His Majesty the King - v. -, 2023 SKPC 1

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 1 Date: January 23, 2023 Information: 90469031 Location: Fort Qu'Appelle _____________________________________________________________________________ Between: His Majesty the King - and - Fala-Jean Marie Pelletier Appearing: Matthew Dahl For the Crown Bruce Campbell For the Accused JUDGMENT K.A. LANG , J I. Introduction [ 1 ] The Crown proceeded by indictment on Information 90469031 (the “Information”). The Accused elected to be tried in Provincial Court and entered guilty pleas to the following counts on the Information: on or about the 23 rd day of April, A.D. 2022, at Fort Qu’Appelle in the Province of Saskatchewan, did:

Count 1: wound James Bryant thereby committing an aggravated assault contrary to Section 268(1) of the Criminal Code . Count 3: did within two hours of ceasing to operate a conveyance, have a blood alcohol concentration level that was equal to or exceeded 80 milligrams of alcohol in 100 milliliters of blood and thereby cause bodily harm to James Bryant, contrary to

Section 320.14(2) of the Criminal Code . [ 2 ] All other counts on the Information are stayed by the Crown immediately upon the conclusion of sentencing. [ 3 ] Sentencing submissions were heard on November 7, 2022, and the matter adjourned for my consideration. At the request of Defence, a longer adjournment was granted to give Ms. Pelletier an opportunity to get her affairs in order given that she is facing a prison term. Ms. Pelletier has done very well while on release conditions and has not incurred any breaches.

Accordingly, the Court granted her request for a longer adjournment. [ 4 ] The only issue for the Court to decide is what is a proper and fit sentence for this individual under these circumstances, and in this community. II. The Facts [ 5 ] The facts were summarized in court and are virtually identical to those facts outlined in the detailed pre-sentence report (PSR) filed in court.

Neither the Crown nor Defence took any issue with the contents of the PSR. [ 6 ] The facts of this case are troubling to say the least. [ 7 ] On April 24, 2022, the Fort Qu’Appelle RCMP received a call reporting a male had been run over by his girlfriend at the Country Squire hotel located in Fort Qu’Appelle (the “Hotel”). Members of the local RCMP detachment and Emergency Services (EMS) located the victim, James Bryant, laying in the fetal position inside the Hotel with significant amounts of blood coming out of his mouth and complaining of a sore chest.

A passenger in the Accused’s vehicle, Charlotte Cote, identified the driver as her stepmom, Fala Pelletier, and that Ms. Pelletier had left the scene. The motor vehicle used in the commission of the offence was parked on scene with five children inside, all seven years of age or younger. [ 8 ] Earlier in the evening the victim and the Accused, Fala Pelletier, were drinking at her aunt’s residence. Ms. Pelletier wanted to leave so the children were loaded into the van and the victim and Ms. Pelletier left the house with the victim driving the vehicle. An argument ensued and Ms.

Pelletier started hitting the victim, so he pulled over and exited the vehicle on the road near the Hotel. Ms. Pelletier then started driving and tried striking the victim with the vehicle. Ms. Pelletier backed the vehicle into a part of the Hotel and then drove after the victim and hit and pinned him against the Hotel. Ms. Pelletier drove over top of the victim as well. Witnesses inside the Hotel heard a thud and a male yelling. Witnesses outside saw the victim get up to his feet. They thought Ms. Pelletier was going to hit the victim again with the van, but he ran out of the way. Ms.

Pelletier sped after the victim. The victim then went around the corner of the Hotel when one witness asked if the victim needed help. The victim ran toward the witness and was invited into the Hotel and the door was locked preventing Ms. Pelletier from entering. Ms. Pelletier parked the vehicle, banged on the windows of the Hotel to get inside, and left when the witnesses yelled the police were called. [ 9 ] Ms. Pelletier was located by police inside a residence in Fort Qu’Appelle. Ms.

Pelletier displayed signs of being intoxicated and was initially arrested for assault with a weapon and impaired driving causing bodily harm. Ms. Pelletier was taken back to the detachment and breath samples of 210mg, 180mg and 160mg of alcohol per 100ml of blood were obtained. The victim was transported to Regina General Hospital and was intubated in the Surgical Intensive Care Unit (ICU) in stable condition. [ 10 ] The victim, James Bryant, incurred multiple life-threatening injuries including: - multiple fractured ribs (13 fractures to the ribs in total);

- L1 and L5 fracture; - pubic bone fracture; - fracture of the S1 to S3 vertebrae; - sacrum fracture; - fracture of the hip joint; - left knee injury; - pulmonary laceration and contusions; - numerous other laceration and miscellaneous injuries. [ 11 ] Mr. James was rushed to hospital for emergency surgery. He ultimately survived the attack but spent one month in hospital recovering. III. Circumstances of Offender [ 12 ] A very detailed PSR was filed with the Court.

