His Majesty the King - v. -, 2023 SKPC 36

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 36 Date: May 12, 2023 Information: 991133979 Location: Prince Albert _____________________________________________________________________________ Between: His Majesty the King - and - Merlin Jr. Kahmahkotayo Appearing: Ms. Maureen M. Longworth For the Crown Mr. Dale N. Blenner-Hassett For the Offender SENTENCING DECISION S.D. SCHIEFNER, J INTRODUCTION [ 1 ] On January 24, 2023, I found Merlin Jr. Kahmahkotayo guilty of aggravated assault as a result of an incident that occurred on July 18, 2020. During this incident, Mr.

Kahmahkotayo violently assaulted his ex-father-in-law. See: R v Kahmahkotayo , 2023 SKPC 10 [ Trial Decision ]. On March 21, 2023, I received a detailed pre-sentence report (PSR), a copy of Mr. Kahmahkotayo's criminal record, and a victim impact statement from the victim, Richard Holliday. I also heard lengthy sentencing submission from experienced counsel. The Crown sought a jail sentence in the range of 3 years in light of the gravity of the offence and the aggravating factors, including the physical and emotional injuries sustained by the victim. Mr.

Kahmahkotayo took the position that a non-custodial sentence or, in the alternative, a mix of a custodial and non-custodial sentence, could satisfy the principles of sentencing and would be fit and just in light of the mitigating factors.

[ 2 ] On May 2, 2023, I gave my decision on sentencing. In so doing, I sentenced Mr. Kahmahkotayo to 18 months incarceration, together with concomitant ancillary orders. These are the written reasons for that decision. THE FACTS RELEVANT TO SENTENCING [ 3 ] On July 18, 2020, Mr. Kahmahkotayo stopped by his ex-partner's house to bring a birthday present to his daughter. Mr. Kahmahkotayo's ex-partner's name is Melissa. Earlier that day, Mr. Kahmahkotayo and Melissa had communicated by text messages about their daughter and her birthday. Mr. Kahmahkotayo said he wanted to come by the house and drop off a present.

However, during their conversation, Melissa told him not to. It was not that Melissa did not want Mr. Kahmahkotayo to see his daughter or that she did not want him to give her a birthday present, the problem was that her father (Richard Holliday) was already at her house, and she did not want a confrontation to occur. Melissa told court that, if her father had not been present, she would have allowed Mr. Kahmahkotayo to come by her house. However, when Melissa spoke with Mr. Kahmahkotayo that morning, her father was already there and so she told him not to come by. [ 4 ] Mr.

Kahmahkotayo did not follow Melissa's wishes and unfortunately her fears seem to have been well-founded. Having heard the evidence at trial, I was satisfied that Mr. Kahmahkotayo did not go to Mellissa's house to have a confrontation with Mr. Holliday or anyone else. He merely wanted to give a present to his daughter on her birthday. Nonetheless a confrontation did occur between Mr. Holliday and Mr. Kahmahkotayo. [ 5 ] As soon as Mr. Kahmahkotayo entered Melissa's backyard, Mr.

Holliday walked up to him and blocked him from coming further into the yard by standing in front of him and holding his arm out to the side. The two men were soon standing face to face, with Mr. Kahmahkotayo holding a birthday present for his daughter, and Mr. Holliday blocking him from coming to the yard and telling him that he should leave. Words were exchanged between the two and, as Melissa put it, Mr. Holliday “got up in his face” and told him to leave. In all of this, Mr. Holliday seemed to be oblivious to the fact that his presence was the reason that Mr. Kahmahkotayo could not see his daughter.

