Her Majesty the Queen - v. -, 2016 SKPC 153

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 153 Date: November 15, 2016 Information: 34475380 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Chancy Brent Heiser Appearing: J. L. Claxton-Viczko For the Crown C. A. Lavier For the Accused SENTENCING DECISION Q. D. AGNEW , J [ 1 ] On March 25, 2008, Chancey Brent Heiser confined, threatened, assaulted, extorted and choked Lori Sayers. He now comes before me to be sentenced for those acts. The Crown suggests he should receive four years in jail from today; Mr.

Heiser believes he should be released today. [ 2 ] Mr. Heiser is 34 years old. He is educated and clearly intelligent. He was the operator of a successful business. He has two children. He is no longer with his spouse. He appears to be without remorse, other than for the consequences which he must face as a result of his actions. He entered guilty pleas to the charges for which I am sentencing him, albeit he did so at the commencement of trial.

[ 3 ] He comes before me as the result of an encounter he had with Lori Sayers on the night in question. The recollections of the accused and of Ms. Sayers are the same with respect to certain facts. I will go through those first, and then address the areas in which there are disputes. [ 4 ] Ms. Sayers was, at the time in question, looking to sell sex for money - I hesitate to call her a “sex trade worker”, since this was only the second time she had been paid for sex. Both Ms. Sayers and the accused agree that they entered into a negotiation for paid sex, and that as a result of that discussion, Ms.

Sayers got into Mr. Heiser’s car with him. Subsequent to sexual intercourse and payment, Mr. Heiser drove Ms. Sayers to an empty road outside of Saskatoon, where he prevented her from leaving the car, assaulted her and attempted to get his money back from her; in the course of that attack, he held his arm across her throat, choking her almost to the point of unconsciousness. She was able to exit the vehicle, after which Mr. Heiser drove off. Ms. Sayers made her way to a more-travelled road, where she was able to flag down a passing vehicle; that vehicle took her to the RCMP.

She was then taken to a hospital, where a sexual assault examination took place. A DNA sample was obtained at that time which, several years later, led to the arrest of Mr. Heiser on the current charges. [ 5 ] Although Mr. Heiser’s counsel was at pains a number of times to assure me that Mr. Heiser accepted the essential elements of each charge, there was also significant disagreement on some of the details of the offences. I will go through their differences, which were highlighted by each of them testifying at the sentencing hearing. [ 6 ] Ms. Sayers testified first.

She indicated that after she and the accused made a deal for sexual intercourse in exchange for $60, he drove to a quiet area nearby, placed the money on the dash and commenced having sex with her. After a significant amount of time, the accused having been unable to ejaculate, she told him he was done and put the money in her pocket. He then offered to drive her home, but instead of doing so, drove the car out of town.

He was driving very recklessly and at a high rate of speed, saying that she had “ripped [him] off”, demanding his money back and threatening to kill her: “guess what, you’re going to die tonight, bitch.” He pulled over on a deserted road and attacked her, including placing his arm across her throat and choking her to the point where she almost passed out. Ms. Sayers testified that during this encounter, she believed she was going to be killed. In the course of Mr. Heiser’s choking of her, she was able to wriggle out of her jacket and exit the vehicle.

She threw the $60 back into the car as she escaped, hoping that this would satisfy Mr. Heiser. It was not clear from her evidence, but it seems that Mr. Heiser came after her, claiming that she had not returned all of the money, but gave up the chase and returned to his vehicle. She believed that he was trying to chase her in his vehicle, and she hid by going into a field and lying down in the snow. She did not have her jacket on, as it was still in the vehicle with Mr. Heiser. [ 7 ] Mr. Heiser’s testimony was rather different on certain points. He testified that he paid Ms.

Sayers $100.00 for sex, as he only had $100 bills in his wallet. He agreed that they had sex in his vehicle, but claimed that he did in fact ejaculate. At that point, he was about to drive Ms. Sayers home when he noticed that his wallet was missing. He had taken it out to pay Ms. Sayers, and then rather than putting it back in his pocket, he had placed it and his cell phone in a cupholder. When he noticed his wallet was missing he went, in his words, “ballistic”. He drove the accused out of the city, in his version very calmly and sedately, telling Ms.

