Her Majesty the Queen - v. -, 2020 SKPC 10

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 10 Date: February 13, 2020 Information: 90212060 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Warren Nelson Millman Appearing: Greg Chovin For the Crown Suzan Wurtz For the Accused DECISION B. HENNING , J [ 1 ] Charges: April 24, 2019, Assault on Valorie Millman, contrary to

section 266 of the Criminal Code , by Indictment Guilty Plea Between October 2018 and April 2019, breach of recognizance under

section 810.2 with respect to condition of non-communication with

Teth Musqua contrary to

section 811 of the Criminal Code . FACTS [ 2 ] Crown strenuously argues for a global sentence on the above two charges of two years, with two years’ probation to follow on the identical terms to the

section 810.2 order which has been filed. This order and any probation order will be discussed separately. [ 3 ] The accused was on the

section 810.2 order due to a history of assaults on female persons which are set out in the criminal record that was filed. The Crown gave a brief

summary of the facts of multiple convictions listed. The history of these assaults is of serious public concern and resulted in the order under

section 810.2. That order was voluntarily entered into by the accused without contest. It was presented to the accused while in custody with discussion with police investigators, and then he was taken to court where the order was consented to without assistance of legal counsel. The order has 18 legally worded conditions, some of which are long and challenging for a non-legally trained person to comprehend. However, this Court cannot and does not go behind the order in its present form in considering the matter.

The present charges represent the first breach of that order. [ 4 ] In considering a fit sentence, it is necessary for the Court to consider the circumstances of the prior convictions involving violence, as well as the general record of convictions. In that last regard, the accused has convictions for property offences, careless handling of a firearm, and other offences that pre-date any assaults. There have also been other offences after the first assault convictions that include various breach charges, obstruction of a peace officer, possession of a prohibited substance and other offences.

Of primary concern in this sentencing, however, are the prior assault convictions which were emphasized by the Crown. Briefly stated, the assault convictions are as follows, and this information came from the Crown but was not challenged by the defence. 2007 Assault of a peace officer, and assault with a weapon on a female with a broomstick, while intoxicated, as well as damage to a police vehicle and resisting arrest. Sentence 45 days. Probation 18 months; no breach of this order. 2009 Simple assault, on a female person by biting. Sentence, time served 60 days, plus probation.

No breach of this probation order. 2010 Sexual assault, and assault causing bodily harm, three years, less prior in-custody credit, with probation added on

section 267(

b) offences details of which were not provided. No breaches of mandatory supervision. Offender took extensive programming during and after this sentence. 2014 Assault causing bodily harm on a girlfriend, sentence 293 days plus two years’ probation. 2015 Simple assault on a girlfriend, sentence nine months, consecutive to any other sentence. It is not clear what relationship this may be to the immediately prior entry of assault for which he received the 193 days. 2017 Simple assault on Teth Musqua, the person he was prohibited from seeing under the

section 810.2 order, by biting. Sentence six months. 2018

Section 810.2 order made. [ 5 ] It was noted by the defence that Ms. Musqua did not seek the non-contact provision that was included in the

section 810.2 order, and that she had consensual contact with the accused in breach of that condition. She was in court throughout the afternoon and

during the sentence hearing and submissions. She does not seek a non-contact order. Indeed, she is opposed to the court making such an order though the Crown argues in favour of such an order. It was readily apparent to the Court that the accused has a close and apparently positive relationship with a young child of Ms. Musqua. He did not communicate with her in the courtroom so far as the Court was able to observe or recall. [ 6 ] At this time the accused has remand time with the accepted credit for that in excess of fourteen months as of one week ago.

That would be now increased by 11 days bringing time-in-custody credit to almost fifteen months. The Crown argued strongly for additional time to a total of two years, plus two years of probation on the conditions as in the

section 810.2 order. The Crown referred to and filed some cases and took the position that though the two charges before the court are separate incidents, they should be considered together as part of the accused person’s offending and public risk considerations. [ 7 ] The assault occurred with respect to the accused’s mother, with whom he had been living. He had been seeing Ms. Musqua at that period of time and he suspected his mother of advising police authorities of that which resulted in an argument. During this argument he spit on his mother.

The Crown argues that this is a typical type of assault that the accused commits on female persons whom are at high risk in any relationship with the accused. There is at least one other assault on a female person who was spit upon, but no other assault consisted of such an action alone. The defence referred briefly to the accused’s relationship with his mother, who had problems with alcohol, and who did not provide a stable home environment at times as he was growing up. [ 8 ] Spitting is a form of assault and it is disgusting and may have dangerous medical risks.

