R v Parchomchuk, 2017 SKCA 101

Court of Appeal for Saskatchewan Docket: CACR2985 Citation: R v Parchomchuk , 2017 SKCA 101 Date: 2017-12-01 Between: Christopher John Parchomchuk Appellant And Her Majesty the Queen Respondent Before: Jackson, Whitmore and Ryan-Froslie JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Whitmore The Honourable Madam Justice Ryan-Froslie On Appeal From: Provincial Court, Regina Appeal Heard: November 9, 2017 Counsel: Carson Demmans for the Appellant Erin Bartsch for the Respondent Jackson J.A. I.

Introduction [ 1 ] The appellant appeals his 30-month sentence (less 9 months of pre-sentence credit) for one count of assault with a weapon, contrary to s. 267 (

a) of the Criminal Code , RSC 1985, c C-46. He pled guilty but, in doing so, he contested certain facts forming the circumstances of the assault. He also submitted that a medical condition arising from a subsequent gunshot wound should be considered as an important mitigating factor. He argued that a fit sentence would be time served. A sentencing hearing was held to settle the disputed facts.

The sentencing judge did not accept the appellant’s version of what had transpired but, instead, found the appellant had committed a serious assault that was unprovoked, and sentenced accordingly. [ 2 ] On appeal to this Court, the appellant submits the sentencing judge erred in principle by not giving effect to the mitigating factors of provocation, his guilty plea and his medical condition. In this Court, the appellant filed some letters in further support of his claim that his medical condition was significant.

He argued, as well, that a 30-month sentence is demonstrably unfit, having regard for the circumstances as found by the judge and similar cases from this jurisdiction. [ 3 ] The Court reserved the matter to consider, in particular, the appellant’s claim that the sentence was demonstrably unfit.

While recognizing that parity is a secondary sentencing principle, it was not clear to the Court how the sentencing judge had arrived at the 30-month sentence suggested by the Crown. [ 4 ] Having reviewed the sentencing judge’s reasons in light of the transcript, and having considered relevant case law from this jurisdiction, I conclude for the reasons that follow there is no basis to intervene.

Applying the applicable standard of review from R v Lacasse , 2015 SCC 64 at para 11 , [2015] 3 SCR 1089 [ Lacasse ], I conclude that the sentencing judge committed no error in principle that had an impact on the sentence and a 30-month sentence is not demonstrably unfit. II. Background [ 5 ] On October 6, 2016, the appellant was a tenant of a building where the complainant was the building manager.

It was not contested that, at some point, the complainant served the appellant with a notice of eviction and that the appellant struck the complainant three times in the head with a “small” or “smaller” ball-peen hammer that was “about 12 inches long”. The head of the hammer was described as “about three inches” long. [ 6 ] When the police arrived, droplets of blood were observed in the entrance of the complainant’s apartment and on a closet door in the entrance, with more blood on the floor as one moved deeper into the residence.

The complainant was bleeding from the left side of his head. [ 7 ] A subsequent CT scan showed a large hematoma on the left side of the complainant’s head with a 5 cm round contusion, for which he received five deep sutures. A second area of injury was noted on the front of the complainant’s head where a 3 cm cut required adhesive closing. The complainant was held overnight due to the amount of blood lost.

No surgery was required, but a small amount of blood had accumulated on his brain. [ 8 ] It is at this point that the evidence diverges. [ 9 ] According to the complainant, he encountered the appellant three times during the day of October 6, 2016. On the first occasion, the appellant approached him with a knife in hand, as a result of which the complainant told the appellant he was going to kill him. Shortly thereafter, the complainant served an eviction notice on the appellant. About one hour later, the appellant went to the

complainant’s apartment. When the complainant opened the door, the appellant tried to push his way into the residence. The complainant reacted by pushing against the door to try to keep the appellant out. The complainant became pinned behind the door. The appellant pulled out a ball-peen hammer and struck the complainant, causing the injuries described above. The complainant yelled for his wife to call the police. He testified the appellant struck him three or four times in the head with the hammer. [ 10 ] The complainant’s wife was not immediately on the scene.

She testified she saw the appellant strike her husband in the head with a hammer “maybe two, three times”. She saw her husband bleeding profusely from his head. Apart from that, she added nothing further to the evidence. [ 11 ] According to the appellant, there was only one encounter between the complainant and him – and it took place at the entrance of the complainant’s apartment. On this one occasion, he approached the complainant to confront him about his having been in the appellant’s apartment – and it was the complainant who had both the knife and the hammer.

After words were exchanged, the appellant said the complainant threatened him by saying he was going to kill him. After a further exchange, the appellant picked up the complainant’s hammer and struck him with it “two or three times”. He then dropped the hammer and left. [ 12 ] In his testimony, the appellant also testified about an incident that took place the following day when an unknown assailant shot him in the back of the head with a shotgun. As a result of the injuries sustained on that occasion, the appellant said he suffered nerve damage and almost died from blood loss.

