Her Majesty the Queen - v. -, 2021 SKPC 6

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 6 Date: April 23, 2021 Information: 90198166; 90401301 Location: Melville _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tara Maryanne Katcheech Appearing: Andrew Wyatt For the Crown Joshua Seib For the Accused SENTENCING DECISION P.R. KOSKIE , J INTRODUCTION [ 1 ] Tara Maryanne Katcheech pled guilty to robbery contrary to

section 343 (

b) of the Criminal Code and breach of probation contrary to

section 733.1(1) of the Criminal Code . The facts have been read in by counsel and the sole issue to be decided is what is a fit sentence for Ms. Katcheech. CIRCUMSTANCES OF THE OFFENCE

[2] On January 5, 2020, Ms. Katcheech was at the Club 15 Cheers Tavern in Kelliher, Saskatchewan. Ms. Katcheech purchaseda vodka and orange juice but did not have enough money to purchase another drink. [3] At some point after realizing she could not afford more drinks, Ms. Katcheech entered the area where the VLTs werelocated. She sat down beside the seventy-three year old victim, Ms. Terri Bluecloud for approximately eight minutes while Ms.Bluecloud played the VLTs. [4] Ms. Bluecloud won $400 and was holding the money in her left hand. It was at this point that Ms.

Katcheech told Ms.Bluecloud that the money was making her crazy. Ms. Katcheech grabbed the money but Ms. Bluecloud did not let go. Ms. Bluecloudwas pulled off the chair that she was seated in and fell to the ground, still holding the money. While on the ground, Ms. Katcheechshoved Ms. Bluecloud again and ripped the money out of her hands and then left the Tavern with the $350 taken from Ms. Bluecloud.The incident was caught on video tape. [5] The RCMP were notified and attended to the scene. Through the eye-witness accounts of the victim and bartender, Mr. Fay,Ms.

Katcheech was identified as the person who pushed the victim and stole the money from her. [6] Ms. Bluecloud reported having a sore right knee, back, and tailbone. She also reported a bump on the right side of her headfrom hitting her head on something during the initial fall. [7] The RCMP officers then attended the residence of Patrick Coons as they believed they would locate Ms. Katcheech there,and in fact did locate her there. Constable Sarault advised Ms. Katcheech of why the officers were there and she initially denied anyinvolvement, stated that she had been at Mr.

Coons’ residence all evening, and that it was her cousin Jessica who was involved. [8] Ms. Katcheech was searched and on her person was located a small bag of marijuana and a $50 bill. She was arrested andvoluntarily gave a statement to police. In her statement, Ms. Katcheech admitted to being in the Club 15 Cheers Tavern. She told policethat a woman began yelling and arguing with her, calling her useless and that she would not get her children back. Ms. Katcheechadmitted to nudging the woman who she thought was a woman who had jumped her a few years prior. She also said that the bartender,Mr.

Fay, had given her the $50 bill. After the interaction, Ms. Katcheech stated she left the bar. [9] Mr. Fay denied that he provided any money to Ms. Katcheech and confirmed that Ms. Katcheech’s cousin, JessicaKatcheech, was not in Club 15 Cheers Tavern that night. Mr. Coons also provided a statement and told police that Ms. Katcheech had notbeen at his residence all night. [10] A victim impact statement from Ms. Bluecloud was filed with the court. Since the incident, Ms. Bluecloud reported hurtingall over and suffering nose bleeds which stopped shortly before the sentencing hearing. Ms.

Bluecloud also reported ongoing issues withher right knee which had been replaced in 2015. Unfortunately, due to COVID-19, Ms. Bluecloud has been unable to get a formalmedical diagnosis for her knee. Ms. Bluecloud also expressed anger, frustration, and loss of trust of people generally. She reports feelingafraid in her own community and doubt that she would ever see the stolen funds. CROWN POSITION ON SENTENCE [11] The Crown submitted that a sentence of two and a half years on the robbery charge and three months consecutive on thebreach of probation is appropriate.

It is the Crown’s position that a total sentence of two years and nine months (thirty-three months)would appropriately address the primary sentencing objectives of denunciation and deterrence, account for Ms. Katcheech’s Gladuefactors (R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue]), address Ms. Katcheech’s criminal history, and properlyplaces Ms. Katcheech’s sentence within the body of case law with similar factual scenarios. [12] The Crown also argued that this sentence properly considers rehabilitation as Ms. Katcheech will have access to programmingin the penitentiary system.

The Crown eventually acknowledged that Ms. Katcheech suffers from Fetal Alcohol Spectrum Disorder(FASD), however, submitted that her moral culpability is still high and that his original sentencing submission of thirty-three monthsaccounts for any reduction in moral culpability that is brought on by FASD.

DEFENCE POSITION ON SENTENCE [ 13 ] Defence counsel submitted that an appropriate sentence for Ms. Katcheech is an intermittent sentence of ninety days followed by two to three years of probation. It was also submitted that Ms. Katcheech would be willing to participate in community service and pay restitution to Ms. Bluecloud for the amount that was taken. [ 14 ] Ms. Katcheech spent twelve days on remand which defence counsel argued should be apportioned to the breach of probation charge. Additionally, defence counsel asked the court to exercise its discretion and give Ms.

Katcheech credit for her time spent on strict conditions during her pre-sentence release. PERSONAL CIRCUMSTANCES OF THE OFFENDER [ 15 ] Ms. Katcheech is thirty-one and a member of the Saulteaux First Nation in Saskatchewan. She has one sister and a half brother, both younger. Ms. Katcheech was born on Saulteaux First Nation, Saskatchewan but at some point in her early years, her family moved to Frog Lake First Nation, Alberta. There she lived with her mother, Tammy Katcheech, and her father, Rodney Mireau until she was seven. Ms. Katcheech describes these years as happy ones in her life. Ms.

