Her Majesty the Queen - v. -, 2020 SKPC 38

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 38 Date: September 30, 2020 Informations: 991108772; 991110702 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Emmet Austin Hawk Kitchener Appearing: Mr. Jonathan Foreman For the Crown Ms. Pamela Cuelenaere Q.C. For the Accused SENTENCING DECISION F.M. DAUNT, J [ 1 ] Emmet Kitchener entered guilty pleas to assault with a weapon, resist arrest, and two counts of mischief under $5000.00, all of which occurred on October 21, 2019.

Because the Crown proceeded by indictment, a conditional sentence is not available for the assault with a weapon, although it is available for the other offences. [ 2 ] Crown seeks 18 months in custody followed by 24 months on probation. Defence proposes a combination of time served, a six-month conditional sentence order, and probation to follow if the Court considers it necessary.

FACTS [ 3 ] On October 21, 2019, Emmet Kitchener was 18 years old. He had grown up in the care of the Ministry of Social Services. Among other disorders, he suffers from schizophrenia and addictions. He had aged out of the foster care system and had been kicked out of his sister’s home, rendering him homeless. He was not connected to community resources and not receiving the regular medication he needs to manage his schizophrenia. [ 4 ] On the date of the offence, Emmet was drinking with his adopted brother. His brother wanted to rob the 7-Eleven so they could purchase drugs. Mr.

Kitchener described it as a “Pinky and the Brain situation.” (For those unfamiliar with the cartoon, Pinky and the Brain are laboratory mice. Brain is a genius, and Pinky is insane. In every episode, Brain conjures up an elaborate scheme to try to take over the world. Pinky is the sidekick, a follower. Emmet saw himself as the Pinky in this relationship.) [ 5 ] Emmet agreed to help rob the store. Outside the 7-Eleven, his brother encouraged him to go inside with the bat. Once inside, however, his brother pretended not to know him.

His brother went to the counter and asked for a drink, while Emmet stood behind him with his face masked. (This was before everyone was doing it.) Pretending to be Emmet’s victim instead of his accomplice, his brother mouthed “Help me” to the clerk, Kyle Dyck. Mr. Dyck then pressed the emergency button to call the police. Emmet’s brother asked Mr. Dyck to hold his arm, saying he did not want to go outside with Emmet. Mr. Dyck obliged. [ 6 ] Intoxicated, Emmet was confused by his brother’s behaviour. He decided he would not rob the store, but he became angry at this betrayal.

He pulled out the bat and started smashing things. He hit the lottery counter, also hitting Mr. Dyck on the forearm. (Apparently, Mr. Dyck was not injured.) Mr. Kitchener then threw a Slushie at him. He began smashing the doors, yelling, “Fuck the police.” He left the store and smashed the windshield on employee Mansimran Singh’s vehicle, which was parked just outside the door, causing $320.00 in damage. [ 7 ] When the police attended, Emmet was already running away. Constable Bighetty tracked him with Phoebe, a dog with the canine unit, finding him in the parking lot of an apartment building.

Three police officers tried to place him in handcuffs, but he refused to obey commands and get on the ground. He became actively resistant, was trying to pull away and push against the officers. He was brought to the ground, where he continued to fight the arrest, and was eventually handcuffed. He was placed in the police vehicle and transported to the police station. Constable Bighetty and Phoebe found the baseball bat in the yard next to the apartments. [ 8 ] At police cells, Mr. Kitchener continued to be uncooperative, pulling away and tensing up.

He was taken directly to his cell without being given his rights and warnings, because he was too irate. He was held in custody until December 3, 2019, when he was released on bail. [ 9 ] No estimate of damage to the 7-Eleven was provided to the court. Neither were any victim impact statements presented. CIRCUMSTANCES OF THE OFFENDER [ 10 ] Emmet Kitchener is a member of the Shoal Lake First Nation. He is now 19 years old. He has a youth record which includes a robbery in 2015 (when he was 14), for which he received a custodial sentence.

His last substantive offences were in 2017, consisting of a theft, possession of a weapon, possession of break-in instruments, and drug possession. Since 2017, the youth record consists solely of breaches. [ 11 ] Emmet is the second of three children born to his parents. He has another half sibling from his mother’s subsequent relationship. He was apprehended from his family at the age of three and was shuffled between about 20 foster homes and extended family until he started living in group homes and youth custody facilities at the age of 14. Both parents struggled with alcohol abuse.

His mother, a residential school survivor, experienced periods of homelessness, and was clinically depressed most of her life. She died when Emmet was 13, after which Emmet attempted suicide for the first time. Several times, Emmet ran from group homes or youth custody facilities in an attempt to reunite with his family. [ 12 ] Emmet’s first experience with cannabis was at the age of six, when he smoked it with his uncle, who routinely got him high. Emmet’s first experience with alcohol was at the age of 12.