However, this incident of spitting, though serious and reprehensible, is not, in my opinion, in the same category as the serious physical assaults that the accused has committed in the past on female partners with whom he has had a relationship. The Crown does not accept any such differentiation in the nature of this assault, but I do not accept that characterization. However, my conclusion is not to suggest that the offence is not a significant assault.

CASES CONSIDERED [ 9 ] The leading case in Saskatchewan in this area is still the Court of Appeal decision of R v Ballantyne , 2009 SKCA 27 , 324 Sask R 71 [ Ballantyne ]. That case involved a breach of an 810.2 recognizance relating to consumption of alcohol which was a major factor in the accused person’s violent offending. The Court considered the trial judge sentences of relatively short duration custody sentences on the two breaches, and increased the total sentence to 15 months in addition to the sentences below, which were (probably) already served.

The exact calculation is not clear as it was an oral judgment. The Court noted that the purpose of a

section 810.2 order was to prevent future criminal activity, and such orders are made when an offender has had a notable history of violence and failed to successfully reintegrate into the community after time in custody. The accused Ballantyne had committed offences in the past of extreme violence, and the Court emphasized that past criminal behavior was a major consideration in sentencing. At paragraph 12 the Court noted that the primary sentencing principles are the protection of the public in general and specific deterrence.

Other cases were cited that noted that breaches of conditions must be considered in light of the potential for risky and dangerous consequences of the behavior constituting the breach or breaches. A significant term on incarceration was therefore warranted in these cases.

The Court did not adopt a ‘starting point’ approach with a minimum level of sentencing for such cases, and it would appear that specific circumstances should be considered. [ 10 ] Also considered by the Crown was the case from the same year by Judge Gray of the Provincial Court in R v Okemow , 2009 SKPC 53 in which the Court considered the principles enunciated in Ballantyne and other cases.

The case involved the sixth breach of the 810.2 recognizance The accused had a very extensive record of 50 convictions that was continuous with weapons-related instances, although the full details of the record were not set out in the judgment. The result was a sentence of 19 months. In my opinion, this case represents higher risk and hence more egregious breach than the present case. [ 11 ] The defence cited another detailed Provincial Court case, also R v Ballantyne , 2012 SKPC 168 , by Robinson, J. in which he reviewed the principles and circumstances of the offender and the breach charge under a

section 810.2 order. The breach concerned an instance of using alcohol. The accused was an Aboriginal person who had experienced many difficulties in his early life. He was not to use alcohol, but lived with his mother who was an alcoholic herself and provided alcohol. He lived in an impoverished and isolated community. The resulting sentence was 183 days equivalent, time served.

Though this person has a more egregious criminal record than the present case, the circumstances of the breach offence are not similar at all to the present case, in my opinion. [ 12 ] The defence position is that at present the accused has served time in custody on remand equivalent to just under fifteen months, and that this is a substantial deterrent sentence for the present offences and would meet the principles and requirements set out by the Court of Appeal in 2009 Ballantyne .

[ 13 ] The defence also emphasized that the accused has accessed programming available while in custody during his present incarceration as well as earlier sentences. The accused has been on methadone since 2015 and his medication has been substantially reduced in that period of time with the object of eventually eliminating it as well as his addiction. He also has various qualifications for work in the oil industry and has so worked in the past. The defence emphasized that he is making progress and has prospects of employment on release.

The defence analyzed the record, and arguing that all entries were not of equal seriousness though they did not minimize them or his situation. [ 14 ] In considering the appropriate sentence here, it is important to state that the sentencing process is an individualized one. The accused is in a serious situation under supervision of a

section 810.2 order and there is much case authority to support the proposition that breaches of such orders will be dealt with severely in accordance with the principles set out by the Court of Appeal in Ballantyne . [ 15 ] The accused had indeed been in breach over a significant time of the requirement to refrain from contact with Teth Musqua, a provision of the

section 810.2 order. This condition was imposed by the Court without opposition being voiced by the accused, but without the support or request of Ms. Musqua. This provision is one which the Crown argues should be continued. Based upon some substantial experience in situations concerning various types of ‘non-contact’ orders, this Court has not been convinced of the benefit or efficacy of such non-contact provisions imposed between parties who do not seek or support such order.

The protection of individuals or the public is not as great as might be desired in such a situation, and I make this conclusion based upon some awareness of other case histories. [ 16 ] The purpose of such a condition in an order is the protection of a person who is prohibited from having contact with an offender due to public policy and practical considerations.

Where the person intended to have ‘protection’ of such an order is not merely indifferent, but opposed to the making of such an order, and not likely to co-operate in the observance of such an order, compliance and ‘protection’ afforded by such an order to that person is exceedingly low. This greatly undermines the public protection argument. [ 17 ] Nonetheless, it is the Crown position that regardless of the wishes or opinions of the parties involved, such an order is desirable, and was appropriate in this instance.