Katcheech’s parents separated when she was young and she has had little contact with her biological father since the separation. [ 16 ] Ms. Katcheech described both parents as struggling with substance use and it was around the age of seven that her mother began to really struggle with addictions issues. Ms. Katcheech’s maternal aunt, Debbie Katcheech, stepped in and acted in a parental role until Ms. Katcheech was thirteen. Sometime around when Ms. Katcheech began living with her aunt, she was sexually abused by an uncle which went on until Ms. Katcheech was nine. [ 17 ] Around the age of twelve, Ms.

Katcheech entered into a relationship with Michael Baptiste who was five years older than her. In 2002, at age thirteen, she moved to St. Paul, Alberta and began living with Mr. Baptiste. The relationship was an emotionally and physically abusive one. She became pregnant with her first child at age fifteen and at age eighteen, left Mr. Baptiste and moved to Whitecourt to be closer to her mother and siblings. [ 18 ] After moving to Whitecourt, Ms. Katcheech began a relationship with Jayde Cardinal and became pregnant with her second child. She became pregnant with her third child in 2007 and left Mr.

Cardinal that same year. Neither Ms. Katcheech or the children have had any contact with Mr. Baptiste or Mr. Cardinal since the relationships ended. [ 19 ] In 2008, when Ms. Katcheech was nineteen, her mother passed away. In 2010, Ms. Katcheech reported being sexually assaulted. Ms. Katcheech’s extensive involvement with the criminal justice system also started in late 2010. [ 20 ] Around this time, Ms. Katcheech entered into a long term relationship with Denis Desjarlais. She describes this relationship as being quite abusive and that it involved physical, emotional, and mental abuse and that Mr.

Desjarlais was controlling of her. They had two children together but the relationship ended in 2014, before the couple’s second child was born. They remain in contact but Ms. Katcheech has put distance between them, as she recognizes he is not a positive presence in her life. [ 21 ] While in a relationship with Mr. Desjarlais, Ms. Katcheech’s first three children became subjects of a Permanent Guardianship Order. In 2011, her two oldest were placed with her aunt Debbie Katcheech, and in 2012, her third child was also placed in the care of Debbie Katcheech.

Her two youngest children have also been in the care of the Ministry of Social Services at different points. [ 22 ] In 2012, at age 22, Ms. Katcheech was diagnosed with FASD, Post-Traumatic Stress Disorder (PTSD), polysubstance abuse, and a learning disorder related to math. [ 23 ] Ms. Katcheech has struggled with substance use since her early teens. She first experimented with marijuana at age nine and alcohol at age eleven. Ms. Katcheech reports that she began smoking marijuana daily not long after first trying it. In terms of alcohol, she

would sneak it when she could but it was not until age fourteen that she began to drink more frequently. After her first child was born, at age fifteen, Ms. Katcheech admits she began drinking much more, sometimes to excess. Her drug use also increased; she began using cocaine daily and also began using crystal meth. Heavy use of drugs and alcohol went on for about five years. [ 24 ] In 2018, she was hospitalized for a fentanyl overdose. This was a turning point for Ms. Katcheech and she tried abstaining from drugs and alcohol in the time leading up to the incident.

However, she was unable to maintain sobriety and was convicted in 2019 for breaching conditions related to alcohol consumption. [ 25 ] Ms. Katcheech was released on strict conditions in January of this year and since then has been taking steps to improve her life. She has been living drug and alcohol free and in June 2020, she regained custody of her two youngest children. She has also become more involved with Indigenous cultural practices including meeting with elders and smudging. CRIMINAL RECORD [ 26 ] Ms.

Katcheech has a significant criminal record that dates back to 2010 and includes convictions in both Alberta and Saskatchewan. Including the charges that are being sentenced today, Ms. Katcheech has fifty-four convictions on her record.

These convictions range the gambit from violent offences (two assault charges, one instance of uttering threats) to property-related offences (two mischief charges, two break and enters, one theft, one possession of stolen property, one taking of a vehicle without permission, one robbery), to driving offences (failure to stop at the scene of an accident, over .08), as well as two counts of obstructing justice and two counts of causing a disturbance. [ 27 ] However, the bulk of Ms.

Katcheech’s record is administrative offences, specifically failing to comply with conditions, whether that be recognizance, undertakings, or probation. Out of her fifty-four convictions, thirty-seven are failure to comply offences. [ 28 ] For these various offences, Ms. Katcheech has received fines, suspended sentences, probation, conditional sentences, and short terms of incarceration, never more than two months from 2013. GLADUE FACTORS [ 29 ] Ms.

Katcheech is a member of the Saulteaux First Nation and although she now lives in Regina, she has spent a number of years living in different First Nations communities. Since Ms. Katcheech is an Aboriginal offender,

section 718.2 (

e) of the Criminal Code must be considered. [ 30 ] It is well-settled law in Canada that in sentencing Aboriginal offenders, judges must take into account the unique historical and systemic factors that brought the offender before the court and what types of sentences would be appropriate given these factors ( Gladue at para. 66 ; R v Ipeelee , 2012 SCC 13 at para 59 [ Ipeelee ]). [ 31 ] In R v Chanalquay , 2015 SKCA 141 , 472 Sask R 10 [ Chanalquay ], the Court of Appeal made clear, at paragraph 36, that

section 718.2 (

e) is not simply a reduction in jail time but instead: involves the subtler idea of attempting to limit or minimize jail time by using restorative justice approaches when and if such approaches are appropriate. In the end, s. 718.2 (

e) means what it says: “all available sanctions other than imprisonment that are reasonable in the circumstance should be considered….” [ 32 ] Saskatchewan is home to a large population of Aboriginal peoples. While this adds diversity, it also creates a substantial body of appellate case law due to the overrepresentation of Aboriginal people in our criminal justice system.