This has led to his hospitalization for alcohol poisoning and hypothermia, as well as inpatient treatment at Calder Centre. He also used mushrooms, crack, gabapentin, “down” (which I think is hydromorphone),

crystal meth and suboxone in the past. [ 13 ] At 17, Emmet had a brief relationship with a girl who sadly passed away in childbirth. He has not seen his son in the two years since her death. [ 14 ] Emmet has been diagnosed with ADHD, reactive attachment disorder, alcohol related neurological disorder and schizophrenia. In March of 2019, Emmet aged out of the foster system. He went to live with his older sister Victoria, but she soon kicked him out because of his use of alcohol and crystal meth. Emmet was homeless at the time of the offence.

He was not connected with community resources and was not taking the medication needed to manage his psychiatric condition. [ 15 ] Emmet served a total of 99 days pre-sentence custody, or the equivalent of a 149-day sentence, about five months. Although homeless at the time of the offence, he has been doing well since his release, especially since March of this year. He is now connected to Community Living because of a cognitive disability. He receives monthly injections through Mental Health to manage his schizophrenia. He receives financial support from the Saskatchewan Assured Income for Disability Program.

His living situation has stabilized, and he takes advantage of programming offered through Homeward Bound. He has stopped drinking and doing hard drugs. Although he continues to consume cannabis, Homeward Bound staff support this choice, considering it harm reduction, helping him stay away from more destructive substances. He is registered in Carlton Comprehensive High School and hopes to complete Grade 12 this school year. [ 16 ] He has recently reconnected with his Indigenous heritage through cultural events provided by the Homeward Bound Youth Program.

He actively participates in sweats, feasts, medicine gathering, and cultural camp. He has access to an elder. During his childhood with the Ministry of Social Services, he had no exposure to such things. [ 17 ] Because of his mental illness and cognitive disability, Emmet is unable to comprehend the seriousness of his offences, and unable to understand why the victims would not find it funny. He is not a person who understands the consequences of his actions and just does not care. Rather, due to factors beyond his control, Emmet is simply not able to understand.

Nevertheless, he does have insight into the factors that cause him to behave badly, being alcohol and drug use, negative peer associations, homelessness and unaddressed childhood trauma. He does not want to attend a treatment program for addictions because he has trouble trusting people. However, he has been engaging in one-on-one sessions with Homeward Bound Outreach staff daily. He engages in informal counselling with them, as well as more formal programming through their Youth Program. He has more prosocial peers now and has made great strides since his release from custody.

The manager of Homeward Bound says he is a different person since he entered their program. As the writer of the pre-sentence report (PSR) says, “Emmet has established a level of trust with Homeward Bound Staff and is actively engaged in addressing a number of his risk areas.” [ 18 ] Although Emmet maintains a relationship with his father and his older sister, Homeward Bound is his primary community support, providing housing and both informal and formal programming. If sentenced to custody, he will lose that support, as well as the financial support of the SAID Program.

He will again be homeless upon his release. Futhermore, he will not be able to pay $320.00 restitution to Mr. Singh, whose windshield he broke. Any sentence will include a component of community supervision. The writer of the PSR says, “The writer would respectfully suggest a minimal number of requirements for Emmet on any community order, so he can focus on one thing at a time. Having requirements to attend addictions, counselling, programs, schooling, etcetera, are likely to set him up for failure.

He will be much more successful if he can concentrate on one area at a time.” POSITIONS OF CROWN AND DEFENCE [ 19 ] The Crown seeks a sentence of 18 months in custody followed by 24 months of probation. Although Mr. Foreman acknowledges that Emmet has been doing well at Homeward Bound, he is concerned that Emmet is unwilling to work with Addictions Services. Moreover, even though alcohol and drug use fueled his criminal behaviour, Emmet continues to use marijuana daily. Crown counsel highlights Emmet’s youth record, which includes some violence and many breaches.

He submits that Emmet denies or minimizes the impact of his offences on the victims. He is a high risk to re-offend. Mr. Kitchener would have programs available to him in the Correctional Centre that could assist him in avoiding criminal involvement in the future. He submits the proposed sentence would achieve the sentencing goals of denunciation and deterrence. The offences were not minor. A weapon was used in the store, damage was caused, and the police response was severe.

In his submission, 18 months followed by a lengthy period of probation would be a proportionate sentence. [ 20 ] Defence counsel submits a combination of time served, a conditional sentence order and probation to follow, if necessary, would best achieve the objectives of sentencing. Ms. Cuelenaere highlights the significant Gladue [1] factors at play here. She submits

no one was injured in the offences. Her client is a cognitively challenged schizophrenic who was intoxicated and encouraged to commit the offence by another uncharged individual. Emmet’s most significant risk factors – homelessness and drug abuse – are now being addressed in the community. Ms. Cuelenaere submits a community-based sentence would allow Emmet to pay restitution and make amends for the harm done. Regarding Emmet’s continued use of cannabis, defence points out marijuana is perfectly legal for an adult to consume. In Emmet’s case, marijuana is helping him abstain from harder drugs and alcohol.

