Docket: 1751-CR Devon Trent Gerald Paskimin Appellant - v. -, 2012 SKCA 35

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 35 Date: 20120319 Between: Docket: 1751-CR Devon Trent Gerald Paskimin Appellant - and - Her Majesty the Queen Respondent Between: Docket: 1756-CR Francis Paul Yukon Appellant - and - Her Majesty the Queen Respondent Coram: Klebuc C.J.S., Caldwell and Herauf JJ.A.

Counsel: Anthony Gerein for the Respondent William Roe, Q.C. for the Appellant, Devon Trent Gerald Paskimin Cameron McCannell for the Appellant, Francis Paul Yukon Appeal: From Conviction: 2009 SKQB 205 From Sentence: 2009 SKQB 351 Heard: December 7, 2011 Disposition: Appeals dismissed Written Reasons: March 19, 2012 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Chief Justice Klebuc The Honourable Mr. Justice Caldwell Herauf J.A. I.

Introduction [ 1 ] Francis Paul Yukon and Devon Trent Gerald Paskimin were each convicted by a Court of Queen’s Bench justice of the following offence: that on or about the 22nd day of December, A.D. 2005, at Prince Albert, in the Province of Saskatchewan did: COMMIT SECOND DEGREE MURDER ON JAMES RONALD TAYLOR CONTRARY TO SECTION 235(1) OF THE CRIMINAL CODE. [ 2 ] Mr. Yukon received a life sentence without eligibility for parole for a period of 16 years. Mr. Paskimin received a life sentence without eligibility for parole for a period of 14 years.

Both appellants appeal from their convictions and from their respective periods of parole ineligibility. [ 3 ] It is important to note at the outset that while the trial judge found that Mr. Yukon had stabbed Mr. Taylor, he found Mr. Paskimin was a principal offender within the meaning of s. 21(1) (

a) of the Criminal Code and convicted him of second degree murder on that basis. [ 4 ] For the reasons provided below, I would dismiss the conviction and sentence appeals of both appellants. II. Background [ 5 ] The facts are succinctly set out in the Crown’s factum and are repeated here for reference: 12. James Taylor was transferred from imprisonment in Edmonton to Saskatchewan Penitentiary on December 22, 2005. He arrived at the maximum security unit in Prince Albert at 4:30 p.m. that day. 13. By early that evening, he was playing basketball in the gymnasium. 14.

Corrections Officer Robert Carswell was assigned to the observation gallery above the penitentiary gymnasium then, and armed with a loaded, semi-automatic rifle. The gallery consists of rooms and hallways on the perimeter of the gym, one story above the gym floor, with windows and ports giving a clear view of the floor below as well as the rest of the exercise area. Robert Carswell was the only corrections officer who saw what happened next.

15. James Taylor was one of a number of inmates on the gym floor, a group that included the Appellants. Some time after 9:00,Officer Carswell noted the Appellant Yukon and the Appellant Paskimin speaking with inmate Tataquason while James Taylor andothers were playing basketball. At about 9:30 p.m. the two Appellants joined the game. 16. Officer Carswell observed the Appellant Yukon regularly looking up at the gallery (inmates can see guards through theobservation window).

The officer got the sense the Appellant Yukon was checking to make sure he was, or wasn’t, there, which led theofficer to step back from the window to adjust the surveillance monitor cameras so that he could watch the Appellant Yukonsurreptitiously. 17. Upon stepping away from the window to adjust the camera to help monitor Mr. Yukon, or while in the course of repositioning it,Officer Carswell heard a scream or a yell. He stepped back to the window and saw an “altercation” between the Appellants and JamesTaylor. Mr.

Taylor was trying to retreat while the Appellant Yukon came at him from the front, making punching motions and strikinghim in the torso area. The Appellant Paskimin positioned himself behind Mr. Taylor and held him so he could not get away. OfficerCarswell could not see if there was a weapon or not during the incident. 18. Though Officer Carswell could not see whether there was a weapon in either Appellant’s hands as they attacked Mr. Taylor, heconsidered the matter to be very serious. He fired a warning shot through the portal at the far wall of the gym.

