R v Piche, 2019 SKCA 54

Court of Appeal for Saskatchewan Docket: CACR2735 Citation: R v Piche , 2019 SKCA 54 Date: 2019-06-17 Between: Clarence David Piche Appellant And Her Majesty the Queen Respondent Before: Jackson, Whitmore and Ryan-Froslie JJ.A. Disposition: Conviction appeal dismissed; new sentencing hearing ordered 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, Fond du Lac Appeal Heard: May 10, 2018 Counsel: Marianna Jasper for the Appellant W.

Dean Sinclair, Q.C., for the Respondent Jackson J.A. I. Introduction [ 1 ] Clarence Piche was convicted of three offences under the Criminal Code arising from three incidents involving his common law spouse, Ms. Crookedneck: assaulting her with a weapon, contrary to s. 267(a), assaulting her and thereby causing her bodily harm, contrary to s. 267(b), and uttering a threat to kill her, contrary to s. 264.1(1)(a). [ 2 ] Following his conviction with respect to these offences and a sentencing hearing, the trial judge declared Mr. Piche a dangerous offender and sentenced him to an indeterminate sentence.

In addition to appealing his conviction, Mr. Piche appeals that designation and sentence. [ 3 ] The key piece of evidence against Mr. Piche, which led to his conviction for the above three offences, is a video recorded statement of Ms. Crookedneck that was admitted under the principled exception to the hearsay rule. His counsel argues that the trial judge’s reasons for admitting the statement and for the conviction are insufficient to permit appellate review but, if the reasons are sufficient, the trial judge committed a legal error by admitting the statement.

Specifically, in relation to the conviction, she submits it must be set aside because it is unreasonable or unsupported by the evidence. She also argues that his conviction constitutes a miscarriage of justice, having regard, in particular, for the haste with which the trial judge conducted the trial and rendered his decision. [ 4 ] With respect to his designation and sentence as a dangerous offender, Mr. Piche’s appeal centres on R v Boutilier , 2017 SCC 64 , [2017] 2 SCR 936 [ Boutilier ], which was released after he was sentenced.

His counsel asserts that Boutilier has overtaken significant case law from this jurisdiction and elsewhere such that at the very least he is entitled to a new hearing. [ 5 ] For the reasons that follow, the appeal from conviction must be dismissed. I have, however, concluded that the sentence must be set aside and a new sentencing hearing ordered. II. Conviction Appeal A. Background to the charges and the content of the warned statement [ 6 ] It is uncontroverted that Ms. Crookedneck gave a statement to the police on June 8, 2013. Her statement was audio and video recorded, and was subsequently transcribed.

As the interview unfolded, Ms. Crookedneck described an incident that had occurred in March or April of 2013, when Mr. Piche extinguished a cigarette on her back: Cst. STANTON: Okay. So, what is your mom talking about, these cigarette burns you have on your back? F. CROOKEDNECK: He got out on December, January … February … maybe March or April. He burned ahm … he lit out a smoke back of me there. Cst. STANTON: Why? F. Crookedneck: Because he … he’s always getting jealous for nothing. And I’m not even doing anything and I’m always inside the house. He wouldn’t let me go out or look out the window. Ms.

Crookedneck let the officer look at her back in order to see the scar, which she said was left from the cigarette burn. This evidence

grounds the assault with a weapon charge. [ 7 ] Ms. Crookedneck also described how Mr. Piche bit her hand, which came to be the basis of the s. 267(

b) charge. She and Mr. Piche had gone to Prince Albert on May 21 or 22, 2013, to cash a cheque that he had received under the Independent Assessment process to compensate him for sexual and other abuse suffered in the residential school system. Upon arriving at the airport terminal in Prince Albert, Mr. Piche had asked Ms. Crookedneck for a cigarette and then had bit her hand when she did not respond. This is the exchange with the officer about that incident: Cst. STANTON: Okay. So, you got to the P.A. airport and he was mad? F.

CROOKEDNECK: Mmm-hmmm. [affirmative] And he’s always been mean to me even though … Cst. STANTON: What was he mad about? F. CROOKEDNECK: He asked me for a smoke and … ‘cause I was taking long and … like, I … and then I told him, “Quit doing that”. And that’s when … after we sat in that terminal, that’s when he bit me. … Cst. STANTON: Did he make it bleed? F. CROOKEDNECK: Yes. Cst. STANTON: Okay. And then what happened? You guys left or what? F. CROOKEDNECK: Mmm-hmmm. [affirmative] To the hotel and everything was okay there. [ 8 ] In the course of giving her statement, the officer asked Ms.

Crookedneck what had brought her to the police station on that day. She described the threats that resulted in the s. 264.1(1)(

a) charge and what happened to her: F. CROOKEDNECK: Well, I went over at my house and I wanted to take my house back. And ahm … and then, I wanted to take my baby too. He wouldn’t let me, so … all he said was, “I’m … I’m going to kill you whenever I see you alone”. Cst. STANTON: So, when you say, “You went to take your house back”, why would you have to take it back? Were you … F. CROOKEDNECK: Because that’s my house. Cst. STANTON: … I know, but were you not living there? F. CROOKEDNECK: I was living there, but I just want it back. Cst. STANTON: So, you guys are living separately right now? F. CROOKEDNECK: Yes.

Cst. STANTON: You’re living at your mom’s? F. CROOKEDNECK: I was at my mom’s there. Later in her interview, she said the following: Cst. STANTON: And then what happened? F. CROOKEDNECK: And then I asked him, I wanted to take my house back, he could go back with his dad. And that’s when ah … I told him to take my baby … I wanted to take my baby back. And then, he said, ‘No”, and then, ‘I’m going to kill you every time … every … if I have the chance to see you alone”, he said. Cst. STANTON: So, what exactly did he say? F. CROOKEDNECK: I don’t know. Cst. STANTON: Well, what do you remember him saying? F.

CROOKEDNECK: I just told you, “If I have the chance I see you then I’ll kill you”, he said. Cst. STANTON: Okay. So, he said, “I’ll kill you”. F. CROOKEDNECK: Yeah. Cst. STANTON: And it was along the lines of, ‘‘If [I] see you alone?” F. CROOKEDNECK: Yes. Cst. STANTON: Did you feel like he was serious? F. CROOKEDNECK: Ah … I wasn’t sure.

Cst. STANTON: Were you scared … F. CROOKEDNECK: Yeah. B. How the trial unfolded [9] At trial, Ms. Crookedneck was the only witness for the Crown. She identified a booklet of photos that showed a scar on herback and several scars on her hand, but she responded to most questions saying she did not remember. In examination-in-chief, during thetrial proper, she testified that Mr. Piche bit her hand but she did not remember any details. Regarding the scar on her back, she did notknow how it came to be there. She had watched the video recording of her statement before court, but she could not remember anythingof it.

The following exchange is typical of her testimony: QYou’re saying you don’t remember.ANo.QWhen you told the police about what happened that caused that mark, were you telling them the truth?AYes.QOkay. Do you remember where you were when that mark was put on your back? Was first put on your back.ANo.QYou don’t remember?ANo. [10] Ms. Crookedneck could not remember who had caused “the scars on her back”. She said it could have been caused by herboyfriend or her brothers or “some girls that used to beat up on me”.

Similar comments were made about the threatening charge. [11] Crown counsel then applied to have her video statement to the police submitted for the truth of its contents and the trialmoved into a voir dire. After the video was played in open court, Ms. Crookedneck said she remembered seeing the video, but she was“trying to forget about it”. She also responded, “like I said, I’m trying to forget about it and I don’t want to talk about it”.

Initially sheresponded “No” to a question as to whether she had tried her “best to tell the truth to the policeman during that statement”; but later, sheagreed that she was trying her best to tell the truth. Crown counsel elicited from Ms. Crookedneck that she still loved Mr. Piche and thatshe wanted to spend her life with him. Crown counsel also elicited from her that she “believed in God” and she regarded an oath to tellthe truth as “serious”. She said she was “confused” when she spoke to the police but she did her best to tell the truth. [12] In cross-examination during the voir dire, Ms.

