His Majesty the King - v. -, 2023 SKPC 38

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 38 Date: May 24, 2023 Informations: 90465335 and 90465338 Location: Prince Albert _____________________________________________________________________________ Between: His Majesty the King - and - Joshua David Naytowhow Appearing: Mr. Jeff Summach For the Crown Mr. Dale N. Blenner-Hassett For the Offender SENTENCING DECISION S.D. SCHIEFNER, J INTRODUCTION [ 1 ] As a result of an incident that occurred on September 23, 2022, Joshua Naytowhow was charged by indictment with using an imitation firearm in robbing Dwight Daniels of a 2010 Chevrolet Silverado.

This charge was set forth on Information 90465335 and a trial was conducted on March 7, 2023. At the conclusion of the trial, I found Mr. Naytowhow guilty as charged. On March 15, 2023, Mr. Naytowhow appeared before me again (with counsel). When he did so, he pled guilty to two additional charges set forth on Information 90465338. These charges were as follows: On or between October 17, 2022 and October 18, 2022, he did:

Count #7: operating a motor vehicle while being pursued by a peace officer and failing to stop contrary to s. 320.17 of the Criminal Code . Count #8: resisting a peace officer in the lawful execution of his duties by running away contrary to s. 129 (

a) of the Criminal Code . [ 2 ] On April 20, 2023, I received a pre-sentence report, and a copy of Mr. Naytowhow's criminal record. I also heard lengthy sentencing submission from experienced counsel. The issue I must now decide is the appropriate sentence to impose. [ 3 ] For the reasons that following, I have determined that Mr. Naytowhow shall be sentenced to a total global sentence of 5 ½ years, which sentence shall be allocated as follows: Information 90465335 (1) - robbery: 4 ½ years Information 90465338 (7) – evading police: 1 year consecutive to 90465335 Information 90465338 (8) – resisting arrest: 6 months concurrent to count

(7) SUMMARY OF THE FACTS The Facts in relation to Information 90465335 (as found at trial) [ 4 ] Mr. Daniels came to Prince Albert on September 22, 2022 in his truck. Mr. Daniels was unable to get back to his home on the Thunderchild Reserve. Instead, Mr. Daniels went to the Sturgeon Lake First Nation (about 50 kms north and west of Prince Albert). At Sturgeon Lake, Mr. Daniels met a friend (Sheldon) who agreed that he could sleep on the couch for the night. Mr. Daniels said that he fell asleep sitting on a couch in the living room at his friend's place.

When he fell asleep, his friend was present. [ 5 ] At about 1:00 or 2:00 a.m., Mr. Daniels was awoken by something hard striking his knee - causing pain. When he woke, Mr. Daniels saw Mr. Naytowhow standing in front of him with what appeared to be a shotgun in his hand. Mr. Daniels testified, and I accepted his evidence, that he immediately recognized his assailant as Joshua Naytowhow. Mr. Daniels recognized Mr. Naytowhow because they grew up together in the same community - Sturgeon Lake. Mr. Daniels said Mr.

Naytowhow appeared to be holding a shotgun - a large barrel firearm with a pump action - silver barrel and brown stock. While Mr. Daniels believed this object was a shotgun, no firearm was located, and the Crown was unable to establish that the object Mr. Naytowhow possessed was a shotgun. Thus, when I use the term “shotgun” in these reasons, I mean an object that bore a striking resemblance to a shotgun and something that Mr. Daniels believed was a shotgun. [ 6 ] Neither Sheldon nor anyone else was present in the house at the time. Mr. Naytowhow said to Mr. Daniels, "Where are your keys?" Mr.

Daniels understood that Mr. Naytowhow wanted the keys so he could take his truck which was parked outside. Mr. Daniels told him to "f off". In response, Mr. Naytowhow struck Mr. Daniels on the other knee with the butt of the shotgun. Mr. Naytowhow then pointed the barrel of the shotgun at Mr. Naytowhow. In response, Mr. Daniels threw him the keys to his truck. Mr. Daniels did so because: 1. Mr. Naytowhow was pointing what appeared to be a shotgun at him; 2. Mr. Daniels was alone; and Mr. Daniels believed that Mr. Naytowhow knew he had keys for the truck outside. [ 7 ] Mr.

