Docket: CACR2220 Gary Nelson Bunn Appellant - v. -, 2014 SKCA 112

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 112 Date: 2014-10-31 Between: Docket: CACR2220 Gary Nelson Bunn Appellant - and - Her Majesty the Queen Respondent Publication Ban: An order has been made in this case prohibiting publication of any information that could disclose the identity of the complainant pursuant to s. 486.4(1) of the Criminal Code . Coram: Herauf, Whitmore and Ryan-Froslie JJ.A. Counsel: Gary Nelson Bunn on his own behalf W. Dean Sinclair for the respondent Appeal: From: 2012 SKQB 397 Heard: September 22, 2014 Disposition: Dismissed

Written Reasons: October 31, 2014 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Mr. Justice Whitmore The Honourable Madam Justice Ryan-Froslie Herauf J.A. I. Introduction [ 1 ] Gary Nelson Bunn seeks to overturn his conviction by a jury for sexual assault. He also seeks to set aside the dangerous offender designation and the indeterminate sentence that followed the conviction. [ 2 ] I would dismiss both the conviction appeal and the sentence appeal. With respect to the conviction appeal, the verdict was reasonable and supported by the evidence. As well, Mr.

Bunn has failed to identify any error of law that requires intervention. The same holds true for the sentence appeal. Based upon the standard of review of reasonableness, Mr. Bunn has not been able to demonstrate that the order designating him as a dangerous offender was unreasonable. However, I acknowledge that the sentencing judge erred in law by his application of the 2008 amendments to the Criminal Code to this matter even though the predicate offence occurred in 2006. I find that despite the error the sentencing judge applied the correct test, and in any event, the result would have been the same. II.

Facts Predicate Offence [ 3 ] The victim, C.L., was physically disabled, confined to a wheelchair, and wore diapers. On April 10, 2006, C.L., her common law husband and Mr. Bunn were drinking at C.L.’s home. C.L. and Mr. Bunn left to find lacquer thinner. Not finding any lacquer thinner and after having drank some more, they went to a liquor store, bought more alcohol, and were driven to Mr. Pauchay’s house. [ 4 ] Mr. Bunn, C.L. and Mr. Pauchay went to Mr. Pauchay’s basement suite and continued to drink. C.L. was on the bed and eventually fell asleep.

She awoke to find that her pants had been pulled down and her diaper had been removed. Mr. Bunn was having intercourse with her. She started yelling and punching Mr. Bunn, telling him to get off her. He refused to comply. Jeffery Michiskinic entered the room and hit Mr. Bunn over the head with a stick, at which point Mr. Bunn stopped, got off C.L. and left the house. [ 5 ] C.L. had Mr. Pauchay push her in her wheelchair to a nearby payphone from which she called the police. Mr. Bunn was standing close by and told C.L. that her husband had told him to have sexual relations with C.L.

The police arrived and arrested Mr. Bunn. When he was arrested, Mr. Bunn threatened to kill the arresting officer. [ 6 ] Several witnesses confirmed C.L.’s testimony. Ms. M. Baldhead was upstairs when the crime occurred. She woke up when she heard C.L. screaming and went downstairs to see what was happening. She saw Mr. Bunn on top of C.L. C.L.’s pants and Mr. Bunn’s pants were pulled down. Ms. Baldhead said C.L. was yelling at and hitting Mr. Bunn. Ms. Baldhead unsuccessfully attempted to pull Mr. Bunn off C.L. [ 7 ] Mr. Pauchay also awoke to the screams of C.L. He also noted that Mr.

Bunn was on top of C.L. and both Mr. Bunn’s pants and C.L.’s pants were pulled down. [ 8 ] Subsequent DNA testing revealed Mr. Bunn’s DNA profile matched the DNA profile of flakes of blood removed from C.L.’s body and a human hair found on C.L.’s pubic area. III. The Sentencing Decision Dangerous Offender Hearing [ 9 ] The sentencing judge noted that Mr. Bunn’s criminal history spans over four decades. He has been convicted of more than 90 criminal offences. Of these, 27 were violent, weapons or threatening offences. [ 10 ] The sentencing judge accurately summarized Mr.