Sayers that he would not take her home until she returned his wallet. He also told her that he was an RCMP officer, and that he was driving her to Regina. He agreed that the purpose of all of this was to make Ms. Sayers feel threatened, in order to obtain his wallet back. He pulled over on a deserted road because he knew that Ms. Sayers would not be able to “do anything” until she returned his wallet. He then put Ms. Sayers in a “headlock” with one arm, while attempting to retrieve his wallet with the other hand. Ms. Sayers opened the vehicle door, slipped out of her coat and escaped the vehicle. Mr.

Heiser retrieved his wallet from the coat and drove off. He did not attempt to chase Ms. Sayers with his vehicle. [ 8 ] Ms. Sayers, in her testimony, denied having taken Mr. Heiser’s wallet. She testified that he was drunk, and likely misplaced his wallet. Mr. Heiser’s testimony regarding alcohol was at best unclear, and arguably duplicitous. [ 9 ] Mr. Heiser stated that he did not give Ms. Sayers her money immediately, because he had been “ripped off” before. In light of that, it seems odd that he would leave his wallet and cell phone in a cupholder in plain view of Ms. Sayers, and obviously within her reach.

It is not clear why he took his cell phone out at all; it is equally not clear why he did not put his wallet back in his pocket after getting the money out for Ms. Sayers. This became even more perplexing when Mr. Heiser testified as to the importance of the wallet’s contents: it contained a very considerable amount of money, credit card, gas card, and indeed virtually everything he needed to conduct his business. These things were particularly important since he was not from Saskatoon, and needed all of these items to travel home.

It seems odd that he would leave something of such importance out in plain view, particularly having been “ripped off” before. It is also odd that Ms. Sayers would steal his wallet but not his cell phone. None of these are determinative, of course: people often do not make the best choices.

[ 10 ] It also seems odd that, if his intention was simply to retrieve his wallet from her, he felt it necessary to drive to a lonely road outside of town before trying to get it from Ms. Sayers’ jacket, where he apparently believed it was. Driving her out of town and then attacking her, in a rather brutal manner, seems like overkill if he was only interested in retrieval of his wallet. [ 11 ] Mr. Heiser also denied that he had threatened to kill Ms. Sayers. He said that he told her that he was taking her to Regina, and asserted that he intended that she feel threatened.

It was not clear whether he intended her to feel threatened by the intention to take her to Regina, or by something else. In fact, Mr. Heiser was quite vague on just exactly what he said, and how he intended Ms. Sayers to feel threatened, although he was very clear that he intended that she feel threatened, frightened and intimidated. Ms. Sayers, on the other hand, was very specific about what Mr. Heiser threatened, about the terror she felt as a result of his words and actions, and about the fact that, due to his words and actions, she believed she was going to die.

With respect to this aspect of the evidence, I accept Ms. Sayers’ testimony. I do not accept his, nor am I left in a reasonable doubt. The combination of certainty about his objective and complete lack of detail about his means is completely unconvincing. I conclude that Mr. Heiser threatened to kill Ms. Sayers, and that he intended that she take that threat seriously. It is not clear to me whether or not Mr.

Heiser actually intended to carry out his threat, and I come to no conclusion one way or the other. [ 12 ] The Crown indicated that it intended that I should take as aggravating factors, which it therefore had to prove beyond a reasonable doubt, collectively the four following points, namely: (1) that the wallet was not the source of the dispute; (2) the words the accused used in threatening Ms. Sayers; (3) the accused’s speed in driving Ms. Sayers out of town, and (4) that the accused, after Ms. Sayers was able to escape the vehicle, drove off, did a U-turn and came back looking for her.

I am unable to accept as proven beyond a reasonable doubt all four of these items collectively. [ 13 ] However, I do not regard this as an all-or-nothing proposition. I have concluded, as noted above, that Mr. Heiser specifically threatened to kill Ms. Sayers. I have also concluded that he drove aggressively with her in the vehicle. I do not need to conclude whether this was from anger, or as part of his plan to terrorize her, or a combination of the two.

