Her Majesty the Queen - v. -, 2021 SKPC 27

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 27 Date: April 7, 2021 Information: 90200163 Location: Dillon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jerrick Nezcroche Appearing: William Louison For the Crown Rosanne Newman, Q.C. For the Accused SENTENCING DECISION M. SEGU , J Introduction [ 1 ] The accused, Jerrick Nezcroche, was originally charged with aggravated assault. He has entered a guilty plea to the lesser included offence of assault causing bodily harm pursuant to s. 267 (

b) of the Criminal Code . By agreement between Crown and defence, the Crown re-elected to proceed by way of

summary conviction, effectively capping the available incarceral sentence at two years less a day, and opening the door to the availability of a conditional sentence order (CSO) as a possible sentencing outcome.

The Offence [ 2 ] The factual background is not disputed. On March 21, 2020 the accused, Mr. Nezcroche, was at a house party in Dillon, Saskatchewan. At approximately 2:30 a.m. he and his two friends were invited to leave the party. While outside, the accused goaded the victim, Braden Belle, to come outside where a fight between the two started. It began as a consensual fight, with both men falling to the ground and rolling around wrestling for approximately two to three minutes. The fight ended when the accused pulled out a hunting knife and stabbed the victim six times.

The accused then left, and police were called. The victim was initially taken to the local clinic for medical attention, then to Ile a la Crosse hospital, and eventually flown to Royal University Hospital (RUH) in Saskatoon for further treatment. [ 3 ] At 4:30 a.m., police attended the accused’s residence where they found him sleeping. They found a large hunting knife in a sheath in his pocket, which was seized. [ 4 ] The victim received five stab wounds to his upper and lower back, as well as one in the crook of his right elbow.

Photos of the injuries show a cluster of four wounds in the upper right shoulder blade area, a single stab wound on the lower left back, and the elbow wound. The photos depict the wounds primarily after they have been cleaned, so it is relatively easy to see their size and depth. These are significant wounds. The victim also had a collapsed esophagus and needed medical assistance breathing. [ 5 ] The victim impact statement filed describes the victim discusses feeling paranoid, constantly being vigilant, and having his guard up. He has flashbacks of the incident, and rarely gets a full night’s sleep.

He experiences a tingling sensation in his knife wounds, as well as discomfort in his back. He was hospitalized due to loss of blood. The Offender [ 6 ] Mr. Nezcroche, age 22, is a member of the Buffalo River Dene Nation and has no previous criminal record. Although no longer with his partner, he is the father of a one year old daughter. He lives with his mother, and is employed at the Buffalo River Mini Mart since November 2019. He has a history of alcohol use since age 15, with his drinking increasing in frequency as he approached his twenties. Mr.

Nezcroche’s parents separated when he was age five, primarily due to substance use. As a result, he was effectively raised by his grandmother, although his father also maintained a positive relationship with him. In January of 2020 he ended a four year relationship, and entered a period of depression with thoughts of self-harm. His drinking led to two incidents of attempted self-harm. According to the PSR, his alcohol use has resulted in a two week suspension from his job, during which he drank every day. He was under the influence of both alcohol and cocaine at the time of this offence.

However, the PSR notes he has been sober since May 29, 2020, and his mental state has improved significantly with the birth of his daughter. Position of Parties [ 7 ] The Crown seeks a sentence of one year jail to be followed by nine months of probation as well as relevant ancillary orders, including forfeiture, DNA and a weapons prohibition. The accused is entitled to enhanced pre-trial credit of five days. [ 8 ] Defence argues a CSO would be more appropriate, emphasizing the Gladue [1] factors set out in the pre-sentence report (PSR).