He was, however, remanded on the present offence directly from the hospital. The injury became infected while the appellant was on remand, necessitating a further hospital visit of five days. Following this additional hospital stay, he was placed on remand again. At some point, he was given daily intravenous antibiotic treatment as an out-patient for six weeks. By the time of trial, he had lost all hearing in his right ear due to the infection. [ 13 ] As a result of the appellant’s testimony on all of these points, his counsel asked the sentencing judge to make these findings: (

a) only one altercation took place; (

b) the complainant threatened to kill the appellant; (

c) the appellant’s use of the hammer constituted excessive force – eliminating a defence of self-defence – but, according to defence counsel, nonetheless, the threats could serve as a relevant sentencing consideration as provocation for his actions; and (

d) his medical condition was sufficiently serious as to serve as a mitigating factor in sentencing. [ 14 ] Immediately after hearing the appellant’s testimony, and that of the complainant and the complainant’s wife, and before making any finding of fact stemming from the sentencing hearing, the sentencing judge heard sentencing submissions. During the course of this, the sentencing judge acknowledged that physical and mental injury can result in a reduced sentence or a non-carceral sentence. He asked the appellant’s counsel if he was looking for enhanced remand credit.

When the appellant’s counsel indicated this was not what was being sought, the sentencing judge did not return to the matter again. [ 15 ] The appellant’s counsel submitted that a fit sentence was nine months of incarceration, having regard for what he believed were the true facts and his client’s medical condition.

He arrived at the suggested nine-month sentence on the basis that this was the agreed-upon pre-sentence time, which would result in a sentence of time-served. [ 16 ] Based on what it believed were the true facts, the Crown submitted that a fit sentence was 30 months of incarceration, less 9 months of pre-sentence credit for remand time. III. Decision of the Sentencing Judge [ 17 ] With respect to the contested facts, the sentencing judge said he did not believe the appellant, but he did believe the complainant and his wife. He made the following findings of fact: (

a) more than one incident took place; and (

b) on the last incident, the appellant came to the complainant’s door with the hammer. In his actual sentencing reasons, the judge described the offence in these terms: What I’m also very concerned about is this, in -- in a large respect, was an assault in someone’s home. That’s a very, very serious offence. It was an unprovoked assault. I agree with the Crown on that matter as well. He was striking the victim, and this is admittedly, in the head at least three times, causing significant injury.

Although the -- there was not a skull fracture, there was a large hematoma, which I understand is blood on the brain if I was listening correctly. In some respects this accused is lucky that he’s not facing manslaughter charges or something like that. Of course, that didn’t happen and -- and he’s not being sentenced for that. But in some respects, he’s lucky that he’s only facing the charges that he is.

So again, we’ve got an accused with a related criminal record, an unprovoked attack in the -- the home of the victim, using a hammer with multiple strikes to the head of the victim. (Sentencing transcript at T58–T59) [ 18 ] Neither party provided the sentencing judge with any case law to support their submissions. Without referring to any case authority, the judge then sentenced the appellant to 30 months of incarceration, less 9 months of pre-sentence credit. He also imposed a sentence of 30 days concurrent for a breach of probation contrary to s. 733.1(1) of the Criminal Code .

The breach arose because the appellant’s actions on October 6, 2016, also constituted a failure to keep the peace and be of good behaviour, as mandated by a previously imposed probation order.

IV. Analysis A. Provocation [19] In light of the complainant’s admission that he told the appellant he would kill him, the appellant submits the trial judge madea palpable and overriding error of fact when he said the assault was “unprovoked”. If he had not made this error, the appellant claims theprovocation arising from the complainant’s threat would have been a mitigating factor in sentencing. The appellant asserts that thesentencing judge’s failure to address his argument on this point constitutes an error in principle.

For this latter proposition, the appellantrelies on R v Simcoe (2002), (ON CA), 156 OAC 190 (CA) at para 17, which in turn relies on R v Stone, (SCC), [1999] 2 SCR 290 [Stone]. At paragraph 237 of Stone, the Court held that the sentencing judge had been correct to considerprovocation as a mitigating factor in the circumstances arising in that case. [20] In the within case, the sentencing judge started his sentencing decision and then moved to resolve the disputed facts beforereturning again to consider what sentence to impose.

In my respectful view, notwithstanding the sentencing judge’s combination of fact-finding and sentence determination, at the point when the sentencing judge refers to the unprovoked nature of the assault, he is notaddressing the question of whether or not threats had been made or whether such a threat could constitute provocation in thecircumstances of this case.

He had already resolved that issue – by not accepting the appellant’s version of the evidence, whichconstitutes a finding that the assault was not provoked by the earlier threats. [21] The sentencing judge’s fact-finding reasons are brief, but he made a clear finding that he did not believe “the accused’sversion of events” (sentencing transcript at T57). He gave six reasons in support of his conclusions there had been at least one earlierencounter on the day in question, and that the appellant was not credible.