The Court does not wish to undermine any existing court order, but it must be recognized that there are practical limits to the protection afforded by court orders in some circumstances. In this instance, the accused and the party prohibited should have made application to the appropriate court to vary the provisions of the order if that was their wish. It may be observed that this might take some resources and mental sophistication beyond the capabilities of some persons in such a situation.

In any event, the order was in effect and it was breached, and public policy requires that appropriate sanction be applied to maintain the integrity of the court and justice system. However, the circumstances of this order must also be considered. The accused breached the order, but he did not commit any other criminal offence against Teth Musqua over a significant period of time. [ 18 ] The circumstances of the assault on Valorie Millman must also be considered. She is the mother of the accused, and the defence advised that the relationship between the accused and his mother has at times been problematic.

Nonetheless, he was living with his mother who was supportive of him at the time a dispute arose and the spitting incident occurred. This is a disgusting and reprehensible act and is a further criminal assault on his record. However, it is not typical of the violent physical assaults that have been perpetrated against female persons he has been in a relationship with. It is an impulsive act that is inappropriate in the extreme, but it is a lesser form of violence, though highly offensive in a different manner, than his other assaults.

It is still, however, one that must bring a serious penalty given his extensive record. [ 19 ] Considering the cases cited, the accused person’s criminal record, and the circumstances of these offences, I am of the opinion that a sentence equivalent to the nearly fifteen months that the accused has already served constitutes a serious custodial sentence that has large deterrent and accountability factors and meets the principles discussed by the Court of Appeal and other courts.

A 15-month prison sentence constitutes a serious consequence for the offences committed. [ 20 ] Counsel will advise the court of the exact time in custody to today’s date. [ 21 ] Further, I am of the opinion that a substantial period of eighteen months supervision on probation should be added to the custody sentence. Such a period would provide assistance to the accused and allow public protection through monitoring. If following that period of supervision, further monitoring is considered desirable by enforcement authorities, appropriate provisions of the Criminal Code may be invoked.

[ 22 ] I have not yet remarked upon the provisions of the

section 810.2 order that has been in place that the Crown asks be reproduced in a probation order. On pursuing this order, it appears to be in a form that the Court has become familiar with and is used regularly in this province for many or most

section 810.2 orders. It has a ‘generic’ aspect that the Court recognizes from other cases. It includes eighteen legally worded provisions which, in my opinion, may not all be appropriate, or appropriate in all their details, without further explanation show them to be germane to the accused and his offending, however serious as that may be.

It may be argued, of course, that all conditions of every type and restriction are appropriate for any person who is considered likely to commit a personal injury offence, so these and any others that might be devised are invariably, or almost invariably, appropriate. [ 23 ] However, in my opinion, any probation order, or any court order should be drafted to reflect the particular concerns, issues, risks and circumstances of an offender and the factual situation.

It should have the intent of protecting the public or individuals where such protection is appropriate and feasible, and address the particulars of the situation. The order in question contains, inter alia , the following conditions, which are set out briefly with some queries as to appropriateness or drafting. • Reporting to probation services and a police agency as directed. Q: what is the purpose of police reporting? • A strict curfew provision. Q: The circumstances of prior offending by the accused are not clear in all instances.

Many offences are committed outside a residence in the late hours, and staying at home may assist in reducing risk for some offences. This is a general proposition. However, many partner-related offences occur in a place of habitation, and do not have a predictable time of occurring. A restrictive curfew should address actual circumstances of offending. • Not possess weapons that are already unlawful under the law.

Q: Sometimes a provision that reads ‘not carry on your person any object that may reasonably be inferred as intended for use as a weapon, and not possess any prohibited or restricted weapons or ammunition as defined by the Criminal Code ’ is somewhat more comprehensible to non-legally trained persons. • Reporting of all personal relationships with female persons and such persons to be notified by police or probation personnel of the offender’s criminal history and circumstances. This provision is much expanded upon in sub-sections.

Some wording, in my opinion, appears potentially overbroad and imprecise, which does not assist enforcement or compliance by the person bound by such conditions. Further, the wording does not appear to limit prohibited or reportable contacts to only female persons, and includes restrictions on use of the internet. Q: Given this complex provision is very wide with broad

definitions and expansive provisions, it appears intended to cover situations such as internet luring and other activities outside the pattern of offending that might reasonably be ascribed to this accused. • Unrestricted limitation of movement outside of the immediate city of residence. Q: This may be justifiable, but not without governing principles that limit potential arbitrariness. [ 24 ] I will hear counsel upon these and other issues relating to conditions of the probation order. Dated at the City of Regina, this 13 th day of February, 2020 ______________________________ B. Henning, J.