Her Majesty the Queen - v. -, 2021 SKPC 1

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 1 Date: July 5, 2021 Information: 90195939 Location: Fort Qu'Appelle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyler Michael Walker Appearing: Andrew Campbell For the Crown Bruce Campbell For the Accused SENTENCING DECISION K.A. LANG , J Introduction [ 1 ] Mr. Walker was charged with the following offence:

That on or about the 5 th day of September, 2020 at Balcarres in the Province of Saskatchewan, he did assault Cst. Ian McCarthy, a peace officer engaged in the execution of his duty contrary to section 270(1) of the Criminal Code . [ 2 ] The Crown proceeded by

summary conviction. Mr. Walker appeared in Court on November 30, 2020, and aided by legal counsel, entered a guilty plea to this charge. Sentencing submissions were heard that day and the matter adjourned for a decision. Notably a significantly longer adjournment than originally anticipated was necessary due to the unexpected circuit Court closing relating to the Covid-19 pandemic. Circumstances of the Offence [ 3 ] According to the Crown, on September 5, 2020 at approximately 4:30 p.m. the RCMP were dispatched to the Balcarres Liquor Store. The complaint was that the Accused, Mr.

Walker, was outside of that store, was intoxicated, and was throwing rocks at vehicles and threatening customers. [ 4 ] Police ultimately attended to the residence of the Accused in Balcarres where Mr. Walker met police on his front porch. Mr. Walker was instantly belligerent to police, appeared highly intoxicated, and was yelling obscenities at the police officers. [ 5 ] The Accused then blew nasal mucus into his own hand and hurled it at the police officers, striking Constable McCarthy in the chest. Mr. Walker was arrested by police. He remained uncooperative throughout. [ 6 ] Mr.

Walker was detained in cells overnight due to his level of intoxication and released the next morning. [ 7 ] The following morning, Mr. Walker apologized for his actions to the releasing officer who was not Constable McCarthy. [ 8 ] These were the facts alleged by the Crown. The Defence took no objection to these facts. [ 9 ] In turn, Defence counsel advised the Court that Mr. Walker is 33 years of age, single and living with his mother in Balcarres.

He was last employed two years ago. [ 10 ] Defence counsel did also allege Gladue [1] factors being present which included marital breakdown, alcohol abuse and domestic violence. [ 11 ] The Defence further submitted that Mr. Walker suffers from mental illness, having been diagnosed as both bipolar and schizophrenic for which he takes medication. [ 12 ] Defence further advised that Mr. Walker is also a recovering alcoholic and that he “shouldn’t be drinking, and he knew that”. Certainly from the facts as alleged by the Crown, Mr.

Walker was intoxicated on the date in question. [ 13 ] Defence also stated that right after this incident he, Mr. Walker, yelled out to police, “I don’t have COVID”. Defence also suggested that Mr. Walker was remorseful for his actions, demonstrated by his apology the next day to an officer and by his early guilty plea. [ 14 ] Following Defence submissions Mr. Walker requested to address the Court. With the consent of legal counsel he did. [ 15 ] Mr. Walker apologized to the Court for his actions and said that he would apologize to Constable McCarthy but notably he

had not taken any action, in the nearly three months since the incident, to reach out to Constable McCarthy with an apology. The Court was therefore somewhat skeptical of his apology offer coming on the date of sentencing. He indicated he would like to write Constable McCarthy an apology. Again there was nothing stopping him from doing this in the nearly three months leading up to this sentencing date. [ 16 ] Mr. Walker further offered to the Court that he was a recovering alcoholic but that he “fell off the wagon that day”.

He said people came over that day and twisted his arm to go drinking and it was hard to say no. [ 17 ] Mr. Walker represented to the Court that when he saw police outside of his house that day he panicked. He stated that by doing what he did he thought it, “would keep them (the police) away because maybe they would think I had COVID or something”. The Court found this to be a significantly disturbing comment. [ 18 ] Mr. Walker did advise the Court that he acted inappropriately and that he “shouldn’t have done it”. Criminal Record [ 19 ] Mr.

