R v Foster, 2015 SKCA 114

Court of Appeal for Saskatchewan Docket: CACR2566 Citation: R v Foster , 2015 SKCA 114 Date: 2015-11-04 Between: Her Majesty the Queen Appellant And Nicholas Foster Respondent Before: Ottenbreit, Herauf and Ryan-Froslie JJ.A. Disposition: Appeal Allowed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Mr. Justice Herauf The Honourable Madam Justice Ryan-Froslie On Appeal From: 2015 SKQB 6 , J.C. of Regina Heard: July 9, 2015 Counsel: W. Dean Sinclair, Q.C., for the Appellant Neil J.D. Tulloch for the Respondent Ottenbreit J.A. I.

Introduction [ 1 ] On December 28, 2011, Nicholas Foster [Mr. Foster], Alexander Hill [Mr. Hill] and Jesse Manulak [Mr. Manulak] broke into a residence on Victoria Avenue in Regina and assaulted Scott Cowan [Mr. Cowan]. All three subsequently pleaded guilty and were convicted in the Court of Queen’s Bench of breaking and entering a dwelling house and committing therein the indictable offence of assault causing bodily harm contrary to ss. 267 (

b) and 348(1) (

b) of the Criminal Code . Mr. Foster was also convicted of using an imitation firearm while breaking and entering with intent to commit the indictable offence of assault contrary to s. 85(2) (

a) of the Criminal Code . Mr. Foster received 12 months less one day incarceration for his conviction for breaking and entering and assault, and a consecutive sentence of one year for his conviction under s. 85(2) (a). The sentencing judge also imposed on Mr. Foster 18 months probation, a s. 109 firearms prohibition for a term of 10 years, a s. 487.051 DNA order and a forfeiture order pursuant to s. 491(1). The total period of incarceration that Mr. Foster received was two years less a day. [ 2 ] The sentencing judge imposed on Mr.

Hill a period of incarceration of 10 months followed by a period of probation for 18 months for the breaking and entering and assault conviction, and Mr. Manulak a period of incarceration of 11 months followed by a period of probation for 18 months. The Crown sought leave to appeal and appealed the jail sentences of all three accused. In the case of Mr. Hill and Mr. Manulak, leave was denied by this Court when the matter was heard. [ 3 ] This is the decision respecting the Crown’s appeal in respect of Mr. Foster. For the reasons hereinafter set forth, leave is granted and the appeal is allowed. II.

Facts and Background [ 4 ] On December 27, 2011, Mr. Foster, Mr. Hill and Mr. Manulak were together and drinking. All three became extremely intoxicated. During the evening of drinking, Mr. Hill shared with Mr. Foster and Mr. Manulak how he had purchased a TV at a low price from Mr. Cowan but after he paid the money to him Mr. Cowan did not deliver a TV. Mr. Manulak shared that he was aware of a similar experience with Mr. Cowan involving his brother Jason. Both Mr. Hill and Mr. Manulak’s brother had reported Mr.

Cowan to the police regarding these incidents but on December 27, 2011, the police had not yet investigated the complaints. [ 5 ] During their evening of drinking and late into the night, Mr. Foster, Mr. Hill and Mr. Manulak discussed Mr. Cowan’s actions and decided to take matters into their own hands. Mr. Manulak and Mr. Foster decided to go to Mr. Cowan’s residence to confront him about the incidents. Mr. Hill did not want to go but he acquiesced and went along. Mr. Foster took along an imitation pellet or BB gun which was in Mr. Hill’s residence because he knew that Mr. Cowan had a criminal history.

It looked like a real gun. The three also took along a roofing hammer. [ 6 ] When they arrived at Mr. Cowan’s residence, Mr. Foster was carrying the imitation firearm and Mr. Manulak was carrying the roofing hammer. They pounded on the door but were not admitted. Mr. Manulak then broke a window, entered the residence and opened the door for the other two accused. [ 7 ] Mr. Cowan heard the three attempting to enter and he made a 9-1-1 call to the police in which he reported that his back window was being broken. He stayed on the line. The call was recorded. It portrayed an assault on Mr.

Cowan by the three which took approximately three-and-a-half to four minutes.

