Docket: CACR2051 Her Majesty the Queen Appellant - v. -, 2014 SKCA 110

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 110 Date: 2014-10-29 Between: Docket: CACR2051 Her Majesty the Queen Appellant - and - Shawn Curtis Keepness Respondent Between: Docket: CACR2055 Shawn Curtis Keepness Appellant - and - Her Majesty the Queen Respondent Coram: Lane, Jackson and Ottenbreit JJ.A. Counsel: James Struthers, Q.C., for Shawn Curtis Keepness W. Dean Sinclair for Her Majesty the Queen

Appeal: From: 2009 SKQB 466 and 2011 SKQB 293 Heard: January 22, 2014 Conviction and Sentence appeal: Dismissed By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson Crown Sentence appeal: Allowed By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Lane In Dissent: The Honourable Madam Justice Jackson Written Reasons: October 29, 2014 OTTENBREIT J.A. I.

Introduction [ 1 ] Shawn Curtis Keepness was convicted after a trial by a Queen’s Bench judge of three offences that he did: Count 1: unlawfully cause the death of Wilton Jay Lavallee and did thereby commit manslaughter contrary to s. 236 (

b) of the Criminal Code , RSC, 1985, c C-46; Count 2: wound Timothy Walter Lavallee thereby committing an aggravated assault, contrary to s. 268(1) of the Criminal Code ; and Count 3: wound Tyler Dylan Lavallee thereby committing an aggravated assault, contrary to s. 268(1) of the Criminal Code . All the offences relate to a forcible entry at 1547 Athol Street in Regina on June 8, 2007, by Dean McNabb, James Pewean, Dallas Keepness and Michael Keepness (McNabb, Pewean, Keepness and Keepness). [ 2 ] The decision respecting the convictions is cited at R v Keepness , 2009 SKQB 466 , 348 Sask R 49.

Upon conviction the Crown applied to have Mr. Keepness declared a long-term offender. After hearing further evidence the trial judge determined that Mr. Keepness was a long-term offender under s. 753(1) of the Criminal Code . The trial judge determined that a global sentence of 15 years incarceration on Count 1, and 7 years incarceration concurrent on Counts 2 and 3 was appropriate. She then gave him credit of 4 years and 6 months for time spent on remand. This left 10 years and 6 months to serve.

She also imposed a 10 year supervision order after the expiry of his term of imprisonment, a lifetime firearms prohibition and a DNA order. The decision respecting the sentence is cited at R v Keepness , 2011 SKQB 293 , 379 Sask R 68. [ 3 ] In other proceedings related to the forcible entry of 1547 Athol Street, McNabb pleaded guilty to the second degree murder of Wilton Lavallee and two counts of aggravated assault, and was sentenced to life imprisonment with parole eligibility set at 10 years.

Pewean, Keepness and Keepness each pleaded guilty to one count of manslaughter and two counts of aggravated assault in respect of the three victims. The manslaughter sentence of each at trial was appealed by the Crown. On appeal ( R v Keepness , 2010 SKCA 69 , [2010] 10 WWR 13) the sentence of each was increased to 15 years incarceration. Together with the 7 years incarceration to be served concurrently each received at trial for the aggravated assaults, their sentence totalled 15 years incarceration less remand time. [ 4 ] The trial judge convicted Mr.

Keepness on the basis that he was a party pursuant to s. 21(2) and/or s. 22 of the Criminal Code to the offences of manslaughter and aggravated assault for which Pewean, Keepness and Keepness were convicted. [ 5 ] Mr. Keepness seeks leave to appeal and appeals his conviction and sentence. The Crown seeks leave to appeal and appeals his sentence. [ 6 ] Leave is granted on both the appeal of Mr. Keepness and the Crown. For the reasons hereinafter set forth, the conviction and sentence appeal of Mr. Keepness is dismissed. The Crown is granted leave to appeal the sentence and the sentence appeal is allowed. II.

Facts and Background [ 7 ] On the evening of June 7, 2007, a number of young men and women attended a party at a residence on Princess Street in north central Regina. Mr. Keepness was an attendee as were McNabb, Pewean, Keepness, Keepness, Cody Montour, Chad Delorme, D.B. and others. In the early morning hours of June 8, 2007, McNabb, Pewean, Keepness and Keepness forcibly entered a house at 1547 Athol

Street in north central Regina and assaulted several persons there. There were three victims: Tyler Lavallee, Timothy Lavallee and Wilton Lavallee, all of whom suffered significant injuries. Wilton Lavallee died of his injuries. [ 8 ] At his trial, Mr. Keepness admitted certain facts pursuant to s. 655 of the Criminal Code which can be summarized as follows: 1. On June 8, 2007, McNabb, Pewean, Keepness and Keepness broke into the residence of Tyler Lavallee, Timothy Lavallee and Wilton Lavallee, whom they assaulted.

During the assault of Tyler Lavallee and Timothy Lavallee, the four shouted “NSK” and demanded drugs and money. NSK stands for Native Syndicate Killers. 2. McNabb, Pewean, Keepness and Keepness committed an aggravated assault on Timothy Lavallee, which occurred during the course of the break and enter. Timothy Lavallee was stabbed once in the chest and sustained minor injuries such as bruising. 3. McNabb, Pewean, Keepness and Keepness committed an aggravated assault on Tyler Lavallee during the course of the break and enter.

Tyler Lavallee was cut a number of times with a knife during the assault and suffered other injuries. 4. Wilton Lavallee was beaten and stabbed during the course of the break and enter, and died as a result of the injuries he sustained. His death was a culpable homicide that was caused by McNabb, Pewean, Keepness and Keepness during the break and enter. [ 9 ] During the evening of June 7 and early morning hours of June 8, D.B. left the party mentioned earlier several times and made several purchases of drugs from Bobby Lavallee, who was also living at 1547 Athol Street.

She took the drugs back to the party for consumption by the party attendees. When the people at the party became aware that Bobby Lavallee was the source of the drugs D.B. had been purchasing, a plan was hatched by some of the people at the party to forcibly enter 1547 Athol Street and rob the occupants of the money paid for drugs over the evening as well as any remaining drugs. [ 10 ] The evidence of three witnesses at trial – Cody Montour, Chad Delorme, and D.B. – is germane to the issues raised by Mr. Keepness on this appeal.

Their testimony concerns the discussions that took place and what transpired at the party respecting the planning and execution of the forcible entry to 1547 Athol Street and, specifically, Mr. Keepness’s role. [ 11 ] Chad Delorme testified that Mr. Keepness was talking to “his boys” about getting his money back and rushing the house and was telling people who was going to go and do this. He explained that Mr. Keepness said D.B. would be used as a decoy to get inside the house and that Mr. Keepness pointed at various people and said which of the people were going to go.

Chad Delorme said that he had seen knives in the house where the party was being held and Dean McNabb had knives in his pants. As well, he had seen a bat and people holding it. It appeared to Chad Delorme that Mr. Keepness was the leader of the people at the house because they followed his instructions. He indicated that Mr. Keepness directed specific people to get into the van and go to 1547 Athol Street and specifically directed him to drive the van.

He testified that McNabb, Pewean, Keepness, Keepness and D.B. were with him in the van and he was instructed to go to the Athol Street address to get the drugs and money. He dropped McNabb, Pewean, Keepness, Keepness and D.B. off at the location. He left with D.B. after hearing a “smashing” sound. [ 12 ] Chad Delorme testified that when he returned to the party, Mr. Keepness swore at him after he told Mr. Keepness that he had left the four at the house. He also testified that he later got beaten up by James Pewean after Mr.

Keepness pointed to him and said to Pewean “you know what to do.” In testimony, he said that Mr. Keepness had told “the boys” who had gone to Lavallee’s house to change their clothes, and they did. In cross-examination, Chad Delorme admitted that he had been drinking at the party but indicated that the events of the evening, nevertheless, were clear to him. He also admitted that he had left out certain information when he gave his statement to the police about the incident and had changed certain parts of it later.

At the time he testified, he was charged with second degree murder, attempted murder and aggravated assault arising from the incident and was waiting for those matters to proceed. [ 13 ] D.B. testified she purchased drugs about five times that evening and Mr. Keepness, for the most part, gave her the money to buy the drugs. She testified that the second last time she purchased drugs Mr. Keepness accompanied her in the vehicle for the purchase. He then learned Bobby Lavallee was the seller of the drugs.