Walker has nine previous criminal convictions, all of them occurring since July 2016. His last conviction occurred as recently as January 13, of 2020 - an uttering threats conviction. He also has an assault conviction from 2017. While the Court is unaware if alcohol played a factor in these convictions, Mr. Walker certainly has other alcohol related convictions on his record. Mr. Walker also has three convictions for failing to abide by previous probation orders. Notably he last received probation in January of 2020. That probation period was for a period of six months, expiring in July of 2020.

Position of Parties Crown [ 20 ] The Crown recommended a period of four months incarceration. [ 21 ] The Crown took the position that nothing short of a period of incarceration would suffice as assaults of this nature against police officers require paramount consideration be given to the principles of denunciation and deterrence. In that regard the Crown relied upon

section 718.02 of the Criminal Code which states: 718.02 When a court imposes a sentence for an offence under subsection 270(1) ,

section 270.01 or 270.02 or paragraph 423.1(1)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [ 22 ] The Crown stated that in coming to the recommendation of four months incarceration, it had considered the actions of the Accused, the early guilty plea, the record of the Accused and the fact that some mental illness may have been a factor. [ 23 ] The Crown filed numerous cases in support of its position. Defence

[ 24 ] Defence counsel asked the Court to consider the Accused’s mental illness when deciding upon sentence. Notably no proof of any illness or treatment was provided to the Court, only a blanket statement of Mr. Walker’s conditions and that he takes prescription medicine for it. [ 25 ] Defence also urged the Court to consider that Mr.

Walker was very remorseful and was offering a guilty plea at a very early stage, nearly three months after the incident but prior to any substantive action being taken on the matter. [ 26 ] Defence suggested a conditional sentence order would be appropriate in the circumstances but offered no suggestion as to the length of such an order or any conditions. [ 27 ] Defence provided no cases in support of its position. Principles of Sentencing Introduction [ 28 ] In determining the appropriate sentence for this offence, I am guided by the provisions of sections 718 to 718.2 of the Criminal Code .

A sentence must be one that fits the particular offence and the individual offender before the Court. [ 29 ] In order to achieve the fundamental purpose of sentencing outlined in

section 718 of the Criminal Code , namely contributing to respect for the law and the maintenance of a just, peaceful and safe society, the sentence I impose must be a just sanction. It must pursue one or more of the following objectives: denunciation of unlawful conduct; deterring the offender and others from committing offences; separation of the offender from society if necessary; rehabilitation; providing reparation to the victim and community; and promoting a sense of responsibility and acknowledging the harm done.

The relative emphasis to be placed on each of these objectives must be appropriate for the circumstances of this offence and this offender. [ 30 ] Even though the emphasis given to the sentencing objectives listed in

section 718 may vary according to the circumstances of the case, the resulting sentence must respect the principle of proportionality.

Section 718.1 of the Criminal Code states the fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: R v Nasogaluak , 2010 SCC 6 , [2010] 1 SCR 206. [ 31 ] I must also have regard for the secondary sentencing principles listed in

section 718.2 of the Criminal Code , including consideration of aggravating and mitigating circumstances, totality, parity, the need to consider all available reasonable sanctions other than imprisonment, and the need to consider the circumstances of Aboriginal offenders. [ 32 ] Denunciation and deterrence are paramount principles in cases such as this. The jurisprudence confirms this and

section 718.02 of the Criminal Code mandates it. Parity

[33] Consideration needs to be given to similar cases, and especially to those decided in Saskatchewan. The Supreme Court hasnoted in R v M. (C.A.), (SCC), [1996] 1 SCR 500 at para 92: Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similarcrime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected tovary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencinggoals will depend on the needs and current conditions of and in the particular community where the crime occurred. Established Ranges [34] The Crown provided several cases for the Court’s consideration.