He then had to fire asecond when that did not end the Appellants’ attack. After the second shot, Officer Carswell saw James Taylor was face down on thefloor with the Appellant. Yukon atop him (Officer Carswell could not recall if the latter was standing, kneeling or lying over Mr.Taylor). The Appellant Paskimin had moved, and was laying prone on the floor. While moving the gun to another portal, so as to lineup with the Appellant Yukon and drive him away from Mr. Taylor, the Appellant Yukon jumped away and lay face down on the floor. 19.

As other corrections officers were let into the gym at floor level, and before they learned Mr. Taylor had been stabbed severaltimes, Officer Carswell saw a shank (prison-made knife) come sliding across the floor from the area where the two Appellants werelying. The shank turned out to have a bent or curved tip which matched Mr. Taylor’s wounds. 20. The four inmates apparently closest to the incident – the Appellants, inmate Tataquason and inmate Bains – were examined andstrip searched, something which further linked the Appellants to the crime.

Only the Appellants had blood on them, with the AppellantPaskimin having blood on his clothing and head, while the Appellant Yukon had blood on his left hand. DNA testing confirmed it wasJames Taylor’s blood. 21. For Dr. Ladham, the chief forensic pathologist for Saskatchewan and the one who did the autopsy on Mr. Taylor, the only injuriesof note were five stab wounds to the deceased, one of them fatal. There were stab wounds to the face, right upper chest, right mid chest,right abdomen, and the right lower back.

It was the one to the right mid chest pierced the heart and was fatal within minutes, thoughanother, to the liver, would also have been deadly if left untreated. [6] Neither Mr. Yukon nor Mr. Paskimin called any evidence. III. Standard of Review [7] The standard of review applicable to an appeal based on the ground that the verdict appealed from is unreasonable was succinctlyarticulated by the Supreme Court of Canada in R. v. Yebes, (SCC), [1987] 2 S.C.R. 168.

At p. 186 the Supreme Courtstated the standard of review as follows: … The Court [of Appeal] must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, actingjudicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order toapply the test the Court must re-examine and to some extent reweigh and consider the effect of the evidence.

This process will be thesame whether the case is based on circumstantial or direct evidence. … Thus a Court of Appeal may only intercede if the trier of fact could not reasonably have concluded that the appellant was guilty beyond areasonable doubt. Furthermore, appellate courts must afford considerable deference to the trial judge’s reasonable findings of fact. See:R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para. 24. [8] The standard of review applicable to a sentence appeal was set out by the Supreme Court of Canada in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500.

At para. 90 the Supreme Court stated: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vestedsentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. … IV.

Conviction Appeals [9] The grounds of appeal raised by each of the appellants relating to their respective convictions are similar; however, I will identifythe differences or distinct grounds where they arise. The following issues will be addressed:

a) Whether the trial judge erred in law by failing to consider the legal principles which govern a case based on circumstantialevidence.

b) Whether the trial judge erred by inferring that Mr. Paskimin knew of the shank used by Mr. Yukon.

c) Whether the trial judge erred by inferring the appellants had the requisite intent to kill.

d) Whether the trial judge erred by shifting the burden of proof to the appellants.

e) Whether the trial judge erred in principle when fixing the periods of parole ineligibility and whether the periods imposed aredemonstrably unfit.

a) Whether the trial judge erred in law by failing to consider the legal principles which govern a case based on circumstantialevidence. [10] The appellants contend since Correctional Officer Carswell did not witness the very beginning of the altercation, the trial judgeshould have considered the evidence that someone else may have stabbed the victim. This contention is made on the premise thatOfficer Carswell did not actually see the shank in Mr. Yukon’s hands.

