2013 SKCA 45 Date:, 2013 SKCA 45

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 45 Date: 2013-05-01 Between: Docket: CACR2215 Waylon Macquaid Ross Appellant - and - Her Majesty the Queen Respondent Coram: Lane, Richards and Herauf JJ.A. Counsel: Evan Strelioff for the appellant Beverly Klatt for the respondent Appeal: From: Provincial Court Heard: February 7, 2013 Disposition: Dismissed in the main

Written Reasons: May 1, 2013 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Herauf Richards J.A. I. Introduction [ 1 ] The Appellant, Waylon Ross, pled guilty to three charges of violating the terms of a probation order contrary to s. 733.1 of the Criminal Code and one charge of obstructing the course of justice contrary to s. 139(2) of the Code . He was sentenced to 16 months in jail. [ 2 ] Mr. Ross seeks to have his guilty pleas set aside and advances two arguments in support of his position: (

a) he did not receive disclosure from the Crown prior to entering the pleas, and (

b) the pleas were both uninformed and equivocal. Mr. Ross also argues that his plea on the obstruction charge should be overturned because of a reasonable apprehension that the sentencing judge was biased in relation to that matter. Finally, Mr. Ross submits that, if his guilty pleas stand, his sentence should be reduced. [ 3 ] I conclude, for the reasons set out below, that the guilty plea on the obstruction charge should be set aside because Mr. Ross did not understand the nature of that offence. In all other respects, his appeal must be dismissed. II. Factual background [ 4 ] Mr. Ross is 26 years old. At the relevant times, he was subject to a probation order which provided that (

a) he have no direct or indirect contact with Ms. X, a 16 year old girl, (

b) he abstain from the possession and consumption of alcohol and illicit drugs, and (

c) he keep the peace and be of good behavior. [ 5 ] On July 7, 2012, at 5:30 a.m., the police stopped a vehicle in which both Mr. Ross and Ms. X were passengers. Mr. Ross was charged with failing to keep the peace and be of good behavior and with contacting Ms. X, both contrary to his probation order. [ 6 ] The police responded to a fight involving Mr. Ross and Ms. X on July 17, 2012. They found the two of them on the road in front of Mr. Ross’s residence. Ms. X was bleeding from a cut on her lip and her face was swollen and bruised. Mr. Ross was charged with (

a) assault causing bodily harm, (

b) breaching his probation order by failing to keep the peace and be of good behavior, (

c) breaching his probation order by failing to abstain from the possession and consumption of alcohol, and (

d) breaching his probation order by failing to abstain from the possession and consumption of illicit drugs. When Mr. Ross was arrested, he yelled loudly at Ms. X and the police saying “Ask [Ms. X] what happened. She’ll tell you I didn’t assault her”. [ 7 ] Mr. Ross was in Provincial Court as an in-custody prisoner on July 19, 2012. Ms. X was seated in the gallery. Mr. Ross made gestures to her with his hands and mouthed a conversation with her. He was charged with attempting to obstruct the course of justice by communicating with Ms. X.

She refused to cooperate with the police in relation to the other charges that he was facing. III. The guilty pleas [ 8 ] Mr. Ross appeared in court on September 27, 2012. The breach of probation charges arising from the incidents on July 7 and 17, 2012 were scheduled for trial and the obstruction charge was scheduled for a show cause hearing. The judge was the same judge who had been presiding on July 19 when Mr. Ross’s actions had attracted the obstruction charge. [ 9 ] Mr. Ross was not represented by counsel. However, Mr.

Greg Chovin was present on the basis of having been appointed pursuant to s. 486.3(1) of the Criminal Code for the limited purpose of cross examining Ms. X at the trial. In the end, he was good enough to assist Mr. Ross in various other ways as well. [ 10 ] When the judge turned to Mr. Ross’s matters, Mr. Chovin advised that Mr. Ross might wish to enter some guilty pleas in relation to the events of July 17, 2012 and that the Crown would be withdrawing some charges. Mr.

Ross then pled guilty to the following: Being bound by a probation order made by a judge of the Saskatchewan Provincial Court on the 29 th day of February A.D. 2012, willfully failed to comply with the condition thereof, to wit: do not have any contact, direct or indirect with [Ms. X], contrary to s. 733.1 of the Criminal Code .