On the way back from the purchase he spoke to the driver, Cody Montour, about returning to the Athol Street house to get their money back. D.B. testified Mr. Keepness told everyone at the party to go back to Bobby Lavallee’s and get the money back. Thereafter, he gave her $40.00 to buy more drugs and said “the boys” were going to “rush him,” which she took to mean they were going to beat Bobby Lavallee up or something like that. She testified Chad Delorme got beaten up for leaving “the boys” at the Athol Street house.

In cross-examination, D.B. admitted she had taken ecstasy that evening but denied it affected her memory of events. Although D.B. did not identify Mr. Keepness in a police photo line-up, she did identify him in court. She knew that McNabb, Pewean, Keepness and Keepness were members of the NSK gang. At the time she testified, D.B. was charged with manslaughter arising from this incident. [ 14 ] Cody Montour testified that in June 2007 Mr. Keepness was the leader of the NSK in the community and the leader of the group that night. He testified Mr.

Keepness instructed D.B. to go back to the Athol Street house and ask to buy more drugs and advised that “the boys” would rush the house. He also testified that Mr. Keepness was the person who instructed specific individuals at the party to go to the Athol Street house to get the money and drugs. He stated that Mr. Keepness told “the boys” to do this and that they all agreed. However, when it was time to leave, Cody Montour pretended he had to go to the bathroom and did not go to the Athol Street house with the group that went.

Cody Montour, like many others at the party, was drinking and had consumed drugs that night as well. [ 15 ] I turn now to the facts and background concerning the sentence appeal. On July 27, 2011, Mr. Keepness was sentenced on the manslaughter and aggravated assault convictions. Between the time he was arrested for the crimes in June 2007 and the time he was sentenced for them in July 2011, and while he was in custody, he had also served sentences on prior criminal convictions. Four prior convictions of Mr.

Keepness factored into the trial judge’s determination of the credit for time spent in pre-sentence custody. [ 16 ] On June 10, 2008, Mr. Keepness was convicted and sentenced to 18 months imprisonment for assault with a weapon of a corrections officer in the Prince Albert Correctional Centre in September 2007, after he was arrested for the charges in this case. He received no credit for time spent on remand at the time he was initially sentenced for that offence. [ 17 ] On June 19, 2009, Mr. Keepness was convicted of the following offences:

• a June 2006 assault on a corrections worker at the Regina Provincial Correctional Centre; • an April 2007 charge for possessing a weapon dangerous to the public peace at the Regina Provincial Correctional Centre; and • a November 2007 assault on an inmate at the Provincial Court building in Regina after he was arrested for the charges in this case. [18] The judge who sentenced him on June 19, 2009, concluded that were it not for the time he had already spent in custody, a totalsentence of 38 months imprisonment would be appropriate.

However, the judge was persuaded to reduce the sentence by 24 months aftergiving Mr. Keepness a double time credit for the year he spent on remand between June 2007 (when he was arrested on the offences inthis case) and June 2008 (when he was sentenced for assaulting the corrections officer). This reduced his sentence to 14 months to beserved consecutive to the 18 months he received June 10, 2008. This resulted in him serving a total sentence of 32 months while in pre-sentence custody on the offences in this case.

This sentence was served, except for court appearances in Regina when he was in custodyat the Provincial Correctional Centre, at the Prince Albert Penitentiary. [19] Details of Mr. Keepness’s behaviour while incarcerated and the conditions of his incarceration were outlined in documentationfrom the institutions where Mr. Keepness was in custody. He was transferred to the federal penitentiary system even though he was notserving a federal sentence of imprisonment.

This transfer occurred because of the risk he posed to the Provincial Correctional Centrestaff, which could not be managed by Provincial Correctional authorities. After 2007, other than when he was appearing in court inRegina, Mr. Keepness was held in the penitentiary in Prince Albert until he was sentenced on his manslaughter and aggravated assaultcharges in July 2011. [20] In addition to the September 2007 assault with a weapon and the November 2007 assault mentioned earlier, Mr. Keepness’sconduct in prison while on remand from 2008 to 2011 for the offences in this case was problematic. The following is a short

summary: 1. Mr. Keepness, while in the Prince Albert Correctional Centre, on June 6, 2008, appeared to threaten a correctional worker; 2. After Mr. Keepness was sentenced for stabbing a corrections officer, Mr. Keepness suggested to another inmate that they shouldsexually assault a female correctional worker; 3. On June 14, 2008, Mr. Keepness appeared to threaten an aboriginal corrections worker; 4. When at the Regina Provincial Correctional Centre on July 18, 2008, Mr. Keepness lied to a corrections worker in order to beescorted into the medical unit and once there tried to attack another inmate; 5.

Staff at the Regina Correctional Centre were forced to take extraordinary security precautions when dealing with Mr. Keepness; 6. On September 16, 2008, Mr. Keepness tied the bars on his cell shut with a sheet and flooded his cell; 7. On September 19 to 20, 2008, Mr. Keepness threatened to assault or stab a guard if he did not get his exercise time; 8. In November 2009 he was charged with assaulting another inmate; and 9. On December 2, 2009, the day Mr.

Keepness was convicted on the charges in this case and taken back to the Regina CorrectionalCentre after court, he caused property damage, screaming and throwing items and had to be subdued with pepper spray. He remained insegregation until sometime after January 18, 2010, for his own and the institution’s protection. III. Decision of the Trial Judge [21] The trial judge extensively reviewed the testimony of the various witnesses called by the Crown and the defence. Herdeterminations with respect to the evidence of D.B., Chad Delorme and Cody Montour are central to Mr.

Keepness’s conviction appeal. [22] After devoting 21 paragraphs of her decision to recounting and analyzing Cody Montour’s testimony, the trial judge concluded thefollowing: 34 Defense counsel suggests that Mr. Montour’s evidence is generally unreliable because he was intoxicated from alcohol and drugson the night of the incident and was just guessing about much of the evidence. However, contrary to defence counsel’s suggestion, Ifound Mr. Montour’s evidence to be generally reliable. He acknowledged that he was feeling the effects of the alcohol, added to that ofecstasy.

He acknowledged that he did not have a continuous memory of the night, but he did remember significant events. Mr. Montourtestified that he went to the Lavallee door on one occasion. He admitted he was not exactly sure where he was standing. But he knew thathe saw the man who was selling the drugs. Mr. Lavallee confirmed that a man came to the door with D.B. on the occasion prior to thebreak-in. While Mr. Montour acknowledged he was intoxicated that night, I am satisfied that he was not so intoxicated that he could notrecall significant events. Mr.

Montour had the presence of mind to pretend that he had to go to the bathroom to avoid participating in acrime. Mr. Montour was clearly not so intoxicated that his reasoning was impaired that night. Mr. Montour was a recent addition to thisgroup and he was sufficiently cognizant, rational and logical to find a way not to participate in the crime. He said he had a bad feelingand that he didn’t want to go along, and he deployed an excuse to avoid the situation. Mr. Montour’s evidence is generally consistentwith Mr. Lavallee’s evidence and with the admitted facts. As well, Mr.

Montour’s evidence about events prior to the evening, includingthe leadership of Shawn Keepness, were not subject to intoxication. I find Mr. Montour’s evidence to be generally credible and reliable inrespect of material aspects of the alleged offences. [23] The trial judge devoted 62 paragraphs of her decision to recounting and analyzing the evidence of D.B and Chad Delorme. Shethen instructed herself on the cautions applicable to accepting the evidence of accomplices as set forth in R v Vetrovec, (SCC), [1982] 1 SCR 811 [Vetrovec], and R v Khela, 2009 SCC 4, [2009] 1 SCR 104.

She determined that D.B. and Chad Delorme wereaccomplices to the crime and that she must exercise caution in accepting each person’s evidence because each admitted participation inthe crime and each may have a personal interest in testifying as they did or in thinking they would receive some benefit for providing

such evidence. She made no such finding with respect to Mr. Montour. [24] The trial judge said this with respect to D.B. in light of the Vetrovec caution: 86 After a careful review of the evidence I am satisfied that D.B.’s evidence is the truth. Generally speaking, her evidence wasconsistent within itself and withstood cross-examination.