As well, there is some evidence that the shank may have beenfashioned from a metal desk located in the cell of an inmate who had been involved in the basketball game with Mr. Taylor shortlybefore he was murdered. There is also evidence that this same inmate was seen by Corrections Officer Parent at the front of a “movingmob” of inmates before the warning shots were fired by Officer Carswell. [11] The appellants submit this scant evidence should have been considered by the trial judge as offering another rational conclusion ofwhat transpired that evening.

They say the failure of the trial judge to consider this evidence bolsters their submission that the trial judgedid not comprehend the Crown’s case is based upon circumstantial evidence and led to his failure to consider other rational conclusionsborne out by the evidence. [12] The Crown submits there is no reason for the trial judge to provide a detailed analysis of the law respecting circumstantial evidencein view of his findings of fact and the uncontroverted evidence before him and, in any event, a judge is presumed to know the law andfailure to spell it out is not fatal.

More importantly, the Crown contends there is no real alternative or rational conclusion that had to benegatived by the trial judge. In other words, there is no other rational conclusion found on the evidence the trial judge had to consider. [13] It has long been recognized that any rational conclusion must be founded on the evidence. For example, in R. v. Torrie, (ON CA), [1967] 3 C.C.C. 303, the Ontario Court of Appeal allowed an appeal from an acquittal where the trial judge founda reasonable doubt based upon non-existent evidence.

Evans J.A. stated at p. 306: I recognize that the onus of proof must rest with the Crown to establish the guilt of the accused beyond a reasonable doubt, but I do notunderstand this proposition to mean that the Crown must negative every possible conjecture, no matter how irrational or fanciful, whichmight be consistent with the innocence of the accused. [14] It is readily apparent the trial judge did consider the appellant’s submission someone other than Mr. Yukon stabbed the victim priorto the attack by the appellants that was observed by Officer Carswell.

At para. 61 of the judgment he stated: … The suggestion made by the defence that an unknown assailant quickly, and momentarily out of the view of Officer Carswell, stabbedTaylor five times, then stepped away, and then Yukon and Paskimin joined in to assault the already fatally wounded Taylor, has nomerit and is completely unsupported by the evidence. [15] Furthermore, if one accepts the “yell” signalled the beginning of the attack, the evidence shows Officer Carswell returnedimmediately to the observation window and observed the victim and the two appellants.

The trial judge noted at para. 58: … Whether it was a matter of seconds or a few minutes [that Officer Carswell was away from the window], as the defence contends,does not matter.

What is important, however, is that once he [Officer Carswell] heard a scream or a yell, he immediately stepped forwardto the observation window to see what was happening. [16] It belies any other rational conclusion, and certainly none based upon the evidence, that during the short period Officer Carswellhad stepped back from the window to adjust the surveillance cameras, someone else inflicted multiple stab wounds to the victim, steppedback, permitted the appellants to go on the defensive, and isolated the victim from the group. [17] In addition, there is also evidence Mr.

Yukon was observing Officer Carswell which resulted in Officer Carswell, whose suspicions

were aroused because of this, to step back to adjust the surveillance camera to focus on Mr. Yukon. The moment Officer Carswell stepped back from the window, the violence began and Mr. Yukon is one of the two individuals Officer Carswell saw attacking the victim. [ 18 ] Finally, the suggestion Mr. Yukon was just punching the victim is highly implausible. There is no medical evidence of any meaningful injuries aside from the stab wounds. It would have to be more than a coincidence that Mr.

Yukon’s punches were landing on the victim’s torso in the same area the stab wounds were located. [ 19 ] There is simply no other rational conclusion the trial judge had to consider based upon the evidence. It is best summed up in his statement: [68] The suggestion that it was anyone other than Yukon that inflicted the stab wound is pure fantasy and is contrary to the strong, clear, convincing and uncontradicted evidence presented by the Crown. [ 20 ] In the result, I would not give effect to this ground of appeal.

b) Whether the trial judge erred by inferring that Mr. Paskimin knew of the shank used by Mr. Yukon. [ 21 ] This ground of appeal relates to Mr. Paskimin only. As already noted, the trial judge found Mr. Paskimin guilty of second degree murder as a joint principal offender within the meaning of s. 21(1) (

a) of the Criminal Code .