Naytowhow took the keys and immediately left the house. Mr. Daniels could hear voices outside. When he looked out the window, he saw two women in a Jeep. Mr. Daniels also saw his truck drive away. Subsequent Events : [ 8 ] Because he had lost his vehicle, Mr. Daniels’ stay at his friend's place on Sturgeon Lake lasted longer than originally expected. A few days later, Mr. Daniels saw his truck at the Sturgeon Lake store. Mr. Daniels said that, as he was walking toward his truck, Mr. Naytowhow came out of the store and got in the truck. Mr. Daniels said to Mr. Naytowhow, "Give me my keys back"? In response, Mr.

Naytowhow again pointed a firearm at Mr. Daniels and then drove away with Mr. Daniel's truck. Impact of the Incident on Mr. Daniels : [ 9 ] Mr. Daniels said that he no longer feels "safe" at Sturgeon Lake because of the incident. Because of the incident, Mr. Daniels was stranded at Sturgeon Lake for several days. I infer that this was a traumatic experience for Mr. Daniels. He believed that Mr. Naytowhow had a shotgun and that he was prepared to use that gun if Mr. Daniels did not turn over his keys. Furthermore, the trauma

was repeated a few days later when Mr. Daniels saw his truck at the local store and approached Mr. Naytowhow. Facts in relation to Information 90465338 (based on submissions from the Crown) [ 10 ] On October 17, 2022, the RCMP received a complaint of an armed robbery at Sturgeon Lake First Nation and that a red pick- up truck was involved. At approximately 11:40 p.m., an RCMP officer observed a red pick-up truck on the Sturgeon Lake First Nation near the ball diamond. The officer activated his emergency lights. In response, the truck fled at a high rate of speed.

The officer radioed another officer of the direction the truck was traveling, and that officer deploy a spike belt on the road. While the vehicle struck the spike belt, it kept traveling on the road. Another officer attempted to deploy another spike belt, but the truck turned into a field and the vehicle crashed. There were several occupants in the vehicle, and they all fled as the officers approached. Several were arrested, but Mr. Naytowhow fled the scene on foot. After a lengthy search involving multiple members of the RCMP, a K9 unit located Mr. Naytowhow. He was then arrested without incident. Mr.

Naytowhow admits that he was the driver. THE CROWN’S POSITION ON SENTENCING [ 11 ] The Crown took the position that a total global sentence of 7 years in custody is an appropriate sentence taking into consideration the gravity of the offences, the need to denounce and deter Mr. Naytowhow and others from engaging in the kind of violent and dangerous conduct involved in these incidents, and the need to separate Mr. Naytowhow from society.

The Crown argued that the incident that occurred on September 23, 2022 (Information 90465335) was not only violent, but it was a “home invasion” which is an aggravating factor included in s. 748.1 of the Criminal Code [ Code ]. The Crown's sentencing position on Information 90465338 (evading police and resisting arrest) was a sentence in the range of 6 to 12 months. However, for reasons of "totality", the Crown took the position that these sentences could be served concurrent to the sentence for the home invasion. In

summary, the Crown argued that a total global sentence of 7 years ought to be imposed, together with ancillary orders that include a DNA Order, s. 109 firearm prohibition (for 10 years), and a driving prohibition for 2 years (from date released from custody). Criminal Record [ 12 ] Mr. Naytowhow’s criminal record begins in 2010, when he was a youth (assault with a weapon). Over the subsequent 10 years, Mr.

Naytowhow received 26 convictions, including break and enter (2013), common assault (2018), common assault (2020), and assault with a weapon (2021), break and enter (2021), and unauthorized possession of a firearm (2021). In 2013, Mr. Naytowhow was sentenced to 30 months in custody, followed by a sentence of 6 months in custody in 2020. He was sentenced to 12 months of custody in March of 2021 and 16 months of custody in October of 2021. The author of the pre-sentence report noted that Mr. Naytowhow has been supervised on 6 probation orders and 6 judicial releases. The author noted that Mr.