If taken into custody, Emmet will lose his placement at Homeward Bound and his Disability income. Defence suggests that denunciation and deterrence can be achieved through a jail sentence in the community. Although a conditional sentence is not available for the assault with a weapon, it is available for the other offences. Emmet has accumulated enough pre-sentence custody to punish him for the assault, and a conditional sentence would be a proportionate response to the other offences.

ANALYSIS [ 21 ] A sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender. A sentence should protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.

Those sanctions should denounce unlawful conduct, or deter the offender and others from committing offences, or separate offenders from society, where necessary, or assist in rehabilitating offenders, or provide reparations for harm done, promote a sense of responsibility in offenders and acknowledgement of the harm done, or, ideally, all those things. A sentence may be increased or reduced to account for aggravating and mitigating factors. Sentences should be similar to those imposed for similar offenders for similar offences committed in similar circumstances.

An offender should not be deprived of liberty if less restrictive sanctions may be appropriate. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 22 ] Proportionality is the fundamental principle of sentencing. When assessing a proportionate sentence, the Court must look both to the gravity of the offence and the degree of responsibility of the offender, that is, his moral culpability.

As to the gravity of the offences, although they were violent, in that a weapon was used in their commission, no one was physically injured. As to moral culpability, we have a very young man who suffers from schizophrenia and other mental illnesses, as well as addictions to harmful substances. In his case, significant Gladue factors also mitigate his moral culpability. His inability to comprehend the impact of his actions on the victims is not a sign of callousness or cruelty. He is simply not capable of understanding how his actions affect others.

Even so, he does possess insight into his risk factors and has a desire to change his behaviour. He has made great strides in lowering his risk to the public. [ 23 ] In a case like this, despite an offender’s lower moral culpability, it may be necessary to separate him from society for a time because he poses a present danger to the public. In Mr. Kitchener’s case, however, separation from society would increase risk. He has stabilized a great deal since the commission of the offences. Since his release from custody on December 3, 2019, he has been subject to conditions in the community without serious incident.

Since March, he has been stable and sober. If he were sentenced to custody, he would lose this stability and be back to square one. [ 24 ] I find the time he has already spent in custody adequately denounces the crimes. Harsh sentences do nothing to deter the general public from committing crimes of this nature.

Neither would a harsh sentence deter Emmet personally from committing future crimes; his mind simply does not work that way. [ 25 ] I find a proportionate sentence that would best achieve the goals of sentencing is a combination of time served followed by supervision in the community subject to a probation order. This will hold Mr. Kitchener accountable by requiring him to make amends to his victims, foster his rehabilitation and protect society by supporting his stability in the community. Part of that sentence will be restitution to Mr. Singh.

Because there is no readily ascertainable amount provided for damage to the 7-Eleven, I decline to order restitution to that victim. [ 26 ] The PSR recommends a condition requiring Emmet to take such assessment, counselling and treatment for addictions as directed by the probation officer.

Section 732.1(3) (

g) of the Criminal Code authorizes the Court to impose such a condition “if the offender agrees.” Clearly, he does not, and I decline to impose that condition. He is managing his addictions through his engagement with Homeward Bound, and piling on conditions would only jeopardize his progress. SENTENCE [ 27 ] The sentence, therefore, is as follows:

Information 991108772 Count 1: 90 days deemed time served (90 days credit for 60 days served) Count 2: 30 days time served (30 days credit for 20 days served) Count 3: 30 days time served (30 days credit for 20 days served) Information 991110702 30 days time served (30 days credit for 20 days served) [ 28 ] All sentences will be followed by nine months’ probation on the following terms: 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 in your name or address and promptly notify the court or probation officer of any change in your employment or occupation; 4. Report to a probation officer within two working days and after that as told to do so by the probation officer; 5. Live at Homeward Bound 305-1101 Branion Drive, Prince Albert, SK. Do not change that address without the permission of the probation officer or the court; 6. Not possess or consume alcohol or illicit drugs, except cannabis; 7.

Make restitution by paying into Provincial Court the amount of $320.00 in trust for Mansimran Singh by the end of the probation period, which restitution may be earned through the Just Works Program, if available; 8. Participate in Homeward Bound programming, including the Youth Program and one-on-one sessions with Outreach staff. [ 29 ] On Count 1 on Information 991108772 a DNA order is mandatory. I therefore order a warrant to issue in form 5.03 authorizing the taking of a DNA sample for the national database. Pursuant to

section 109, a firearms prohibition is also mandatory. Mr. Kitchener is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years. He is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 30 ] The surcharges are waived for undue hardship. Dated this 30th day of September, A.D., 2020, at the City of Prince Albert, in the Province of Saskatchewan.

_______________________________ F.M. Daunt, J