[ 8 ] The recording reflects the sound of male voices shouting, a great deal of profanity and the sound of blows being struck. Someone is heard to say “Open your mouth” and “I want to blow his head off”. A few seconds later the sound of repetitive blows being struck is heard and someone is heard to say “Open your eyes or I will kill you”. Someone is heard to say “Wake the fuck up”. Someone is also heard repeatedly telling Mr. Cowan to open his eyes. [ 9 ] Mr. Foster acknowledged that he used the pellet gun in a threatening manner against Mr. Cowan. He put the gun into Mr.

Cowan’s mouth more than once, knocking out three or four teeth. He also accepted responsibility for the bumps and bruises on Mr. Cowan’s head. Mr. Cowan suffered bruises and lacerations as a result of the beating. Mr. Cowan believed initially that the imitation firearm was real but by the end of the incident he concluded it was not. [ 10 ] The pre-sentence report for Mr. Foster indicated that he had reported heavy alcohol abuse in the past. His pattern of alcohol abuse continued until the offence before the court.

He told the writer of the pre-sentence report that he had initially gone to AA but had tapered off and advised that he had not attended AA in many months. He denied having a substance abuse problem since early 2012. Mr. Foster said he took responsibility for his actions regardless of anything that the victim had done. He was assessed as a medium risk to reoffend. [ 11 ] Mr. Foster was 28 years old at the date of sentencing. He has a previous criminal record for driving while over .08 in May of 2008 for which he was fined $2,000 and prohibited from driving for one year.

He was employed at Sterling Plumbing and Heating and completed his journeyman’s papers in plumbing in the fall of 2014. Character references filed for Mr. Foster indicate that his actions were surprising and appear to be an isolated incident. III. Decision of the Sentencing Judge [ 12 ] Before the sentencing judge the Crown submitted a fit sentence would be in the range of four years for Mr. Foster and Mr. Manulak, plus one year consecutive for Mr. Foster for the firearms charge and a lower sentence for Mr. Hill. Mr.

Foster advocated for a one year to 18 month sentence. [ 13 ] The sentencing judge appropriately reviewed the portions of the Criminal Code dealing with the objectives and principles of sentencing. She focused on the objectives of denunciation and deterrence. She reviewed some of the cases of this Court and other appellate courts with respect to the sentencing for what is described as a “home invasion”. [ 14 ] The sentencing judge determined that the gravity of the offence was high given that the maximum sentence for the offence was life imprisonment. The trial judge found that Mr.

Foster put the imitation firearm in Mr. Cowan’s mouth threatening to shoot him and that cost Mr. Cowan three to four teeth and that he caused the majority of the bumps and bruises on Mr. Cowan’s head. She accepted that Mr. Cowan was terrified by the incident. [ 15 ] Under mitigating factors the sentencing judge noted the following: (

i) that Mr. Foster entered guilty pleas; (ii) although he was heavily intoxicated while committing the offence and this was not a mitigating factor in itself, the intoxication “negatived” any clear intention to commit the crime; (iii) Mr. Foster did not plan the event in advance; (iv) he did not have a history of violence; (

v) the assault on Mr. Cowan was serious but brief; (vi) Mr. Foster was fully employed and a contributing member of society; (vii) Mr. Foster accepted responsibility for his actions and was cooperative; (viii) he admitted he has a problem with alcohol and has taken steps to deal with the problem; and (ix) Mr. Foster has complied with the conditions of his release for almost three years. [ 16 ] As aggravating factors the sentencing judge noted: (

i) that Mr. Foster entered Mr. Cowan’s residence by breaking a window; (ii) the circumstances of the crime were brief but intense; (iii) he was carrying a weapon; (iv) weapons were used on the victim; and (

v) Mr. Cowan lost some teeth. [ 17 ] When it came to the principle of parity, the sentencing judge focussed primarily on the recent case of R v Debigare , 2014 SKCA 2 , 433 Sask R 8 [ Debigare ].

The sentencing judge indicated that the Crown advocated for a lengthy prison sentence “without any confidence that its position is sustainable, as it acknowledges that the Debigare decision has changed the landscape significantly in relation to home invasions”. [ 18 ] The sentencing judge observed that in Debigare Caldwell J.A. held that the circumstances of the offence in that case put it at the lower end of violent home invasions. After setting forth the facts as outlined by this Court, she compared the factors considered to be aggravating in Debigare to the circumstances before her.