First, the appellant acknowledged he knew an eviction noticehad been served by the time he arrived at the complainant’s door. For the sentencing judge, this was evidence enough that an earlierencounter had taken place and provided some evidence to explain the appellant’s visit to the complainant’s apartment. Second, inexamination-in-chief, the appellant indicated he was not concerned about the eviction notice but, during cross-examination, he changedhis mind. Third, the appellant denied having a knife, but a knife was found in his possession when he was taken into custody.

Fourth, theappellant testified that everything transpired outside the apartment, but the police found blood “all over” the entrance area in theapartment. Fifth, the appellant admitted in cross-examination that when he first arrived at the complainant’s door, some cleaners werepresent, but they had not seen the complainant with a hammer. Sixth, the sentencing judge questioned why the hammer had never beenfound if it had belonged to the complainant and the appellant had dropped it as he said he had.

It would be unlikely for the complainantto have hidden the hammer. [22] On the other hand, the sentencing judge did believe the complainant and his wife. He found them to be credible and theirversion of events to be “somewhat logical” and “logical”: And both of them did seem credible in their testimony. Their description of what happened seemed somewhat logical in that there was anincident with the knife, the cleaners were around, it was upsetting for them. This resulted in an eviction notice being prepared andserved, which again seems logical, which resulted in a confrontation at the home.

Now, I stress it was at the home of [the complainant]in apartment number 2. I also found that both [the complainant and his wife] were credible in that they didn’t -- they didn’t exaggerate things. For instance, withrespect to [the complainant], he said that Mr. -- the accused pulled out a knife, but he said he didn’t swing it at him. If he was going toembellish his story, he could have easily said that the accused was swinging his knife at him. But he -- he, sort of, downplayed that andsaid he didn’t do that. [The complainant’s wife] said she didn’t even see a knife; that was before she came along.

So she was -- again, if -- if they’re concocting a story, she could have easily added that element to her story. I also found it interesting that [the complainant and his wife] described … the hammer differently. [The complainant] described it, I thinkhe said it was yellow, may have had some red on it. And [the complainant’s wife] said she thought it was red. You don’t expect people’stestimony to be exactly the same.

But what I found interesting, you’d think if it was [the complainant’s] hammer, they both would haveknown exactly what the hammer looked like given that it would have been around the residence and both of them would have known thecolour. And, I suppose, you could argue that perhaps they were lying about it, but I didn’t get that sense. I found them both to be crediblewitnesses.

Their -- certainly their testimony, although not perfectly in sync with each other, certainly corroborated -- [The complainant’swife’s] testimony certainly corroborated that of [the complainant’s]. (Sentencing transcript at T57–T58) [23] Again, while the sentencing judge’s reasons are perhaps not as clear as the appellant would like, he was not required to makehis findings on the basis of a standard of proof beyond a reasonable doubt. Section 724(3)(

d) of the Criminal Code requires only that thesentencing judge conducting a sentencing hearing “must be satisfied on a balance of probabilities of the existence of the disputed factbefore relying on it in determining the sentence”. [24] The sentencing judge’s findings in this case mean that the complainant’s threat was made during the first encounter, whichtook place approximately an hour before the assault.

The passage of time need not necessarily diminish the effect of provocation (see R vFraser (1999), (NS CA), 96 NSR (2d) 128 at para 22 (CA)), but in this case, the appellant said he picked up thehammer from the complainant’s toolbox, because of the threats made at that time. Since the sentencing judge found the threats weremade during the first encounter, nothing remains of the appellant’s claim he was provoked into picking up the hammer.

On the judge’sfindings, the appellant took the hammer with him to the apartment. [25] On appeal, as I understand it, the appellant is now putting forward a new theory, i.e., that the prior threats caused him to go tothe apartment armed with the hammer. Given the testimony that the appellant gave at the sentencing hearing, which was that he was

provoked into picking up the hammer because the complainant had threatened to kill him, it is not open to the appellant now to say theearlier threat provoked him.

This new argument would require this Court to make a finding of fact on a matter that was not in evidence atthe sentencing hearing, i.e., the appellant’s state of mind as a result of the earlier threats and how that brought him to the complainant’sdoor with a hammer in hand. [26] In the circumstances, given the sentencing judge’s view of the evidence, there is no basis for this Court to conclude that heerred in principle by not taking into account the complainant’s threat as justifying a conclusion of provocation. B. Effect of the appellant’s medical condition [27] In Clayton Ruby, Gerald J. Chan and Nader R.

Hasan, Sentencing, 9th ed (Markham, Ont: LexisNexis, 2017) at 297[Sentencing], the authors review a series of decisions in support of the principle that the mitigating effect of additional hardship causedby a phsical illness or injury can be a relevant factor to consider in sentencing and, indeed, may be significant in some cases.

