Docket: CACR2054 Reggie Lee Harris Appellant - v. -, 2012 SKCA 43

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 43 Date: 20120329 Between: Docket: CACR2054 Reggie Lee Harris Appellant - and - Her Majesty the Queen Respondent REVISED JUDGMENT: The text of the original judgment has been corrected with text of the erratum (released May 2, 2012) appended. Coram: Cameron, Gerwing & Jackson JJ.A. Counsel: Reggie Harris via video conference on his own behalf Anthony Gerein for the Crown Appeal: From Conviction: Provincial Court

From Sentence: 2011 SKPC 176 Heard: March 29, 2012 Disposition: Allowed in Part (orally) Written Reasons: April 9, 2012 By: The Honourable Madam Justice Gerwing In Concurrence: The Honourable Mr. Justice Cameron The Honourable Madam Justice Jackson Gerwing J.A. [ 1 ] The appellant was convicted of seven offences, assessed, pursuant to the consent of the Attorney General, for designation as a dangerous offender, so designated, and, following extensive submissions, sentenced for breaking and entering a dwelling house and there committing an assault causing bodily harm contrary to s. 348(1) (

b) of the Criminal Code to a sentence of five and a half years, with credit for the 17 months spent on remand, to be followed by a ten year supervision order, a lifetime firearms order and a DNA order.

The six other offences, including five of failing to comply with recognizance contrary to s. 145(3) of the Criminal Code and one count of breaking and entering a dwelling house and uttering threats, attracted sentences from three to six months concurrent to the sentence on the principal offence. [ 2 ] The appellant appealed the conviction on the offence under s. 348(1)(b), the predicate offence, as well as that of uttering a threat. Convictions for the other offences were not appealed.

He further appealed the designation as a dangerous offender, the sentence for the predicate offence and the length of the supervision order. [ 3 ] At the hearing of this appeal the Crown conceded that, given the ambiguous nature of the evidence, it had no objection to the appeal being allowed with respect to the count of uttering a threat contrary to s. 264.1(1) (

a) of the Criminal Code . That conviction and the six month concurrent sentence therefor are set aside. [ 4 ] We have concluded that the conviction for the predicate offence and the dangerous offender designation were properly and adequately explained by the trial judge and based on substantial probative evidence on each of the material points. We are further of the view that the sentence for the predicate offence is appropriate.

The sole alteration we make with respect to the balance of the judgment is to reduce the period of supervision following the expiration of the sentence from ten years to five years. [ 5 ] The trial judge gave lengthy and detailed reasons for his findings of fact on the predicate offence. These included an analysis of conflicting witness positions on the events of the evening in question which gave rise to the conviction, his findings of credibility and the reasons for such findings.

We note in passing that one of the reasons the appellant sought to overturn the conviction was that the reasons for judgment were inadequate. We find that they are, to the contrary, full and complete, being in our view perhaps more detailed than usual. [ 6 ] The incident in question happened after the appellant had spent an evening drinking with the victim, Mr. Shaw. There was conflicting evidence from the Crown and the defence as to what transpired during the evening, Mr. Shaw and other Crown witnesses putting forward the position that after the two had parted company the appellant arrived uninvited at Mr.

Shaw’s door, knocked, and when it was answered, hit him in the face with a blunt instrument. Shaw fell to the floor in his house and was kicked in the head twice by the appellant. He described blood on the front of his shirt and the carpet in his house and the injuries and their effect which were apparent for some time and affected his work. [ 7 ] The appellant denied this saying he had been invited to Mr. Shaw’s home but was asked to leave and only struggled with Shaw after the latter assaulted him.

[ 8 ] The trial judge gave his reasons for findings of credibility in his reasons [1] and concluded on these findings and the other evidence that the appellant was guilty of the predicate offence. [ 9 ] The appellant argued that the findings of credibility were inappropriate. Courts of appeal show deference for such findings and here there was probative evidence to support them. See, inter alia , R. v.

R.W. [2] [ 10 ] With respect to the findings of credibility we note in passing that the appellant, who was self-represented, argued that the trial judge had in some way misconducted himself with respect to the doctrine of reasonable doubt in assessing credibility. This arose because of isolating one sentence in the discussion by the trial judge of the law he was applying with respect to reasonable doubt. He cited a dictum in this Court in R. v. McKenzie . [3] The trial judge referred to the first step in the analysis, i.e., if you believe the accused obviously you must acquit.

