Her Majesty the Queen - v. -, 2020 SKPC 30

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 30 Date: October 14, 2020 Information: 24305351 Location: Fort Qu’Appelle, SK _____________________________________________________________________________ Between: Her Majesty the Queen - and - Wade Morris Lerat Appearing: Leona Andrews For the Crown Greg Wilson For the Accused SENTENCING DECISION J. RYBCHUK, J INTRODUCTION [ 1 ] Wade Morris Lerat pled guilty to aggravated assault contrary to section 268(1) of the Criminal Code and unlawful confinement contrary to section 279(2) of the Criminal Code . Counsel have presented an agreed statement of facts. As such, the only remaining issue is to determine a fit sentence for Mr. Lerat.

CIRCUMSTANCES OF THE OFFENCE [ 2 ] On September 18, 2016 at approximately 10:00 p.m., Wade Lerat drove Tyler Yuzicappi and Kevin Gambler from Kevin Gambler’s home located on the Muscowpetung First Nation, Saskatchewan to the home of Nelson Gambler also located on the Muscowpetung First Nation. Cory Redwood was staying with Nelson Gambler at the time. All the parties were known to each other. Kevin Gambler is the uncle of both Wade Lerat and Cory Redwood.

Kevin Gambler and Nelson Gambler are cousins and Tyler Yuzicappi is married to Kevin Gambler’s niece. [ 3 ] Upon entering the house, Cory Redwood punched Kevin Gambler in the face. The beating continued in the kitchen where Wade Lerat joined in and both men punched and kicked Kevin Gambler in the face and body. When the beating ended, Kevin Gambler was bleeding from the nose and mouth and was told to wash his bloody face. [ 4 ] Kevin Gambler was then taken to the living room where Nelson Gambler “gave him shit” about a land dispute amongst the family.

Nelson Gambler then told Cory Redwood, Tyler Yuzicappi and Wade Lerat to “get him out of there.” [ 5 ] Kevin Gambler, Wade Lerat and Tyler Yuzicappi got into Wade Lerat’s van and left Nelson Gambler’s house. Kevin Gambler thought he was going to be driven home but Wade Lerat instead drove towards the “Gambler Graveyard” on Muscowpetung First Nation, approximately two miles from Nelson Gambler’s house. There is nothing else in that area. [ 6 ] Wade Lerat told Kevin Gambler that they were going to kill him and bury him in the graveyard. At this point, Kevin Gambler feared for his life and escaped the van.

Wade Lerat and Tyler Yuzicappi caught and beat Kevin Gambler before carrying him back to the van. He was put in the front passenger seat where Tyler Yuzicappi held Kevin Gambler in a choke hold from behind so that he could not escape. [ 7 ] Wade Lerat continued to drive towards the graveyard until the van became stuck in mud. Both Wade Lerat and Tyler Yuzicappi got out of the van to try and push it out. Kevin Gambler again tried to escape, but again was caught. [ 8 ] Wade Lerat struck Kevin Gambler with a large metal bar multiple time in the head and body.

Wade Lerat and Kevin Gambler rejoined Tyler Yuzicappi at the van. At this point, Wade Lerat and Tyler Yuzicappi walked away, leaving Kevin Gambler in the back of the van. [ 9 ] Kevin Gambler remained in the back of the van for approximately an hour before walking about two miles to Nathan Rosebluff’s residence to seek help. [ 10 ] On September 19, 2016, Kevin Gambler was admitted to Regina General Hospital with the following injuries: (

a) rhabdomyolysis (muscle breakdown due to the release of serum in the blood) secondary to trauma/assault. Left untreated, rhabdomyolysis can lead to kidney dysfunction, which if left untreated, could result in death; (

b) a 3-4 inch laceration to the left frontal scalp with underlying depressed fracture and concussion; (

c) rib fracture to the 11 th right rib with no hemopneumothorax (air or blood outside of the lung); (

d) a right radial fracture on the right hand; (

e) small laceration behind the right ear and to the knees;

(

f) bruising behind left ear, neck, chest, and upper left arm; and (

g) red abrasions to shoulders and back, including welts on the back. [ 11 ] Kevin Gambler was kept in hospital until his discharge on September 26, 2016. [ 12 ] On September 19, 2016, RCMP seized the Dodge Caravan belonging to Mr. Lerat which was discovered in a rural area on Muscowpetung First Nation. Swab samples of blood taken from the interior of the van were from a male and Kevin Gambler could not be excluded as the source of that blood. [ 13 ] Swab samples were also taken from blood found in the kitchen area of Nelson Gambler’s home.