Defence also identifies that although the accused was assessed as a medium risk to re-offend, those risk factors have already been substantially addressed prior to sentencing. [ 9 ] Following submissions, counsel were invited to file cases to support their respective positions. The Court has received and reviewed the following cases: R v Hache , 2019 NWTSC 33 R v Heath , 2020 BCPC 99 R v Wilson , 2020 ONCJ 176 R v Redwood , 2017 SKQB 347

R v JSM , 2018 SKPC 71 R v Ratt , 2021 SKCA 7 Analysis [ 10 ] In assessing an appropriate sentence, the Court is guided by the principles and purpose of sentencing set out at ss. 718 - 718.2 of the Criminal Code . As set out in R v Blind , 2013 SKPC 168 , 432 Sask R 123: [13] A sentence must be one that fits the particular offence and the individual offender before the Court, but I cannot focus entirely on Mr. Blind and his personal circumstances. While Mr. Blind is central to the process, his circumstances cannot be the entire focus. The fundamental principle of sentencing is proportionality.

This in turn involves an assessment of both the gravity of the offence and the moral culpability of the offender. The gravity of this particular offence is high: Mr. Nezcroche used a weapon to inflict the damage on the victim. Interpersonal violence will always be viewed seriously by the Court, particularly where weapons are involved. Additionally, the sheer number of wounds is troubling. This accused made a conscious decision not only to stab the victim, but to do so repeatedly, with most of the wounds to the back. Mr. Nezcroche assaulted the victim after being asked to leave the party.

Not content to leave well enough alone, Mr. Nezcroche then goaded the victim into coming outside to fight. The accused knew full well he was in possession of a knife, while the victim was unarmed. What started as a consensual physical fight took a dramatic turn when the accused introduced a weapon into the altercation. Finally, the harm Mr. Nezcroche caused to Mr. Braden Belle was also quite significant. Mr. Belle sustained multiple stab wounds. The photos show at least three wounds of significant depth.

Furthermore, the victim suffered a significant loss of blood, and ultimately had to be transported to RUH in Saskatoon for treatment. The victim suffers ongoing psychological trauma as well as issues with his wounds, according to his victim impact statement. [ 11 ] The moral blameworthiness of Mr. Nezcroche is equally high: he came to a party armed with a knife, and when involved in the altercation with Mr. Belle, had no hesitation in using the knife to inflict multiple wounds on Mr. Belle. He offered no assistance to Mr.

Belle after injuring him, and instead went home to sleep, where police found him in bed, still in possession of the knife. [ 12 ] In short, Mr. Nezcroche bears a high degree of responsibility. He is fortunate that his actions did not result in the death of Mr. Belle. Relevant Aggravating and Mitigating Factors [ 13 ] In

summary, the major aggravating factors in this case include: the fact the accused came to a party armed with a knife; when asked to leave the party he remained outside on the property; he goaded the victim into coming outside to fight; he introduced the weapon into the altercation; he provided no assistance to the victim once he was injured (although this is perhaps more properly characterized as a failure to mitigate); his use of alcohol and cocaine at the time of the offence; the highly foreseeable damage or potential death that could occur in using the weapon in the manner he did. [ 14 ] The significant mitigating factors include: the lack of any previous record and Mr.

Nezcroche’s otherwise good character; his relatively young age; his remorse over the incident as evidenced by his plea of guilty and acceptance of responsibility; other than a single early allegation of breach of his release conditions regarding alcohol, it appears the accused has followed all conditions of release, without incident, for nearly a year; Gladue factors as set out in the PSR, including the loss of significant supports in his life, the intergenerational impacts of the residential school system on his family, specifically family breakdown and alcohol and drug use.

[ 15 ] The Court must also consider parity with other similar cases. On this point, it is important to remember that the accused was originally charged with aggravated assault, but entered a guilty plea to assault causing bodily harm. Additionally, the Crown opted to re- elect from indictable to

summary conviction, effectively capping any incarceral sentence at two years less a day. [ 16 ] Regarding parity, the Court has considered and adopts the comments of Kalmakoff J. in R v Arcand , 2019 SKQB 131 at paras 57-58 : [57] The principle of parity in s. 718.2 (

b) of the Criminal Code dictates that an offender's sentence should be similar to sentences imposed on similar offenders, for similar offences, committed in similar circumstances. This does not require uniformity in sentencing, as the individual nature of sentencing and the need to respect the principle of proportionality mean that disparity can exist where circumstances warrant. Such disparity, however, should not be egregious, or unjustified: see R. v. MacLeod , 2018 SKCA 1 . [58] Parity in sentencing does not trump proportionality; rather it informs the proportionality principle.