It is all relevant to these proceedings and has been considered by the Court in coming to this decision. [ 13 ] A few significant facts coming from the PSR include but are not limited to: - she is 30 years of age; - she has no criminal record; - she has very significant Gladue [1] factors; - she has had little to no contact with her biological parents (her mother attended Residential School); - she has suffered both physical and sexual abuse in her past; - she has had a lifelong battle with addictions; - she has been in “toxic” relationships including her relationship with the victim in these proceedings; - she continues to grieve the loss of many significant people in her life including fairly recently her grandmother.

She turns to alcohol to cope; - her family members have been loosely associated with gangs; - she has significant support from her aunt Shaylene and aunt Jeanine; - she has four young children; - she has several health issues including diabetes, and depression and has had suicidal thoughts; - as of November 7, 2022, she had abstained from alcohol for two months; - she continues to be a medium risk to reoffend; - she has been engaging with “The Gathering Place” on a weekly basis and seeing counsellors for mental health and addiction support; - she is remorseful for her actions. IV. Range of Sentences

[ 14 ] The Crown contends that the range of sentence for cases involving aggravated assaults is 2 – 4 years. In support of this the Crown relied on the 2021 decision of the Saskatchewan Court of Appeal in R v Ratt , 2021 SKPC 7 [ Ratt ]. [ 15 ] The facts in Ratt were considerably different. Mr. Ratt was a serial violent offender with little to no prospect of rehabilitation. However, the Court of Appeal in Ratt had this to say at paras. 81 and 82 with respect to ranges of sentence: [81] In R. v. Sayazie , 2010 SKCA 14 , 346 Sask. R. 147 (Sask.

C.A.) [ Sayazie ], this Court held that the general sentencing range for aggravated assault is a term of imprisonment of between two and four years "even assuming an offender of previous good character with no criminal record" (at para 7). Sayazie was a case in which the offender inflicted a prolonged beating on his common-law spouse and dragged her out into the cold, clad only in a sweatshirt and underwear in -39°C temperatures. The victim suffered permanent injuries from frostbite. The offender had no previous record.

This Court increased the 18-month sentence imposed by the trial judge to one of 3.5 years. [82] A review of the appellate-level sentencing jurisprudence in this province reveals that, in the majority of reported cases, sentences for aggravated assault fall within the range described in Sayazie . [ 16 ] Defence did not necessarily disagree with the range being suggested by the Crown but stressed that some cases may still fall outside the range; suggesting perhaps that the case at bar might be one of those cases. V.

Position of the Parties [ 17 ] The Crown advised that ordinarily under these circumstances it would be proposing a sentence of 3 years of custody. However, having considered all of the mitigating circumstances as set out in the PSR, which included but were not limited to the presence of significant Gladue factors and the absence of a criminal record, the Crown proposed a sentence as follows: - 2 years custody; - 2 years of probation; - DNA order; - 10 year weapons prohibition. Defence Position [ 18 ] Defence requested that the court stray away from the suggested range, given Ms.

Pelletier’s Gladue factors, and impose a sentence of: 1 year custody 3 years’ probation [ 19 ] The Defence did however suggest that if the Court were to consider a term of 2 years of custody or more, then 2 years plus a few days would be better for Ms. Pelletier as it would assure her of a federal sentence with the implication that she would receive much better programming in that setting.

VI. Principles of Sentencing [20] In determining the appropriate sentence for this offence, I am guided by the provisions of sections 718 to 718.2 of theCriminal Code. A sentence must be one that fits the particular offence and the individual offender before the Court. [21] In order to achieve the fundamental purpose of sentencing outlined in

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

The relative emphasis to be placed on each of these objectivesmust be appropriate for the circumstances of this offence and this offender. [22] Even though the emphasis given to the sentencing objectives listed in

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

Section 718.1 of the Criminal Code states that thefundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender: R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206 [Nasogaluak]. [23] I must also have regard for the secondary sentencing principles listed in

section 718.2 of the Criminal Code, includingconsideration of aggravating and mitigating circumstances, totality, parity, the need to consider all available reasonable sanctions otherthan imprisonment, and the need to consider the circumstances of Aboriginal offenders. Proportionality [24] Proportionality is central to the sentencing process: Nasogaluak; R v Solowan, 2008 SCC 62, [2008] 3 SCR 309. It is themost important of the factors codified in sections 718 to 718.2; R v Arcand, 2010 ABCA 363, 264 CCC (3d) 134.