The trial judge then said he did not believe the evidence of the accused so was not obliged to acquit him, impliedly on the first step. The appellant seemed to believe this was a comprehensive statement of the circumstances in which the trial judge would acquit; that is in fact not the case as he went on to apply all the other steps in the analysis of reasonable doubt which could have given rise to an acquittal. In terms of the analysis of the case I’ve applied the test set out by Mr. Justice Tallis of the Saskatchewan Court of Appeal in R. v.

McKenzie respecting the doctrine of reasonable doubt as it applies to the issue of credibility and reliability of witnesses which is as follows: first if you believe the accused obviously you must acquit. Secondly, if after careful consideration of all the evidence you are unable to decide whom to believe you must acquit. Thirdly, if you do not believe the evidence of the accused but are left in reasonable doubt by it you must acquit.

And fourthly, even if you are not left in doubt by the evidence of the accused you must ask yourself whether, on the basis of the evidence you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. Applying step one of the test, I do not believe all the evidence of the accused, hence I am not obliged to acquit him. Nor am I left in reasonable doubt by the evidence of Mr. Harris or his brother Evan. After careful consideration of all of the evidence I am able to decide whom to believe, that being Mr. Shaw and Mr. Bembridge.

Lastly, I find that the Crown has established beyond a reasonable doubt the break and entry and causing bodily harm in this case. I found that there were problems relating to the accuracy and reliability of Mr. Harris’s account of what occurred between he and Mr. Shaw that morning. While I find the two men were wrestling and roughhousing outside of Gibby’s shortly after midnight, however I have difficulty accepting Mr. Harris’s account that the only injury sustained by Mr. Shaw that early morning occurred in an alley near Gibby’s when the two men fell, resulting in a nosebleed to Mr.

Shaw. [4] [ 11 ] The accused further argued the conviction on the predicate offence was not a reasonable verdict. Here we apply, as is the usual practice, the decision of the Supreme Court of Canada in R. v.

Yebes . [5] As we noted above dealing with credibility, with respect to each of the essential elements of the offence sufficient probative evidence existed so that this Court would not be entitled to interfere with the conclusion arrived at. [ 12 ] Turning to the dangerous offender designation, the sentence for the predicate offence, and the period of the supervision order it is useful to begin with a history of the appellant and his appearances over the years before the courts.

The appellant who is 29 had 52 prior convictions at the time of sentencing including property offences, but also many for acts of violence, one for uttering threats and one for weapons-related crime. It was noted by the court that his level of violence was increasing, as a youth he having been convicted generally for pushing or punching, but as an adult for having caused bodily harm and using weapons. The trial judge gave in his sentencing decision a very useful

summary of the 13 prior assault convictions as follows: 17 A

summary of Mr. Harris' 13 prior convictions related to violence are as follows: 1 1997-06-27 - Assault (s. 266) Date of offence: 1997-06-23 Mr. Harris age: 15 Circumstances: Mr. Harris was caught shoplifting and was told by a staff member to return to the store. Mr. Harris began cursing and swung a punch at the assistant and hit her glasses. Sentence: 12 months probation 2 1997-10-02 - Assault (s. 266) Date of offence: 1997-06-09, Estevan, Saskatchewan Mr. Harris age: 15 Victim: Arliss Rawn Sentence: 6 months open custody and 12 months probation

Circumstances: Mr. Harris and a friend followed Mr. Rawn and his friend from the Leisure Centre in Estevan. Mr. Rawn was stopped by the two boys. Mr. Harris and his friend each struck Mr. Rawn in the face. Mr. Harris admitted to striking Rawn once with a closed fist. 3 1999-03-01 - Assault (s. 266) Date of offence: 1998-09-10 Mr. Harris age: 16 Victim: Tyler Nightingale Circumstances: Mr. Nightingale and Mr. Harris both attended the same school. There were several altercations in a drama class which included Mr.

Harris hitting the victim's head with some feather pillows causing his head to hit the wall causing a fat lip; using a pillow case as a rope and putting it around the victim's neck; hitting the victim on the shins with a broken leg from a chair and punching the victim. Sentence: 8 months probation 4 2000-04-11 - Assault (s. 266) Date of offence: 1999-11-07, Estevan, Saskatchewan Mr. Harris age: 17 Victim: Troy McClelland, age 27 Circumstances: Mr. McClelland testified that he was outside a 7-11 convenience store with friends when Mr. Harris arrived on a bicycle. Mr.