I do not consider it an aggravating factor as such; rather, it is simply part of the factual context within which the subsequent criminal events unfolded. [ 14 ] With respect to the wallet, the idea that his actions were motivated by the theft of the wallet is a proposition which the accused put forward, presumably as mitigation. It is therefore not up to the Crown to disprove, but rather it is for the accused to prove on a balance of probabilities. He has failed to do so.

The Crown has failed in its attempt to prove, beyond a reasonable doubt, that the accused’s actions were motivated by anger at his failure to perform in an adequate manner sexually. This leaves me with an unproven, and thus unknown, motive for Mr. Heiser’s attack on Ms. Sayers. This is not particularly significant, however, since the facts of the threats, attack etc. are clear, and Mr. Heiser has admitted the intention for the same sufficient to ground mens rea . It is not crucial that I know his specific motive in order to craft an appropriate sentence. Furthermore, both sides agree that obtaining money from Ms.

Sayers was at least part of the motive for the attack, a fact relevant to Mr. Heiser’s guilty plea on the extortion charge. [ 15 ] With respect to the disputed facts, I find as follows. I consider all of these to have been proven beyond reasonable doubt: 1. after sexual intercourse, Ms. Sayers placed the money in her pocket; 2. Mr. Heiser drove the two of them out of town, driving in a manner intended to add to the terrorizing of Ms. Sayers; 3. during that drive, he made specific threats to the life of Ms.

Sayers, as well as telling her that he was an RCMP officer and that he was driving her to Regina; 4. all of the actions in points two and three were calculated to, and did, cause Ms. Sayers to fear for her life; 5. Mr. Heiser drove to a lonely, deserted stretch of road, where he proceeded to attack Ms. Sayers. In the course of his attack, he deliberately choked her by placing an arm across her throat such that she was almost rendered unconscious;

6. Ms. Sayers escaped by her own efforts, not because Mr. Heiser let her go; 7. after the attack, Mr. Heiser drove off with Ms. Sayers’ jacket, leaving her on a deserted road in the country at night, in late March, without outerwear. [ 16 ] It should be obvious, but I will make it explicit, that whether the amount involved was $60 or $100, whether Ms. Sayers had Mr. Heiser’s wallet or not, Mr. Heiser was not entitled to take any of the actions he took against her after their sexual intercourse.

In effect, by his guilty pleas, he has acknowledged this. [ 17 ] At the time of the offences, the accused had a short but relevant record. He had been convicted in August 2007, less than a year before these charges, of harassment, assault and threats, for which he received a suspended sentence. Those convictions are obviously concerning in light of the behaviour for which I am sentencing him now. [ 18 ] Mr.

Heiser was also convicted in 2014, subsequent to the events before me but before the current charges were laid, of additional offences, specifically sexual assault on two individuals, as well as holding himself out to be a peace officer. He received a sentence of 4 ½ years, as well as a 10-year firearms prohibition under s. 109 and other ancillary orders. [ 19 ] The Crown suggested that the accused’s subsequent convictions could be a factor in sentencing, a proposition with which I generally agree.

Gabrielson, J of our Court of Queen’s Bench dealt with this proposition in R v RJC , 2013 SKQB 249 , 424 Sask.R. 241 [ RJC ]. The Court adopted the reasoning of the New Brunswick Court of Appeal in R v Andrade , 2010 NBCA 62 , 260 CCC (3d) 353 [ Andrade ]. That case, in turn, goes into considerable historical analysis of the rules around use of previous convictions in sentencing where those convictions post-dated the events for which the accused is now being sentenced.

The Courts’ ultimate conclusion, in both RJC and Andrade , was that “what is or is not an aggravating factor and how one should deal with the offender’s prior criminal record is a matter better left to the sentencing judge having regard to the factual matrix under consideration.” [1] [ 20 ] It is therefore open to courts to consider a prior conviction for subsequent events in an appropriate manner. The conviction may give some insight into the accused generally, particularly if the record both before and after the present events display some continuity. In Mr.