Having heard the evidence at trial, I find Mr. Holliday's demeanor toward Mr. Kahmahkotayo was disrespectful and unnecessarily enflamed the situation. [ 6 ] Mr. Kahmahkotayo testified that Mr. Holliday took a swing at him or initiated a motion that looked like he was going to take a swing at him. Having heard the evidence, I found that it was possible but unlikely that Mr. Holliday tried to punch Mr. Kahmahkotayo. However, regardless of whether or not Mr. Holliday tried to swing at Mr. Kahmahkotayo (which I think is unlikely), Mr. Kahmahkotayo's response to Ms. Holliday's conduct was criminal. Mr.

Kahmahkotayo punched Mr. Holliday in the face, knocking him to the ground. There is a compelling inference that Mr. Holliday was temporarily knocked unconscious. While Mr. Holliday was on the ground, Mr. Kahmahkotayo kicked him more than once. Either as a result of one massive punch to the face or as a result of being kicked in the face while the was on the ground, Mr. Holliday sustained serious injuries. [ 7 ] As I noted at para. 12 of the Trial Decision , medical records indicated Mr.

Holliday experienced a “nasal bone fracture” and a “sinus wall fracture”, as well as bruising and a laceration on the bridge of the nose. Mr. Holliday's eye socket was also broken, with discernible fractures of the right orbital rim. Finally, Mr. Holliday had a laceration inside his upper lip that required sutures. Mr. Holliday was also referred to an eye specialist. In the days following the incident, Mr. Holliday had black spots in his right eye that were treated with laser eye surgery - six treatments in total. It took approximately 5 ½ weeks for Mr.

Holliday's injuries to recover except for his nose (which remained crooked) and except for persistent migraine headaches. Simply put, Mr. Holliday experienced significant physical trauma as a result of the assault. Finally, Mr. Holliday reports experiencing post-incident emotional trauma. THE CROWN’S SENTENCING SUBMISSIONS [ 8 ] The Crown argued that a jail sentence in the range of 3 years for Mr. Kahmahkotayo would be fit and just. This position was based on the seriousness of the injuries Mr. Holliday experienced and other aggravating factors, including the fact that Mr. Kahmahkotayo was told by Ms.

Holliday not to come to her house that day; the fact that Mr. Holliday was an older and a physically frail person; the fact that children were present; and the fact that this assault occurred in the context of a troubled domestic relationship - the victim was Mr. Kahmahkotayo's ex-father-in-law. [ 9 ] In arriving at its sentencing position, the Crown relied upon the following cases: • R v Sayazie , 2010 SKCA 14 , 346 Sask R 147 [ Sayazie ]: This case stands for the proposition that the sentencing range for

aggravated assault is 2 years to 4 years assuming an offender of otherwise good character with no criminal record. The assault that Mr. Sayazie's committed on his then common-law partner was described as "inordinately brutal" and there were substantial aggravating factors, including the loss of a fetus that was being carried by victim; the actions of the offender were calculated and premeditated; and the offender had a history of violence (albeit no record for violence). The Court of Appeal increased Mr.

Sayazie's sentence from 9 months (plus 18 months’ probation) to 3 years. • R v Ratt , 2021 SKCA 7 [ Ratt ]: This case reminds us that aggravated assault is the most serious category of non-lethal, non-sexual assault - to commit aggravated assault an offender must wound, maim or disfigure another human being. The Court described aggravated assault as being in the "upper echelon of offences, in terms of objective gravity". In Mr. Ratt's case, he punched his victim in the mouth with enough force to cause a deep cut in his lip and dislodge two of his front teeth.

The assault occurred after the two men came across each other in a back alley and the victim wanted a drink of Mr. Ratt's whiskey. While the men knew each other, no provocation is evident from the record - other than the victim wanted a drink of Mr. Ratt's alcohol. An aggravating factor was Mr. Ratt's preceding 15- year history of unrelenting violence and use of weapons toward members of his community, notwithstanding multiple opportunities for rehabilitation. While the Court acknowledged that Mr.