Being bound by a probation order made by a judge of the Saskatchewan Provincial Court on the 29 th of February A.D. 2012, willfully failed to comply with the condition thereof, to wit: abstain from the possession and consumption of beverage alcohol, contrary to s. 733.1 of the Criminal Code . [emphasis added]

[11] Next, Mr. Chovin advised that the Court could also deal with the charges arising from the July 7, 2012 incident and that Mr. Rossmight wish to enter a plea to the charge involving contact with Ms. X. Mr. Ross then pled guilty to that charge. [12] This done, the judge turned to the question of sentencing Mr. Ross on the charges to which he had pled guilty. Both the prosecutorand Mr. Ross made submissions. When the judge indicated that she was going to impose a “fairly lengthy” jail sentence, Mr.

Rossreacted by questioning why he had pled guilty, saying he was ready to run the trial, and suggesting possible defences to the charges. Thejudge pressed on and sentenced Mr. Ross. [13] Finally, turning to the obstruction charge, the judge suggested to Mr. Ross that he should speak to a lawyer and offered to adjournthe matter to either another day or to the afternoon. The Court broke for lunch and, after lunch, the judge attempted to help Mr. Rossunderstand the nature of the obstruction charge, Mr. Ross ultimately pled guilty to it. The judge then sentenced him on that charge. IV.

Analysis [14] As indicated at the outset, Mr. Ross advances several arguments as to why his guilty pleas should be set aside and also contendsthat, if his pleas are allowed to stand, his sentence should be significantly reduced. I will deal with each of his arguments in turn. A. The Disclosure Issue [15] Mr. Ross seeks leave to file an affidavit sworn by him and indicating that he did not receive disclosure from the Crown. Hesubmits that the absence of disclosure prior to the judge accepting his guilty pleas was a violation of his rights as guaranteed by s. 7 ofthe Charter.

In this regard, he says the judge had a duty to inquire as to whether the Crown had advised him of his right to disclosure. Insupport of this position, Mr. Ross relies on the following statement from R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326at p. 343: In the rare cases in which the accused is unrepresented, Crown counsel should advise the accused of his right to disclosure and a pleashould not be taken unless the trial judge is satisfied that this has been done. [16] The Crown opposes the introduction of Mr. Ross’s affidavit and takes issue with Mr. Ross’s assertion that he did not receivedisclosure.

In the end, I find it unnecessary to make a ruling on the admissibility of his affidavit. This is because, even if it is accepted,Mr. Ross’s arguments on this front cannot succeed. [17] The failure to provide disclosure, assuming there was such a failure, does not automatically entitle Mr. Ross to the relief he isseeking. In R. v. Dixon, (SCC), [1998] 1 S.C.R. 244, the Supreme Court indicated that disclosure is only the firstconsideration in an argument about a denial of the right to make full answer and defence. In order to establish a denial of that right, anaccused person must also show either (

a) that there is a reasonable possibility the non-disclosure affected the outcome of the trial, or (b)that the non-disclosure affected the overall fairness of the trial process. [18] In the context of proceedings involving guilty pleas, the Supreme Court set out the governing approach in R. v. Taillefer, 2003 SCC70, [2003] 3 S.C.R. 307: 90 In my opinion, those decisions adopt an accurate statement of the Dixon [ (SCC), [1998] 1 S.C.R. 244] test,adapted to the context of the impact of the breach of the duty to disclose on the validity of a guilty plea.

In the context of a guilty plea,the two separate steps in the analysis required by Dixon must be merged, however. In that situation, it is impossible to separate them,because the entire analysis of the breach must bear on the accused's decision to enter the guilty plea that he or she now wishes to beallowed to withdraw. The accused must demonstrate that there is a reasonable possibility that the fresh evidence would have influencedhis or her decision to plead guilty, if it had been available before the guilty plea was entered.

However, the test is still objective in nature.The question is not whether the accused would actually have declined to plead guilty, but rather whether a reasonable and properlyinformed person, put in the same situation, would have run the risk of standing trial if he or she had had timely knowledge of theundisclosed evidence, when it is assessed together with all of the evidence already known. Thus the impact of the unknown evidence onthe accused's decision to admit guilt must be assessed.

If that analysis can lead to the conclusion that there was a realistic possibility thatthe accused would have run the risk of a trial, if he or she had been in possession of that information or those new avenues ofinvestigation, leave must be given to withdraw the plea. [emphasis added] [19] The requirements of the Taillefer test are not satisfied in the situation here because Mr. Ross has failed to demonstrate a realisticpossibility that disclosure would have affected his decision to plead guilty.