Naytowhow had a history of “poor reporting habits” and tended to “avoid participation in his case”. Mr. Naytowhow incurred 8 convictions for breach of probation, 10 convictions for breach of release orders, and 4 convictions for failing to attend court. Finally, during his current remand, Mr. Naytowhow has received 6 disciplinary convictions for various charges in the correctional facility, including fighting, disobey a lawful order given by a staff member, and 4 incidents of possessing contraband or attempting to bring contraband into the facility (the most recent of which was April 5, 2023).

DEFENCE’S POSITION ON SENTENCING [ 13 ] Counsel on behalf of Mr. Naytowhow took the position that a global sentence in the range of 4 ½ to 5 years would be more appropriate and that it would fall within the accepted range for this type of offence. Counsel argued that there was little violence involved (two strikes), with the victim having no lasting physical injuries. Counsel also noted that the Crown could not prove that the weapon used was, in fact, a firearm and, thus, the conviction is for use of an "imitation firearm", which entails less risk of bodily harm.

Finally, Counsel noted the Gladue [1] factors that have been operative in Mr. Naytowhow's life, including the fact that his own brother recruited him into the Terror Squad and the gang culture at a time when he was vulnerable to this brother’s influences. Gladue Factors [ 14 ] Mr. Naytowhow’s mother, Virginia (now deceased), was a status member of the Sturgeon Lake First Nation. His father, Raymond (now deceased), was non-indigenous. From birth to about age 5, Mr. Naytowhow lived on Sturgeon Lake First Nation with his mother (Virginia) and other relatives.

Unfortunately, Virginia struggled with alcohol and other substances and lived a high-risk lifestyle because of her addiction. Virginia abandoned her children when Mr. Naytowhow was about 5 years old and she became

homeless. Tragically, she died when Mr. Naytowhow was about 7 years old. By that time, Mr. Naytowhow was living with his father (Raymond) in Prince Albert. Raymond was a good provider but a strict parent. Mr. Naytowhow was well taken care of while he was living with his father. Unfortunately, when Mr. Naytowhow was 15 years old, his father was diagnosed with cancer. By 2011, when Mr. Naytowhow was 18, he moved to Sturgeon Lake First Nation to live with his sister. Raymond lost his struggle with cancer in 2013 when Mr. Naytowhow was 20 years old. [ 15 ] After Mr.

Naytowhow moved to Sturgeon Lake First Nation in 2021, a number of things happened. First, Mr. Naytowhow met and entered into a common-law relationship with Miranda Peters (now deceased). They had a daughter in 2012. Tragically, Miranda committed suicide in October of 2020. Second, Mr. Naytowhow’s brother, Jared, recruited him into the Terror Squad, a prominent gang in northern Saskatchewan. Although he has expressed a desire to stop associating with gang members, Mr. Naytowhow continues to be a member of the Terror Squad. For many years, Mr.

Naytowhow made his living by selling illicit substances for the Terror Squad. PRINCIPLES OF SENTENCING [ 16 ] At its core, the purpose of sentencing is to promote a peaceful and safe society through the imposition of just sanctions. To help courts arrive at a just sanction, a number of principles and objectives are set out in the Criminal Code . For example, s. 718 includes the principles of denunciation, deterrence, and rehabilitation This

section also asks the Courts to promote a sense of responsibility in offenders, including an acknowledgement of harm they have done to society and victims through their actions.

Section 718.2 sets forth a list of additional factors that must be taken into consideration during the sentencing process, including the principles of parity, totality, and restraint. The objective of sentencing is to find a fit and just sanction in light of the gravity of the offence, the blameworthiness of the offender, and the harm caused by the offence. [ 17 ] By its nature, sentencing is a highly individualized process and judges enjoy broad discretion in sentencing.

Whatever weight a judge may accord to the various objectives and principles listed in the Criminal Code , the resulting sentence must be proportionate. See: s. 718.2. Proportionality is essential to a just and fit sentence. To determine a proportionate sentence, the Court must first consider the offender's conduct at the societal level, including the harm done to victims and the community - to ensure that the sentence reflects the gravity of the offence. This is closely tied to denunciation. It promotes justice for victims and ensures the public's confidence in the justice system.