I have considered decisions such as Chanalquay , R v Slippery , 2015 SKCA 149 , 472 Sask R 181, R v Whitehead , 2016 SKCA 165 , 344 CCC (3d) 1 [ Whitehead ], and R v J.P. , 2020 SKCA 52 [ J.P. ], in addition to Gladue and Ipeelee , in coming to my decision today. What is clear from those decisions, and of particular importance here, is that the sentencing approach must be individualized. The question to be asked when sentencing an

Aboriginal offender, as the Supreme Court so succinctly put it is “[f]or this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ?” (Emphasis in original) ( Gladue at para. 80 ). [ 33 ] With that in mind, I turn to Ms. Katcheech’s Gladue factors. Most of the information that informs this part of the decision comes from the pre-sentence report (PSR). Often times more information is available through a Gladue report or is presented at the sentencing hearing either through the accused, if they choose to speak, or through counsel.

While that was not the case here, and although more information would have been helpful, the PSR provided a sufficient look into Ms. Katcheech’s life. From that I find that Ms. Katcheech has the following Gladue factors: • Ms. Katcheech is from the Saulteaux First Nation and was born there. She spent time living on Frog Lake First Nation during her formative years; • As a child, Ms. Katcheech was exposed to substance abuse in the home. This ultimately led to her parents separating and her being removed from her mother’s care at age seven; • Ms.

Katcheech herself suffered from substance abuse as a teenager and into adulthood. She abused alcohol, marijuana, cocaine, and crystal meth. She was hospitalized for a fentanyl overdose in 2018; • Ms. Katcheech’s mother and aunt both attended residential school; • As a child, Ms. Katcheech was sexually abused by an uncle from the ages of seven to nine. She also reported being sexually assaulted in 2010; • In her domestic relationships, Ms. Katcheech was physically, emotionally, and mentally abused by her partners; • As a child, Ms. Katcheech suffered from disconnection and dislocation from her community.

She reported often having to leave her communities because of her mother’s drug addiction and the issues related to her mother’s domestic relationships; • Ms. Katcheech was involved with the Ministry of Social Services as a child having been removed from her mother’s care at age seven due to her mother’s drug addiction. Ms. Katcheech’s children have been apprehended by the Ministry of Social Services on multiple occasions due to neglect, drug addiction, and domestic violence. The three oldest are long-term wards and the two youngest have spent time in the care of the Ministry of Social Services; • Ms.

Katcheech’s mother passed away when Ms. Katcheech was only nineteen; • Ms. Katcheech suffers from mental health issues. These have led to her being unable to work and she has been on social assistance programs for the past five years; • Due to her extended family’s struggle with addictions, Ms. Katcheech does not associate with much of her family as they are a negative influence on her. This has led to familial disconnection; • Since being on release, Ms. Katcheech has began participating in cultural ceremonies such as smudging and meeting with elders; and • Ms.

Katcheech has been diagnosed with FASD. [ 34 ] The diagnosis of FASD is an important consideration in Ms. Katcheech’s sentencing. It is a Gladue factor not only because of the increased instances among Aboriginal people in general (see David Milward, “Special Issue: Law on the Edge The Sentencing of Aboriginal Accused with FASD: A Search for Different Pathways,” (2014) 47 UBC L Rev 1025 – 1083 (QL) at para 9) but also because Ms. Katcheech’s mother suffered from addiction due to her own historic and systemic factors. In this way, Ms. Katcheech is similar to the accused in J.P.

Very recently in J.P. , the Saskatchewan Court of Appeal had before them an offender with significant Gladue factors and a diagnosis of FASD. Leurer, J.A. found that there was a clear connection between the FASD and Gladue factors as the accused’s FASD was as a result of the intergenerational issues caused by residential schools ( J.P. at para. 45 ). [ 35 ] Taking guidance from the Court of Appeal in J.P. , I have considered Ms. Katcheech’s FASD diagnosis as part of the overall analysis of her Gladue factors as there is a clear connection.

However, it is important to comment on the FASD itself to provide the context in which her overall moral culpability was assessed. [ 36 ] In defining FASD, I find that the definition from the Canada FASD Research Network to be of considerable assistance: Fetal Alcohol Spectrum Disorder (FASD) is a diagnostic term used to describe impacts on the brain and body of individuals prenatally exposed to alcohol. FASD is a lifelong disability.

Individuals with FASD will experience some degree of challenges in their daily living, and need support with motor skills, physical health, learning, memory, attention, communication, emotional regulation, and social skills to reach their full potential. Each individual with FASD is unique and has areas of both strengths and challenges (Canada FASD Research Network, online: < https://canfasd.ca/fasd-faqs/>)

[ 37 ] In 2012, Ms. Katcheech was assessed by Dr. Monty Nelson as part of a referral to the Northwest Central Alberta FASD Services Network. The Assessment and Diagnostic Services

Summary Report and Recommendations (the Assessment) gives the Court an understanding of the challenges that Ms. Katcheech faces as a result of her FASD. While this report was prepared in 2012, given that FASD is a lifelong disability, I find that the information is relevant in understanding the disability’s impact on Ms. Katcheech and how it factored into her actions on January 5. [ 38 ] While I will not reproduce the extensive report, the following findings of Dr. Nelson are of particular importance. Ms. Katcheech intellectually functions in the low average range.

Her reading comprehension is akin to a mid to late elementary school range and her language comprehension is on par with a ten to eleven year old. Ms. Katcheech has severe Attention Deficit Hyperactivity Disorder (ADHD) meaning that she struggles with impulse control. She also has weak memory skills. Furthermore, Ms. Katcheech struggles to make decisions although she does much better when given significant time to make the decision. [ 39 ] The Court of Appeal’s decision in J.P. is significant as it represents a shift in the way Saskatchewan courts view FASD.