Crookedneck continued to say she did not remember anything in relation to thevideotape including the giving of the KGB warning (R v B.(K.G.), (SCC), [1993] 1 SCR 740 [KGB]). She testifiedsome people, mostly her mother, were pressuring her to go to the police about Mr. Piche: QOkay. When you said that you were confused at the time and that people were telling you to charge him, what people were youreferring to?AMy family and friends.QOkay. Your family and friends. Is that in -- in particular your mother?AYes.QI understand that she doesn’t like Clarence very much. Is that true?AYes. QOkay.

And it was her idea to tell you to go to the police to say some things about Clarence?AHer and some other family members and friends, yeah.QOkay. Were they pressuring you to do that?AYes. Mr. Piche did not call any evidence on the voir dire. [13] After hearing submissions, the trial judge gave these reasons: THE COURT: Well I -- the Crown has established (inaudible) case for admitting the statement under the principles in KGB.

I’m going tobe as brief as I can because I know we’re under time pressures this afternoon in terms of catching our flights out of here, but I amsatisfied that both the necessity for reasons both counsel pointed to, and reliability for the reasons Crown Counsel pointed to and defencecounsel didn’t disagree with, if I can put it that way, that the statement is appropriately admitted and I do admit it in evidence. Theevidence from the voir dire, by consent of the parties, is -- is admitted to the trial proper. P-1 on the -- P-2 [the KGB statement] on thevoir dire becomes P-2 on the trial. P-3 [the DVD of Ms.

Crookedneck’s statement] on the voir dire becomes P-3 on the trial. [14] At this point, Crown counsel did not have any further questions for Ms. Crookedneck but Mr. Piche’s counsel continued tocross-examine her. Ms. Crookedneck said she could not remember exactly what Mr. Piche had said to her that led to the threateningcharge. She provided some further details regarding a second incident when she had been running away from the home where she andMr. Piche used to live. She said she had tripped but Mr. Piche tried to help her up.

She said she had no memory of being burned with acigarette and that some of the scars on her hand had been caused by other people. Regarding the relationship between her mother andMr. Piche, she testified that they were frequently involved in arguments. She said her mother did not like the way Mr. Piche treated herand they frequently argued about that. Finally, Ms. Crookedneck was asked if some of the things she had told the police on June 8, 2013,were false. She responded “no”. [15] Mr. Piche testified. He denied having committed any of the actions of which he was accused. He described the relationshipwith Ms.

Crookedneck’s parents as being characterized by alcohol consumption. He testified that Ms. Crookedneck’s mother came toPrince Albert to obtain some of the money from his recent residential school payout and that all of the accusations came about becauseMs. Crookedneck’s parents had run out of money to pay for alcohol.

C. Trial judge’s decision [ 16 ] After hearing submissions, the trial judge convicted Mr. Piche on all counts. In doing so, he said, “[Ms. Crookedneck] was, I suggest, unwilling or hesitant to talk about some of the details … but she was very clear that they were on this trip to Prince Albert”, “the credible evidence of Ms. Crookedneck was very clear”, “the offence was committed with the use of a weapon which -- which involved a lit cigarette butt applied to her back”, and “he severely bit the hand of Ms. Crookedneck”.

The substance of his reasons is contained in the following passage: THE COURT: I am cognizant of the fact that we’re operating under certain limitations as to time this afternoon and that if at all possible there should be a -- or I would ordinarily adjourn for a few days to re-read the evidence. I’m satisfied -- satisfied beyond a reasonable doubt, it wouldn’t make any difference to the decision I’ve already made today because quite frankly the decision in this case is -- is straightforward and overwhelming.

I put in argument to defence counsel, the major concern I had about the defence witness’s only -- about the defence’s only witness, so that he could respond to them as vigorously as was -- as appropriate, as eloquently and well spoken as defence counsel’s answers were, they in no way diminished my concern about Mr. Piche’s credibility. I don’t know when I’ve encountered a less credible witness. I -- as I said in argument, I attribute the lowest possible coefficient of -- of credibility to what he had to say.

On the other hand the witness for the Crown even though she tried hard on any occasions to not answer questions, she did inspire the confidence of the court in the -- in the fact that she was telling the truth. Her -- her reluctance to tell -- to tell the whole story, stems more from her love of the accused than from any effort on her part to deceive the court. If anything, she diminished the fact that she recited against him. She was very clear on numerous occasions.

She could have attributed far -- far worse allegations against him and chose -- and chose not to, presumably because she did take seriously the oath and she seemed very much to take seriously the oath as she testified. She clearly did not want to testify but felt honour bound and I think it’s fair to say in this case bound by her faith to tell the truth and I accept her -- I accept her evidence. I am satisfied that the Crown has proved beyond a reasonable doubt all of the elements of the first four counts … . He also convicted Mr.

Piche of two breaches of failing to keep the peace and be of good behaviour and one breach of curfew conditions. D. Issues [ 17 ] Mr. Piche has put the following matters in issue: (

a) the trial judge’s reasons for admitting the video statement for the truth of its contents do not permit meaningful appellate review; (

b) the trial judge erred by admitting Ms. Crookedneck’s sworn statement for the truth of its contents; (

c) the trial judge’s reasons for conviction do not permit meaningful appellate review; (

d) the trial judge erred or misapprehended the evidence when he made his findings regarding credibility; (

e) the trial judge’s approach to the trial, including the emphasis on deciding the case in haste, the brevity of his reasons and his aggressive treatment of trial counsel, amount to a miscarriage of justice. [ 18 ] I will now proceed to consider the arguments made in relation to these matters. E. The admission of the video statement 1. The adequacy of the reasons a. Position of the parties [ 19 ] Counsel for Mr. Piche submits that “the extreme brevity of the trial judge’s reasons … do not grapple with portions of the evidence that could well have undermined the credibility and reliability of the KGB statement”.

She relies on R v Sheppard , 2002 SCC 26 , [2002] 1 SCR 869 [ Sheppard ]. Crown counsel contends the trial judge is presumed to know the law and provided satisfactory reasons for his credibility findings. b. Sheppard [ 20 ] The fundamental principle derived from Sheppard is that, while there is no free-standing right of appeal from inadequate or nonexistent reasons, “reasons fulfill an important function in the trial process and … where that function goes unperformed, the judgment itself may be vulnerable to be reversed on appeal” (at para 4).

As the Supreme Court in Sheppard indicates, determining the line between when an appellate court will intervene to order a new trial and where it will not depends on context and requires a review not only of the trial judge’s reasons but also of the evidence and parties’ submissions at trial. This paragraph from Sheppard captures the weighing exercise well: [46] These cases make it clear, I think, that the duty to give reasons, where it exists, arises out of the circumstances of a particular case.

Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene .

On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the

appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of theparties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of theopportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one viewcould support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention.

It willbe for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out itsappellate function. (Italic emphasis in original, underline emphasis added) The Supreme Court has affirmed these principles on many occasions, including in R v Walker, 2008 SCC 34, [2008] 2 SCR 245; R vR.E.M., 2008 SCC 51, [2008] 3 SCR 3; R v Vuradin, 2013 SCC 38, [2013] 2 SCR 639 [Vuradin]; and R v MacKenzie, 2013 SCC 50,[2013] 3 SCR 250 [MacKenzie]. c.

Do the Sheppard principles apply to a voir dire decision concerning admissibility? [21] In their submissions to the Court, the parties assumed that the principles derived from Sheppard, regarding the adequacy ofreasons, apply to decisions made during the course of a trial. There is support for the approach taken by the parties to this issue: R vCharrette, 2008 ABQB 272 at paras 7 and 12–15, 444 AR 382; R v Coopsammy, 2008 ABQB 266 at paras 47–53, 445 AR 160; and R vWen, 2012 BCCA 515 at paras 30 and 33, 331 BCAC 183.