The sentence is then tempered at the individual level - by looking at the circumstances of the offender to ensure that the sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. Doing so, both serves the interests of restraint and ensures justice for the offender. See: R v Ipeelee , 2012 SCC 13 at para 37 , [2012] 1 SCR 433. Preferred Approach When Sentencing for Multiple Offences [ 18 ] The Saskatchewan Court of Appeal set forth the preferred approach when sentencing for multiple offences in R v Smith , 2019 SKCA 100 at paras 149 to 154 , 382 CCC (3d) 455 [ Smith ].

Step 1: The sentencing judge must first determine a fit and just sanction for each individual offence based on the gravity of that offence, the offender's moral culpability in committing that particular offence, and the impact of that offence on the community. Step 2: The sentencing judges must then decide if any or all of the offences will be served concurrently or consecutively to one another.

Step 3: If consecutive sentences are imposed for any of the offences, the sentencing judge must then examine the cumulative sentence under the totality principle to ensure that the aggregate total sentence is not too long, unduly harsh, or would exceed the overall culpability of the offender. Step 4: If an adjustment to the total sentence is necessary, the preferred approach is to direct that individual sentences be served concurrent to each other rather than reducing the length of the individual sentences. See also: R v Taylor , 2010 MBCA 103 , 263 CCC (3d) 307 [ Taylor ].

Consecutive vs Concurrent Sentences [ 19 ] As noted, when an offender is sentenced on more than one offence, the sentencing judge must decide if the sentences will be served consecutively or concurrent to each other. Both the Criminal Code and case law provide direction and guidance in the exercise of this discretion.

Guidance in the Criminal Code [ 20 ] Section 85(4) of the Code directs that consecutive sentences must be imposed for offences involving the use of a firearm or imitation firearm in the commission of certain other offences (criminal negligence causing death, manslaughter, sexual assault, robbery, etc.) or in flight after committing or attempting to commit an indictable offence. In addition, s. 718.3(4) of the Code directs that the sentencing judge shall consider imposing consecutive sentences in a variety of circumstances. For example, clause 718.3(4) (b)(

i) of the Criminal Code directs the sentencing judge must consider imposing consecutive sentences for offences that do not arise out of the same event or series of events. Also, clause 718(4)(b)(ii) directs the sentencing judge to consider imposing consecutive sentences for offences committed while an offender is on bail. Finally, clause 718(4)(b)(iii) directs the sentencing judge to consider imposing consecutive

sentences for offences committed while the accused is fleeing from police. Guidance in the Jurisprudence [21] A review of recent case law would suggest that the most common situation where a sentencing judge will impose consecutivesentences is where the offences are not closely linked together or do not share a common criminal nexus. If the offences are separate anddistinct or if there is a break in a series of criminal transactions, then consecutive sentences are generally imposed. See: Taylor at para11. See also: R v Sand, 2019 SKQB 123 at paras 111 to 115.

Our Court of Appeal has stated there is a presumption that all sentences willbe served consecutive to each other unless there is a valid reason at law to do otherwise. See: R v Chicoine, 2019 SKCA 104 at paras 93-97, 381 CCC (3d) 43.

In R v Agecoutay, 2009 SKCA 100 at para 63, 247 CCC (3d) 75 [Agecoutay], our Court of Appeal identified twosituations where a valid reason might exist not to impose consecutive sentences. [22] The first situation where a valid reason may exist to impose concurrent sentences is where multiple convictions arise from asingle criminal adventure, circumstance, enterprise or continuous criminal transaction. Imposing concurrent sentences for offences thatarise out of the same event or series of events is the corollary of clause 718.3(4)(b)(ii) of the Criminal Code.

Doing so helps to avoid thepotential for double punishment. However, there is an exception to this rule – concurrent sentences may not be appropriate whenmultiple offences arise out of the same circumstances or transaction, but those offences involve separate invasions of the community’sright to peace and order.

For example, the distinct offences of drug trafficking and possession of a weapon (including weapons used infurthering the trafficking enterprise) engage different legally protected interests and thus the sentences may be imposed consecutive toeach other, even if both offences arise out of the same transaction. See: R v Boyd, 2016 ONCA 380 at para 3. See also: R v Bedi, 2015ABCA 361 at paras 11 and 12, 609 AR 74. [23] The second situations identified in Agecoutay where concurrent sentences may be appropriate is under the “totality principle” -to avoid an overall sentence that is unduly long or harsh.