She reviewed the differences in the two cases. She concluded that absent the imitation firearm, the facts of Debigare were generally more serious. She also concluded the length of time during which the occupants of the house were being terrorized was longer and the actions of the accused involved more premeditation in Debigare . [ 19 ] With this background in mind, the sentencing judge proceeded to determine the appropriate sentence for Mr. Foster. She found that Mr. Foster was the most culpable of the three who entered the home in that he carried the imitation firearm. Beyond that he terrorized Mr.

Cowan by placing the firearm in his mouth at the time threats were being made to the victim. She found that that act alone was deserving of additional punishment to serve as deterrence to others. [ 20 ] The sentencing judge placed weight on the personal factors of Mr. Foster’s life. She noted that Mr. Foster had obtained his journeyman’s designation in plumbing, been promoted by his current employer and supervised a six man crew at various jobs. She noted that he had volunteered his time with PlayLotz Contracting, assisting in the building of playgrounds in low income areas. She observed that Mr.

Foster had no related record and had exemplary post-offence conduct. [ 21 ] The sentencing judge concluded that on the basis of Debigare and considering the principles of parity, she was prepared to extend leniency to Mr. Foster but indicated that the sentence should nevertheless denounce his unlawful conduct and deter others from committing like offences. She sentenced Mr. Foster to a period of incarceration of 12 months less one day for the break and enter a dwelling house charge and one year consecutive for the firearms charge with 18 months probation as well as the ancillary orders

mentioned at the outset. [22] After argument was made on sentence but before the sentencing judge rendered her decision, Mr. Foster was charged withimpaired driving causing bodily harm and breach of his undertaking. After sentencing for the matter under appeal, Mr. Foster pleadedguilty to both charges and received 90 days in total for these offences. IV. Standard of Review [23] The standard of review is not in dispute. Sentencing judges enjoy a broad discretion in crafting sentences that are tailored toboth the individual circumstances of the offender and the nature of the offence.

Absent an error in principle, failure to consider a relevantfactor, or an overemphasis of the appropriate factors an appellate court should not interfere with a sentence unless it is demonstrablyunfit (R v Shropshire, (SCC), [1995] 4 SCR 227; R v M.(C.A.), (SCC), [1996] 1 SCR 500). V. Issues [24] The following issues are raised by the Crown’s arguments: (

a) Did the sentencing judge err by failing to properly consider one or more of the relevant sentencing factors; (

b) Did the sentencing judge err by imposing a sentence that was disproportionate to the gravity of the offence and the moralculpability of the offender; (

c) Did the sentencing judge err by failing to impose a sentence that was similar to those imposed in similar situations; and (

d) Did the sentencing judge err by imposing a sentence which was demonstrably unfit. VI. analysis [25] I begin with general principles applicable to the offence before the Court. That an offence under s. 348(1)(

b) of the CriminalCode is serous and that denunciation and deterrence are still the governing sentencing objectives is without doubt, as expressed byCaldwell J.A. in Debigare as follows: 18 The general gravity of the offence under s. 348(1)(

b) of the Criminal Code is already high given that the maximum sentence forthis offence is life imprisonment (s. 348(1)(d)). In addition, Parliament has made its intention clear, by enacting s. 348.1 of the CriminalCode, that whenever an offence under s. 348 may be characterized as a “home invasion”, the occupancy of the home to the knowledge ofthe offender and the actual or threatened use of violence are facts the sentencing judge must take into consideration as aggravatingcircumstances in determining what sentence to impose for the offence committed. The

section provides: 348.1 If a person is convicted of an offence under

section 98 or 98.1, subsection 279(2) or

section 343, 346 or 348 in relation to adwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that thedwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence, (

a) knew that or was reckless as to whether the dwelling-house was occupied; and (

b) used violence or threats of violence to a person or property. 19 As this Court pointed out in R. v. Pelly, 2006 SKCA 60, 210 C.C.C. (3d) 416, and in R. v. Payne, 2007 SKCA 28, 293 Sask. R.31, the central purpose of s. 348.1 of the Criminal Code is to recognize the particular vulnerability of victims who are subject to violenceor threats of violence in their own homes, where they are out of sight of passers-by and often unable to summon help. In this respect, itbears repeating that this Court in R. v.