I note, however, that at least two courts of appeal have held that no generalduty exists for a trial judge to provide reasons for an evidentiary ruling – apart from considerations of procedural fairness: R v Woodard,2009 MBCA 42 at paras 20–25, [2009] 12 WWR 78; R v Tsekouras, 2017 ONCA 290 at paras 155–156, 353 CCC (3d) 349 (leave toappeal to the SCC denied ); and R v Charlton, 2019 ONCA 400 at para 22. [22] Since the matter was not argued before us, I am content to note a divergence in the authorities, and assess the trial judge’sreasons on the basis of Sheppard.

I am able to do so, because I conclude, as the following reasons indicate, that the trial judge did in factfulfill his obligations to the parties and his reasons meet the Sheppard standard. To be clear, the question of the applicability of Sheppardto mid-trial rulings is left for another day. d. Are the trial judge’s reasons regarding admissibility sufficient to permit appellate review? [23] Admittedly, the trial judge’s reasons are brief, but it is clear that he was responding to counsels’ submissions. Further, therewas no dispute on the law to apply.

Both counsel agreed at trial that R v Khelawon, 2006 SCC 57, 2 SCR 787 [Khelawon], is the leadingauthority on the admissibility of out-of-court statements. [24] For his part, Crown counsel noted the statement was sworn and videotaped at the time and was “essentially adopted … incourt … in terms of [Ms. Crookedneck] saying she was trying her best to tell the truth at the time”. It was understood that the Crownbore the onus to establish the statement’s necessity and reliability. Regarding necessity, Crown counsel submitted that Ms.

Crookedneck“was able to recount some of the incidents [when asked in-chief], particularly about the issue at the Prince Albert airport … thestatement obviously provided some detail there”, especially about the biting of her hand. Since Ms. Crookedneck testified she was“unable to remember and would not testify or answer questions about” the threats or cigarette burn on her back, necessity, in the Crown’ssubmission, was easily established. [25] Regarding the reliability criterion, the Crown highlighted the fact the statement was recorded in audio and video, permittingobservation of Ms.

Crookedneck, and that it was taken under oath and “essentially adopted by her” when she was questioned furtherduring the voir dire. Further, it was submitted that the Court was entitled to consider the surrounding circumstances, such as photographsof her scars and injuries and the testimony she gave in court that were consistent with her out-of-court statements. Crown counsel stated,“I suspect her demeanor at that time was honest, straightforward. She says she respects the oath.

She has those personal beliefs …”. [26] In his submissions, defence counsel conceded necessity was met in the circumstances and noted, “I think that with thewitness certainly having adopted the statement, it is videotaped, [and] it is under oath”. As to reliability, defence counsel left it to theCourt to determine if threshold reliability was met in the circumstances. [27] Applying the Sheppard principles to this appeal, I find the trial judge’s reasons to be adequate for appellate review. Theyclearly responded to the parties’ submissions.

Crown counsel made submissions sufficient for the purpose and defence counsel had noarguments in response. [28] If trial counsel had opposed Crown counsel’s arguments, the trial judge’s adoption of Crown counsel’s submissions withoutaddressing the issues may have been problematic (see Gro-Bark (Ontario) Ltd. v Eacom Timber Corporation, 2019 ONCA 341 at paras 4and 5).

In this case, however, it is difficult to say that the trial judge should have gone on to consider other issues in more depth. [29] Given the seriousness of the consequences of sustaining this conviction, I would not want to be taken as seeming to hold thatif counsel had taken a different approach the result would be different. By virtue of his adoption of the Crown’s submissions, the trialjudge’s reasons for admitting Ms. Crookedneck’s out-of-court statement can be summarized as follows: (

a) the “necessity” and “reliability” criteria articulated in KGB and Khelawon were met; (

b) necessity was established by Ms. Crookedneck’s refusal to testify about the alleged incidents involving the cigarette burnand threats made against her by Mr. Piche and by Ms. Crookedneck’s refusal to recall some details about the hand biting incident; and (

c) the entirety of the out-of-court statement was sufficiently reliable because (

i) it was made under oath,

(ii) Ms. Crookedneck apparently took this oath seriously, (iii) the statement was video-recorded, (iv) the statement was corroborated by physical evidence documented in photographs, (

v) the statement was corroborated to some extent by Ms. Crookedneck’s testimony, and (vi) Ms. Crookedneck adopted the statement. [30] Considered in this light, the trial judge’s decision to admit the KGB statement and his reasons can be assessed by this Court.His grounds for admitting the evidence are readily apparent. Therefore, I conclude there is no basis to hold that the reasons areinadequate. 2. The admission of the KGB statement [31] Mr. Piche’s second argument is that even if the reasons are adequate to permit appellate review, the trial judge erred in lawby admitting the statement.

He submits that leaving the decision up to a judge to determine reliability does not eliminate the need tomake a correct decision on admissibility. The Crown submits that the trial judge committed no error of law in admitting the statement. [32] In support of their respective positions, Mr. Piche and the Crown cite the leading Supreme Court authorities regarding theadmissibility of out-of-court statements: KGB, Khelawon and R v Bradshaw, 2017 SCC 35, 2017 SCC 35 [Bradshaw]. Mr.

Picheadditionally relies on R v Nataucappo, 2015 SKCA 28, 322 CCC (3d) 69 [Nataucappo]. [33] In Nataucappo, Ryan-Froslie J.A. summarized the law pertaining to threshold reliability as follows: [36] In determining whether hearsay evidence is reliable, a trial judge is concerned with “threshold” as opposed to “ultimate” reliability.Threshold reliability is not synonymous with truthfulness. At the threshold stage, the trial judge should not engage in weighing theevidence or an analysis of whether it should be accepted. That is the ultimate responsibility of the trier of fact.

Rather, he or she shouldfocus on the purpose for which the evidence is being tendered, the danger(

s) posed by its admission, and with those matters in mind,determine whether the circumstances under which the statement arises “substantially negate” or overcome the identified danger(s).

Indoing so, the trial judge must consider all the relevant circumstances. (See Khelawon at para. 93; Blackman [2008 SCC 37] at para. 54.) [37] There are two non-mutually exclusive ways threshold reliability can be demonstrated (see: Khelawon at paras. 49 and 61–63;Blackman at para. 35; Gardipy [ 2012 SKCA 58] at para. 20; and R v Carroll, 2014 ONCA 2 at paras 101–103, 304 CCC (3d) 252). [38] The first is where the circumstances surrounding the making of the statement allow for sufficient testing of that evidence by meansother than contemporaneous cross-examination of the declarant.

Examples of cases where threshold reliability was established using thismethod are B.(K.G.) [K.G.B.], Hawkins [ (SCC), [1996] 3 SCR 1043] and Gardipy. The second is where thecircumstances under which the statement came about “substantially negate” any concern with respect to its truth and accuracy such thatcontemporaneous cross-examination of the declarant would add little, if anything, to the process.

Threshold reliability was established inthis way in Khan [ (SCC), [1990] 2 SCR 531], Smith [ (SCC), [1992] 2 SCR 915] and Blackman. (Italic emphasis in original) [34] The Supreme Court has recently released Bradshaw, confirming the law as set out above. In Bradshaw, the Supreme Courtdescribed the two non-mutually exclusive ways to demonstrate threshold reliability as “procedural reliability” and “substantivereliability”.

Only procedural reliability is relevant in this appeal, which the Court in Bradshaw described as follows: [28] Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not“state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination” (Khelawon, at para. 63).These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsaystatement (Khelawon, at para. 76; Hawkins, at para. 75; Youvarajah [2013 SCC 41], at para. 36).

Substitutes for traditional safeguardsinclude a video recording of the statement, the presence of an oath, and a warning about the consequences of lying (B.(K.G.), at pp. 795–96). However, some form of cross-examination of the declarant, such as preliminary inquiry testimony (Hawkins) or cross-examinationof a recanting witness at trial (B.(K.G.); R. v. U.(F.J.), (SCC), [1995] 3 S.C.R. 764), is usually required (R. v. Couture,2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 92 and 95).