She recalled the significant events of the night even though she had consumeddrugs and alcohol. 87 In considering the special caution I must give myself, I find there is other evidence supporting D.B.’s testimony and showing it tobe true and this evidence has convinced me beyond a reasonable doubt that D.B.’s testimony is true and that it is safe to rely upon it. [25] The trial judge found confirmation of D.B.’s testimony in the evidence of Bobby Lavallee and Cody Montour as well as theadmissions made by Mr.

Keepness and concluded: 91 I am satisfied beyond a reasonable doubt that the evidence of D.B., in material aspects, is credible and reliable. [26] With respect to Chad Delorme, the trial judge said this in light of the Vetrovec caution: 92 Likewise, as I stated, I must caution myself in the same way in relation to the evidence of Chad Delorme. After a very carefulreview of all of the evidence, I am satisfied that Delorme’s evidence, standing alone, is the truth and that it is safe for me to rely on thistestimony, even if there was no supporting or confirmatory evidence of his testimony. I found Mr.

Delorme’s evidence to be generallycredible and I am satisfied that his explanation as to why he left details out of his statement to police to be believable. I accept that Mr.Delorme was scared of the accused and the principal offenders and was scared because he was charged with murder and was scared inrelation to the position he found himself in when he was arrested. 93 In considering the special caution, I find there is other evidence supporting Mr. Delorme’s testimony and showing it to be trueand this evidence has convinced me beyond a reasonable doubt that Mr.

Delorme’s evidence is true and it is safe to rely on it. [27] The trial judge found confirmation of Chad Delorme’s testimony in the evidence of Bobby Lavallee, Cody Montour and theadmissions made by Mr.

Keepness and concluded: 97 I am satisfied beyond a reasonable doubt that the evidence of Chad Delorme, in material aspects, is credible and reliable. [28] The trial judge determined, based on the evidence as a whole, that the four elements necessary for the accused to be guilty of theoffences charged as a party under s. 22 of the Criminal Code, i.e., persuasion, commission of the offence, consequence and knowledge,were proven.

However, she placed substantial reliance on the evidence of D.B. and Chad Delorme as well as that of Cody Montour whenshe made that determination. [29] The trial judge also found, based on the evidence as a whole, that Mr. Keepness was a party to the offence under s. 21(2) of theCriminal Code and that the elements of agreement, commission of the offence and knowledge were present. Again, as part of thisdetermination, she placed substantial reliance on the evidence of D.B., Chad Delorme and Cody Montour. [30] As a result, she convicted Mr. Keepness of all three offences. [31] The trial judge determined Mr.

Keepness was a long-term offender. She was satisfied that he posed a substantial risk to reoffendviolently and he was likely to cause serious injury to other persons in the future. She was satisfied that there was a reasonable possibilityhis risk would become manageable in the community if he participated in treatment. The Crown requested a sentence of 18 yearsimprisonment in addition to the pre-sentence custody, Mr.

Keepness argued for a range of 5-7 years. [32] The trial judge reviewed the relevant purpose, objectives and principles of sentencing, including the considerations set forth in R vGladue, (SCC), [1999] 1 SCR 688, the circumstances of the offences, Mr. Keepness’s background, and his criminaland institutional history. The trial judge also reviewed the evidence of Mr. Keepness and witnesses called with respect to the sentencing,including a psychiatrist who had examined Mr. Keepness. [33] The trial judge concluded that Mr.

Keepness’s degree of culpability was greater in some respects than that of McNabb, Pewean,Keepness and Keepness, and in other respects less and before considering the question of pre-sentence detention, she found a globalsentence of 15 years incarceration to be appropriate: 192 In the circumstances, here, I think little more can be said about considerations for sentence than were set out by the Court ofAppeal in the sentencing decision relating to the co-accused.

The circumstances with respect to Shawn Keepness and the other co-accused have some differences, although not many. 193 In relation to the circumstances of the offence, Mr. Keepness was the most sober of the group on the night of the offences.However, all of the people involved formed an intention in common to rob the house. It was not Mr. Keepness’ idea, but all of theaccuseds’ intention. However, it was Mr. Keepness that instructed which of the individuals were to go to the house and he wasinstrumental in the particulars of the plan to get the others into the house.

Certainly, violence was foreseeable and that is the basis uponwhich he was convicted. But Mr. Keepness did not instruct specific violence or suggest any specific assault and did not suggest thatanyone should stab the occupants. It was the immediate actions and decisions of the four accused that went into the house that causedthe death and assault on the victims. The culpability of Mr. Keepness, in some respects, could be said to be greater than the co-accused,but in other respects, it could be said to be less.

194 Mr. Keepness’ personal circumstances, including those Gladue factors that must be considered, are similar to his co-accused as Ihave indicated in my references to the Court of Appeal decision. The principles of sentencing considered by the Court of Appeal insentencing the co-accused are the same principles and considerations that are relevant here. Those considerations lead me to similarconclusions as those of the Court of Appeal. 195 In the circumstances, I find a global sentence of 15 years on the manslaughter charge, having regard to all of the principles ofsentencing and the circumstances of Mr.

Keepness, to be an appropriate sentence, and seven years on each of the aggravated assaults tobe served concurrently, to be appropriate. [34] The trial judge went on to consider Mr. Keepness’s pre-trial custody and awarded credit for the 32 months Mr. Keepness spent incustody serving other sentences. Her decision respecting the pre-trial custody credit is as follows: 197 Mr. Keepness was arrested on June 8, 2007. He has been held on remand on these charges since that time, serving four years andalmost two months on remand. However, in the interim he has been sentenced for several other offences.

Despite the fact that he hasbeen sentenced for other offences, he continued to serve all of his time on remand. 198 On June 10, 2008, Mr. Keepness was sentenced in relation to a charge of assault with a weapon on a corrections officer. He wasnot given any credit for any remand time in imposing that sentence. The sentence imposed on that date was 18 months. On June 19,2009, he was sentenced for the assault on the female corrections officer, the assault on another inmate and possession of a weapon in hiscell. The court found that the appropriate sentence for those three offences was a total of 38 months but Mr.

Keepness was given creditfor the time he had spent on remand from June 8, 2007 to June 10, 2008. The sentencing judge gave him double credit of 24 monthsremand time and reduced his sentence to 14 months, consecutive to the other 18 month sentence he was serving. He was, in total,sentenced to 32 months on those other charges while serving pre-sentencing custody on the predicate offences. 199 As stated, Mr. Keepness has spent all of the time prior to this sentence on remand despite the fact that he has received the othersentences.

He has received no programming or rehabilitation during this period of time. … 203 Mr. Keepness has spent all of his pre-sentencing custody on remand, firstly at a Provincial Correctional Centre and then at afederal penitentiary, even though he was sentenced to 18 months and 14 months on other offences during that time. Mr. Keepness wasalready given 2:1 credit for the period of June 8, 2007 to June 10, 2008 when he was sentenced to 14 months incarceration on the oneother offence. If Mr.

Keepness had not been on remand on the predicate offences, he would have gained credit towards parole eligibilityor statutory release on those other sentences and would not likely have served the full 32 months on those offences, but would morelikely have been released after having served, at most, two-thirds of those sentences (21 months). He would also have been eligible forprogramming and rehabilitation in relation to those offences as well had he been serving the sentences as a regular inmate. But he wasnot able to access any such rehabilitation.

In my view, he should be given some credit for the 21 months which represents two- thirds ofthe 32 month sentence, because he served it as a remand prisoner and not as a regular prisoner. 204 In my view, it would be appropriate to give credit of one for one for the period of June 11, 2008 to March 11, 2010 (the 21months that he would have served as a regular serving prisoner on the other offences) and two for one credit for the 16.5 months (for theperiod March 12, 2010 to July 27, 2011) that he was essentially solely on remand on the predicate offences.

This would be the equivalentof a sentence of four and one-half years. [35] In total, the trial judge awarded 4 years and 6 months credit for 37.5 pre-sentence months of custody, 32 months of which Mr.Keepness was a serving prisoner for unrelated offences. Mr. Keepness was consequently sentenced to 10 years and 6 months on themanslaughter and 7 years on each of the aggravated assaults to be served concurrently. He was also ordered to comply with a 10 yearcommunity supervision order. IV. Standard of Review [36] Mr. Keepness asserts that the trial verdicts are unreasonable.