Having saidthat, the principle is most usually given effect when the following conditions are present: Condition Authorities*an incurable, terminal, ordeteriorating illness R v Zabor, [1982] OJ No 186 (Ont CA) [Zabor], R v R.(A.), (MB CA), [1994] 4 WWR620 (Man CA) [R.(A.)], R v Coulson, 2008 ABPC 144, 445 AR 226 [Coulson]serious physical limitations (e.g.,the required use of a wheelchairbecause of para- or quadriplegia orother reasons) Zabor, R.(A.), R v Trudeau (1984), (MB CA), 31Man R (2d) 50 (CA), R v Lai (1988), (NL CA), 69 Nfld &PEIR 297 (Nfld CA) [Lai]requires extensive hospitalization R v McCrystal (1992), 55 OAC 167 (CA) [McCrystal], R v Archibald, [1991] BCWLD 1479 [Archibald]health conditions that would resultin incarceration endangering theirlife McCrystal were also elderly McCrystal, Archibald, or R.(A.)low life expectancy Archibald, Zabor, Coulson, or Lai *Many of the authorities referred to here come from Sentencing between pages 297 and299. [28] In this case, the only evidence that the appellant offered the sentencing judge in relation to his medical condition came fromthe appellant’s testimony: MR.

DEMMANS: Your Honour, I’m going to have to deviate from the format slightly just because my client has some behaviourproblems resulting from an injury he suffered after this incident. And I just want to go into it a little ’cause it will explain some of his -- THE COURT: Sure. MR. DEMMANS: -- ticks and behaviour. Q MR. DEMMANS: Okay, Chris. Now, I know you suffered a head injury. Just explain to the Court when that happened and whathappened and what symptoms you’ve had since then.

A A gunshot injury -- a nearly fatal gunshot injury I suffered from happened in -- I believe it was the morning of October 7th around5:30 in the morning. It was the night -- it was the next day right after this happened. I got shot in the back of the head with a shotgun.They removed nine pellets out of my head. I have nerve damage from that. I almost died from blood loss. I was remanded from thehospital. And, like, I have -- I have a hard time, like, with my balance ’cause my equilibrium is completely off. Like, I was -- Q That’s why you sway a bit, isn’t it? A Yeah. And I was supposed to see -- I don’t know.

Tell me if I’m getting off topic. But I was supposed to see the surgeon again.Doctor Diederichs (phonetic) was his name and I am swaying a little bit. Off topic. I just want to touch on it. Ever since, like, I -- thisinjury got infected, five days later. Like, I was in the hospital for five days and I got sent to the remand. And this cut got stitched up atthe hospital but it was leaking out, like, green and yellow fluid. And there was a hole about the size of your thumb and about half-a-thumbs length deep in behind my ear. They had to sew my ear back on. They stitched it all the way up.

They pulled, like I said, ninepellets out of my head. Q Okay. A And, like, I lost the hearing now completely in my right ear due to infection. I still have hundreds of bone chips in my head thatare to be removed. Q Have you had problems concentrating since this happened? A A bit, yeah. Like, I get anxiety. I haven’t been able to see -- like, I have -- haven’t been able to see a psychiatrist or anything fromjail. Like, to be treated for -- somebody mentioned maybe post-traumatic stress. Q Okay. But you haven’t been able to see a psychiatrist.

A No. MR. DEMMANS: Thank you, Your Honour. I just wanted to lay some of that groundwork -- THE COURT: Sure. MR. DEMMANS: -- ’cause that’s going to explain some of his testimony. (Emphasis added, sentencing transcript at T31–T32) [ 29 ] In sentencing submissions, the appellant’s counsel submitted the following: MR. DEMMANS: He has two assaults for which he received three months, but those were common assaults. I am saying based on his criminal record, a jump of three months to nine months is well within the range. Furthermore, you have to take into account the accused’s personal circumstances.

Namely, he is a gunshot wound survivor. He has been suffering after affects. He did suffer an infection in the wound. He has had trouble obtaining proper medical assistance because he has been on remand. THE COURT: I’m not sure why he wouldn’t get medical attention if he’s on remand. I mean, there’s people obtain medical attention all the time -- … MR. DEMMANS: Well, I can say, Your Honour, that I have tried to intervene with admitting on behalf of the accused with respect to getting all the medical care. But, quite frankly, some things are easier to accomplish on -- THE COURT: Sure. MR.

DEMMANS: -- remand than others. They do have a medical ward at the jail, but it’s not a full service hospital. And he was unable to make appointments with specialists. The surgeon was one, his pain specialist was the other. Now, he was given some medication and the infection he described was treated. We aren’t denying that. However, we take the accused as we find him on the date of sentencing. I’m saying he has suffered this injury. Nobody is disputing the fact. THE COURT: So -- so -- but are you suggesting that he should get more credit for being on remand? I mean, the injury happened after this occurrence . MR.