First, he presented no evidence as to what information theCrown failed to disclose or how that information would have affected his plea. Second, he was unable to indicate (given the verystraightforward nature of the charges) what sorts of information the police might conceivably have had that would have affected his plea. [20] Thus, even assuming there was a breach of Mr. Ross’s disclosure entitlements, he has failed to show that the breach affected hisright to make full answer and defence and, hence, he has failed to demonstrate a contravention of s. 7 of the Charter.

In the result, thisground of appeal must fail. B. The Bias Issue [21] Mr. Ross also suggests, in relation to the obstruction charge, that the judge’s actions were tainted by a reasonable apprehension of

bias. The basis for this argument is that the incident underlying the obstruction charge had occurred in the judge’s court room. As such,the judge might have witnessed the events which gave rise to the charge. [22] There is no dispute in this case about the legal test governing the reasonable apprehension of bias issue.

It is grounded in theperspective of an informed, reasonable and right-minded person and it was explained as follows in Committee for Justice & Liberty v.Canada (National Energy Board), (SCC), [1978] 1 S.C.R. 369 at p. 394: The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotationabove, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to thequestion and obtaining thereon the required information.

In the words of the Court of Appeal, that test is “what would an informedperson, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it ismore likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.” See also: R. v. R.D.S., (SCC), [1997] 3 S.C.R. 484. [23] In my opinion, there is no reasonable apprehension of bias in the circumstances of this case. In significant part, this is becausethere was no trial.

In consequence, the judge did not hear evidence, make findings of credibility or choose between conflicting accountsof the incident in question. Her role was limited to determining if Mr. Ross’s plea should be accepted and then imposing an appropriatesentence. As a result, the mere fact that the judge was present in the court room on the day the events occurred is not enough to establisha reasonable concern that she was not impartial. [24] In this regard, I note that it is not uncommon for a judge to be familiar with the underlying facts of the charge before him or her.

For instance, a judge might deal with an accused’s bail hearing and then preside over the subsequent trial. It is a fundamental aspect ofthe judicial role that decisions are based only on the evidence properly before the court. This frequently requires judges to, for example,disabuse their minds of inadmissible evidence which has been brought forward in the context of a voir dire or otherwise. [25] Simply put, I am not persuaded that a reasonable and right-minded person, informed of the circumstances of this case, would haveapprehended that the judge was unable to fairly take Mr. Ross’s pleas and sentence him. C.

The “Unequivocal” and “Informed” Issues [26] Mr. Ross’s next line of argument is that his guilty pleas should be set aside because they were not unequivocal and informed. [27] The basic principles which govern this situation are well-settled. A guilty plea is valid if it is unequivocal, voluntary andinformed. A plea is “unequivocal” if it is unqualified and certain with respect to the acknowledgment of the essential facts of the crimecharged. It is “voluntary” if the accused makes a conscious and volitional decision to plead guilty for reasons the accused regards asappropriate.

A plea is “informed” if the accused understands the nature of the charges, the legal effect of the plea and the consequences. See: R. v. Arcand, 2000 SKCA 60, 199 Sask. R. 4; R. v. Leonard, 2007 SKCA 128, 307 Sask. R. 140; R. v. T. (R.) (1992), (ON CA), 17 C.R. (4th) 247 (Ont. C.A.); Criminal Code, s. 606(1.1). 1. The Breach of Probation Pleas [28] Mr. Ross’s first submission in relation to the breach of probation pleas is that the judge erred by accepting those pleas prior to theCrown reciting the underlying facts.

Those facts were reviewed in detail only during the Crown’s submissions on sentencing and, as aresult, Mr. Ross argues that his pleas were uninformed. In support of this position, he points to a procedure for accepting guilty pleasoutlined by Chief Justice Bayda in Saskatchewan (Attorney General) v. Saskatchewan (Provincial Court Judge) (1993), 1994 SKCA4616 , 93 C.C.C. (3d) 483: 16 It is equally evident from this passage that after the charge has been read to an accused and he or she has offered a plea of guiltythe judge has a duty to perform, as part of the "first" stage.

The judge is required to exercise a "discretion" - a discretion whether or notthe plea should be accepted. Put another way, the judge is required to make an adjudication. No authority is needed for the propositionthat whenever a judge is required to exercise a discretion he or she must do so "judicially". This invariably involves hearing andconsidering the submissions of both sides when both sides have the right to be before the judge.