The Totality Principle [24] The totality principle is a means to ensure that consecutive sentences do not result in a global sentence that is unduly long ortoo harsh. In effect, the totality principle is a safeguard against a “piling on” effect where an offender faces multiple charges. In practice,it is an extension of the principle of proportionality. It applies as a last step in the sentencing process (a “last look”) wherein thesentencing judge must consider the cumulative effect of all the individual sentences.

If the aggregate of these sentences would result in atotal sentence that is unduly long, too harsh or would exceed the overall culpability of the offender, then the sentencing judge may adjustthe sentences to arrive at a global sentence that is in aggregate "just and appropriate". See: R v Nagy, 2013 BCCA 419 and R v Bear,2016 SKCA 140. For example, a cumulative sentence may offend the totality principle if its effect is to impose a "crushing sentence" notin keeping with the offender's age, circumstances, and her/her prospects of rehabilitation.

See: R v Louison, 2008 SKCA 69 at para 10,310 Sask R 217. [25] As noted by the Court in Smith at para 152, if an adjustment to the combined sentence is determined to be necessary, thepreferred method is to first adjust one or more of the individual sentences by making them concurrent. If further adjustment is requiredand appropriate, the length of individual sentences may be reduced below what would otherwise have been imposed. However, if anadjustment to the sentence is required, the former approach is more advisable.

Doing so permits individual sentences to retainprecedential value for the purpose of parity and allows for proper appellate review. If a sentence is adjusted based on the totalityprinciple, how that adjustment has been made should be clear on the record. See also: R v Hutchings, 2012 NLCA 2 at para 84, 282CCC (3d) 104. Jurisprudence and Parity: [26] I consider the following cases to be relevant to sentencing Mr.

Naytowhow: • R v Pelly, 2006 SKCA 60, 279 Sask R 252: In this case, the Saskatchewan Court of Appeal repeated and expanded upon its earlierjurisprudence from cases like, R v Seymour (1994), (SK CA), 116 Sask R 234 (CA), that, when the facts of an offenceentail a "home invasion", the duty of the Court is (in addition to the other sentencing principles) to maintain public confidence in theadministration of justice by imposing a penalty of sufficient force to deter the offender and others from committing similar crimes in thefuture.

The Court repeated its earlier comments that crimes of this nature give rise to a public concern as to whether the justice system isadequately protecting the public from violence and lawlessness in society, and whether the justice system is adequately protecting theright to be secure in one's home. The Court expanded upon these concerns by stating at para. 57 of Pelly: It must be clear to all that crimes of this nature strike at the very core of a peaceful and safe society, violate the security of the home, andoften result in lasting physical and psychological injury.

They are terrifying crimes, and it is imperative they be treated with the utmostseriousness in the interest of preserving public safety and upholding public confidence in the administration of justice. So, all should

know that the courts of this province, in step with those of others, will come down hard on violent crimes entailing "home invasions" in order to protect the public from the invasiveness and violence associated with them. Other than articulating the sentencing principles, this case is not particularly helpful in terms of parity because the Court imposed consecutive sentences for two extremely violent home invasions. • R v Payne , 2007 SKCA 28 , 293 Sask R 31 [ Payne ]: In this case, Mr. Payne entered a house occupied by three males, believing that one of the occupants (Zane) had assaulted one of his friends. Mr.

Payne had a machete and Mr. Payne struck two of the occupants with the dull side of the machete when they tried to evict him. Payne then used the machete to break down the door to the room where Zane was hiding and, in so doing, Zane was cut in an attempt to keep the door closed. Mr. Payne gained access to the room, but no further violence occurred. Payne was 21 years old at the time, had an extensive criminal record, but he had good prospects for rehabilitation. The Court noted that robbery was not the motive for the home invasion and the injuries to the victims were minor and did not require medical attention.

The Court of Appeal concluded that the sentence imposed by the sentencing judge (34 months) was demonstrably unfit and the judge had erred in assuming that the bottom of the range for this kind of offence was 2 years. The Court of Appeal increased the sentence to 4 years. • R v Campeau , 2009 SKCA 3 , 320 Sask R 132 [ Campeau ]: In this case, Mr. Campeau and a co-accused, knocked on the front door of a house occupied by two individuals (Wendy and Shawn) in the middle of the night. Shawn opened the door, but upon recognizing Mr. Campeau, tried to close it. Mr. Campeau forced the door open.