Bunn’s violent history in these terms: 24 Bunn has 93 criminal convictions, including the index offence. The offences for which he has been convicted cover almost every crime category.

These convictions include but are not limited to four convictions involving weapons, three assaults, four assaults causing bodily harm, one aggravated assault, one robbery, eight uttering threats, six assaults against police officers, 32 convictions of violating types of court orders and three sexual assaults, two of which were on his step-daughter within a 15-month period, one while he was still on a no-contact order with her, and one against a woman confined to a wheelchair and wearing diapers. 25 Since first being convicted of a criminal offence 44 years ago, Bunn has spent the majority of his life in custody.

26 It is noted that Bunn's behaviour when he is in the community begins almost immediately with drinking. He then becomesviolent and physically attacks anyone who is near him at the time, whether it be police officers, strangers, his mother, his common lawpartner, his daughter or an acquaintance. 27 Bunn has continued to commit sexual assaults even after taking two high-intensity sexual offender programs, one specificallydesigned for low-functioning individuals. See: 2012 SKQB 397. [11] Dr. R. Holden, prepared an assessment for the Court relating to the dangerous offender application. Dr.

Holden concluded that Mr.Bunn was a high-risk to reoffend violently and sexually. He believed Mr. Bunn met the dangerous offender criteria in s. 753 of theCriminal Code and that there was no reasonable possibility of managing his risk in any setting other than prison. The conclusion in hisassessment report is repeated here: In a comprehensive review of Mr. Bunn’s file and following the interviews, I conclude the only way to manage Mr. Bunn’s risk of futureviolence in the community is to incarcerate him.

His, as has been noted in file, is a tragic case and he appears to have been the victim of a variety of forces that have shaped hispersonality: neglect, abuse, sexual abuse, possible fetal alcohol syndrome, possible organic damage, all of which have combined toproduce a characterologically angry, impulsive, dangerous man. He has been acting out his anger against others for many years and he has also, on certain occasions, attempted to hurt himself. There have been many efforts over the years to involve Mr.

Bunn in treatment programs designed to alleviate his violence and sexualviolence and to address other criminological factors such as substance abuse and general criminality. His file is unusual, in my experience, in that over, thirty years ago, individuals working with Mr.

Bunn indicated he was probablyunmanageable in the community and certainly, in my opinion, his subsequent record suggests that he has never been willing to abide bysocial mores and rules and has, instead, lived a life of criminality involving violence and sexual violence … His file contains many references to his being apparently unwilling to accept treatment and his behaviour strongly suggests anunwillingness or inability to put into place any gains he may have made from being involved in treatment programming. [Emphasis added] [12] The sentencing judge accepted Dr. Holden’s testimony. He found that Mr.

Bunn “unquestionably” met the dangerous offendercriteria. The sentencing judge concluded there was no reasonable possibility that Mr. Bunn's risk could be managed in the community. IV. Conviction Appeal [13] Mr. Bunn was represented by counsel at trial who argued that the evidence was not sufficient to convict. The jury thoughtotherwise and found Mr. Bunn guilty as charged. [14] Mr. Bunn was unsuccessful at having this Court appoint counsel to represent him on the appeal (see: 2014 SKCA 75).

While it isdifficult to ascertain precise grounds of appeal relating to conviction, I note that during his oral submission he raised the issue of one ofthe witnesses to the sexual assault not being called as a witness at the trial. The witness Mr. Bunn identified was Jeffrey Michishinik.Mr. Michishinik, according to the victim and Mr. Pauchay entered the room as a result of the victim’s cries for Mr. Bunn to get off ofher. Mr. Michishinik was identified as the man who had to hit Mr.

Bunn over the head with a stick to get him to end the sexual assault. [15] It is difficult to understand how this individual’s evidence would have assisted Mr. Bunn. In addition to the evidence of the victim,two other witnesses gave direct evidence of the sexual assault. As well, there was DNA evidence that implicated Mr. Bunn as theperpetrator of the sexual assault. Frankly, the evidence against Mr. Bunn was overwhelming and uncontradicted. [16] Mr. Bunn took no issue with the charge to the jury. Since he is unrepresented, the jury charge was carefully reviewed.

