Her Majesty the Queen - v. -, 2013 SKPC 66

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 066 Date: April 11, 2013 Information: 24350908, 24350929, 24399330, 24472810, 24472630 , 24399118 Location: Sandy Bay _____________________________________________________________________________ Between: Her Majesty the Queen - and - April Rosemarie Custer Appearing: F. Atkinson For the Crown M. Scott For the Accused JUDGMENT R. J.

LANE , J [ 1 ] April Rosemarie Custer is before the Court today to be sentenced on the following charges, as a result of guilty pleas entered before me on December 18, 2012, in Prince Albert, Saskatchewan: 1) Information 24350908 - Count 1 - assault with a weapon on Edward Russell McCallum, contrary to s. 267 (

a) of the Criminal Code of Canada. This incident occurred June 2, 2011.

2) Information 24350929 - breach of officer’s undertaking by consumption of alcohol, contrary to s. 145(5.1) of the Criminal Code of Canada. This incident occurred June 12, 2011. 3) Information 24399330 - Count 1 - s. 733.1 breach of adult probation order, by failing to report to a probation officer. This occurred between late September and early October, 2011. Count 2 - s. 733.1 breach adult probation order by failing to take assessment/counselling or treatment for drug/alcohol abuse.

This occurred in approximately July of 2011. 4) Information 24472810 - Count 1 - mischief by cutting the truck tires belonging to Robin Charles, in a value not exceeding five thousand dollars, contrary to s. 430(4). This occurred December 13, 2011. 5) Information 24472630 - fail to attend Court contrary to s. 145(2) (

b) of the Criminal Code of Canada. This happened June 5, 2012. 6) Information 24399118 - Count 1 - assault Cst. Keith Veldman and Cpl. Dallas Fee, Royal Canadian Mounted Police, engaged in the execution of their duty, contrary to s. 270(2) of the Criminal Code of Canada. This occurred September 30, 2012. [ 2 ] At the date the pleas were entered, Crown and defence made a joint submission of one year probation on all of the charges, with the exception of the charge of assaulting a police officer on Information 24399118 and assault with a weapon on Information 24350908.

On those two charges, the joint submission was 18 days time served concurrent to one another. The concern the Court has in this case is not the one year probation suggested on the breaches, the mischief and the fail to appear, but rather the 18 days time served suggested on the assault with a weapon and the assault police officer. [ 3 ] The charge of assault with a weapon on Information 24350908 involved Ms. Custer apparently taking a crutch from her boyfriend, Edward McCallum. Mr. McCallum had recently been injured in a fight, resulting in the need for him to use crutches in order to walk. Ms.

Custer, upon taking possession of the crutch, beat Mr. McCallum with it while he lay on the ground. Apparently the beating was sufficiently severe that he had “crutch marks” on his face and body. I’m not certain what crutch marks would look like, I suppose however it would depend on what part of the crutch made contact with him. Whether it would be the sponge part that ordinarily is located under the person’s arms while walking or the hard rubber

part located on the other end. [ 4 ] The facts underlying the charge of assaulting a police officer on Information 24399118 are as follows. On September 30, 2012, Pelican Narrows RCMP were dispatched to a complaint of a disturbance. It turns out that the subject of their arrest was none other than Edward McCallum, the same person who was on the receiving end of a beating with a crutch by April Rosemarie Custer on Information 24350908. While the police were attempting to arrest Mr.

McCallum, April Rosemarie Custer exited the home she was in and began yelling and swearing at the RCMP, presumably because she did not want them to arrest Mr. McCallum. When her swearing and yelling did not have the desired effect on the RCMP she spit on both Cst. Veldman and Cpl. Fee. Cst. Veldman indicated the spit hit his cheek and did not enter any open wounds or his mouth. With RCMP protocol suggesting he seek medical treatment, he indicated that the police officers at that time were so busy that he simply did not have time to go and take the medical treatment.

