Her Majesty the Queen - v. -, 2019 SKPC 34

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 34 Date: June 13, 2019 Informations: 90172181, 90172194, 90176136, 99051587, 90181513, 90181502 & 90181504 Location: Prince Albert, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Erin Mindy Whitefish Appearing: Ms. Fran Atkinson For the Crown Mr. Dale Blenner-Hassett For the Offender REASONS FOR DECISION S.D.

SCHIEFNER, J INTRODUCTION [ 1 ] These are my reasons for rejecting a joint sentencing submission recommended to the Court following a plea agreement negotiated by counsel for Ms. Whitefish with the Crown. While the plea agreement and sentencing recommendations were negotiated by experienced and respected counsel, it was my opinion that neither the total nor the individual sentences recommended to the Court conformed to the principles of sentencing.

Of particular significance, it was my opinion that imposing the sentence as recommended would have brought the administration of justice into disrepute. [ 2 ] These are also my reasons for imposing a different sentence.

BACKGROUND [ 3 ] On March 26, 2019, Ms. Whitefish pled guilty to 19 counts contained on seven different informations/indictments.

These counts include: • Three charges of possession of stolen property over $5000 - s. 354(1) • Three charges of possession of stolen property under $5000 s. 354(1) • Joyriding (take vehicle without consent) - s. 335 • Two charges of stealing property under $5000 - s. 334(b) • Two charges of possessing a weapon for a dangerous purpose - s. 88 • Breaking & entering (non-residence) - s. 348(1)(b) • Breaking & entering a dwelling house and stealing firearms - s. 98 • Using a firearm during flight following commission of offence - s. 85(2)(c) • Operate MV in dangerous manner (flight from police) - s. 249(1)(a) • Evade police – fail to stop while being pursued (flight from police) - s. 249.1 • Assault (another inmate at Pinegrove Correctional Centre) - s. 266 • Two counts of breach of recognizance (possession of a knife + curfew) - s. 145(3) [ 4 ] As part of Ms.

Whitefish’s plea agreement, counsel jointly recommended a global sentence of 15 months in custody followed by a period of probation. As of March 26 th , 2019, Ms. Whitefish had been in custody for 304 days. With enhanced credit for this remand time, this was the equivalent of 456 days or 15 months. The joint submission was based on the assumption that Ms. Whitefish’s time spent on remand would be sufficient to satisfy the custodial portion of the global sentence recommended by counsel and she would have been released on that day. In other words, on March 26, 2019, Ms.

Whitefish thought she was going to be released from custody. CIRCUMSTANCES OF REJECTING JOINT SENTENCING RECOMMENDATION [ 5 ] Upon hearing submissions from counsel on March 26, 2019, I gave notice to counsel of my concern that the joint recommendation may not conform with the principles of sentencing.

Specifically, I shared my concern that the total and individual sentences may not adequately emphasize the principles of proportionality, denunciation and deterrence, and that imposing the sentence as recommended could bring the administration of justice into disrepute. [ 6 ] At that point, the Court adjourned to provide counsel with an opportunity to make additional submissions. [ 7 ] Following that adjournment, the Court heard additional submissions which included the Crown acknowledging potential evidentiary weaknesses in some of the charges for which guilty pleas had been entered, Ms.

Whitefish’s limited and dated record, and the assertion by defence of Ms. Whitefish’s reduced moral culpability. [ 8 ] I reserved my decision on accepting or rejecting the joint submission. [ 9 ] On April 11, 2019, I gave an oral decision. I rejected the joint sentence that had been recommended to the Court and I sentenced Ms. Whitefish to a global sentencing of 32 months in custody (less remand credit) together with concomitant ancillary orders. CIRCUMSTANCES OF THE OFFENCES

[ 10 ] All of the subject offences occurred over a 43 day period, commencing on April 13, 2018 and ending on May 26, 2018. Ms. Whitefish admitted to engaging in a drug-fueled, rural crime spree in April/May of last year in the areas of Big River and Debden. While denying that she was the guiding mind behind these offences, Ms. Whitefish accepted responsibility for her role in each of the offences. For several of the charges, Ms.

Whitefish accepted responsibility on the basis of her involvement as a party to the offences. [ 11 ] I will revisit the circumstances of each offence in greater detail later in these reasons. CIRCUMSTANCES OF THE OFFENDER [ 12 ] Ms. Whitefish is a 29 year old Aboriginal woman from Big River First Nation, Saskatchewan. She had a troubled childhood that included exposure to poverty, addictions and abuse. She admits to using and becoming addicted to crystal meth and hanging out with a negative social group that supported that addiction. She is a young woman with a grade 12 education with some employment experience.