DEMMANS: That’s correct. THE COURT: He wasn’t suffering from any of this at the time of the occurrence. So are you saying he has suffered on remand more than the average person might and, therefore, he should get more than time-and-a-half credit on remand? Is that what you’re saying ? MR. DEMMANS: No, I am not. I am saying that when any person is being sentenced, we take into account their physical circumstances at the time of sentencing, whether it be history of mental illness -- THE COURT: Sure. Sure. No, I don’t -- I don’t disagree with that . MR. DEMMANS: -- being disabled, or whatever. THE COURT: Sure. MR.

DEMMANS: Now, all I’m saying is that you have to take that into consideration, the same as you would for any other person. THE COURT: Right. MR. DEMMANS: Like I said, we take the accused as we find him. THE COURT: We do. (Emphasis added, at T49–T51) [ 30 ] As indicated, the sentencing judge did not deal directly in his reasons with the effect of the appellant’s medical issues on determination of a fit sentence; but, on its face, the appellant’s medical condition does not rise to the significant level of illness or ill health demonstrated by the jurisprudence so as to justify a reduced sentence.

As this Court recently stated in R v Fast , 2015 SKCA 56 , 460 Sask R 90, “the ill health of an offender is a factor a sentencing judge should be mindful of, but this does not necessarily mean that every ill offender or aged offender is entitled to a lesser sentence than would otherwise be imposed” (at para 16). [ 31 ] Further, the appellant did not present any evidence to show that his condition was not presently being treated appropriately in the correctional centre.

Given this, I am not persuaded that the sentencing judge erred in principle by not taking into account the appellant’s medical condition. [ 32 ] On appeal, the appellant sought to file the following correspondence or reports:

Date From To 12 October 2016 Peter Chang MD, CCFP, FRCS(

C) Dr. Ghaniabadi 15 October 2016 Emily RN: Triage Note – Regina Qu’Appelle Health Region note on file 29 October 2016 Dr. Cheryl Foo: Consultation Report – Regina Qu’Appelle Health Region note on file 1 November 2016 Dr. Pierre Pepler: Discharge

Summary – Regina Qu’Appelle Health Region Dieter Fritz, MD 17 November 2016 Dr. Wong: Outpatient Clinic Report – Regina Qu’Appelle Health Region Dieter Fritz, MD 22 November 2016 Regina Hearing Services Dieter Fritz, MD 16 December 2016 Dieter Fritz, MD Regina Corrections 30 January 2017 Sydney Bolt RPN, Director, Health Services Chris Parchomchuk [ 33 ] All of these documents pre-date the decision under appeal. As such, they do not meet the due diligence requirement for an appellate court to admit as fresh evidence.

In R v Hay , 2013 SCC 61 at para 64 , [2013] 3 SCR 694, the Court confirmed that the due diligence requirement must yield in the criminal context if the failure to admit the fresh evidence could lead to a miscarriage of justice, but it also confirmed that due diligence remains an important factor to be considered in the totality of the circumstances. [ 34 ] Even if the proffered evidence met the test for the admission of fresh evidence, in my view, it supports the sentencing judge’s decision not to reduce the appellant’s sentence because of his medical condition.

I say this because the letters show the treatment that the appellant has been able to receive while in custody, including weekly monitoring. One report indicates that, as of November 1, 2016, “psychiatry … felt that there was no underlying evidence [of post-traumatic stress disorder] … other than the fact that the patient might be drug seeking”, while a general practitioner opines that as of December 16, 2016, “he is experiencing real pain that is inadequately controlled with Tylenol”.

The appellant has been continually assessed. [ 35 ] In his January 30, 2017, letter, the Director of Health Services denied the appellant’s treatment appeal: I have summarized your concerns from your correspondence below: • dizzy spells; • difficulty walking; • head swelling a result of a recent gunshot wound; • possible side-effect from certain medications; and • chronic pain management. I have reviewed the information available to me and have determined that you have been assessed by the RCC physician on multiple occasions since your arrival at the facility.

I also understand that your pain specialist has indicated that the chronic pain from the gunshot wound will decline over time and that he has passed your care back to the physician at RCC . I understand that you are still receiving medications to assist both with the pain and the anxiety created dealing with it. I appreciate that this can be frustrating but encourage you to be patient as there should be some diminishment of the pain shortly.

I encourage you to continue to work with the nurse manager and other health care staff to manage your health care needs in a timely and professional manner. … [W]e have provided a standard of care consistent with community practice and in accordance with established policy and procedure and as a result must deny your appeal. (Emphasis added) [ 36 ] This evidence indicates that the correctional facility was managing the appellant’s condition. Nothing beyond January 30, 2017, was given to the Court.