Section 21 of the Criminal Code attaches criminal responsibility to a person, as a party to an offence, if that person, with the requisite intent, plays a role in the offence. [ 22 ] The law is well established that there can be more than one principal offender under s. 21(1) (

a) of the Criminal Code . A concise

summary of this concept is summarized by E. G. Ewaschuk in Criminal Pleadings & Practice in Canada , looseleaf, 2 nd ed., Vol. 1 (Aurora: Canada Law Book, 2007): 15:1010 Principals to the offence Section 21(1) (

a) of the Criminal Code provides that everyone is a party to an offence who actually commits it . A person actually commits an offence when he or she does a physical act, with the requisite mens rea , toward the commission of the offence, omits to act when under a legal duty to act, or uses an innocent agent to commit an offence. Where more than one person is present during the commission of an offence and does some act toward its achievement, each of them actually commits the offence together with the other or others, as joint principal offenders so long as they have the requisite mens rea for that offence.

Thus, there may be “more than one” principal offender who together “actually commit” the same offence. These are termed: “joint principal offenders”. … 15:1015 Acting together toward common object (joint principal offenders) Where several persons act together toward a common criminal object, with the “requisite intent”, and any of them jointly or severally achieves the common object, all who are present at the commission of the crime commit the crime as joint principal offenders .

This principle has been pithily stated in concrete terms that “the blow of one is, in law, the blow of all of them”. [Reference to authorities omitted] [ 23 ] The law is also well established that where it is found that multiple accused acted in concert in the commission of a homicide, there is no requirement that the trier of fact decide which one struck the fatal blow because such a determination is legally irrelevant. [ 24 ] In R. v.

H.(L.I.) [L.I.H.] , 2003 MBCA 97 , 176 C.C.C. (3d) 526, Freedman J.A. explains the law in relation to joint participants of an assault which results in a death, as follows: [20] Where several persons participate and assist each other in an assault which is intended to cause death or which they know will likely cause death, and the death of the victim is achieved, then each participant may be considered a joint principal offender to the murder under s. 21(1) (a).

This is so no matter which member of the group actually delivered the killing blow and even when it is not known which person struck the killing blow. [ 25 ] Mr. Paskimin submits the verdict against him is unreasonable since it is not supported by the evidence. In simple terms, Mr. Paskimin contends for the trial judge to find that he had the necessary intent to commit second degree murder, there had to be some evidence from which the trial judge could infer Mr. Paskimin knew Mr. Yukon would use a weapon during the course of the attack on Mr. Taylor. Mr.

Paskimin says there is no evidence that would allow the trial judge to draw such an inference. Mr. Paskimin bluntly takes the position there is no evidence he knew a knife was going to be used, nor is there evidence he became aware Mr. Yukon was

using a knife during the attack. Furthermore, the assault occurred very quickly over a short period of time, and the trial judge failed to consider alternative rational conclusions that Mr. Paskimin was involved in an assault on the victim, with no knowledge a shank would be used and with no intent to cause grievous bodily harm to the victim. Mr. Paskimin concedes the evidence, even though it is not sufficient to prove the necessary mens rea for second degree murder, is sufficient for a manslaughter conviction. [ 26 ] Mr. Paskimin also points to an inconsistency in the trial judge’s reasons relating to Mr.

Paskimin’s knowledge of the knife. In para. 83 of the judgment, the trial judge comments that Mr. Paskimin either knew of the knife or learned of it very early on in the attack. In para. 92 of the judgment, the trial judge stated that Mr. Paskimin knew of the knife. This inconsistency, according to Mr. Paskimin, does not support beyond a reasonable doubt the conclusion that Mr. Paskimin knew Mr. Yukon was going to use a knife or both he and Mr.