It follows that before a judge accepts aguilty plea he or she, as a minimum, should hear a recitation by the Crown of the foundational facts for the charge and should hear anacceptance or explanation by the accused respecting those facts. Only after such a hearing, abbreviated and unadorned by any formalismthough it may be, is the judge in a position to exercise his or her discretion judicially and to adjudicate upon whether or not to accept theplea.

It is emphasized that the adjudication at this first stage is not preceded by the giving of evidence in the formal sense, that is,through the mouths of witnesses who are examined and cross-examined, or through some such similar formal process. [emphasis added] [29] In my view, this argument must fail. Section 606(1.1) of the Criminal Code is the governing provision. It mandates that a courtmay accept a plea of guilty only if two conditions are met. First, the court must be satisfied that the accused is making the pleavoluntarily. Second, the court must be satisfied the accused understands that (

a) the plea is an admission of the essential elements of theoffence, (

b) the nature and consequences of the plea, and (

c) the court is not bound by any agreement made between the prosecutor andthe accused. Significantly, the Code does not require that the Crown or the court read in a statement of facts prior to taking a guilty plea.It is enough that the accused understands the essential elements of the offence.

[ 30 ] Thus, although the practice outlined by the late Chief Justice in Saskatchewan (Attorney General) v. Saskatchewan (Provincial Court Judges) is certainly the preferable practice – one which helps to ensure that guilty pleas are in fact informed – it is not a rigid legal requirement. The failure to follow such a procedure does not, in and of itself, affect the integrity of a guilty plea. See, for example, R. v. Eizenga, 2011 ONCA 113 , 270 C.C.C. (3d) 168, at paras. 47-48 .

Indeed, s. 606(1.2) of the Code expressly provides that a failure to fully inquire whether the conditions referred to in s. 606(1.1) are met does not affect the validity of a plea. [ 31 ] It is necessary to turn, therefore, to the question of whether Mr. Ross’s pleas to the breach charges were, in fact, informed. Mr. Ross did not provide any evidence of his own suggesting that he did not understand the charges. The transcript indicates that he did understand them. They were straightforward: two no-contact breaches and a consumption of alcohol breach. The judge made inquiries of Mr.

Ross aimed at satisfying herself that the requirements of s. 606(1.1) had been met. He had no apparent trouble understanding the judge’s questions or responding appropriately to them. It is also noteworthy that, after the prosecutor read in the detailed facts underlying the charges in the course of her sentencing submissions, Mr. Ross made his own submissions in response and took no issue with the facts as outlined by the Crown. All things considered, Mr. Ross has not established that he did not understand the nature of the breach of probation charges. [ 32 ] Mr.

Ross’s second argument in relation to the breach charges is that his pleas were equivocal. His position is grounded in the comments that he made to the judge during the sentencing portion of the proceedings. More particularly, he points to the fact that he asked during sentencing if he could take the pleas back so that he could speak to his family and a lawyer. He also made some comments at that same time which suggested that he believed he might have a defence to the charges. However, as the Crown points out, Mr.

Ross’s concerns in this regard arose only after the judge had made it clear that she was going to sentence Mr. Ross to a “fairly lengthy” period of incarceration. On receiving this perhaps somewhat unexpected news, Mr. Ross seems to have regretted the guilty pleas. However, his regret does not mean there was any equivocation in relation to the pleas at the time they were entered. There is room for some concern here but, in my opinion, Mr. Ross has not shown that his pleas were equivocal. [ 33 ] As a result, the guilty pleas in relation to the breach of probation charges must stand. 2.

The Obstruction of Justice Charge [ 34 ] Mr. Ross argues that his plea to the obstruction of justice charge should be set aside because he did not understand the charge and as a result, his plea was neither informed nor unequivocal. The Crown acknowledges that Mr. Ross did not understand the nature of the charge early on in the proceedings, but submits that he did understand it by the time the guilty plea was entered. [ 35 ] In order to properly consider this issue, it is necessary to begin with an examination of the nature of the offence of obstruction pursuant to s. 139(2) of the Criminal Code .

It is a specific intent offence. Its mens rea element involves proof of an intention to obstruct justice, not just an intention to do

an act which has the effect of obstructing justice (See e.g. R. v. Yazelle, 2012 SKCA 91 , 399 Sask. R. 249; R. v. Easu, 2009 SKCA 31 , 324 Sask. R. 95). This is a distinction which is both important and perhaps somewhat subtle in the eyes of a lay person. [ 36 ] As noted above, for a guilty plea to be “informed”, in the relevant sense, an accused person must understand the nature of the allegations to which he or she is pleading. Thus, for Mr. Ross’s plea on the obstruction charge to have been informed, he would have had to have appreciated the distinction between attempting to communicate with Ms.