Ratt had experienced a traumatic and dysfunctional upbringing, the Court concluded that, his Gladue [1] factors had only a marginal impact on the determination of a fit sentence because of his relentless history of violent offending and the extent to which he had already been given credit for such factors prior to sentencing. The Court of Appeal increased Mr. Ratt's sentence from 48 months to 5 ½ years. • R v. Noltcho , 2021 SKCA 113 [ Noltcho ]: In this case, Mr. Noltcho went to the home of the victim and began drinking with him. At some point, Mr. Noltcho accused the victim of stealing money from him.

Believing that the victim stole from him, Mr. Noltcho "came at" the victim, knocking him to the ground, and then repeatedly kicking him in the head and the body. The victim required 9 to 10 stitches to close wounds and has residual scars on his face following the assault. At the time of sentencing, Mr. Noltcho had 83 prior convictions over the preceding 26 years. Fourteen of these convictions were for violence. However, there had been a 7 year “gap” in Mr. Noltcho's record immediately prior to the incident. Again, despite Mr.

Noltcho's Gladue factors and the gap in his record, the Court imposed a sentence of 58 months largely because of Mr. Noltcho's extensive criminal record. • R v Jimmy , 2023 SKCA 28 , 423 CCC (3d) 60 [ Jimmy ]: In this case, Mr. Jimmy and the victim were drinking. At some point a dispute arose, and Mr. Jimmy punched his victim in the face, knocking him to the floor. Mr. Jimmy then proceeded to stomp on and kick the victim's head and body, delivering multiple blows and leaving the victim unconscious and bleeding.

The victim suffered a significant hematoma ultimately causing facial impairment, slurred speech, and impaired memory, cognitive function and motor skills. The Court of Appeal increased the sentence from 2 years to 3 years. MR. KAHMAHKOTAYO’S SENTENCING SUBMISSIONS [ 10 ] Defence took the position that a non-custodial sentence or, in the alternative, a mix of custodial and non-custodial sentences could satisfy the principles of sentencing. In taking this position, defence argues that Mr. Holliday's conduct was highly prevocational.

Counsel pointed to a number of mitigating factors, including provocation, Gladue and Mr. Kahmahkotayo's personal circumstances. Gladue Factors : [ 11 ] Mr. Kahmahkotayo is a treaty member of the Little Pine First Nation. In his PSR, the author documented a number of difficulties that Mr. Kahmahkotayo experienced as a young person of Aboriginal descent. While Mr. Kahmahkotayo's parents were educated, employed and financially secure, he was nonetheless raised around alcoholism, and he witnessed violence toward his mother by his father and subsequent partners in her life. Mr.

Kahmahkotayo experienced bullying from other kids who thought “he was better than them” (because his dad had a nicer home and because he lived a higher standard of living than them). Mr. Kahmahkotayo's parents separated when he was young, and the family moved multiple times both before and after separation. As a barometer of how many times Mr. Kahmahkotayo moved, I note that he changed schools 24 times! In speaking with the author of the PSR, Mr. Kahmahkotayo's mother acknowledged that she consumed alcohol on a regular basis and that Mr.

Kahmahkotayo was regularly exposed to domestic violence and cruel treatment in his home. Tragically, Mr. Kahmahkotayo's father died in 2021 because he missed two dialysis treatments at a time when he was homeless. Provocation [ 12 ] While acknowledging that his client's actions were wrong, defence counsel takes the position that Mr. Holliday's conduct toward Mr. Kahmahkotayo was a provocation - he was disrespectful and unnecessarily inflamed the situation between the two men. Defence counsel noted, as did I, that Mr. Kahmahkotayo did not go to Melissa's house to have an altercation with Mr.

Holliday or anyone else - he went to the house to simply deliver a birthday gift to his daughter on her birthday. While acknowledging that he could have - should have - just walked away when Mr. Holliday became belligerent with him, defence counsel notes that this whole mess started when Mr. Holliday got up in his face - when all he wanted to do was gift this daughter a birthday present. Personal Circumstances [ 13 ] Mr. Kahmahkotayo has worked most of his adult life (at least until recently).