In short, I conclude the sentencing judge did not err by not reducing the appellant’s sentence as a result of his medical condition and, further, the documents proffered as fresh evidence do not persuade me that this Court should intervene. C. The effect of the guilty plea [ 37 ] The appellant had originally been charged with breaking and entering and committing an assault with a weapon, contrary to s. 348(1) (

b) of the Criminal Code . On the day of his trial (over nine months after the offence), the Court accepted a guilty plea to the lesser included offence of assault with a weapon (s. 276(a)). Not all of the scheduled witnesses were required to testify but, critically, the complainant and his wife were required to do so. The sentencing judge cannot be criticized for failing to take his guilty plea into account in light of its circumstances. As the Court stated in Lacasse , “A plea entered at the last minute before the trial is not deserving of as much consideration as one that was entered promptly” (at para 81).

In short, the sentencing judge did not err by not crediting the appellant for having pled guilty. D. Is a sentence of 30 months of incarceration demonstrably unfit?

[ 38 ] The modern approach to sentencing requires the sentencing judge to give effect to the fundamental principle of sentencing, which is that every sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender” ( s. 718.1 , Criminal Code ).

The sentencing judge must also recognize that “[t]he fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions” ( s. 718 ), having regard for one or more of the objectives outlined in s. 718 . Sections 718.01 to 718.03 , and 718.2 , require that a number of additional sentencing principles be considered as well. [ 39 ] Among the list of additional sentencing principles, s. 718.2(

b) provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”, but as the Supreme Court has recently reiterated in Lacasse , parity is secondary to the fundamental principle of proportionality present in s. 718.1 : [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 . (Emphasis added) [ 40 ] In Lacasse , the majority of the Supreme Court restored a 6.5-year sentence that an appellate Court had reduced to 4 years.

The reduction had been made primarily on the basis that the sentencing judge had deviated from the sentencing range for impaired driving offences.

In restoring the sentencing judge’s decision, Wagner J., writing for the majority, considered the extent to which a deviation from a sentencing range may justify appellate intervention. [ 41 ] The reasons of Wagner J., on behalf of the majority in Lacasse , make it very clear that a deviation from a sentencing range does not justify appellate intervention unless the appellate court can say the sentencing judge committed an error in principle that had an impact on the sentence or the sentence is demonstrably unfit: [11] This Court has on many occasions noted the importance of giving wide latitude to sentencing judges.

Since they have, inter alia , the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.

Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit . … [51] Furthermore, the choice of sentencing range or of a category within a range falls within the trial judge’s discretion and cannot in itself constitute a reviewable error. An appellate court may not therefore intervene on the ground that it would have put the sentence in a different range or category.

It may intervene only if the sentence the trial judge imposed is demonstrably unfit . (Emphasis added) [ 42 ] In R v Lloyd , 2016 SCC 13 , [2016] 1 SCR 130 [ SCC Lloyd ], the Supreme Court again reversed a decision of an appellate court that had set aside a sentence of one year for trafficking methamphetamine. In R v Lloyd , 2014 BCCA 224 , 356 BCAC 275, the appellate court had held that the sentencing judge had wrongly taken three to four months as the low end of the normal range for sentences in such matters, when in fact the normal range began at one year of imprisonment.

In paragraph 12 of SCC Lloyd , the Supreme Court noted that the Court of Appeal had imposed an 18-month sentence on the basis that

(1) Mr.

Lloyd possessed three different substances for street-level distribution; (2) the substances are dangerous, highly addictive, and socially destructive; (3) he committed the offences while on probation; (4) he was carrying a knife in a sheath, contrary to the terms of his probation; (5) he had a lengthy criminal record, with 21 prior convictions; and (6) his attempts at rehabilitation were embryonic, and he showed little insight into the harm caused to others. [ 43 ] In restoring the sentencing judge’s decision, MacLachlin C.J. wrote for a unanimous Court on this point: [52] A trial judge’s determination of the appropriate sentence is entitled to deference.

Appellate courts cannot alter a trial judge’s sentence unless it is demonstrated that the trial judge made a legal error or imposed a sentence that is demonstrably unfit: R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089, at para. 11 , per Wagner J. The Court of Appeal in this case took the view that the provincial court judge applied the wrong sentencing range – a range of three to four months at the low end to 18 months at the high end. A careful reading of the reasons of the provincial court judge does not, in my respectful view, bear this out.

The trial judge noted that sentences of three to four months for the offence had been upheld in a few exceptional cases, but went on to identify the appropriate sentencing range as 12 to 18 months. Noting a number of mitigating factors, he sentenced Mr. Lloyd to 12 months.

In any event, even if the provincial court judge had erred in stating the range, the Court of Appeal would not have been entitled to intervene. “[T]he choice of sentencing range or of a category within a range falls within the trial judge’s discretion and cannot in itself constitute a reviewable error”: Lacasse , at para. 51 . (Emphasis added) [ 44 ] In

summary, the failure to adhere to a sentencing range does not, on its own, constitute an error in principle justifying

appellate intervention. Appellate intervention will only be justified if (

a) the sentencing judge committed an error in principle that has an impact on the sentence, apart from any consideration of the applicable range; or (

b) the sentence is demonstrably unfit. Reviewing applicable ranges and comparing past cases is regarded as one means of giving effect to the fundamental principle of proportionality but, in light of Lacasse and SCC Lloyd , failure to place a sentence within a range may not on its own justify appellate intervention. [ 45 ] Returning to the case at hand, the appellant argues that a sentence of 30 months is outside the range of sentences for this offence.