Harris confronted another individual first and then turned to Mr. McClelland, calling him on to fight. Mr. McClelland stated he wouldn't fight. Mr. Harris got off of his bicycle and then proceeded to push Mr. McClelland into the glass windows of the convenience store. Mr. Harris then slapped Mr. McClelland on the left side of his face causing swelling around the face and a bloody lip. Sentence: 1 month open custody (consecutive) and 1 year probation 5 2000-05-25 - Assault (s. 266) Date of offence: 1999-12-11, Estevan, Saskatchewan Mr. Harris age: 17 Victim: Chad Saxon, age 26 or 27 Circumstances: Mr.

Saxon testified that he was taking photographs for the local paper at an Estevan Bruins hockey game. At one point during the hockey game Mr. Harris and some other young men were jumping around in front of him. Mr. Harris then asked Mr. Saxon why he was staring at him. Mr. Saxon told Harris to watch his mouth and then Harris lunged at Mr. Saxon and began swinging his fists. Mr. Saxon attempted to defend himself. Mr. Harris struck Mr. Saxon once on the forehead and once or twice on the body. Security personnel broke up the fight. Mr. Harris and the other young men he was with ran outside. Mr.

Saxon sustained a lump on his forehead, his glasses were bent and his camera lens was damaged. Sentence: 6 months secure custody 6 & 7 2002-05-27 - Uttering Threats (s. 264.1(1)) and Carry a Concealed Weapon (s. 90) Date of offences: 2002-05-18 and 2002-05-25 Mr. Harris age: 20 Circumstances: On May 18, 2002, William Wiechert was working security at Woodlawn Regional Park when he was asked by a group of young ladies to remove some unwanted guests including Mr. Harris from their campsite. When Mr. Wiechert went to escort Mr. Harris from the park he began swearing at him and pushed him on the chest. Mr.

Harris told Mr. Wiechert that he would return later and kill him. On May 23, 2002, Mr. Harris went to Court. He escaped from custody that day. On May 25, 2002, Mr. Harris was arrested by police. The police searched Mr. Harris and found an expandable police baton [Exhibit P-19]. Sentence: Mr. Harris received two months incarceration on each charge (consecutive). On the threat charge he was prohibited from having possession of a firearm for five years. 8 & 9 2004-05-13 - Two Assaults (s. 266) Date of offences: 2003-09-27 and 2003-10-17 Mr. Harris age: 22 Victim: Jessica Storlie (ex-girlfriend), age unknown.

Grade 12 student at time of conviction.

Circumstances: On September 27, 2003, Ms. Storlie, Mr. Harris and other persons left a party in a motor vehicle. Ms. Storlie was driving. Mr. Harris became upset about Ms. Storlie's driving. He wanted to drive the vehicle. Mr. Harris took a pair of scissors from inside the vehicle and stabbed the centre of the steering wheel while Ms. Storlie was driving. On October 17, 2003, Ms. Storlie and Mr. Harris got into an argument outside a house party in Torquay, Saskatchewan. Ms. Storlie then walked away from Mr. Harris. Mr. Harris threw a beer bottle at Ms. Storlie. The beer bottle came within one to four feet of Ms.

Storlie. It did not hit her. Sentence: One month incarceration on each charge (concurrent, but consecutive to others). 10 2005-04-07 - Assault Causing Bodily Harm (s. 267(b)) Date of offence: 2004-06-20, Frobisher, Saskatchewan Mr. Harris age: 23 Victim: Larry Kopec, age 36 Circumstances: Mr. Kopec and his family live in a small bungalow which he owns in Frobisher, Saskatchewan. Mr. Kopec also owned an adjacent home which he rented out to Robert Blowatt. On June 20, 2004, Mr.

Kopec and his wife returned home from a night out at approximately 3:00 a.m. and observed that there was a large party in progress at the house rented by Mr. Blowatt. He observed broken glass and beer bottles everywhere. When Mr. Kopec began to pick up bottles from his driveway, three males walked up to him. Mr. Kopec told them to leave his yard, which they did. Mr. Kopec continued picking up bottles. When Mr. Kopec went to the side of his home he encountered Mr. Harris. The two men began arguing. Mr. Harris struck Mr. Kopec in the face while holding a beer bottle by the neck. Mr.