Leurer, J.A. recognized that proven FASD can reduce the degree of responsibility of an offender if there is a connection between the condition and the offender’s moral culpability ( J.P. at paras. 65 and 70 ). [ 40 ] In the J.P. decision, the Court of Appeal reviewed previous Saskatchewan decisions as well as jurisprudence from Manitoba, Alberta, and the Yukon.

One of the cases referenced in that decision was R v Okemow , 2017 MBCA 59 , 353 CCC (3d) 141 [ Okemow ] which suggests that when judges are sentencing offenders that may have a form of cognitive limitation, that they consider three lines of inquiry: 1) is there evidence the offender suffers from mental illness or cognitive limitations; 2) is that evidence such that a decision regarding the relationship between the mental circumstances and the criminal conduct can be made; and 3) given the evidence, whether the degree of mental illness or cognitive limitation played a role in the criminal conduct and if so, to what degree ( Okemow at para. 73 ). [ 41 ] In Ms.

Katcheech’s case, I have sufficient evidence in the form of the Assessment; while dated, FASD is static and therefore the diagnosis still relevant. I also have no problem finding a connection between her FASD and her criminal conduct. Memory and decision making skills are critical in navigating the world. Memory allows for the storage and retrieval of past experiences. Memory is intimately tied to decision making which requires being able to apply past experiences to the current circumstances and make an informed decision. Ms.

Katcheech struggles greatly in both of these areas meaning that when she is faced with a situation, the ability to evaluate that situation and act with purpose is limited. Instead, the actions are reflexive and impulsive, as they were on the night of the incident. [ 42 ] When Ms. Katcheech’s disability is considered along with her other Gladue factors, it is clear to see that her moral culpability is reduced. Here we have a young woman who has been exposed to substance, emotional, sexual, mental, and physical abuse for most of her life.

She has been disconnected from her community and family with little in the way of positive role models. The trauma suffered by her mother had a direct and lasting impact on Ms. Katcheech in many ways. Both her FASD and ADHD create a tendency towards impulsivity which is exacerbated by substance. [ 43 ] That is not to say that Ms. Katcheech is blameless in her actions or that her past somehow erases what she has done. Ms. Katcheech is responsible for what she did to Ms. Bluecloud and the lasting impact, and so she must bear the consequences of her actions.

But her level of responsibility, her level of moral culpability, is lessened; the Assessment and PSR can lead to no other conclusion. [ 44 ] Having thoroughly examined the PSR, letters of support, and heard directly from Ms. Katcheech herself, I can see that she has both the willingness and ability to change. While Ms. Katcheech’s challenges will never go away, she has taken considerable steps towards managing them in a positive way. She has gone out of her way to deal with the underlying causes of her mental health and addictions issues and is on a path to healing. For the first time in ten years, Ms.

Katcheech has seemed to have found the right combination of supports to build a positive life for her and her family and has made great progress in reintegrating into the community. All of her post-offence conduct and her unique background factors demonstrate that Ms. Katcheech’s sentence must give effect to the objectives of rehabilitation through restorative justice. AGGRAVATING AND MITIGATING FACTORS [ 45 ] Ms. Katcheech’s mitigating factors include: • Ms. Katcheech pled guilty, sparing the victim from having to testify; • Ms.

Katcheech has shown sincere remorse for her actions and has apologized to the victim. She is also willing to pay back the

money she took from Ms. Bluecloud; • She has taken extensive steps towards addressing her addiction and mental health issues through programs at Prairie SpiritConnections, Four Directions, and Living Sky Counselling; • She has a number of pro-social supports in her life including her aunt, sister, step-father, support personnel at Prairie SpiritConnections, and elders. Additionally, Ms. Katcheech has recognized and distanced herself from negative influences such as her formerpartner and family members who she used to do drugs and drink alcohol with; • Since being on release, Ms.

Katcheech has been living more independently. She secured her own residence and regained care ofher two youngest children in June of 2020; • Ms. Katcheech has been on electronic monitoring for almost a year and has not breached her conditions. This factor is significantgiven Ms. Katcheech’s history of breach offences; and • There was no element of planning or deliberation involved and there was no weapon used. [46] The aggravating factors include: • The age of the victim, Ms. Bluecloud was seventy-three at the time of the incident; • The lasting impact on the victim both psychologically and physically; • Ms.

Katcheech’s extensive criminal record which includes three violent offences; • There was violence used, although it was minimal; and • Ms. Katcheech was on probation at the time of the incident. ANALYSIS [47] The issue before me is to determine the appropriate sentence for Ms. Katcheech.

Section 718 of the Criminal Code lays outthe following objectives of sentencing: denunciation; deterrence; separation of the offender from society when necessary; rehabilitation;reparation to victims and the community; and promotion of responsibility in offenders and acknowledgement of the harm done to thevictims and community. [48] In addition to these objectives are those set out in sections 718.1 and 718.2 which include: proportionality; any mitigating oraggravating circumstances; parity; totality; and if alternatives to prison exist.

When exploring alternatives to incarceration, particularattention must be paid to the circumstances of Aboriginal offenders. [49] Ms. Katcheech is before the court for robbery and breach of probation. Robbery carries a high gravity given that themaximum sentence, when proceeded by indictment, is life in prison. While breach of probation is a much less serious offence than thatof robbery, given Ms.

Katcheech’s extensive breach record, this breach attracts a greater level of seriousness. [50] Focusing on the robbery charge, the Court of Appeal has noted that the starting point for robbery in Saskatchewan isgenerally three years (see R v Alexson (1991), (SK CA), 97 Sask R 77 (CA); R v Wiberg (1997), (SK CA), 158 Sask R 246 (CA)). However, this is not the typical robbery case; often robbery cases involve a weapon and/or therobbing of a business.

Given the relative lack of violence, premeditation, and weapon, this offence clearly falls on the lower end of anysentencing range. [51] While ranges are a helpful tool for sentencing judges, our Court of Appeal has been clear that ranges are not set in stone. In Rv Keepness, 2010 SKCA 69, 359 Sask R 34 Jackson, J.A., in addressing the range for manslaughter, stated that: Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to pastdecisions that the "range," as it were, must be expanded.