He points to R v Goodwill , 2007 SKCA (SentDig) 33 [ Goodwill ]; R v Hansen , 2015 SKCA (SentDig) 13 [ Hansen ]; and R v Delorme , 2017 SKCA 3 [ Delorme ], as examples of decisions from this Court where offenders with worse records committed very serious infractions of s. 267(

a) and received sentences that demonstrate his sentence is outside the range and demonstrably unfit. [ 46 ] As the various provisions in the Criminal Code indicate, the determination of a fit sentence requires much more than finding a comparable case. Nonetheless, the imposition of a sentence can never be arbitrary, which I take is the appellant’s essential position.

For the appellant, it is not clear how the sentencing judge bridged the gap between his submissions that a fit sentence is nine months and the submissions of the Crown that a fit sentence is 30 months – without further explanation or reference to any authority. [ 47 ] In my respectful view, however, a review of Goodwill , Hansen and Delorme , and a consideration of offences committed within similar circumstances, supports a conclusion that the sentence, in this case, is within the range. These three decisions, taken alone, show a range of one year to three years for offenders with prior related records.

In Goodwill , the offender received a one-year sentence for an assault with a weapon contrary to s. 267 (a). His appeal to this Court was dismissed. Mr. Goodwill, 53 years old with an alcohol addiction, had a prior record for assault, including assaulting a peace officer and aggravated assault. Under the influence of alcohol, he swung a meat cleaver at the victim, nearly severing a little finger.

The victim eventually took the cleaver and left. [ 48 ] In Hansen , the offender, 29 years old with three prior assaults, received a one-year sentence for an assault with a weapon contrary to s. 267 (a), but he also received an 18-month consecutive sentence for an assault causing bodily harm contrary to s. 267 (b). The two charges arose because the weapon (a beer bottle) fell from the accused’s hand after he delivered a first glancing blow, but he, nonetheless, continued to beat the victim with his fists (20 to 30 times) until help arrived.

This resulted in two charges, but the 30-month sentence was for a set of sequential acts. The victim’s face was bloody and bruised. His nose, face and lips were swollen. He did not suffer the severity of injuries that are present in this case. [ 49 ] In Delorme , the facts underlying the s. 267 (

a) offence were that the offender pointed a rifle at the victim’s head. The offender then participated with others in punching and kicking the victim who, by this time, was on the ground. This Court, on the offender’s appeal, sustained a sentence of 3.5 years for the s. 267 (

a) charge and six month concurrent sentences for the following additional offences: pointing a firearm, s. 87(2); possession of a weapon for purposes of committing an offence, s. 88(2); uttering threats, s. 264.1(1)(a); and resisting a peace officer, s. 129(a). In addition to the 3.5-year sentence imposed for the s. 267 (

a) offence, including a six-month concurrent sentence for the bundle of offences described above, the offender received a one-year consecutive sentence for possessing a firearm while prohibited by a prior court order contrary to s. 117.01(3) of the Criminal Code . The victim did not file a victim impact statement and it appears from the record that his injuries were not significant. [ 50 ] As the Crown points out, other sentences also help to flesh out the range.

As presented below, without providing the circumstances of the offender (which can have the effect of moving the ultimate sentence up or down the range), a range of sentences can nonetheless be discerned based on the nature of the weapon and the physical injuries sustained: Citation Weapon Physical Injuries Misc.

Sentence*‡ R v Goodwill , 2007 SKCA (SentDig) 33 meat cleaver “nearly severed” little finger accused interrupted in compromised position; alcohol involved; underage children present 12 months R v Wapass , 2011 SKCA (SentDig) 8 baseball bat “concussion” pled guilty as a party 15 months R v Johns , 2008 SKCA (SentDig) 20 tire rim, steel bar “significant” joint submission to s. 267(b); other offences 20 months R v Jimmy , 2008 SKCA (SentDig) 31 stick “very serious” spousal abuse; alcohol involved 20 months R v Faulkner , 2014 SKCA (SentDig) 27 moving vehicle superficial cuts and bruises addictions; disability 21 months, plus 2 years’ probation R v Bear , 2006 SKCA (SentDig) 44 chef knives “several stab wounds to arms and neck” accused seriously depressed and suicidal 21 months plus 2 years’ probation R v Bellegarde , 2001 SKCA (SentDig) 23 screwdriver “very violent assault”; prolonged spousal abuse; one of many offences; other offences resulted in the injuries 22 months plus 2 years’ probation R v Vaquerano , 2000 SKCA (SentDig) 44, hammer “skull fracture”; 8 days in hospital spousal abuse; mentally ill accused 24 months R v Wolfe , 2016 SKQB 11 baseball bat “serious medical difficulties” 2 victims; plus 3.5 years for sexual assault; reduced for totality to 5 in total 24 months R v LaChance , 2009 SKCA 21 , 320 Sask R 264 knife no physical injuries; but family “profoundly frightened” other sentences, which this court made concurrent to s. 267(a) 26 months