He obtained a “General Education Development” certificate and, between 2008 and 2013 worked at Spruce Lodge Boarding House. From 2013 to 2018, Mr.

Kahmahkotayo worked in Prince Albert at the Northern Lights Casino. In 2018, he started working at Canadian Tire. While Mr. Kahmahkotayo has an impaired driving charge from 2014, alcohol and substance use have not been an issue in his life. Mr. Kahmahkotayo's peers are prosocial and he has never associated with gang members. In November of 2022, Mr. Kahmahkotayo attended a two-day anger management program (“Calming the Storm”) that helps participants identify the sources of anger and helps develop strategies for coping with anger. Defence counsel notes that Mr.

Kahmahkotayo is of good moral character and has taken measure to address the mistake that he made on July 18, 2020 in assaulting Mr. Holliday. [ 14 ] Mr. Kahmahkotayo has a criminal record. It consists of a .08 from 2014 and a breach of an undertaking from 2018. This later incident arose when Mr. Kahmahkotayo breached a condition of an undertaking to have no contact with Mellissa Holliday. THE PRINCIPLES OF SENTENCING [ 15 ] At its core, the purpose of sentencing is to promote a peaceful and safe society through the imposition of just sanctions.

To help courts arrive at a just sanction, a number of principles and objectives are set out in the Criminal Code . For example, s. 718 includes the principles of denunciation, deterrence, and rehabilitation This

section also asks the Courts to promote a sense of responsibility in offenders, including an acknowledgement of the harm they have done to society and victims through their actions.

Section 718.2 sets forth a list of additional factors that must be taken into consideration during the sentencing process, including the principles of parity, totality, and restraint. The objective of sentencing is to find a fit and just sanction in light of the gravity of the offence, the blameworthiness of the offender, and the harm caused by the offences. [ 16 ] By its nature, sentencing is a highly individualized process and judges enjoy broad discretion in sentencing.

Whatever weight a judge may accord to the various objectives and principles listed in the Criminal Code , the resulting sentence must be proportionate. See: s. 718.2. Proportionality is essential to a just and fit sentence. To determine a proportionate sentence, the Court must first consider the offender's conduct at the societal level, including the harm done to victims and the community - to ensure that the sentence reflects the gravity of the offences. This is closely tied to denunciation. It promotes justice for victims and ensures the public's confidence in the justice system.

The sentence is then tempered at the individual level - by looking at the circumstances of the offender to ensure that the sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. Doing so, both serves the interests of restraint and ensures justice for the offender. See: R v Ipeelee , 2012 SCC 13 at para 37 , [2012] 1 SCR 433. ANALYSIS AND CONCLUSION [ 17 ] To begin, I am mindful of the gravity of the offence. As noted by our Court of Appeal in Ratt , an aggravated assault is “in the upper echelon of offences, in terms of objective gravity”.

It is the most serious form of non-lethal, non-sexual assault. We are here today because Mr. Kahmahkotayo caused serious bodily injury, together with psychological harm, to Mr. Holliday. However, there are also a number of aggravating factors that I must take into consideration, including:

(1) The fact that Mr. Kahmahkotayo was told by Ms. Holliday not to go to her house that day.

(2) The fact that Mr. Holliday was an older and a physically frail person. It must also be noted that at least some of the assault occurred while Mr. Holliday was entirely defenseless and lying on the ground.

(3) The fact that children were present and now another generation of Aboriginal youth have been exposed to violence. These children have now been taught two dangerous and distasteful lessons: First, if someone gets in your way, you knock them down. Second, if someone disrespects you, you break their face. Tragically, Mr. Kahmahkotayo's conduct has resulted in an inter-generational transfer of trauma.