In this respect, I disagree with the Court of Appeal’s categorical assertion thatsafeguards relevant to assessing procedural reliability are only “those in place when the statement is taken” (para. 30). Some safeguardsimposed at trial, such as cross-examination of a recanting witness before the trier of fact, may provide a satisfactory basis for testing theevidence. (Italic emphasis in original, underline emphasis added) [35] Counsel for Mr.

Piche submits that the trial judge should have considered the following circumstances before determiningwhether threshold reliability had been established (quoting from her factum): 75. There are a number of circumstances on the record that went to the reliability of the statement, the voluntariness of the giving of thestatement, and other factors that may bring the administration of justice into disrepute. In particular, the evidence disclosed that: a. The recording of the KGB statement did not capture the entire interaction between the complainant and the interviewing policeofficer. b.

There was no evidence other than the videotape regarding the events surrounding the production of the video.

c. The complainant was pressured by her family to charge Mr. Piche. d. There was an absence of evidence regarding any police efforts to shield the complainant from undue influence. e. There was a live issue as to whether the complainant and/or her family were financially motivated by a desire to access Mr. Piche’s residential school funds. f. The complainant had a poor or incomplete memory of events by the time of trial. g. The complainant’s recollection at the time of giving the statement was also in issue. h.

There was evidence that the complainant was beaten or otherwise victimized by members of her family; and her scars – particularly on her back – could have been caused by family members and “some girls”. i. While there were photographs of injuries, there was no independent evidence associating the injuries with the acts of the accused as opposed to another family member. [ 36 ] Argument “f” is a backdoor way of reintroducing the issue of whether threshold necessity had been met, which was a matter conceded at trial and cannot be reopened by this Court.

With respect to threshold reliability, arguments lettered “a”, “b” and “d” were not placed before the trial judge and, at least in the case of “a” and “b”, assumes the existence of an issue with no evidence to support it. The balance of the remaining arguments are all matters that the trial judge was required to consider in assessing Ms. Crookedneck’s credibility as part of determining whether the Crown had proven the offences beyond a reasonable doubt.

They are not matters that the trial judge need necessarily have considered as part of making the threshold determination of reliability. [ 37 ] In this case, the reason why the Crown sought to admit Ms. Crookedneck’s statement was because of her repeated assertions during examination-in-chief and cross-examination that she did not remember the cigarette incident or the uttering threats incident.

It became necessary to admit her statement because her failure to remember operated as the equivalent of her not being present, and it is clear all of the procedural safeguards were present: the video recording of the statement, the presence of an oath, and a warning about the consequences of lying – as well as the ability for Mr. Piche’s counsel to cross-examine her at trial on what she did or did not remember and for the trial judge to observe her throughout the process. [ 38 ] The trial judge expressly referred to the “principles in KGB ”.

As a general rule, as the Supreme Court made clear in KGB , there will usually be no reason to question the threshold reliability of a sworn statement given by a witness who has been warned about the legal consequences of lying under oath if the statement is recorded on videotape and if the witness is available for cross-examination on the statement (at 794). In that regard, reference can usefully be made to the facts and result of KGB , where the Supreme Court set aside an acquittal and ordered a new trial. The inconsistent statements given in that case had been videotaped.

Even more directly on point, in terms of the facts and result, is R v Gardipy , 2012 SKCA 58 , 393 Sask R 283, where this Court sustained a conviction that was supported by a prior warned statement that had been videotaped. [ 39 ] The standard of review regarding the admission of a prior inconsistent statement was canvassed by Ryan-Froslie J.A. in Nataucappo (at paras 28–29 ). She held that the admissibility of hearsay evidence is a question of law but, absent an error in principle, the trial judge’s determination of threshold reliability is entitled to deference.

Applying that standard of review in this case, I am unable to find any error in principle that would permit intervention, which means the trial judge’s decision regarding admissibility must be accorded deference. [ 40 ] Before leaving this particular issue, I should address a point made by counsel for Mr. Piche regarding the evidence considered by the trial judge before making his voir dire ruling on admissibility. The trial judge ruled that “all of the evidence from the trial proper” would be applied to the voir dire . Mr.

Piche submits this means the trial judge should not have rendered his decision until after he had heard all of the evidence in the trial, including Mr. Piche’s trial testimony . That is clearly not what the trial judge meant or what the practice requires. It would have been understood that the trial judge would render his decision at the close of the voir dire on the basis of the evidence that had been heard thus far. The purpose of his statement was to eliminate the need for Ms.

Crookedneck to repeat her trial testimony during the voir dire, not to expand the evidence to be considered in order to determine admissibility. Mr. Piche could have called evidence during the voir dire but he did not. He did, however, testify during the trial proper. F. The appeal from conviction 1. The adequacy of the reasons [ 41 ] The basis of Mr. Piche’s defence at trial was that he did not commit the acts he was accused of and that Ms. Crookedneck went to the police because her family pressured her to do so in order to access the money he had received from the residential school settlement.

From this, he believes the trial judge should have found that Ms. Crookedneck had fabricated the complaints and told the truth at the trial. He makes reference to this aspect of his defence on four occasions during his testimony: [Mr. Piche] And then we came back here and then a few days I -- in P.A., I gave -- even though after I didn’t pay for her mom’s flight I gave her -- I gave [Ms. Crookedneck] money and then they just straight bought booze.

They came back with booze and then they just partied here for three days and then they were still bothering me, like they were still bothering me even though I was at my house there . I didn’t bother them. I didn’t go -- go to her mom’s place and just went on a killing spree or something like that, they were trying to say I did. But I didn’t do that. I was -- I was just busy being -- being a father. … [Mr. Mokuruk, defence counsel] Q Was there any time around that time where she came over to the house.

[Mr. Piche] A Yeah, the last time after -- after they stopped drinking there, after they ran out of booze, then they were just still kinda madat me and all that because I had -- I got -- I got all the money and I was taking -- like I wasn’t spending it on booze or nothing. And theywere just getting mad at me to support them, their habits, and every time they expect me to open up my wallet to them. … [Mr. Miazga, Crown counsel] Q Well have you -- can you give me example of what you personally saw to cause you to think that hermom is forcing her to stay away from you since you came back from Prince Albert? [Mr.

Piche] A Because she -- she -- she wanted me to have a joint account with her daughter and her -- money to share with her daughter -- on her daughter’s name and everything so they can spend it all by drinking. … [Mr. Miazga] Q Well so you do get along with the mom. [Mr. Piche] A She’s just trying to like -- just -- they’re just trying to like tell me what to do and then I don’t do it because I don’t -- Idon’t want to support their habit no more. I was saving money for my daughter, that was it. Q So do you think this whole set of charges is here just because you wouldn’t buy your -- [Ms.

Crookedneck’s] mom that airplaneticket? A I don’t think, no. It’s not that I don’t think it’s -- that’s what I -- that’s what it -- that’s what it is. [42] For the trial judge, the case was first of all about the credibility of Mr. Piche. He engaged defence counsel directly on thisissue: MR. MOKURUK: Well, Your Honour, clearly we have a very strong denial on the part of Mr. Piche. THE COURT: And you’re relying on W.D. [ (SCC), [1991] 1 SCR 742]. MR. MOKURUK: Yes, exactly and I don’t think I need to go into a lot of detail about how that whole analysis works. THE COURT: Well I’ve read it so many times -- MR.

MOKURUK: Exactly. THE COURT: I mean the only thread of hope, if I can put it as -- as strongly as that in the course of argument, for the sake of argument,that your client has is the third category under W.D. and frankly, subject to you persuading me that I’m mistaken, particular inexamination but also in-chief, I think I ascribe the lowest possible coefficient of credibility to your client’s testimony. MR. MOKURUK: Well -- THE COURT: He seemed to be (unintelligible). He seemed to be exceedingly defensive. He had to be told to answer questions. He saidhe knew the law and wouldn’t answer questions.