R v McLeod, 2009 SKPC 85, 336 Sask R 100 [McLeod] - the Accused spit into the eye of a police officer; - the Accused had 14 previous convictions, seven with violence; - the Accused was employed, and had a common law spouse and two children; - the Accused was sentenced to six months incarceration and six months of probation. [35] In the McLeod case Judge Morin made some interesting observations with respect to this type of offence. At paragraph 4 hestated: [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 acut or 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. [36] At paragraphs 16 – 18 in McLeod Judge Morin summarized relevant case law, all of which are at least somewhat relevant tothe case at bar. Those short summaries are as follows: [16] In R. v. Bear, L.M., 2001 SKCA 38, the accused was known for being positive for Hepatitis C. While being transported inside apolice vehicle, she tore off her bandages and was bleeding heavily, she separated the plexiglass and tried to touch an officer with herbloodied arm.

The police pulled over because she was bleeding all over and she did manage to touch an officer on the shoulder with herblood. She was sentenced to 16 months and it was upheld by the Saskatchewan Court of Appeal, she had 31 previous convictions withno prior convictions for assault. [17] In R. v. Pine, 1998 SKCA 49, a person was placed under arrest, then became confrontational and he eventually was successful inspitting on an officer’s head, face and shoulder. He had 45 previous convictions with 9 previous assaults and 1 prior for assaulting apeace officer.

He received 5 months and 30 days consecutive for 355(b). [18] In 1992, in R. v. Playford W.J.D., 1992 SKCA 25, a male was being arrested in a bus depot after being refused transportation forbeing intoxicated and spit on an officer. He had 29 prior convictions with 8 previous assaults. After receiving a 1 year sentence it wasreduced to 6 months upon appeal.

Other cases referenced by the Crown, in the case at bar, follow. R Charlette , 2010 SKCA 78 , 350 Sask R 315 [ Charlette ] - the Accused, while being put into cells, spit in a police officer’s face twice and on his clothing once; - the Accused had a minor youth record, a severe addictions problem and social issues. At paragraph 9 in Charlette the Saskatchewan Court of Appeal held: [9] In general, we accept the submissions of the Crown. Spitting on someone is a particularly distasteful and harmful form of assault.

It is almost always accompanied by the veiled or express threat of transmitting a communicable disease. The possibility of contracting a disease is real, and the fear of developing a disease preys on the victim’s mind for some time to come. Police officers, whose jobs require them to confront individuals in close quarters, have few resources to counter an assault of spitting.

In Charlette , the Court of Appeal allowed the appeal from the trial Courts sentence of 60 days of probation and replaced it with 60 days of incarceration plus six months of probation. [ 37 ] R v Custer , 2013 SKPC 66 , 418 Sask R 193 - this involved a case where the Accused spit into the face of a police officer; - the Accused had 15 prior convictions; - the Accused had addiction issues; - his sentence was four months incarceration. [ 38 ] R v Natomagen , 2016 SKPC 108 [ Natomagen ] - the Accused threw a blood soaked rag into the face of police officer; - the Accused had no criminal record; - the sentence imposed was 60 days incarceration plus 12 months of probation.

At para 25 of Natomagen Judge Lane had this to say: [25] In the circumstances I feel that I cannot do anything short of sending this accused into custody. To do otherwise would, in my view, ignore specific and general deterrence. It would specifically cause me to ignore s. 718.02 .

I cannot conclude that any sanction other than imprisonment is reasonable in the circumstances even considering the circumstances of this particular offender who is aboriginal. [ 39 ] R v Maier , 2015 ABCA 59 , 599 AR 44 [ Maier ] - the Accused spit into the face of a volunteer at a homeless shelter; - the Accused had a complex psychiatric history which was documented in Court; - the Accused’s mental illness played a

part in the offences; - the Accused had an extensive criminal record including violence. [ 40 ] At paragraph 39 in Maier the Court discussed the significance of mental illness in these types of offences. In quoting with

approval from the case of R v Diebel , 2007 ABCA 418 at 422 the Court stated: [39] In rejecting the argument that Diebel’s mental condition (which included bipolar disorder) ought to be treated as a mitigating factor, this Court found to the contrary at para 19 as follows: In our opinion, in the circumstances of this case, the respondent’s illness was not a mitigating factor and the trial judge erred in treating it as such. It is not disputed that the respondent suffers from a bipolar disorder and has for many years prior to this offence.