Heiser’s case, for example, his original convictions of harassment, threats and assault, and his subsequent convictions for sexual assaults and personating a peace officer, are something of a piece with his current convictions for assault and threats, as well as his claim to Ms. Sayers that he was an RCMP officer. [ 21 ] In considering his 2014 convictions, the personating and assault aspects of significance; the sexual aspect is not. That is, there is no suggestion that the assault on Ms. Sayers was at all sexual in nature. Mr.

Heiser may have been trying to get his $60 back from her, as she said; he may have been trying to retrieve his wallet, as he testified; he may have been trying to kill her, as she certainly believed was the case; but he was unequivocally not assaulting her in any sexual way. [ 22 ] I can conclude from the record, both the offences committed before and after the present ones, that Mr.

Heiser has an ongoing propensity for threats and violence, and take that into account in deciding upon a sentence which meets all of the sentencing objectives set out in the Criminal Code . [ 23 ] The most serious of the charges before me is undoubtedly the choking charge, s. 246(a). This is not to minimize the other charges, but is simply a reflection of the legal reality. The offence is automatically an indictable one, and carries a maximum penalty of life imprisonment.

By comparison, poisoning with intent to endanger life (s. 245(a)) only carries a maximum of 14 years, as does torture (s. 269.1(1)) and aggravated assault (s. 268(2)). [ 24 ] There are few comparable cases available with respect to choking. Most choking cases appear to involve sexual assault which, as I noted above, was not involved in this case.

[ 25 ] The Alberta Court of Appeal, in R v Robinson , 1993 ABCA 91 at para. 8 , 135 AR 342 [ Robinson ], dealt with a situation in which the accused choked the victim for the purpose of stealing her car. The accused had a somewhat dated and unconnected record. The Court concluded that an appropriate range of sentence for the choking would be four to five years (see para. 10). In the course of its decision, the Court referred to the crime of choking as “one to which women are particularly vulnerable” (see para. 8). From a

summary review of the caselaw, it is the unfortunate reality that most cases of choking seem to involve men attacking women. [ 26 ] In that context, I note that physically Mr. Heiser appears to be considerably larger than Ms. Sayers. I do not know what either of them may have weighed at the time of the attack, but it is unlikely that either of them has grown dramatically taller or shorter in the interim; which is simply to emphasize the particular vulnerability of Ms.

Sayers to this type of attack, as noted by the Alberta Court of Appeal. [ 27 ] Robinson was reviewed with approval by my sister Judge Cardinal in R v M.F.U. , 2013 SKPC 167 , 435 Sask R 240, at paras 25 to 29 . [ 28 ] Based in part on Robinson , the Crown submitted that an appropriate sentence for Mr. Heiser would be five years. That submission was specifically for the choking, but also took into account the other offences, which would then be concurrent to that sentence. The Crown also submitted that such sentence should be consecutive to the sentence Mr.

Heiser is currently serving for the unrelated sexual assaults etc. referred to above. [ 29 ] Defence submitted that an appropriate sentence would be 18 months, to be served concurrently. Defence suggested that the range of sentences for choking is from 18 months to six years, partly depending on the severity and whether or not the incident also involved unlawful confinement. In the present case, of course, unlawful confinement is one of the charges to which Mr. Heiser has pled guilty.

Defence also suggested that if the choking involved sexual assault, the caselaw indicates a minimum of three years for a sentence. [ 30 ] Defence suggested that Robinson could be distinguished on the basis that the victim’s injuries in that case were more severe than those of Ms. Sayers. I do not agree, given that the victim impact statement in that case was dated just one month after the incident; Ms. Sayers’ demeanour during her testimony at the sentencing hearing before me, on the other hand, made it clear that she still feels the emotional effects of Mr. Heiser’s attack, even eight years later.

Her victim impact statement (P-5) also speaks to the continuing emotional impact these events have had on her. [ 31 ] Defence put forward R v Savard , 2005 ABCA 432 , 376 AR 120, a case in which “overcoming resistance” (presumably by choking, although that is not articulated in the judgment) garnered a 10-month sentence in the context of a total sentence of 25 months for a number of other offences. Unfortunately, there are very few facts given, and the original sentencing decision does not appear to be reported.