In R v R.P., 2012 SCC 22, [2012] 1 SCR 746 [R.P.], the SupremeCourt of Canada expressed the standard of review under s. 686(1)(a)(

i) in these terms: 9 To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC),[1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that aproperly instructed jury or a judge could reasonably have rendered.

The appellate court may also find a verdict unreasonable if the trialjudge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on bythe trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise beencontradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v.

Beaudry, 2007SCC 5, [2007] 1 S.C.R. 190). 10 Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact.

A court ofappeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7). [emphasis added] [37] A trial judge’s factual findings are entitled to deference unless it is established that they are founded on palpable and overridingerrors of fact, R v Gagnon, 2006 SCC 17 at para 10, [2006] 1 SCR 621; R v François, (SCC), [1994] 2 SCR 827.

Inconsidering the reasonableness of a verdict, an appellate court may, to a limited extent, examine and consider the weight of the evidence

but cannot substitute its own view of the evidence. [38] The Crown seeks leave to appeal the sentence pursuant to s. 676(1)(

d) of the Criminal Code. The standard of review for sentenceappeals is set forth in R v Shropshire, (SCC), [1995] 4 SCR 227, R v M.(C.A.), (SCC), [1996] 1 SCR500 [M.(C.A.)], and R v L.M., 2008 SCC 31, [2008] 2 SCR 163 [L.M.]: “absent an error in principle, failure to consider a relevant factor,or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentenceis demonstrably unfit” (M.(C.A.) at para. 90). These cases reiterate the principle of deference to the decision of the sentencing judgeregarding the length of sentence.

That standard of review is also applicable to a sentencing judge’s decision to award credit for pre-sentence custody pursuant to s. 719(3): see R v Francis (2006), (ON CA), 207 CCC (3d) 536 (Ont CA) at para 6. V. ISSUES [39] The issue which Mr. Keepness raises with respect to his conviction appeal can be fairly stated as whether the verdicts of the trialjudge are unreasonable. [40] The Crown on its sentence appeal raises the fitness of the sentence and the trial judge’s

interpretation of s. 719(3) of the CriminalCode and the appropriateness of the pre-trial custody credit given. VI. Analysis A. Are the verdicts of the trial judge unreasonable? [41] Mr. Keepness makes the general argument the verdicts are unreasonable because the evidence in its totality is insufficient to foundthe convictions.

He specifically argues as well that the trial judge did not properly weigh the evidence of D.B., Cody Montour and ChadDelorme on direct examination, in relation to their cross-examination in accordance with Vetrovec. [42] Although he admits that the trial judge properly stated the law respecting the Vetrovec caution, Mr. Keepness argues such a cautionwas not actually exercised with respect to those three witnesses. He argues the trial judge should have determined that Cody Montourwas an accomplice and cautioned herself with respect to his evidence as well. Mr.

Keepness submits that inconsistencies in the evidenceof D.B., Cody Montour and Chad Delorme on critical issues merit a reconsideration of their credibility by this Court. [43] To succeed on this ground, Mr. Keepness must demonstrate that a properly instructed trier of fact acting judicially could not havereasonably convicted the accused considering the evidence as a whole: R v W.(R.), (SCC), [1992] 2 SCR 122 (QL) atparas 16-22; R v Burke, (SCC), [1996] 1 SCR 474 at para 4; R v W.H., 2013 SCC 22 at paras 27 and 28, [2013] 2 SCR180. With respect to the findings of credibility, Mr.

Keepness must demonstrate that the trial court’s assessment of credibility cannot besupported on any reasonable view of the evidence (R.P. at para. 10). [44] The principles governing a Vetrovec caution for unsavoury witnesses have been recently set out in R v Worm, 2014 SKCA 94(paras 13-19), and R v Brass, 2007 SKCA 94, [2007] 11 WWR 191 [Brass], and I need not repeat them in detail. However, a few pointsbear repeating.

A trial judge has a discretion to decide whether the evidence of any witness – not just accomplices – is for some reasonuntrustworthy to such an extent that a Vetrovec caution is necessary (R v Bevan, (SCC), [1993] 2 SCR 599 at 610-611). [45] With respect to determining if testimony is inherently untrustworthy and the exercise of a trial judge’s discretion to determine if aVetrovec caution is necessary, Jackson J.A. in Brass stated: 24 Based on Vetrovec and the subsequent jurisprudence, I conclude that to determine whether an accomplice’s testimony may beinherently untrustworthy, a court looks at factors such as these: (

i) whether the witness is facing charges; (ii) whether the witness openlyacknowledges participation in the crime; (iii) whether the witness has anything to gain or lose by testifying; (iv) whether the witness istestifying to deflect blame on another; (

v) whether the witness is protecting another; (vi) whether there is some other reason why thewitness would seek to blame another or minimize his or her own participation. [46] The trial judge was aware of the inconsistencies in the evidence given by the three witnesses. She did, however, specifically findeach of them to be credible in crucial areas. The trial judge devoted a substantial part of her decision to analyzing, considering andweighing those inconsistencies.

The mere existence of internal inconsistences in the testimony of a witness or inconsistencies betweenwitnesses is not itself determinative of the credibility of the witness or the accuracy or reliability of their testimony. Much depends on thenature of the inconsistencies, their relationship to the crucial elements the prosecution has to prove and the presence or absence ofconfirmatory evidence of the witnesses’ testimony on crucial issues. Despite the fact that the three witnesses implicating Mr.

Keepness inplanning and executing the robbery did not offer consistent versions about every detail of the planning and execution, nevertheless, all ofthem clearly and positively implicated Mr. Keepness as a party to the planning and execution of the crimes. [47] The trial judge properly applied the Vetrovec caution to the evidence of D.B. and Chad Delorme. She thoroughly reviewed theirevidence in the context of other testimony and gave supportable reasons why she found their evidence credible and reliable despite anyinconsistencies. The trial judge was satisfied that D.B.’s evidence was the truth.

She was satisfied of the ability of each to remember theevents of that evening. She was satisfied that there was confirmatory evidence of the testimony of D.B. She was also satisfied that ChadDelorme’s evidence, even standing alone, was truthful. She found confirmatory evidence of his testimony. She concluded that theevidence of these two witnesses was truthful and reliable. Given the standard of review, I cannot say that she erred in this respect. [48] The trial judge did not caution herself with respect to the testimony of Cody Montour. In my view, however, such a caution was notrequired.

It was clear that Cody Montour, while he may have been present during the discussion of the plan and perhaps even intendedinitially to participate, chose not to go and avoided any involvement. Cody Montour was left with a bad feeling about what was going tohappen and pretended to be sick. He was not charged with any offence arising out of the activities that evening. The trial judge wascorrect in not treating him as an accomplice.

She, as well, gave supportable reasons why she found his evidence credible and reliable. [49] I can find no error in the trial judge’s statement of the Vetrovec principles or her application of those principles with respect to the

evidence of D.B., Chad Delorme or Cody Montour. Moreover, I cannot find error in the manner in which she weighed the evidence of each such witness in relation to their testimony in examination-in-chief and cross-examination. Her determinations regarding the credibility of these witnesses are amply sustainable on a reasonable view of the evidence and deserve deference in accordance with the applicable standard of review. Likewise, the evidence on a whole is sufficient to reasonably convict Mr. Keepness given the dicta in R.P. I cannot say the verdicts are unreasonable. B.

Did the trial judge err by imposing a sentence that was unfit? [ 50 ] Mr. Keepness appeals on the basis that the sentence is disproportionately high in relation to his involvement in the crime as compared to McNabb, Pewean, Keepness and Keepness and on the basis that he was not able to control the behavior or outcome of them. He argues that his culpability is less as a result and that the principle of parity would be violated if his sentence is elevated beyond 15 years less remand time. He argues that if his conviction appeal is unsuccessful, the sentence imposed by the trial judge ought to be upheld.