He -- his testimony changed, he -- his body -- his body language was such that I askedmadam clerk to go over and move the cups out of -- have the cups moved out of his reach because I thought he was going to explode. He-- I mean, your -- that’s not cast in stone. If you can explain to me how I’m in error, I’ll -- I’ll take a different course -- a different tact,but that’s the -- that’s the obstacle you’re facing if you’re relying on W.D. MR. MOKURUK: I’m mindful of the court’s comments, Your Honour. I think part of the -- really the large issue for Mr.

Piche andperhaps how he comes across in his testimony, is born out of a tremendous amount of frustration on his part. That may or may notamount to any sort of explanation or contributing to -- THE COURT: I wouldn’t say frustration. I’d say anger. MR. MOKURUK: Yeah, I think he would say frustration for sure. We’ve certainly heard him on a variety of issues expressed hisfeelings toward how this -- this all has come about. The court will make its

interpretation as it will, of course. But Mr. Piche was, ofcourse, very adamant in his denial. He did provide what I thought was a fair amount of detail, certainly much more detail thanMs. Crookedneck provided on a number of these occasions and this wasn’t all that long ago. We’re only talking back to, at most, inMarch, perhaps even later March of this year. So he does have a very strong adamant denial and does provide a fair amount of detail,some of which at least was corroborated by Ms. Crookedneck. One of the points regarding when the incident, I believe it was on June8th, her running from the house.

Not saying anything about being helped up by Clarence until that was put to her in cross and of coursethat came out in Clarence’s examination as well that he had helped her up. All of this won’t turn on that one incident, but it is, I think,one example that is at least to that extent corroborated by Ms. Crookedneck. So if nothing else he provides, I think, a lot more detail thandid the complainant in this -- in this matter for something that events are purported to have happened not terribly long ago.

Again, how hereacted to questions put to him, regarding the, you know, criminal record and things of that, I’ll leave to the court to -- to discuss or toconsider. The evidence of the complainant herself, Your Honour, we certainly hear in-chief today it was fairly vague, I thought and voidof a lot of detail, as was her statement that she gave to the police on June 8th. She -- the evidence was -- in particular with respect to thethree substantive charges, the cigarette burn, again simply saying she laid there and he did this. There was no indication, I didn’t getabout any more detail than that.

Where she was, the circumstances surrounding it, what he said. She recalled nothing of it today. Thethreats charge, again today said nothing regarding any threats, the statement she said he -- he said something to the effect of killing herbut she also said she didn’t remember exactly what it was he said. Just that it was -- THE COURT: She didn’t remember the exact words.

MR. MOKURUK: Right, the exact words. And I don’t it’s at all safe for the court to convict on just a gist. I think there needs to be some greater degree of certainty to that than what was given to us here today. That leaves, of course the bite mark, the biting allegation, again one that Clarence adamantly denies. Again, she doesn’t give a whole heck of a lot of detail surrounding that. If you look at the evidence of the photographs, P-1, her hand clearly showed a number of other scars. We have no medical evidence to corroborate as far as timing or that it was a bite mark. Is that necessary?

It’s not absolutely necessary but I think in a case like this it certainly would have been much more helpful. She, by her own admission, acknowledged she had suffered a number of injuries from a variety of other people. I think because in all those circumstances -- THE COURT: Which a -- which a witness describing to -- to more vile motives might well have wanted to attribute to the accused if she was inclined to be making up stories. [ 43 ] It is clear from this exchange, and the trial judge’s reasons excerpted above, that the trial judge disbelieved and entirely rejected Mr. Piche’s testimony.

The issue is whether the trial judge provided sufficient reasons for doing so. [ 44 ] Regarding Mr. Piche’s credibility, the trial judge noted he was “exceedingly defensive”, he had to be told to (and refused to) answer questions, he stated he “knew the law”, and appeared as if he would “explode” (in anger). Regarding Ms. Crookedneck’s credibility, the trial judge noted she “was very clear on numerous occasions”, she seemed to “take seriously” her oath when testifying, she appeared to testify reluctantly, she could have made “worse allegations” against Mr.

Piche and did not – which I take to mean she appeared restrained in her accusations and was not prone to exaggeration. Her reluctance to testify about the incidents appeared to stem from her love for Mr. Piche rather than an attempt to deceive the court. He stated, “she did inspire the confidence of the court” with respect to her truthfulness, despite trying not to answer questions. [ 45 ] The trial judge’s reasons do not resolve all the issues with Ms. Crookedneck’s credibility.

For example, the trial judge did not directly address the impact, if any, on the credibility of her admissions about being pressured by family members to make a police statement. He also did not address Ms.

Crookedneck’s inconsistent statements about her drinking habits (the substance of which is irrelevant, but the inconsistency may be relevant to credibility). [ 46 ] Importantly, for the purposes of this appeal, in MacKenzie , the Supreme Court stated the sufficiency of reasons in a case, which turns on credibility findings, should be assessed in light of the deference owed to trial judges with respect to such determinations (at para 109).

Citing R v Bramley , 2009 SKCA 49 at para 39 , [2009] 7 WWR 226, the Court in Mackenzie stressed that a trial judge “ is not required to list or discuss ‘all of the evidence bearing on the issues before the court ’” (at para 109). In Vuradin , the Court held that where the reasons reveal the trial judge accepted the complainant’s evidence where it conflicted with the appellant’s evidence, no further explanation for rejecting the appellant’s evidence was required (at para 19). [ 47 ] In this case, the trial judge’s reasons reveal why he decided as he did. He rejected Mr. Piche’s evidence and he believed Ms.

Crookedneck was telling the truth in her out-of-court statement and he was not left with a reasonable doubt on the whole of the evidence. The fact some parts of the evidence, potentially relevant to credibility, were not expressly resolved in his reasons does not prevent appellate review. Applying MacKenzie , his reasons show the convictions were made based on his findings of credibility and permit appellate review on that basis. That brings me to the next issue, which is whether the reasons reveal error sufficient to compel that the conviction be set aside. 2.

Alleged errors regarding credibility [ 48 ] At this point, counsel for Mr. Piche asks the Court to engage with the following factual matters that ought to have led the trial judge to conclude Ms. Crookedneck should not have been believed (repeated here for clarity): c. The complainant was pressured by her family to charge Mr. Piche. … e. There was a live issue as to whether the complainant and/or her family were financially motivated by a desire to access Mr. Piche’s residential school funds. f. The complainant had a poor or incomplete memory of events by the time of trial. g.

The complainant’s recollection at the time of giving the statement was also in issue. h. There was evidence that the complainant was beaten or otherwise victimized by members of her family; and her scars – particularly on her back – could have been caused by family members and “some girls”. i. While there were photographs of injuries, there was no independent evidence associating the injuries with the acts of the accused as opposed to another family member. [ 49 ] Counsel for Mr. Piche contests, as well, the finding of credibility made against her client, as stated in her factum: 82. The essence of Mr.

Piche’s defence to the charges was rather better expressed by Mr. Piche than by his counsel. Mr. Piche contended that the complainant’s family disliked him because he was unwilling to dissipate the money he had obtained in a residential school settlement for the purpose of their drinking. No evidence was adduced by the Crown in rebuttal to this thoroughly testable contention. … 87. With respect, the trial judge seems to have been preoccupied with the tone and emotion behind Mr. Piche’s delivery to the detriment of the content of what Mr. Piche actually said. The trial judge noted Mr.

Piche’s anger; accepting him to be correct to

apprehend anger, anger can have many sources (including, false accusation). It goes without saying that an angry presentation could nothave been used for the proposition that Mr. Piche was an angry person and therefore more likely to have committed the particular offencecharged. [50] In short, Mr. Piche asks this Court to allow the appeal on the basis of the trial judge’s credibility findings, thus invoking thisCourt’s powers under s. 686(1)(a)(

i) of the Criminal Code.