She has three young children.

a) Criminal Record [ 13 ] At the time of sentencing, Ms. Whitefish had a very dated criminal record. Ms. Whitefish had a youth record which I was satisfied was accessible and properly before the Court pursuant to the Youth Criminal Justice Act , SC 2002, c. 1 . Ms. Whitefish’s first youth charges were in 2005, for theft under, failure to stop, care and control over 80, obstruction of a peace officer, and failure to comply with an undertaking, for which she received a conditional discharge. In addition, there was a 2006 conviction for mischief, together with a 2007 conviction for robbery and a number of breaches.

Her only convictions as an adult are one conviction for driving while disqualified in 2007, for which she received a $400.00 fine, and a conviction for breach of probation, for which she received a $100.00 fine. [ 14 ] While I was satisfied that Ms. Whitefish’s criminal record, including her youth record, could and should be considered by the Court, the very dated nature of this information limited the weight I gave it. Simply put, there was a 12 year gap since Ms. Whitefish’s last offence in 2007. ANALYSIS

a) Law Respecting Joint Submissions [ 15 ] The leading case on joint submissions is R v Anthony-Cook , 2016 SCC 43 [ Anthony-Cook ]. The Court in Anthony-Cook noted that plea agreements are not possible unless the Crown and defence have a high degree of confidence that the sentencing judge will accept their joint sentencing recommendation. To facilitate this confidence, the Court clarified that the test for rejecting a joint submission is not whether or not the sentence is “fit”. The test is more stringent than that.

Under the public interest test, a sentencing judge must not depart from a joint recommendation unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest ( Anthony-Cook at para. 32 ). The Court in Anthony-Cook suggests that it may be appropriate for a sentencing judge to accept a joint submission that appears “unduly lenient” in cases where the Crown has obtained concessions as a result of the plea arrangement.

The more benefits obtained by the Crown, the greater onus on the sentencing judge to accept the joint submission ( Anthony-Cook at para. 53 ). [ 16 ] In my opinion, the joint sentencing recommendation for Ms. Whitefish crossed the high threshold established by the Court in Anthony-Cook . As I will explain in further detail later in these reasons, the proposed sentence failed to adequately address the principles of proportionality, denunciation and deterrence. It placed too much emphasis on mitigating factors and the concessions which had been obtained by the Crown.

In my opinion, the sentence as recommended would have caused the public to conclude that the justice system had failed. Of particular significance were the requirements imposed by s. 85(3) (

a) and s. 85(4) of the Criminal Code .

b) Impact of s. 85 on the Joint Submission Recommended by Counsel

[ 17 ]

Section 85 sets out a category of criminal offences prohibiting the use of a firearm or imitation firearm while committing or attempting to commit an indictable offence or during flight after doing so. As part of the plea agreement, Ms. Whitefish plead guilty to use of a firearm (as a party) during flight from the commission of an indictable offence (break and enter into a dwelling house and theft of firearms). [ 18 ] Section 85(3) mandates a minimum punishment of 1 year in custody (as this was Ms. Whitefish’s first offence under s. 85).

Furthermore, pursuant to s. 85(4) , this sentence must be served consecutively to any other punishment arising out of the same event or series of events. [ 19 ] Imposing the recommended global sentence of 15 months would have required this court to impose the mandatory minimum for Ms. Whitefish’s plea to the s. 85(2)(

c) offence (12 months), no more than 3 months for breaking and entering a dwelling house contrary to s. 348(1)(

b) and no more than 3 months for any of the other 17 counts to which Ms. Whitefish had pled guilty. Furthermore, all of these latter sentences would have had to be imposed concurrent to each other. [ 20 ] I acknowledge that the sentence proposed by counsel would have been lawful. In arriving at the decision to reject the joint submission, I also acknowledge that there were some difficulties with some aspects of the Crown’s case and that concessions were obtained from Ms. Whitefish.

However, the concessions obtained did not justify the dramatic departure from requisite principles of sentencing. [ 21 ] The sentences I would have been required to impose would have been wholly disproportionate to the gravity of the offences and Ms. Whitefish’s moral culpability in committing them. The resultant sentences would have failed to adequately denounce the danger and violence associated with Ms.