(4) The fact that this assault occurred in the context of a domestic relationship - the victim of which is Mr. Kahmahkotayo's ex-father- in-law. [ 18 ] Having considered the gravity of the offence and the aggravating factors, I have concluded that the principle of sentencing cannot be satisfied by a community-based disposition as hoped by Mr. Kahmahkotayo. Because of the gravity of the offence and the aggravating factors, the principles of sentencing can only be satisfied by imposing a significant period of incarceration. Even though Mr.

Kahmahkotayo has been a contributing member of society, a person of good moral character, and comes before the Court with a minimal criminal record, the upper end of the sentencing range could be as high 28 months because of the aggravating factors. [ 19 ] However, a sentence must be tempered at the individual level - by examining Mr. Kahmahkotayo's personal circumstances and his moral blameworthiness for what happened. As indicated, Mr. Kahmahkotayo, for the most part, can be described as a person of

good moral character - at least he could prior to this incident. While he had a .08 in 2014 and breached an undertaking in 2018, he does not have the kind of prior criminal record as seen in Ratt or Noltcho . However, the absence of a history of violence or related criminal record is not a mitigating factor - it is merely the absence of an aggravating factor. [ 20 ] In my view, there are three mitigating factors that are relevant to sentencing:

(1) Gladue Factors : Mr. Kahmahkotayo was over exposed to domestic violence as a youth. He also experienced family breakdown and racism. Finally, his father recently passed away under very tragic circumstances.

(2) Self-Awareness and Treatment : Mr. Kahmahkotayo is genuinely remorseful for what happened. Throughout the trial, I had many occasions to observe Mr. Kahmahkotayo. Mr. Kahmahkotayo’s remorse for what happened was palpable. In addition, he self-enrolled in treatment and completed the "Calming the Storm" program. Through his own initiative, Mr. Kahmahkotayo has already begun a meaningful journey of rehabilitation.

(3) Provocation : While I do not wish to blame the victim, the reality is that Mr. Holliday was seemingly unaware that he was the reason that Mr. Kahmahkotayo was not able to see his daughter on her birthday. To make matters worse, his conduct toward Mr. Kahmahkotayo was wholly disrespectful and unnecessarily inflammatory. Provocation does not in any way excuse Mr. Kahmahkotayo's conduct but it is a factor that I may take into consideration in understanding his moral blameworthiness for the events that occurred.

See: R v Charles , 2021 SKCA 75 at paras 55 to 57 . [ 21 ] In my opinion, when the aggravating and mitigating factors are balanced, the appropriate sentence is 18 months in custody. This sentence reflects the gravity of the offences - it reflects society's need to denounce both the violence that occurred, and the harm done to the victim and the community because of that violence. This sentence is obviously shorter than the sentences that were imposed in Sayazie , Ratt , Noltcho , and Jimmy .

However, in the case of Sayazie , there was premeditation, and the consequences were far worse for the victim (including the loss of a fetus). In Ratt and Notcho , both offenders had significant histories of violence (in fact, unrelenting histories of violence). Not to discount the serious injuries sustained by Mr. Holliday, the simple fact is that the long-term injuries sustained by Mr.

Jimmy's victim were significantly worse (including loss of cognitive function, slurred speech, and impaired memory). [ 22 ] Finally, I would like to note that, in coming to my decision on sentencing, I am aware that the sentence imposed on Mr. Kahmahkotayo is below the range established by our Court of Appeal in Sayazie (2 to 4 years). In this particular case, Mr. Kahmahkotayo’s sentence has been tempered – has been reduced because of the significant mitigating factors. Having considered the unique facts of this case, I am satisfied that 18 months in jail is sufficient to denounce Mr.

Kahmahkotayo's violence, to deter others from making the same mistake, and will maintain public confidence in our justice system, but the sentence has also been adjusted to reflect Mr. Kahmahkotayo’s moral culpability for the violence that occurred on July 18, 2020 in light of his personal circumstances, his Gladue factors, and provocation. Dated this 12th day of May, 2023, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J