R v Slippery, 2015 SKCA 149

Court of Appeal for Saskatchewan Docket: CACR2550 and CACR2533 Citation: R v Slippery , 2015 SKCA 149 Date: 2015-12-24 Between: Her Majesty the Queen Appellant And James Terrance Slippery Respondent Before: Richards C.J.S., Jackson and Whitmore JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Whitmore On Appeal From: Provincial Court, J.C. of Saskatoon Heard: 6 August 2015 Counsel: Erin Bartsch for the Appellant Michael Nolin for the Respondent Richards C.J.S. I.

Introduction [ 1 ] James Slippery attacked his partner, Ms. W., on two separate occasions. As a result, he was ultimately convicted of one count of assault, one count of robbery and three counts of breaching conditions. He was sentenced to 23 months in jail and 12 months of probation with terms that he not contact Ms. W. and that he complete programming for addictions, domestic violence and anger management. [ 2 ] The Crown submits the trial judge imposed an unfit sentence. It asks this Court to increase Mr.

Slippery’s jail term to five years. [ 3 ] The Crown also contends that, in relation to the first incident involving Ms. W., Mr. Slippery should have been convicted of robbery rather than assault. Mr. Slippery does not contest that argument. II. the offences [ 4 ] Mr. Slippery and Ms. W. had a difficult five year on-and-off relationship that produced two children. [ 5 ] Ms. W. was with Mr. Slippery at his sister’s house on June 22, 2014. Ms. W. left to get drugs and then went to the apartment of one of her friends. Mr. Slippery came to the friend’s apartment looking for Ms. W.

She heard him arrive because he yelled at her friend and demanded to know Ms. W.’s whereabouts. Mr. Slippery was angry because Ms. W. had not bought him drugs. He was also angry she had her phone and therefore he did not know who she was talking to. Ms. W. decided to step onto the balcony of the apartment so there would be witnesses if Mr. Slippery tried to hurt her. [ 6 ] Mr. Slippery found Ms. W. on the balcony and repeatedly demanded to know where her belongings were. She did not respond and instead told him he was not supposed to be around her. He approached Ms.

W. while removing his belt, wrapped the belt around her neck and told her to “get the fuck inside.” A neighbour who was watching this called the police. Mr. Slippery kept trying to pull Ms. W. inside but she resisted. Finally, he grabbed her by the hair and dragged her into the apartment. He then told her friend to close the balcony door. [ 7 ] Inside the apartment, Mr. Slippery beat Ms. W. He repeatedly kicked her and kneed her in the head as she lay on the floor. He demanded to see her phone. She begged him to stop the assault but he did not. He also ignored her friend when she asked him to stop. Mr.

Slippery took Ms. W.’s phone, called her a “dumb bitch” and left the apartment. [ 8 ] A police officer arrived at the apartment to find Ms. W. crying. Her face and head were already swollen. She had marks around her neck, loose hair, bruising on her arms and “goose eggs” on her head. [ 9 ] Given that she had nowhere to stay, Mobile Crisis dropped Ms. W. off at Mumford House, a shelter for homeless women located near where the offence had occurred. As it happened, Mr. Slippery was living two houses away from the shelter.

The police made several urgent attempts to locate and arrest him, but he could not be found. [ 10 ] On July 2, 2014, Ms. W. was still living at Mumford House. She was standing outside of it when Mr. Slippery approached her. They walked down the street talking about their children and he gave her back the phone that he had taken on June 22. They sat on the grass in front of a house. At that point Mr. Slippery began to get upset and “flipping out.” He grabbed Ms. W.’s dress and pulled it over her head.

She screamed as he grabbed her by the dress and hair and dragged her into a nearby apartment building and up the stairs to

the door of his niece’s apartment. Mr. Slippery then took Ms. W.’s phone and purse and threw those items into the apartment. He enteredthe apartment and locked Ms. W. outside. [11] A bystander called the police. The police found Ms. W. near the apartment. She had bruises on the back of her neck, redmarks along her hairline and scratches on her arms, chest and knee. [12] Mr. Slippery had fled the scene before the police arrived. He was eventually arrested on July 17, 2014. III. Mr. slippery’s background [13] Mr. Slippery is presently 33 years old.