Whitefish’s conduct, or the fact that she repeatedly and perniciously preyed on the vulnerabilities of rural residents, or the violence she directed at another inmate while on remand, or the shocking number of individuals she violated in 43 days. The resultant sentence would have been inadequate in terms of deterrence (either individually or generally) and it would not have promoted respect for the law or acknowledged the harm caused by her actions.

With all due respect to the experienced counsel that negotiated it, the recommended sentence was deeply flawed and demonstrably unfit – so much so that to impose it would have brought the administration of justice into disrepute. [ 22 ] For these reasons, I rejected the joint sentencing recommendations I received from counsel on March 26, 2019.

c) Determination of a Fit and Just Sentence in all the Circumstances [ 23 ] The purposes and objectives of sentencing are set out in

section 718 of the Criminal Code . They include: denunciation, deterrence, separation of offenders from society where necessary, rehabilitation, reparation to victims, promotion of a sense of responsibility and acknowledgement of harm done.

Section 718.1 of the Criminal Code directs that a sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender (the principle of proportionality). Finally,

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. This is a holistic approach directed at finding the appropriate sanction for an offender in light of a matrix of important considerations.

d) Proportionality [ 24 ] The principle of proportionality is the fundamental principle of sentencing. Pursuant to s. 718.1 , a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In R v Lacasse , 2015 SCC 64 , 333 CCC (3d) 450 [ Lacasse ], the Supreme Court of Canada stated that a sentence will be “demonstrably unfit if it constitutes an unreasonable departure from this principle” ( Lacasse at para 53 ).

Proportionality is determined both at the individual level – by looking at the circumstances of the offender and the commission of the offence – and comparatively – by looking at “sentences imposed for similar offences committed in similar circumstances” ( Lacasse at para 53 ).

e) Aggravating and Mitigating Factors [ 25 ] Rural crime is a serious problem in Western Canada, with many rural residents feeling vulnerable and unsafe. Rural crime

occurs in areas of lower population density and in circumstances where police assistance is not immediately present. Many ruralresidents, like the Collins, have installed elaborate security systems and utilize specialized communications systems. Unfortunately,feelings of vulnerability can cause rural residents to engage in dangerous and unsafe practices, such as storing loaded firearms andpursuing suspects in vehicles. While I understand Mr. Collins’ motivation, his actions were dangerous and concerning for this Court. Theaggravating factor for sentencing is that Ms.

Whitefish’s offences involved preying on the security vulnerability of rural residents anddoing so in the face of palpable public concerns over rural crime. [26] Obviously, the facts that an occupied dwelling home was entered, that guns were stolen, and a firearm was used in flight fromthe commission of these offences are highly aggravating factors. It would be an error in both law and judgment to under-estimate theaggravating nature of these facts. [27] Another aggravating factor was the sheer number of victims involved in Ms.

Whitefish’s conduct, including the owners of atleast four different stolen vehicles and two stolen license plates, and the owners of the two farms where fuel was stolen and propertydamaged. Another victim, Ms. Weasel, was violently assaulted by Ms. Whitefish while both women were in an institution. The Villageof Debden and the people relying on the protection of their fire department were seriously impacted by the loss of the community’sprotective equipment. Finally, anyone driving in the Ahtahkakoop & Debden area on May 25, 2018, was endangered by Ms.

Whitefish’shigh-speed and dangerous flight from police. [28] These crimes occurred over a 43 day period. These were not impulsive acts and Ms. Whitefish had multiple opportunities tostop offending. It is an aggravating circumstance that most of these incidents occurred while Ms. Whitefish was on bail: an offender’sdefiance of the law can be inferred from the act of committing further offences while at liberty on bail awaiting trial. See: R v McKinney(1963), (SK KB), 40 CR 137 (Sask QB) [McKinney]. See also: R v Fyfe, 2017 SKQB 5 at para 86.

f) Mitigating Factors [29] Ms. Whitefish’s guilty pleas are a mitigating factor. To her credit, she has saved many witnesses from having to testify byaccepting responsibility and pleading guilty. [30] Ms. Whitefish is an Aboriginal woman with relevant Gladue factors that are mitigating. Her unique and systemic backgroundfactors shed light on her moral culpability. Ms. Whitefish is from Big River First Nation, which is Treaty 6 territory. She had a difficultchildhood and was exposed to addiction, violence and poverty as a young person. She is a survivor of abuse.