Yukon intended to cause bodily harm to the victim and were reckless as to what would ensue. [ 27 ] The Crown submits in the circumstances, as found by the trial judge, there is no other rational inference other than Mr. Paskimin was a knowing party. While Officer Carswell could not be expected to see the ten-centimetre long blade from the second story observation window, there is simply no evidence to support the contention Mr.

Paskimin could have missed seeing the blade as it struck the victim, especially when the blows to the victim’s upper torso were not consistent with a punching attack. [ 28 ] With respect to the alleged inconsistency in the trial judge’s reasons as to Mr. Paskimin’s knowledge of the knife, the Crown contends a proper reading of the reasons in context simply means that the trial judge was satisfied beyond a reasonable doubt that Mr. Paskimin knew of the knife before the attack or immediately upon its commencement. [ 29 ] The trial judge was very aware of the importance of Mr.

Paskimin’s knowledge or awareness of the shank to the mens rea issue before him. He carefully examined the evidence and provided cogent reasons for attributing knowledge of the shank to Mr. Paskimin. At the end of the day, common sense played a pivotal role in the trial judge’s decision on this point. At para. 83 of the judgment, he stated: Here, Paskimin was holding Taylor in such a way so as to prevent him from escaping while Yukon repeatedly stabbed Taylor with a homemade knife. Paskimin was right there. He was involved from the outset with the assault. He was actively participating.

He participated by physically holding Taylor and by using the position of his body to impede Taylor. His participation continued as the altercation moved within the gymnasium. His participation did not stop until after two warning shots were fired. The actions and movements of Yukon were overt and not subtle. There is no evidence that Paskimin was anything but sober.

Given Paskimin's close proximity, the nature, extent and degree of involvement and the complete lack of evidence suggesting anything else, I conclude, beyond a reasonable doubt that Paskimin knew, or at the very least became aware early on in the stabbing incident, that Yukon was using a shank in the commission of the offence. In these circumstances, I conclude, as I am entitled, that Paskimin must have intended the natural consequences of his acts.

When one holds a victim to prevent him from retreating while another person repeatedly stabs the victim with a homemade knife in the face, chest and back, it is open to conclude, and I do conclude, that Paskimin possessed the requisite intent.

Given all of the circumstances, I find that the Crown has proven, beyond a reasonable doubt, that Paskimin, by holding Taylor as Yukon stabbed him, intended to cause Taylor's death or, at the very least, intended to cause bodily harm to Taylor, knowing that it was likely to cause death and was reckless whether death ensued or not. [ 30 ] A critical review of the record indicates there was ample evidence to support the findings of the trial judge to the effect that Mr. Paskimin knew of or became aware of the shank. Simply put, Mr. Paskimin’s proximity to the victim and Mr.

Yukon and the nature, extent and degree of his involvement in the attack allow for no other rational inference. [ 31 ] Furthermore, the trial judge’s reasons are not inconsistent or uncertain on the issue of Mr. Paskimin’s knowledge of the shank. In context, a reading of his reasons in this respect leads one directly to the trial judge’s conclusion that Mr. Paskimin was aware of the shank and, for the purposes of his guilt, it mattered not whether he became aware of the shank before the attack or immediately upon its commencement. [ 32 ] For these reasons, I would not give effect to this ground of appeal.

