Her Majesty the Queen - v. -, 2014 SKPC 122

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 122 Date: June 12, 2014 Information: 33626478 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Keshia Key Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Ms. Suzanne Jeanson For the Accused JUDGMENT D. KOVATCH , J [ 1 ] The accused entered a guilty plea to one charge of assault with a weapon contrary to s. 267 (

a) of the Criminal Code . The incident occurred in the early morning hours of December 3, 2013. The Crown proceeded summarily. [ 2 ] The accused is a young woman, who was 21 years of age, almost 22 years of age, at the time of this incident. She lived in a suite located on the main floor of a larger and older home located within Moose Jaw. The victim, is a young man who lived in a separate and freestanding suite in the same house, but downstairs from the accused. On the night in question, the accused and some other young women had been partying upstairs from the victim.

The young women had consumed quite a lot of alcohol, and the accused was quite intoxicated. She has little recollection of the events.

[ 3 ] The victim heard some noise or a bit of a disturbance upstairs, and went to investigate. According to him, the accused told him that he wasn’t supposed to be there and to leave. At this time, she raised a large knife. According to the victim, he raised his leg somewhat to defend himself or to ward her off. At this time, the accused stabbed him in the thigh with the large knife. The knife blade entered and exited a fleshy part of the thigh, creating entrance and exit wounds. The accused was taken to the hospital that night, where he was treated and released.

It appears that his injuries were not overly serious, although everyone agrees that this outcome was a very fortunate event. Very shortly after this incident, the victim moved out of this suite. He was not present at the sentencing hearing and did not present a victim impact statement. [ 4 ] According to the accused, Keshia Key, she was suspicious of the victim because of some past behaviour and incidents. On this night, the victim came to her suite where she was partying with some friends.

The accused was suspicious that the victim was hoping to take advantage of some of the young women present, who were all quite intoxicated. The accused asked him to leave, and he did not. As they argued, she impulsively stabbed him once in the thigh. [ 5 ] The Court was advised that the accused is a First Nations person and a member of the Key First Nation. Her parents separated when she was approximately four years old. Thereafter, she lived intermittently with her father, mother, maternal grandmother and in several foster care placements and group homes.

She has a youth record and spent time in open custody youth facilities. Her parents abused alcohol and her mother was an IV drug user. [ 6 ] Defence counsel advised that the accused’s mother and grandmother both attended residential schools. In the words of defence counsel, the accused’s mother “didn’t know how to be a mom” and the accused had no strong parental guidance during her upbringing. [ 7 ] The accused advised that after she became of age, she became involved in a common-law relationship with Daniel Strongquill, and now has a three year old daughter from that relationship.

When they broke up, she was charged with assaulting Mr. Strongquill, and in 2011 received a conditional discharge as a result of that assault charge. This represents her only adult conviction until the present charge. [ 8 ] Defence counsel advised that the accused has done very well since this incident. Immediately following the incident, while the accused was in custody, her daughter was apprehended by the Ministry of Social Services. The daughter remained in foster care for a period of time. However, by agreement, the daughter has since been returned to her mother’s care. [ 9 ] Counsel advised that Ms.

Key quit using all alcohol and drugs as a result of this incident, and has now been sober for a period in excess of five months. She has changed her group of friends and associates. Since this incident, there have been no other incidents with the law or charges. [ 10 ] Defence counsel advised that since this incident, the accused has consulted with an addictions counsellor. In addition, she has began attending upgrading at SIAST in Moose Jaw. The victim moved out of his suite in this house. The accused continues to occupy her suite.

The Court was advised that this suite is very close to SIAST, and on or near a bus route. As a result, it is very convenient for her, and she is able to pursue and further her education. [ 11 ] A pre-sentence report was prepared, and it indicates that Ms. Key is at a high risk to re-offend. THE ARGUMENT [ 12 ] For the Crown, Mr. Hendrickson argued that the accused has a past record for violence. He argued that the assault was unprovoked, and in fact the accused somewhat blames the victim. Given the use of a weapon and potentially severe consequences, Mr.

Hendrickson suggested that a term of actual jail is required. He argued for a period of incarceration of one year. He presented a number

of sentencing decisions where a term of jail was imposed for assault with a weapon. [13] Ms. Jeanson argues that the accused was intoxicated at the time. Further that this was an impulsive act. There was nopremeditation. She says the accused is remorseful, has taken responsibility, and has done very well since this incident. Ms. Jeansonpresented the Court with a number of decisions where a community based sentence was imposed. Ms. Jeanson particularly emphasizeds. 718.2(

e) of the Criminal Code, and asked that I consider R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee,2012 SCC 13. Counsel argued that this offence is directly related to the accused being a native person and having an unstructured andunguided youth. Counsel argued that the accused’s mother and grandmother did not learn how to be a mom, and were not able to passthis on to Ms. Key. Ms. Key saw alcohol and drug abuse and physical abuse, and began to participate in that kind of life.