In R v Ipeelee, 2012SCC 13 at para 37, [2012] 1 SCR 433, Justice LeBel described proportionality as the “sine qua non” of a just sanction, saying that asentence which properly respects the principle of proportionality inevitably ensures that secondary goals such as denunciation, restraint,promoting justice for victims, and maintaining public confidence in the administration of justice, are met. [25] In R v Yuzicapi, 2011 SKCA 134, 377 Sask R 133 Chief Justice Klebuc emphasized the importance of proportionality insentencing and provided guidance as to its application.

At paragraph 28, he wrote: [28] The gravity of an offence and the moral culpability of the offender in committing an offence are the principal factors to beconsidered in sentencing. In Keshane this Court stated the gravity of an offence lies in three considerations: (

i) the nature andcomparative seriousness of the offence, (ii) the circumstances of its commission, and (iii) the harm caused by it. Parity [26] Consideration needs to be given to similar cases, and especially to those decided in Saskatchewan. The Supreme Court hasnoted at R v M. (C.A), (SCC), [1996] 1 SCR 500 at para 92: [92] Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and asimilar crime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should beexpected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of acceptedsentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. VII. Case Law Crown Cases

R v Blind , 2013 SKPC 168 , 432 Sask R 123 [ 27 ] This case involved an Aboriginal accused, then aged 19, engaged in a physical fight with his friend (complainant) at a house party when both were intoxicated. The Accused went into the kitchen to get a knife which he used to stab the complainant twice, including once in the heart. The Complainant was critically injured. The Accused pleaded guilty to a charge of aggravated assault. The Accused was sentenced to a term of imprisonment of 21 months, followed by probation for one year. The Accused had no prior criminal record.

His over-consumption of alcohol played a major role in the commission of the offence. The offence required a sentence which adequately denounced his conduct and was sufficient to deter others from committing similar offences. The Court held that a community based disposition would not be an adequate response to the crime and as such that kind of sentence would not be proportionate to the gravity of the offence or degree of the accused's responsibility. The Court held that no sanction short of imprisonment would be reasonable in these circumstances.

R v Loveys , 2020 NLSC 13 [ 28 ] After an ongoing argument with his ex-girlfriend and her friend, the accused used his car as a weapon and deliberately struck both of them. The Accused plead guilty to two counts of aggravated assault and two counts of dangerous driving causing bodily harm. The Accused was sentenced to 26 months' concurrent for each count of aggravated assault and 20 months' concurrent on each count of dangerous driving causing bodily harm. The Accused was a first-time offender and was only 20 years old at the time of the offence. The Accused had a sporadic work history.

The Accused had suffered from serious medical issues since he was a small child and continued to face intermittent challenges along with having daily care requirements. Deterrence and denunciation were paramount due to the violent nature of this crime. The aggravating factors included that one victim was the accused's former romantic partner. One victim was under 18 years of age and the other had just turned 18. The crimes were deliberate acts of violence, and both victims sustained serious injuries which continued to affect them.

The mitigating factors included that the accused was a youthful offender, had no criminal record or history of violence, pled guilty, expressed remorse, and suffered from a serious health condition. R v Kanthavel , 2021 ONSC 57 [ 29 ] Mr. Kanthavel drove a Mercedes sedan at two nearby pedestrians on five separate occasions over a period of less than a minute. Four of those five maneuvers were characterized by sudden and swift acceleration that were described as "lunges", the fifth being a slower and deliberate backing-up in the direction of the pedestrians, one of whom was already severely injured.

None of these maneuvers were the product of accident and the Court rejected any suggestion that self-defense could be considered applicable. [ 30 ] The actions of the Accused produced grievous bodily harm that was the essential element of the aggravated assault charge. [ 31 ] The victim suffered very serious injuries, including a compound fracture to his left tibia and fibula. [ 32 ] The Accused was sentenced to a total of three years' incarceration. This was not a planned altercation, there were gaps in the accused's criminal record and he had strong family and community ties.

However, these offences were very serious. Given the Accused's prior record and his degree of responsibility, significant weight had to be given to sentencing objectives of denunciation, deterrence and protection of the public. The repeated and deliberate nature of the Accused's actions, risk of grave harm inherent in his actions, significant injuries suffered by victim, and Accused's failure to remain on scene and render assistance were all aggravating factors. Cormier v R , 2022 NBCA 44 [ 33 ] This sentence appeal arose out of criminal retaliatory behaviour.

