Docket: CACR2108 Her Majesty the Queen Appellant - v. -, 2013 SKCA 83

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 83 Date: 2013-08-12 Between: Docket: CACR2108 Her Majesty the Queen Appellant - and - Mark Robert Simpson Respondent Coram: Klebuc, Caldwell and Herauf JJ.A. Counsel: Anthony Gerein for the appellant John Epp for the respondent Appeal: From: 2012 SKPC 18 Heard: March 20, 2013

Disposition: Dismissed Written Reasons: August 12, 2013 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Mr. Justice Klebuc The Honourable Mr. Justice Caldwell Herauf J.A. [ 1 ] This is a Crown appeal from the refusal of the sentencing judge to order a

Part XXIV assessment under s. 752.1 of the Criminal Code (the “ Code ”). [ 2 ] Mark Robert Simpson, the respondent, pled guilty to a charge of robbery with threats of violence pursuant to s. 344(1) (

b) of the Code . The Crown applied under s. 752.1(1) of the Code to remand Mr. Simpson for an assessment on the basis that he might be found to be a long-term or dangerous offender. The sentencing judge dismissed the application on the footing that threats of violence “did not constitute a serious personal injury offence” (“SPIO”) within the meaning of s. 752 (a)(

i) of the Code . The sentencing judge also found that there was no evidence to support endangerment or severe psychological damage to the victims of the crime to fit within s. 752(a)(ii) of the Code . [ 3 ] The sentencing judge, in concluding that “threats” of violence did not constitute an SPIO within the meaning of s. 752 (a)(

i) of the Code , followed the decision in R. v. Roy , 2008 SKCA 41 , 307 Sask. R. 276. At para. 31 of Roy , this Court defined violence for the purposes of s. 752 (a)(

i) to mean the use of physical force. Thus, a threat to apply physical force would not fit within the definition of an SPIO as it relates to s. 752 (a)(

i) under the

interpretation given to that term in Roy . [ 4 ] The Crown, noted in para. 70 of its factum that: 70. If … one reads Roy as requiring the actual application of force, or an attempt at it, as standing for the idea of interpreting s.752 narrowly, the Crown respectfully submits it needs to be revisited. … [ 5 ] This appeal was initially adjourned at the request of Mr. Simpson in order for him to obtain counsel. The president of the panel at that time alerted the Crown to the proper procedure to follow when requesting that a previous decision of this Court be revisited.

The Crown declined to request an expanded panel to hear the appeal. [ 6 ] Since Roy is the controlling authority and the Crown declined to accept the invitation to give proper notice to the Chief Justice that it wanted Roy revisited, we must dismiss the appeal. Judgment will issue dismissing the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 12th day of August, 2013. “Herauf J.A.” Herauf J.A. “Klebuc J.A.” Klebuc J.A. “Caldwell J.A.” Caldwell J.A.