I also take judicial notice ofthe systemic and background factors affecting Aboriginal women, including the history of colonialism and the generational impact of thetraumas caused by residential schools. [31] I also acknowledge that s. 718.2(

e) of the Criminal Code is a remedial provision aimed at addressing the over-incarceration ofAboriginal people and to “encourage sentencing judges to have recourse to a restorative approach to sentencing”. See: R v Ipeelee, 2012SCC 13, 280 CCC (3d) 265, at para 59 [Ipeelee]. In applying this analysis to Ms. Whitefish, I must consider two factors: (1) the uniquesystemic or background factors which may have played a role in Ms. Whitefish coming before the courts, and; (2) the types of sanctionsthat may be appropriate given Ms.

Whitefish’s Aboriginal heritage (Ipeelee at para 59). [32] In R v Chanalquay, 2015 SKCA 141, 472 Sask R 110, the Saskatchewan Court of Appeal states that “Gladue and Ipeelee arenot unvarnished calls to impose shorter jail sentences on Aboriginal offenders” (para 36). In other words, the Gladue analysis is not a“race-based discount” (Ipeelee at para 75). Rather, the Gladue analysis requires me to consider how the person’s history and backgroundilluminate the question of moral blame. [33] Ms. Whitefish’s personal background factors bear on her culpability.

Her exposure to violence and substance abuse from ayoung age and her other personal background factors that were put forward by defence counsel at sentencing paint a compelling pictureof a young Aboriginal woman who has faced a number of systemic barriers and who now struggles with an addiction. [34] I also take judicial notice of the systemic barriers to Aboriginal persons living in and around Big River First Nation, and thehistory of colonialism and residential schools affecting the residents of that Aboriginal community. [35] While I have the greatest sympathy for Ms.

Whitefish, her intentional involvement in the subject offences necessitates a

lengthy period of incarceration; particularly so in light of the negative impact of her actions on vulnerable residents of rural Saskatchewan and the violence and danger associated with her conduct. In cases such as this, where there is no alternative to incarceration, the length of that sentence is my primary consideration in a Gladue analysis. See: R v Whitehead, 2016 SKCA 165 , 344 CCC (3d) 1.

g) Totality Analysis [ 36 ] Ms. Whitefish pled guilty to 19 different offences. Because some of the resulting sentences must be served consecutively (and others ought to be served consecutively), I was required to consider the principle of totality. The purpose of the totality principle is to ensure that consecutive sentences do not result in a global total sentence that is unduly long or harsh. The totality principle is applied by first considering the cumulative effect of all individual sentences.

If the aggregate of these sentences would result in a total sentence that is unduly long or harsh, then the sentencing judge may adjust the length of the individual sentences to arrive at a global sentence that is appropriate under the circumstances. See: R v Nagy , 2013 BCCA 419 and R v Bear , 2016 SKCA 140 . A sentencing judge also has the discretion to direct that sentences that ought to be served consecutively will instead be served concurrently in order to avoid an unduly harsh total sentence.

h) Consecutive vs. Current Sentences [ 37 ] There is a presumption of concurrency at sentencing. Generally speaking, offences arising from the same transaction or series of events ought to result in concurrent sentences. However, such is not always the case and there are exceptions. [ 38 ] A review of case law would suggest that consecutive sentences may be required to conform with certain principles of sentencing. For example: • Offences that involve the invasions of different legally protected interests may be consecutive.

See: R v Clouthier , 2016 ONCA 197 , at para 55 ; • Assaults committed in a correctional institution will generally result in a consecutive sentence. Denunciation and deterrence will often call for a consecutive sentence to promote safety of both inmates and staff at correctional institutions. See: R v Drader , 2014 ABCA 69 [ Drader ]; • Sentences for offences committed while an offender is on bail will generally be imposed consecutive to the offence for which that person was released on bail. See: s. 718(4) (b)(ii) of the Criminal Code . Otherwise, offenders could commit offences while on bail with impunity.

See: McKinney ; • Offences involving flight from police are generally consecutive to sentences for preceding criminal conduct even if arising out of the same series of events. As the Alberta Court of Appeal noted in R v Cardinal , 2011 ABCA 195 [ Cardinal ], a sentencing regime should not create an incentive to flee from police once another crime has been committed. CIRCUMSTANCES OF EACH OFFENCE AND DISPOSITION [ 39 ] With these principles in mind, I will now turn to the offences and my determination as to a fit and just sentence for each.

a) Information 90172181 [ 40 ] On April 13, 2018, at about 1:00 p.m., the Ahtahkakoop RCMP were called to the local store because of a complaint that a man and a woman were fighting in a truck parked nearby. A witness observed Ms. Whitehead fighting with her then partner, Elvis Bird. The witness observed that Ms. Whitefish had a steak knife and that she slashed Mr. Bird in the arm after he elbowed her. When the RCMP arrived the truck had moved away but it was later located. When located, Ms. Whitefish was (or had been) driving the truck and it was stolen.

