2013 SKCA 107 Date:, 2013 SKCA 107

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 107 Date: 2013-10-02 Between: Docket: CACR1951 Josephine Shelly Lynn Pelletier Appellant - and - Her Majesty the Queen Respondent Coram: Richards C.J.S., Jackson & Caldwell JJ.A. Counsel: Dean Sinclair for the Crown Kathy Hodgson-Smith for the Appellant Appeal: From: 2011 SKQB 7 Heard: October 2, 2013 Disposition: Appeal Dismissed (orally) Written Reasons: October 17, 2013 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Caldwell

Jackson J.A. (orally) [ 1 ] On January 7, 2011, the Court of Queen’s Bench declared Ms. Pelletier a long-term offender and ordered that she be supervised in the community for seven years. As part of that process, the Court sentenced her to a determinate sentence of seven years ( 2011 SKQB 7 , 391 Sask. R. 14, per Dawson J.). [ 2 ] The seven year determinate sentence was allocated as follows: four and one-half years concurrent on two robbery counts, 18 months for an arson charge and one year for an assault.

The sentencing judge applied a remand credit of three years and nine months at a ratio of one to one to the two robbery counts, resulting in an effective sentence of nine months concurrent for those offences. The sentences for the arson and the assault were set as consecutive sentences to the robbery counts and to each other for a total sentence of three years and three months commencing January 7, 2011. [ 3 ] Ms. Pelletier appeals the length of each of the determinate sentences only.

She is not appealing her designation as a long-term offender or the length of the supervision order, and she is not appealing the trial judge’s determination as to how remand time should have been calculated or allocated. Further, it must be noted that all that remains of Ms. Pelletier’s sentence is approximately ten months, and she has been eligible for parole since May of this year. [ 4 ] As a first matter, Ms. Pelletier asks this Court to admit as fresh evidence the following: (

i) three reports from the Correctional Services of Canada (“CSC”); and (ii) an affidavit and an assessment report authored by forensic psychologist, Dr. Terry Nicholaichuk. The CSC reports describe Ms. Pelletier’s progress and her struggle with compliance since the imposition of her sentences. Dr. Nicholaichuk’s affidavit and report explain the basis for Ms. Pelletier’s offending behaviours and critique a report prepared by Dr. Holden, the expert who testified in the context of Ms. Pelletier’s long-term offender hearing.

This evidence is placed before this Court as a package, i.e. , if the Court concludes that Dr. Nicholaichuk’s evidence is inadmissible as fresh evidence, Ms. Pelletier asks the Court not to admit the CSC reports. Dr. Nicholaichuk is also present in the appeal courtroom, and Ms. Pelletier applies for him to testify before the Court to explain his research and opinion. [ 5 ] Crown counsel on appeal resists the introduction of the new evidence on several bases including that it does not meet the criteria for admitting fresh evidence in a sentence appeal (see R. v.

Lévesque , 2000 SCC 47 , [2000] 2 S.C.R. 487 at para. 16 ). [ 6 ] After hearing full argument on the matter, we find no basis to admit the new evidence. We agree with Crown counsel that it does not meet the Lévesque criteria when assessed in relation to the only issue before this Court, which is whether the sentences are demonstrably unfit. [ 7 ] Fitness of sentence is measured according to the differential standard of review established by the Supreme Court of Canada (see, e.g. R. v. Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206 at paras. 40-42 ).

That standard of review requires the Court to consider whether the sentencing judge erred in principle, failed to consider a relevant factor or overemphasized the appropriate factors. As the Court stated in R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433 at para. 40 , appellate courts have a duty to ensure that courts properly apply the legal principles governing sentencing. In every case, an appellate court must be satisfied that the sentence under review is proportionate to both the gravity of the offence and the degree of responsibility of the offender.

Even if the Court finds error, however, it may nonetheless conclude that the sentence is not demonstrably unfit. [ 8 ] From time to time this Court accepts fresh evidence which addresses rehabilitation since the imposition of an offender’s sentence, but that is not what has been presented to us on this appeal. Ms. Pelletier appears to have struggled to maintain acceptable behaviour while incarcerated—and Dr. Nicholaichuk’s report and opinion is intended to explain not only why she offends but why she has performed poorly while in custody. [ 9 ] The only possible basis upon which Dr.

Nicholaichuk’s evidence might be considered relevant is to assist the Court to assess Ms. Pelletier’s degree of responsibility, but even in that regard the evidence is insufficient for the purpose of permitting the Court to set aside the sentence and order a reduced sentence. As Crown counsel indicated, Dr. Nicholaichuk’s evidence is tendered to support a theory to explain Ms. Pelletier’s behavior, which even if admitted would require testing in a trial setting to determine whether it would result in a fit sentence of something less than seven years.

In short, we see no principled basis to admit the fresh evidence. Since the fresh documentary evidence is not admitted, it follows that we cannot hear Dr. Nicholaichuk’s oral testimony. [ 10 ] Turning then to Ms. Pelletier’s appeal from her sentence, it too must be dismissed. Again, the limited nature of her appeal tells against intervention. [ 11 ] As the Court reviews each of the sentences imposed on Ms. Pelletier, we conclude that none is the product of error so as to have resulted in a demonstrably unreasonable sentence.

While concurrent sentences of four and one-half years for two robberies may be unreasonable, we cannot say that consecutive sentences of two and one-quarter years for each of the robberies would be so. [ 12 ] With respect to the Ipeelee factors, we note that the sentencing judge referred extensively to Ms.

Pelletier’s tragic history and expressly states that she had taken it into account. [ 13 ] Further, and perhaps most importantly, even if we were persuaded that the sentencing judge had erred, we are not persuaded that a sentence of seven years is demonstrably unfit, having regard for all of the circumstances, including the total amount of the sentences. [ 14 ] As a final matter, we should point out that Dr. Nicholaichuk’s report is a thoughtful document.

Our decision not to admit the evidence is not a reflexion on the quality of his opinion, which may be of considerable use to the officials at the CSC as they administer Ms. Pelletier’s sentence and supervise her while she is in the community, and should be provided to them.