Pelly, at para. 57, said: It must be clear to all that crimes of this nature strike at the very core of a peaceful and safe society, violate the security of the home, andoften result in lasting physical and psychological injury. They are terrifying crimes, and it is imperative they be treated with the utmostseriousness in the interest of preserving public safety and upholding public confidence in the administration of justice.

So, all shouldknow that the courts of this province, in step with those of others, will come down hard on violent crimes entailing “home invasions” inorder to protect the public from the invasiveness and violence associated with them. 20 The effect of all of this is to mandate that sentencing judges treat a s. 348(1)(

b) offence which falls under s. 348.1 as a “seriousoffence”; an offence which will always place the sentencing objectives of denunciation, deterrence and protection of the public at theforemost when a judge is fashioning a sentence which properly contributes to respect for the law and the maintenance of a just, peacefuland safe society. … 22 In the result, I conclude the offence under s. 348(1)(

b) is of significant general gravity. [Emphasis in original] [26] Even after Debigare, this Court has continued to underscore the serious nature of this type of offence. In R v Deforest, 2014SKCA 43, 438 Sask R 25, the accused entered the home of his estranged spouse during the early morning hours and assaulted her. No

weapon was used. This Court upheld the three year sentence imposed. In R v Klemenz, 2015 SKCA 89 [Klemenz], this Court againstressed the gravity of violent home invasions (para. 47). [27] In R v Payne, 2007 SKCA 28 at para 22, 293 Sask R 31 [Payne], this Court said: 22 At the same time, it is my respectful view that the trial judge nonetheless failed to give sufficient weight to the aggravatingfactors that did exist in this case.

As was pointed out in Pelly, a central purpose of s. 348.1 is to recognize the peculiar vulnerability ofvictims who are subject to violence or threats of violence in their homes, where they are out of sight of passers-by and often unable tosummon help. In addition, this was a violent offence. … [28] With these cases and sentencing objectives in mind, I begin my analysis by observing some key considerations at play in thesentencing of home invasions. The nature of a home invasion and assault necessarily involves two aspects of criminal behaviour.

First,there is the breach of the security of a person’s home which as pointed out in R v Pelly, 2006 SKCA 60, 210 CCC (3d) 416, strikes “atthe very core of a peaceful and safe society” and “often results in lasting physical and psychological injury”. Second, there is the assaultwhich in itself, depending on the circumstances, results in physical and psychological injury.

In addition to these aspects of criminalbehaviour, there must also be a recognition of the peculiar vulnerability of victims in their own homes (Payne at para. 22). [29] It is because of these considerations that denunciation and deterrence are emphasized in the sentencing of this type of offence.Society is entitled to expect that the courts will protect the public and maintain public confidence in the administration of justice byimposing penalties commensurate with these crimes (R v Seymour (1994), (SK CA), 116 Sask R 234 (CA) at para 7)and by continuing to emphasize the objects of denunciation and deterrence. [30] With this background, I turn to the arguments of the Crown and defence.

Mr. Foster argues that the sentence imposed is fitbased on Debigare. He reiterates his arguments made before the sentencing judge. The Crown makes a number of arguments on thebasis that the sentencing judge erred by failing to consider one or more of the relevant sentencing factors or erred in the analysis of thosefactors.

I will address them in turn. [31] The sentencing judge, in her usual thorough fashion, instructed herself on the governing sentencing objectives, in this casedenunciation and deterrence, and the other objectives set forth in s. 718 of the Criminal Code as well as the principle of proportionalityenunciated in s. 718.1 and the principle of parity and others set forth in s. 718.2.

She also instructed herself on s. 348.1 which makesknowledge by the perpetrator of a crime under s. 348 that the home was occupied an aggravating circumstance. [32] The sentencing judge appropriately set forth the relevant objectives, principles and sentencing factors and acknowledged thatthe crime was serious and grave. However, in my view, the sentencing judge’s understanding of the effect of Debigare caused her to errin her application of the objects of denunciation and deterrence and the principles of proportionality, parity and her assessment ofaggravating and mitigating factors.

In my view, many of the mitigating factors in the sentencing of Mr. Foster are not mitigating or areoveremphasized. I will explain. [33] The Crown argues the sentencing judge made a number of specific errors. First, with respect to proportionality the Crownsubmits the sentencing judge failed to acknowledge the gravity of the offence by shifting some of the blame for the offence to the victim.The Crown points to her discussion of the impact of the offence on Mr. Cowan and that he may bear some responsibility for setting upcircumstances which led to unintended consequences (para. 53). To be sure, the conduct of Mr.