This is properly a claim of an unreasonable or unsupported verdict, as that testis formulated in R v Yebes, (SCC), [1987] 2 SCR 168 [Yebes], and confirmed in R v Biniaris, 2000 SCC 15, [2000] 1SCR 381 [Biniaris]. [51] In modern terms, R v Burke, (SCC), [1996] 1 SCR 474 [Burke], was the first Supreme Court decision toconfront the question of how an appellate court should assess a verdict for unreasonableness in a judge-alone case, when a conviction isbased on the credibility of a witness or witnesses. [52] In Burke, Sopinka J. for the Supreme Court indicated that an appellate court must recognize the advantageous position of atrial judge but, nonetheless, “retains the power, pursuant to section 686(1)(a)(i), to reverse the trial court’s verdict where the assessmentof credibility made at trial is not supported by the evidence” (at para 5).

On the facts in Burke, the Supreme Court applied what is knownas the Yebes test and concluded that no properly instructed jury, acting in a judicial manner, could reasonably have accepted the claims ofthe complainants in that case.

In reaching this conclusion, the Supreme Court considered what it found to be “inconsistencies andfalsehoods” (at para 37) in the testimony of one of the witnesses and “the strong possibility of collusion” between that witness andanother as well as the failure of the trial judge to advert to “the frailty of the identification” evidence (at para 53). [53] In Burke, citing R v W.(R.), (SCC), [1992] 2 SCR 122, Sopinka J. commented upon the “special concerns”that arise where the alleged unreasonableness rests upon a trial judge’s assessment of credibility (at para 5).

While the Court in Burke didnot elaborate on those concerns, it is apparent in a case like this one, where the verdict hinges on the testimony of one witness, anappellate court is unable to say the verdict is unsupported by the evidence. It is supported by the evidence if the witness’s version ofevents is accepted. Thus, the Supreme Court in Burke recognized that in order to set aside a verdict that depends on witness credibility,an appeal court must assess and reweigh the witness’s evidence to determine whether the verdict is unreasonable.

While deference isafforded to the court below, an appellate court does, however, have the power to intervene, even in a case where a verdict depends on anassessment of credibility, if the court concludes “after carrying out its statutory duty … that the conviction rests on shaky ground and thatit would be unsafe to maintain it” (at para 6). [54] The bar, however, is high.

In setting aside the conviction and entering an acquittal in Burke, Sopinka J. described the casebefore the Supreme Court as “one of those rare instances where the trial court’s assessments of credibility cannot be supported on anyreasonable view of the evidence” (emphasis added, at para 7): see also R v R.P., 2012 SCC 22 at para 10, [2012] 1 SCR 746. [55] In this case, Mr. Piche’s challenge to the verdict is on the basis of Yebes and Biniaris.

In Biniaris, Arbour J. described theYebes test in these terms: [36] … That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appealcourt to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review,analyse and, within the limits of appellate disadvantage, weigh the evidence. This latter process is usually understood as referring to asubjective exercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency.

The test istherefore mixed, and it is more helpful to articulate what the application of that test entails, than to characterize it as either an objective ora subjective test. (Emphasis added) [56] Viewed through this lens, and using the words of Burke, the trial judge’s conclusion on the credibility of the two witnessescan be supported on a reasonable view of the evidence. Mr. Piche denied the events leading up to the three substantive offences. Heoffered a reason for why the events differed between his account and Ms. Crookedneck’s, but the trial judge rejected his evidence as hedid not find him truthful.

It is not unreasonable for the trial judge to have done so. Reasonable doubt would then have to come from aconsideration of the whole of the evidence and, in particular, Ms. Crookedneck’s evidence. [57] Clearly, it would have been preferable for the purposes of appellate review for the trial judge to have put it more clearly whyhe found Ms. Crookedneck was telling the truth in her video statement and not when she testified in court, particularly as it related to thecigarette and uttering incidents, but making appellate review easier is not the test for unreasonableness under s. 686(1)(a)(i).

Viewing theevidence as a whole, the trial judge found her “truthful”. In doing so, he must be taken to have found she told the truth in her videostatement, and was trying hard not to testify in court because of “her love of the accused” rather “than from any effort on her part todeceive the court”. [58] Mr. Piche was facing three charges, all of which were supported by the out-of-court statement that Ms. Crookedneck wastaken to have adopted. Counsel for Mr.

Piche was critical of the trial judge’s reference to how “[s]he could have attributed far -- farworse allegations against him and chose -- and chose not to, presumably because she did take seriously the oath and she seemed verymuch to take seriously the oath as she testified”. As I have said earlier, I take the trial judge to mean that Ms. Crookedneck appearedrestrained in her accusations and was not prone to exaggeration. Considered in this light, these words, in my view, do not justify a newtrial. The trial judge found her to be a credible witness and he expressly “accepted” her evidence.

The trial judge found the case“straightforward and overwhelming”. [59] The trial judge’s assessment of Ms. Crookedneck’s truthfulness on the video statement makes this case straightforward andoverwhelming because all of the allegations are proven by the statement. Ms. Crookedneck did not provide a lot of detail but sheaddressed each incident. The photographs, which went into the record unchallenged, show a single round scar on her back, whichsupports the trial judge’s conclusion that only one person hurt Ms. Crookedneck and caused one injury. It is for these reasons that Iconclude Mr.

Piche’s convictions can be sustained on a reasonable view of the evidence or, in the words of s. 686(1)(a)(i), theconvictions are neither unreasonable nor unsupported by the evidence.

[ 60 ] There is one final point. Counsel for Mr. Piche invited the Court to view Ms. Crookedneck’s video statement. I have done so, but I am uncertain what viewing one part of the evidence adds to appellate review for reasonableness – at least, in this appeal. On the video, Ms. Crookedneck presents as a shy woman who attests to the substantive incidents in question with few details being provided; but, without seeing either her or Mr. Piche testify in-chief and under cross-examination, the Court’s review of the video adds nothing decisive to the appellate exercise of review for unreasonableness. G.

Miscarriage of justice [ 61 ] Appellant counsel argues that the verdict is the product of a miscarriage of justice, within the meaning of s. 686(1) (a)(iii) of the Criminal Code , arising from (

a) the trial judge’s expressions of haste throughout the trial, (

b) his “aggressive” approach to defence counsel, and (

c) the insufficiency of his reasons. [ 62 ] In R v Davey , 2012 SCC 75 , [2012] 3 SCR 828 [ Davey ], the Supreme Court said the appearance of unfairness will be found where there is a “serious interference with the administration of justice” (at para 74) or the irregularity is “so offensive to the community’s sense of fair play and decency that the proceedings should be set aside” (at para 87). This standard will be met when “the appearance of unfairness is so serious it shakes public confidence in the administration of justice” ( R v Wolkins , 2005 NSCA 2 at para 89 , 192 CCC (3d) 378).

In my view, this threshold has not been met in this case. [ 63 ] I will address the concerns about the expressions of haste first. There are three points in the transcript where the trial judge apparently expresses a desire to conduct the trial quickly.

Counsel argues the trial judge’s expressions of haste contribute to a miscarriage of justice. [ 64 ] The first expression of haste occurred immediately following Crown and defence counsel’s submissions on the voir dire when, without stepping down, the trial judge said, “I’m going to be as brief as I can because I know we’re under time pressures this afternoon in terms of catching our flights out of here”. [ 65 ] The second time occurred before Crown counsel could review the numbering of the exhibits: THE COURT: Before we do that can I just ask one housekeeping question of defence counsel?

How are you getting back today ? MR. MOKURUK: Flight leaving at 7:00 p.m. Your Honour. THE COURT: Flight leaving at 7:00 p.m. MR. MOKURUK: Thank you for that. THE COURT: I’m told that we regularly sit in this location till nine, ten o’clock at night. We won’t be doing that tonight. MR. MIAZGA: Well we do have that back seat if worse comes to worse and I don’t know what the rules are and maybe I shouldn’t be saying anything but -- CLERK: No. MR. MIAZGA: There is that one little back seat. You might have to carry some stuff on his lap but I think he could fit in there.

Theoretically is that -- THE COURT: Well let’s try and accommodate -- MR. MIAZGA: No, I understand. (Emphasis added) [ 66 ] Then, in rendering the conviction itself, the trial judge said (and I repeat): THE COURT: I am cognizant of the fact that we’re operating under certain limitations as to time this afternoon and that if at all possible there should be a -- or I would ordinarily adjourn for a few days to reread the evidence .