X and attempting to communicate with her for the purpose of obstructing justice. Despite the judge’s not insignificant efforts to assist Mr. Ross in this regard, it is apparent that he did not grasp the distinction. [ 37 ] The proceedings reveal many examples of Mr. Ross’s failure to appreciate the mental element of the obstruction charge. For instance, at p. 33 of the transcript, the following exchange occurred: THE COURT: Okay, so you’re not admitting that it -- THE ACCUSED: I don’t admit to intimidating, but I admit to like having like a contact. Well, you were here -- THE COURT: Um-hum.

THE ACCUSED: -- like that day, and like you can -- like a witness to that. So I was -- I did obstruct like a judicial -- like a procedure by having like contact in the courtroom. [ 38 ] This was followed by multiple attempts by the judge to explain to Mr. Ross that the nature of the charge was not the communication with Ms. X, but the fact that the communication was made in an effort to prevent her from testifying. After a number of responses by Mr. Ross showing his failure to grasp the concept, the judge said: THE COURT: Yeah, yeah, I -- I don’t think you are prepared to enter a guilty plea.

I am not going to take a guilty plea. It sounds like you don’t really understand the charge or understand what you’re entering a plea to and that maybe you’re just doing this to kind of get matters over with. So I’m not going to accept your guilty plea at this moment. [ 39 ] The judge then put Mr. Ross’s matter to the bottom of the list in order to let him think further about his position. There is no indication in the transcript as to how long it was before the judge returned to Mr. Ross’s file and no indication as to what took place during that delay. However, when the judge did get back to Mr.

Ross, his understanding of the nature of the charge had not improved. The relevant part of the transcript reads as follows: THE ACCUSED: Well, I don’t know, Your Honour. I know the Crown’s like -- like position, and -- and I don’t know, I’ve -- like I

have had a little bit of time to -- to think about it, and I am willing to -- to plead guilty to it like. Like I did say that -- THE COURT: Um-hum. THE ACCUSED: -- in open court. It’s there in the recording. I did say like -- like ask her, you know, that it didn’t happen. [ 40 ] The judge then attempted once again to help Mr. Ross understand the charge and ultimately accepted his guilty plea: THE COURT: -- so the Crown is relating to other information as well that you were I think making symbols and communicating with her in that way. Is that right, Ms. Reid, or he was -- MS.

REID: Well, I guess the gist of it is him telling her essentially by saying tell them I didn’t assault you, that that was the case. The gestures I mean are -- support that. THE COURT: Um-hum, okay. MS. REID: So the main allegation would be that he was telling her not to. THE COURT: Okay, okay, so that’s what you admit? You admit you were telling her -- THE ACCUSED: Yeah. THE COURT: Talking to her? THE ACCUSED: Yeah. THE COURT: And trying to basically communicate with her when you were still under a no-contact order? THE ACCUSED: Yeah. Yes, Your Honour, I -- I admit to it. THE COURT: All right.

So, Waylon, this is what you have to understand. By entering a guilty plea, are you doing it of your own free will? THE ACCUSED: Yes. THE COURT: I don’t want you to enter a guilty plea simply to get it over with or, you know, anything else. If you’re not guilty, we can have a trial date in March, and you’re going to be serving anyway I presume until then, so you can have your day in court if you like. But if you want to plead guilty and you’re doing it because you are guilty, then I can accept that, but I want you to accept that. THE ACCUSED: Yeah, Your Honour, I accept that I’m -- that I’m guilty.

THE COURT: Okay, so you’re admitted to the facts -- THE ACCUSED: Hey, Grandpa? THE COURT: -- that you did in fact obstruct, pervert or defeat the course of justice wilfully, correct? THE ACCUSED: Correct. THE COURT: And that was in that judicial proceeding on July 19 and that you communicated repeatedly with [Ms. X] at that time, correct? THE ACCUSED: Yes, correct. [emphasis added] [ 41 ] Despite Mr. Ross’s ultimate agreement with the judge that he had wilfully obstructed the course of justice, it is apparent that he was still confused about what this meant.

He remained focused on the fact that he had communicated with Ms. X rather than on the question of whether he had attempted to influence her testimony. In my view, his guilty plea was not informed because he did not understand the nature of the obstruction charge. [ 42 ] Mr. Ross also questions the voluntariness of his guilty plea in light of the fact that the judge had presumably witnessed the events giving rise to the charge. The question here is whether a self-represented accused, appearing before a judge whom he or she believes witnessed the alleged crime, might be cowed into pleading guilty.