It helps to define what is a proportionate sentence. In R. v. Safarzadeh-Markhali , 2014 ONCA 627 , affirmed 2016 SCC 14 , [2016] 1 SCR 180, the court said that while parity is not a straitjacket that requires equal sentences, it does require that any difference between sentences for similar offences committed in similar circumstances be rationally explicable. Sentences must also be individualized. In R. v. Pham , 2013 SCC 15 , [2013] 1 SCR 739, the Supreme Court of Canada said that differing personal circumstances between offenders can justify differing sentences for similar offences.

Parity is an important consideration, but the task of imposing an appropriate sentence is not accomplished by simply finding a similar case and working from it. In R. v. Klemenz , 2015 SKCA 89 , [2016] 1 WWR 234, the court described the application of the parity principle in this way: [45] Sentencing is an individualized process and the principle of parity is but one of a number of principles that must be applied by sentencing judges to arrive at a fit sentence. The principle of parity is about fairness.

It is grounded in the belief that justice is served when similar offenders, who commit similar offences, receive similar sentences. The difficulty is that rarely, if ever, will the circumstances of two offences and the offenders who commit them match perfectly. [46] In my view, the principle of parity does not involve a "matching" exercise. What it requires is that the sentence imposed fall within the acceptable range of sentences imposed for similar offences committed by similar offenders, and that differences in sentences can be rationally explained.

In other words, sentencing is not merely a comparative exercise in which judges seek to find similar offences and then impose the same sentence. Such a process ignores the fact that the underlying purpose(

s) for imposing a sentence in any particular case may vary, depending on the offence, the region where it occurred, the victim and/or the offender. It also ignores the other principles of sentencing set out in ss. 718.1 and 718.2 of the Criminal Code including (

i) proportionality, (ii) that a sentence will be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, (iii) the principle of totality, (iv) that an offender should not be deprived of his or her liberty if less restrictive sanctions are appropriate, and (iv) that all available sanctions, other than imprisonment, should be considered for all offenders with particular attention to the circumstances of aboriginal offenders. Applicability to the present case [ 17 ] The Crown, by re-electing to

summary conviction and accepting a guilty plea to the lesser included offence of assault causing bodily harm, has opened the door for the potential imposition of a conditional sentence. Although the circumstances related to the Court justify the original charge, that is not the crime for which the accused has accepted responsibility. Equally, when considering parity, sentences for charges of aggravated assault, although possibly similar in circumstances, are of limited value given that in the majority of those cases, a CSO was not available as a sentencing option. [ 18 ]

Section 742.1 sets out the prerequisites for the imposition of a conditional sentence: • the offender must be convicted of an offence that is not specifically excluded; • the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; • the Court must impose a sentence of imprisonment that is less than two years; • the safety of the community must not be endangered by the offender serving the sentence in the community; • the conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[19] In the present case, the sole criterion that would impose a barrier is the final one: whether a CSO is consistent with thefundamental purpose and principles of sentencing. In the Court’s estimation, when proper consideration is given of both the offenderand the offence, this is a case where a conditional sentence could reasonably be imposed while still achieving the purpose and principlesof sentencing, subject to some comments I will set out shortly. [20] A CSO, properly constructed, can achieve both punitive and restorative goals simultaneously.

It can have a deterrent effect,both specifically on the particular offender, but also as a matter of general deterrence. Depending on the conditions imposed, and itslength, a CSO can be proportional to the gravity of the offence and the offender’s degree of responsibility. Finally, a CSO can alsoachieve the principle of restraint espoused in ss.718.2 (

d) and (e). [21] R v Redwood, 2017 SKQB 347 provides an excellent

summary of sentences for aggravated assault, and demonstrates asentencing range of 18 months to four years for that offence. The case also canvasses the wide range of sentences for assault causingbodily harm, ranging from fines to higher end correctional sentences, including conditional sentence orders. [22] In the decision of R v Key, 2014 SKPC 122, 448 Sask R 99, a 21 year old accused Indigenous woman entered a guilty plea toassault with a weapon after stabbing the victim in the leg with a knife. The accused had a previous record for assault, and Gladue factorswere at play.