My understanding is that the protocol is in place in order to minimize or control as much as possible the transmission of any communicable diseases from people that either spit or spill blood on RCMP officers. The fact that none of Ms. Custer’s mucous entered Cst. Veldman’s mouth or any open wounds gives me little consolation except not having to visualize what that would look like. I am aware of the decision of the Saskatchewan Court of Appeal in R. v. Robin C. E. Charlette . [1] In that case, the learned trial judge had to sentence a woman who spit in the face of a police officer.

Her sentence was nine days time served, followed by six months probation on the assault a police officer, plus a number of breaches. The Saskatchewan Court of Appeal held that even with a very limited criminal record, the fit sentence for spitting in a police officer’s face was 60 days jail, followed by six months probation. There were aggravating factors in that case, in that the accused really never did accept responsibility for what she’d done, nor did she show any remorse.

In fact, she even made a veiled threat that the police officer should get tested, presumably implying that she might have a communicable disease. [ 5 ] I am also aware that the sentences for assaulting a police officer by spitting vary significantly across Canada. [ 6 ] For example, on the one hand we have the decision of R. v. Tracy Ida Ratt [2] out of La Ronge, Saskatchewan, where the

sentencing judge imposed a sentence of five days time served, followed by six months probation. Then, on the other end of the spectrum is R. v. Kevin Dobson , [3] a case presided over by Provincial Court Judge Troy Sweet in Moncton, New Brunswick. Said decision having been rendered on March 14, 2013. The accused in that case had no adult criminal record. Judge Sweet stated “The spitting on a police officer is perhaps one of the most vile acts an offender can do...”.

An aggravating factor in the Dobson case was that the accused told the police officer that he was HIV positive, notwithstanding that that was not true. The officer went through the series of tests and treatments as protocol requires to do whatever was possible to determine what, if any, diseases the officer may have contracted, and to try to minimize their effect.

In that case Judge Sweet sentenced the accused to twelve months in jail. [ 7 ] In the present case, April Custer did not tell the officer she was a carrier of communicable diseases, which, if anything from this disgusting incident can go to her credit, it is this. [ 8 ] I turn to R. v. Andrew Angus McLeod , [4] a 2009 decision of Provincial Court Judge Gerald Morin, arising at Pelican Narrows, Saskatchewan. This too was a case where an accused spit in the face of an RCMP officer. Mr. McLeod had 14 prior criminal convictions on his record. Judge Morin sentenced Mr.

McLeod to six months in jail, followed by six months probation. [ 9 ] The pre-sentence report prepared for Ms. Custer indicates that she has 15 prior Criminal Code convictions starting when she was 15 years of age up to the present. It is not clear to me how many of these would be adult convictions and how many would be youth convictions. [ 10 ] As far as Gladue factors are concerned, [5] Ms. Custer has been affected by alcohol abuse at the hands of her parents in her home, resulting in her and her younger siblings being placed in foster care. Also, her paternal grandparents attended residential schools.

It is clear to me that Ms. Custer has a serious alcohol problem. [ 11 ] In view of R. v. Charlette , [6] of the Saskatchewan Court of Appeal, a further term of incarceration in this case is necessary. The question is, how much? [ 12 ]

Section 718 of the Criminal Code of Canada states as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 13 ] Then, s. 718.02 specifically states the following:

718.02 When a Court imposes a sentence for an offence under subsection 270(1),

section 270.01 or 270.02 or paragraph 423.1(1)(b), the Court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [ 14 ] The charge on Information 24399118 is such an offence under s. 270(1). [ 15 ] Over the past eight years or so, I have seen more and more cases of assaulting a police officer by spitting with no apparent let up. I believe that both specific and general deterrence are critical in this case. The public has to know that this Court will simply not tolerate this vile and disgusting act.