This argument raises a serious and important issue separate and distinct from the argument about bias but I need not deal with it given my conclusion that the guilty plea must be set aside because Mr. Ross did not understand the offence. [ 43 ] In the end, the obstruction of justice conviction must be set aside because Mr. Ross’s guilty plea was not informed. D. The Sentence Appeal [ 44 ] Mr. Ross also appeals his sentence, arguing that it should be reduced.

[45] The standard of review in this regard is deferential. This Court will not interfere with a sentence unless the sentencing judge madean error in principle, failed to consider a relevant factor, overemphasized the appropriate factors or the sentence is demonstrably unfit.See e.g. R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, R. v. M.(C.A.), [1996] 1 S.C.R. 368. [46] Given that the conviction on the obstruction charge is set aside, it is unnecessary to deal with Mr. Ross’s sentence appeal inrelation to that charge. As for the sentences for the breaches of probation, Mr.

Ross received seven months consecutive on the first no-contact breach, with three months credit given for the time he had served on remand. On the second no-contact breach, he received asentence of four months consecutive and, on the alcohol breach, a sentence of four months concurrent. As a result, the global sentencefor the three breaches of probation was eight months incarceration consecutive to any sentence he was then serving. [47] Mr.

Ross submits that the judge erred by failing to consider the following sentencing principles: • A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; • Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; • All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [48] I will deal briefly, and individually, with each of these points. 1. Parity [49] Mr.

Ross suggests that the sentences in question were excessively long given his low level of culpability. He says that hisculpability was diminished because the first no-contact breach occurred when he got into a friend’s vehicle not knowing that Ms. X wasin the vehicle. As for the second no-contact breach, he says Ms. X attended his home uninvited. Nonetheless, it seems apparent that Mr.Ross was free to get out of the car once he discovered that Ms. X was in it. It also seems clear enough that he could have remainedinside his house even if Ms. X had come to see him. He need not have fought with her on the street.

The Crown also points out that Mr.Ross has at least eight prior convictions for breaching either a probation order or a release order. [50] In my opinion, the sentences in issue do not offend the principle of parity. Although they may be at the high-end of the relevantspectrum, they do not fall outside of the acceptable range of sentences for breaches involving the sorts of circumstances at play here. Mr. Ross was, after all, a 26 year old man who had been ordered to have no contact with a 16 year old girl. See: R. v. Kane, 2010 SKCA(SentDig) 32, R. v. Remple, 1999 SKCA (SentDig) 95.

The judge made no reviewable error in this regard. 2. Totality [51] Mr. Ross’s second contention is that the use of consecutive sentences rendered the global sentence unduly harsh. In my view, thejudge committed no error by imposing consecutive sentences for the breaches of probation. The charges flowed from entirely separateand distinct incidents. The total sentence is high, but it is not demonstrably unfit. 3. Gladue Factors [52] Mr. Ross’s last argument is that the sentencing judge erred by failing to give consideration to his Aboriginal background asrequired by s. 718.2(

e) of the Criminal Code. The Crown acknowledges that the transcript fails to reveal that the judge gave any expressconsideration to Mr. Ross’s background. However, the Crown also points out that this issue was never raised during sentencing. [53] Although the transcript contains no direct reference s. 718.2(

e) or to the factors referred to in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, I am not persuaded that the judge was blind to these considerations. She heard submissions from Mr. Rossand his mother with respect to his personal circumstances. In addition, the judge considered alternatives to incarceration but did socognizant of the fact that the offences for which Mr. Ross was charged had occurred while he was on probation. Thus, even though thejudge did not make an express reference to s. 718.2(e), the transcript as a whole indicates that she was very much alive to non-carceralsentencing options.

In my view, she did not make any error on this front which affected the bottom line of her sentencing decision. V. Conclusion [54] Mr. Ross’s appeal is allowed in one respect only. The guilty plea to the obstruction of justice charge is set aside. The convictionon that charge is quashed and a new trial is ordered. As for the breach of probation convictions, the appeals in relation to both the guiltypleas and the sentences are dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 1st day of May, A.D. 2013. “Richards J.A.”_____________________ Richards J.A.

I concur. “Richards J.A.” for Lane J.A., as per authorization I concur. “Herauf J.A.” Herauf J.A.