Her Majesty the Queen - v. -, 2016 SKPC 108

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 108 Date: June 15, 2016 Information: 24541254, 24541232 Location: Pinehouse Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brad Natomagen Appearing: Mr. Rob Mackenzie For the Crown Ms. Crystal Eninew For the Accused SENTENCING DECISION R.J.

LANE , J [ 1 ] Brad Natomagen is charged on Information 24541254 that on or about October 10, 2015 at Pinehouse Lake that he did: 1) commit an assault on Skylar Lariviere contrary to s. 266 of the Criminal Code ; 2) commit an assault on Constable Aaron Simmons, a peace officer of the RCMP engaged in the execution of his duty contrary to s.

270(1)(

a) of the Criminal Code. [2] The Crown proceeded summarily and the accused has pled guilty to both counts. [3] Mr. Natomagen has also pled guilty on Information 245412322 to one count of escape lawful custody contrary to s.145(1)(

a) of the Criminal Code. The Crown proceeded summarily on that Information. The Facts [4] On October 10, 2015 the RCMP in Pinehouse Lake received a complaint that the accused had assaulted Skylar Lariviere atthe Pinehouse school. The accused was apparently intoxicated and he punched this 12 to 13 year old girl in the face. The accused is a26 year old man. [5] The RCMP found the accused passed out and it appeared he needed medical attention so they took him to the clinic inPinehouse Lake. Once finished there, RCMP took the accused to the detachment.

The accused had obviously been injured either in afight or an accident and had sustained significant cuts resulting in lots of blood loss. His shirt was soaked in his own blood. [6] Once at the detachment he kicked his shoes at Constable Aaron Simmons and then threw his blood soaked shirt onConstable Simmons’ face.

Not surprisingly Constable Simmons is concerned about blood borne diseases and the possibility that hecould develop such a disease. [7] The facts of this case are in many ways similar to assaults on police officers by spitting in their face and there is a fair bit ofjurisprudence on that. [8] I must also look at the inexcusable act by the accused of punching a 12 to 13 year old girl in the face with no apparent reasonor motive. In this situation, the accused was walking by the Pinehouse school grounds and states that a group of 12 to 13 year oldchildren attacked him, so he punched Skylar Lariviere in the face.

There is no explanation by the accused as to what caused the initialinteraction between this now 27 year old man and these school children who he claims began to hit him. His explanation is nonsense asfar as I am concerned. This violence must have been traumatizing and frightening to this child. No Victim Impact Statement was filed. [9] With respect to Information 24541232, on August 22, 2015, the accused had been arrested and placed in a police car aboutthe same time as his brother had been arrested.

His brother escaped and when the police were directing their efforts to recapturing hisbrother, the accused took the opportunity to also escape. Review of Case Law on Assault Police Officer by spitting [10] In R v Andrew Angus McLeod, 2009 SKPC 85 2009 SKPC 085, Provincial Court Judge Gerry Morin was tosentence the accused on a charge of assaulting a police officer by spitting in his face. Judge Morin stated at para. 4: Harm caused to victims manifests itself in a myriad of ways. It is not necessarily measurable in the same manner as the size of a cut orthe number of stitches it takes to close a wound.

There are some who would scoff and say that a spit in the eye is but a minor assault. However, there are aspects to a spit in the eye which are not easily measurable. First, it is a clear sign of disrespect because it is sounsanitary and very demeaning to the recipient. Secondly, in the medical world, a spit in the eye can be seen as a means of transferringbodily fluids directly into the body of another human being. These bodily fluids can transfer deadly diseases and there was certainly fearinstilled in the recipient of this disagreeable act.

[ 11 ] As Judge Morin did, I refer to s. 718 of the Criminal Code : The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a) to denounce unlawful conduct;

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

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

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

f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community. [ 12 ]

Section 718.02: When a Court imposes a sentence for an offence under s. 270(1) , s. 270.01 or s. 270.02 or para 423.1(1)(b), the Court should give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [ 13 ] In addition s. 718.1 is also applicable in this case: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further, s. 718.2 provides guidance on custody:

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of aboriginal offenders. [ 14 ] Judge Morin continues to review a number of Saskatchewan Court of Appeal decisions, each of which resulted in custodial dispositions.

It is noteworthy that R v McLeod , supra , pre-dates the Saskatchewan Court of Appeal decision in R v Charlette , 2010 SKCA 78 , it is also noteworthy that Judge Morin’s decision pre-dates the amendment known as s. 718.02 which, as indicated, directs the Court to give primary consideration to denunciation and deterrence. [ 15 ] In R v Charlette , supra , the accused, while being arrested, spit in the face of the arresting officer. The circumstances were aggravated by her suggestion that the officer should go get checked out as she had a contagious disease. The learned trial judge

sentenced her on this assault plus six breaches of undertaking to nine days time served plus six months probation. Her criminal recordwas a minor youth record. Madam Justice G. Jackson of the Court of Appeal of Saskatchewan stated at para 9: Spitting on someone is a particularly distasteful and harmful form of assault. It is almost always accompanied by the veiled or expressthreat of transmitting a communicable disease. The possibility of contracting a disease is real and the fear of developing a disease preyson the victim’s mind for some time to come.