Kevin Gambler could not be excluded as the source of that blood as well. [ 14 ] A metal tire iron was found with the van, but no DNA suitable for comparison could be obtained from it. [ 15 ] Kevin Gambler did not provide a victim impact statement or attend the sentencing hearing so, there is little information before the Court regarding the psychological impact this incident has had on him. Crown counsel submitted that Kevin Gambler suffers from lasting headaches and migraines. Defence counsel submitted that Kevin Gambler has put this matter behind him. He is over it and does not want Wade Lerat to go to jail.

Kevin Gambler has no concerns for his safety and previously asked for Wade Lerat’s condition of no contact to be lifted, seemingly to allow for rebuilding of their relationship which has not occurred to date. NATURE OF SENTENCING [ 16 ] On August 14, 2020 a modified sentencing hearing was held for Mr. Lerat in Fort Qu’Appelle. This hearing was held at the courthouse in compliance with the Saskatchewan Health Authority public health orders and guidelines regarding the Covid-19 pandemic. [ 17 ] The sentencing hearing included statements from members of the community. They spoke of Mr.

Lerat and how he has conducted himself since he was placed on electronic monitoring. In this aspect, the hearing bore some resemblance to a sentencing circle. However, it had been determined early on, and rightly so, that this was not a suitable case for a sentencing circle. No recommendations were given, meaning that the determination of a fit sentence falls to the discretion of the sentencing judge and the sentencing judge alone. It should also be noted that the current pandemic does not allow for sentencing circles in the traditional sense because of social distancing rules.

And so for the safety of all involved, a typical sentencing hearing, albeit with some slight modifications, took place. Nevertheless, I want to express gratitude to the community, specifically Muscowpetung First Nation for their patience, flexibility and openness during this process. CROWN POSITION ON SENTENCE [ 18 ] The Crown submits that the sentencing range for aggravated assault and unlawful confinement in situations such as these, is seven to eight years and is seeking an incarceration term within that range. The Crown does not seek any restitution and suggests that no credit should be given for the time Mr.

Lerat has spent on the electronic monitoring program. DEFENCE POSITION ON SENTENCE [ 19 ] Defence counsel submits that the appropriate sentence is three to four years given the circumstances of the offences and the offender. In addition, Defence counsel asks this Court to exercise its discretion to give remand credit for the time Mr. Lerat has served on electronic monitoring. While Defence counsel freely acknowledges that any credit awarded is discretionary, they submit that case law suggests up to 1.5X credit can be given for time spent on strict release conditions, such as those placed on Mr. Lerat.

Defence counsel offers that the total time credited could be almost six years and therefore asks the Court to exercise its discretion in awarding that amount, which would result in a sentence of time served. Mr. Lerat’s counsel was also agreeable to probation once the custodial portion of his sentence has been served.

PERSONAL CIRCUMSTANCES OF THE OFFENDER [ 20 ] Mr. Lerat lived the first years of his life on the Muscowpetung First Nation being raised by his mother, Sharon Gambler, and his father, Cliff Lerat. During this time, both parents struggled with alcohol use. Around the age of five or six, the family moved to Fort Qu’Appelle. It was at this time that Mr. Lerat’s sister was born and both his parents made a positive shift in their lives by giving up alcohol. Despite his parents working hard to establish a better life, the family battled with poverty throughout Mr.

Lerat’s childhood. [ 21 ] During his time in Fort Qu’Appelle, Mr. Lerat experienced racism and disconnection, finding that he did not seem to fit in with his Caucasian friends due to his Aboriginal heritage. Sadly, he also did not find acceptance with the Aboriginal community because of who he associated with and the way he talked and acted. [ 22 ] When Mr. Lerat was 15, his family moved back to Muscowpetung First Nation. During this time, he played sports and was involved with horse riding. Around the age of 16, Mr. Lerat moved away from Muscowpetung.

It was then that he began struggling with drug and alcohol use. [ 23 ] Around the age of 21, Mr. Lerat moved back to the Muscowpetung First Nation and has resided there since. Currently, he is 36 years old and living with his wife and nine children. He works for the Muscowpetung First Nation, assisting the Elders. Before the incident, Mr. Lerat was heavily involved with his community, organizing sports teams and tournaments, including hockey and fastball. After the incident, Mr.

Lerat continued to stay involved with his community, although in a more limited capacity due to his release conditions. [ 24 ] During his childhood, Mr. Lerat was not overly involved with his Aboriginal culture. Although he expressed a desire as youth to be a part of the Aboriginal culture, most of the interaction with cultural events was attending pow wows. Since the incident, Mr. Lerat has chosen to embrace his Aboriginal heritage and has become more involved through practices such as smudging.

He also continues to practice his Christian faith with the help of his Pastor, who is also an Aboriginal Protector. [ 25 ] Alcohol has been an issue for Mr. Lerat. He states that he would use it to help deal with his emotions and pressure. He has had periods of sobriety, including for about 18 months right before the incident. Since being on release, Mr. Lerat has taken treatment at Leading Thunderbird Lodge and with the National Alcohol and Drug Abuse Program worker on Muscowpetung First Nation. He has been sober for the past four years since the incident. CRIMINAL RECORD [ 26 ] Mr.