It is difficult to determine how relevant this decision is to the case before me, and I decline to accept it as a precedent. [ 32 ] Defence also referred to R v Gandhi , 2015 ONCA 660 . In that case, the accused trapped the complainant in his car, choked her, removed her clothing and forced her to perform oral sex. She escaped from the car half-naked. The Ontario Court of Appeal affirmed the total trial sentence of 18 months less a day for assault, sexual assault, choking and forcible confinement.

The Court of Appeal offered no analysis other than to say that the sentence was “within the appropriate range” (para. 10). [ 33 ] Mr. Heiser himself presented a situation which he wished to submit as a comparable. He advised that he shared a cell with a person named Shaun Manca, and provided details of that person’s Information numbers, charges and sentences. Defence counsel advised that he had been unable to obtain more details. According to Mr. Heiser, Mr. Manca indicated that his situation was identical to Mr. Heiser’s and Mr.

Manca was sentence to 18 months for assault, unlawful confinement, choking and threats (see D-1). [ 34 ] I wish to deal very specifically with Mr. Manca as a comparable situation, as Mr. Heiser has clearly spent a considerable amount of time and effort in trying to bring this information to my attention. It has been said, to the point that it is trite to say it again, that sentencing is a very individualized process. Every situation is different, and every accused is different. Even two individuals who commit the same offence - that is, co-accused - often receive different sentences.

A person’s record, their circumstances, steps they have

taken to rehabilitate themselves, their likelihood of re-offending, their degree of moral culpability, whether they have pled guilty and ifso at what stage of proceedings, and a host of other factors all go into deciding an appropriate sentence.

The Criminal Code lists sixpurposes which sentencing judges are to balance in deciding a fit sentence (s. 718(a)-(f)), one fundamental principle (s. 718.1), fiveadditional principles (s. 718.2(a)-(e)) which themselves refer to a host of considerations, and a variety of other rules which relate to howor when certain of the principles and purposes are to be interpreted or applied (see, for example, ss. 718.01 - 718.03, and s. 718.3(1)-(7)). It is simply not the case that anyone’s situation is the same as anyone else’s.

It is for this reason that counsel and courtsagonize over whether, and to what extent, a particular case is comparable to another. It is also for this reason that it is crucial to knowinformation about the offences and the offender to determine whether or not a case is helpful as a comparable. Here, specifically withrespect to Mr. Manca, I cannot use his case as a comparable simply because I do not have any of that information. I know what Mr.Heiser tells me Mr. Manca said he was charged with, and what Mr. Heiser tells me Mr. Manca says he was sentenced to. Mr.

Heisercannot even confirm that information, as he has no personal knowledge of it; it is simply what was told to him by Mr. Manca. Even if Iaccept it as completely accurate, however, I am still left with a complete lack of information about Mr. Manca and his offences, whichleaves me unable to assess what weight I should give to Mr. Manca’s sentence as a comparable. Accordingly, the weight I must assign itis nothing. [35] Mr. Heiser, in his comments, stated that he is Metis and that accordingly the Supreme Court of Canada’s directions in R vGladue, (SCC), [1999] 1 SCR 688, 171 DLR (4th) 385 should apply to him.

There is of course no defined way inwhich Gladue is to be manifested, any more than there is any other of the sentencing principles in s. 718.2. It is not required that Mr.Heiser show any direct connection between Metis ancestry and his offending behaviour: R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 atparas 82 and 83. Mr. Heiser is not required to put forward any specific information about how his Metis heritage has affected him: theCourt presumes a certain degree of impact on him arising from historical realities.

In many situations, of course, an accused bringsforward additional facts specific to their situation, which is not the case here, but even absent such specifics, the Court takes into accountthe historical facts of governmental and societal treatment of persons of First Nations and Metis heritage. [36] Crown and defence agreed that the overall range for choking, based on the case law, is from 1½ years to six years. Here,taking into account the surrounding circumstances, including particularly Ms.