The fundamental point is that a "range" is not a straitjacket to the exercise ofdiscretion of a sentencing judge. (Keepness at para. 24)

[ 52 ] Flexibility in ranges reflects the fundamental premise of sentencing which is that it is an individualized process. The importance of sentencing the individual is highlighted by

section 718.2 (

e) which calls on judges to consider the impact of colonialism on Aboriginal offenders. In speaking of the interplay between proportionality and parity, the Court of Appeal in Whitehead found that to achieve substantive equality for Aboriginal offenders requires “[going] beyond formalistic comparisons of whether two individuals are given identical treatment to consider how the circumstances of each individual affect just treatment” ( Whitehead at para. 31 ). [ 53 ] With all this in mind, I will begin with denunciation and deterrence.

Due to the gravity of the offence, the principles of denunciation, and deterrence are often the primary sentencing principles with robbery. In regard to denunciation, I am in agreement with the Crown in that it must be actualized. However, deterrence requires a more nuanced approach given Ms. Katcheech’s disability. [ 54 ] Deterrence has two parts: general and specific. General deterrence is premised on the idea that a sentence of this offender will deter others from committing similar crimes. Specific deterrence is about deterring this offender from committing further offences.

However, research demonstrates that for individuals who are impulsive, a trait often characteristic of FASD, deterrence has “ little or no effect on such individuals because the organic nature of [FASD] impedes the individual's ability to adapt their behaviour” (See Larry N. Chartrand and Ella M.

Forbes-Chilibeck, “The Sentencing of Offenders with Fetal Alcohol Syndrome,” (2003) 11 Health L J 35 – 70 (QL) at para 24; see also Kent Roach and Andrea Bailey”, “The Relevance of Fetal Alcohol Spectrum Disorder in Canadian Criminal Law from Investigation to Sentencing,” (2009) 42 UBC L Rev 1 (QL) – 68 at para 6 and David Milward, “Special Issue: Law on the Edge The Sentencing of Aboriginal Accused with FASD: A Search for Different Pathways,” (2014) 47 UBC L Rev 1025 – 1083 (QL) at para 18). [ 55 ] In R v Harper , 2009 YKTC 18 [ Harper ], Lilles, J. recognized that the impact of deterrence was lost on Mr.

Harper. Much like Ms. Katcheech, the medical reports demonstrated that Mr. Harper was not able to make the connection between the wrongful act and the punishment imposed, let alone remember the connection and apply it to other situations in the future ( Harper at para. 43 ). While Ms. Katcheech’s impairments are not as severe as those exhibited by Mr. Harper, the Assessment clearly shows that she suffers from an impaired memory and has poor decision making abilities, particularly in stressful situations. [ 56 ] I find myself wholly in agreement with Lilles, J. when he asks “ [i]n this case should we use Mr.

Harper as a whipping boy by imposing a gaol sentence of greater length on him in order to deter others who should and are capable of knowing better? I think not” ( ibid at para. 47). Like Mr. Harper, Ms. Katcheech should not be made an example of for the purposes of sending a message to other offenders, because her disability puts her in a completely different category than the people her sentence is meant to deter. [ 57 ] To thrust upon Ms. Katcheech a lengthy prison sentence for the sake of deterrence would fly not only in the face of what is known about FASD and Ms.

Katcheech’s personal circumstances, but would also work to impose an unjust and disproportionate sentence. For these reasons, deterrence must be given less weight. [ 58 ] Returning to denunciation, it is important that Ms. Katcheech’s actions be denounced. Robbery of an elderly woman is something that society cannot tolerate. Some amount of incarceration is necessary in Ms. Katcheech’s case and doing so will demonstrate to her that her conduct will not be tolerated. However, I am not convinced that an extended amount of incarceration is appropriate. While there is a need to denounce the conduct of Ms.

Katcheech, this objective can be met through a shorter period of incarceration, which in turn reflects the principle of restraint. [ 59 ] Before turning to rehabilitation, I wish to briefly address the objectives of reparations and promoting a sense of responsibility. In terms of reparations, Ms. Katcheech has been open to paying back what she took from Ms. Bluecloud. Part of the reparations objective is that the offender not profit from their crimes. I am of the view that reparations is an important part of Ms.

Katcheech’s sentence and that by paying back what she took, it will impress upon her the wrongness of her actions. [ 60 ] I am also satisfied that Ms. Katcheech has taken responsibility. She pled guilty early on in the process, wrote a letter of apology to Ms. Bluecloud, and expressed sincere remorse when she spoke at the sentencing hearing. It was raised in argument that Ms. Katcheech did not take responsibility early on and in an effort to distance herself from the incident. When she initially spoke with RCMP, her story changed multiple times. Viewed in isolation, the conclusion that Ms.

Katcheech had not accepted responsibility for her actions is easily reached. However, having the benefit of the Assessment, her actions are more understandable. Ms. Katcheech has trouble making decisions, a process that is further hampered when she is under stress. I am in agreement with defence counsel that once viewed with her FASD in mind, it makes sense that she would not have taken responsibility until speaking with counsel. She needed to have someone explain to her, in a way she could understand, the entire situation. Once that happened, she pled guilty.

I therefore put little stock in her initial denial of any involvement.

[ 61 ] I will now address rehabilitation, separation from society, and the overarching principle of protection of the public as in Ms. Katcheech’s case, they are all intertwined. Larry Chartrand and Ella Forbes-Chilibeck in their 2003

article “The Sentencing of Offenders with Fetal Alcohol Syndrome” recommend that the primary sentencing objectives for individuals with FASD should be rehabilitation and separation of from society where necessary ( (2003) 11 Health Law Journal 35 at 27).