This was a case of taking justice into one's own hands, but not one of blatant vigilantism where vengeance is exacted after careful planning and deliberation. This case required an assessment of moral blameworthiness for an unplanned act of retaliation amounting to an aggravated assault, to properly apply the parity principle in crafting an appropriate sentence. [ 34 ] Anger-fueled retaliation motivated 38-year-old Shawn Cormier to commit an aggravated assault by running over and dragging his 45-year-old cousin, with a pickup truck. After pleading guilty to committing an aggravated assault, Mr.

Cormier was sentenced to a

five-year term of imprisonment less credit for time spent on remand, a sentence he appealed.

On appeal the Court found that while the offence the Accused committed is deserving of significant punishment to denounce his criminal conduct and deter him and others from engaging in similar conduct, it was not deserving of a sanction imposed on offenders whose conduct has more serious consequences or who bear a greater degree of moral blameworthiness. [ 35 ] At the hearing of the appeal, the Court allowed the appeal and varied the sentence to a term of imprisonment for three years, less the time credited by the sentencing judge for time spent on remand.

Defence Cases [ 36 ] The Defence did not file any factually similar cases but instead relied upon cases which spoke to the issue of Ms. Pelletier’s Gladue factors and the things the Court must consider in passing sentences which included an assessment of the moral blameworthiness of the Accused.

The case of R v Whitehead , 2016 SKCA 165 , 344 CCC (3d) 1 [ Whitehead ] supports this proportion but does note at para. 2: [2] The restorative justice themes of R v Gladue , R v Ipeelee and R v Chanalquay are always present, but where the court has assessed the gravity of the offence and the offender's moral culpability for its commission as requiring a penitentiary sentence, the restorative justice principles that underpin s. 718.2 (

e) can only be given effect, when and if appropriate, through the term of imprisonment imposed on the offender. VIII. Mitigating and Aggravating Circumstances [ 37 ] I now turn to the mitigating and aggravating circumstances to consider in this case. Mitigating [ 38 ] Ms.

Pelletier has the following mitigating factors: - entered a guilty plea thus sparing the need for victim testimony at a trial; - has considerable Gladue factors; - has accepted responsibility for her actions and apologized to the victim in court; - prior to sentencing she has taken rehabilitative measures by receiving weekly counselling at The Gathering Place for addiction and mental health issues; - had remained sober for two months at the time of sentencing submissions; - has family support; - has no criminal record.

Aggravating Circumstances [ 39 ] Ms. Pelletier’s aggravating factors include: - this was a vicious prolonged attack resulting in serious injuries to the victim; - the weapon was a vehicle capable of inflicting lethal harm; - she was highly intoxicated - blood alcohol levels more than two times the legal limit; - she had five young children in the car at the time of the attack; - she fled the scene following the incident; - the attack was against a domestic partner.

Conclusion [ 40 ] Given the cases provided by legal counsel and given the horrendous nature of the offence and without any other consideration, a sentence of three years would likely be appropriate. However, taking into consideration the mitigating circumstances and especially that this accused has no criminal record, has accepted responsibility for her actions and has lower moral culpability in large part because of the presence of very significant Gladue factors, this Court must balance the need for denunciation and deterrence with the need for rehabilitation.

The start of the range for a sentence of this magnitude is a penitentiary sentence and therefore as noted in Whitehead supra the Court is limited in its’s restorative justice alternatives. With all of this in mind this Court imposes the following sentence: 1.

A period of incarceration of 2 years with the recommendation that her time served be at a federal healing/rehabilitative institution; 2. 2 years of probation on the following terms: - keep the peace and be of good behavior; - appear before the court when required to do so by the Court; - notify the Court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change of employment or occupation; - report to a probation officer at 2 nd Floor, 1942 Hamilton Street, Regina, Saskatchewan, ph. (306)787-3808 (toll free 1-888-586- 6363) within two working days of your release from jail and after that as told to do so by your officer or designate; - live at a residence approved by your probation officer and not change that residence without the prior written permission of your probation officer or designate or the Court;

- participate in assessments and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your probation officer; - participate in assessment(

s) and complete programming for: anger management, personal counselling, domestic violence, mental health concerns or learning challenges and grief counselling; - not possess any firearms or ammunition, cross-bow, prohibited weapon, restricted weapon, prohibited device, prohibited ammunition or explosive substance; - not possess a knife except when using a knife to eat. 3. Ancillary Orders a. 2 year driving prohibition. b. DNA order. c. 10 year firearm prohibition. d. Victim Fine Surcharge will be waived for financial hardship reasons. _____________________________ K.A. Lang, J