He is a member of the Yellow Quill First Nation but has primarily lived in urbansettings. [14] Mr. Slippery was born and raised in family circumstances where alcohol abuse was the norm and emotional and physicalabuse were common. He was taken into care by the Ministry of Social Services when he was approximately seven years old and was inand out of care until the age of 10. At that time, he was placed in a boarding school on Gordon First Nation. He ran away from the schoolwhen he was 11 years old and has been essentially on his own since that time, living on the street and wherever he could make do.

Hebegan using alcohol and drugs at the age of 11 or 12. By the age of 18, he was using cocaine and morphine. Mr. Slippery completed hisgrade 10 while incarcerated but has never been employed. [15] Mr. Slippery and Ms. W.’s relationship was troubled by drug and alcohol abuse by both parties. They have two childrentogether. Ms. W. has four other children from a different relationship and a stepchild. [16] Mr. Slippery has lived a criminal lifestyle for most of his life and associates with people who have addiction issues.

He has asignificant criminal record comprising 30 property-related convictions, 21 convictions for breaching court orders, three convictions forobstructing justice and one conviction for being unlawfully at large. In addition, he has two assault convictions, two convictions forweapons-related offences and a conviction for being an accessory after the fact to murder. On that latter offence he served three years inprison in addition to a four-and-a-half year credit for remand. IV. the sentencing decision [17] Mr. Slippery was charged with three offences in relation to the June 22, 2014 incident: (

a) robbery, (

b) breach of anundertaking to keep the peace and be of good behaviour, and (

c) breach of an undertaking to have no contact with Ms. W. The trial judgeacquitted Mr. Slippery of the robbery charge on the basis that the Crown had not proven Ms. W. was the owner of the phone that hadbeen taken from her. As a result, the trial judge convicted Mr. Slippery of the lesser included offence of assault. (Mr. Slippery concedesthis was an error.) The judge also convicted Mr. Slippery on the two breach of conditions charges. [18] After Mr.

Slippery was convicted for the offences arising out of the June 22 incident, he pled guilty to the robbery and breachof undertaking charges relating to the events of July 2, 2014. [19] The trial judge began her sentencing decision by briefly reviewing Mr. Slippery’s troubled childhood and upbringing. Shethen noted several aggravating factors including the domestic violence dimension of the offences in issue, the fact the offences had takenplace in breach of a no contact order, the humiliating and degrading nature of Mr. Slippery’s treatment of Ms. W., the impact of theabuse on Ms. W., and Mr.

Slippery’s significant criminal record. As for mitigating factors, the trial judge pointed to Mr. Slippery’s guiltypleas in relation to the events of July 2 and his apology to Ms. W. during the course of the sentencing hearing. [20] Turning to the particulars of the sentencing exercise, the trial judge referred to R v Gladue, (SCC), [1999] 1SCR 688 [Gladue] and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee] and concluded that the circumstances of Mr. Slippery’supbringing moderated his moral blameworthiness. [21] The trial judge sentenced Mr. Slippery as follows in relation to the June 22 incident: (

a) assault: six months incarceration, and(

b) breaches of undertakings to keep the peace and not contact Ms. W.: two months concurrent to each other but consecutive to thesentence for assault. [22] As for the convictions arising out of the events of July 2, the trial judge imposed these sentences: (

a) robbery: 12 monthsincarceration followed by 12 months of probation, and (

b) breach of undertaking to not contact Ms. W.: three months consecutive. Theprobation order included terms that Mr. Slippery not contact Ms. W. except through a lawyer, and that he participate in assessment andcomplete programming for addictions, domestic violence, personal counselling and anger management as directed. [23] In the end, Mr. Slippery received a bottom-line sentence of 23 months in jail to be followed by 12 months of probation. V. Analysis A. Standard of Review [24] The standard of review for sentence appeals is deferential. In R v Lacasse, 2015 SCC 64 [Lacasse], the Supreme Court hasvery recently indicated that: (

a) an error in principle, a failure to consider a relevant sentencing factor or an erroneous consideration of an aggravating or

mitigating factor will justify appellate intervention only when the trial judge’s decision in that regard had an impact on the sentence (at para 44); (

b) a court of appeal may not intervene simply because it would have weighed sentencing factors differently than the trial judge (at para 49); (

c) a court of appeal may not intervene on the ground that it would have put the sentence in a different range or category. The choice of sentencing range or of a category within a range does not itself constitute a reviewable error (at para 51); and (

d) a sentence may be demonstrably unfit even if the judge has made no error in imposing it (at para 52). [ 25 ] In the end, the Supreme Court said that a court of appeal may intervene in a sentencing decision only if the sentence is demonstrably unfit in the sense of being “clearly unreasonable,” “clearly or manifestly excessive,” or “clearly excessive or inadequate” (at para 52).