I’m satisfied -- satisfied beyond a reasonable doubt, it wouldn’t make any difference to the decision I’ve already made today because quite frankly the decision in this case is -- is straightforward and overwhelming. (Emphasis added) [ 67 ] Expressions of haste on the part of a trial judge could certainly lead to a general apprehension of unfairness if they give the appearance that the trial judge was unwilling or failed to give sufficiently careful consideration to the evidence and arguments or if it appeared counsel and witnesses were unduly rushed in parts of the trial. However, that was not the case here.

The trial judge did not interrupt counsel during examination-in-chief or cross-examination. The trial judge’s comments do not indicate impatience with the length of time counsel’s submissions or questioning took. Nor do they show that the trial judge was not alive to the important issues and evidence in the trial. They do indicate the trial judge’s view that the matter would not take long and that the legal determinations he had to make were relatively straightforward, given the evidence.

On the face of it, the trial judge appears to have been correct in his assessment: it was a short trial, with two witnesses giving brief testimony. This is not to say that the trial judge’s comments are not concerning. Comments of this nature can lead to a general apprehension of unfairness, but I would not say they do so in this case.

[ 68 ] Fond du Lac is one of Saskatchewan’s most northern points, being almost 1000 km by seasonal road from the closest major centre, Prince Albert. For most of the year, it is accessible only by flying in. These far flung court locations can only function with significant co-operation among all parties to ensure the scheduled work for any given day is completed in time to permit everyone to be transported home safely.

This does not mean that judicial decision-making can be rushed, but it does mean that appellate courts should be reluctant to overturn a conviction on the basis of a miscarriage of justice because of some perceived notion of how a trial could have been conducted with less expediency, particularly when there is nothing on the record showing that defence or Crown counsel were hampered in presenting the respective positions of their clients. [ 69 ] Appellant counsel additionally contends the trial judge’s “aggressive approach to defence counsel’s argument stifled defence counsel” (appellant factum at para 93).

This is a reference to the exchange that I quoted when assessing the adequacy of the trial judge’s reasons for conviction. If anything, the trial judge, by engaging defence counsel on this issue, was acting judicially and disclosing to defence counsel exactly what was concerning him. I note, as well, that as part of that exchange the trial judge advised both counsel up front that he was not persuaded that the Crown had proven a fourth substantive charge dealing with a further assault as it was neither made out in the video statement nor by Ms. Crookedneck in court.

I reiterate that on no occasion did the trial judge interrupt defence counsel in his cross-examination of Ms. Crookedneck or his examination of Mr. Piche, which significantly reduces the force of this aspect of the argument. [ 70 ] Counsel for Mr. Piche asserts that insufficient reasons, in combination with other matters, may amount to a miscarriage of justice (see Sheppard at para 47 ). I have already concluded that the reasons of the trial judge were not inadequate.

They do respond to the issues in the case and they do permit appellate r eview. [ 71 ] As Davey indicates, in order to find a miscarriage of justice, I would have to be satisfied that there existed an appearance of unfairness so serious that it shakes public confidence in the administration of justice. I am not satisfied of this. The most serious charge to that effect is the one dealing with haste but, as I have indicated, no miscarriage of justice arises in that regard in the circumstances of this case. III.

The Dangerous Offender Designation and the Indeterminate Sentence [ 72 ] It should be understood that the sentencing decision in this case [ DO Decision ] was released on February 2, 2016, which means that the trial judge did not have the benefit of the Supreme Court’s comprehensive reasoning in Boutilier , when he proceeded to sentence Mr. Piche. A. The effect of Boutilier [ 73 ] In Boutilier , it was argued that the amendments to

Part XXIV of the Criminal Code , brought about by the Tackling Violent Crime Act , SC 2008, c 6, s 51 [the 2008 amendments], offended the Charter . In particular, the appellant in that case argued that s. 753(1) offended s. 7 of the Charter because it barred a judge from considering the future treatment prospects of an accused before designating him or her as a dangerous offender. Subsection 753(4.1) was also challenged on the basis of both s. 7 and s. 12 of the Charter .

Section 7 (the right to life, liberty and security of the person) was alleged to be infringed because counsel believed that s. 753(4.1) results in dangerous offender designations for individuals who could otherwise receive the lesser sanction of a long-term offender designation. With respect to s. 12 (the right not to be subjected to cruel and unusual treatment or punishment), Mr. Boutilier submitted that s. 753(4.1) barred a judge from considering sentencing principles beyond public protection. Each of these arguments was rejected by Côté J. who wrote on behalf of the majority of the Supreme Court. [ 74 ] For ease of reference, the provisions of

Part XXIV of the Criminal Code , which are pertinent to this appeal, are reproduced here: Application for finding that an offender is a dangerous offender 753(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint … . …

Sentence for dangerous offender

(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted – which must be a minimum punishment ofimprisonment for a term of two years – and order that the offender be subject to long-term supervision for a period that does not exceed10 years; or (

c) impose a sentence for the offence for which the offender has been convicted. Sentence of indeterminate detention

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidenceadduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (c)will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If offender not found to be dangerous offender

(5) If the court does not find an offender to be a dangerous offender, (

a) the court may treat the application as an application to find the offender to be a long-term offender,

section 753.1 applies to theapplication and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (

b) the court may impose sentence for the offence for which the offender has been convicted. … Application for finding that an offender is a long-term offender 753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), findan offender to be a long-term offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has beenconvicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. … Appeal – Offender 759(1) An offender who is found to be a dangerous offender or a long-term offender may appeal to the court of appeal from a decisionmade under this Part on any ground of law or fact or mixed law and fact. … Disposition of appeal

(3) The court of appeal may (

a) allow the appeal and (

i) find that an offender is or is not a dangerous offender or a long-term offender or impose a sentence that may be imposed or an orderthat may be made by the trial court under this Part, or (ii) order a new hearing, with any directions that the court considers appropriate; or (

b) dismiss the appeal. [75] The first argument asserted in Boutilier was to the effect that s. 753(1)(

a) precludes a judge from considering future treatmentprospects of an offender. Justice Côté rejected this argument because she concluded that a prospective assessment has always been partof the designation analysis and, as such, future treatment prospects of an offender are relevant. In other words, the harm the appellantalleged in Boutilier did not exist (at para 23). [76] In reaching this conclusion, Côté J. confirmed the jurisprudential authority of R v Lyons, (SCC), [1987] 2SCR 309 [Lyons], wherein La Forest J. described the designation stage as comprising four criteria.

Of the four, three concern whether anoffender is a threat and, of these three, the last two are future-oriented. Relying on Lyons, and by focusing on the word threat in s. 753(1)(a), the majority in Boutilier concluded that “an offender cannot be designated as dangerous unless the judge concludes that he or she is a

future ‘threat’ after a prospective assessment of risks” (italic emphasis in original, at para 23). Significantly, for past appellatejurisprudence on the point, the majority held as follows: [23] … Contrary to the divided jurisprudence on this point and the reasons of the Court of Appeal in this matter, this future riskassessment has always required consideration of future treatment prospects.

This, in turn, means that the designation provision is notoverbroad as it does not capture offenders who, though currently a threat to others, may cease to be in the future, notably after successfultreatment. (Emphasis added) [77] Côté J. held that an offender’s future or anticipated conduct must be deemed intractable, which she defined as “behaviour thatthe offender is unable to surmount” (at para 27).

On this point, the Court overruled R v Szostak, 2014 ONCA 15 (leave to appeal to theSCC refused ), by holding that “it is Lyons and not Szostak that remains authoritative on this issue” (at para 29):intractability is a requirement under the current dangerous offender regime (paras 26–27 and 29–35).