Nor is it disputed that the illness is treatable and that treatment has been prescribed for him but he has persistently refused it. It is also clear that left untreated, the respondent represents a significant threat to the safety of others. Gladue [ 41 ]

Section 718.2(

e) requires sentencing judges to consider Gladue factors in all cases involving an Indigenous offender. The Gladue analysis is comprised of two factors, both of which the Court must consider as outlined at paragraph 66 as follows: (

A) The unique systemic or background factors which may have played a

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

B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. [ 42 ] The first factor deals with the way unique systemic or background factors shed light on the issue of moral blameworthiness and evaluation of moral culpability. The second factor of Gladue relates more to the broader question of appropriate sanctions and the overall sentencing outcome. This second factor is tied to restorative justice goals ( R v Chanalquay , 2015 SKCA 141 at paras 36-38 , 472 Sask R 110). [ 43 ] Gladue and

section 718.2(

e) do not mandate an automatic race-based discount at sentencing. The Gladue analysis is linked inextricably to the foundational principles of sentencing and indeed is aimed at achieving a proportionate sentence that averts the overrepresentation of Indigenous people in the criminal justice system. [ 44 ] In the case at bar, Gladue factors were present and need to be considered as part of the sentencing process. Mitigating Factors [ 45 ] Mitigating factors in favor of Mr. Walker include: 1.

He has entered a plea at an early opportunity, approximately three months after the incident but prior to any substantive Court proceedings; 2. He has shown some remorse by apologizing the following day to a different police officer and offering his apologies in Court; 3. Mr. Walker’s history of mental illness while potentially mitigating is not overly significant here. No documentation was provided to the Court as to the state of his condition at the time of the offence. The Court only heard that he had been diagnosed as being bipolar and schizophrenic but that he takes medication for these conditions.

By all accounts it was Mr. Walker’s level of intoxication that had the most significant impact on his behavior that day.

Aggravating Factors 1. Mr. Walker has a prior criminal record, all within the last four years and including violence and alcohol related breaches. Mr. Walker described himself as a recovering alcoholic but on this day he, “fell off the wagon” when he succumbed to an invitation by others to go drinking. Mr. Walker must have known that when he drinks alcohol to excess, bad things happen. His criminal record would support this conclusion. Indeed, his lawyer’s submission during sentencing was that Mr. Walker “shouldn’t be drinking, and he knows that”! 2.

The act itself of blowing nostril mucus into one’s hand and then throwing it at a police officer and striking them is a deplorable and vulgar act of disrespect. The fact that Mr. Walker himself in addressing the Court, suggested that he did it in an attempt to scare off police for fear of COVID-19 is particularly concerning. At this time in our history where a lethal pandemic has gripped the world, taking the lives of millions of people, sickening countless others, and severely affecting the lives of all,

an act like the one attributable to Mr. Walker, is extremely concerning. The fact that he yelled out that he did not have COVID, was only marginally mitigating especially considering that asymptomatic persons can still transmit the virus; 3. The fact that Mr. Walker was belligerent to police right from the start of their interaction with him, swearing at police and remaining uncooperative with police, even after arrest, was aggravating. 4. The vulnerability of the victim. Police are called upon, as part of their everyday duties, to keep the peace and protect the public.

In the ordinary course of carrying out their duties they necessarily come into close contact with people. Police have no choice but to deal with these people and are particularly vulnerable to these types of attacks. Conclusion [ 46 ] I have often stated in this Court that with respect to the interaction between the police and the public, I hold the police to a very high standard of professionalism. It is the job of police officers to stay above the fray even when the people they deal with are entrenched in it. But there is another side to this equation.

