Docket: 1848 Christopher Musqua Appellant - v. -, 2011 SKCA 2

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 2 Date: 20110105 Between: Docket: 1848 Christopher Musqua Appellant - and - Her Majesty the Queen Respondent Coram: Cameron, Jackson and Ottenbreit JJ.A. Counsel: Brad Tilling for the Appellant David Kim Jones for the Crown Appeal:

From: Provincial Court Heard: November 10, 2010 Disposition: Dismissed Written Reasons: January 5, 2011 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Cameron The Honourable Madam Justice Jackson Ottenbreit J.A. Introduction [ 1 ] The accused appeals from the sentence imposed on him by the Provincial Court judge after conviction for three offences as follows: 1. Between August 31 and October 16, 2009, harassing Kimberly Kreklewetz contrary to section 264(3) of the Criminal Code ; 2.

On or about September 17, 2009, committing mischief by entering a dwelling-house at 91A Cavendish Street contrary to section 430(4) of the Criminal Code ; 3. On September 21, 2009, committing mischief by willfully destroying property, being a cell phone and a car window, the property of Kimberly Kreklewetz, contrary to section 430(4) of the Criminal Code . [ 2 ] With respect to count 1, Musqua received 44 months incarceration, a 10-year firearms prohibition, DNA order and a

section 743.21 no contact order. With respect to count 2, he received 20 months concurrent incarceration and a

section 743.21 no contact order. For count 3, he received the same sentence as count 2. After receiving 14 months’ remand credit, the total time left to be served was 30 months. Evidence and Background [ 3 ] In the spring of 2009, Musqua was living in a Regina halfway house on statutory release as a result of a previous conviction. During this time, he rekindled his former relationship with Kimberly Kreklewetz (“Kreklewetz”). The relationship went on for a few months until Kreklewetz ended it at the end of August 2009.

In August of 2009, Musqua had completed his sentence. [ 4 ] Musqua had some difficulty with ending the relationship with Kreklewetz, and began phoning her numerous times. [ 5 ] On September 17, 2009, he attended to Kreklewetz’s home to pick up his clothing. Kreklewetz did not want him coming into her house, so she put his clothing in a bag and left it outside the back door and told him to pick it up there. He went to the back door and began kicking at the back door. He damaged the door frame and the door itself. The door was prevented from opening by a security chain.

Kreklewetz feared he would enter the house so she phoned the police and Musqua left.

[6] Four days later, he blocked Kreklewetz’s vehicle with his truck from leaving her parking lot and demanded several of his itemsback. Kreklewetz rolled the window down a crack and opened the trunk so that he could retrieve a textbook. Musqua then asked her fora kiss. She refused. He then grabbed the car window and ripped it away from the door frame, breaking it. Kreklewetz attempted to call911 but he grabbed the phone and shattered it into several pieces. [7] Prior to and after this incident, Musqua repeatedly phoned the complainant at her home and at her place of employment.

Sheestimated that at its worst, the accused phoned her as many as 60 times a day. On average, there were 10 calls a day to her residence and6 to her office. He also waited outside her places of residence and employment. He sent her an email in which he attached severalphotographs of him pointing a handgun at his own head. [8] The accused is 39 years old and is a member of a First Nation. He maintains a strong relationship with his First Nation and heattends sundances, sweats, and otherwise keeps in close contact with that aspect of his life. He has support from his community.

Theaccused struggles with drug addiction and at the time of the incident with Kreklewetz, he had been taking steroids. His criminal record isover 80 convictions, 14 of which were for violence, primarily assaults and threats. One of his more recent convictions was for an assaultcausing bodily harm in 2005 to Miss Kreklewetz and for threatening her.

For that sentence, he received 30 months. [9] The accused is a member of the Saskatchewan Regional Council of Carpenters, Drywallers, Millwrights and Allied Workers and isa fourth-year carpenter and second-year scaffolder. [10] At sentencing, the Crown argued that a lengthy sentence was needed to remove the appellant from society which would in turnprotect not only the victim but the public as a whole. The Crown suggested a sentence of four years minus credit for remand time for aneffective sentence between 3 years and 3 years, 5 months.

Defense counsel suggested that a conditional sentence, a probation order or amuch shorter period of custody should be imposed for the offences. Decision of the Sentencing Judge [11] The sentencing judge reviewed Musqua’s criminal record, stating that it was “very consistent and there was very little abatement interms of ongoing criminal conduct”. She indicated that the record showed “a clear lack of respect for court orders and for authority”.

