R v Ahpay, 2015 SKCA 136

Court of Appeal for Saskatchewan Docket: CACR2638 Citation: R v Ahpay, 2015 SKCA 136Date: 2015-12-09 Between:Her Majesty the QueenAppellant AndBarry AhpayRespondent Before: Jackson, Ottenbreit and Ryan-Froslie JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Mr. Justice OttenbreitIn concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Ryan-FroslieOn Appeal From: Provincial Court, J.C. of WynyardHeard: October 22, 2015Counsel: Beverly L. Klatt for the Appellant Andrew L. Hitchcock for the Respondent Ottenbreit J.A. [1] Barry Ahpay (Mr.

Ahpay) was convicted in Provincial Court of driving while disqualified contrary to s. 259(4) of theCriminal Code and received a six month jail sentence and a one year driving prohibition. The Crown seeks leave to appeal and appealsthat sentence. For the reasons hereinafter set forth, leave is granted and the appeal is dismissed. [2] In July 2013, Mr. Ahpay, a resident of Yellow Quill First Nation, was observed driving on a road on the Yellow Quill FirstNation by a police officer. The officer was familiar with Mr. Ahpay and was aware that he did not have a driver’s licence at the time.Mr.

Ahpay was therefore stopped by the officer and charged accordingly. At the time he was stopped Mr. Ahpay’s driving had beennormal and unremarkable. He was sober when pulled over by the officer. [3] Mr. Ahpay has a long criminal record. Between 1985 and 2010 there are 60 convictions including 11 driving whiledisqualified offences. However, his last driving while disqualified offence occurred in 2007. For that offence Mr. Ahpay received a 12month jail sentence and a three year driving prohibition. Although Mr.

Ahpay had several more driving related offences, two of which, in1999 and 2005, were alcohol related, the rest of his long record was not driving related. [4] Mr. Ahpay was disqualified from driving by virtue of a certificate under s. 141 of The Traffic Safety Act, SS 2004, c T-18.1. [5] Mr. Ahpay is 47 years of age. He was raised on his First Nation initially by abusive grandparents and then later attendedresidential school. Mr. Ahpay has a Grade 10 education and has completed one year of a plumbing/heating apprenticeship. He has beengainfully employed by the First Nation since 2001.

He is in a relationship with a woman and has a young daughter. He is involved in hiscommunity and spends most of his time with his family. Mr. Ahpay accepted responsibility for the offence and described himself asgenerally respectful of the law. Mr. Ahpay was assessed as a medium risk to reoffend. [6] In Provincial Court, the Crown asked for a two year sentence largely based on Mr. Ahpay’s long criminal history and 11prior driving while disqualified offences. [7] The Provincial Court judge sentenced Mr. Ahpay to six months incarceration plus a one year driving prohibition.

He basedthis sentence on the fact that Mr. Ahpay had no driving while disqualified offences since 2007, there was no alcohol involved inMr. Ahpay’s driving, and there were no other issues or concerns about the driving itself where there might be risk to other people. [8] During the sentencing hearing, Judge Bellerose observed that many First Nations people with drinking and drivingconvictions do not have licences, because for various reasons they are not able to easily access programs such as ignition interlock,which would allow them to get their licence back sooner.

He further observed that many First Nations people do not take advantage ofservices offered by Saskatchewan Government Insurance which would assist them to regain their driving privileges. [9] 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). [10] The Crown argued on appeal that the range of sentence for this offence was 18 months to two years imprisonment and thatthe sentencing objectives of denunciation, deterrence and public protection were paramount.

In support of its argument, the Crown citedcases such as R v Bighead, 2013 SKCA 63, 417 Sask R 47, and R v Quewezance, 2011 SKCA 123, 375 Sask R 320. The Crownsubmitted that the Provincial Court judge erred by failing to properly apply the sentencing principles of proportionality, parity, thefactors in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue], and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433, and thegap principle.

[ 11 ] While the question posed by Gladue is “For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ” ( Gladue at para 80 ), other sentencing objectives and principles cannot be ignored because of Gladue factors. [ 12 ] While I agree that denunciation, deterrence and public protection are the paramount considerations in driving while disqualified cases, the circumstances of this case are somewhat unusual. Mr. Ahpay’s driving was not per se risky.

More significantly, he was not impaired by alcohol or drugs which would have affected his driving and put the public at risk. He had committed no similar offences since 2007. His personal, family and community connections are very positive. In these circumstances, a penitentiary term would, in my view, be inappropriate. [ 13 ] The trial judge was clearly aware of the need for denunciation and deterrence based on his exchanges with Crown counsel. The factors taken into account by the Provincial Court judge in sentencing Mr. Ahpay were appropriate. Mr.

Ahpay’s pre-sentence report provided information relevant to Gladue factors which the Provincial Court judge properly found applicable to Mr. Ahpay as a resident of a First Nation community who might have some difficulty navigating the process to obtain a valid licence sooner.

He took into account this offender, this offence and his community as well as the general context of the offence. [ 14 ] Taking into account the standard of review, the specific circumstances of the offence and the offender, with special emphasis on Gladue factors applicable to him, the sentence imposed, while on the low end of the sentencing spectrum, is not demonstrably unfit in the circumstances of this case. [ 15 ] The appeal is accordingly dismissed. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.