Their reasoning for this is tied to the fact that deterrence is ineffective and that offenders with FASD can be managed effectively in the community if the proper supports and treatment are put in place ( ibid at para. 26). [ 62 ] In R v Keewatin , 2009 SKQB 58 , 323 Sask R 150 [ Keewatin ] Gunn, J. found that protection of the public is the better focus for individuals with FASD and that this includes the “need to attempt to provide a realistic framework for the offender’s rehabilitation – which in the case of FASD offenders may not be true rehabilitation, but rather a structured modification of their behaviour” ( Keewatin at para. 50 , affirmed by the Court of Appeal in J.P. at para. 57 ).

Rehabilitation with an offender who lives with FASD must be thought of more broadly; it is not a matter of “curing” them. It involves putting them in an environment with the proper supports so as to facilitate pro-social behaviours. [ 63 ] Returning to the Assessment, Dr. Nelson made a number of recommendations in 2012. By way of

summary, those include: • Due to the combination of cognitive dysfunction and mental health problems, maintaining a sense of purpose and accomplishment is important; • Ms. Katcheech should have ongoing engagement with mental health supports, including mentors/caseworkers; • Medical monitoring is essential due to her history of assaults, drug use, cognitive dysfunction, and mental health issues; • In terms of legal issues, Ms. Katcheech needs an advocate to help her understand court proceedings. She will also need frequent contact with her probation officer to keep on track and avoid breaches.

Finally, her probation orders need to be given in clear and consistent terms so that she is able to understand them; • Freedom from addictions is key for Ms. Katcheech to move forward; and • If her mental health can be stabilized and she can avoid substance use, skills training could be considered. Ms. Katcheech would need learn in a low stress environment with plenty of time. She would also need coaching and mentorship on boundaries and stress management in the context of the workplace. [ 64 ] At the time that the Assessment was written, Ms.

Katcheech’s life was in chaos but if the above things can be achieved, Ms. Katcheech could move forward with her life. As can be seen from the letters of support, Ms. Katcheech has, on her own, actualized a number of those recommendations. Through Prairie Spirit Connections she is working through her trauma and mental health issues. She has also found support and mentorship in relation to her culture and traditions through Prairie Spirit Connections.

She has been engaged with Four Directions Health Centre for parental support, life skills, and addictions counselling. [ 65 ] Having regained custody of her two younger children, Ms. Katcheech seems to have found a sense of purpose and accomplishment. Her submissions at sentencing satisfy me that she is committed to doing the hard work if it allows her to be a positive role model in her children’s lives. [ 66 ] Ms. Katcheech has also been diligently working to stay drug and alcohol free and recognizes that this is instrumental to her staying out of the criminal justice system. [ 67 ] While Ms.

Katcheech has not brought about every one of Dr. Nelson’s recommendations, she has covered off the majority of them in the last year. Her accomplishments demonstrate that she is receptive to rehabilitation and that she can be successfully managed in the community.

Although she has had difficulty in the past with compliance, she has not once breached her electronic monitoring conditions. [ 68 ] She has been assessed as a medium risk to reoffend in the PSR. [ 69 ] The Alberta Court of Appeal in R v Ramsay , 2012 ABCA 257 , 536 AR 174 [ Ramsay ] remarked at the difficulty in determining an appropriate sentence for FASD offenders because the feasibility of reintegration must be balanced with protecting the public ( Ramsay at para. 16 ). However, Ms. Katcheech has already demonstrated that her reintegration is feasible.

[ 70 ] The best protection of the public is reducing recidivism, a task best accomplished through reformation and reintegration. Ms. Katcheech is in a positive environment with the supports in place that are clearly helping her change her life. Her rehabilitation would not be served by taking her out of this successful environment and incarcerating her for a lengthy period of time.

She has done well under the structure of her bail conditions, a structure that if continued in the form of a probation order would allow her to continue and build upon her rehabilitation efforts. [ 71 ] It was argued that a penitentiary sentence would be beneficial as it would give Ms. Katcheech programing and structure. While that may hold true for other individuals, research suggests it is not the case with FASD individuals.

David Milward’s review of studies that looked at FASD inmates found correctional institutions often do not have the programming that FASD individuals need (See David Milward, “Special Issue: Law on the Edge The Sentencing of Aboriginal Accused with FASD: A Search for Different Pathways” (2014) 47 UBC L Rev (QL) at para. 31). There was no evidence presented that such programming was available at the federal penitentiary. Additionally, there is some evidence that individuals with FASD may be more vulnerable to victimization and exploitation in prison ( ibid ). Given that Dr. Nelson’s report identified that Ms.

Katcheech has borderline dependent personality traits which seem to be exacerbated in stressful situations, I am satisfied that a long stint in the penitentiary has a likelihood of being harmful to Ms. Katcheech overall. [ 72 ] Finally, it was argued that because Ms. Katcheech’s FASD manifests itself in poor impulse and decision making, the best way to protect the public is to separate her. For the many reasons I have just listed, I do accept that is the case. In the past, FASD has been used as a sword against the offender by being treated as an aggravating factor and leading to an increase in sentencing.

As noted by Roach and Bailey, this “raises some well-founded concern about the criminalization of people with disabilities” (See Kent Roach and Andrea Bailey, “The Relevance of Fetal Alcohol Spectrum Disorder in Canadian Criminal Law from Investigation to Sentencing” (2009) 42 UBC L Rev 1 (QL) at para 96). [ 73 ] I now come to the principles of proportionality and parity.

At the outset it is worth noting that the Supreme Court has said that parity is not absolute and that the individualized nature of sentencing will mean that a sentence may fall outside of the range or never have been imposed in the past – however, this does not make the sentence demonstrably unfit ( R v Lacasse , 2015 SCC 64 at para 58 , [2015] 3 SCR 1089). [ 74 ] It is also worth mentioning that counsel made the majority of their submissions on September 21, 2020, without the benefit of the Assessment.