In this respect he argues that the trial judge appropriately dealt with the pre-trial custody credit. [ 51 ] The Crown argues that the trial judge should have imposed a more severe sentence on Mr. Keepness than what was imposed on McNabb, Pewean, Keepness and Keepness. The Crown submits that the trial judge erred when she concluded that Mr. Keepness’s degree of responsibility and moral culpability was roughly equivalent to that of the others involved in the offence, thereby violating the principles of proportionality and parity.

In this respect, the Crown asserts that the crimes would not have occurred if he had not approved of the whole course of action that night. The Crown argues that Mr. Keepness was the leader of the Native Syndicate Killers and he exercised almost total control over the others who committed the break and enter, both before and after the criminal enterprise.

The Crown also argues that the trial judge reasoned as if the absence of evidence that he instructed the others to stab or beat people lowered his moral culpability as compared to McNabb, Pewean, Keepness and Keepness. [ 52 ] The Crown argues the following aggravating factors justify a more severe sentence: Mr. Keepness was in the community awaiting trial on other charges at the time those offences occurred; he had a more serious history of violence than McNabb, Pewean, Keepness and Keepness; and, he continued to commit violent offences from the moment he was apprehended in June 2007 to his sentencing.

The Crown argues that Mr. Keepness’s risk to re-offend violently clearly distinguishes him from the others involved in the offences and there were, in Mr. Keepness’s case, no mitigating factors such as in the case of the others who pleaded guilty to charges arising out of the same incident and had made at least some effort to turn their lives around. [ 53 ] The trial judge considered a number of general factors before settling on a sentence of 15 years for Mr. Keepness. These factors included the following: 1. generally speaking, Mr.

Keepness’s criminal record was similar to the others, although he had more assault convictions; 2. there is no principle that requires the sentence imposed on co-offenders to be the same; 3. the sentence of each person found a party to an offence is determined in accordance with general sentencing principles; and 4. the sentencing considerations set out by this Court in the appeals relating to Pewean, Keepness and Keepness were canvassed ( R v Keepness , [ Keepness, 2010 ]). [ 54 ] With this in mind, the trial judge also considered specific factors related to Mr.

Keepness’s involvement and situation: 193 In relation to the circumstances of the offence, Mr. Keepness was the most sober of the group on the night of the offences. However, all of the people involved formed an intention in common to rob the house. It was not Mr. Keepness’ idea, but all of the accuseds’ intention. However, it was Mr. Keepness that instructed which of the individuals were to go to the house and he was instrumental in the particulars of the plan to get the others into the house. Certainly, violence was foreseeable and that is the basis upon which he was convicted. But Mr.

Keepness did not instruct specific violence or suggest any specific assault and did not suggest that anyone should stab the occupants. It was the immediate actions and decisions of the four accused that went into the house that caused the death and assault on the victims. The culpability of Mr. Keepness, in some respects, could be said to be greater than the co-accused, but in other respects, it could be said to be less. 194 Mr.

Keepness’ personal circumstances, including those Gladue factors that must be considered, are similar to his co-accused as I have indicated in my references to the Court of Appeal decision. The principles of sentencing considered by the Court of Appeal in sentencing the co-accused are the same principles and considerations that are relevant here. Those considerations lead me to similar conclusions as those of the Court of Appeal. 195 In the circumstances, I find a global sentence of 15 years on the manslaughter charge, having regard to all of the principles of sentencing and the circumstances of Mr.

Keepness, to be an appropriate sentence, and seven years on each of the aggravated assaults to be served concurrently, to be appropriate. [ 55 ] The sentencing landscape for manslaughter was thoroughly reviewed by Jackson J.A. in Keepness, 2010 ; I need not repeat it here. The sentence imposed by this Court on Pewean, Keepness and Keepness in Keepness, 2010 for manslaughter took into account a variety of factors, some mitigating, in arriving at 15 years incarceration as a fit sentence for each of them.

The trial judge specifically relied on the discussion of the principles and cases relevant to manslaughter sentences found in Keepness , 2010 , and imposed a 15 year sentence

on Mr. Keepness on the basis that after balancing all the factors such a sentence was appropriate. The trial judge appropriately referred to s. 718.1 of the Criminal Code that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” and s. 718.2 (

b) respecting parity: “a court that imposes a sentence shall also take into consideration the following principles … a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. [ 56 ] The trial judge correctly stated that Mr. Keepness was convicted on the basis that violence was foreseeable as a result of his instructions to go to the house, notwithstanding that specific violence was not instructed. It may be fairly stated that the trial judge clearly considered the relative culpability of Mr.

Keepness as compared to Pewean, Keepness and Keepness and concluded that in all the circumstances it was the same. I cannot say she erred in this respect. [ 57 ] Additionally, while it is true Mr. Keepness may not have been able to point to the same mitigating factors as Pewean, Keepness and Keepness and this might have justified a marginally higher sentence, nevertheless the sentence imposed on him is not a marked departure from the sentences customarily imposed on similar offenders committing similar offences ( L.M. at para. 36 ) . [ 58 ] Although there are individual differences in the circumstances of Mr.

Keepness as compared to Pewean, Keepness and Keepness, they are, in my view, not substantial when looked at in the larger context. For example, Mr. Keepness had been convicted of 38 prior criminal offences. Approximately one-third were for violence or weapons related offences. Dallas Keepness had 33 convictions including five for violence when he was sentenced for the incident. Michael Keepness had 19 convictions, four for violence when he was sentenced. James Pewean had 41 convictions, five for violence. I cannot say the trial judge erred by determining that Mr.

Keepness’s criminal record was similar to those of Pewean, Keepness and Keepness. [ 59 ] The trial judge was also clearly aware of Mr. Keepness’s general propensity for violence. The forensic psychiatrist that examined Mr. Keepness testified that he was at a high risk to commit further violent offences because he had many longstanding and entrenched risk factors relating to his personality or character. She also acknowledged this was borne out while he was incarcerated (decision para. 162). The Crown’s point that Mr.

Keepness’s risk to re-offend distinguishes him from the others involved in the offence is addressed by the imposition of the long-term offender sentence which attempts to manage his violent propensities while he is incarcerated and after. [ 60 ] The weighing of all the factors and the similarities and differences between Mr. Keepness and Pewean, Keepness and Keepness is the purview of the sentencing judge and the result of that weighing is entitled to deference in the absence of error. The sentence imposed on Mr.

Keepness by the trial judge is not demonstrably unfit in all the circumstances taking into consideration his involvement in the crimes, his circumstances, the sentencing framework enunciated in Keepness, 2010 , and the sentencing principles and objectives set forth in the Criminal Code . [ 61 ] In

summary, I cannot say that the trial judge committed an error in principle or that she failed to consider a relevant factor or overemphasized appropriate factors in that respect in arriving at a global sentence of 15 years for Mr. Keepness (before credit for pre- trial custody). In view of all of this, given the standard of review set forth in M.(C.A.) , I cannot say that the trial judge erred. C. Did the trial judge err by misinterpreting s. 719(3) of the Criminal Code and by allowing the pre-sentence custody credit she did? [ 62 ] The trial judge gave Mr.

Keepness a total of 4 years and 6 months credit for pre-trial custody. She justified the credit she gave on the following bases: 1. Mr. Keepness was not given any remand credit by the judge who sentenced him to 18 months jail for the assault on the corrections officer at the Prince Albert Correctional Centre; 2. A fit sentence for Mr. Keepness’s convictions for the June 2006, April 2007 and November 2007 incidents was a total of 38 months in jail but he had received 24 months credit for remand time between June 8, 2007, and June 10, 2008, reducing his sentence to 14 months jail; 3. Mr.

Keepness, despite being sentenced to a total of 32 months in jail as a result of the convictions mentioned in (1) and (2) above, spent all of it on remand awaiting trial on the charges in this case and during that time received no programming or rehabilitation; and 4. Had Mr. Keepness not been on remand for the offences in this case, he would have (

a) gained credit towards parole eligibility or statutory release on the total 32 month sentence and would likely have been released after serving, at most, two-thirds of those sentences (21 months), and (

b) been eligible for programming and rehabilitation in relation to those offences. [ 63 ] As a result, she concluded that Mr. Keepness should be given a 1:1 credit for the 21 month period of June 11, 2008, to March 11, 2010, because he served it as a remand prisoner.