When searched, the RCMP discovered two stolen license plates inside the truck. The Crown noted that Mr. Bird was unwilling to testify, undermining the cogency of the Crown’s case. As part of the plea agreement, Ms. Whitefish plead guilty to count (4) - possession of stolen property with a value exceeding $5,000 (the vehicle) as well as counts (5) and (6) – possession of stolen property not exceeding $5,000 (one count for each licence plate). [ 41 ] In my opinion, while Ms. Whitefish had a 12 year gap in her record at this point, the lack of remorse apparent by subsequent

conduct suggests the appropriate sentence for each of these offences would have been 30 days in custody on each count – with each count served concurrent to each other. However, by April 11, 2019, Ms. Whitefish had already served this sentence while she had been on remand. As a result, I imposed a sentence of 1 day in custody (her day in Court that day) with an endorsement on the record that she has served 30 days on remand (being 20 actual days in custody). No ancillary orders were sought or necessary.

b) Information 90172194 [ 42 ] On April 29, 2018 - fifteen days after having been released by an officer in charge on Information 90172181 - Ahtahkakoop RCMP received a complaint that a truck had been taken by Ms. Whitefish without the consent of the owner (Mario Benincasa). Later that day, Mr. Brian Bischler, the owner of a rural property in the R.M. of Canwood called RCMP to indicate that a truck had entered his farmyard just after midnight, that the truck had pulled up to his fuel storage tanks and that two people were moving between the tanks trying to steal gasoline.

The owner also indicated the suspects were trying to get into the buildings in his yard but were unable to do so. [ 43 ] When RCMP attended to the property, Ms. Whitefish was located in the truck and had a strong odour of diesel fuel on her person. When the vehicle was searched, a Browning rifle was located inside. It was later determined that the rifle was stolen. [ 44 ] As part of a plea agreement, Ms.

Whitefish pled guilty to 3 counts on March 26, 2019: Count #1 – taking a motor vehicle without owner’s consent; Count #2 – stealing property a value not exceeding $5,000 (diesel fuel); and Count #3 – possession of a weapon for a dangerous purpose (a Browning rifle). [ 45 ] In my opinion, given the prior and subsequent incidents, the appropriate sentence would have been 3 months in custody on each of the count – all counts concurrent to each other but consecutive to the prior sentence. See: McKinney . However, for reasons of totality and because of Ms.

Whitefish’s Gladue factors and her early plea, I concluded that this sentence ought to be served concurrent to date. At the time of sentencing, Ms. Whitefish had already served this sentence while on remand. As a result, I sentenced Ms. Whitefish to 1 day in custody (her day in Court that day) and the record was endorsed to reflect that she had served 90 days on remand (being 60 actual days in custody). No ancillary orders were sought or necessary.

c) Information 90176136 [ 46 ] On May 8, 2018, Ms. Whitefish was released on a recognizance with a 24 hour curfew and a condition that she comply with terms of the Electronic Monitoring program [EM]. Twelve days later, on May 20, 2018, at approximately 1:00 a.m., the EM monitoring office received a notification of a fault in Ms. Whitefish’s equipment at her approved residence. When police attended, she was not present. On March 26, 2019, Ms.

Whitefish pled guilty to count #1 - breach of her recognizance. [ 47 ] Under all the circumstances, the appropriate sentence would have been 30 days in custody consecutive to both Information 90172181 and 90176136. See: McKinney . However, for reasons of totality and because of Ms. Whitefish’s Gladue factors and her early plea, I was satisfied that this sentence ought to be served concurrent to date. As a result, I sentenced Ms.

Whitefish to 1 day in custody (her day in Court that day) and the record was endorsed to acknowledge that she had served 30 days on remand (being 20 actual days in custody). [ 48 ] Thus far in sentencing, I had used 90 days of Ms. Whitefish’s remand credit.

d) Information 991051587 [ 49 ] After Ms. Whitefish was arrested on April 29, 2018, she was on remand at the Pinegrove Correctional Centre. While there, on May 3, 2019, Ms. Whitefish assaulted Frances Weasel, another inmate at that institution. Ms. Weasel indicated that Ms. Whitefish entered her bunk while she was sleeping. Ms. Weasel indicated that Ms. Whitefish suddenly attacked her, punched her, kicked her, pulled her out of her bunk and then continued to punch, kick and pull her hair.