Justice Côté noted how some courtsof appeal, as in Szostak, have held intractability and treatability are no longer relevant at the designation stage but she rejected thisproposition and confirmed these two criteria must be considered at the designation stage (at paras 42–43). [78] In Boutilier’s conclusion on the designation stage, the Supreme Court declared, “a finding of dangerousness has alwaysrequired that the Crown demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of theviolent pattern of conduct” (at para 46).

Having found that an offender’s future prospects are relevant at the designation stage, the corefeature of Mr. Boutilier’s arguments regarding a s. 7 violation was dismantled. [79] Justice Côté went on to hold that the Court of Appeal erred in Szostak by concluding “that an offender whose conduct isintractable should rarely, if ever, be eligible to receive a lesser sentence” (at para 30).

Something less than an indeterminate sentence mayyet be available, notwithstanding a declaration of dangerousness: “Though evidence may establish that an offender is unable to surmounthis or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from theoffender’s behaviour can be adequately managed outside of an indeterminate sentence” (Boutilier at para 31). [80] As Ottenbreit J.A. indicated in R v S.P.C., 2018 SKCA 94 at para 38 [S.P.C.], Boutilier has clarified the law on this point.Decisions such as R v Bird, 2015 SKCA 134, 467 Sask R 277 [Bird] (leave to appeal to the SCC refused ), “must nowbe read in light of Boutilier, which confirms that although intractability must be considered at the designation stage, a finding ofintractability at that stage does not compel an indeterminate sentence” (S.P.C. at para 38). [81] The next key feature of Boutilier was in response to the s. 12 argument.

It was submitted that s. 753(4.1) offended s. 12because it prioritized public safety as a sentencing consideration and excluded broader sentencing principles, which could result in“grossly disproportionate sentences” (at para 51). Justice Côté aptly distilled the two root premises of this argument as follows: [51] First, Mr. Boutilier argues that s. 753(4.1) is properly read as impeding the discretion of a sentencing judge to impose a fit sentencein light of all relevant factors and circumstances and the principles and objectives of sentencing.

Second, he says that s. 753(4.1) imposesa presumption of indeterminate detention for designated offenders. (Italic emphasis in original) [82] Justice Côté held that a fair reading of s. 753(4.1) does not support either of the root premises argued: a sentencing judge isstill required to address broader sentencing principles – with the added requirement that public safety is an enhanced objective: [56] Mr. Boutilier contends that, by referring solely to the objective of public protection, the wording of s. 753(4.1) excludes othersentencing objectives and principles from the sentencing judge’s discretion.

In my view, a fair reading of s. 753(4.1) does not result in theexclusion of these principles. Parliament is entitled to decide that protection of the public is an enhanced sentencing objective forindividuals who have been designated as dangerous. … It is permissible for Parliament to guide the courts to emphasize certainsentencing principles in certain circumstances without curtailing their ability to look at the whole picture. Emphasis on the public safetycomponent is consistent with the fact that public protection is the general purpose of

Part XXIV of the Code: Steele [2014 SCC 61], atpara. 27. Further, because the enhanced objective of public safety parallels the justification for imposing an indeterminate detention,such emphasis is also consistent with the principles of sentencing generally. (Emphasis added) [83] Justice Côté confirmed that s. 753(4) and s. 753(4.1) should be read as a codification of R v Johnson, 2003 SCC 46 atpara 60, [2003] 2 SCR 357 [Johnson].

In Johnson, the Supreme Court held that s. 753 – which then did not include (4.1) – did notpreclude other sentencing options, meaning that an indeterminate sentence was not the only sentencing option available to dangerousoffenders.

To hold otherwise would “conflict with the underlying principle that the sentence must be appropriate in the circumstances ofthe individual case” (Johnson at para 24, as cited in Boutilier at para 59). [84] Importantly, on the question of imposing a fit sentence, the majority held: (a) “[i]n order to properly exercise his or her discretion under section 753(4), the sentencing judge must impose the leastintrusive sentence required to achieve the primary purpose of the scheme” (at para 60); (b) “an offender’s moral culpability, the seriousness of the offence, mitigating factors, and principles developed for Indigenousoffenders are … relevant to deciding whether or not a lesser sentence would sufficiently protect the public” (at para 63). [85] Further, Boutilier held that s. 753(4.1) does not create a presumption, but rather guides a judge’s discretion: [65] Section 753(4.1) guides the discretion of the judge, who ultimately must determine the fittest sentence in a given case based on the

evidence adduced during the sentencing hearing. This Court in Johnson stated that the “sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level”: para. 44.

Again, s. 753(4.1) is simply a codification of the exercise of discretion required by Johnson in light of the regime’s general purpose of public protection in dealing with offenders presenting a very high likelihood of harmful recidivism. (See also paras 64, 71, and 76.) [ 86 ] Finally, the majority in Boutilier addressed the contention that s. 753(4.1) is overbroad in a manner contrary to s. 7 of the Charter because offenders in the dangerous offender regime “must satisfy the higher standard of a ‘reasonable expectation’ of control to obtain a lower sentence, whereas under the long-term offender regime, they would need to meet the lower standard of a ‘reasonable possibility’ of control” under s. 753.1 (at para 72).

The majority met this argument by reiterating three points made earlier in their reasons: (

a) the two regimes target different offenders – “s. 753(1) limits the availability of an indeterminate detention under s. 753(4) and (4.1) to a narrow group of offenders that are dangerous per se” (at para 75); (b) “a long-term offender sentence remains available for dangerous offenders who can be controlled in the community in a manner that adequately protects the public from murder or a serious personal injury offence” (at para 76); and (c) “ a rigorous application of the designation criteria under s. 753(1) ensures that the provision does not overreach by capturing offenders that should not face the risk of a sentence of indeterminate detention” (at para 77).

B. Whether the trial judge erred with respect to the sentence [ 87 ] Respectfully, in light of Boutilier , the trial judge committed four errors, which, taken together, merit a new hearing. First, the trial judge’s statement of the law does not accord with Boutilier . Second, the trial judge treated the finding of dangerousness and the imposition of the sentence as two separate events: after having designated Mr. Piche as dangerous, he heard further evidence. Third, the trial judge appears to have found Mr. Piche not to be manageable in the community because he found him to be a dangerous offender.

The trial judge also committed a fourth error that stands apart from the Boutilier issues. It relates to the reasonableness of his assessment of where Mr. Piche would be permitted to live following a determinate sentence and the kind of supervision that would be required. I will address each of these matters in turn. 1.

Establishing the correct framework in light of Boutilier [ 88 ] The trial judge interpreted the 2008 amendments as effecting a significant change to s. 753(1), s. 753(4) and s. 753(4.1) ( DO Decision ): [9] In 2008, the dangerous offender scheme was amended again with the following significant changes being introduced: 1. The sentencing judge’s discretion to impose a long-term offender [order] instead of a dangerous offender declaration was abolished.

The legislative scheme now provides that the judge “shall”, that is, is obligated to find the offender to be dangerous if the conditions laid out in section 753(1) of the Code are met ( R v Warawa , 2011 ABCA 294 at para 9 , 278 CCC (3d) 409; application for leave to appeal by Supreme Court dismissed: [2012] SCCA No. 66). Under the new scheme, a greater part of offenders can be declared dangerous.

Not only those who are so dangerous to be imprisoned for an indeterminate period of time are in the purview of this declaration, but also such offenders who are thought to be “manageable” in the community, at least on long term . 2. Previously, a dangerous offender designation was tantamount to the imposition of an indeterminate sentence of imprisonment.

The current scheme gives the sentencing judge a range of options upon a finding of dangerousness (section 753(4) of the Code : determinate jail sentence without long-term supervision order (LTSO) – determinate jail sentence with LTSO – indeterminate, period of incarceration). Thus, the discretion shifted from the declaration stage to the sentencing stage ( Warawa , at para 10 ).

However, an indeterminate sentence has to be imposed unless there is a “reasonable expectation ” [italic emphasis added by the trial judge] that a lesser measure, that is, a determinate sentence with or without a long-term supervision order, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence (section 753(l)(a)) . Before the revision, the case law allowed a dangerous offender declaration coupled with this drastic sanction only i

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