She gave a 2:1 credit for the 16.5 month period of March 12, 2010 (the day after he would, according to the trial judge, have been notionally released after serving two-thirds of the 32 months), to July 27, 2011, on the basis that he was solely on remand for the offences in this case during that period of time. [ 64 ] In the usual case where pre-trial custody credit is given, that credit is for the pre-trial custody which the accused has served for the offence under consideration at the sentencing. However, as I will explain Mr.

Keepness’s situation is not a usual case. [ 65 ] The Crown primarily argues that the trial judge’s analysis and reasoning respecting pre-trial custody credit contravenes s. 719(3) of the Criminal Code and s. 6(4) of the Prisons and Reformatories Act , RSC, 1985, c P-20. [ 66 ] Section 719(3) of the Criminal Code , as it read prior to amendments in February 2010, applies to these offences:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence . [emphasis added] [ 67 ] The germane sections of the Prisons and Reformatories Act provide:

(1) Subject to subsection (7.2), every prisoner serving a sentence … shall be credited with 15 days of remission of the sentence inrespect of each month … during which the prisoner has earned that remission by obeying prison rules and conditions governingtemporary absence and by actively participating in programs, other than full parole, designed to promote prisoners’ rehabilitation andreintegration as determined in accordance with any regulations made by the lieutenant governor of the province in which the prisoner isimprisoned. …

(4) Every prisoner who, having been credited with earned remission, commits any breach of the prison rules is, at the discretion ofthe person who determines that the breach has been committed, liable to forfeit, in whole or in part, the earned remission that stands tothe credit of the prisoner and that accrued to the prisoner after July 1, 1978. [68] The Crown further argues that the trial judge has erred in three ways: (

a) by giving credit for offences other than those before her,(

b) in assuming that Mr. Keepness would have gained credit and would not likely have served any more than two-thirds of the total 32month sentence he was serving, which he received in June 2008 and June 2009, and (

c) in assuming that he would have been eligible forprogramming. The Crown’s submissions are supported by the wording of s. 719(3). [69] After referring to s. 719(3), the trial judge properly stated the rationale for giving pre-trial custody credit: 200 … It is within the discretion of the trial judge to determine whether or not to allow any credit for time served in custody and howmuch credit to allow. However, generally credit should be allowed absent good reasons for doing otherwise. The Ontario Court ofAppeal in R. v. Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (Ont. C.A.), [1996] O.J.

No. 4468 (QL) discussed theonerous aspect of pre-trial custody and the rational for giving credit at p. 721: Although this

section is discretionary, not mandatory, in my view a sentencing judge should ordinarily give credit for pre-trial custody.At least a judge should not deny credit without good reason. To do so offends one’s sense of fairness. Incarceration at any stage of thecriminal process is a denial of an accused’s liberty. Moreover, in two respects, pre-trial custody is even more onerous than post-sentencing custody. First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory releasedo not take into account time spent in custody before trial (or before sentencing).

Second, local detention centres ordinarily do notprovide educational, retraining or rehabilitation programs to an accused in custody awaiting trial. For these reasons, pre-trial custody iscommonly referred to as “dead time”, and trial judges, in deciding on an appropriate sentence, frequently give credit for double the timean accused has served. [70] In my view the trial judge’s granting of pre-trial custody credit was not in accord with s. 719(3) properly interpreted and theexisting jurisprudence related thereto. I will explain. [71] The starting point for statutory

interpretation is the “modern rule” described by Iacobucci J. in Re Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1 SCR 27: 21 Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997);Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [72] The grammatical and ordinary sense of the words “an offence” and “the offence” found in s. 719(3) is that both refer to the sameoffence, i.e., the offence for which the accused has been convicted and is being sentenced. As well, the time spent in custody for whichcredit is being considered must be as a result of that same offence.

The incarceration must therefore be caused by the offence for whichthe accused is being sentenced. This makes sense because as alluded to in R v Rezaie (1996), (ON CA), 31 OR (3d)713 (CA) at p 721, pre-trial custody causally connected to an offence is unfair without some credit or compensation. [73] The words “convicted of an offence” and “as a result of the offence” have been interpreted as referring to the same offence in R vWilson, 2008 ONCA 510, 236 CCC (3d) 285 [Wilson]. There, the accused was arrested but released on charges of importing cocaine. Hewas then arrested on robbery charges and held.

He was thereafter convicted on the cocaine charges. Between the date of his arrest onrobbery charges and the sentencing for those charges he fully served the sentence on the cocaine conviction. At the sentencing for therobbery charges, counsel agreed that no credit be given for time serving the sentence for the cocaine conviction. By the time the accusedappealed his robbery sentence the cocaine conviction had been set aside. The accused appealed the decision of the trial judge to not givehim credit on the robbery sentencing for the cocaine sentence he served while being held on the robbery charges.

The Court dismissedthe appeal. Doherty J.A. dissented but not on the

interpretation of s. 719(3). He said this about the meaning of s. 719(3) of the CriminalCode: 24 I agree with Crown counsel that on a plain reading of s. 719(3) the phrase “convicted of an offence” and the phrase “as a result ofthe offence” must refer to the same offence or offences. Section 719(3) is directed to situations in which a person has spent time incustody prior to sentencing in respect of the offence or offences for which the person is being sentenced.

It was common ground for thetrial judge that part of the time the appellant spent in custody prior to sentencing was attributable to the robbery charges, but that 494days were attributable to an entirely separate offence, the importing cocaine charge. The subsequent quashing of the cocaine conviction,and the still later stay of proceedings in respect of that charge, cannot retroactively change the reason for the appellant’s custody during

the 494 days between February 23, 2004 and July 2, 2005. He was not in jail at that time as a result of the robbery charges; rather, he was serving a sentence on his conviction for importing cocaine. Doherty J.A. concluded that s. 719(3) was inapplicable to the situation. This

interpretation was effectively endorsed by the majority of the Court. [ 74 ] Rosenberg J.A., for the majority, explained why credit for the custody for the cocaine charges was not warranted: 42 The time the appellant spent serving his sentence for importing was not in any sense part of the “punishment” for the robbery offences; that sentence was punishment for the importing offence. To now give the appellant credit for time spent serving a sentence for another offence would distort the sentencing regime. 43 To give effect to this submission would permit accused to “bank” time spent in custody.

If this appellant can use the time he spent serving his drug offence sentence as credit for his robbery sentences, then an accused who years earlier spent time in custody for a prior offence of which he was acquitted should also be able to ask a trial judge to take that prior time into account. I can see no basis in principle for allowing credit in this case, and not giving an accused credit for time spent in custody on a prior offence that was not used up because the accused was acquitted of that prior offence at trial.

Or consider the case of an accused who successfully appeals his sentence and the appeal court reduces the sentence, as it sometimes does, to “time served”. In the future, the appeal court would be asked to indicate what the appropriate sentence was so that the difference between the “appropriate sentence” and the time served could be banked for any future offence that the accused may be found guilty of.

In all of these cases, the offender has spent time in jail in excess of what should have been the case if the system had worked expeditiously and flawlessly. … 45 But, at the end of the day when it comes time to sentence an offender the court can only take into account factors that relate to the particular offence under consideration.

The fact that an offender, like the appellant, still happens to be in the appeal system when a flaw in relation to a totally unrelated conviction comes to light is not, in my view, a principled reason for giving that offender credit for the time he or she spent serving the sentence for that unrelated conviction. [ 75 ] In

summary, the Court concluded in Wilson that a judge is not, when sentencing an accused, entitled under s. 719(3) to credit an accused for time spent serving a sentence previously imposed on another unrelated offence which happens to be the same time the accused is in pre-trial custody for the offence for which the accused is being sentenced. [ 76 ] Jurisprudence from other jurisdictions lends support to such an approach.

In R v A.D.P. , 2005 BCCA 625 , 204 CCC (3d) 61, the time the accused spent in pre-trial custody was credited by the operation of the Criminal Code to the time specified in a conditional sentence order. The issue was whether some of that pre-trial custody time could be credited on a subsequent robbery conviction. Southin J.A., although not referring to s. 719(3) , stated the following at paras. 34 and 35: 34 All that being so, the question for us is whether the learned judge erred in giving the respondent credit on the sentence for robbery for the time the conditional sentence order was running.