[ 50 ] Ms. Weasel told police that the attack was unprovoked. Visible bumps were noted on Ms. Weasel and some of her hair had been pulled out. Video recordings confirmed Ms. Weasel’s description of events. As part of the plea agreement, Ms. Whitefish pled guilty to common assault. [ 51 ] Under all the circumstances, the appropriate sentence would have been 90 days in custody. Even acknowledging the principle of totality, Ms. Whitefish’s Gladue factors and her plea arrangement, denunciation and deterrence require that this sentence be served consecutively and not concurrently. See: Drader .

Even with a consecutive sentence, Ms. Whitefish had already served this sentence while on remand. As a result, I sentenced her to 1 day in custody (her day in Court that day) and the record was endorsed to acknowledge that she has served 90 days on remand (having been served by 60 actual days in custody). [ 52 ] Thus far in sentencing, I had used 180 days of Ms. Whitefish’s remand time.

e) Information 90181513 - Counts 1 & 2 [ 53 ] As indicated, Ms. Whitefish was released on a recognizance on May 8, 2018. Fourteen days later, on May 24, 2018, Ms. Whitefish (and possible others) broke into and entered a storage building belonging to the R.M. of Debden, damaging a door to gain entry. Multiple items were taken from that building including a generator, air compressor, air quality tester, and various tools belonging to the R.M.

In addition, equipment belonging to the Fire Department was also taken including fire-fighting equipment and clothing, infra-red cameras, and portable emergency radios. [ 54 ] Ms. Whitefish was arrested on May 26, 2018 and was found in possession of many of the items stolen from the R.M. of Debden, including the emergency radios. As part of the plea agreement, Ms.

Whitefish pled guilty to count #1 on Information 90181513 - breaking into and entering the storage building and count #2 - possession of stolen property with a value exceeding $5,000. [ 55 ] Under all the circumstances, the appropriate sentence for these offences would have been 6 months in custody on each count – to be served concurrent to each other but consecutive to date. Because of the separation in time, the fact that Ms. Whitefish was on bail, as well as the opportunistic and callous nature of the conduct, this sentence cried out to be served consecutively. However, for reasons of totality, because of Ms.

Whitefish’s Gladue factors and because of her plea arrangement, I reluctantly concluded that this sentence should also be served concurrent to date. As a result, I sentenced Ms. Whitefish to 1 day in custody (her day in Court that day) and the record was endorsed to acknowledge that she had served 180 days on remand (having been served by 120 days in custody). [ 56 ] This far in sentencing, I had used 180 days of Ms. Whitefish’s remand credit.

f) Information 90181513 - Counts 3, 5, 6, 8, 9 & 10; Information 90181502 - Counts 1 &2; and Information 90181504 - Count 3 [ 57 ] The circumstances that underlie these offences are shocking. [ 58 ] On May 25, 2018 just after midnight Ms. Whitefish and another person entered the farmyard of Ernest and Lori Collins near the community of Debden, Saskatchewan. Ms. Whitefish and the other person were observed by Mr. Collins as he returned to his farmyard after working late in the field (seeding). Mr. Collins observed Ms.

Whitefish and another person exiting the back of the house, jumping into a black Dodge truck, and driving away. [ 59 ] Mr. Collins pursued and rear-ended the escaping vehicle but it continued to drive away. Mr. Collins followed the vehicle for approximately eight kilometers until it stopped in a field. As Mr. Collins drove toward the vehicle, he heard five or six shots fired from a firearm. Mr. Collins believed the shots were from a low caliber firearm. While Mr. Collins clearly heard the shots being fired, he did not know in what direction the firearm was pointed.

He was confident that his vehicle was not hit. [ 60 ] Wisely, Mr. Collins did not continue following the vehicle and it drove off. Upon returning to his residence, it was discovered

that several buildings had been entered and various items stolen. In addition, a large amount of fuel had been stolen from his storage tanks and his fuel lines had been damaged. Finally, it was discovered that Ms. Whitefish and her accomplice had broken into the Collins’ residence where Ms. Collins was sleeping at the time. Inside the residence, various items were stolen including two firearms; a .22 calibre rifle and a .308 calibre rifle.