Shawn hid in the bathroom. Mr. Campeau and the co-accused unsuccessfully tried to kick the bathroom door open. While they were doing so, Wendy tried to call 911. As she did, Mr. Campeau grabbed her, her cell phone fell and broke. Mr. Campeau returned to kicking the bathroom door. While he was doing this, Wendy successfully called 911 on a different phone. After learning of the call, Mr. Campeau pushed Wendy onto the couch, struck her in the face, pulled her hair (ripping some out), and threatened her. Wendy suffered a fractured nose, multiple bruises, blackened eyes, bloodied face, and psychological trauma. Mr.

Campeau had a prior criminal record that included prior convictions for break and enter and violence. The Court of Appeal upheld the sentence imposed of 4 years (although acknowledging it was on the low end).

In this case, the Court of Appeal stated that each case involving a home invasion must be decided on its own facts having regard to aggravating factors such as: (1) the motive for unlawfully entering the dwelling house; (2) the degree of violence inflicted on the victim(s); (3) the nature of the concomitant offences; and (4) other factors relevant to sentencing. • R v Peyachew , 2016 SKCA 21 , 476 Sask R 44: This case stands for the proposition that, in Saskatchewan, the sentencing range for violent robberies (albeit in a context other than a home invasion – bank robbery) is 4 years to 9 years.

See: para. 28. • R v Morrisseau , 2017 SKQB 76 : In this case, Mr. Morrisseau pled guilty to a number of serious charges, including breaking and entering into a dwelling house to commit robbery (home invasion), using a firearm in the commission of robbery, and leaving the scene of an accident; all from the same day; together with intimidation of a justice system participant. As for the home invasion, the two victims were at home, asleep, when they heard a knock on the door. Mr. Morrisseau drove two co-accused to the home of the victims and waited outside to drive them away.

The assailants were dressed as city workers and fraudulently gained access to the victims’ house (demonstrating premeditation and planning). Once inside the house, the assailants pulled a gun, threatened the victims, and tied them up with duct tape and cord. During the process, both victims were repeatedly threatened. The assailants took the victims’ wallets and obtained the PIN numbers for their bank cards. The victims escaped the house, ran to a neighbour's house, and called 911. While Mr.

Morrisseau's DNA was on the roll of duct tape, the Crown could not prove that he was one of the two assailants that entered the house. After leaving the scene, Mr. Morrisseau drove to a bank. Sometime thereafter, the vehicle Mr. Morrisseau was driving was involved in an accident. He fled the scene. When he drove home a few hours later, police were at his home. A passenger in the vehicle had a firearm, and police found "city worker clothing" in the vehicle. As for the charge of intimidation of a witness, Mr.

Morrisseau made several phone calls to the victims and asked his mother to write notes and deliver those notes to the victims; all to discourage the victims from testifying. The whole experience was traumatizing for the victims. Mr. Morrisseau was 27 years old, had significant Gladue factors, and a criminal record that included 3 prior convictions for robbery (2 as a youth). Mr. Morrisseau's last conviction for robbery was 4 ½ years prior to this incident. He received a sentence of 30 months in custody for his previous robbery. For the index offences, Mr.

Morrisseau was sentenced to 5 years in custody, 1 year for leaving the scene of the accident, and 1 year in custody for threatening a witness. His total global sentence was 7 years in custody. • R v MacLeod , 2018 SKCA 1 : In this case, Mr. MacLeod was one of four individuals involved in a home invasion for the purpose

of robbing the occupants of a dwelling house of drugs and money (a so-called "drug rip"). During the incident, one of the perpetrators was killed. The three remaining perpetrators each pled guilty to a different set of offences based on their respective roles. In his case, Mr. MacLeod had armed himself with a table leg, but he did not directly injure any of the occupants of the dwelling house. While acknowledging that the death of one of the perpetrators was an aggravating factor, the Court of Appeal reduced the sentence imposed by the sentencing judge from 7 years to 5.5 years.

