R v Napope, 2019 SKCA 124

Court of Appeal for Saskatchewan Docket: CACR2800 Citation: R v Napope, 2019 SKCA 124Date: 2019-11-20 Between:Norris Leonard NapopeAppellant AndHer Majesty the QueenRespondent Before: Caldwell, Schwann and Kalmakoff JJ.A. Disposition: Conviction appeal dismissed; sentence appeal allowedWritten reasons by: The Honourable Mr. Justice CaldwellIn concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice KalmakoffOn Appeal From: CRM 24/14, SaskatoonAppeal Heard: October 15, 2019Counsel: Norris Leonard Napope appearing on his own behalf W.

Dean Sinclair, Q.C. for the Respondent Caldwell J.A. [1] For the brief reasons that follow, I would dismiss Norris Leonard Napope’s appeal against his convictions and allow hisappeal against his designation as a dangerous offender and against the indeterminate sentence of imprisonment imposed on him by thetrial judge. [2] I find no merit in Mr. Napope’s conviction appeal. Mr. Napope did not identify any grounds for appealing against the verdictsof guilt reached by the trial judge.

Moreover, having reviewed the transcript and the court record, I see no indication of an error of law orof a miscarriage of justice in the course of the trial that led to his convictions on charges of sexual assault and aggravated assault and tohis acquittal on a charge of unlawful confinement. As to the convictions, the trial judge found the Crown’s witnesses were credible andthat their evidence was reliable, and I can see no palpable and overriding error in his assessment in this regard. On the whole of it, theevidence against Mr.

Napope was compelling, and largely uncontradicted, and it overwhelmingly established Mr. Napope’s guilt. I woulddismiss the conviction appeal. [3] As to the sentence appeal, the Crown has acknowledged error on the part of the trial judge when he found Mr. Napope was adangerous offender under

Part XXIV of the Criminal Code. The error lies in the trial judge’s bare acceptance of Mr. Napope’s concessionthat he is a dangerous offender as satisfying the criteria set out in s. 753(1) of the Criminal Code.

The Crown properly recognises that,although an offender may concede that he or she has met the criteria for designation, that concession does not relieve a sentencing judge ofthe statutory duty to evaluate the evidence and to be satisfied thereon that the offender in fact meets the criteria set forth in s. 753(1) (see Rv Lyons, (SCC), [1987] 2 SCR 309 at 338; R v Boutillier, 2017 SCC 64 at paras 18, 26, 27 and 41, [2017] 2 SCR 936; andR v Parfitt, 2019 SKCA 55 at paras 65 and 66).

As this did not occur, the dangerous offender designation must be set aside. [4] The trial judge committed a similar error when he imposed a sentence of indeterminate imprisonment on the heels of Mr.Napope’s concession that he was prepared to “follow” one. In so doing, the trial judge failed to fulfill his statutory duty under s. 753(4.1)of the Criminal Code to consider whether there was “a reasonable expectation that a lesser measure under [s. 753(4)(

b) or (c)] willadequately protect the public against the commission by the offender of murder or a serious personal injury offence”. As the Crownproperly concedes, although an offender may agree to an indeterminate sentence, that does not relieve a sentencing judge of the statutoryduty to evaluate the evidence and to find thereon that an indeterminate sentence is the appropriate sentence in the circumstances (see R vJohnson, 2003 SCC 46 at paras 20, 24, 44 and 50, [2003] 2 SCR 357; R v Boutillier at paras 31, 60–63, 65, 68 and 70; and R v Piche, 2019SKCA 54 at para 79). As this did not occur, the indeterminate sentence must be set aside. [5] The foregoing errors of law curtailed the

Part XXIV proceedings in this case, leaving no record of findings of fact on mattersrelevant to a dangerous offender designation or to an appropriate sentence. Moreover, the record indicates Mr. Napope had, prior to hisconcessions, intended to adduce evidence in response to the Crown’s application. [6] For the foregoing reasons, I would allow Mr. Napope’s sentence appeal and exercise the Court’s appellate power under s.759(3)(a)(ii) to order a new hearing. [7] As Mr.

Napope’s convictions have withstood appeal, he shall be detained in custody under the warrant of committal thatissued following his convictions until he may appear before the Court of Queen’s Bench to be dealt with according to law. “Caldwell J.A.” Caldwell J.A.I concur. “Schwann J.A.” Schwann J.A.I concur. “Kalmakoff J.A.” Kalmakoff J.A.