Sayers’ vulnerability, the fear for her life which theaccused deliberately instilled in her, the fact that the choking was sufficiently severe to cause her almost to lose consciousness, theaccused’s apparent propensity for these types of offences, his Gladue status and all other matters referred to above, I sentence theaccused to 4 ½ years for count four, the choking offence. [37] With respect to count three, extortion, I sentence Mr. Heiser to one year. On count five, unlawful confinement, I sentencehim to one year. On count six, assault, I sentence him to six months.

Under the circumstances, all of these offences being tied togetherand part of one transaction, I direct that they be served concurrent to the choking sentence on count four. [38] Mr. Heiser, both through his counsel and on his own behalf, argued very strenuously that he should be entitled to remandcredit against his sentence. On the face of it, this is an unusual suggestion, since Mr. Heiser has been in the penitentiary serving time forthe sexual assault conviction he received subsequent to the events here. However, he has an argument to put forward. [39] Mr.

Heiser argues that, had these charges not been laid, he would have been granted parole sometime in late summer or fall of2015. In support of that claim, he filed exhibits D-2 and D-3. D-2 appears to be a memorandum from the federal penitentiary Mr. Heiserwas serving at, seeming to indicate that as a result of the current charges being laid, support which had previously been expressed for hisrelease on parole was being withdrawn. D-3 is less informative and less helpful, as it appears to be two pages of a nine-page document,undated and with no reference to how or by whom it was produced or for what purpose.

At best, it could be taken as indicating that Mr.Heiser was at some period, possibly but not necessarily for his entire incarceration, a good prisoner. I understand that this was intendedto show that he would have been likely to have received parole, had it not been for these charges. [40] Mr. Heiser’s position, in short, is that he would have been on parole had these charges not been laid. I recognize that theParole Board is the initial arbiter of whether or not parole is granted, and they did not weigh in one way or the other as the application forparole did not reach them.

I do not know, therefore, whether or not Mr. Heiser would in fact have been granted parole. I believe that theParole Board considers a considerable range of factors in making its decision, factors beyond the comments briefly made in D-2 and D-3. [41] Ultimately, it falls to Mr. Heiser to establish on a balance of probabilities that he would have received parole. I find that hehas not done so. The provenance of D-2 and D-3 is uncertain; even Mr. Heiser was unable to articulate exactly where those documentscame from or what they are.

D-3 is particularly unhelpful, as it comprises only a part of a document and I have no knowledge of whatelse might have been said in that document. Even if I accept D-2 at face value, all it says is that “the CMT” had been supporting Mr.

Heiser’s conditional release until the current charges came to light. I do not consider that sufficient, either by itself or with all of the restof the information before me, to establish that Mr.

Heiser was more likely than not to receive parole. [42] Furthermore, had he received parole, it is unknown whether or not he would have committed some violation which wouldhave had him brought back into physical custody and thus terminated any “remand” credit in any event. [43] Ultimately, the entire argument is based on speculation rather than facts. [44] I will continue, however, in the event that I am incorrect in that assessment. Mr. Heiser argues that he is entitled to remandcredit pursuant to s. 719(3) of the Criminal Code, which at the time of Mr.

Heiser’s offences read, “[i]n determining the sentence to beimposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of theoffence.” Mr. Heiser argues that he was kept in custody as a result of the offences before me, since he would have been on parole but forthem, and he is thus entitled to credit for the time since his presumed parole release. [45] The Crown argues that this conclusion is directly addressed in, and prohibited by, our Court of Appeal in R v Keepness, 2014SKCA 110, 317 CCC (3d) 267 [Keepness].

I do not believe that case actually addresses the current situation. [46] Keepness speaks to a situation in which an accused is serving time on other, unrelated offences at the same time they wereremanded on the charges for which they are to be sentenced. The Court concludes (para. 79) that Mr. Keepness was serving time incustody for prior offences while he was on remand for the charges then before the Court, and that s. 719(3) does not allow credit for thattime - he was not in custody as a result of the offences which the Court was considering.