Wagner J., writing for the majority of the Court, said this: [53] This inquiry [as to fitness] must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code , which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle.

Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 (

a) and (

b) of the Criminal Code . [54] The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality.

This Court explained this as follows in M. (C.A.) : It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. … Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92] B. The Fitness of the Sentence [ 26 ] The Crown submits that the trial judge committed several errors in the course of her sentencing decision. It says she: (

a) failed to identify the proper sentencing objectives, (

b) did not properly appreciate the gravity of Mr. Slippery’s crimes, (

c) did not correctly assess what were said to be mitigating factors, and (

d) erred in her assessment of Mr. Slippery’s moral culpability. Overall, and more fundamentally, the Crown says the sentence imposed by the trial judge was demonstrably unfit and asks that Mr. Slippery be given a sentence of five years in prison. While I have doubts about the Crown’s entitlement to ask for a sentence of that length given the position it took on sentencing in the court below, I need not deal with that issue in view of my ultimate conclusions. 1.

Sentencing Objectives [ 27 ] The Crown contends that, as a matter of principle, a sentencing judge must emphasize the objectives of denunciation and general deterrence over rehabilitation and individual deterrence when sentencing for a crime involving domestic violence. In this regard, it cites R v Ochuschayoo , 2004 SKCA 16 , 241 Sask R 284 [ Ochuschayoo ]. [ 28 ] Ochuschayoo involved two different episodes of domestic violence that led to convictions for assault with a weapon and, in addition, a conviction for assault causing bodily harm to a third party and a conviction for breach of an undertaking.

In the first incident, Mr. Ochuschayoo repeatedly struck his domestic partner in the face and kicked her over 50 times. The victim blacked out. When she regained consciousness, she was bleeding from her mouth, nose and forehead and both of her eyes were swollen shut. Mr. Ochuschayoo then beat her for an extended period by kicking her in the head, back, face and legs and whipping her across the arms and hands with a stereo cord. Seven months later, while on bail and subject to a non-contact order, Mr. Ochuschayoo assaulted the victim again by chasing her into a field and punching her repeatedly in the head.

He also assaulted the victim’s mother by striking her with a bottle, a chair and a bicycle. [ 29 ] At trial, Mr. Ochuschayoo was given a global sentence of two years (two years for the first assault on the victim; 12 months concurrent for the second assault on the victim; and 18 months concurrent for the assault on the victim’s mother). This Court substituted a sentence of three years for the first assault and emphasized that “domestic violence is a serious matter and must be so recognized.” It said the two-year sentence was demonstrably unfit and failed “…to deter [Mr.

Ochuschayoo] and others who might be so minded from committing this type of offence.” [ 30 ] I, of course, entirely agree that domestic violence is serious criminal activity and must be treated as such. However, I do not read Ochuschayoo as saying that in imposing a sentence for domestic violence a trial judge must, as a matter of legal principle, always and necessarily emphasize denunciation and general deterrence above all else.

Any rigid and unwavering view of this sort would be inconsistent with the fundamental notion that sentencing is to be done on a case-by-case basis in a way so as to reflect both the gravity of the offence and the degree of responsibility of the offender. See: Lacasse at paras 49-50 . [ 31 ] In any event, while the trial judge in this case did not indicate which sentencing objective or objectives she was emphasizing and which she was not, it seems clear enough that she did not lose track of denunciation and deterrence.

