Docket: CACR2447 Rollie Buck Appellant - v. -, 2014 SKCA 92

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 92 Date: 2014-09-05 Between: Docket: CACR2447 Rollie Buck Appellant - and - Her Majesty the Queen Respondent Coram: Jackson, Ottenbreit and Ryan-Froslie JJ.A. Counsel: Rollie Buck appearing on his own behalf Andrew Davis for the respondent Appeal: From: Provincial Court Heard: August 7 and August 28, 2014 Disposition: Dismissed Written Reasons: September 5, 2014

By: The Honourable Madam Justice Ryan-Froslie In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit Ryan-Froslie J.A. I. Introduction [ 1 ] Rollie Buck pled guilty in Provincial Court to the following offences namely, (

i) that on February 2, 2014 he committed theft under $5,000 when he stole a wallet, contrary to s. 334 (

b) of the Criminal Code ; (ii) that on May 8, 2014 he breached his probation order by failing to report to his probation officer, contrary to s. 145(3) of the Criminal Code ; (iii) that on May 16, 2014 he committed theft under $5,000 when he stole a laptop, contrary to s. 334 (

b) of the Criminal Code ; and (iv) that on May 16, 2014 he breached his probation order by failing to keep the peace and be of good behaviour, contrary to s. 733.1(7) of the Criminal Code . [ 2 ] Mr. Buck was sentenced to six months for each of the theft charges to be served concurrently and three months for each of the breaches to be served concurrent with the sentences pertaining to the theft charges. His global sentence was thus, six months. He was also ordered to pay $700 in victim surcharges. The sentencing judge denied Mr.

Buck time to pay the surcharges and ordered him to serve time for that failure concurrent with the global sentence imposed. [ 3 ] Mr. Buck appealed his sentence arguing it was too long given his personal circumstances, including his mental health issues and the fact he was homeless at the time the offences occurred. On August 28, 2014, this Court dismissed the appeal. What follows are our reasons for doing so. II. Background [ 4 ] Rollie Buck was born on August 19, 1993. He was 20 years of age and homeless at the time the offences were committed. [ 5 ] On February 12, 2014 Mr.

Buck stole a wallet from a cloakroom. The wallet contained $80 in cash and the victim’s driver’s licence and credit cards. Mr. Buck discarded the wallet and credit cards, keeping only the cash. He stated he stole the wallet because he was hungry and used the money to buy chips and pop. [ 6 ] On March 24, 2014 Mr. Buck pled guilty to this offence. He was released pending sentencing to enable the Court to obtain a restitution report. Following his release Mr. Buck committed other offences. On May 8, 2014 he failed to report to his probation officer.

On May 16, 2014 he stole a laptop from a school which he then sold on the street for $200. The theft was recorded on video which led to Mr. Buck’s arrest. Mr. Buck assisted the police in recovering the laptop which was returned to its owner. As a result of the theft of the laptop, Mr. Buck was also charged with breaching his probation order by failing to keep the peace and be of good behaviour. [ 7 ] On May 20, 2014 Mr. Buck pled guilty to those offences. At that time, a sentencing hearing was held with respect to those offences and the theft of the wallet which had occurred in February 2014.

The Court was aware that Mr. Buck had been diagnosed with schizophrenia and that he had been transient and homeless for an extended period of time. According to Mr. Buck’s criminal record, he was just 13 years of age when he committed his first criminal offence.

As of May 2014, he had accumulated a total of 30 prior convictions, including ten convictions for theft and/or break and enter, ten convictions for failure to comply with undertakings, probation orders and/or court order, two convictions for escaping lawful custody, two convictions for mischief, one conviction for possession of property obtained by crime, two convictions for assault, one conviction for possession of a weapon and two convictions for assault with a weapon. At the time of the offences in issue, Mr. Buck was on probation. [ 8 ] The restitution report ordered by the Court concluded Mr.

Buck was not a suitable candidate to pay restitution. At p. 1 of the report, the probation officer who prepared the report noted the following: Rollie has been transient and homeless for an extended period of time. He lacks a familial support system and until recently was not well connected to professional supports either. Rollie was brought to the attention of the Prince Albert HUB (interagency collaboration team).