Kopec was struck on the cheekbone just below the left eye causing a cut under the eye, a broken cheek bone and a broken nose. Mrs. Kopec assisted her bleeding husband into their home. Sentence: Two years less one day incarceration and firearms prohibition pursuant to

section 109 of the Criminal Code . 11 2005-04-21 - Assault Causing Bodily Harm ( s. 267(b)) Date of offence: 2004-08-08, Estevan, Saskatchewan Mr. Harris age: 23 Victim: Leslie Matthew Mehler, age unknown Circumstances: At 4:30 a.m. on August 8, 2004, Mr. Harris was lodged in cells at the Estevan Police Service Building for intoxication. Mr. Mehler, who was also intoxicated, was moved into the same cell as Mr. Harris. At the time Mr. Mehler walked with great difficulty and did not have much balance. Mr. Mehler had lost portions of his feet as a result of frostbite a year earlier. Mr.

Harris became angry and assaulted Mr. Mehler in the jail cell. Mr. Mehler was not in a position to do much to defend himself due to pre-existing problems with his feet. Mr. Mehler sustained a three-inch laceration over his left cheek and a two-inch laceration over his right eyebrow. He was also badly bruised. Sentence: 23 months (concurrent) 12 & 13 2008-04-24 - Two Assaults with a weapon (s. 267(a)) Date of offence: 2007-01-19, Estevan, Saskatchewan Mr. Harris age: 24 Victims: Kevin Hillier and Brenda Stuart Circumstances: On January 19, 2007, Mr. Hillier and his common-law spouse Ms.

Stuart held a house party at their residence in Estevan, Saskatchewan. Mr. Harris and a number of other people were at the house party which involved drinking alcohol, smoking pot and playing board games. During the evening events transpired that led to a physical confrontation between Mr. Hillier and Mr. Harris. The two men were separated. Mr. Harris briefly left the residence. When he returned to the residence Mr. Harris began to throw full bottles of beer at Mr. Hillier. Mr. Hillier was struck in the arm, shoulder and face by the beer bottles. Mr. Hillier sustained swelling and bruising around the eye. Ms.

Stuart was struck by a beer bottle thrown by Mr. Harris when she got between Mr. Harris and Mr. Hillier. She sustained a minor injury to her wrist. Sentence: One year incarceration on each charge (concurrent). [6] [ 13 ] The trial judge made further reference to prison records and to reports concerning the appellant’s conduct when under recognizance at various times. This included conduct after his arrest for the predicate offence. The trial judge also analyzed the appellant’s background and character both as evidenced by these reports and by the testimony of the expert witness whose evidence he accepted, Dr.

Nicholaichuk. With respect to the latter he said: 35 On page 19 of his report Dr. Nicholaichuk summarises his findings as follows: As I noted above, unless he further engages in the process of changing his life, the risk Mr. Harris presents, will be in the moderate range or perhaps higher. If he re-offends, the pattern of his offences will likely resemble those which have gone before. For the most part, they

will probably be unpredictable and occasionally, predictable violent explosions which are disinhibited by alcohol. It can be reasonably expected that unless he matures and/or actively engages in the process of changing his life, his pattern of aggression and other criminal activities will peak sometime in his mid thirties and then gradually subside (Sampson and Laub, 2003). The presence of a tangible and concrete source of social support, coupled with his attempts to change, must be regarded as positive indicators. Of course, if Mr.

Harris chooses not to avail himself of the resources available to him, and make the necessary alterations in his lifestyle, which I described above, his risk for violence, at least in the short term, must be considered to be unassumable. 36 Dr. Nicholaichuk testified that the necessary alterations in Mr.

Harris' lifestyle involve (1) staying away from all alcohol and drugs - complete abstinence; (2) staying away from negative peers, particularly those who drink alcohol and use illicit drugs; (3) learning to regulate/control his emotions, particularly his temper; (4) finding and maintaining suitable employment; and (5) drawing upon his community supports. 37 Without such changes, Dr. Nicholaichuk testified that he considers Mr. Harris to be a high risk to re-offend violently. At page 82 of his testimony Dr.

Nicholaichuk stated: "If he were to walk out of here today and be left to his own devices, I think we would be having this conversation at some time in the future". [7] The trial judge for reasons which he explained preferred the testimony of Dr. Nicholaichuk to the other expert witness, Dr. Holden. That was of course open to him as with experts, as well as other witnesses, he may accept any or none of the evidence. [ 14 ] The trial judge correctly directed himself to the provisions of the Criminal Code in effect since 2008 with respect to long-term offender.