In so doing, the Court noted that the sentencing range for home invasion offences is 4 to 15 years, with the sentences falling in the range of 7 to 10 years. CONCLUSIONS REGARDING SENTENCING [ 27 ] To begin, I am mindful of the gravity of the offences facing Mr. Naytowhow. On September 23, 2022, Mr. Naytowhow invaded an occupied dwelling, assaulted someone with an imitation firearm, and then extorted that person’s keys by assaulting him and pointing what appeared to be a shotgun at him – all for the purpose of stealing a motor vehicle. This was a brazen home invasion and Mr.

Naytowhow’s conduct not only traumatized Mr. Daniel, but also struck a blow to the public’s right to feel safe. Equally serious was Mr. Naytowhow’s dangerous conduct three weeks later in attempting to evade police in a motor vehicle. His conduct was objectively dangerous – dangerous for his passengers, for the officer trying to stop him, and for the people of Sturgeon Lake First Nation. To maintain public confidence in our justice system, denunciation and deterrence must be addressed in sentencing for both of these offences. Sentence with Respect to Information 335 – Robbery with an Imitation Firearm [ 28 ] Mr.

Naytowhow’s actions on September 23, 2022 is properly characterized as a “home invasion”. As such, the factors set forth in Campeau provide helpful guidance in analyzing the gravity of Mr. Naytowhow’s conduct. With respect to his motive for entering this dwelling house, the inescapable conclusion is that Mr. Naytowhow’s singular purpose in entering Sheldon’s house was to steal the truck parked out front in the driveway. Mr. Naytowhow armed himself with a weapon of intimidation and, based on the subsequence events, it is clear that he was prepared to use that weapon to subdue and overcome resistance.

With respect to the degree of violence inflicted on Mr. Daniels, I note that the assault was violent – Mr. Daniels was twice struck with considerable force by a blunt object (the stock of a shotgun). In addition, while there is insufficient evidence to conclude that the object that Mr. Naytowhow used was a firearm, Mr. Daniels clearly believed that it was a fully operational shotgun. While Mr. Daniels did not suffer significant physical harm from the assault, there is evidence of lasting emotional harm. Mr.

Daniels described his loss of trust in the people at Sturgeon Lake First Nation as a direct result of this incident and those feelings were palpable at the time of trial (6 months after the incident). With respect to the nature of the concomitant offence – the unlawful act that was perpetrated by means of the home invasion – in this case, it was the theft of a motor vehicle. As a result of this theft, Mr. Daniels lost his means of mobility, stranding him at the Sturgeon Lake First Nation. [ 29 ] There are other aggravating factors.

For example, it is an aggravating factor that an imitation firearm was used to extort Mr. Daniels’s keys and to steal his truck. I noted that Mr. Daniels did not originally comply. To the contrary, when Mr. Naytowhow asked for his keys, Mr. Daniels told him to “f off”. In response to Mr. Daniels’ noncompliance, Mr. Naytowhow used violence (struck him with the butt of the imitation firearm) and an overt act of intimidation (pointed that imitation firearm at him) to extort Mr. Daniels’ compliance. To make matters worse, Mr.

Naytowhow repeated his act of intimidation by again pointing this same imitation firearm at Mr. Daniels a few days later at the local store. [ 30 ] It is also aggravating that Mr. Naytowhow has a significant criminal record, with 26 convictions in the past 10 years, including break and enter (2013), common assault (2018), common assault (2020), and assault with a weapon (2021), break and enter (2021), and unauthorized possession of a firearm (2021). [ 31 ] There are mitigating factors that I must also take into consideration. For example, Mr.

Naytowhow is treaty member of the Sturgeon Lake First Nation and Gladue factors are present. Mr. Naytowhow was overexposed to addiction issues as a young person, and he has seen the lives of too many loved ones cut short by tragic events. Of significance, I note that Mr. Naytowhow’s own brother recruited him into the gang culture. On the other hand, I am mindful that these same Gladue factors would have been present when Mr.

Naytowhow was sentenced in 2021 and he did not appear to avail himself of the rehabilitation opportunities that were presented to him at that time. [ 32 ] Weighing the aggravating and mitigating factors, I find that a sentence of 4 ½ years in custody is fit and just. This sentence falls within the range identified in MacLeod and is similar to the sentences imposed in Payne and Campeau . This sentence reflects society’s need to denounce and deter home invasions but it has also been tempered by Gladue factors.