R v Hansen, 2015 SKCA(SentDig) 13 glass bottle“face bloody and bruised” addictions, alcohol involved; one count of s. 267(a)plus one of s. 267(b) 30 months(12 plus 18months)R v Ochuschayoo, 2004 SKCA 16,241 Sask R 284 extensioncord very serious; prolonged beating Crown sentence appeal; spousal abuse; offence whenon undertaking increased to 36 months† R v Delorme, 2017 SKCA 3 rifle little detail provided other offences 42 months plus one yearconsecutive*Unless otherwise indicated, all of these are offender appeals. †In this case, the Court of Appeal commented that this was a lenient sentence (at para 13). ‡There are, of course, limitations to this chart.

For example, the range here is for offences where serious physical or psychological harmwas inflicted on victims. It should not be relied on to establish a sentencing range for all assault with weapon convictions. Theappropriate range will differ for offences involving less dangerous weapons, less serious or no harm, and different offenders. Citation Weapon Physical Injuries Misc. Sentence*‡ [51] Given the severity of the beating in this case, the Crown submits that sentences imposed for assaults causing bodily harmcommitted by repeat offenders also support a sentence of 30 months.

In that regard, the Crown directed the Court’s attention to thefollowing: R v Meyers, 2012 SKCA 98, 399 Sask R 261 – 30 months; and R v Lecaine (1983), (SK CA), 22 Sask R50 (CA) – 30 months. I agree with this proposition, with Hansen lending support to it. [52] Of course, a sentence that is within the range of sentences imposed in similar circumstances can still be demonstrably unfit.As has been often stated, there is no one sentence for any given offence.

Rather, sentencing is an individualized process that depends ona consideration of a wide variety of factors, including the relevant legislative provisions, the circumstances of the offence and thecircumstances of the offender. [53] Here, however, I am satisfied that the sentence imposed is not demonstrably unfit. The offence was serious. The offender wentto the victim’s apartment carrying a weapon, which showed a degree of planning not present in most of the offences mentioned above.The appellant chose a weapon that was capable of causing great physical harm.

He struck the victim on the head, a particularlyvulnerable part of the body, not once but three times. The victim suffered injuries requiring hospitalization. Since a sentencing hearingtook place, the sentencing judge had the opportunity to observe the appellant and the victim. He would be clearly aware of factors ofwhich this Court has no knowledge: the relevant sizes, health and ages of the appellant and the victim. [54] The appellant, soon to be 32 years old, is not a stranger to the criminal justice system.

He began offending when he was 16years old, with a mischief count, followed by a charge of driving while under the influence of alcohol three years later. Since 2014, aftera gap of almost 10 years, he has committed a series of offences. While no offence has been as serious as this one, he has two previousassaults on his record, described to be “domestic” in nature. [55] His record also reveals someone who has a difficult time accepting authority. He has 10 convictions for breaching probationorders, one conviction for evading the police, two for theft, and one for causing a disturbance – most arising since 2014.

Further, at thetime of the present offences, the appellant was on a probation order and also serving a four-month sentence in the community under theterms of a conditional sentence order – which increases his moral culpability. [56] The sentencing judge imposed a concurrent sentence of 30 days for breach of his probation order, but the fact of theconcurrent sentence does not mean the breach had no consequences for the sentencing judge’s determination of a fit sentence or for thisCourt’s assessment of whether the sentence is demonstrably unfit.

I note, as well, that the sentencing judge appears also to haveconsidered a lesser sentence, which would have involved a mix of custody and probation, but concluded “history would tell us that that’snot going to work for him” (sentencing transcripts at T58). [57] A 30-month sentence is at the top of the range, but having reviewed prior case law, the sentencing judge’s reasons, andconsidering the circumstances of the offence and the offender, the sentencing judge committed no error in principle and the sentence isnot demonstrably unfit.

A reduced custodial term, accompanied by an appropriate probation order, was foreclosed by the appellant’srecent poor track record while on probation. [58] There is one final matter. The sentencing judge did not have the benefit of a pre-sentence report. The almost 10-year gap inthe appellant’s record, and the sudden rash of a series of offences from 2014 to 2016, requires an explanation. It appears that theappellant might need some significant help to overcome a substance abuse issue, which is suggested in the various letters written by theexternal health advisors referred to above.

A copy of this decision should be given to the correctional facility with attention being drawnto this paragraph. V. Conclusion [59] The appeal is dismissed. “Jackson J.A”.

Jackson J.A. I concur. “Whitmore J.A”. Whitmore J.A. I concur. “Ryan-Froslie J.A”. Ryan-Froslie J.A.