See s. 753(1), (1.1), (4), (4.1) and (5). [8] [ 15 ] The sections he referred to and the case authorities were germane. We note that the appellant, who as noted above was self- represented, argued that the trial judge had misdirected himself or misapplied the law in that he referred to cases in which an indefinite sentence was imposed. The consent of the Attorney General to the dangerous offender application was for sentencing under s. 753(4)(

b) for a minimum punishment of a term of two years and a long-term supervision order not to exceed ten years. The trial judge reviewed the previous law relating to designation as a dangerous offender and then comments on the changes under the new sections cited. This included reference to R. v. Warawa . [9] We read the judgment as using this authority on designation only, not sentencing. [ 16 ] Again, based on all the facts before him and the analysis we do not fault his conclusion that the offence here was a “serious personal injury offence” within s. 753 of the Criminal Code . Similarly, in finding the pattern of repetitive behaviour in s. 753(1)(a)(

i) the evidence he referred to is sufficient to found the conclusion and we would not be entitled to interfere. See his reasons at paras. 70- 80, [10] both inclusive. Similarly his conclusion in finding a pattern of persistent aggressive behaviour under s. 753(1)(a)(ii) is well supported. He went on to find that the third potential for designation under s. 753(1)(a)(iii) existed as well, that is behaviour of such a brutal nature as to compel the conclusion that he was unlikely in the future to be inhibited by normal standards of behavioural restraint.

While he found initially that this was a brutal assault, and we accept that in terms of the conviction and the sentence for the predicate offence, whether it was of sufficient brutality to found the basis for a dangerous offender designation under (iii) may be open to question. That is, the evidence that supported his conclusions under (

i) and (ii) are compelling and overwhelming. Were (iii) the only basis for the designation further analysis might be required. Here however the matter is not such as to require further comment, we having supported the findings under (

i) and (ii). The

section contemplates they are alternate and that finding any one of the three is sufficient to found the designation. [ 17 ] The trial judge did, with respect to sentence, consider and reject an indefinite sentence. The consent of the Attorney General did not extend to such a sentence being sought. The Crown did not request it and the judge focused almost immediately on a fixed sentence and its proper duration. [ 18 ] The appellant said the judge erred in saying that he was in breach of recognizance when he committed the offence.

This was incorrect, but the reference was made during sentencing when the appellant was in fact in such breach and this appears to be the cause of the confusion. We do not find it to be material to the validity of the sentence. [ 19 ] The sentence of five and a half years, more than the appellant sought and less than the Crown sought, is well within the range of sentences for home invasions particularly for someone with a record of the nature of Mr. Harris. The appeal against this aspect of the sentence is accordingly dismissed. [ 20 ] Finally, we turn to the period of supervision. Dr.

Nicholaichuk gave little useful guidance to the trial judge in this context other than saying that 80% of the supervision orders he saw were at the maximum end of ten years. He had however, as noted by the trial judge, seen potential for treatment. Given the age of the appellant as well as the length of time in which he will be in prison and under parole supervision before the commencement of the supervision order, we are of the view that five years supervision would be an appropriate period.

Accordingly the designation as dangerous offender is affirmed and the sentence for the predicate offence is affirmed except to the extent of altering the period of supervision from ten years to five years.

Her Majesty the Queen v. Reggie Lee Harris 2012 SKCA 43 written reasons released April 9, 2012 Erratum released May 2, 2012 DELETE: [2] The appellant appealed the conviction on the offence under s. 348(1)(b), the predicate offence, as well as that of entering a dwelling house and uttering a threat. Convictions for the other offences were not appealed.

He further appealed the designation as a dangerous offender, the sentence for the predicate offence and the length of the supervision order. [3] At the hearing of this appeal the Crown conceded that, given the ambiguous nature of the evidence, it had no objection to the appeal being allowed with respect to the count of breaking and entering a dwelling house and uttering threats contrary to s. 348(1) (

b) of the Criminal Code . That conviction and the six month concurrent sentence therefor are set aside. REPLACE WITH: [2] The appellant appealed the conviction on the offence under s. 348(1)(b), the predicate offence, as well as that of uttering a threat. Convictions for the other offences were not appealed. He further appealed the designation as a dangerous offender, the sentence for the predicate offence and the length of the supervision order. [3] At the hearing of this appeal the Crown conceded that, given the ambiguous nature of the evidence, it had no objection to the appeal being allowed with respect to the count of uttering a threat contrary to s. 264.1(1) (

a) of the Criminal Code . That conviction and the six month concurrent sentence therefor are set aside.