Her Majesty the Queen - v. -, 2017 SKPC 80

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 080 Date: September 7, 2017 Information: 90132119 & 90132108 Location: Carrot River _____________________________________________________________________________ Between: Her Majesty the Queen - and - Arthur Flett Appearing: T. Healey For the Crown L. Richardson For the Accused SENTENCING DECISION I.J. CARDINAL , J Introduction [ 1 ] Mr. Flett has entered guilty pleas to four offences that occurred on the evening of March 8, 2017 at Red Earth First Nation, Saskatchewan.

He was at a residence partying with friends when he assaulted George Moore and Kariya Whitehead. As to Mr. Moore, Mr. Flett said he saw Mr. Moore hitting his girlfriend. Mr. Flett intervened and hit Mr. Moore, kicking him in the head and face,

causing bodily harm, contrary to

section 267 (

b) of the Criminal Code ( Code ). [ 2 ] Ms. Whitehead intervened to stop Mr. Flett, but he threw her down and punched and kicked her in the head thereby, committing an assault upon her, contrary to

section 266 of the Code . [ 3 ] Constable Matthew Riedel of the Royal Canadian Mounted Police, Carrot River Detachment, attended to the call and in the course of arresting and attempting to handcuff Mr. Flett, Constable Riedel was punched in the head by Mr. Flett, knocked unconscious and fell to the floor. Mr. Flett continued to punch him in the head five or six times while he lay unconscious. Mr. Flett fled but was later located and arrested without further incident. He plead guilty to assaulting a peace officer engaged in the execution of his duty contrary to section 270(1)(

a) of the Code and resisting arrest by punching Constable Matthew Riedel, contrary to

section 129 (

a) of the Code . [ 4 ] A Pre-Sentence Report (PSR) was prepared that provides background information about Mr. Flett, which was supplemented by his counsel. I note the PSR indicates he is to be sentenced for an aggravated assault and escaping lawful custody, but that is not the case. He is only to be sentenced for the offences as noted above. Circumstances of the Victims [ 5 ] Surprisingly, there was no information in the PSR concerning the three victims of Mr. Flett’s violent behaviour. The Crown informed the Court that Mr. Moore spent a night in the hospital and had a swollen face and experienced headaches. Ms.

Whitecap suffered minor injuries. No victim impact statements were filed by either of these victims. [ 6 ] A victim impact statement was filed by Constable Riedel. He suffered considerable physical and psychological injuries as a result of the assault upon him by Mr. Flett. Constable Riedel suffered from a major concussion that required three trips by ambulance, including by air ambulance. He was on pain medication and had to consult a specialist. He was away from work for three weeks and had post concussion symptoms such as headaches and fatigue. He now has an increased vulnerability to concussions.

Circumstances of the Accused [ 7 ] Mr. Flett is a 20 year old Aboriginal man, being a member of the Shoal Lake First Nation who resides on the Red Earth First Nation. He was raised since birth by his aunt, but has contact with his biological mother. Mr. Flett does not know who is biological father is as his mother refuses to tell him. He had a good upbringing and attained his Grade 9, but states he had difficulty in school and did not learn to read or write until he was 15. His aunt feels he may have FASD, but is not aware of any assessments having been completed.

His aunt is a good support for him and he has a close bond with her. [ 8 ] He was briefly employed as a security guard for the school, but lost that employment in February 2017 when he failed to return to work after staying in Shoal Lake. He was unemployed at the time of the offences and has few marketable skills. [ 9 ] Mr. Flett’s criminal record is limited to two convictions as a youth. In 2013 he was convicted of break and enter and given nine months of probation.

Notably, his last conviction, in 2014, was for assaulting a peace officer where he was sentenced to six months of probation. [ 10 ] With respect to Gladue factors, he is a status member of a First Nation and has experienced poverty, substance abuse and unemployment. His biological mother was not able to raise him due to her own issues, and he does not know his biological father. Mr. Flett has experienced a lack of employment opportunities on Red Earth but it may be due to the fact that he is not a band member; band members are given priority for job openings. Mr.

Flett stated he has experienced racism when his peers make fun of his name. He and his aunt state he has not been affected by the residential school system.

[ 11 ] He reported he had some pain as a result of fracturing his tail bone three years ago. Currently, he is in good mental health but attempted suicide in 2015 as a result of anger. He attended anger management classes as a teenager. Mr. Flett began drinking at age 15 and, while his drinking patterns vary, in the last 12 months he was drinking five to six times per week, consuming six or seven beer and a couple shots of hard liquor on each occasion. He has experienced black outs from consuming alcohol. His aunt noted he spends money on alcohol rather than buying food or clothing.

He has also been using marijuana since the age of 16 and smokes it once or twice per day, oftenhe uses marijuana first thing in the morning to help with a hangover. [ 12 ] The Saskatchewan Primary Risk Assessment (SPRA) was employed to provide a probability of general criminal recidivism if Mr. Flett’s risk factors are not addressed. His overall risk for general re-offending was assessed as being high. The major risk factors identified for him include: Academic/Vocation, Employment, Peers and Companions, Alcohol Use, Attitude and Self-Management. [ 13 ] Mr.