The jurycharge more than meets the requirements to ensure that Mr. Bunn had a fair trial (see: R v Brass, 2007 SKCA 94 at para 3, 226 CCC (3d)216; R v Worm, 2014 SKCA 94 at para 19). [17] The end result is that the guilty verdict was reasonable and supported by the evidence. No error of law has been identified by Mr.Bunn and a careful review of the record fails to disclose any basis for this Court to intervene. The conviction appeal is dismissed. V. Sentence Appeal [18] Mr. Bunn was represented by counsel, other than his trial counsel, at the sentencing hearing.

As already noted, he wasunrepresented on this appeal. Mr. Bunn is more precise when it comes to grounds for his sentence appeal. He contends that theindeterminate sentence is too harsh, that the sentencing judge failed to take into consideration the six years he spent on remand, his age,his health and the Gladue considerations [R v Gladue, (SCC), [1999] 1 SCR 688]. The Crown rightfully acknowledgesthat the sentencing judge erred in law when he held that the post-2008 amendments to

Part XXIV apply even though the predicateoffence occurred in 2006. I will deal with each point in turn. (

a) Failure to Consider Remand Time [19] The sentencing judge is not required to consider pre-sentence custody when imposing an indeterminate sentence.

Section 761 ofthe Criminal Code specifies that a person serving an indeterminate sentence is eligible for parole seven years after the day the personwas first taken into custody on the offence. As Mr. Bunn has been in custody since 2006 he is likely already eligible for a parole hearing

and can explore that option. (

b) Age and Health Considerations [ 20 ] Mr. Bunn was 56 years of age at the time of the sexual assault, 62 years of age at the time of the dangerous offender hearing and 64 years of age at the time of the appeal. [ 21 ] Dr. Holden, the court appointed assessor, testified as to the potential mitigating effect of Mr. Bunn’s advancing age. The sentencing judge, at para. 56 of his reasons, noted this as a potential factor. The sentencing judge also noted and accepted Dr.

Holden’s evidence that aging does not decrease the potential for “perpetuating acts of ... sexual violence.” There was no evidence presented to contradict this finding. [ 22 ] With respect to health issues, the assessor and Mr. Bunn both gave evidence as to the various health concerns including the use of a cane by Mr. Bunn due to his weak knees. As Dr. Holden noted and the sentencing judge mentioned at para. 57 of his decision, Mr. Bunn has used his cane on numerous occasions as a weapon “in inflicting aggravated assaults.” [ 23 ] It is apparent that the sentencing judge considered Mr.

Bunn’s personal circumstances, including his age and health in his decision. Ultimately, Mr. Bunn’s personal circumstances did not sway the sentencing judge from his determination that he met the criteria to be designated a dangerous offender. (

c) Gladue Considerations [ 24 ] Mr. Bunn mentioned Gladue briefly in his submissions to this Court. His concern was the sentencing judge failed to consider Gladue and Ipeelee [2012 SCC 13 , [2012] 1 SCR 433] and did not comply with s. 718.2 (

e) of the Criminal Code . [ 25 ] A review of the record indicates that Mr. Bunn testified as to his background on his home first nation and his experience with residential schools. Dr. Holden also referenced this background in his assessment and testimony at the sentencing hearing. The sentencing judge referred to these facts in paras. 62-67 of his reasons. Based upon all of the evidence, the sentencing judge was convinced that there “is no possibility of eventual control of his behaviour in the community.” [ 26 ] The sentencing judge made no error in his use and assessment of the Gladue factors.

There is a substantial body of jurisprudence from the court that requires consideration of Gladue factors in a proceeding under

Part XXIV of the Code . See: R v Standingwater , 2013 SKCA 78 at para 51 , [2013] 10 WWR 277; R v. Montgrand , 2014 SKCA 31 at paras 15-17 , 433 Sask R 248, and R v Peekeekoot, 2014 SKCA 97 at paras 55-62 . [ 27 ] The sentencing judge did exactly what was required by referencing Gladue factors in his consideration of whether or not they “go to enhance the cogency of the possibility of eventual control of the risk that the Aboriginal offender will reoffend in the community” (see: R v Standingwater at para. 51 ).