Police officers whose jobs require them to confront individuals in close quarters have fewresources to counter an assault of spitting. [16] The Saskatchewan Court of Appeal went on to overturn the learned Provincial Court judge’s sentence and ordered the accusedto spend 60 days in jail followed by six months probation. [17] Defence counsel in the case at bar filed what I would describe as an excellent Brief of Law, addressing both R v Charlette,supra and R v McLeod, supra.

I am aware that the accused in the case at bar has no criminal record and thus, to a certain extent, thisdistinguishes his personal circumstances from the individuals in those two cases. Defence also referred to R v Custer 2013 SKPC 662013 SKPC 066 and R v Ratt, 2012 SKPC 154. I was involved in both of those cases having prosecuted Ms. Ratt, and havingadjudicated Ms. Custer. The judgment in R v Ratt, supra, seemed to be based primarily on the conclusion of the learned trial judge thatthere was virtually no risk of diseases being transmitted by sputum or by blood.

With all due respect, I do not agree with that analysisand it would seem that the Saskatchewan Court of Appeal in R v Charlette, supra in para 9 as referred to in paragraph 15 of this decisiondoes not either. In my view, s. 718.02 was enacted by the parliament of Canada in part to address assaults on peace officers like these. [18] It is difficult to speculate which scenario is worse from the victim’s point of view. Mucous on his face, or actual blood of theaccused on his face. I think it is fair to conclude that actual blood would carry a greater use of transmission of a disease.

I can’t imaginehow horrified the police officer must have been realizing that a blood soaked shirt had landed on his face. And as this shirt wasdescribed as a blood soaked shirt, it is a reasonable inference that the officer would have to deal with the smell of and possibly the tasteof the blood of the accused. [19] I think it is a fair comment that the public and the courts expect peace officers to somehow be “superhuman” in controllingtheir own personal reactions to the behaviour and the acts of persons they are arresting.

If we expect the police to demonstrate personalrestraint in how they react to someone spitting in their face or throwing a blood soaked shirt in their face, then I feel police have a rightto expect the courts to take these offences very seriously. If the courts do not, at what point do police officers cease restraining theirreactions to such disgusting assaults and decide to react the way most people would and so to speak “extract their own form of justice”. Police officers are not “superhuman”. They are human, just like the rest of us.

I will not let that happen, at least to the extent that I canprevent it. [20] The accused in this case has no criminal record with the only entry being a conditional discharge. [21] I have examined the limited Gladue factors applicable in this case. His counsel described that he lives in relative poverty andsuffering from what appears to be alcoholism, while living in the Metis community of Pinehouse. It is noteworthy that the accused hassome significant job experience which is to his credit.

There is no indication that the accused attended residential school or has beenaffected by racism. [22] In addressing s. 718.2 of the Criminal Code, I must examine alternatives to custody if they are appropriate, and must payparticular attention to other available sanctions other than custody for aboriginal offenders. [23] Judge J. Kalmakoff (as he then was), stated in R v Blind, 2013 SKPC 168 at para 34: A suspended sentence with probation is primarily a rehabilitative sentencing tool: R v Proulx, 2000 SCC 5, [2000] 1 SCR 61 and is notdesigned to punish, or to have denunciatory or general deterrent effects.

A suspended sentence is generally inadequate when thesentence calls for a focus on deterrence and denunciation: R v Rawn, supra; R v Dunn, 2011 NBCA 19; R v Taylor (1997), 1997

9813 (SK CA), 163 Sask R 29 (CA). The essence of general deterrence is punishment: R v Rawn, 2012 ONCA 487, at para 33;R v P.(B.W.), 2006 SCC 27, [2006] 1 SCR 941, and where a sentence is required to focus on deterrence and denunciation, it is importantthat the sentence contain a significant punitive element.

Section 718.02 obligates a sentencing judge to place primary focus on denunciation and deterrence in offences under s 270(1). [24] There was a joint submission in this case and that was for a suspended sentence with probation for a period of 12 monthstogether with a community service component of the Probation Order. I do not believe that the joint submission falls within the range ofsentences for all the above-noted reasons. [25] In the circumstances I feel that I cannot do anything short of sending this accused into custody. To do otherwise would, in myview, ignore specific and general deterrence.

It would specifically cause me to ignore s. 718.02. I cannot conclude that any sanctionother than imprisonment is reasonable in the circumstances even considering the circumstances of this particular offender who isaboriginal. [26] Therefore, the sentence will be: Information 24541254: 60 days in jail concurrent on counts one and two followed by 12 months probation. I will ask counsel to make submissions on the termsof that Probation Order. Information 24541232: $200.00 fine together with a $60.00 victim surcharge.

That will be deemed paid in full by two days time served, concurrent. ____________________________ R.J. Lane, J