Flett acknowledged he was drinking at the time of the offences. He said Mr. Moore was being aggressive towards his girlfriend and Mr. Moore took a swing at Mr. Flett when he told him to stop. Mr. Flett became angry and started punching Mr. Moore. He does not recall hitting Ms. Whitehead. In a warned statement to police, he admitted punching Constable Riedel six times. He tends to minimize his actions, saying he did not mean it and that he was scared of going to jail. Position of the Parties [ 14 ] The Crown proceeded by indictment on all matters. There is no minimum punishment mandated for any of these offences.

Both parties agree that a period of incarceration is warranted, and note that a conditional sentence order is not available for the assault causing bodily harm against Mr. Moore, nor is it appropriate in the circumstances of the other offences. However, the parties diverge as to the length of incarceration that ought to be imposed. [ 15 ] The Crown believes that a global sentence of 42 months incarceration is appropriate. Mr. Healey submits the accused should receive 12 months incarceration for each of the assaults upon Mr. Moore and Ms. Whitecap, concurrent to each other.

With respect to the assault of Constable Riedel, a peace officer, and resisting arrest by punching Constable Riedel, the Crown argues a period of incarceration of 30 months consecutive is appropriate. In support of its position, the Crown presented the cases of R v Charlette, (J. J.), 2015 MBCA 32 and R v Kipling , 2014 MBQB 27 . [ 16 ] Defence counsel argues that while the offences are serious, especially concerning the officer, Mr. Flett is a young man who is remorseful for his actions and wants to move forward with his life.

A short period of incarceration can send a strong message of deterrence and denunciation. Ms. Richardson suggests a period of ten months incarceration, being 60 days incarceration for the assault on Mr. Moore, 30 days concurrent for the assault upon Ms. Whitecap, with 210 days consecutive for the assault upon Constable Riedel and 30 days consecutive for resisting arrest. A period of probation of two years to follow incarceration will assist in rehabilitating Mr. Flett to live a more productive life. Ms.

Richardson relies upon the cases of R v Baines , 2013 ABPC 92 and R v Lamar , 2017 BSCS 240. [ 17 ] Both counsel agree the accused should receive credit for time already served while on remand on a 1:1.5 basis, and that such credit will be deducted from the periods of incarceration they suggest. As of the date of sentencing, Mr. Flett has pre-trial credit of 183 days. At enhanced credit, that entitles him to 275 days credit of time already served. Analysis [ 18 ]

Section 718 codifies the fundamental principles and purposes of sentence: 718 . The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community. [19]

Section 718.012 is specifically directed to offences against peace officers: When a court imposes a sentence for an offence under subsection 270(1) . . . the court shall give primary consideration to the objectivesof denunciation and deterrence of the conduct that forms the basis of the offence. [20]

Section 718.2 requires a Court that imposes a sentence to also take into consideration the following principles, which arerelevant in this case: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, . . . . (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, . . . shall be deemed to be aggravating circumstances. [21]

Section 718.2 also provides that: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . . . (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances . . . should be considered for alloffenders, with particular attention to the circumstances of Aboriginal offenders. [22] With respect to the circumstances of Aboriginal offenders such as Mr. Flett, I am also guided by the Supreme Court of Canadadecisions in R v Gladue, (SCC), [1999] 1 SCR 688 and R v Ipeelee, 2012 SCC 13. [23] The Saskatchewan Court of Appeal has also provided guidance through the decisions of R v Chanalquay, 2015 SKCA 141,and, most recently, in R v Delorme, 2017 SKCA 3 where the Court stated:

[59 ] In Chanalquay , Richards C.J.S. reinforced that a proper analysis of the Gladue factors requires a close examination into the nature of the Gladue factors and the specifics of the crime in issue. A sentencing judge should then consider the extent to which the unique circumstances of the Aboriginal offender bear on his or her moral culpability in the specific context of the case at hand.

The search is not for a cause-and-effect relationship, but for features that “ cast light on the degree of the offender ’ s blameworthiness for the specific offence in issue. ” However, a sentencing judge should not simply muster all of the Gladue -type considerations at play and automatically conclude these have had a substantial limiting effect on the offender ’ s culpability. The required analysis is more demanding: Chanalquay at para 52 . [ 24 ] Further,

section 718.3 (4)(b)(iii) mandates that the court that sentences an accused shall consider directing the terms of imprisonment that it imposes at the time for more than one offence be served consecutively, including when one of the offences was committed while the accused was fleeing from a peace officer. [ 25 ] In mitigation, I note that Mr. Flett is a young Aboriginal man who entered guilty pleas to all offences within a short period of time of their occurrence. He cooperated with the preparation of the Pre-Sentence Report. Counsel advised that shortly after the assaults, Mr.