As noted above, the sentencing judge concluded that there was no possibility of eventual control of the risk in the community. VI. Application of the 2008 Amendments [ 28 ] The predicate offence occurred in 2006. Both parties agreed that the new law which came into force in 2008 (see: s. 753(4.1) of the Criminal Code ) did not apply.

The sentencing judge, without any analysis, stated at para. 10: As the new ss. (4.1) is more favourable to Bunn, it will be considered if Bunn is found to be a dangerous offender. [ 29 ] Accordingly, the sentencing judge instructed himself to consider whether he had a reasonable expectation that something less than a sentence of indeterminate imprisonment would adequately protect the public. [ 30 ] As previously noted, the Crown acknowledged that the sentencing judge erred in his determination that s. 753(4.1) is applicable in the circumstances.

I agree with the Crown’s position. [ 31 ] The dangerous offender regime was amended in 2008, and those amendments came into effect on July 2, 2008. Prior to the amendment, the sentencing judge had discretion in ordering a dangerous offender designation if the offender met the criteria for such a designation. Under the new regime, [O]nce an offender meets the criteria of dangerousness, the judge must declare the offender a dangerous offender.

However, once a designation has been ordered, the judge has discretion at the sentencing stage: a dangerous offender can either be sentenced to an indeterminate period, to the original sentence with up to ten years of supervision in the community, or to the original sentence alone. The default sentence, however, is one for an indeterminate period unless the judge is satisfied that there is a reasonable expectation that a lesser sentence will ‘adequately protect the public’. [Joseph A.

Neuberger, Assessing Dangerousness: Guide to the Dangerous Offender Application Process , loose-leaf (Rel 1, 2014) (Toronto: Carswell, 2012) at 1.4] [Emphasis in original] [ 32 ] The new regime is set out in s. 753of the Criminal Code , which states:

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied …

(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period;

(

b) impose a sentence for the offence for which the offender has been convicted – which must be a minimum punishment of imprisonment for a term of two years – and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (

c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph 4(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [ 33 ] The old regime, on the other hand, provided for discretion at the stage of declaring the offender a dangerous offender, but then mandated an indeterminate incarceration once the dangerous offender designation was affixed. The regime in force on the date when Mr. Bunn committed the predicate offence (on or about April 11, 2006) stated:

(1) The court may , on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied …

(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period . …

(5) If the court does not find an offender to be a dangerous offender, (

a) the court may treat the application as an application to find the offender to be a long-term offender,

section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (

b) the court may impose sentence for the offence for which the offender has been convicted. A dangerous offender designation, however, was subject to a determination that there was no “reasonable possibility of eventual control of the risk in the community” as a long-term offender under s. 753.1. [ 34 ] It is difficult to see how the new dangerous offender regime as a whole could be seen as the more lenient of the two. Now, a dangerous offender designation necessarily follows if the criteria in s. 753(1) is satisfied.

Under the old regime, the court had discretion to designate or not to designate an offender as a dangerous offender. As a consequence, it appears the new regime is harsher than the old one. [ 35 ] It might be argued that since the sentencing judge now has discretion as to the kind of sentence to be imposed subsequent to the dangerous offender designation, the new regime is more lenient. Indeed, this was advanced on appeal in R v Ominayak , 2012 ABCA 337 , 539 AR 88.

The reasons of the Alberta Court of Appeal on this point are instructive: 52 The appellant submits that under these new provisions a sentencing judge now has a discretion, albeit limited, to impose a long- term offender designation, or even impose a regular sentence, when the judge has found that the accused is a dangerous offender . This, he submits, makes for the possibility of a lesser sentence and invokes the relief set out in

section 44 of the

Interpretation Act . Thus, he asks the court to allow the appeal and cause a hearing to be held to determine which of the three available sentences ought to be imposed in this case. 53 In our view, the appellant's submission is based upon a misapprehension. The current Code provisions do not provide for the possibility of a lesser sentence . They only change the place in a sentencing judge's analysis where he or she is given the discretion to consider whether an indeterminate sentence will adequately protect the public.