It was suspected Rollie was breaking into businesses and causing damage in the community in an effort to have himself arrested, which would subsequently provide for his shelter and subsistence needs during times of adverse weather. Since coming to the attention of the Prince Albert Hub Rollie has begun to receive some professional support. He has been temporarily granted an emergency bed at the YWCA Our House Shelter, funded by Social Services. Social Services funding pays the YWCA directly for Rollie’s accommodations.

He is not in receipt of any other income from Social Services at this time as he does not have a fixed address to apply for benefits. Rollie additionally struggles with managing a diagnosis of schizophrenia, which adds complexity in case planning and engagement with Rollie. [ 9 ] During the sentencing hearing, Crown counsel acknowledged Mr. Buck’s mental health issues impede his ability to comply with

probation orders. III. The Sentencing Judge’s Decision [10] The sentencing judge found Mr. Buck had “adopted” theft as a way of meeting his basic needs. He described Mr. Buck’s conductas a “nuisance” to the public and determined that incarceration would prevent Mr. Buck from being a “nuisance for a little bit of time”.He imposed a global sentence of six months for the four offences. The sole issue before this Court was whether that sentence wasdemonstrably unfit. IV. Jurisdiction and Standard of Review [11] The Crown elected to proceed against Mr. Buck by indictment, thus this Court’s jurisdiction to hear Mr.

Buck’s appeal is found ins. 675(1) of the Criminal Code. Pursuant to that section, leave to appeal a sentence is required. The standard for review of sentenceappeals was set out by the Supreme Court of Canada in R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 90 asfollows: … [A]bsent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appealshould only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. [12] Appeal courts must show great deference to sentencing decisions and may not vary a sentence simply because it would haveordered a different one. Rather, an appeal court must be convinced the sentence is not fit. (See: R. v. L.M., 2008 SCC 31 at para. 14,[2008] 2 S.C.R. 163.) V. Analysis [13] Mr.

Buck has now served almost two-thirds of his sentence. His statutory release date is September 20, 2014. On August 7th thisCourt ordered a post-sentence report to address, among other things, the plan for Mr. Buck’s release. That report which was filed withthe Court on August 25, 2014, was prepared by the same probation officer who prepared the restitution report. The portion of that reportdealing with Mr.

Buck’s current circumstances is worth repeating here: It should be noted the subject is no longer eligible for an emergency bed at the Our House shelter as he was in the past as it wasdiscovered he has a grandmother who resides in Prince Albert. The Income Assistance Worker also advises should he be evicted fromOur House he will not receive any support from Social Services in regards to housing.

The writer contacted the shelter manager at OurHouse, Edna Bruce, who confirms the subject is not welcome for a lengthy stay due to his previous inability to follow the house rules.Given the subject’s lack of housing options in Prince Albert and Cumberland House, it is difficult for the writer to recommend the bestoption for a potential residence. As noted above, the subject’s community support is very limited. At this point his best option is to have a full mental health assessmentcompleted to evaluate his eligibility for the disability program through Social Services.

The odds of this occurring once he is released areunlikely given his history of non-compliance. It will be proactive and beneficial for the subject to have a mental health assessmentcompleted while he is in custody to provide further direction in his return to the community as he will require a strong release plan whichwill connect him with Social Assistance and mental health services in the community to which he will be released. This assessmentwould need to occur soon as his release date is fast approaching.

As the subject is not on probation following incarceration, the releaseplan would be the responsibility of his institutional case manager. The writer has forwarded all the pertinent information to theinstitutional case manager to aid in a release planning. Upon reviewing the subject’s criminal record, his use [of] violence is limited and may have been a result of his mental instability. Inaddition, he has accumulated numerous system generated offences and has received convictions such as theft and break and enter whichwere likely committed out of necessity.

While the subject does require community support, the services need to be set up within thecommunity focusing on his mental health needs. At this point in time placing the subject on further probation could result incriminalizing his mental health status as with continued support from mental health, he has access to the services he requires without thesupervision of a court order. [Emphasis added] [14] At this Court’s request, Mr. Buck’s institutional case manager was present during the telephone conference held on August 28,2014 to address any arguments arising out of the post-sentence report.

The institutional case manager indicated there was no release planfor Mr. Buck and as of that date, no mental health assessment was planned for him. Barring any issues arising in the interim, Mr. Buckwould be released on September 20, 2014, being his statutory release date without conditions or supervision. During the course of thetelephone conference the Court inquired whether a mental health assessment could be conducted in the short time remaining beforeMr. Buck’s release from prison and whether steps could be taken to assist him upon release. The Court was advised this would bepossible. [15] It is obvious Mr.