Counsel saysthe accused has done very well since this incident, and asks that I adopt a rehabilitative and restorative approach to assist the accused inthat growth. ANALYSIS AND DECISION [14] There is a significant range in the sentences handed out for this kind of offence. In some cases, community based sentencesare very appropriate. However, Mr. Hendrickson is also able to point to a number of decisions where a significant term of actual jail wasimposed. There are some aggravating factors here as a result of which he is well able to argue that actual jail should be imposed here.

However, I have carefully considered Ms. Jeanson’s submissions and reviewed the Gladue and Ipeelee decisions from the SupremeCourt of Canada. I am persuaded that this is the very kind of situation contemplated by the Supreme Court of Canada when it wrotethose two decisions. Accordingly, I am persuaded that I should adopt a restorative and rehabilitative approach and deal with this matterby way of a community based sentence. [15] In Gladue and Ipeelee, the Court quoted s. 718.2(

e) of the Criminal Code and stated that the sentencing judge is required toconsider “all available sanctions other than imprisonment that are reasonable in the circumstances ... with particular attention to thecircumstances of Aboriginal offenders.” In the Court’s

summary of its decision, it states as follows: When sentencing an Aboriginal offender, courts must take judicial notice of such matters as the history of colonialism, displacement, andresidential schools and how that history continues to translate into lower educational obtainment, lower incomes, higher unemployment,higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. [16] At paragraph 59 of the actual decision, the Court stated: The Court held, therefore, that s. 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem ofoverrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorativeapproach to sentencing (Gladue, at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use adifferent method of analysis in determining a fit sentence for Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to payparticular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic orbackground factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types ofsentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particularAboriginal heritage or connection (Gladue, at para. 66).

Judges may take judicial notice of the broad systemic and background factorsaffecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentencereport (Gladue, at paras. 83-84). [17] It seems to me and I would conclude that defence counsel has very nicely made the case that a number of these historicalfactors and this accused’s particular upbringing are very significant and influential, thus bringing her to this point in life when she cameinto conflict with the law. Ms.

Key had an unfortunate upbringing and received little guidance or support from her parents. In addition,she witnessed physical abuse, and alcohol and drug abuse. There was family breakdown. Ms. Key began to be involved in some of thesame lifestyle. [18] Fortunately, since this incident, she has taken very significant steps toward rehabilitation and a different lifestyle. Accordingto the Gladue and Ipeelee decisions, I am required to consider if a rehabilitative and restorative approach should be adopted. I believe I

should adopt that rehabilitative and restorative approach and encourage and support Ms. Key in taking the steps that she has taken over the past five months. [ 19 ] For the above mentioned reasons, and because of the seriousness of the charge, I sentence Ms. Key to six months in jail, to be served conditionally and in the community. Because Ms. Key is actively pursuing her education, and of course I want her to continue that, and is a young mother, I decline to put her on the electronic monitoring system and to make her subject to house arrest. However, following the six month conditional sentence order, Ms.

Key will then be on probation for a further period of 12 months.

The conditions of the conditional sentence order and probation order will be identical and will be as follows: 1) Keep the peace and be of good behaviour. 2) Appear before the Court when required to do so by the Court. 3) Notify the Court or probation officer in advance of any change of name or address and promptly notify the Court or probation officer of any change of employment or occupation. 4) Remain within the jurisdiction of the Court (Saskatchewan) unless written permission to go outside that jurisdiction is obtained from the Court or the probation officer. 5) Report to the probation officer at 216 - 110 Ominica Street West in Moose Jaw immediately in person and thereafter as directed by the probation officer. 6) Seek and maintain employment or educational programming as directed by the probation officer. 7) Not to possess alcohol or drugs that have not been prescribed by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores. 8) Participate in any assessment and complete programming for anger management or other personal counselling as directed by the probation officer.

Participate in any program related to addictions assessment, counselling or treatment as directed by and to the satisfaction of the probation officer. This may include in-patient or out-patient treatment. [ 20 ] This is a primary designated offence within the meaning of s. 487.04 of the Criminal Code . As a result there will be an order in Form 5.03 authorizing the taking of bodily samples from Ms. Key suitable for forensic DNA analysis. Ms.

Key will be required to report to the Moose Jaw City Police no later than 4:00 p.m. on Friday, June 13 to supply the bodily samples. [ 21 ] In addition, under s. 110 of the Criminal Code an order will be made prohibiting Ms. Key from possessing any firearm, cross- bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. This order shall be in effect for a period of five years. [ 22 ] Unfortunately, I have no discretion and am required by law to impose a criminal victim’s surcharge in this case.

The applicable criminal victim’s surcharge will be imposed, and Ms. Key will have until December 31 of this year to make payment of that surcharge. [ 23 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan this 12 th day of June 2014. D. Kovatch, J