c) Whether the trial judge erred by inferring the appellants had the requisite intent to kill. [ 33 ] The trial judge noted that murder is culpable homicide and requires proof of intent, which is a subjective foresight of death. Culpable homicide is murder, pursuant to s. 229 (

a) of the Criminal Code , when the Crown proves that the accused’s conduct in causing a death by an unlawful act is accompanied by either of two mental elements:

i) an intent to cause the death; or

ii) an intent to cause bodily harm that the accused knows is likely to cause death and is reckless as to whether death ensues or not. [ 34 ] With respect to Mr. Yukon, the trial judge, after a careful assessment of all the evidence, concluded that proof of the mental element for second degree murder can be ascertained from the common sense inference of intention from conduct. In R. v. E.B. , [2006] O.J. No. 1864 (Ont. S.C.J.) (QL) ; aff’d 2011 ONCA 194 , 269 C.C.C. (3d) 227, Watt J. (as he then was) stated at para. 66: A frequent prosecutorial ally in proof of the mental element in

section 229 (

a) of the Criminal Code is the common sense inference of intention from proof of conduct. A trier of fact may conclude, as a matter of common sense, that if a sane and sober person does something that has predictable consequences, that person usually intends or means to cause those consequences. To be more specific, if the sane and sober person does something that has the predictable consequence of another's death, that person likely intends or means to cause that other person's death.

This common sense inference is simply one way or one method a trier of fact may use to determine an accused's actual state of mind, what she or he actually meant to do. It is a conclusion that a trier of fact may only reach, however, after taking into account all the evidence that is relevant to the issue. [ 35 ] On this basis, the trial judge had little difficulty in concluding that Mr. Yukon had intended the natural consequences of his actions.

He stated: [67] … I also find that Yukon intended to cause death, or serious bodily harm, to Taylor that he knew was likely to cause death and was reckless as to whether death ensued or not, because plunging a homemade knife into Taylor's body five times would be a natural consequence of such actions. [ 36 ] Based upon the standard of review and the supportable and reasonable findings of the trial judge taken from the evidence, there is simply no error in the trial judge’s conclusion that Mr. Yukon had the intent necessary to satisfy the mens rea for second degree murder. [ 37 ] As to Mr.

Paskimin, as noted in paragraph 28 herein, the trial judge found, beyond a reasonable doubt, that by holding the victim as Mr. Yukon stabbed him Mr. Paskimin intended to cause the victim’s death or, at the very least, intended to cause bodily harm to the victim knowing that it was likely to cause his death, and Mr. Paskimin was reckless as to whether death ensued.

The trial judge’s reasons on this point are thorough and reflect his complete comprehension of the applicable law and his careful application of the law to the facts. [ 38 ] It is noteworthy that the trial judge expressly considered and rejected the possibility of convicting Mr. Paskimin of the lesser included offence of manslaughter.

In this respect, he wrote: [84] … However, the evidence before me convinces me beyond a reasonable doubt that Paskimin was aware that the victim was being stabbed with a weapon at some point during the altercation and continued to assist, meaning to cause death to Taylor or meaning to cause Taylor bodily harm that he knew was likely to cause Taylor's death and was reckless whether death ensued or not. He acted in concert with Yukon and was similarly motivated. and later he wrote: [92] … Paskimin joined in the altercation at the outset and participated throughout. He was holding the victim as Yukon stabbed him.

I conclude that he knew about the knife. Paskimin had a blameworthy state of mind: he intended that Taylor should be killed; or intending that Taylor should suffer bodily harm of a kind likely to result in death and yet proceeded despite knowledge of that risk. [ 39 ] In my opinion, the trial judge’s findings are completely supported by the evidence and the law. Given the appellate standard of review, I find there is no basis upon which to interfere with his conclusions. This ground of appeal is dismissed.

d) Whether the trial judge erred by shifting the burden of proof to the appellants. [ 40 ] Both appellants allege the trial judge improperly shifted the burden of proof to them. This ground of appeal draws upon the previous ground in that the appellants allege the trial judge improperly found they had the requisite mens rea because they had led no evidence to explain their actions or in response to the Crown’s case. In other words, the appellants say the trial judge inferred intent without sufficient evidence to draw the inference. [ 41 ] I find no merit in this ground of appeal.