After all, she imposed a global sentence of 23 months in jail to be followed by 12 months of probation. It might be contended this sentence is unfit. However, the fitness of the sentence is something that is conceptually distinct from a failure to emphasize denunciation and deterrence in preference to other sentencing objectives. In other words, the fact that a judge emphasizes denunciation and deterrence (or any other sentencing objectives

for that matter) is not determinative of the question of whether a sentence is demonstrably unfit. A judge might, for example, choose to emphasize denunciation and deterrence but nonetheless impose a sentence which is either unreasonably high or unreasonably low. 2. Gravity of the Offences [ 32 ] The Crown also contends that the trial judge did not properly appreciate the gravity of the offences in issue here. I am not convinced of this point either.

In the course of her reasons for decision, the judge identified the relevant aggravating features of the offence by stating as follows: Aggravating factors in this case include that it involves domestic violence. The substantive offences occurred in close proximity to each other; involved the same victim and occurred while Mr. Slippery was on court-ordered conditions. Mr. Slippery knew police were looking for him, yet avoided arrest. Mr. Slippery’s actions such as ripping [Ms. W.’s] dress off were humiliating and degrading. It is apparent from [Ms.

W.’s] victim impact statement which she read to the court, that the abuse she has suffered at the hands of Mr. Slippery has resulted in feelings of fear, insecurity, low self-esteem and a loss of hope. [ 33 ] In light of all of this, it is not readily apparent how it can be said that the trial judge failed to appreciate the gravity of Mr. Slippery’s offences. It might be contended that she imposed an unfit sentence but, again, that is a separate issue. 3. Mitigating Factors [ 34 ] Next, the Crown submits that the trial judge did not properly assess the mitigating factors relevant to Mr. Slippery’s sentence.

In this regard, the judge stated as follows: Mitigating factors in this case are few, but include the fact that Mr. Slippery pled guilty to the charges in the Information ending in 156. When I asked Mr. Slippery if he had anything to say, he offered an apology to the victim. [ 35 ] The Crown suggests that the guilty pleas relating to the July 2 incident were not mitigating because they were entered only after Mr. Slippery had been convicted on the charges relating to the June 22 incident—convictions that followed a trial where Ms. W. had been forced to testify. All of that is of course true. Mr.

Slippery’s guilty pleas were not a textbook example of an early acknowledgement of guilt aimed at accepting responsibility and sparing a victim from having to give evidence. However, they were nonetheless guilty pleas and there is no reason to believe the trial judge did not appreciate or understand the circumstances in which they were entered. [ 36 ] It is also true that Mr. Slippery’s apology came very late in the game and only when he was faced with the sentencing hearing. Nonetheless, he did offer an apology to Ms. W.

Again, there is no reason to believe that the trial judge failed to appreciate the timing of the apology and the circumstances in which it was offered. Further, having heard Mr. Slippery speak, she was better positioned to assess the genuineness of his comments than is this Court. 4. Moral Blameworthiness [ 37 ] The Crown’s next argument concerns a comment made by the trial judge about Mr. Slippery’s moral blameworthiness. Its submissions on this front concern the following part of the trial judge’s decision: Mr. Slippery has not led a lawful or productive adult life.

He has a history of drug addiction and gang involvement. However, his current situation must be considered in conjunction with the circumstances of his upbringing. Mr. Slippery was born into an environment of addiction and abuse; taken into the care of the Ministry of Social Services around age 7 and has been on his own since about the age of 11. As a result of these circumstances, he was not provided with moral values and life skills conducive to becoming a contributing member of society. Instead, he turned to alcohol, drugs and gangs, leading to his offending behaviours.

These circumstances are examples of the factors described by the Supreme Court of Canada in Gladue and Ipeelee . … The level of moral blameworthiness attributable to Mr. Slippery in this case is moderated by the circumstances of his upbringing. [ 38 ] The Crown contends the trial judge erred in applying Gladue and Ipeelee to find the circumstances of Mr. Slippery’s upbringing “moderated” the level of his blameworthiness. More particularly, it suggests that Mr.