Lerat has six previous convictions on his criminal record which date back to 2008. The first instance was for uttering threats and a breach of probation for which he received a 12 month suspended sentence. He also incurred a breach of an undertaking, a failure to appear and an over 80 conviction in 2010 which all resulted in fines. However, Mr. Lerat does not have any violent offences on his record, and he has not been incarcerated. GLADUE FACTORS [ 27 ] Mr. Lerat is a member of the Muscowpetung First Nation and descends from the Saulteaux people.

On September 8, 1875 Saulteaux Chief Cheekuk (the worthy one) adhered to Treaty #4 on behalf of what later became known as the Muscowpetung Band. When Chief Cheekuk passed away, Chief Muscowpetung led the tribe until his death in 1915. In 1909, Band members gave into pressure and accepted cash payments offered by an Indian Agent on behalf of the Crown in exchange for almost 47% of the original reserve area. From the late 1800s and throughout the twentieth century, residential schools were established in the region around Muscowpetung First Nation.

These schools were often converted from residential schools to day schools in the latter half of the twentieth century. Many of Mr. Lerat’s relatives attended these schools either as a residential school or as day schools. Mr. Lerat himself attended one of these schools during his primary education. [ 28 ] Given that Mr. Lerat is an Aboriginal offender,

section 718.2 (

e) of the Criminal Code must be taken into consideration in determining a fit sentence for him. The Supreme Court in R v Ipeelee , 2012 SCC 13 , 280 CCC (3d) 265 [ Ipeelee ] summarized the

purpose and approach of

section 718.2(

e) at para. 59: s.718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people inCanadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing (Gladue, at para. 93). Itdoes more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fitsentence for Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to pay particular attention to the circumstances ofAboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). [29] The Saskatchewan Court of Appeal has also addressed Gladue factors, adding to the understanding of how to approachsentencing of Aboriginal offenders. In R v Chanalquay, 2015 SKCA 141, the Court called for a “more demanding” individualizedanalysis including an attempt to understand not only the background of the offender and the offence, but also that of the community andthe victim.

The Court highlighted that the application of R v Gladue, (SCC), [1999] 1 SCR 688, 133 CCC (3d) 385[Gladue] and Ipeelee is not simply a reduction in jail time, but rather a call on sentencing judges to consider restorative justice approacheswhen appropriate. [30] In the same vein, Richards C.J.A in R v Slippery, 2015 SKCA 149 made clear that no causal link between the backgroundfactors and the offence is necessary for Gladue factors to be relevant at sentencing.

Wilkinson J.A. in R v Delorme, 2017 SKCA 3 agreedthat no causal link is required, adding that the offender’s experiences must speak to their level of moral blameworthiness for the offence.Finally, the Court in R v Whitehead, 2016 SKCA 165, 344 CCC (3d) 1 [Whitehead] stated that parity is still a relevant secondarysentencing objective, but must not be emphasized over s. 718.2(

e) as this principle is more fundamentally connected to the individualizednature of sentencing. [31] With all this in mind, I turn Mr. Lerat’s unique circumstances and background. His Gladue factors include: • Both of Mr. Lerat’s parents are from the Muscowpetung First Nation and he spent a number of his formative years there, as wellas some time as a teenager and now as an adult living on Muscowpetung; • A large portion of Mr. Lerat’s family on his father’s side attended residential schools. His father attended residential school andsuffers trauma as a result of what he experienced at residential school; • Mr.

Lerat was exposed to alcohol abuse from his parents up to about the age of six. Alcohol abuse is also very common within theMuscowpetung community; • Mr. Lerat may suffer from Fetal Alcohol Spectrum Disorder (FASD). While not formally diagnosed, his mother did admit toalcohol use during pregnancy; • Although he did not experience it in the home, Mr. Lerat saw the impact of violence, gangs, and drugs during his time in FortQu’Appelle and on the Muscowpetung First Nation; • Mr. Lerat experienced racism and discrimination from both the Aboriginal and non-Aboriginal communities; • Mr.

Lerat had little connection or involvement with his Aboriginal culture before the incident; and • Mr. Lerat now participates in cultural practices such as smudging. [32] As a sentencing judge I must consider to what extent Mr. Lerat’s systemic and background factors come to bear on his moralculpability.

This is no easy task and not one that can be done mechanically as explained by Caldwell, J.A. in Whitehead at para. 61: there is no table or chart of systemic and background factors where each factor equates to a corresponding pre-determined reduction inthe sentence...The search is a difficult one and the quantification of its results in terms of a fit sentence is all the more so. But it must bedone, nonetheless. [33] Defence counsel submitted that Mr. Lerat suspects he may have FASD although he has never sought a formal diagnosis.