Both firearms were loaded at the time they were stolen. [ 61 ] That same day - May 25, 2018 - Big River RCMP were already on the lookout for a black Dodge truck matching the description provided by Mr. Collins because it had been stolen from the gas station in Big River, Saskatchewan. Ms. Whitefish was a person of interest because she matched the description of the person who stole the truck. As a result, RCMP attended her last known address in Big River.

When police arrived, a black truck was seen fleeing the residence at a high rate of speed, with items falling out of the back – including items that had been previously stolen. The truck initially got away but was later located by police on the Ahtahkakoop First Nation. [ 62 ] When police approached the truck, the driver refused to stop and led police on a high-speed chase through the Ahtahkakoop First Nation and several other communities, including the village of Debden. The pursuit lasted for over 30 minutes, involved speeds up to 195 kph and was very dangerous.

Ultimately, the suspect vehicle got away when police broke off the pursuit for reasons of public and officer safety. [ 63 ] On May 25, 2018, at approximately 11:00 p.m., the RCMP attended to Ms. Whitefish’s mother’s residence on the Big River F.N. and observed the black Dodge truck concealed in the bushes behind this residence. Ms. Whitefish’s mother granted police access to her residence. Ms. Whitefish and another person were located in the residence in a bedroom. Also in the bedroom were the keys to the stolen truck, a .22 calibre magazine, and two large knives in close proximity to Ms. Whitefish.

In addition, the .308 rifle taken from the Collins’ residence was discovered in the house, as well as the emergency radios and other items taken from Village of Debden’s storage building. When the truck was searched, further items stolen from the Collins farm were located. [ 64 ] As a result of the plea agreement, Ms. Whitefish has pled guilty to the following nine counts: Information 90181513 - Counts 3, 5, 6, 8, 9 & 10 Count #3 - Breaking and entering a dwelling house and stealing 2 firearms. Count #6 - Use of a firearm during flight following commission of B & E.

Count #5 - Stealing property (fuel) a value not exceeding $5,000. Count #8 - Operating a motor vehicle in a dangerous manner, as a party. Count #9 - Failing to stop while being pursued by police, as a party to offence. Count #10 - Possessing of a weapon (knife) for a dangerous purpose. Information 90181502 - Counts 2 &3: Count #2 - Breach of recognizance for possessing a knife without lawful excuse. Count #3 - Possessing stolen property (truck) with a value exceeding $5,000.

Information 90181504 - Count 3: Count #3 – Possessing stolen property (tools & items from Collins farm). [ 65 ] The following are the sentences I imposed:

g) Information 90181513 Count #3 - s. 98 (break and enter, steal firearms x2)

[ 66 ] In light of the gravity of the offence, including the violation of the Collins’ sense of safety in their own home, an appropriate sentence for this count could have been as high as 15 months in custody. However, for reasons of totality, Ms. Whitefish’s Gladue factors, and her plea arrangement, I concluded the appropriate sentence was 12 months in custody. I was satisfied that this sentence appropriately captured the aggravating factors and gave effect to the principles and purposes of sentencing. I arrived at this sentence after consideration of the impact of Ms. Whitefish’s Gladue factors.

For reasons of denunciation and deterrence, I also concluded that this sentence must be served consecutive to date. I reduced the sentence from 15 months to 12 months under the principle of totality to avoid an unduly harsh or lengthy sentence. In imposing this sentence, I gave Ms. Whitefish credit for having already served 299 days in custody. This was calculated based on 479 days of remand credit less the 180 days I had already used in sentencing. Count #5 – s. 334(b) (steal fuel) [ 67 ] In all the circumstances, I determined the appropriate sentence for this offence was eight months in custody.

For reasons of totality, I determined that this sentence ought to be served concurrent to count #3. Count #6 – s. 85(2)(c) (use firearm following) [ 68 ] In light of the gravity of this offence, including the danger represented by using a firearm to stop Mr. Collins from pursuing them, the appropriate sentence for this count could have been as high as 15 months in custody even acknowledging the potential weaknesses in the Crown’s case. At law, the sentence can be no less than 12 months. For reasons of totality, Ms. Whitefish’s Gladue factors, and her plea arrangement, I determined it ought to be no more.

Section 85(4) of the Criminal Code requires that this sentence be served consecutive to all other sentences. For reasons of proportionality, denunciation and deterrence, I would have imposed this sentence consecutively irrespective of the statutory mandate. Count #8 – s. 249 (dangerous operation of MV); and Count #9 – s. 249.1 (evade police) [ 69 ] In light of the gravity of these offences, including the danger represented by driving in this manner while being pursued by police, the appropriate sentence for these counts ought to be in the range of 6 months. However, for reasons of totality, Ms.