Nothing on the record indicates the trial judge shifted the burden of proof to the appellants, let alone did so improperly. As the reasons disclose, the trial judge was keenly aware of the presumption of innocence and the burden this imposed on the Crown to prove its case beyond a reasonable doubt. The fact the trial judge noted the appellants had failed to adduce

evidence in answer to the Crown’s case is not an error. The Alberta Court of Appeal made this point abundantly clear in R. v. M. (M.R.),2009 ABCA 90, 448 A.R. 394: [9] As is frequent in recent years, the appellant's counsel suggests that the trial judge reversed the onus of proof. We do not agree. In asimple case where the defence gives no evidence and the Crown's evidence does not help the accused, it is almost impossible for thetrial judge to give intelligent reasons without pointing out that the evidence is all one way, and that there is no evidence to support theaccused or his counsel's arguments.

That is not a reversal of onus. A trier of fact is not bound, and often not permitted, to speculate, andinferences of fact are proper. The Crown need not, for instance, rebut defences for which there is no evidence whatever (i.e. not liveissues). Cf. R. v. Grover, 2007 SCC 51, [2007] 3 S.C.R. 510, 369 N.R. 62. In the absence of any evidence to the contrary, many factualinferences are proper, such as intent to produce the natural and probable consequences of one's acts.

That is not a reversal of onus. [42] In this case, the Crown adduced a substantial body of cogent evidence which left the trial judge with no reasonable doubt as to theguilt of each appellant. As noted, the appellants elected not to call any evidence to rebut the Crown’s case; but, in point of fact, there wassimply no evidence which contradicted the evidence pointing to the appellants’ guilt or which explained or even excused the appellants’actions.

It cannot be said, in these circumstances, that the trial judge reversed the onus; rather, he simply drew inferences of fact whichwere clearly open on the basis of the evidence before him. Accordingly, I would not give effect to this ground of appeal. [43] In sum, the conviction appeals of both appellants are dismissed. V. Sentence Appeals [44] Both appellants appeal from their respective period of parole ineligibility. Mr. Yukon’s parole ineligibility was fixed at 16 yearsand Mr. Paskimin’s at 14 years. Both appellants allege that the trial judge gave excessive and undue weight to the following factors: (

a) the impact of the victim’s death on his family; (

b) that no motive for the killing had ever been advanced and the actions were calculated and done with purpose; (

c) that the murder took place in a federal institution, in the close proximity of Correctional Service Officers, and was

an act ofextreme defiance; and (

d) that the murder was a brutal act of extreme violence that showed no respect for the sanctity of human life. [45] They both allege that the trial judge failed to recognize their respective individual circumstances. [46] The trial judge, in his written reasons, carefully considered the purposes and principles of sentencing as set out in ss. 718.1 and718.2 of the Criminal Code, and the factors mandated by s. 745.4 of the Criminal Code.

Section 745.4 states: 745.4 Subject to

section 745.5, at the time of the sentencing under

section 745 of an offender who is convicted of second degree murder,the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard tothe character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, ifany, made pursuant to

section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but notmore than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances. [47] Furthermore, he made reference to the decision of the Supreme Court of Canada in R. v.

Shropshire, (SCC), [1995]4 S.C.R. 227 where the Supreme Court concluded at para. 27 that the intentions of Parliament would be appropriately reflected by thefollowing standard: … as a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judgethat, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be releasedinto the general public assessed.