TheSaskatchewan Court of Appeal in R v J.P., 2020 SKCA 52 [J.P.] recently affirmed that any factor that impacts moral blameworthiness,such as FASD, must be accounted for when determining a proportionate sentence. However, Leuer, J.A. in J.P. echoed Richards, J.A. in

R v M.J.H. , 2004 SKCA 171 [ M.J.H. ] that not all cases of FASD or other cognitive impairment will automatically result in a finding of reduced moral culpability.

As stated in M.J.H. at para. 29 , the conclusion that intellectual impairment leads to reduced moral culpability “can only be drawn after due consideration of all the relevant circumstances including the nature and extent of the impairment and the particulars of the offence.” Leuer J.A., at para. 70 of J.P. , also cited R v R.D.F. , 2019 SKCA 112 as endorsing “[t]he need for a connection between the offender’s condition and his or her moral culpability.” [ 34 ] While Mr. Lerat may suffer from FASD, I cannot find the connection required by J.P. in the present case.

There is nothing in the record or evidence that suggested Mr. Lerat was not fully responsible for his actions or that his ability to appreciate or understand his actions was compromised in any way by intellectual or cognitive impairment. As such, Mr. Lerat’s suspicion that he may suffer from this condition has no impact on his moral culpability. [ 35 ] The word “senseless” is often used to describe violent crimes such as what occurred in this case. But to call what happened between Mr. Lerat and Mr. Gambler senseless would be to ignore the historical and systemic factors that Mr.

Lerat was exposed to both in Fort Qu’Appelle and on the Muscowpetung First Nation. Violence, substance abuse, poverty, racism - all of these issues are part of the very fabric of the communities Mr. Lerat grew up in. It is clear that in the context of the events that culminated in this incident, these factors had an impact on Mr. Lerat’s moral culpability. This happened between family members, many of whom likely are affected by the same systemic issues that affect Mr. Lerat.

This is a community where alcohol abuse is the norm and there is a history of intergenerational trauma as a result of residential schools and colonialism. Mr. Lerat admitted that on the night of the incident, he had turned to alcohol to deal with the pressure he was feeling in the family at the time. The exposure to these problems in his home and community had an impact on the choices Mr. Lerat made that night, establishing an undeniable link between Mr. Lerat’s background factors and his moral culpability. [ 36 ] But that is not to say that Mr. Lerat is blameless in his actions.

The gravity of the offences is serious and Mr. Lerat’s moral culpability remains high. He was highly involved and his actions directly led to a night of physical violence and psychological terror for Kevin Gambler. [ 37 ] However, Mr. Lerat shows a willingness and capacity to change, as evidenced from the outpouring of community and family support at the sentencing hearing. Mr. Lerat’s actions while on release demonstrate that there is further opportunity for rehabilitation. He has taken it upon himself to upgrade his education, to become sober, more employable and a shining light within his community.

He has a strong relationship with his spouse and children and is motivated to be a positive presence in their lives. It is this post-offence conduct, adherence to his release conditions and recognition of his unique background factors that requires actualization of the rehabilitation principle and embracing of restorative justice. PRE-SENTENCE RELEASE [ 38 ] Defence counsel argued that the Court should exercise its discretion to award Mr. Lerat the equivalent of up to 1.5X the amount of time he has spent on pre-sentence conditions of release. Should the Court choose to give Mr.

Lerat enhanced credit for this time, it could amount to a sentence of time served. Since pre-sentence release is a significant factor in Defence counsel’s submissions, I will address it separately from the other mitigating factors. [ 39 ] In Saskatchewan, R v Lever , 2014 SKCA 58 [ Lever ] is the leading authority on how sentencing judges are to approach giving credit for time spent on pre-sentence release. Richards, C.J.A, speaking for the Court made clear that giving credit for pre-sentence release is at the discretion of the sentencing judge (at para 9).

Additionally, there are four principles that guide the exercise of this discretion. [ 40 ] First, pre-sentence release is not equivalent to pre-sentence custody and does not automatically reduce an otherwise fit sentence (at para 10). [ 41 ] Second, pre-sentence release does not give “credits” in the manner that pre-sentence custody does; it is simply another mitigating factor a judge considers in crafting the appropriate sentence (at para 11). [ 42 ] Third, the stricter the conditions, the more likely they are to have a mitigating impact.

Although not an exhaustive list, factors that can be considered are: length of time spent on release, stringency of the conditions and the impact those conditions have on the offender’s ability to carry on normal life (at para 12).

[ 43 ] Finally, an otherwise fit sentence can only be reduced by pre-sentence release if the conditions created “meaningful hardship or important limitation on the offender’s liberty” (at para 13). The onus falls on the accused to clearly demonstrate this to the sentencing judge ( R v Irvine , 2008 MBCA 34 at para 29 [ Irvine ]). [ 44 ] The first two principles are further supported by the Court of Appeal in Whitehead .