Buck is a man who suffers from mental illness and because of that illness he is unable to provide for himself. Hisfamily are ill-equipped to assist him. Resources that could assist him are available in the community at large, but because of his mentalhealth issues Mr. Buck has been unable to successfully access them. When, with help, he has connected with those resources theadministrative hurdles he has had to overcome have doomed him to failure and guaranteed his return to a life on the streets. Mr. Buck hasstolen out of necessity.

He is unable to access social assistance benefits because he has no permanent address. Unaided he is powerless tobreak the vicious cycle of mental health issues, addictions, poverty and increasing involvement with the criminal justice system thatplagues him. [16] Mr. Buck’s criminal activity appears to be primarily due to mental health issues. In such circumstances, prison appears to offer

neither rehabilitation nor long-term protection for the public. On the contrary, time behind bars is more likely to exacerbate the problem. What is needed is treatment, not punishment; social assistance that provides the basic necessities of life without excessive red tape; and community support to aid him in following through with treatment and/or a rehabilitation plan. [ 17 ] The Supreme Court of Canada in R. v.

L.M. , supra , discussed the task faced by sentencing judges at para. 17 as follows: Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge's competence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.1 Cr. C.; R. v. Johnson , [2003] 2 S.C.R. 357, 2003 SCC 46 , at para. 22 ; R. v. Proulx , [2000] 1 S.C.R. 61, 2000 SCC 5 , at para. 82 ).

To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code : - the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done (s. 718 Cr.

C.) (see Appendix); - the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr. C.); and - the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr.

C.). [ 18 ] In this case the trial judge erred in principle by overemphasizing protection of the public and not giving enough weight to Mr. Buck’s recent diagnosis of schizophrenia. At the time of his sentencing hearing Mr. Buck was involved, for the first time, with professionals who could assist him in managing his illness and getting him off the streets. This involvement ended when Mr. Buck was incarcerated. In the circumstances, the sentencing judge should have ordered a pre-sentence report to address the impact of Mr.

Buck’s mental illness on his offending and to identify what resources might be available to manage his illness in the community and prevent him from reoffending. Such a report could have included input from his psychiatrist, as well as community and familial supports, and would have been of assistance in crafting a meaningful sentence directed at protecting the public and rehabilitating Mr. Buck. [ 19 ] While the trial judge erred in applying the principles of sentencing and overemphasizing the need for protection of the public, we cannot find the sentence ultimately imposed was demonstrably unfit given Mr.

Buck’s extensive criminal record. [ 20 ] Mr. Buck argued his sentence should be reduced to time served followed by a period of probation. Such a sentence is not appropriate in the circumstances of this case. As pointed out by the probation officer who prepared the post-sentence report, ordering probation for Mr. Buck would have the effect of “criminalizing” his mental illness. Mr. Buck’s mental health issues affect his ability to comply with probation orders and his failure to comply would inevitably result in further criminal charges.

We agree with the probation officer that at this juncture, the best possible outcome for Mr. Buck, would be a full mental health assessment to be completed prior to his release from prison. Such an assessment would help identify his issues and would qualify him for increased social assistance benefits. VI. Disposition [ 21 ] Mr. Buck was given leave to appeal his sentence, but his appeal was dismissed with the recommendation that prior to his release: (

i) he receive a mental health assessment, a copy of which would be provided to Mr. Buck and, if appropriate, community agencies, (ii) that he receive one-on-one counselling to identify community supports available to him and to obtain contact information for those supports, and (iii) that if possible, steps be taken on Mr. Buck’s behalf to notify the appropriate agencies of his pending release and request their assistance in helping Mr. Buck to immediately access applicable medical resources and social assistance. These recommendations were made out of this Court’s concern that Mr.

Buck not become homeless again upon his release, and unable to access the health resources he needs. Should that happen, it would only serve to increase the likelihood that Mr. Buck would experience difficulty and reoffend. DATED at the City of Regina, in the Province of Saskatchewan, this 5 th day of September, A.D. 2014. “Ryan-Froslie J.A.” ____________________ Ryan-Froslie J.A. I concur. “Jackson J.A.” Jackson J.A.

I concur. “Ottenbreit J.A.” Ottenbreit J.A.