In my opinion, she erred. 35 It must be remembered that a conditional sentence is a conditional sentence of imprisonment . To give credit on a sentence for a subsequent offence for time spent in custody which is credited to the conditional sentence seems to me to be wrong in principle and not to be within the contemplation of the framers of the Criminal Code . [ 77 ] In R v Jean , 2008 BCCA 465 , 242 CCC (3d) 569, the accused, who was serving an indeterminate sentence, had his parole suspended as a result of his being charged with sexual assault.

He argued that the 10 months that he was on remand awaiting disposition of the sexual assault charge, although also technically serving his sentence, should have been credited to him, in some way, by the trial judge. The Court, in dismissing his appeal, stated the following at paras. 18, 19, and 22: 18 Mr. Jean accepts that this rationale does not, generally, apply to an accused who is, while on remand, also imprisoned as a consequence of an existing sentence. In such cases, the penal nature of the incarceration is fully justified by the existing sentence. In R. v.

Orr , at paragraph 18, this Court acknowledged that in such situations, it is not typically appropriate to give an accused credit for time spent in custody prior to sentence. 19 Further, in R. v. Steele , 2007 BCCA 12 , 72 W.C.B. (2d) 302, this Court considered the question of whether some credit ought to be given to an accused whose parole is suspended when a new charge is brought against him on the ground that the time is spent in a remand centre is more onerous than time spent in a penitentiary.

The Court accepted that it was within a sentencing judge’s discretion to deny any credit on this basis. … 22 I am not convinced that fairness demands that Mr. Jean receive credit for his remand time. The accused was not in prison simply

to await disposition of charges – his imprisonment is fully justified as a proper penal sanction in respect of the 1982 offences and the breach of his parole conditions. [ 78 ] In R v Orr , 2008 BCCA 76 , 228 CCC (3d) 432 [ Orr ], the Court was dealing with whether it was appropriate for a trial judge to disallow any credit for 7 months of pre-trial custody because the accused was being held as a result of breaches of probation and a driving prohibition.

Although the Court was not dealing with giving credit for a sentence served on an unrelated conviction, Hall J.A. in obiter said the following about the appropriateness of giving credit for time served on other matters: 18 Concerning some diminution from the two-to-one ratio usually credited, it seems to me that the most common circumstance dictating such diminution arises from circumstances where an accused has been incarcerated in an institution where courses and programming are available. This circumstance appears to have been adverted to in the case of Neudorf and in a later case decided by this Court, R. v.

A.A.C. , 2007 BCCA 236 , 241 B.C.A.C. 228. This was also found to be a relevant consideration in R. v. Henricks , 2002 BCCA 124 , 165 B.C.A.C. 93. Of course, there exist cases where an accused may be in custody on other matters serving time where it would not be appropriate to give credit. See for instance R. v. Sidhu , 2005 BCCA 308 , 213 B.C.A.C. 185, and R. v. Greaves , 2007 BCCA 430 , 76 W.C.B. (2d) 26. As Donald J.A. observed in Mills supra , the salient consideration is whether the custody being considered was on account of the offence (or offences) charged.

If an accused is in custody on unrelated matters, the factual foundation for crediting pre- sentence custody does not exist. [ 79 ] The 37.5 months of custody, which was the subject of the trial judge’s exercise of her discretion under s. 719(3) (except for the 5.5 months after February 12, 2011), related to numerous past offences of Mr. Keepness and not the offence for which Mr. Keepness had been convicted and was being sentenced by the trial judge. Mr. Keepness was a serving prisoner for that 32 month custodial term. He was not in prison simply to await disposition of the charges in the usual way.

On this basis, the time he spent in custody cannot be said to be “as a result of the offence” in this case as required by s. 719(3) . Put another way, the 32 months spent serving the other sentences cannot be characterized as being part of the punishment for the manslaughter for which he was convicted. There is no causal connection in that sense. [ 80 ] The net effect of giving credit based and calculated on past offences is to completely negate the 32 month sentence which Mr. Keepness received for those past offences and distort the sentencing process.

This is not an outcome that is fairly contemplated by the application of s. 719(3) . The inapplicability of s. 719(3) to Mr.

Keepness’s pre-trial custody is a complete answer to why he could not receive the credit the trial judge gave him for the 32 months. [ 81 ] That said, in Wilson the majority left open the possibility of the trial judge considering the serving of a sentence for another offence while in pre-trial custody as a mitigating factor in determining a fit sentence for the offence being sentenced. [ 82 ] Rosenberg J.A. stated: 46 That said, I accept that a sentencing judge is entitled to take into account time spent serving another sentence as part of the complete picture for understanding a particular offender.

For most offences there is a very broad range of what constitutes a fit sentence and events that transpired during the time an offender was serving a sentence for another offence might well affect where within that range the offender should be sentenced. For example, if the accused had a serious drug problem that made him a danger to the public, evidence that he received treatment while serving his sentence would be an important consideration in fixing the appropriate sentence.

Or, it may be that an offender could not serve a prior sentence in a facility that had appropriate treatment, training or other rehabilitation opportunities because he was awaiting trial on another charge. In effect, by reason of the fact that he was awaiting trial, the circumstances under which he served the sentence were harsher than they might ordinarily be.

I would think these are circumstances the sentencing judge could take into account, if made aware of them, because they relate directly to the offence for which the offender is being sentenced. [ 83 ] Assuming without deciding that such an approach is correct, I cannot justify any credit for the 32 months Mr. Keepness spent serving other sentences on the basis that the circumstances of serving that sentence are mitigating. In the words of Hall J.A. in Orr , the factual foundation for such mitigation has not been proven.

I will explain. [ 84 ] The trial judge approached the issue of pre-trial credit on the basis that Mr. Keepness had served all of the time since his arrest on remand and assumed that had he not been on remand he would have gained credit toward parole eligibility or statutory release and likely been released after serving two-thirds of his 32 month sentence. [ 85 ] There is, in my view, insufficient evidence to allow a conclusion that Mr.

Keepness’s incarceration for the 32 months was a significant detriment to him so as to mitigate his sentence significantly. [ 86 ] There is equivocal and unsatisfactory evidence respecting whether Mr. Keepness’s lack of programming was due to the fact he was technically on remand for the manslaughter charge. It is undisputed that for the period for which pre-trial custody credits are in dispute, i.e. , the period after June 11, 2008, Mr. Keepness was in custody at the Prince Albert Penitentiary. The witness, Mr. Reilly, testified that Mr.

Keepness would not have received programming while at the penitentiary because he was technically on remand (T95). Yet the trial judge, at para. 59, states that Mr. Reilly also testified it would have been difficult to deliver programming to him in any event even if he was a serving prisoner because he had a maximum security rating. There is therefore some question of whether his remand status prevented him from receiving programming. [ 87 ] It is acknowledged that a prisoner on remand usually does not have the same freedom and opportunities as a serving prisoner and the trial judge assumed that was the case.

Again, the evidence respecting Mr. Keepness’s restriction of freedom within the institution suggests otherwise. The evidence indicates that Mr. Keepness was on the maximum security ranges since he arrived at the penitentiary in 2007. It appears, however, that Mr. Keepness enjoyed many, if not all, of the privileges of the general prison population during the periods of time he was not segregated as a security risk. [ 88 ] Exhibit Binder 3, Tab A Document 19 shows that Mr. Keepness was segregated on April 23, 2007. Tab A, Document 20 of the same binder is dated October 23, 2008, and indicates that Mr.

Keepness was segregated. Tab A, Document 22 dated December 23, 2009,

shows him being placed into segregation again. Tab A, Document 25, a “Review of Offender’s Segregated Status Institutional Review” dated 2010/01/18 discloses on p. 2 that because his risk in the institution could not be managed while he was assigned to his then cell, Mr. Keepness was moved from general population to a segregated cell.

I note parenthetically that under the Corrections and Conditional Release Act , SC 1992, c 20, activities which are likely to jeopardize the security of the penitentiary or which are abusive to a person or intimidates them by threats of violence are serious in nature ( s. 40 ) and can lead to the most serious sanctions including segregation. [ 89 ] Tab A, Document 25, p. 5 also discloses that Mr. Keepness was employed in the institution at the time of his placement into segregation and that it was the intention to place him back into general population after segregation. The document also states that Mr.