In response to the accused’s submissions that he should receive credit for his time spent on strict release conditions, Caldwell, J.A. confirmed that remand in prison is not the same thing as release in the community, and that credits are not granted for release time in the same manner as remand time (at para 80). [ 45 ] In considering the release conditions, I have looked to the information provided by Mr. Lerat, his bail supervision officer and submissions by counsel. Mr. Lerat has been on electronic monitoring since June 1, 2017, over three years. During that time, he has not breached his conditions.

This is no small feat and I want to acknowledge Mr. Lerat for this. [ 46 ] Looking to the conditions imposed, many are to be expected. He was required to keep the peace; report to court and his bail supervision officer as required; stay at his approved residence; not be in contact with the victim or co-accused; and not possess any weapons.

Additionally, he was to be alcohol and drug free; complete programming; submit to breath testing when requested; enroll in the electronic monitoring program; and remain under house arrest 24 hours a day. [ 47 ] The most restrictive of the conditions are the 24 hour curfew and electronic monitoring. According to Mr. Lerat, for the first year and a half of his release he abided by this curfew. However, by his own admission this was not necessary. Unfortunately, Mr. Lerat was not aware that he was able to get permission to leave for things such as school and work.

He indicated that the first year on the curfew was difficult for his family. Being unable to work, his wife became the provider and he took care of their children and home. [ 48 ] Once he became aware, Mr. Lerat was able to attend schooling, gained employment on the Reserve and participated in limited community activities such as volunteering with sports for youth. To Mr. Lerat, these conditions have hindered him greatly, limiting his ability to be the contributing member of his community that he aspires to be. [ 49 ] Mr.

Lerat’s bail supervision officer provided context to the Court which paints a different picture of Mr. Lerat’s life on release. I want to note that I found the information she provided in the sentencing hearing to be credible and reliable. Her comments reflected only her own experiences with Mr. Lerat as his bail supervision officer. She did not provide any opinion or recommendations. As such, I find the bail supervision officer’s comments to be useful in understanding the whole of Mr. Lerat’s time on release. [ 50 ] According to the bail supervision officer, Mr.

Lerat has not been confined while on release but instead has been given considerable freedom to attend training and work provided that he submits the proper documentation in advance. However, Mr. Lerat has not always been compliant with these reporting requirements resulting in loss of leisure privileges and an increase in the amount of documentation requested by bail supervision officers. [ 51 ] Taking the submissions of both Mr. Lerat and his bail supervision officer into account, I now turn to the principles enunciated in Lever .

The Court of Appeal is clear that pre-sentence release cannot be approached in the same way as pre-sentence custody. To quote the Manitoba Court of Appeal in Irvine at para. 31 , “[b]ail is not jail”. As such, I have considered the lengthy period of time he spent on electronic monitoring as another mitigating factor in determining a fit sentence and not as a mathematical formula that produces a numerical reduction in sentence length. [ 52 ] To determine how mitigating the time on release is, I turn my attention to how harsh and restrictive the conditions were. Did these conditions cause meaningful hardship on Mr.

Lerat’s liberty? The Supreme Court in R v Zora , 2020 SCC 14 , 388 CCC (3d) 1 at para 20 , recognized that “most bail conditions restrict the liberty of persons who are presumed innocent.” Mr. Lerat was on house arrest and electronic monitoring 24 hours a day for over three years and so his liberty was restricted to some extent. However, under the Lever analysis, it must create an “important limitation” on Mr.

Lerat’s liberty. [ 53 ] Although there were many instances where Defence counsel referred to the strictness of the conditions and their significant impact, there was little detail provided upon which I can draw that same conclusion. Mr. Lerat was given considerable leeway to come and go provided he gave appropriate notice to his bail supervision officer. He was able to attend schooling and training and eventually, was able to work full-time. Even though he was limited, Mr. Lerat was still permitted to be involved in his community.

[ 54 ] While I recognize that in the beginning his release was more limiting and he was required to change his lifestyle and role within the family unit, Mr. Lerat was able to spend that time with his wife and family. Following that initial year, Mr. Lerat was again able to gain permission and report his comings and goings. There is no doubt it was inconvenient, but that is the reality of being on release. [ 55 ] Based on the submissions, I cannot conclude that these conditions were so restrictive that they can be seen as akin to custody.

However, the length of time with no breach is noteworthy and must be taken into account. Therefore, while the time spent on pre- sentence release will have a mitigating impact, it does not rise to the level that would move an otherwise fit sentence outside of the range. AGGRAVATING AND MITIGATING FACTORS [ 56 ] The mitigating circumstances include: • Mr.