I expect our citizens to reciprocally treat our police officers with respect and not unduly place their lives in danger. [ 47 ] Acts like the ones described in this case demonstrate a complete lack of respect. It is a detestable act. Police should not have to endure this type of treatment. When it does occur, significant consequences must follow. Indeed, denunciation and deterrence must be paramount considerations. The Criminal Code demands it. [ 48 ] Defence counsel proposed a conditional sentence. Defence argued that the actions of Mr. Walker were far different from a spit in the eye.

I cannot agree. [ 49 ] Although not a spit to the eye, Mr. Walker clearly viewed the mucus in his hand as a weapon, hoping to deter police from approaching. The risk of infection from COVID-19 is real and extremely high. The disease can be deadly. I do not view this any differently from a spit to the face for those reasons. [ 50 ] Significantly as well is that Mr. Walker has had the benefit of probation on several prior occasions. The last probation order he received was in January 2020 for a period of six months. He would have been freshly off his latest probation order when this incident occurred.

Additionally, he has three convictions for breaches of his probation orders.

[ 51 ] Notably however is the fact that Mr. Walker entered a guilty plea in this matter on November 26, 2020. The matter was to be adjourned for a short period to give the Court an opportunity to consider a just and appropriate sentence. In the meantime, the COVID- 19 pandemic caused the Fort Qu’Appelle Provincial Court circuit point to close. It remained closed to in person hearings for over seven months, reopening on June 24, 2021. During this time Mr. Walker remained on conditions of release, without incident. [ 52 ] On June 24, 2021 the Court accepted additional submissions relating to Mr.

Walker’s circumstances over the past seven months while waiting to be sentenced. I summarize them as follows: - these charges have caused Mr. Walker to suffer a great deal of anxiety, not knowing his fate as it related to these charges. Despite this, he has maintained his medications and his mental health has been relatively stable; - Mr. Walker has not drunk alcohol during this period of time. He acknowledged in Court how negatively it has impacted his life and therefore he has given it up; - Mr.

Walker, in the past seven months, has abided by all of his release conditions and has not had any involvement with police; - although he has not yet apologized directly to Cst. McCarthy, he again apologized in Court for his actions and advised the Court that he had stopped in at the RCMP station in Fort Qu’Appelle to apologize in person to Cst. McCarthy, but no one was around. [ 53 ] In the Court’s view, having taken into consideration all of the principles of sentencing, the Court finds that under normal conditions a period of incarceration of four months would be appropriate.

Given the extraordinary circumstances of COVID-19 and its direct effect on the sentencing process for Mr. Walker, the Court is imposing a period of incarceration for Mr. Walker, but in the community pursuant to a conditional sentence order, of four months. The conditions of that order in addition to any statutory conditions, will be as follows: 1. Report to a supervisor at 2 nd Floor, 1942 Hamilton Street, Regina, Saskatchewan, ph. (306) 787-3808 (toll free 1-888-586-6363) within two working days and after that as told to do so by your supervisor or designate. 2.

Live at a residence approved by your supervisor and not change that residence without the prior written permission of your supervisor or designate or the court. 3. For the first two months of this order, stay inside your approved residence 24 hours a day unless you have the prior written permission of your supervisor or designate or the court to be elsewhere and come to the door of your approved residence when asked to do so by a supervisor or designate or police officer who may be checking the residence and curfew conditions of this order. 4.

Not possess or consume alcohol, cannabis 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 marihuana or alcohol, such as bars, liquor stores or cannabis stores. 5. Participate in an assessment and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your supervisor. 6. Participate in assessment(

s) and complete programming for: mental health concerns or cognitive challenges. 7. Prepare a written apology to Cst. McCarthy approved by your supervisor and deliver that apology as told to do so by your supervisor within two months. 8. Not possess any firearms or ammunition, cross-bow, prohibited weapon, restricted weapon, prohibited device, prohibited ammunition or explosive substance. 9. Not possess a knife except when using a knife to eat. _______________________ K.A. Lang, J