Slippery’s upbringing could not have reduced his responsibility for the offences in issue here. [ 39 ] This line of argument is grounded, of course, in s. 718.2 (

e) of the Criminal Code as it has been interpreted by the Supreme Court in Gladue and Ipeelee . It is necessary, therefore, to look somewhat more closely at what the Supreme Court has said in this area. [ 40 ]

Section 718.2(

e) provides that, when a court imposes a sentence, “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.” That provision was enacted against the backdrop of concern about the high rates of incarceration of Aboriginal offenders and, in relation to Aboriginal people, it was designed to ameliorate the problem of overrepresentation in the prison population and to encourage judges to take a restorative approach to sentencing ( Ipeelee at para 59 ). [ 41 ] In Gladue , the Court explained that s. 718.2 (

e) had altered the method of analysis that sentencing judges are to use in determining a fit sentence for an Aboriginal offender (at para 93). Judges must consider two things. First, the systemic or background factors that may have played a

part in bringing the particular offender before the Court. Second, the types of sentencing procedures and sanctions that might be appropriate for the offender because of his or her particular heritage or tradition ( Gladue at para 66 ; Ipeelee at para 59 ).

[ 42 ] Both sets of circumstances can bear on the nature of a fit and proper sentence. First, systemic and background factors may shed light on an offender’s level of moral blameworthiness. This was explained as follows in Ipeelee : [73] … Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited option for positive development.

While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability. … Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender . … (Emphasis in original) [ 43 ] The second and ultimately most important set of issues—the types of sanctions—may also affect the bottom line of a sentence.

While not relating to the level of an offender’s culpability, sentencing judges must recognize that different or alternative restorative justice-type sanctions may effectively achieve necessary sentencing objectives in a particular community ( Ipeelee at para 74 ). [ 44 ] The Crown’s submission in this case concerns the so-called systemic or background factors. As noted, it rejects the trial judge’s conclusion that Mr. Slippery’s background moderated his moral blameworthiness because, in its view, there is no sufficient or adequate connection between Mr.

Slippery’s history and the offending in issue here. [ 45 ] This line of argument disregards the Supreme Court’s injunction to the effect that there is no onus on an offender to establish a causal link between background factors and an offence in order for those factors to become relevant in the sentencing process ( Ipeelee at para 81 ). The Court explained the situation as follows in Ipeelee : [83] As the Ontario Court of Appeal goes on to note in Collins , it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending.

The interconnections are simply too complex. The Aboriginal Justice Inquiry of Manitoba describes the issue, at p. 86: Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government’s treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated. Furthermore, the operation of s. 718.2 (

e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence.

Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. [ 46 ] These generalities are obviously somewhat difficult to operationalize in the context of the concrete realities of any particular on-the-ground sentencing decision. Nonetheless, it appears to me that it was open to the trial judge to find that Mr.

Slippery’s extremely difficult background of childhood abuse, abandonment, and addictions shed at least some light on his moral blameworthiness for the offences in issue. [ 47 ] That said, I agree with the Crown that a sentencing judge’s inquiry into “the degree of responsibility” of an Aboriginal offender, as per s. 718.1 of the Criminal Code , must not end with a consideration of the systemic and background factors noted in Gladue . Those factors may be relevant to the question of an offender’s responsibility but they are not determinative of it.

Rather, a sentencing judge must consider and weigh all factors that might bear on an offender’s degree or level of responsibility before reaching a conclusion on that point. This was recently explained as follows in R v Chanalquay , 2015 SKCA 141 : [40] … Systemic and background factors are, of course, not the only considerations which are relevant in determining an offender’s blameworthiness. The sorts of factors that normally come into play on this front remain relevant to an assessment of the culpability of an Aboriginal offender.

The circumstances of such an offender “which could reasonably and justifiably impact on the sentence imposed” may speak to his or her moral culpability to an extent which would lead to a different sort of sentence than what might normally be imposed for the same offence. But, there is no invariable rule on this front ( Ipeelee at para 71 ).

Sentences have to be determined on a case-by-case basis taking into account all relevant considerations ( Gladue at para 88 ). … [52] A sentencing judge should not simply stack up all of the Gladue -type considerations at play in a case and, if the list is long or severe, automatically proceed on the assumption such factors have had a substantial limiting effect on the offender’s culpability. The required analysis is more demanding than that.

To determine the extent to which Gladue factors impact on an offender’s moral culpability, a sentencing judge must examine both the nature of the relevant factors and the particulars of the crime in issue. He or she should then consider the extent to which the unique circumstances of the offender “bear on his or her culpability” ( Ipeelee at para 83 ) in the specific context of the case at hand. As mandated by the Supreme Court, the search here is not for a cause-and-effect relationship but for circumstances that cast light on the degree of the offender’s blameworthiness for the specific offence in issue.