Lerat’s limited criminal record, particularly that this is his first violent offence and his first offence for which he will receive incarceration; • He has shown remorse and taken responsibility, albeit mostly for the impact his actions have had on his community and not specifically on the victim; • Mr. Lerat pled guilty. The plea is mitigating but that mitigating impact is lessened by virtue of the plea coming quite far into the proceedings rather than earlier (see R v T.F. , 2019 SKCA 82 at paras 44-46 ); • Mr.

Lerat has many pro-social supports that include his wife, family and community; • He has had no breaches since being released on electronic monitoring over three years ago; • Mr. Lerat has obtained his Grade 12, completed all programming required of him and has completed a number of job training programs; • He has been employed steadily while being on release; and • He has not used drugs or alcohol since the night of the offence. [ 57 ] The aggravating circumstances include: • The significant injuries and their lasting impact on the victim; • Mr.

Lerat used a weapon in the form of a metal bar during the assault; • There were multiple accused against one victim; • The victim was carried away, forcibly confined and left with significant head and internal injuries in a remote area with no immediate means of getting medical assistance; • Mr. Lerat drove the vehicle; and • While no definitive timeline for the incident can be established, it occurred over a period of several hours. ANALYSIS [ 58 ] The issue before me is what is an appropriate sentence for this offender, for these offences, committed in these circumstances.

Section 718 of the Criminal Code sets out the objectives of sentencing which include: denunciation; deterrence; separation of offenders from society where necessary; rehabilitation; reparation to victims and community; and promotion of a sense of responsibility and acknowledgement of the harm done. [ 59 ] Additionally, I must also consider the sentencing objectives in sections 718.1 and 718.2 which include: proportionality; any

mitigating or aggravating factors; parity; and whether any alternatives to prison exist, with particular attention the circumstances ofAboriginal offenders. [60] These offences carry significant gravity and so the primary sentencing objectives must be denunciation, deterrence and theprotection and safety of the public. Aggravated assault is a serious offence, as evidenced by the fact that it carries a maximum term offourteen years imprisonment. Unlawful confinement is also not to be taken lightly, carrying a maximum term of ten years imprisonment.But it is the combination of the two that raises the gravity.

As Caldwell J.A. observed in R v Peyachew, 2016 SKCA 21 at para 33, “thefact that unlawful confinement in this case facilitated the commission of another offence raises its specific gravity.” [61] There are a number of aggravating factors that contribute to Mr. Lerat’s degree of responsibility: the injuries were significant;the victim was transported and left in an isolated area; and the incident took place over several hours. Furthermore, Mr. Lerat, along withMr. Yuzicappi, inflicted the injuries to Kevin Gambler. Mr.

Lerat drove the vehicle used in the offence and wielded the weapon. [62] There are also a number of mitigating factors to consider: Mr. Lerat’s lack of a criminal history; pro-social supports; andguilty plea all reduce his degree of responsibility. Additionally, Mr. Lerat’s Gladue factors are such that they reduce his moralculpability and must be given due weight in determining a fit sentence. [63] Mr. Lerat’s post-offence conduct has demonstrated that he is receptive to rehabilitation and so an appropriate sentence mustfind a way to give life to that principle through restorative justice.

A fit sentence must also promote a sense of responsibility in Mr. Lerat,and I commend him for taking the first steps towards an acceptance of responsibility through his pre-sentence actions. [64] However, Mr. Lerat still carries a fairly high degree of responsibility that must be reflected in his sentence to give effect to theprinciple of proportionality. In R v Lacasse, 2015 SCC 64, 333 CCC (3d) 450 at para 12, Wagner J. remarked that, “[t]he more seriousthe crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.” [65] While Mr.

Lerat has a number of Gladue factors that impact his degree of responsibility, as a practical reality, the moreviolent and serious the offence, the more likely it is that the terms of imprisonment for Aboriginal and non-Aboriginal offenders will becloser to each other or the same, even taking into account their different concepts of sentencing (Gladue at para 79). This is one of thosecases where the principles and objectives expressed in Gladue do not weigh as heavily as other sentencing objectives of condemnationand separation from society (R v Jensen, (2005) (ON CA), 74 OR (3d) 561 (OCA) at para 27).

Given the gravity ofthe offences and Mr. Lerat’s responsibility for them, a penitentiary term of imprisonment is warranted in this case. [66] Given that there are no alternatives to imprisonment, how then can restorative justice be achieved?

The Supreme Courtrecognized in Gladue that when the moral culpability and gravity of the offence is high, sentencing judges are limited their ability tomake use of restorative justice tools. [67] As Caldwell, J.A. stated in Whitehead at paras. 84 and 85: [84] Whenever a sentence of over two years of imprisonment is merited, the sentencing court is limited by law to give effect to s.718.2(

e) through the term of imprisonment imposed on the offender. ... [85] Where the court has assessed the gravity of an offence and the offender’s moral culpability for its commission as requiring asentence in excess of two years of imprisonment, the restorative justice principles that underpin s. 718.2(

e) can only be given effect,when and if appropriate, through the term of imprisonment imposed on the offender.

