custody at the rate of 1.5 days credit for 1.0 day in pre-trial custody. [ 25 ] The victim surcharges that would apply will be payable forthwith, and time in default of payment will be served concurrently. [ 26 ] There will be a lifetime order prohibiting possession of firearms, ammunition and explosive substances.

[ 27 ] If a DNA order is sought, I would authorize collection of same forthwith. [ 28 ] The Accused will be in custody for some time, and any order of prohibition against driving will only take effect upon his release. Many administrative steps apply to reinstatement of disqualified drivers. It is nonetheless desirable that disqualified persons obtain lawful driving privileges at some point. Given that Mr.

McDougall will have many requirements to meet to obtain driving privileges, I am of the opinion that a three-year prohibition following release would protect the public and also permit the Accused, if he so wishes to these steps to obtain a license, to do so in a foreseeable period of time. Dated at the City of Regina, in the Province of Saskatchewan this 16 th day of December, 2016. ___________________________ B. Henning, J