In other words, he was in physical custodybecause of his original charges. [47] That reasoning does not apply here. Mr. Heiser’s contention is that he would not in fact have been in prison but for thecharges before me, and he was therefore in custody as a result of them, entitling him to remand credit under s. 719(3). [48] It can be argued that parole is not actually a release from custody, but simply a change in the location in which the sentence isbeing served.

Support for that proposition can be found in, for example, the comments of the Ontario Court of Appeal in R v Wilmott, (ON CA), [1967] 1 CCC 171 at para 19: Parole provides that the offender serves his sentence outside the prison, not as a free man, but under supervision and subject to terms andconditions imposed. A person on parole is not a free man. . .

The Board has power in appropriate cases only to change the place where[the sentence] is served. [49] To similar effect are the comments of the Supreme Court of Canada in R v Shubley, (SCC), [1990] 1 SCR 3at para 41: The appellant suggests that the forfeiture or suspension of remission (which did not occur in this case) constitutes imprisonment. Thissubmission is at odds with the legal concept of earned remission. Remission does not shorten a sentence for imprisonment . . .

Forfeitureof remission does not constitute the imposition of a sentence of imprisonment by the superintendent, but merely represents the loss of aprivilege dependent on good behaviour . . . [50] These cases suggest that a person on parole remains “in custody”, at least for certain uses of that phrase. Arguably, however,that usage does violence to the ordinary meaning of the phrase. [51] I will examine the argument, therefore, from a different perspective. In effect, Mr.

Heiser is asking me to allow him to serve aportion of his new sentence concurrently with his old. “Remand credit” is not the way to make that argument. It should be made either

on the basis of the usual principles that apply to concurrent versus consecutive sentences, or on the basis of the effects of the totalityprinciple. [52] Furthermore, as the wording of the

section makes clear, remand credit is a discretionary matter. It is granted almost as amatter of course, for reasons of precedent and fairness, but it is none the less up to the sentencing judge to decide whether to grant it atall.

Under the very odd circumstances of this case, even if it was open to me to grant remand credit, I would decline to do so: I do notaccept that he would have been on parole; I am uncertain as to whether or not parole actually means not being in custody as a technicalmatter; and trying to make a sentence concurrent should be decided by the ordinary rules governing concurrent versus consecutivesentences. [53] For all of the above reasons, I am not prepared to grant Mr. Heiser any remand credit.

I will consider separately whether hissentence should be consecutive, as the Crown has argued, or concurrent, as defence has argued, as well as the implications of the totalityprinciple. [54] Given this result, I do not have to consider his request that his remand credit should be calculated at 2:1. [55] Before I leave the question of remand credit, I should note one final matter. As part of his own comments on this subject, Mr.Heiser filed various cases with me relating to involuntary transfers within the penitentiary system and Charter breaches allegedly arisingtherefrom.

I did not find those cases to be of assistance, either to my analysis or to Mr. Heiser’s position in this sentencing. If Mr. Heiserwas attempting to raise a Charter issue, it was not clear to me; I presume he was not, as no notice had been filed as required by TheConstitutional Questions Act, 2012. [56] Mr. Heiser and his counsel argued that whatever I sentence him to should be served concurrently with his current sentence. [57] Typically, concurrent sentences are specified where the offences arise out of the same event or series of events (CriminalCode, s. 718.3(4)(b)(i)). This is clearly not Mr.

Heiser’s situation, as the events for which he is serving involved a different time, placeand victim(

s) than did the events for which I am sentencing him. [58] They can also be imposed as a way of applying the totality rule, to mitigate a cumulative total which would otherwise beexcessive or crushing (see Criminal Code, s. 718.2(c); also R v Drouin, (SK CA), [1994] SJ No 533, 125 SaskR 49(CA) at para 14). Again, I am unable to find that this applies to Mr. Heiser.

He is 2½ years into a 4½ year sentence; I cannot concludethat imposing a consecutive term of five years to his outstanding balance, for completely unrelated offences, would create an excessivetotal. [59] I am satisfied that this is a sufficient basis for making the sentence consecutive to his current sentence. I am bolstered in thisconclusion by the fact that these sentences are not being given at the same time.