[ 68 ] While not primary sentencing objectives in this case, rehabilitation and a promotion of a sense of responsibility can still be achieved through imprisonment. Mr. Lerat will have a chance to take advantage of the programming available to him through the penitentiary and as part of his parole. [ 69 ] In determining the appropriate term of incarceration, including consideration of all the aggravating, mitigating and Gladue factors, I must also give effect to the principle of parity.

Counsel have provided a number of cases and out of them, two general categories emerge: (1) domestic violence and (2) gangs and drugs. I am in agreement with counsel that this case does not fall into either category.

Given the unique factual circumstances of the matter, I find the case law of little assistance. [ 70 ] Both Defence and Crown counsel referred to the decisions of R v Moberly , 2020 SKCA 63 [ Moberly ], R v Gamble , 2020 SKQB 16 [ Gamble ] and R v Neapetung , 2017 SKPC 43 [ Neapetung ]. [ 71 ] In Moberly , the Court of Appeal found that a sentence of nine years was fit for aggravated assault and unlawful confinement. Mr. Moberly, along with others, lured the victim to Mr. Moberly’s residence where they confined and tortured him for approximately two days until he was able to escape.

During that time, the victim was zip-tied and duct-taped to a chair. He was assaulted with various weapons and rendered unconscious. A firearm was brandished. Mr. Moberly’s Gladue factors reduced his sentence by one year to eight years. [ 72 ] In Gamble , Danyliuk J. sentenced the accused to seven and a half years for aggravated assault and unlawful confinement. Mr. Gamble and others confined and tortured the victim, branding him with gang initials and cutting off one of his fingers. The incident was gang motivated and Danyliuk, J. found Mr. Gamble to be the ring-leader.

He had a long criminal record and the amount of violence against the victim was egregious. [ 73 ] In Neapetung , Judge Singer sentenced the accused to seven years for aggravated assault and confinement. This was also motivated by gang activity and the victim was attacked in retaliation for an earlier incident between rival gangs. The victim was confined for three days and during that time, was cut, burnt, stabbed and beaten. He was left tied to a poll, given no food and not allowed to use the toilet.

While being transported to another location, the car hit a median and was abandoned by the accused allowing the victim to escape. Judge Singer found that the sentence should be nine to ten years but with all mitigating and Gladue factors, it was reduced to seven. [ 74 ] In terms of parity, these cases are not helpful. They involve much more severe and aggravating factors such as longer and violent criminal records, gang involvement, more serious injuries, and people being bound and tortured for longer periods of time.

In Neapetung , Judge Singer concluded that the range for unlawful confinement and assault was three to twelve years (at para 51). My own review of cases where both assault and confinement occurred together would support this finding. This wide range reflects the gambit of factual scenarios in which these two offences occur together. [ 75 ] The Crown also filed the cases of R v Blair , 2007 MBQB 287 and R v Bitterman , 2005 ABPC 165 . Again, I find these cases do not offer much assistance.

Both cases involved much more severe injuries, and the accused persons were convicted of the more serious offence of kidnapping. [ 76 ] Finally, the Crown submitted the case of R v Vollrath , 2016 ABPC 258 [ Vollrath ] where the accused was sentenced to twelve years for kidnapping and aggravated assault. The incident involved three accused who dressed as police officers and went to the home of the victim. He was told he was under arrest, handcuffed and driven to a remote location. A bag was placed over his head. The victim’s left thumb was cut off and he was left unconscious in the snow.

The reason for the kidnapping had been retribution as the victim was facing criminal charges in relation to a driving incident that resulted in the death of a child. There is some similarity to the case at hand in that both victims were left in a remote location. However, there were a number of aggravating factors in Vollrath that led to such a high sentence and are not present here, mainly the accused had a long record, the incident was planned and that the accused impersonated a police officer, a fact that is substantially aggravating.

Additionally, the accused was sentenced for the more serious offence of kidnapping. [ 77 ] Defence counsel provided a number of cases in support of a sentence on the lower end of the range. However, these cases are significantly different from the matter at hand as well. R v Tshuma , 2018 ABPC 123 , R v Oshnell , 2016 ONSC 1529 , R v Busch , 2009 ABCA 160 and R v Singh , 2011 ONCJ 394 are all domestic situations. In these cases, while the injuries were similar in severity or more serious, the period of confinement was shorter and the aggravating factors of multiple accused and a remote location are missing. Also

submitted is the case of R v Harun , 2011 ONCA 699 . In that case, the accused was given five years incarceration although this was due mostly to his record of violent offences, an aggravating factor that is not present in this case. [ 78 ] While not domestic, R v Walsh , 2017 ABCA 2 is also missing key aggravating factors and was of a much shorter duration. Defence also referenced an unreported decision of the Court of Queen’s Bench in Saskatchewan called Littlechief. The sentence in that case was the product of a joint submission and there is little detail about the case.