Cowan which gave Mr. Foster and theothers a purpose to confront him was odious. However, the moral turpitude of the victim of a home invasion and assault is not a properconsideration on sentencing. Such consideration may tend to diminish the seriousness of the offence because the victim may be viewedas the author of his own misfortune. [34] The Crown submits that the actions of Mr. Foster and the co-accused were examples of vigilantism. It is common ground thatMr.

Cowan’s actions had been reported to the police but on December 27, 2011, there was no indication that anything came of it and itmay be inferred that this factor played a role in the offence. Mr. Foster and the others clearly decided to take matters into their ownhands in response to the perceived wrongs committed by Mr. Cowan. That such a decision resulted in a home invasion is particularlyabhorrent and not diminished by any behaviour of Mr. Cowan. Even people who have in the past conducted themselves egregiously orcriminally have a right to be safe in their own home from criminal behaviour.

I do not, by saying this, in any way condone the behaviourof Mr. Cowan. [35] The Crown also submits that the sentencing judge’s focus on the duration of the offence understates its seriousness. Thebrevity of the incident, while a factor to consider, does not diminish the seriousness of the offence, nor, in my view, Mr. Foster’sculpability. Mr. Foster did not know Mr. Cowan nor had he been wronged by him yet he took the lead in confronting him. The actions ofMr. Foster repeatedly threatening to blow Mr.

Cowan’s head off, i.e., the prospect of imminent death repeated over the space of severalminutes, ranks near the apex of the terror a victim may feel when his or her home is invaded. Added to this psychological assault wasthe physical injury of the loss of Mr. Cowan’s teeth and substantial bruising. Mr. Foster acknowledged that he was responsible for theinfliction of all of this and his actions were grave indeed.

The brevity of the incident does not diminish its seriousness. [36] The Crown also argues that the sentencing judge understated the seriousness of the offence stating that the level ofintoxication of the three, although not a mitigating factor, negatived a “clear” intention to commit the crime. The Crown argues thiscomment suggests that the acts of Mr. Foster are somehow less culpable because of his intoxication. In my view, despite the disclaimerthat intoxication is not mitigating, such a comment suggests that the sentencing judge viewed the seriousness of this offence as somewhatlessened. Mr.

Foster pleaded guilty to the offence which includes the requisite mental element. Intoxication does not lessen theseriousness of the offence. [37] The Crown argues that the seriousness of the offence was understated because the sentencing judge believed there was nopremeditation. The sentencing judge concluded that the three did not plan the event in advance. While their visit to Mr. Cowan may nothave been concocted days in advance, it was premeditated. Mr. Foster and the others had a whole evening to think about confronting Mr.Cowan. In short, the parties developed a plan to go to Mr.

Cowan’s home and obviously had the foresight to arm themselves before theyleft. That the plan was developed over a short period of time does not mitigate the seriousness of the offence.

[ 38 ] In

summary, the offence committed by Mr. Foster was serious and he was highly culpable despite Mr. Cowan’s conduct, the duration of the offence and Mr. Foster’s intoxication. That seriousness and culpability was, in my view, underemphasized on sentencing as explained. [ 39 ] The Crown also argues that the trial judge improperly applied the principle of parity. The Debigare case played a large role in the sentencing judge’s application of this principle.

In my view, the sentencing judge misunderstood the effect of Debigare on the principle of parity. [ 40 ] As an initial point, the sentencing judge misunderstood the position of the Crown on Debigare . She states that the Crown had acknowledged that Debigare had changed the sentencing landscape and the Crown “takes the position that but for Debigare , a four year sentence for Mr. Manulak and Mr. Foster … would be appropriate.” There is no indication in the sentencing transcript that this was so.

Crown counsel did not take the position that Debigare had changed the landscape with respect to the sentencing of home invasions. The Crown’s position was that despite Debigare , four years was the appropriate sentence.

Counsel for the Crown did indicate that although the sentencing judge had to take Debigare into account he was “not prepared to concede … that Debigare provides the direction to the Courts of Saskatchewan to a completely new range of sentence in home invasion cases”. [ 41 ] Whether the sentencing landscape has changed is, of course, the crux of the issue in this case for it appears that, based on the sentence imposed on Mr. Foster, the sentencing judge has interpreted Debigare to mean just that. To the extent that Debigare was treated as substantially altering the sentencing landscape, that was an error.