The totality principle often, although not exclusively,comes into play when consecutive sentences are being given at the same time, although nothing in the wording of the Code necessarilylimits it to that circumstance. Additionally, it would be particularly incongruous to use totality to reduce the practical impact of the newsentence in the peculiar circumstances of Mr. Heiser’s case. Mr. Heiser, it will be remembered, is currently in jail for offencescommitted after the ones for which I am sentencing him. His involvement in the offences before me was only discovered fairly recently.

If those same facts had been discovered after he had completed the sentence he is currently serving, there would be no issue abouttotality: clearly the five-year sentence would stand. It would seem incongruous if, because his crime was discovered earlier, Mr. Heisershould spend less time in jail for it. [60] During the course of argument, I raised with counsel R v James, 2013 MBCA 14 (James). Neither chose to make furthersubmissions regarding that case. It has some procedural similarities to the present case which bear examination. [61] Mr.

James was a junior hockey coach who was sentenced in 1997 to a 3½ -year sentence for sexual assaults on two of hisplayers. After having served that sentence, he was convicted of further sexual assaults against other players (which had occurred prior to

the first sentence). The sentencing judge sentenced him to two concurrent two-year terms for the new charges, on the basis that had they been before the original sentencing judge, the accused would likely have received a total of six years on all charges, and additionally he had since been rehabilitated. That is, the judge concluded that there would have been a six-year sentence, deducted the 3.5 years served, deducted a further .5 years for rehabilitation, and used the remaining balance as the new sentence. The Manitoba Court of Appeal held that this analysis constituted an error of law.

The proper process to determine the effect of the prior sentence, the Court held, was to determine whether the new sentences should be consecutive to each other or concurrent, and then determine the appropriate sentence for each based on normal sentencing considerations; then, if the sentences were to be consecutive, to consider the totality principle.

In its decision, it is not clear that the Court considered totality to include the prior offences for which the accused had already served his sentence; indeed, it seems that the prior offences were treated in the same way as any other prior offence would be in considering a proper subsequent sentence. [ 62 ] I accept this approach with respect to Mr.

Heiser. [ 63 ] The Court in James also said that the principle of totality involves a consideration of “the gravity of the offences, the offender’s degree of guilt or moral blameworthiness with respect to the crimes committed, and the harm done to the victim or victims” (para. 63). I find nothing in any of those considerations which affect my conclusions regarding Mr. Heiser. [ 64 ] I furthermore note that, had Mr. Heiser wanted the benefit of totality with respect to the current offences, he could have confessed to them prior to being sentenced on his sexual assaults.

They would then have been before the sentencing judge at that time, and totality would properly have been a consideration. Instead, he chose to hide his crimes, presumably in the hope that they would never be discovered and he would never be punished for them. To suggest now that he should reap the benefit of that attempted concealment would be perverse, and certainly not a behaviour which the Court would want to encourage. [ 65 ] I therefore sentence Mr.

Heiser as follows: - count 3 (extortion) - one year concurrent to count 4; - count 4 (choking) - four years and six months consecutive to any other sentence he is subject to; - count 5 (unlawful confinement) - one year concurrent to count 4; - count 6 (assault) - six months concurrent to count 4. [ 66 ] As I have not granted any remand credit, the total time remaining to serve is four years and six months after the expiry of any existing sentence. Ancillary orders [ 67 ] I order a DNA sample be taken. [ 68 ] I order a lifetime ban under s. 109 of the Criminal Code . [ 69 ] I direct that Mr.

Heiser pay a surcharge of $100.00. This offence occurred prior to the increase in surcharges. At that time, the surcharge was waivable if it would cause undue hardship. However, there is no evidence that this is the case for Mr. Heiser. Indeed, in his own remarks to me he made it clear that he is educated, capable and a successful businessman. He also gave me documents indicating that he has retained a lawyer to pursue a multi-million dollar claim on his behalf relating to a business of his. That being the case, I can hardly conclude that paying $100.00 would constitute a hardship for him.

I will, however, give him one year from today’s date to pay it, given that he is and will be incarcerated.

___________________________ Q. D. Agnew, J [1] Andrade at para. 20 ; also quoted in RJC at para 15 .