Much like the other cases filed, the remote location factor is missing. The accused was also charged with robbery and not aggravated assault. For these reasons, I find both of these cases of little comparative value in determining a fit sentence. [ 79 ] Finally, Defence counsel submits that the case of R v Cullen , 2014 SKQB 371 [ Cullen ] is very similar factually and that the sentence in Cullen of four years is the most appropriate sentence for Mr. Lerat.

In that case, the accused drove the female victim to a commercial business located on the outskirts of the city where he viciously and brutally beat her before leaving her there to be found by an employee of the business the following morning. She suffered severe injuries, even more so than Kevin Gambler. In some ways these cases are similar. The victim was transported to another location, beaten and left with serious injuries and no way to seek medical assistance. However, Cullen was missing the element of unlawful confinement and the victim was left somewhere for someone to find.

That is much different from Kevin Gambler who was left in the middle of nowhere for no one to find. [ 80 ] With case law of little assistance, I turn to parity amongst accused. Mr. Lerat committed these offences along with Mr. Yuzicappi and Mr. Redwood. Mr. Redwood pled guilty to assault causing bodily harm and was sentenced to two years probation. However, Mr. Redwood was not present for any of the incident beyond what occurred at Nelson Gambler’s house. As such, his sentence is of little relevance. Mr.

Yuzicappi pled guilty to kidnapping and aggravated assault and was sentenced by Tochor J. to five years incarceration. He was never granted bail, so he received credit for the equivalent of three years spent on remand, leaving him with a sentence of two years plus two years probation. Mr. Yuzicappi’s involvement is much closer to that of Mr. Lerat. He engaged in the confinement aspect, he committed further physical harm to Kevin Gambler outside of Nelson Gambler’s residence and he left Kevin Gambler in an isolated area. However, Mr.

Yuzicappi also choked Kevin Gambler, a factor which is extremely aggravating, and he was convicted of the more serious offence of kidnapping which carries a maximum sentence of life in prison. [ 81 ] In R v MacLeod , 2018 SKCA 1 , the Court of Appeal stated that in the situation of co-accused, “[a]n emphasis on sentence parity leading to the imposition of the same sentence on all co-accuseds when the individual circumstances and the principles and objectives of sentencing militate in favour of disparate sentences amounts to an error in principle” (at para 35). I know little of Mr.

Yuzicappi’s personal circumstances other than his criminal record which consists of 18 youth convictions for serious offences such as robbery, break and enter and carrying a concealed weapon. I have no idea how the relevant sentencing principles and objectives played out in his sentencing. I am therefore unable to give any significant weight to his sentence in determining an appropriate sentence for Mr. Lerat. CONCLUSION [ 82 ] This is not the typical confinement and assault case. The facts are unique, as is the offender. However, they are not so different as to justify departing from the range.

A careful and merciful balancing of the constellation of relevant sentencing principles and factors in this case favours a custodial disposition in the low end of the range. I find that a fit sentence is four years of imprisonment. [ 83 ] It is my assessment that four years meets the paramount sentencing objectives of denunciation and deterrence, while not losing sight of other relevant objectives of restraint and rehabilitation, after giving adequate and proper attention to Gladue factors. The sentence is proportionate to both Mr. Lerat’s moral culpability and the gravity of the offences.

It will keep public confidence in the justice system and promote justice to the victim. It also takes into account all the mitigating and aggravating factors. [ 84 ] I am encouraged by the steps Mr. Lerat has taken since the incident and while on electronic monitoring. He has bettered himself and become a positive influence on his family and community, and it is those actions that demonstrate that the principles of restorative justice can still be actualized through a lesser term of term of incarceration. Finally, this sentence addresses parity with Mr.

Yuzicappi while still giving effect to s. 718.2(e). [ 85 ] Mr. Lerat, please stand. I pass the following sentence: • On both counts for which you have pled guilty, I sentence you to serve a total of four years (1,460 days) incarceration in a federal penitentiary as follows:

Count 1: Aggravated assault, s. 268(1) , four years Count 2: Unlawful confinement, s. 279(2) , four years concurrent to count 1 • You served a total of 14 days on remand which at a multiple of 1.5X your actual remand time equals 21 days. This will be deducted from your global sentence, leaving you with 1,439 days left to serve, which will begin immediately. • I also make the mandatory DNA order pursuant to s. 487.051 of the Criminal Code and the mandatory ten year firearm prohibition pursuant to s. 109 of the Criminal Code . ____________________ J. Rybchuk, J