Under the old regime, a sentencing judge considered this issue after finding that the statutory criteria for making a dangerous offender designation had been met, but before actually making the dangerous offender designation. Under the current regime, this issue is determined at the point of sentencing, after the court has found that the accused is a dangerous offender. In the end, the result is the same.

Indeed, it could be argued that the current regime is stricter that the regime under which the appellant was sentenced because, if the statutory conditions are met, the accused remains designated as a dangerous offender, even if the sentencing judge later exercises the discretion to grant a lesser sentence .

Indeed, when the amending legislation is read as a whole, it appears that the legislative intent of the 2008 amendments to the dangerous offender regime was to provide harsher, rather that more favourable, treatment to an offender . [Emphasis added] [ 36 ] Indeed, the default sentence once a dangerous offender designation is made is an indeterminate sentence.

This was the case under the old regime as well; but of course, under the old regime, a dangerous offender designation did not necessarily follow from the offender having met the requisite criteria—it only followed if there was no reasonable possibility of eventual control of the risk in the community. The sentencing judge’s discretion to not declare an offender who meets the criteria to be a dangerous offender is now eliminated. After that determination is made, an indeterminate sentence is presumptively appropriate unless there is a reasonable expectation of control in the community.

As a matter of logic, an “expectation” suggests likelihood, while a “possibility” suggests a lower standard of potential. Consequently, in R v Dorfer , 2009 BCSC 202 , para 51 , Ehrcke J. noted: …

Section 11(

i) of the Charter of Rights would give the offender the benefit of the new provisions if they were more favourable to him in terms of punishment, but counsel are satisfied, and I agree, that taken as a whole, it cannot be said that the new provisions are more favourable to Mr. Dorfer.

[37] More recently, in R v Osborne, 2014 MBCA 73 at paras 72-73, 206 Man R (2d) 276, MacInnes J.A. of the Manitoba Court ofAppeal stated: 72 The case law does indicate a different and higher standard in "reasonable expectation" than in "reasonable possibility." See R. v.J.E.M., 2011 BCSC 715 at paras. 53-54 (QL); R. v. Downs (C.J.), 2012 SKQB 198 at paras. 7-8, 397 Sask.R. 83; and R. v. Cote (K.J.),2012 SKQB 508 at paras. 20-24, 416 Sask.R. 1. 73 A most succinct expression of the difference between the phrases is found in R. v.

J.T.M., 2011 SKPC 109, 379 Sask.R. 211, adecision of the Saskatchewan Provincial Court where, after briefly discussing the difference between the two phrases, Labach P.C.J.wrote (at para. 114): Both of these phrases really involve an assessment of the offender's risk to the public. They ask a judge to consider if the offender's riskin the community can be lowered to an acceptable level by a lesser punishment. The only difference is under the old regime the questionwas one of "reasonable possibility" whereas under the new amendments the test is one of "reasonable expectation".

The difference inwording, while subtle, is significant. A "reasonable possibility" connotes a belief that something may happen while a "reasonableexpectation" speaks to a belief that something will happen. The onus for finding a reasonable expectation then is somewhat higher butthe factors to consider under both tests would essentially be the same.

I would substitute the word "standard" for the word "onus" in the above quotation, but otherwise adopt the statement. [38] I, like Justice MacInnes, would endorse the statement of Judge Labach with the same qualification by a substitution of the word“standard” for the word “onus”. [39] In any event, while the sentencing judge stated that he was giving Mr. Bunn the benefit of what he saw to be the more lenientregime by applying the new s. 753(4.1), he in fact applied the “reasonable possibility” standard under the old regime. This is borne out byhis analysis.

At para. 21, for instance, the sentencing judge stated: If the court is satisfied that the dangerous offender criteria has been met, the court must still consider the appropriateness of imposing alesser sentence and declaring the offender a long-term offender pursuant to s. 753.1. [40] Immediately thereafter, the sentencing judge outlined the new regime.