I will address these cases first and then turn my attention to cases referenced by counsel at the October 20, 2020 hearing date. [ 75 ] The Crown submitted the cases of R v Park (2014), 349 Nfld & PEIR 307 (NL Prov Ct) [ Park ] ; R v Piercy , 2014 NSPC 102 and R v Piercy , 2014 NSPC 94 [ Piercy cases]; R v Fehr , 2016 SKPC 87 [ Fehr ]; and R v Rocks , 2017 ONCJ 859 [ Rocks ] although the Crown submits that this case is an outlier and not applicable in these circumstances. [ 76 ] Defence counsel asked me to consider the cases R v Schell , 2015 ONSC 6013 [ Schell ] and R v Chand , 2015 BCSC 484 [ Chand ]. [ 77 ] For the reasons that I will outline, I find that both the Crown and defence cases to be of little assistance.

Given the significant Gladue factors and the circumstances of the offence, most of these cases are distinguishable. [ 78 ] Park involved a woman with a lengthy criminal record who stole an elderly woman’s purse. The judge found the robbery was calculated. The joint submission of three years was accepted. [ 79 ] The Piercy cases involved two brothers who sprayed a woman in the face with chemical irritants as she was leaving a store and then stole her purse. Again, this was a case where the joint submission of two years plus a day was accepted. There were no Gladue factors present.

The judge found that the two accused were motivated by a drug habit but were susceptible to rehabilitation given their youth and lack of violence. [ 80 ] Fehr involved a young Aboriginal woman with no criminal record who threatened a cab driver with a knife. She had number of Gladue factors including being in foster care, addiction issues herself and in her family, death of her father at an early age, and abusive domestic relationships. She was sentenced to two years plus one day.

[ 81 ] Rocks was a case that involved a drug addicted accused robbing an elderly woman at an ATM. In attempting to grab the money, the victim was pushed to the ground. There was no mention of Gladue factors. He was sentenced to six months custody and three years probation. [ 82 ] In regard to the defence cases, Schell involved an accused who followed a woman home, assaulted her, and stole her purse. He was found guilty at trial but before sentencing he had dealt with his substance issues and had started a culinary career. He had a number of Gladue factors including sexual and physical abuse.

He had relatives in residential schools and spent time in foster care. He had substance abuse issues and had experienced homelessness and poverty. He was given eighteen months but after getting credit for pre- sentence custody, he served ninety days intermittent. [ 83 ] In Chand , both Mr. Chand and Mr. Lal were sentenced. Mr. Chand received an eighteen months’ suspended sentence and Mr. Lal received ninety days intermittent and two years probation. The incident involved Mr. Chand and Mr. Lal, along with another individual, approaching a group of people. There was a scuffle and Mr. Chand demanded money.

Unbeknownst to him, the other individual had pulled out a knife. Both had taken rehabilitative steps and pled guilty. Mr. Chand had no record. There were no Gladue factors present. [ 84 ] Park and the Piercy cases are of little value as they were both joint submissions and involved accused with no Gladue factors. Park also had the additional aggravating factor of planning which is not present here. Fehr involved a young Aboriginal woman with similar background factors as Ms. Katcheech, however, the presence of a weapon and the victim being a cab driver, were highly aggravating.

While the accused in Fehr had no criminal record, I cannot find that Ms. Katcheech’s record of mostly property and administrative offences means that the gravity of her offence is now on par with the accused in Fehr . [ 85 ] While the decisions of Chand and Schell are not factually similar, they demonstrate that when the offender has taken significant rehabilitative steps, a more lenient sentence is warranted. However, I find the sentences themselves of little value. Rocks is similar factually but the lack of Gladue factors and the limited criminal record distinguish that case from Ms.

Katcheech. [ 86 ] At the second sentencing hearing, the Crown referenced Ramsay and R v J.P . , 2018 SKQB 96 [ J.P. QB ] . In Ramsay the Alberta Court of Appeal upheld a sentence of eight years for sexual assault, uttering threats, two counts of confinement and assault causing bodily harm, obstruction of justice, and three counts of breach of recognizance. The Court of Appeal reviewed much of the same case law and literature that I have referenced in this decision and came to the same conclusion I have: cognitive deficiencies must be taken into account when assessing moral culpability.

In that case, the Court of Appeal was satisfied the judge had properly factored in the FASD diagnosis in imposing sentence. [ 87 ] In the Ramsay decision, there is also reference to the decisions of Harper , and R v Quash , 2009 YKTC 54 . The Crown argues that given that Ms. Katcheech is not as impaired as those accused, that her situation does not rise to the level of departure from the range. I simply cannot accept that argument. Sentencing is an individual process – this offender, for this offence. Her IQ relative to Mr. Harper and Mr. Quash is of no consequence.

However, I find the Harper decision of great assistance in how to approach sentencing individuals with FASD. [ 88 ] In relation to the Queen’s Bench decision in J.P. , I must disregard much of what was argued, as earlier this year the Saskatchewan Court of Appeal overturned that decision and reduced the sentence for two robberies (among other charges) down from ten years to eight years. Leurer, J.A. found there was a clear connection between J.P.’s FASD/ Gladue factors and his moral culpability, hence the reduction in sentence ( J.P. at para. 73 ).

Ultimately, the Queen’s Bench judge, although he noted the systemic and background factors, including the FASD diagnosis, failed to account for them in the overall sentence ( ibid at para. 74). [ 89 ] During submissions, there was much said about parity, but it is important to remember how parity factors in among other sentencing considerations. As the Supreme Court said in R v Friesen , 2020 SCC 9 at para 32 : Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application of proportionality will lead to parity.

Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality ( R. v. L.M ., 2008 SCC 31 , [2008] 2 S.C.R. 163, at paras. 36-37 ; R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433, at paras. 78-79 ). [ 90 ] Given Ms. Katcheech’s unique systemic and background factors, to impose a sentence similar to the cases presented would

not achieve proportionality. While the gravity of the offence is great, this situation is on the lower end given the lack of planning andweapon. When I consider, Ms. Katcheech’s issues with impulse control brought about by her FASD and ADHD, as well as her otherGladue factors, I find that she has a reduced degree of responsibility. Therefore, her sentence must be proportionate to that degree ofresponsibility. A lengthy term of incarceration for the sake of parity would be unjust and ignore

section 718.2(e). CONCLUSION [91] Sentencing is a challenging process. As a judge I must balance a myriad of factors to come to a just and fit sentence for theperson standing before me. That balancing requires giving effect to all of the sentencing principles. While not easy at the best of times, itis made all the more difficult with the addition of the many Gladue factors that Ms. Katcheech has.

As the Ontario Court of Appeal in Rv Hamilton (2004), (ON CA), 186 CCC (3d) 129 (Ont CA) noted at paragraphs 93 and 94: Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in onesentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencingjudge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry intoaccount. ...

In some circumstances, one side of the proportionality inquiry will figure more prominently in the ultimate disposition than the other. [92] That is very much the case here. Despite this robbery being on the lower end in terms of seriousness, it is a robbery,nonetheless. However, the Gladue factors, particularly her FASD create a reduction in moral culpability. When I balance all of thesentencing objectives, factor in all of the mitigating and aggravating factors, and give full effect to

section 718.2(e), I find that anappropriate sentence is one where rehabilitation must be given preference. Ms. Katcheech has never been as successful as she is now andmy sentence today takes the progress she has made and seeks to build on it, rather than destroy it. I am not convinced that a penitentiarysentence is appropriate and in fact has a likely chance of running counter to the objectives of protection of the public, rehabilitation, andrestraint. But that is not to say that denunciation, and to a limited extent deterrence, is irrelevant; Ms.

Katcheech must answer for heractions and a short incarceration followed by probation is the best way to achieve that. [93] The Supreme Court in R v Proulx, 2000 SCC 5, 140 CCC (3d) 449 [Proulx] noted that because sentencing is such anindividualized process, this will naturally lead to variation in sentences (Proulx at para. 82).

Sometimes a situation justifies departurefrom the range of sentencing in order to achieve proportionality and this is just such a case. [94] A sentence of 90 days intermittent custody with probation for a period of 24 months properly balances all of the sentencingobjectives and is the most appropriate sentence for Ms. Katcheech. It addresses the need for denunciation and deterrence but in a waythat recognizes the reduced impact those objectives have on an individual living with FASD. It also gives full effect to the objectives ofrehabilitation, protection of the public, and

section 718.2(e). It accounts for all of the mitigating and aggravating factors. It is a sentencethat is proportionate to the gravity of the offence and responsibility of Ms. Katcheech. Finally, it is a sentence that demonstrates restraintand seeks to embody restorative justice. [95] I am encouraged by the progress that Ms. Katcheech has made but robbery is a serious offence and incarceration is required.But this sentence ensures that she spends no more time in jail than is necessary to achieve the principles of sentencing. [96] While defence counsel asked that I exercise my discretion and award Ms.

Katcheech credit for her time spent on pre-sentencerelease conditions, I decline to do so. The leading authority on awarding credit for pre-sentence release is R v Lever, 2014 SKCA 58, 438Sask R 181. That decision clearly states that it is up to the accused to satisfy the court that the conditions were restrictive enough towarrant credit. Given the programing she has received and the progress she has made while on these conditions and the lack ofinformation on the restrictive nature of the conditions, I am not convinced that credit should be granted. [97] Ms. Katcheech, you have come a long way.

You are sober, you have your kids back, and you are working on being a betterperson. I want you to continue on this positive path. Accordingly, the Court sentences you as follows:

• On Count 1, robbery,

section 344(b), I sentence you to a period of 90 days intermittent custody in the Provincial Correctional Centre with a period of probation of 24 months probation. • On Count 2, breach of probation,

section 733.1, I sentence you to 18 days time served. • You served 12 days on remand which at a multiple of 1.5 x is a total of 18 days. Therefore, the time spent on remand will be attributed to Count 2 which equates to time served plus your appearance in court today. • I order you to pay restitution to Ms. Bluecloud in the amount of $350.00. • I also make the mandatory DNA order pursuant to

section 487.051 of the Criminal Code and the mandatory ten year firearm prohibition pursuant to

section 109 of the Criminal Code . [ 98 ] Ms. Katcheech, your probation terms are as follows: 1. Keep the peace and be of good behaviour. 2. Appear before the court when required to do so by the court. 3. 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. 4. Immediately give the court your current address and phone number if available: 5.

Report to a probation officer at 2nd Floor, 1942 Hamilton Street, Regina, Saskatchewan, ph. (305) 787-3808 (toll free 1-888-586- 6363) either in person or by phone within two working days of the order and after that as told to do so by your probation officer or designate. 6. 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. 7.

Stay inside your approved residence from 11:00 p.m. each night to 7:00 a.m. the next morning, unless you have the prior written permission of your probation officer or designate or the court to be elsewhere and come to the door of your approved residence when asked to do so by a probation officer or designate or police officer who may be checking the residence and curfew conditions of this order. 8. Not possess or consume alcohol or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores. 9.

Participate in an assessment and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your probation officer. 10. Have no contact of any kind in any way, directly or indirectly, with Terri Bluecloud except through a lawyer. 11. Not be at the residence, workplace or place of education of Terri Bluecloud.

12. That you will refrain from the consumption of beverage alcohol and non-prescription drugs or medications for at least 24 hours prior to presenting yourself to the keeper of the jail for the service of the intermittent sentence and report without alcohol on your breath, or in your bloodstream. ______________________ Koskie, J