This is general deterrence. [ 16 ] Thus, I am sentencing April Rosemarie Custer to four months in jail on count 1 of Information 24399118, that is the charge of assaulting a police officer. On Information 24350908, that is the assault with a weapon on Edward Russell McCallum, I sentence her to four months concurrent. In both cases, she has 18 days remand credit, and if I give her credit at 1.5 times the 18 days, it comes to approximately a month, and so, she will serve a total on these two charges of three months in jail. [ 17 ] With respect to the other offences, a very brief

summary of the underlying facts would be helpful. [ 18 ] The conviction for mischief on Information 24472810 arose when Ms. Custer was at another individual’s house, was intoxicated, and that individual had her removed from the house. Ms. Custer went outside and slashed, it would appear, three out of four of his tires on his vehicle, that he had paid something like $1,700.00 for, only a week previously.

That person is now out that money and those tires, and April Custer has no ability to pay restitution. [ 19 ] With respect to the breach of undertaking on Information 24350929, it was simply a situation where RCMP received a phone call from a home owner indicating that an unknown woman was passed out in their bathroom. It turned out to be Ms. Custer who was highly intoxicated.

It is noteworthy that this occurred only 10 days after being released on an undertaking on the assault with a weapon charge. [ 20 ] The fail to attend Court is nothing other than she simply didn’t show up for Court. [ 21 ] The two breaches of probation on Information 24399330 were basically her not following through with what was required of her on the probation order.

That is, she failed to continue to report to her probation officer as she was required, and then secondly failed to attend and complete alcohol assessment, counselling and treatment as required. [ 22 ] With respect to these offences, the sentence is nine months probation to commence upon Ms. Custer’s release from custody.

The terms of the probation order are the following: 1) Keep the peace and be of good behaviour; 2) Appear before the Court when required to do so by the Court; 3) Notify the Court or probation officer in advance of any change of name or address and promptly notify the Court or probation officer of any change of employment or occupation; 4) Report to your probation officer at 298 - 1 st Street East, Creighton, Saskatchewan, (306) 688-8810 (toll free 1-866-948-8810) by telephone within two working days of your release from jail and after that as told to do so by your probation officer or designate;

5) Reside in a residence approved of in writing by the probation officer and not change that residence without the prior writtenpermission of the probation officer, or designate, or the Court; 6) You will abide by a curfew of being in your residence between the hours of 11:00 p.m. and 7:00 a.m. every night, except whenyou have the written permission of your probation officer, or designate, or the Court, to be absent, and you will come to the door of yourapproved residence when asked to do so by a police officer/probation officer, or designate who may be checking the residence andcurfew conditions of this order; 7) You will have no contact with Robin Charles, nor will you attend within 30 metres of the home of Robin Charles, or hisworkplace, or any place of education he may be attending; 8) You will not have, possess or consume alcohol or non-prescription drugs, and if they have been prescribed you will take themonly as prescribed; 9) Not attend at any premises where the primary function is the sale or consumption of alcohol; 10) If directed you will take alcohol assessment, counselling and treatment; 11) If directed you will take anger management, personal and family counselling. [23] It had been suggested in the joint submission that because Ms.

Custer had caused, at that time, it was believed to be $1,500.00damage to the tires, that she do 150 hours of community service work. It turns out in the pre-sentence report the damage is more like$1,700.00. However, I decline to order Ms. Custer to do community service work in view of the fact that she is being sentenced tocustody on the two assault charges. [24] In view of the fact that Ms.

Custer will be in custody and is not currently employed, the victim surcharges on all offences arewaived due to financial hardship. [25] Dated at La Ronge in the Province of Saskatchewan, this 11th day of April, A.D. 2013. ___________________________________ R. J. Lane, J [1] R. v. Robin C. E. Charlette, 2010 SKCA 78. [2] R. v. Tracy Ida Ratt, 2012 SKPC 154. [3] R. v. Kevin Dobson (March 14, 2013), Moncton, 31337501 (N.B. P.C.). [4] R. v. Andrew Angus McLeod, 2009 SKPC 85. [5] R. v. Gladue, (SCC), [1999] 1 S.C.R. 688.

[6] R. v. Charlette , supra .