However, he then referred again to the long-term offendercriteria under the old regime: 23 It is noted that in using the residual discretion to declare an offender a long-term offender rather than a dangerous offender, theSaskatchewan Court of Appeal has on more than one occasion noted that the discretion should only be exercised if the court is satisfiedthat something less than an indeterminate sentence will protect the public … [I]n R. v. Otto (M.E.), 2006 SKCA 52, 279 Sask. R. 182 …Gerwing J.A. relied upon an Ontario Court of Appeal decision, R. v. McCallum (2005), (ON CA), 201 C.C.C. (3d)541, [2005] O.J.

No. 1178 (QL) (C.A.) that provided: [47] Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation and theamended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long-termoffender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specificoffender can be treated within a definite period of time: … [41] After outlining the offender’s lengthy and violent criminal record, the sentencing judge held that Mr.

Bunn met the criteria for adangerous offender. The sentencing judge immediately reverted to a discussion of the new dangerous offender regime to considerwhether there was a “reasonable expectation” that a lesser sentence would protect the public. [42] But the sentencing judge then noted that he was required to consider whether a long-term offender order under s. 753.1 was moreappropriate than a dangerous offender designation, which requires an assessment of whether there is a “reasonable possibility” ofeventual control.

He noted at para. 45 that this Court has ruled that the Crown does not need to prove beyond a reasonable doubt theabsence of a “reasonable possibility that the offender can eventually be managed in the community,” and instead, “the court must simplybe satisfied on the basis of all the evidence that there is a reasonable possibility of eventual control of risk in the community.” Aftersummarizing several cases on the applicable standard for a dangerous offender designation, the sentencing judge stated at para. 49: Therefore, the court must consider whether or not there is a reasonable possibility of controlling the risk to re-offend within thetime frame of an appropriate definite term of imprisonment followed by a period of supervision.

After conducting his analysis to determine whether there was a “reasonable possibility” of eventual control in the community of the riskposed by Mr. Bunn, the sentencing judge expressly concluded that there was no “reasonable possibility” of that occurring. [43] In sum, the sentencing judge’s analysis assessed whether Mr. Bunn stood a “reasonable possibility” of eventual control in thecommunity before sentencing him to an indeterminate sentence. This was the appropriate analysis under the old regime, which is theapproach more favourable to the appellant.

The sentencing judge erred in stating that the new regime was more favourable to theappellant, but his analysis clearly shows that he nevertheless applied the criteria under the old regime to Mr. Bunn’s circumstances. [44] Having identified the error, the issue remaining is to decide whether the sentencing judge’s error prejudiced Mr. Bunn or whetherthe result would have been the same if the error had not occurred.

In my view, the Crown is correct in asserting that the trial judge’sincorrect self-instruction was immaterial to his ultimate determination. [45] Recently, in R v Peekeekoot, at para. 68 this Court stated: However, even if Mr. Peekeekoot is correct that the sentencing judge failed to consider Gladue factors, or to adequately considerthem, the analysis of this line of argument does not end there. As discussed in R. v. Standingwater at paras. 37-39, a court of appeal has

the authority to dismiss an appeal from a decision made under

Part XXIV of the Criminal Code notwithstanding an error made by the sentencing judge . Accordingly, it is also necessary to ask whether the sentencing judge's Gladue -related oversight (assuming there was one) had any impact on his determination that Mr. Peekeekoot should be found to be a dangerous offender. Put another way, it must be determined whether this Court should dismiss Mr.

Peekeekoot's appeal, notwithstanding the judge's mistake, because no substantial wrong or miscarriage of justice resulted from that mistake. [Emphasis added] See also R v Dillon , 2014 SKCA 83 at para 24 . [ 46 ] For the reasons outlined above, the sentencing judge’s error in stating that the new dangerous offender regime is more lenient than the old dangerous offender regime is inconsequential. The sentencing judge applied the correct standard of “reasonable possibility” and not “reasonable expectation” in declaring Mr. Bunn a dangerous offender.

The error did not lead to a substantial wrong or miscarriage of justice. Based upon a review of the record, this was the only conclusion available to the sentencing judge. VII. Conclusion [ 47 ] The conviction appeal is dismissed. The sentence appeal is dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 31 st day of October, A.D. 2014. “Herauf J.A.” ___________________________ Herauf J.A. I concur. “Whitmore J.A.” Whitmore J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.