Flett wrote an apology to the officer. I accept that he is remorseful for his actions. He has been affected by family breakdown and has seen alcohol abuse within his family and community. [ 26 ] Aggravating factors include that Mr. Flett assaulted three people within a very short period of time, and all assaults were unprovoked. All three were struck in a vulnerable part of the body, namely the head and face. All suffered injuries, although the two civilians’ injuries were far less severe than those of the police officer. Mr.

Flett continued to punch or kick all three victims, even when they were no longer resisting. The assault upon the peace officer is extremely serious. He suffered significant injuries that took weeks to heal, and he is now at risk for further concussions. Mr. Flett left the officer and the other two victims without offering any assistance and fled the scene. Fortunately, another peace officer attended and obtained medical assistance. All of these assaults were senseless acts of violence that need not have happened. [ 27 ] In addition, Mr.

Flett comes before the Court with a previous conviction for violence against a police officer in 2014 as a youth. When he assaulted Constable Riedel, Mr. Flett did not stop when the officer was unconscious after the first punch, but continued the assault, causing further injury. He could not, or would not stop, himself. [ 28 ] Mr. Flett ’ s moral culpability and blameworthiness are high. He knew what he was doing when committing the assaults but attempted to justify his actions. He does not seem to understand the significant harm he caused to the victims, especially the peace officer.

He does not appear to have any insight into his offending behaviour or the root cause of his anger. [ 29 ] The Gladue factors do little to abate or diminish his moral blameworthiness. There is little to suggest Mr. Flett is motivated to change, or address his substance abuse issues. His lack of control and continued beating of the three victims suggest a deep anger that manifests itself in violence toward others. [ 30 ] It is incumbent upon the Court to stress deterrence and denunciation when the offence involves gratuitous acts of violence.

Except in exceptional circumstances, offenders should expect that they will be sentenced to a period of incarceration for a violent offence involving a peace officer. (See Lamar, supra, at paragraph 30; R v Ponticorvo , 2009 ABCA 117 at para. 19 ) [ 31 ] Although no statistics were put forward as to the number of incidents of assaulting a peace officer or resisting arrest, I have no hesitation in stating that such charges appear too often in our local court points. An attitude that it is “open season” on peace officers must not gain a foothold in our society.

I agree with the court’s comments in Lamar, supra, at paragraph 27: [27] Society expects that peace officers will be given the necessary tools and authority to keep the public safe. In return, it is reasonable for society to expect that peace officers will be given a sense of safety by imposing significant sanctions on those who harm officers in the execution of their duty. [ 32 ] The Court must stress its abhorrence for violent offences committed against peace officers. Mr.

Flett and the public at large must know with certainty that a significant period of incarceration will result for those who assault a peace officer in the execution of his

or her duties. It is a dangerous act and one that puts the officer and protection of the public at risk. [ 33 ] It is clear from a review of the cases submitted that a wide range of sentences has been imposed in various jurisdictions for offences involving violence toward police. However, none of the cases are really on point with the facts before me and, while they offer some guidance, they are of limited value.

Decision [ 34 ] In all the circumstances, and weighing the aggravating and mitigating factors, I find that fit sentences for the offences are as follows: Information 90132119 : Count 1: Assault of Kariya Whitecap, s. 266- 60 days incarceration, time already served Count 2: Assault cause bodily harm against George Moore, s. 267(b) - 215 days, time already served, consecutive to count 1 Information 90132108 : Count 1: Assault of Constable Matthew Riedel, a peace officer, s. 270(1)(a)- 730 days consecutive to Count 2 of Information 90132119 and any other sentence Count 2: Resist arrest by punching Cst.

Riedel - 129(a) - 30 days consecutive to count one of Information 90132108 and any other sentence. Therefore, the total sentence is 1035 days, which, after credit for 275 days remand time, nets a sentence of 760 days, or approximately 25 months going forward. [ 35 ] The assault causing bodily harm conviction carries a mandatory firearm prohibition pursuant to section 109(1) (

a) of the Code . Thus, I prohibit him from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period that begins today and ends not earlier than ten years after his release from imprisonment; and further, I prohibit him from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 36 ] The offence of assault causing bodily harm is also a primary designated offence for the purposes of bodily substances for DNA and therefore pursuant to

section 487.051(1), I make an order in Form 5.03 authorizing the taking of a number of samples for forensic DNA purposes. The authorities shall have 30 days from today to obtain those samples. [ 37 ] I note that a firearm prohibition and DNA order are discretionary for the offence of assaulting a peace officer. Given that such orders are mandatory for the assault causing bodily harm conviction, I decline to order them for the offences under section 270(1) (a). Had they not been mandatory for another offence, I would have exercised my discretion to make such an order.

[ 38 ] I find that a period of probation is not warranted, nor is it available given that Mr. Flett will be serving a further period of incarceration in a penitentiary of 760 days from today. It is my hope that he can obtain programming while he is incarcerated in a federal institution to address his risk factors. _______________________ I.J. Cardinal, J