It might be that the Gladue considerations impact the offender’s culpability a great deal, not at all, or only to some intermediate extent. [ 48 ] In this case, four main considerations bear most directly on Mr. Slippery’s level of responsibility for his crimes. First, he committed both sets of offences while under a court order that he stay away from Ms. W. He obviously knew of that prohibition but chose to ignore it. Second, Mr. Slippery assaulted Ms. W. on two separate occasions several weeks apart. His crimes were not isolated events but part of a continuing story of abuse.

Third, the assaults involved a degree of humiliation and degradation. Finally, as expressly noted by the trial judge, there are Gladue considerations. [ 49 ] Overall, Mr. Slippery’s level of personal responsibility for the crimes committed against Ms. W. was high notwithstanding the

existence of the Gladue factors that, to some extent, put his conduct in context. However, it is not possible to directly upset the trial judge’s decision on the basis of the Crown’s concerns on this point. The bottom-line question, as per Lacasse , is whether the sentence she imposed is demonstrably unfit. 5. The Fitness of the Sentence [ 50 ] As noted, the ultimate issue in this case is the fitness of the overall sentence imposed on Mr. Slippery. The Crown submits the sentence should be five years in prison. [ 51 ] In taking this position, the Crown stresses that Mr.

Slippery was convicted of robbery and it refers to a number of cases where sentences in the range of two to three years, and more, were imposed for that offence: • R v Ewenin , 2009 SKCA (SentDig) 21: the 22-year-old offender participated in robbing a man she met through Internet dating. While he was at her house, she led him into a bathroom where he was pushed into the tub and struck on the head with a mallet by the co- accused. He had no cash so they drove him to an ATM where he was able to escape. She had a prior criminal record with two prior assaults.

She was sentenced to two years less a day jail; • R v Halkett , 2002 SKCA (SentDig) 50: the 21-year-old offender was standing on someone’s driveway with two friends at 6 a.m. The homeowner approached the men. They knocked him over and entered his house to steal money and jewellery. Both the homeowner and his wife were assaulted and sustained bruising. The offenders stole the victim’s truck. The offender had a prior criminal record with one robbery and one assault.

He was sentenced to three years jail; • R v Ahenakew , 2001 SKCA 117 , 213 Sask R 292: the 32-year-old offender and two co-accused wore masks and robbed a hotel bar. The victim sustained minor injuries. The offender had a prior criminal record with two prior assault convictions. He pled guilty and was sentenced to three years on appeal; • R v Smallboy , 1996 SKCA (SentDig) 60: the 25-year-old offender and a co-accused robbed the victim in the street using a tire iron to frighten him. The victim was knocked to the ground, held down and choked. The offenders stole five dollars from the victim’s pocket and fled.

The offender had no prior violent convictions, pled guilty and was sentenced to two years less a day; • R v Keenatch , 1996 SKCA (SentDig) 61: the co-accused in Smallboy . He had a prior record including one aggravated assault and three other assaults and was 31 years old. He was sentenced to three years jail; • R v McLeod , 1995 SKCA (SentDig) 71: the 25-year-old offender robbed the victim who was leaving a house party. The victim was knocked to the ground and kicked and his wallet was stolen. He had a prior criminal record including one aggravated assault and one assault causing bodily harm.

He was sentenced to three years jail; • R v Neapetung , 1994 SKCA (SentDig) 88: the 21-year-old offender lured a man into a dark alley where she and a co-accused assaulted him and demanded his PIN number. The victim was shoved into the trunk of a car where he continued to be assaulted and threatened with an unloaded BB gun. The victim escaped and suffered bruising, cuts and swelling. The offender had a minor criminal record. She was sentenced to four and a half years in jail. [ 52 ] It may be useful to mention again at this point that the trial judge sentenced Mr.

Slippery to six months incarceration for what she had determined to be an assault on June 22 and to 12 months incarceration, consecutive, for the July 2 robbery. These two sentences, combined with five months for the breach of conditions offences, yielded an overall sentence of 23 months in jail. In imposing these various sentences, it seems clear that the trial judge was attempting to fashion an overall sentence that involved both significant time in custody and a meaningful period of probation. In order to do that, she had to keep the jail sentence at two years or less.