Sentencing with Respect to Information 338 – Evading Police and Resisting Arrest [ 33 ] As I have noted, Mr. Naytowhow’s conduct on October 17, 2022 in attempting to evade police in a motor vehicle was objectively dangerous. He put the lives of his passengers at risk, he endangered the officers trying to stop him, and he endangered the

safety of the residents of the Sturgeon Lake First Nation. Twice police officers deployed spike belts in an effort to disable Mr. Naytowhow’s vehicle. He drove through one spike belt, damaged his vehicle but kept driving. He evaded the second spike belt by driving into a field, and then crashing his vehicle. As I have noted, Mr. Naytowhow’s conduct was objectively dangerous. Charges of this nature are all too common. I infer that some drivers have come to believe they can escape apprehension if they drive fast enough or dangerous enough that the police will call off their pursuit.

This kind of behaviour must be denounced and the sentences imposed must be sufficient to deter Mr. Naytowhow or anyone else from engaging in this dangerous conduct. [ 34 ] It is also aggravating that Mr. Naytowhow has a significant prior criminal record. [ 35 ] Weighing the aggravating and mitigating factors, I find that a sentence of 1 year in custody shall be imposed for count (7) of Information 338 – evade police, together with 6 months in custody for count (8) – resisting arrest.

Consecutive vs Concurrent Sentences and Totality Principle [ 36 ] As individual sentences, I would impose the following: Information 90465335 (1) - robbery: 4 ½ years Information 90465338 (7) – evading police: 1 year Information 90465338 (8) – resisting arrest: 6 months [ 37 ] Counts (7) and (8) of Information 90465338 (evading police and resisting arrest) arise out the same criminal transaction and these two sentences ought to be served concurrent to each other. However, the home invasion that occurred on September 22, 2022 is an entirely distinct criminal transaction from what happened on October 17, 2022.

The two offences are unrelated, other than they both occurred at the Sturgeon Lake First Nation. There is no valid reason that the sentences for these two different criminal activities should not be served consecutive to each other, including the principle of totality. A total global sentence of 5 ½ years is neither too long nor too harsh. The combined sentence is well within the range for a home invasion, particularly so for an offender with a significant criminal record, such as Mr. Naytowhow. While this will be the longest sentence Mr.

Naytowhow has served, he has served significant periods of incarceration in the past. Simply put, the totality principle does not mean that there is always a reduction or adjustment to individual sentences merely because an offender is sentenced on multiple offences at the same time. I find that a total combined sentence of 5 ½ years is proportionate, in light of the gravity of the individual offences, Mr. Naytowhow’s serious criminal record, and the need to denounce those who invade people’s homes, steal their property under threat of violence, and drive dangerously in a selfish attempt to evade police.

In my opinion, a total global sentence of 5 ½ years is not disproportionate to Mr. Naytowhow’s moral culpability in committing these offences even after considering the principles set forth in Gladue . The Final Sentence [ 38 ] Having regard to all the above, I sentence Mr. Naytowhow to a total global sentence of 5 ½ years. This sentence shall be allocated as follows: Information 90465335(1) - robbery: 4 ½ years Information 90465338(7) – evading police: 1 year – consecutive to 335. Information 90465338(8) – resisting arrest: 6 months - concurrent to count (7). Total Global Sentence: 5 ½ years. [ 39 ] Mr.

Naytowhow has been on remand for 219 days. He is entitled to enhanced remand credit of 329 days. The sentence imposed for Information 90465335 – the robbery charge – shall be reduced by 329 days, as shall the total global sentence. [ 40 ] Finally, there will be an order pursuant to s. 487.051 of the Criminal Code (attaching to count (1) of Information 90465335) authorizing the taking of a DNA sample from Mr. Naytowhow. There shall also be an order pursuant to s. 109 of the Code (attaching to count (1) of Information 90465335) prohibiting Mr.

Naytowhow from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition and explosive substances for 10 years. Finally, there shall be an order pursuant to s. 320.24 of the Code (attaching to count

(7) of Information 90465338) prohibiting Mr. Naytowhow from driving. The driving prohibition shall be for a period of 2 years and shall commence upon Mr. Naytowhow’s release from custody. Dated this 24 th day of May, 2023, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J