Whitefish’s Gladue factors, and her plea arrangement, I imposed a sentence of 2 months on each count – concurrent to each other. For reasons of proportionality, denunciation and deterrence, it was necessary that these sentences be served consecutive to date. See: Cardinal . Count #10 – s. 88 (possession weapon) [ 70 ] This offence arises because Ms. Whitefish was found with a knife when she was arrested on May 26, 2018. In all the circumstances, I determined the appropriate sentence for this offence to be 6 months in custody. For reasons of totality, because of Ms.

Whitefish’s Gladue factors, and her plea arrangement, I directed that this sentence be served concurrent to count #3.

h) Information 90181502 Count #2 – s. 145 (breach of condition not to possess a weapon - knife) [ 71 ] One of the many conditions of Ms. Whitefish’s prior release was that she not possess a knife except when using that knife to eat. In all the circumstances, I determined the appropriate sentence for this offence to be 6 months in custody. For reasons of totality, I directed this sentence to be served concurrent to date. Count #3 – s. 354 (possession of stolen property exceeding $5000 - Dodge truck) [ 72 ] This offence relates to the truck used by Ms. Whitefish in the preceding events, which was stolen. In all the circumstances, I

determined the appropriate sentence for this offence to be 6 months in custody. Because this offence involved a different protected interest – a theft from someone other than the Collins - it ought to have been served consecutively. However, for reasons of totality, because of Ms. Whitefish’s Gladue factors, and her plea arrangement, I directed that this sentence be served concurrent to date.

i) Information 90181504 Count #3 – s. 354 not exceeding (farm tools) [ 73 ] In all the circumstances, I determined the appropriate sentence for this offence to be 6 months in custody. For reasons of totality, I ordered this sentence to be served concurrent to date. ANCILLARY ORDERS [ 74 ] Either as required by law or as an exercise of my discretion given the number of victims, the duration of the offending, the use of a firearm, and the circumstances surrounding the series of break and enters and dangerous driving, I granted a DNA order, a firearm prohibition for 10 years, and a 2 year driving prohibition.

FINAL DISPOSITION Information Counts Charges Sentence 90172 181 4 PSP (The Vehicle) over $5000 - s. 354(1) 30 days (TS) 5 PSP (License Plate) not exceeding $5000 – s. 354(1) 30 days (TS) 6 PSP (License Plate) not exceeding $5000 – s. 354(1) 30 days (TS) 90172 194 1 Taking a motor vehicle without owner’s consent – s. 335 90 days (TS) 2 Theft under (Diesel fuel) – s. 334(b) 90 days (TS) 3 Possession of a Weapon (Browning Rifle) – s. 88 90 days (TS) 90176 136 1 Breach of recognizance – s. 145(3) 30 days (TS) 991051 587 1 Common assault of a fellow prisoner at Pine Grove – s. 266 90 days (TS) 90181 513 1 Break and enter (Village of Debden) – s. 348(1)(b) 180 days (TS) 2 PSP over $5000 – s. 354(1) 180 days (TS) 3 Break and enter (house) – s. 348(1)(b) 12 months or 365 days (less remand credit of 299 days) 5 Theft (fuel) under $5000 - s. 334 8 months (concurrent to count 3) 6 Use of firearm during flight – s. 85(2)(c) 12 months or 365 days consecutive 8 Operating a motor vehicle in a dangerous matter (as a party) – s. 249(1)(a) 2 months or 60 days consecutive 9 Evade police (as a party) – s.249.1 2 months, concurrent to count 8 10 Possession of a weapon (knife) – s. 88 6 months, concurrent to count 3 90181 502 2 Breach of recognizance (possess knife without lawful excuse) – s. 145(3) 6 months, concurrent 3 PSP (truck) over $5000 - s. 354(1) 6 months, concurrent

90181 504 3 Theft not exceeding $5000 (farm tools) – s. 334 6 months concurrent Total 970 days less 479 days of remand credit = 491 days, or roughly 16 months and 11 days to serve from April 11, 2019. Ancillary Orders DNA, s. 109 firearm prohibition (duration – 10 years) 2 years driving prohibition commence on the date of Ms. Whitefish’s release from custody Dated this 13th day of June, A.D. 2019, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J