Keepness will have access to required programming. Tab A, Document 21 of that same binder at p. 1 indicates that as of Aug 10, 2009, Mr. Keepness was a Unit 6 General Worker with the evaluation period for his work starting Aug 8, 2009. Tab A, Document 22 on p. 2 indicates that prior to segregation Mr. Keepness had a cell in general population. Tab A, Document 26 of that binder discloses that as of Feb 1, 2010, Mr. Keepness was receiving evaluations for his job as a Unit 6 General Worker for the period November 1, 2009 - February 1, 2010. [ 90 ] All of this suggests that while Mr.

Keepness was serving the 32 months, although he was receiving no programming, he was likely in general population apart from the times he was segregated and attempts were being made to gainfully employ him within the institution. It is unlikely on the whole that he was in custody under the restrictive conditions usually caused by remand and assumed by the trial judge. [ 91 ] The trial judge assumed that Mr. Keepness would not, because he was on remand for the manslaughter charge, be eligible for the normal remission and statutory release for the offences for which he was sentenced to 32 months.

These are statutory rights which enure to an offender by virtue of the Prisons and Reformatories Act and the Corrections and Conditional Release Act pursuant to the terms of these Acts . The sentencing of Mr. Keepness for the 32 months and the concomitant warrants of committal for these offences therefore would have triggered the commencement of such rights for the offences for which he was sentenced even if he was technically on remand for the manslaughter offence. [ 92 ] Mr. Keepness would have been eligible to earn credits for early release on the 32 month sentence.

There was evidence before the trial judge that Mr. Keepness was a discipline problem during the 32 months and it may be that he would not have obtained early release as a result even without the overlying custody due to the manslaughter charge. There was no evidence from correctional officials on that point. [ 93 ] Lastly, it is a fair comment that even if Mr.

Keepness would have had exemplary prison behaviour and earned all the credits he could, he would have been prevented from being released after serving two-thirds of his 32 month sentence in any event because he was technically remanded on the manslaughter charge. While this might be a valid point, this in itself would not be so mitigating a factor to make a difference in the fitness of the sentence imposed. [ 94 ] In

summary, even if it was open to the trial judge to consider the conditions and circumstances of Mr. Keepness’s 32 month sentence in mitigation of his manslaughter sentence, nothing in the evidence convinces me that there was a proper factual foundation for this and that Mr. Keepness’s sentence should have been reduced on that basis. [ 95 ] In

summary, the trial judge in exercising her discretion under s. 719(3) erred by focusing on past offences for which Mr. Keepness had been sentenced. Mr. Keepness was a serving prisoner and therefore his pre-trial custody cannot be considered to fall within the purview of s. 719(3) . [ 96 ] The 32 month sentence imposed on the prior charges expired in March 2011. Mr. Keepness stayed in pre-sentence custody for the next 5.5 months before he was sentenced on the manslaughter charges. The trial judge allowed him double time credit for that period.

Given the standard of review there is no basis for interfering with that credit. [ 97 ] Mr. Keepness’s sentence of 15 years is therefore reduced by 11 months and a sentence of 14 years and 1 month is substituted for the sentence of the trial judge. VII. Conclusion [ 98 ] Leave is granted to Mr. Keepness to appeal his conviction and sentence. Those appeals are dismissed. [ 99 ] Leave is granted to the Crown to appeal the sentence. The appeal of the Crown is allowed as indicated previously.

DATED at the City of Regina, in the Province of Saskatchewan, this 29 th day of October, A.D. 2014. “Ottenbreit J.A.” Ottenbreit J.A. I concur “Lane J.A.”

Lane J.A. I concur re Mr. Keepness’s “Jackson J.A.” conviction appeal Jackson J.A. Jackson J.A. (in dissent) I. Introduction [ 100 ] I have had the advantage of reading the reasons of my colleague, and with respect, I am unable to agree with his decision to allow the Crown’s sentence appeal. [ 101 ] This appeal raises several important issues regarding the limits of a sentencing judge’s authority to grant credit for pre-sentence custody under s. 719(3) of the Criminal Code , RSC 1985, c C-46. Crown counsel argues the trial judge erred by crediting Mr.

Keepness with 4.5 years for pre-sentence custody. [ 102 ] For my part, however, the essential issue is whether the standard of review permits appellate intervention because this Court disagrees with the trial judge’s conclusion that Mr. Keepness had no access to programs or rehabilitation measures because he was awaiting trial and sentencing. My colleague has accepted some of the Crown’s submissions, and I too would agree with some of those submissions – but not all.

Fundamentally, I do not accept that the law and the circumstances compel intervention by this Court. [ 103 ] It is important not to lose sight of the fact that the sentence under appeal is 10.5 years – not 15 years. The trial judge started with 15 years, but this Court’s jurisdiction is grounded in an appeal from the sentence actually imposed, and that is 10.5 years. In order to set that sentence aside, this Court must be satisfied that whatever sentence is imposed will be a fit one. [ 104 ] Allowing the Crown’s appeal will result in Mr.

Keepness serving over 18 years in custody from the time he was first apprehended – if he is held to warrant expiry – and approximately four of those years will have been served without access to rehabilitative programming and will not count towards statutory release. If the appeal is allowed, Mr. Keepness will have received credit for some of that time but not all of it. For my part, allowing the Crown’s appeal would not result in a fit sentence. II. Factual Background, Procedural History and Issues [ 105 ] The circumstances of the predicate offences, and Mr.

Keepness’s role in them, are fully set out in the trial decision ( R v Keepness , 2009 SKQB 466 , 348 Sask R 49), and in my colleague’s reasons. Briefly speaking, Mr. Keepness was found guilty of the predicate offences, notably one count of manslaughter and two counts of aggravated assault arising from a home invasion committed by Dean McNabb, James Pewean, Dallas Keepness and Michael Keepness on June 8, 2007.

Shawn Keepness did not commit the actual acts, but he was found guilty as a party by virtue of his role in directing the venture that resulted in the acts of violence committed by others. [ 106 ] When considering the issues in this appeal, it must be noted that Mr. Keepness was apprehended on June 8, 2007 and convicted on December 2, 2009, but he was not sentenced until July 27, 2011 (see R v Keepness , 2011 SKQB 293 , 379 Sask R 68 [ Keepness 2011]).

When he was found guilty, he was serving sentences for other offences he had committed both before and shortly after he was taken into custody for the predicate offences.

Those sentences expired after he was convicted for the predicate offences but before he could be sentenced for them. [ 107 ] The trial judge gave “credit of one for one for the period of June 11, 2008 to March 11, 2010 (the 21 months that he would have served as a regular serving prisoner on the other offences) and two for one credit for the 16.5 months (March 12, 2010 to July 27, 2011) that he was serving solely on remand on the predicate offences” (para. 204).

She found this to be the equivalent of a sentence of four and one-half years, which she subtracted from 15 years to arrive at a sentence of 10.5 years to be served from the date of sentence. [ 108 ] Thus, she gave remand credit for the following periods: (

a) Period A : June 11, 2008 to March 11, 2010. This period is the 21 months of actual time spent while serving two-thirds of the 32 month combined sentence for the offences committed in 2006 and 2007. The trial judge gave Mr. Keepness 1:1 credit for this period. (

b) Period B : March 12, 2010 to February 11, 2011. This period of 11 months is the balance of the 32 month sentence after having served two-thirds. The trial judge gave Mr. Keepness 2:1 credit for this period resulting in a 22 month credit. (

c) Period C : February 12, 2011 to July 27, 2011. This period of 5.5 months is the period from the end of the 32 month sentence until the trial judge released her sentencing decision. The trial judge gave Mr. Keepness 2:1 credit for this period resulting in an 11 month credit. [ 109 ] The Crown challenges the trial judge’s decisions in this appeal in relation to pre-sentence credit on three primary bases. [ 110 ] First, the Crown challenges the trial judge’s

interpretation of s. 719(3) of the Criminal Code , which reads as follows:

Determination of sentence 719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence …. [Emphasis added] [ 111 ] Crown counsel submits that the trial judge erred by interpreting s. 719(3) as if it permitted a court to take into account the time served on sentences for other offences. According to the Crown’s submissions, a sentencing judge has no authority to take into account time spent in remand conditions – apart from s. 71

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