The accused had taken significant steps to address her drinking and alter her lifestyle and peer group. The Crown soughtone year’s incarceration but the Court imposed a six month CSO followed by 12 months’ probation. [23] In the present case, the Court has considered the lack of a prior record, and the fact this will be the first period of incarcerationfor a 22 year old offender. Equally Mr. Nezcroche, by all accounts, has been able to maintain sobriety for nearly a year, and has notbreached the terms of his release. Rehabilitation should be given equal footing with denunciation.

The Court is mindful of thecomments made in R v Priest (1996), (ON CA), 110 CCC (3d) 289 (Ont CA): [23] Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this courtthat a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather thansolely for the purpose of general deterrence. …Martin J.A. adopted the following statement of principle from R. v. Curran (1973), 57 Cr.App.

R. 945, per MacKenna J. at pp. 947-48: As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity ofthe offence, and imposed as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a firstsentence is more reasonably determined by considerations of individual deterrence; and what sentence is needed to teach this particularoffender a lesson which he has not learnt from the lighter sentences which he has previously received.

Sentence [24] Taking the above into account, the Court finds a conditional sentence is an appropriate sentence for Mr. Nezcroche, given thecircumstances of the offence, as well as his personal circumstances. Accordingly, the Court imposes a sentence of 18 months, to beserved in the community pursuant to s. 742.1 of the Criminal Code. The terms of the order, in addition to the statutory conditions, willbe as follows: 1. Report to a supervisor within one working day by phone and thereafter as directed. 2.

Live at ________________ and not change that residence without the prior written permission of your supervisor, designate or theCourt. 3. For the first nine months of the order, stay inside your approved residence 24 hours a day unless you have the prior writtenpermission of your supervisor, their designate or the Court to leave your residence for the purpose of employment, child care,community service work or programming only.

Come to the door of your approved residence when asked to do so by yoursupervisor, their designate or a police officer who may be checking the residence and curfew conditions of your order. 4. After the first nine months of your order, stay inside your approved residence from 10:00 p.m. each night 7:00 a.m. each morningunless you have the prior written permission of your supervisor, their designate or the Court to leave your residence.

Come to thedoor of your approved residence when asked to do so by your supervisor, their designate or a police officer who may be checkingthe residence and curfew conditions of your order.

5 . Enroll in the house arrest and/or electronic monitoring program and comply with all rules of the said program(

s) as directed by your supervisor. 6 . Not possess or consume alcohol or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol or cannabis, such as bars, liquor stores or cannabis stores. 7 . Provide suitable samples of your breath for testing upon the request of a police officer who has reasonable grounds to suspect that you are in breach of a condition of this order regarding the consumption of alcohol. 8 .

Participate in an assessment and complete programming for addictions which may include inpatient and outpatient treatment as directed by your supervisor. 9 . Have no contact of any kind, directly or indirectly, including through social media, with Braden Belle. 10 . Not be at the residence, workplace or place of education of Braden Belle. 11 . Complete 50 hours of community service work by the end of the 12 th month of this order. 12 . Not possess weapons, including knives, unless using a knife to eat. 13 .

Submit to a search without warrant of your person and any vehicle, that you own, operate, control or possess by any police officer who has reasonable grounds to suspect that you are in breach of a condition of this order regarding the possession of weapons. 14 . Submit to a search without warrant of your person and any vehicle that you own, operate, control or possess by any police officer who has reasonable grounds to suspect that you are in breach of a condition of this order regarding the illegal use, possession or control of drugs. 15 .

Carry a copy of this order when travelling outside the community of Dillon, Saskatchewan, and produce it when asked to do so by a police officer. Ancillary Orders [ 25 ] The following ancillary orders sought by the Crown will be granted: 1 . Forfeiture of the seized knife pursuant to s. 490.1 of the Criminal Code . 2 . A DNA sample pursuant to s. 487.051 of the Criminal Code as this is a primary designated offence. 3 . A weapons prohibition pursuant to s. 110 of the Criminal Code for a period of five years. Although discretionary, the Court is of the view it is appropriate in the circumstances of the offence.

___________________________ M. Segu, J