While the sentencing judge correctly acknowledged denunciation and deference were the governing objectives and that the sentences in Debigare were not standard sentences to be imposed, the sentencing judge appears to still have used the case as a new sentencing yardstick. It is not. Caldwell J.A. made this clear in Debigare : 41 I want to make it perfectly clear that in varying these sentences in this way I am not suggesting the sentences now imposed are standard sentences to be followed in offences under s. 348(1)(

b) which might be characterised as home invasions. The varied sentences are, in my opinion, lenient sentences where the leniency was called for chiefly by reason that none of the respondents had a criminal record prior to their commission of this offence. The jurisprudence of this Court prior to and after Debigare respecting the seriousness of home invasions, the primacy of the objectives of denunciation and deterrence and the nature of an appropriate and fit sentence still govern. [ 42 ] I want to make it clear that the sentences in Debigare were not standard sentences to be followed on offences under s. 348(1) (

b) with respect to home invasions. The sentences in Debigare were lenient but Debigare has not changed the sentencing landscape and a sentence in a home invasion that would serve the objectives of denunciation and deterrence will usually require a penitentiary term depending on the circumstances. [ 43 ] That said, I do not believe this case is on par with Debigare . The sentencing judge compared the aggravating factors in Debigare and this case and concluded that the two cases were similar enough so that there was relative parity between the two in the final result.

However, as observed by Ryan-Froslie J.A. in Klemenz : 46 In my view, the principle of parity does not involve a “matching” exercise. What it requires is that the sentence imposed fall within the acceptable range of sentences imposed for similar offences committed by similar offenders, and that differences in sentences can be rationally explained. In other words, sentencing is not merely a comparative exercise in which judges seek to find similar offences and then impose the same sentence. Such a process ignores the fact that the underlying purpose(

s) for imposing a sentence in any particular case may vary, depending on the offence, the region where it occurred, the victim and/or the offender. … [ 44 ] Although some of the facts surrounding the commission of the offence in Debigare may be said to be similar, this case is different in significant and substantial ways from Debigare . What sets it apart is: (

i) the use of a gun; (ii) the repeated threats of a grisly death; (iii) the bruising and teeth injury (in Debigare there was minimal injury); (iv) the home invasion took place late at night; and (

v) this was

an act of self-help for perceived wrongs which should have been left to the police to deal with. [ 45 ] As well, the leniency exercised by this Court in Debigare is not justified in the circumstances of this case. The accused Debigare and McQuinn did not have records and their post-offence conduct had been exemplary. In Mr.

Foster’s case the fact of a previous conviction, his continued lack of attention to his alcohol issues, and his subsequent alcohol-related conviction, which involved bodily harm, suggest that the framework of personal factors that underpinned the Debigare decision and resulted in a more lenient approach is not present here. [ 46 ] That said, Debigare can also not be interpreted to mean that accuseds with no records or short records or who have complied with pre-sentencing conditions must necessarily be eligible for leniency.

It will be a rare case where these factors will provide such mitigation of sentence that denunciation and deterrence are no longer in the forefront. Likewise, exemplary post-offence conduct will not necessarily result in lenient sentences such as those in Debigare . VII. Conclusion [ 47 ] In my view, the sentence imposed on Mr. Foster is demonstrably unfit because it understates the significant gravity of his offence and his moral culpability for it. The objectives of denunciation and deterrence were underemphasized primarily because of an erroneous

interpretation of the effect of Debigare on sentencing for this kind of offence. The mitigating and personal factors in play were, in my view, overemphasized. [ 48 ] A fit sentence in this case is a total sentence of three years taking into consideration all the circumstances of the offence and offender as well as the sentencing objectives and principles discussed earlier. [ 49 ] The Crown’s appeal is allowed.

[ 50 ] A sentence of two years will be substituted for the 12 months less one day incarceration for the ss. 267 (

b) and 348(1) (

b) Criminal Code matters. The sentence of one year consecutive for the conviction under s. 85(2) (

a) of the Criminal Code will remain, as will all other ancillary orders except the probation order which is set aside. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Herauf J.A.” Herauf J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.