Thesentencing judge observed that Musqua had a substantial criminal record which included violent offences, breaches of release conditions,obstruction, being unlawfully at large, resisting arrest, flight from police and violations of statutory release. She observed that since 2005when Musqua received substantial penitentiary time for offences related to Kreklewetz, he received what amounted to anotherpenitentiary term for other offences and then, shortly after he finished serving that term, committed the offences for which he was beingsentenced.

She observed that as people continue to re-offend, the emphasis shifts to public protection, denunciation and deterrence. [12] The sentencing judge was also concerned with the previous assault causing bodily harm on the victim and underscored thedomestic nature of the crimes before her. She was concerned that Musqua had breached a non-communication order with the victimseveral times and that he had sent photos of himself with a gun when he was prohibited from possessing firearms.

The sentencing judgeconsidered Musqua’s expressions of remorse in court and the fact that steroids may have had an impact on him and that while he was inthe community he appeared to be hard-working and had support from the community. She considered Gladue [R. v. Gladue, (SCC), [1999] 1 S.C.R. 688] factors. However, she rejected the possibility of a conditional sentence, indicating that wouldbe inconsistent with all the surrounding circumstances in the case and the principles of sentencing to which she referred.

She was notsatisfied that a conditional sentence would not endanger the safety of the community. [13] After reviewing a substantial number of cases from this jurisdiction and elsewhere, she followed the direction of this court in R. v.Ilg, 2009 SKCA 76, 331 Sask.R. 151 that the sentence imposed for threatening must be grounded in the circumstance of the particularcrime, the particular offender and the domestic relationship context of the offences before her. She acknowledged that she had before hera harassment charge and not a threatening charge but found that this case had similar features and conduct.

She determined that ratherthan consecutive sentences, a global sentence of 44 months less 14 months’ remand credit would be appropriate, given that the offencesoccurred in an overlapping time frame. She acknowledged that this sentence was in the higher range. Standard of Review [14] The standard of review for sentence appeals is defined in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500: absent anerror in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, an appellate court should notinterfere with sentence unless it is demonstrably unfit.

Analysis [ 15 ] Musqua submits that the sentencing judge erred by imposing a sentence that was overall too harsh for all the circumstances. He argues that on the basis of previous case law, a mischief conviction should not result in a 20-month sentence, and that a 44-month sentence for harassment is excessive and outside the range of sentences usually given for such offences. The Crown argues that it is a fit sentence. [ 16 ] In my view, the sentencing judge made no errors in principle and the sentence was a fit one.

The sentence reflected the seriousness of the offences and also properly addressed the need to denounce these offences and to deter Musqua and others from committing similar offences. Although it was on the high end of the range, it was in line with sentences imposed on similar offenders facing similar offences in similar circumstances and was therefore fit and reasonable. [ 17 ]

Section 718.1 of the Criminal Code states that the fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 18 ] This was a case where the offences were committed in the context of a domestic relationship. Kreklewetz was the victim of a prior domestic crime, an assault causing bodily harm, perpetrated by Musqua for which he received 30 months penitentiary time. Admittedly there is in the case before us no major physical harm to Kreklewetz and these offences are less serious than those in 2005.

However it is an important consideration that, vis-à-vis Kreklewetz, he is a repeat offender. [ 19 ] The criminal harassment offence involved repeated and persistent telephone and e-mail contacts and attempts by Musqua to contact Kreklewetz with Musqua leaving messages for her on many occasions. The sentencing judge likened it to a threatening. Although a harassment charge is different than threatening, the seriousness of it should not be minimized.

It is of note that the Criminal Code sets out a substantial maximum period of incarceration for harassment which exceeds the same maximum set for a conviction for uttering threats under

section 264.1 . [ 20 ] With respect to the mischief charges, although the acts committed are at the low end of the scale, they were committed in the domestic context, which is a further aggravating factor. The sentencing judge was entitled to impose the sentence she did as part of a global approach to the three offences. [ 21 ] The sentence imposed on the accused, while at the high end of the range, is in these circumstances not outside of the range.

In my view, the sentencing judge is entitled to take into consideration the domestic context of these offences, the fact that Musqua’s aggressive behaviour persisted over a month and a half, and the fact that Musqua’s criminal behaviour has continued virtually unabated since March 2005. The sentence is proportionate to the gravity of the offences and the responsibility of Musqua in all the circumstances. It reflects as well the principles of denunciation and deterrence. [ 22 ] Accordingly, I can see no error made by the sentencing judge. The sentence is fit and the appeal is dismissed.

DATED at the City of Regina, in the Province of Saskatchewan, this 5 th day of January, A.D. 2011. “Ottenbreit J.A.” OTTENBREIT J.A. I concur “Cameron J.A.” CAMERON J.A. I concur “Ottenbreit J.A.” for JACKSON J.A.