See: Criminal Code , s 731(1)( b ). [ 53 ] I note all of this because, in seeking the result she desired and given the nature of the crimes in issue here, it might have been more appropriate for the judge to sentence Mr. Slippery to longer jail terms for the assault and the robbery (not exceeding two years) but made those sentences concurrent to the sentences for the breaches. An approach of this sort would have more effectively reflected the significance of the assault and the robbery. But, given that the Crown’s root concern in this appeal is with the length of the overall sentence imposed on Mr.

Slippery, I will focus on the appropriateness of that overall sentence. [ 54 ] I return, therefore, to the two attacks on Ms. W. They are obviously both serious and, as emphasized by the Crown, both were robberies—violations of s. 344 of the Criminal Code . But, at the same time, the gravamen of the attacks was in the nature of assault rather than in the nature of robbery in the more usual sense. The taking of Ms.

W.’s property appears to have been very much incidental to the attacks, thus making the offences here unlike those addressed in the sentencing precedents referred to by the Crown. [ 55 ] In my view, cases like R v Louison , 2008 SKCA 69 , 310 Sask R 217, are ultimately more useful sentencing reference points for this appeal than the authorities identified by the Crown. Mr. Louison had a pronounced history of violent and abusive behaviour toward the complainant, his girlfriend, and other women. His relations with the complainant generated a slew of charges (the “Mid-year Assaults”) in the middle of 2006.

While out on bail in December of 2006, and prohibited from contacting the complainant, Mr. Louison committed two further assaults (the “Winter Assaults”). On December 13, 2006, while intoxicated, he attempted to enter the complainant’s home, threatened and intimidated her, pulled her hair, and prevented her from leaving. The other assault, in the early hours of January 1, 2007, involved four or five blows to the complainant’s head and face that produced bruising and a swollen black eye. Mr.

Louison was sentenced to a total of two years less a day for the Mid-year Assaults (12 months for assault causing bodily harm; six months for common assault and six months less a day, concurrent, for a second incident of common assault). In relation to the Winter Assaults, he was ultimately given a sentence of 12 months for the assault that had caused the black eye (consecutive to the Mid-year Assault sentences already being served); a sentence of six months, concurrent, for the second assault; and six months, concurrent, for the breach of condition.

This Court allowed the Crown’s appeal with respect to the Winter Assaults and imposed a total sentence of 24 months: 18 months for the assault that had caused the black eye and a sentence of six months, consecutive, for the other assault. As

indicated, and notwithstanding that it did not feature a robbery, this is a more revealing precedent than the cases identified by the Crown. [ 56 ] I return, now, to the decision of the trial judge. It seems reasonably apparent why she took the approach reflected in her decision. It can be safely inferred that she sent Mr. Slippery to jail primarily to meet the goals of denunciation and deterrence and that she imposed a probationary term in order to separate Mr. Slippery from Ms. W. after his release and to get him assistance for addictions, domestic violence and anger management.

This is the sort of restorative approach to sentencing referred to in Gladue and discussed by this Court in Chanalquay . [ 57 ] In the end, I would not interfere with the sentence imposed by the trial judge. To be sure, it was certainly open to her to have imposed more severe sanctions than the ones she selected and I in no way wish to minimize the nature of the crimes committed by Mr. Slippery. However, at the end of the day and taking into account (

a) the direction in Gladue and Ipeelee to consider restorative-type sentencing, (

b) the nature of the offences committed here as compared to those involved in the authorities cited by the Crown, and (

c) Mr. Slippery’s rehabilitative needs, I am unable to conclude that the overall sentence imposed by the trial judge was demonstrably unfit. VI. conclusion [ 58 ] The Crown’s appeal in relation to the June 22, 2014 incident is allowed and a conviction for robbery substituted for the conviction for assault. [ 59 ] The Crown’s sentence appeal must be dismissed. “Richards C.J.S.” Richards C.J.S. I concur. “Richards C.J.S.” for Jackson J.A. as per authorization I concur. “Richards C.J.S.” for Whitmore J.A. as per authorization