To this end, an extension of the period of parole ineligibility would not be "unusual", although it maywell be that, in the median number of cases, a period of 10 years might still be awarded. [48] Reference was also made to R. v. Wenarchuk (1982), (SK CA), 67 C.C.C. (2d) 169 (Sask. C.A.), when BaydaC.J.S., speaking for a five-judge panel, held at para. 9 that:

… [It is no longer appropriate] that the "order [increasing the parole non-eligibility period] should be sparingly made". The order shouldbe made whenever such an order is "fit in the circumstances". … [49] In addition, reference can be made to R. v. Poorman (1991), (SK CA), 97 Sask. R. 4 (C.A.), where the courtnoted at para. 2: “the essential purpose of the provisions was to permit trial judges to better reflect the varying degrees of culpabilitywhich accompany these offences and to better express society's repudiation of the conduct in issue”. [50] The trial judge then, as required, considered the factors set out in s. 745.4 of the Criminal Code as they relate to each appellant. (

A) Character of the Accused [51] With respect to the character of each appellant, the trial judge considered the following: Yukon • His age: 33 • His extensive criminal record including many violent crimes and the fact that he was serving a sentence for manslaughter when thisoffence was committed. • His Correctional Services of Canada file which indicates that he is far from a model prisoner. • There were few mitigating factors other than he had a tough upbringing with exposure to violence. The trial judge alsoacknowledged that Mr.

Yukon spends much of his time in segregation which makes taking educational programming difficult. Paskimin • His age: 27 • His extensive criminal record including many violent crimes and the fact that he was serving a sentence for three counts of robbery,possession of prohibited weapon, assaulting a peace officer, and break and enter. • The fact that Mr. Paskimin had been less than a model prisoner. • When considering mitigating circumstances, he found that Mr. Paskimin had taken some minimal steps toward rehabilitation. • He also noted that Mr. Paskimin had family support. (

B) Nature and Circumstances of the Offence [52] The circumstances have been mentioned in earlier portions of this decision. In point form, the factors the trial judge considered inrelation to the sentencing of the appellants is as follows: • No motive or reason for the killing was ever advanced. • There was no provocation on the part of the victim. • This was not a crime of passion done in the heat of the moment.

• The actions of both appellants were “calculated and done with purpose”. • The crime was committed in a federal penitentiary where weapons are not permitted and it takes determination, ingenuity andforethought to commit the crime that occurred. • The degree of violence involved was significant and the killing was brutal. • The violence only stopped after two warning shots were fired which tends to show that the actions of both appellants were anextreme act of defiance committed in full view of other inmates. • Mr.

Paskimin’s record was somewhat less serious and he had made some minimal progress within the institution. In addition,Mr. Paskimin’s role was somewhat secondary. [53] The trial judge referred to R. v. Poirier (2005), (ON CA), 193 C.C.C. (3d) 303 (Ont. C.A.). Poirier wasconvicted of killing a fellow inmate in an Ontario prison. The Ontario Court of Appeal reduced the parole ineligibility from 18 years to16 years. The court commented as follows: [24] This was a case for an increase in parole ineligibility.

Section 745.4 instructs the court to consider the character of the accused,the nature of the offence and the circumstances surrounding its commission. The jury rejected self-defence. Thus, this killing remainsboth inexplicable and brutal. It was committed in a minimum security institution in which some trust is reposed in the inmates. It isapparent from the evidence that the inmates have considerable freedom to move about the institution and, as we have said, they haveaccess to kitchen implements such as the knife that was used in this case.

The deceased was due to be released from prison in a few days.The killing has had a devastating impact on his family. The nature of the offence and the circumstances surrounding its commissionrequired an increase in the parole ineligibility. [emphasis added] [54] It is apparent from his reasons the trial judge carefully considered all of the necessary factors set out in the Criminal Code. I canfind no fault with the trial judge’s exercise of his judicial discretion to impose an increased period of parole ineligibility in thecircumstances of this offence.

Neither appellant has demonstrated any error of principle or emphasis or that the periods of paroleineligibility are demonstrably unfit. The sentence appeals of both appellants are dismissed. VI. Conclusion [55] The conviction appeal of each appellant is dismissed. The sentence appeal of each appellant is dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 19th day of March, A.D. 2012. “Herauf J.A.” Herauf J.A. I concur “Klebuc C.J.S.” Klebuc C.J.S. I concur “Caldwell J.A.” Caldwell J.A.